Michigan State Employees Association (MSEA), AFSCME, AFL-CIO

National Labor Relations Board - Administrative Judge Opinions

Jul 23, 2014

07-CA-103202 (N.L.R.B. Jul. 23, 2014)

JD–42–14
Lansing, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MICHIGAN STATE EMPLOYEES
ASSOCIATION d/b/a AMERICAN FEDERATION
OF STATE COUNTY 5 MI LOC MICHIGAN
STATE EMPS ASSOC, AFL-CIO
Respondent Cases 07-CA-103202
07-CB-089960
and
BENNY POOLE, An Individual
Charging Party
and Cases 07-CA-101623
07-CA-101629
07-CA-114358
CENTRAL OFFICE STAFF ASSOCIATION
Charging Union
Scott Preston, of Detroit, MI, for the
General Counsel.
Brandon W. Zuk, Esq., Lansing, MI
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Lansing,
Michigan, on April 7-10, 2014. Benny Poole, the Charging Party, filed the charge on September
25, 2012,1 and the General Counsel issued the third amended complaint on December 19, 2013.
The complaint alleges that the Respondent, Michigan State Employees Association d/b/a
American Federation of State County 5 MI LOC Michigan State Emps Association, AFL-CIO
(MSEA), retaliated against Union Steward Benny Poole for his Board activities in violation of
Section 8(b)(1)(A) and (a)(4) and (1) of the National Labor Relations Act (the Act),2 disciplined
Nancy Durner in retaliation for her union activities in violation of Section 8(a)(3); removed job

1 All dates are 2012, unless otherwise indicated.
2 29 U.S.C. §§ 151–169.
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2
duties from, suspended, and eventually discharged Katherine Keelean in retaliation for her union
and Board activities in violation of Section 8(a)(3); failed and refused to provide information
and/or unreasonably delayed in providing information to the charging union in violation of
Section 8(a)(1); created an impression of surveillance in questioning Keelean; interrogated
Rhonda Westphal about her union activities in violation of Section 8(a)(1); threatened to charge 5
time to the COSA aggregate leave bank; and issued an investigatory questionnaire with an overly
broad rule to Keelean in violation of Section 8(a)(1). The MSEA denied the allegations.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the 10
following
FINDINGS OF FACT
I. JURISDICTION15
MSEA, with an office and place of business in Lansing, Michigan, has been an
organization in which employees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other terms and conditions of employment, where it annually derives gross 20
revenues in excess of $250,000 and sent funds in excess of $50,000 from its Lansing, Michigan
facility directly to points outside of the State of Michigan. MSEA admits, and I find, that it is
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it and
the charging union are labor organizations within the meaning of Section 2(5) of the Act.
25
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
MSEA is a labor organization representing employees of the State of Michigan. Its 30
permanent, full-time staff during the relevant periods fluctuated between seven and nine
employees. Kenneth Moore, a State employee on administrative leave from the Michigan
Department of Corrections, was elected as president of MSEA in July 2010. Tamara Voigt is his
confidential assistant. Donna Spenner served as vice president from July 2010 until July 2012.
Her successor, Rod Schneider, passed away in March 2013 and was replaced in April 2013 by 35
Dan Matthies. Matthies served as vice president until March 2014.3 Tim Schutt served as
treasurer until July 2012, when he was replaced by Randall Jecks.4
As president, Moore supervises all of the bargaining unit employees. Voigt has been
Moore’s assistant since September 2010 and is the only support staff excluded from the 40
bargaining unit. Clyde Manning was a labor relations coordinator; Rhonda Westphal and Audrey

3 The parties stipulated that Schneider died on March 22, 2013 and Moore appointed Matthies as
MSEA vice president on April 2, 2013. (Tr. 74-77, 711-712.)
4 MSEA concedes that Moore, Spenner, Matthies, Schutt, and Jecks served as supervisors within the
meaning of Sec. 2(13) of the Act, while the following individuals served as agents within the meaning of
Sec. 2(13) of the Act: Ron Damuth, Frank Gonzalez, Voigt, Cathy Connolly and Matthies.
JD–42–14
3
Johnson were labor relations specialists; Katherine Keelean (a/k/a Washburn), Mary Grove and
Karilyn Wilson were accounting assistants; Nancy Durner was an administrative assistant; Karen
Murphy was responsible for communications; and Fidencio Gonzalez was a labor relations
specialist and membership representative.5 Roberto Mosqueda was a past MSEA president, vice
president, Region 4 Director and committee chair before retiring in 2002.5
MSEA and the Central Office Staff Association (COSA) have had a bargaining
relationship for many years. The current collective-bargaining agreement (CBA) runs from
October 1, 2011, to September 30, 2013.6 The following employees of MSEA (the bargaining
unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of 10
Section 9(b) of the Act:
[A]ll positions whether full-time, part-time or temporary for employees who are
employed for more than 30 calendar days with exception of the Assistant to the President.
15
Additionally, bargaining unit employees “shall, as a condition of continuing employment,
maintain membership with [COSA]. Any new employee hired, hereafter, in bargaining unit
positions, shall, as condition of employment, become a member of [COSA] on or before the
thirty first (31) calendar day of his/her employment.”7
20
Manning served as president of COSA from 2002 until he retired in February 2013.
Westphal was vice president of COSA from 2009 until she resigned in 2013.8 Durner was
COSA’s secretary/treasurer and a bargaining unit member until July 2011. Johnson succeeded
her as secretary/treasurer in July 2011.
25
B. The Bargaining Relationship
After Moore became president in July 2010, the atmosphere changed within the office.
The small work environment at MSEA became less congenial. Shortly after becoming president,
Moore opined to the other officers comprising the executive council that it was scandalous that 30
staff controlled the organization. He also expressed a lack of confidence in the other officers and
would be appointing others with whom to work with, including Gonzalez and Matthies.9 Moore
also announced that he did not want to work with the elected executive board members and

5 GC Exh. 2.
6 GC Exh. 9 at 2.
7 GC Exh. 9 at 6.
8 The General Counsel suggested that Manning and Westphal retired because of the hostile
atmosphere, but there was insufficient evidence to support that assertion. (Tr. 37-38, 317-318.)
9 Moore attempted to evade the question when confronted with the minutes reflecting his statement by
insisting that they were not approved minutes and were not accurate. After a long, calculated, and evasive
answer, he conceded that he “may have made the statement” as to the “scandalous” state of affairs. (Tr.
682-689; GC Exh. 39.) He was evasive as to whether he made the statement about appointing Gonzalez
and Matthies by retreating to the notion that the minutes were not approved. (Tr. 690.) Having heard the
previous testimony, he was subsequently recalled to testify as to a “corrected” set of the 4-page executive
council minutes for the December 21, 2010 meeting. The “corrected” set was a streamlined one-page
version of the comprehensive, accurate minutes. (R. Exhs. 42-43; Tr. 799-806.)
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4
wanted them replaced as well.10 Adding to the volatility, Matthies and Manning also did not get
along due to past disagreements over the prosecution of MSEA member grievances when
Matthies was a chief steward.11
On April 1, 2011, MSEA and COSA began a contentious set of negotiations for a 5
successor contract, but those efforts resulted in the filing of unfair labor practices and the
termination of several employees.12 At the April 28, 2012 meeting of the board of directors,
Moore expressed concern that an MSEA member would give information to the NLRB in its
investigation of those charges. Moore numbered the documents distributed at that meeting in
order to “catch somebody giving information to the NLRB.”1310
On August 23, 2012, MSEA employees and bargaining unit members Murphy and
Wilson sent identical scathing letters to Manning and Westphal excoriating COSA for harassing
MSEA for “(unnecessary) grievances, hearings, court proceedings, defamation, and unnecessary
financial costs associated with office politics, tactics, intimidation and bullying.” They also15
stated that they did not want their dues to be used for such efforts and concluded with the remark
“that MSEA belongs to its members, not the staff. It is my opinion that the efforts of the staff and
the funds of MSEA should be spent in the best interests of the members of MSEA.”14
After a 3-week hearing, Administrative Law Judge Keltner Locke adjudicated the 2011 20
charges by finding that MSEA violated the Act by unlawfully suspending Durner, unlawfully
terminating Grove’s recall rights, unlawfully placing Johnson on administrative leave and later
discharging her, unlawfully refusing to allow Manning to return from medical leave for almost 2
months after he was medically cleared to work without restrictions, refusing to provide COSA
with information, unilaterally implementing new work rules and cell phone use changes, 25
removing bargaining unit work and bad-faith bargaining. Judge Locke’s decision is pending on
exceptions before the Board.

C. Information Requests
30
Prior to his retirement from State employment in December 2010, Gonzalez frequently
attended board meetings as a committee chair. After Manning went on sick leave for a period of
time, Gonzalez, a Moore ally, was assigned to briefly fill his position as an MSEA employee. He
became a member of COSA for only 30 days.15
35

10 Moore’s denial that he expressed a desire to destroy COSA was not credible and contrary to the
overwhelming credible evidence. (Tr. 629.)
11 Matthies testified credibly that he and Manning did not get along due to disagreements over the
latter’s request that Matthies withdraw employee grievances by MSEA members. (Tr. 85-86.)
12 It is not disputed that the most recent contract negotiations were “not a pleasant bargaining cycle.”
(Tr. 39-41; GC Exh. 7.)
13 Moore did not recall making that statement, but conceded making it after the General Counsel
played a recording in which he states that was the reason and he admits it. (Tr. 692-693; GC Exh. 40.)
14 GC Exhs. 3-4.
15 Gonzalez was fairly credible as to his temporary role in filling in for Manning while he was on
medical leave. (Tr. 508-509, 511.)
JD–42–14
5
Gonzalez’ appointment was not announced. However, Westphal saw Gonzalez at
MSEA’s office on a regular basis and became concerned because the CBA requires that any
bargaining unit position be posted prior to filling it. She was concerned as to what his title would
be, where he fit within the bargaining unit, and his wages and benefits.16 Accordingly, on January
31, 2013, Westphal requested, in writing, that MSEA confirm the hiring of Gonzalez, the date of 5
hire, his job title and position, whether full time or part time, permanent or temporary, wages and
benefits, any vacancy postings for his position, whether any other employees were hired without
a vacancy posting, and confirmation that Gonzalez resigned from MSEA. Westphal also
requested that MSEA furnish Gonzalez’ personnel file and job postings and information about
new employees hired about which the charging union had not been informed. MSEA did not 10
provide the requested information. Gonzalez was informed of the request and asked that his
personnel information not be provided.17
On February 4, Moore replied to each of the first nine items in the information request,
but denied the request for Gonzalez’ personnel file information.18 However, he did offer to 15
reconsider any specific items requested from the personnel files if COSA provided legal
authority for the requests.19
On February 26, Manning followed up on Moore’s response by asking for a copy of
Gonzalez’ “COSA membership/dues authorization form, his position/classification, his date of 20
hire, and his employment type, that is, full-time, permanent, part time, etc.”20 On February 27,
Moore replied that the information requested by Manning regarding Gonzalez “has been
provided to [Westphal] on February 5th, 2013. Should you need additional copies, please
advise.”21 In response to information as to whether the vacant position was posted, Moore listed
the response as “N/A.”22 He did not supplement his February 27 response until May 9, 2013, 25
after charges were filed. At that point, Moore provided Gonzalez’ personnel records containing
his job title and position.23
D. The February 27 Gathering of Staff

16 Art. 31, sec. B of the CBA provides a designated COSA representative access to personnel records
of bargaining unit employees. (GC Exh. 9; Tr. 47-48, 50, 317-320.)
17 There is no dispute that the requested information was relevant. (GC Exh. 5; Tr. 501.)
18 Moore denied access to Gonzalez’ personnel file upon advice from his attorneys and Gonzalez’
objection. He also testified that Murphy and Gonzalez, “two members of the COSA unit,” directed that
their files not be accessed by COSA. (GC Exh. 6; Tr. 51-52, 67-70, 321-322, 702-703.)
19 GC Exh. 6.
20 Moore evasively responded by not initially recalling whether he reviewed this follow up request.
(GC Exh. 7; Tr. 52-53, 322-323, 703-704.)
21 Moore could not recall if he made any effort to look for additional information in order to respond
to this follow up request and attempted to attribute the delay and insufficiency of his response to other
business and Voigt’s illness. (GC Exh. 8; Tr. 53, 323, 712-713.)
22 Moore conceded that COSA had a right to information as to whether a vacancy announcement was
posted. (Tr. 699-701.) As to #9, whether any new employees had been hired, the intent of saying N/A was
to convey that none had been hired. (Tr. 702.)
23 Moore provided a long-winded explanation of how he handles information requests and alleged
delays in providing the requested information based on Voigt being “in and out frequently” and that he
was “doing catch-up.” It was a clear deflection from the fact that he supplemented his February 27
response after charges were filed. (GC Exh. 31; Tr. 658-659, 697-699.)
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6
MSEA does not have any policies against casual conversations in the workplace and it
was routine for employees to discuss personal and family matters in the office.24 During the
morning of February 27, 2013, Keelean and Westphal were engaged in such discussion and were
joined by Durner about 10 minutes later. They closed the door during the conversation, but were 5
easily observable through Westphal’s office window. They discussed personal matters for a
while before moving on to a Moore’s suggestion the previous day about getting retirees involved
in Right-to-Work issues, as well in COSA matters. The discussion lasted about 15 to 20 minutes,
with COSA-related discussion taking about 5 minutes.25
10
The “gathering of staff” was observed by Gonzalez, who promptly reported it to Moore
as soon as the latter arrived to the office. Concerned that COSA bargaining unit members “had
free rein or free access” to MSEA’s financial information, Moore went directly to Keelean’s
office and asked if she shared MSEA’s financial information during the earlier gathering.
Keelean responded that she engaged in conversation with Westphal and Durner about retirees 15
and their ability to vote in COSA elections. Moore responded that he was only interested in
ensuring that COSA did not have access to MSEA financial information without permission
from him or MSEA’s treasurer. Moore reminded Keelean that she was not to divulge MSEA
financial information without his permission.26
20
Later that day, Westphal received an email from Voigt stating that she wanted to deduct
time from Westphal’s COSA leave bank for conducting a COSA meeting in her office earlier
that morning.27 Westphal responded the next morning, saying that they were not conducting a
COSA meeting.28
25
Moore knew that Westphal, Durner, and Keelean had not conducted a COSA meeting
earlier that morning.29 Nevertheless, he instructed Voigt to follow up with such an assertion. By
email to Westphal a short while later, Voigt expressed her belief that Westphal conducted a
COSA meeting in her office the previous day. Westphal responded by asking for more
information, reiterated that there was no meeting and expressed a concern that MSEA would 30
have a problem with employees gathering. Moore responded later and said that he said he spoke
with someone and was concerned that they discussed COSA business during the gathering as
well as MSEA’s financial information. Westphal replied that it would be inappropriate to charge

24 This finding is based on Westphal’s and Durner’s credible and unrefuted testimony. (Tr. 197, 331-
332.)
25 Westphal, Durner, and Keelean provided credible and consistent testimony regarding the content of
their conversation that morning. (Tr. 195-196, 325-326, 353, 375-376.)
26 Keelean and Moore provided fairly consistent testimony as to this interaction. (Tr. 351-353, 630-
631, 715-718.) Based on Moore’s overall lack of credibility, however, I do not credit his uncorroborated
assertion that Keelean previously disseminated MSEA financial information to other COSA members.
(Tr. 634.)
27 GC Exh. 19.
28 Westphal conceded, however, that if it had come to Moore’s attention about COSA business had
been conducted on MSEA time, it would have been appropriate for him to request that she charge such
time to the COSA leave bank. (GC Exh. 19 at 3; Tr. 329, 341.)
29 Moore conceded that Gonzalez did not describe the gathering as “a full union meeting” since there
are more than just the three of them in bargaining unit. (Tr. 720.)
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7
the employee leave bank and expressed concern that Moore was merely interested because of her
role as a union officer. The leave was never charged.30
5
E. Nancy Durner
The events of February 27 had consequences. Durner, secretary/treasurer of COSA since 10
July 2011, had been involved in the contentious bargaining in 2011.31 After the staff gathering on
February 27, Moore confronted Durner later that day with a copy of Statewide mailing that she
did and followed up with an email. It was a Region 6 meeting notice sent on postcards. The
agenda was different on one card as opposed to another.32
15
On February 28, Durner was reprimanded in writing for sending out incorrect mailings.33
The reprimand noted, in part, that she received prior verbal counseling for outgoing mail issues
and a written reminder about outgoing mail issues. The reprimand was issued, notwithstanding
the fact that her mailings are reviewed by either Voigt or Moore before being sent.34 Durner was
subsequently terminated, but went to arbitration, prevailed, and was reinstated.3520
F. Katherine Keelean
Moore’s concerns about protecting MSEA’s financial information did not end with his
February 27 admonition to Keelean. On March 5, Moore issued an investigatory questionnaire to 25
Keelean: “This questionnaire shall remain confidential and is not to be discussed outside union
representation.”36 Moore was just getting started with respect to Keelean.
Keelean’s duties as an accounting assistant included processing longevity bonuses and
withholding applicable income taxes. Typically, a W-4 IRS form is generated to reflect changes 30
in federal income tax withholdings. At employees’ requests, Keelean has been adjusting
withholdings on paychecks ever since she has been doing payroll.37 Even Moore made such
requests from time to time.38 Keelean made the adjustments for herself and others upon the belief

30 Moore did not make a final decision on this issue until May 3, 2013. (Tr. 635-636, 721.)
31 Durner bargained for a new contract on behalf of COSA alongside Manning and Westphal. (Tr.
663.)
32 Durner was very credible. She conceded the mistake and responsibility for it, but was not sure of
the order in which things happened. (Tr. 198-202, 206, 208, 210; GC Exh. 15.)
33 Moore denied that Durner’s role in bargaining was a factor in reprimanding her (Tr. 659-664).
34 GC Exhs. 16-17.
35 GC Exh. 18.
36 Moore’s explanation that he failed to review the template used by Voigt for the final version of the
questionnaire was not credible. (GC Exh. 20; Tr. 357, 637-639, 723-724.)
37 Keelean’s credible testimony, that no one ever questioned her about this practice, was not refuted.
(Tr. 61-62, 370-371-373, 383-384, 386-387.)
38 Moore submitted W-4 forms to change withholdings on several occasions. (GC Exhs. 42-43; Tr.
731-732.)
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8
that income tax liability would be lower than previously anticipated.39 Making adjustments to
withholding tables without a W-4 form being submitted was a practice that Joe Barrus, as
Keelean’s predecessor as accounting assistant, did many times since 1988 until he retired in
2008, especially when it came to annual longevity payments. None of his superiors ever spoke to
him, much less admonished him, for that practice.405
On a separate matter, Jecks, the new treasurer, was raising concerns with Moore about
late tax payments that he uncovered.41 After receiving a bill for “a penalty fee for late filing of a
tax return” and payment of payroll taxes he talked to Keelean about the bill in May 2013. She
said she forgot but would usually call and get the penalties waived.42 Rather than have Keelean 10
do that, however, Jecks paid the bill and proceeded to review “everything” that Keelean had
done. Jecks even reached out to Schutt, his predecessor, who was unaware of late tax payments
during his tenure.43 Notwithstanding the late quarterly payments, no penalty was owed for
underpayment of taxes at the end of 2013.44 Aside from the late payment penalties for state taxes
paid by Schutt, there was no documentary evidence of any fines or penalties paid to any taxing 15
authority at any other time.45
In addition to performing her regular duties, Moore required Keelean to train Wilson, an
anti-COSA staffer, to perform her functions. It was no surprise, therefore, that in 2013, as MSEA
began to migrate from their old payroll system to a new one, Wilson was given sole 20
responsibility for the new system while Keelean continued working with the old payroll system.
One June 1, the old payroll system was discontinued and MSEA began using the new payroll
system exclusively.46 During that migration, Jecks continued performing his comprehensive
review of Keelean’s work, which uncovered the ammunition Moore needed to undermine
Keelean: changes to employees’ income tax withholdings without any corresponding W-4 forms 25
or other documentation.47

39 Moore testified that Keelean made a previous withholding adjustment for herself after he denied
her request to convert annual leave into sick leave. His opinion as to why Keelean made the change was
not credible (Tr. 672-673.), as I fail to see how taking action to reduce one’s income tax withholding
connects with the denial of a leave request. (Tr. 386-387.)
40 Barrus’s testimony about his unfettered past practice in making tax withholding changes without
W-4 forms also went unquestioned. (Tr. 218-222.)
41 R. Exh. 44.
42 Keelean and Jecks provided fairly consistent testimony regarding their discussions on the issue of
penalties for late payments and her past success in getting them waived. (Tr. 381-382, 788-796.)
43 Jecks conceded that MSEA had not received a bill from the State, but he initiated the review
anyway and calculated the penalty for late payment. (Tr. 767-770; 788-799.)
44 Keelean’s testimony that the undocumented W-4 changes never resulted in underpayment penalties
went unrefuted. (Tr. 389-392.)
45 Moore conceded that there is no such evidence, but purported to rely on “knowledge that the
treasurer had reconciled the payroll and . . . reconciled with the federal, the state, and the city; and the city
and the state had their filing automatically done interest and penalties. The federal, from what I recall, did
not.” (Tr. 739.)
46 Wilson did not testify, but it is undisputed that Moore had her gradually assume all of Keelean’s
responsibilities. (Tr. 349, 666-667, 747, 771.)
47 It was during this migration to a new payroll system that Moore and Jecks stepped up their
investigation of Keelean’s work. Both pored over the payroll records and found several manual overrides
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Moore proceeded to conduct an extensive amount of research to determine whether
withholdings without documentation created potential liability on the part of MSEA. He also
directed Jecks to make sure that MSEA paid any applicable penalties relating to the withholding
of payroll taxes.485
Moore’s plot to have Wilson undermine Keelean came to fruition on July 15, when he
handed Keelean a memorandum, dated July 13, prohibiting her from accessing MSEA’s financial
records and removing her computer access. The memorandum pruned her duties to two of nine
tasks listed in her position description. The action was attributed to Wilson’s report on July 12 10
that there were entries in prior payroll records showing adjustments by Keelean to federal, state,
and local tax withholdings.49
Moore’s adverse action came several months after COSA filed the charge in Case 07-
CA-101629. That charge referred to Keelean’s role in the February 27 staff gathering and the 15
March 5 questionnaire. The allegations then appeared in the complaint and notice of hearing,
which issued June 28 for a hearing on July 23.50
Moore was not done, however, with Keelean after reducing her duties and computer
access. On July 23, he issued another questionnaire to Keelean, which she completed and 20
returned to Moore.51 On July 24, Moore issued another questionnaire to Keelean, which she
completed based on information available to her, and confirmed that she had been requested by
employees to adjust their income tax withholdings.52 Voigt followed up saying she provided an
incorrect response.53 On July 25, Moore issued Keelean yet another questionnaire regarding
income tax withholding modifications and she responded, confirming again that she processed 25
modifications upon employees’ requests.54 On July 29, Moore issued Keelean another
questionnaire relating to her processing of income tax withholdings and she responded again
based on the information available to her.55
On August 2, Keelean went on medical leave for severe migraine headaches.56 At some 30
point after she left, Moore wrote a disciplinary report recommending Keelean’s discharge, noting
that “even without work rules in place, [Keelean’s] actions are grounds for discipline because the

by Keelean to income tax withholdings without corresponding W-4 forms or other documentation. (Tr.
664-672, 675-676, 772-783; R. Exhs. 36-40.)
48 Moore was impeached with R. Exh. 21, dated July 12, while GC Exh. 41 is an email dated over 2
months’ earlier, April 10, when he did not even have knowledge of Keelean’s actions as to withholdings.
(Tr. 679-680, 740-743.)
49 R. Exh. 21 at 1, 63; GC Exh. 21.
50 Keelean did not testify in the prior case and there is no evidence that MSEA supervisors or agents
knew prior to her testimony in this case that she signed a Board affidavit. (Tr. 378-379, 388-389.)
51 There was no dispute that Keelean had difficulty responding to the questionnaires due to the
limitations placed on her access to MSEA records. (GC Exh. 22; Tr. 361-362.)
52 GC Exh. 23; Tr. 362.
53 GC Exh. 24.
54 GC Exh. 25.
55 GC Exh. 26.
56 MSEA did not question the legitimacy of Keelean’s medical leave. (GC Exh. 28; Tr. 366-367.)
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trust of the employer has been irreparably damaged and she was aware that such actions are
prohibited.”57 Moore presented the report and recommendation, plus additional records relating
to prior discipline, at a specially convened meeting of the executive board (Moore, Matthies,
Jecks, and Kafer). The other members of the executive board agreed with Moore’s
recommendation that Keelean be discharged, but decided to offer her the opportunity to resign.585
On August 16, MSEA placed Keelean on emergency disciplinary suspension.59 On
September 20, Moore attempted to contact Keelean, but was unsuccessful. He followed up with a
letter, dated September 23, offering her the opportunity to resign in lieu of termination. During
this period of time, Keelean was visiting her father in Missouri.60 On September 24, MSEA 10
discharged Keelean and replaced her with Wilson. 61
G. Benny Poole
Benny Poole retired as an employee of the Michigan Department of Corrections in 2010, 15
but has been an MSEA member since 1988. While employed, he served in several union
capacities, including chief steward from 1989 to December 2012. He also sat as second chair in
arbitrations with the COSA membership chair. He has never been employed by MSEA and
MSEA no longer represents him regarding his terms and conditions of employment. Even after
retiring, however, Poole continued to regularly attend board meetings.6220
Poole had a relationship with Moore going back as far as 2006. After Moore became
MSEA president, he made frequent remarks about getting rid of COSA during the regular and
executive sessions of board meetings. Poole voiced his concerns about it during the meetings and
eventually went to the Board’s Regional Office in Detroit and reported Moore’s anti-COSA 25
remarks in December 2011.63

57 GC Exh. 41.
58 R. Exh. 21.
59 GC Exh. 27.
60 It is not disputed that Moore attempted to contact Keelean and she was outside of Michigan during
this period of time. (Tr. 368-370; GC Exhs. 29-30.)
61 I credit the testimony of Jecks, which was at odds with that of Moore and Kafer (Tr. 531, 679.), that
Keelean’s activities with the NLRB did indeed come up during the special executive board meeting: “I
know it was brought up that she had testified at the other one, but that's all I recall about that. I'm sorry.”
(Tr. 785.)
62 Poole’s credibility was attacked on cross-examination with respect to his address and whether he
lives and has a romantic relationship with Johnson based upon his testimony at the first trial. (Tr. 407-
408, 457-460, 472-473, 489-490.) That approach, however, was too tangential to the issues at hand.
63 Poole and Moore were not very credible witnesses but, where they conflicted, the findings relied on
corroborating evidence. Thus, while Poole’s assertion as to an anti-COSA statement by Moore in
November 2011 was impeached by prior sworn testimony, there is an abundance of credible testimony by
others corroborating Poole’s testimony as to Moore’s frequent remarks about COSA at board meetings.
(Tr. 409-411, 414-417, 464-470, 485; R. Exh. 19.)
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Poole was in the MSEA office on a bargaining assignment in February 2012 and spoke
with Manning and Westphal. Within the next several days, Spenner, Gonzalez, and Schutt each
commented to Poole that they heard about his recent visit to the NLRB’s Regional Office.64
Moore’s behavior toward Poole changed at the next MSEA board meeting. Poole was 5
recognized to speak by a member, but Moore interrupted and asserted that Poole was not a
member in good standing because he had not paid his union dues. Schutt went to confirm that
claim, but found that Poole’s dues were up to date.65
Poole also attended the April 2012 board of directors meeting and, as customary, was 10
provided with a meeting packet. Unbeknownst to him, however, Moore numbered the packets
distributed to nonboard members such as Poole. Poole proceeded to provide the packet to the
NLRB Regional Office, which produced it at the August 2012 unfair labor practice hearing
before Judge Locke.66
15
On June 8, 2012, Poole attended a special board of directors meeting called by
Mosqueda, MSEA’s region 4 director, to address several MSEA employee complaints. Poole
also advised Jo Slaughter, a discharged Michigan State employee who he represented at the
grievance stage, to show up for the meeting. Slaughter had been represented in her January 2012
arbitration proceeding by Manning, but he had been replaced after taking medical leave by a new 20
employee, Joan Bush, who was responsible for filing a post-hearing brief on her behalf.
Slaughter was concerned because she was not aware of one being filed by the April 1 due date.67
She addressed the board with her concerns, but Moore said it was an inappropriate venue to
discuss her case or to address Manning’s status. Moore said that Bush would continue to write
the brief, but would assign Westphal to review it.68 At some point that day, Matthies overheard 25
Poole maligning Bush’s advocacy skills and opining that Westphal should represent her
instead.69
At some point during the June 8 meeting, Connolly was speaking about the practices of
member representatives, including Johnson, when Mosqueda told her to “shut the [expletive 30
deleted] up.” The meeting then broke for lunch and everyone got up. Connolly, clearly annoyed
by Mosqueda’s insult, proceeded to leave the room, but Poole and Michael Walker were standing
in front of the door. She told Poole to “open the door, boy.” Poole complied, but told her not to
ever say that to him again and she left to use the restroom. Not pleased by her remarks and

64 Poole’s testimony on this point was more credible and detailed than that of Gonzalez. (Tr. 417-419,
461-462, 501.) In addition, Schutt’s testimony as to whether Moore made remarks about getting rid of
COSA was not convincing. (Tr. 524.) He initially testified that there was a lot of labor strife at the time
and did not have specific recollection as to what Moore said at the time (Tr. 515.) Spenner did not testify.
65 I did not, however, credit Poole’s speculation that someone locked him out of the room when he
stepped out to go to the restroom, causing him to walk around the long way. (Tr. 421-423.)
66 Poole’s testimony on this issue was not refuted. (Tr. 430-431, 435, 761; GC Exh. 40.)
67 Slaughter’s testimony was consistent, responsive, and credible. (Tr. 297-304, 439-440.)
68 Slaughter testified that she did not witness Poole conduct himself in an unprofessional manner or
say that Bush was unqualified. (Tr. 305-308.) On the other hand, she did not corroborate Poole’s
inconsistent and more dramatic version of her interaction with Moore in which he let her speak for a few
minutes but then told her “to get out.” (Tr. 440.)
69 I found Matthies credible on this point. (Tr. 107-108.)
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comments about Johnson at the meeting, however, Poole followed Connolly screaming. He told
her that she did not know what she was talking about and tried to block her from the restroom
and, at one point, raising his fist.70 Walker left the meeting with Poole, but proceeded to walk
upstairs to smoke a cigarette.71
5
Connolly reported the incident to Moore and then submitted a complaint to Eric Waters
of the Steward in Training Committee (SITC) on June 11, 2012. At the time, she knew there was
going to be a board hearing relating to the COSA charges, but did not know he was going to be a
witness.72 Moore also received a call from Matthies that he witnessed the altercation and was
also upset about Poole’s criticism of Bush. He indicated that he too filed a complaint with the 10
SITC committee.73
Moore was hardly impartial. By June 8, Moore already knew that Poole was cooperating
with the Board, so it was no surprise that, when Poole tried to talk to him later that day, Moore
told him to stop harassing board members. Moore documented the incident and proceeded to 15
provide his report to Eric Waters, the SITC committee chairman.74
Waters proceeded to generate internal union charges and a notice of hearing against
Poole on July 9, 2012.75 The notice of charges and hearing scheduled for October 13 was sent to

70 I did not credit most of Connolly’s version of the incident. Having observed Connolly’s brusque
tone and indignation during testimony (Tr. 443-445, 474-475, 545-550, 560-563, 569-570), I based this
finding on Mosqueda’s detailed and consistent testimony. (Tr. 177-178.) Moreover, she lied when she
testified that she and Poole were both permitted to speak at the subsequent Board meeting on this issue
and that Poole mentioned the alleged slur at that time. (Tr. 556-557, 575.) He was not permitted to speak
and no one referred to the slur at that meeting. On the other hand, I do not credit Poole’s testimony based
on several inconsistencies in his hearing testimony and prior statements. He conceded that, in an affidavit,
dated December 3, 2013, in Johnson’s lawsuit, he listed numerous past instances of racist comments at
MSEA, but failed to mention anything uttered by Connolly on June 8. (Tr. 475-476; R. Exh. 20.)
71 I credit Matthies testimony that he saw Poole shake his fist at Connolly as she tried to enter the
restroom. (Tr. 94-98.) I did not, however, rely on Walker’s testimony that Poole was calm after Connolly
insulted him. (Tr. 145-148, 159-160.) His testimony was also fraught with inconsistencies, as he failed to
mention Connolly’s statement at a previous deposition. (Tr. 164-165.) Nor did he mention her statement
at Poole’s Steward in Training Committee trial. (Tr. 186.) Moreover, he conceded that he could be mixing
up the meetings as to when the incident occurred, conceded that Poole was angry and was not sure if he
raised his fist at Connolly. (Tr. 187-189.)
72 While Connolly and Matthies knew about Poole’s support for COSA, there is no proof that either of
them knew as of June 8 that he would be a witness in the upcoming case. (Tr. 110-111, 550-553, 575; R.
Exhs. 34-35.)
73 Given Matthies own anti-COSA views, there is no reason to believe that he needed Moore to
influence his decision to file internal union charges. (R. Exh. 14; Tr. 103-104, 644-646.)
74 I do not credit Moore’s denial that he knew that Poole was cooperating with the Board or going to
testify at the upcoming hearing. (Tr. 646-647.) Moore was vague and calculating as to why and how he
generated the document and incredibly insisted that he was not aware that the document was going to be
provided to the SITC. Moreover, his assertion that Poole never mentioned Connolly’s alleged racist
remark is of no consequence, since Moore did not give Poole a chance to explain his side of the story. (R.
Exh. 4; Tr. 724-727.)
75 R. Exhs. 8, 14.
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Poole at his last known address.76 Waters also sent Poole notification as to who would participate
in the trial body.77 Efforts to serve the letter on Poole were unsuccessful to his post office box
address on file.78 Moore was also unsuccessful in serving Poole with the charges at the next
board meeting, so Voigt contacted the Jackson and Wayne County Sheriff’s Departments.79
5
Meanwhile, on August 27, 2012, Poole testified in support of COSA at the previous
board hearing.80 While being cross-examined, MSEA counsel notified Poole of internal union
charges pending against him, even though he had not yet been served.81 During the hearing,
while waiting outside the hearing room speaking with another MSEA member, Gonzalez called
out to the other person not to speak with Poole because he was not a member in good standing. 10
During another day of the trial, Moore said to Poole, look “super robo chief steward no more.”82
Poole returned for the resumption of the board hearing on September 24 and was sitting
on a bench when Voigt tried to hand him an envelope containing the charges. He asked her what
the charges were for and she told him, but he refused to accept the envelope. Poole asked Voigt 15
how she could live with herself; she responded that he was a liar. She added that he should
consider the papers served, placed them next to him, said she was serving them on behalf of the
SITC committee and started to leave. He followed behind her and said loudly, “[W]hat trial.”83
Overreacting to her most recent encounter with Poole, Voigt went to a local court and 20
obtained a personal protection order (PPO) against Poole. The PPO, however, was rescinded at a
subsequent return date after a judge found that Voigt’s allegations did not amount to a reasonable
apprehension of harm for a process server.84

76 Waters was fairly credible as to the basic functioning of the SITC committee. (R. Exh. 5; Tr. 238-
239.). In contrast to his testimony about other events, however, Moore’s fuzzy recollection about the
circumstances leading to Poole’s charges and the SITC process was clearly exaggerated and not credible.
He testified that he was “not aware of a whole lot” until the SITC’s recommendations were reported to the
executive council. (Tr. 647.) However, he also testified that Waters came to see him about holding the
trial at another location because of the PPO. (Tr. 652-653.)
77 R. Exhs. 6-7.
78 Poole’s testimony that he went to his post office box and found only mail relating to Voigt’s PPO
was not credible. (Tr. 446; R. Exhs. 23-29.) Given the presumed regularity of delivery of Postal Service
mail, I find that he also received the SITC charges and notice of trial date.
79 Tr. 237, 582-589, 607-609; R. Exh. 31.
80 MSEA stipulated that Poole testified against it on August 31. (Tr. 137, 435.)
81 GC Exh. 33.
82 I credit Poole’s testimony regarding MSEA officer’s comments at the hearing location over Moore
and Gonzalez. (Tr. 433-435.) MSEA’s counsel denied hearing such comments, but I also find that he was
not always in a position to hear what Moore said to others as they entered the building and proceeded
through the security checkpoint. (Tr. 540-541; 648-649.)
83 I credit Voigt’s testimony regarding her attempts at service over Poole’s version. (Tr. 436-438, 597;
R. Exh. 5.)
84 Voigt, obviously caught up in the partisan wrangling involving her supervisor, obtained the PPO on
her own. (Tr. 243, 597-598, 600, 614-615; GC Exh. 35; R. Exhs. 8, 30.) Moreover, notwithstanding the
workplace flexibility Voigt was given to handle this matter, there is no credible evidence to refute
Moore’s denial that he directed Voigt to seek a PPO against Poole. (Tr. 650-651.)
JD–42–14
14
Subsequently, Waters called and spoke with Poole and notified him of the October 13
hearing. During that phone conversation, Poole said that he could not attend the trial body
because of a personal protective order that was placed on him from Voigt. Waters told him that
he was unaware of a PPO being placed on him and said he would look into it and get back to
him. After confirming the existence of a PPO, Waters asked Moore to move the trial location to a 5
nearby hotel. Moore agreed. Poole also told Waters that he would not sign for anything.
Correspondence to Poole was returned based on “insufficient address” and “unable to forward.”
An October 9 email to Waters from Poole indicated that he was aware of the scheduled trial.85
Waters responded to Poole in an October 11 email.86 Poole replied in a letter, dated 10
October 15. In it, Poole explained that his attorney advised against attending the October 13
SITC hearing due to Voigt’s PPO against him.87 As a result, the hearing was rescheduled for one
week to October 20.88 Waters had an email sent to Poole to confirm the changed date.89 Waters
assured Poole and his attorney that Voigt would not be anywhere near the trial. He also tracked
the email to ensure that Poole received it and knew that Voigt would not be anywhere near the 15
new union trial location. He and others had trouble after that trying to pin Poole down by phone
to confirm. Waters left a voice mail message and spoke with his lawyer for reassurance that
Voigt would not be at the union trial. The lawyer said he would make sure Poole knew.90 Poole
did not appear for the October 20 trial, nor did he ask anyone to testify on his behalf. He did,
however, ask Waters for a witness list, which was provided.9120
On October 20, 2012, the SITC committee conducted a hearing on the charges filed by
Connolly and Matthies and recommended that Poole’s MSEA membership be suspended for 2
years.92 Eric Waters chaired the committee, which heard testimony from Matthies, Connolly and
her husband before rendering a decision.93 Poole was aware of the trial date and time but did not 25
appear.94 Nor was there any mention at the hearing about Connolly’s allegedly incendiary
comment to Poole.95 Waters prepared a report of the trial to the board, dated October 23.96

85 I found Waters credible, while Poole’s testimony and actions during this timeframe indicated a
continuing approach to evade service and portray him as ignorant of the processes going on around him.
(Tr. 244-247, 251-252, 284, 473; R. Exh. 8.)
86 R. Exh. 10.
87 R. Exh. 12.
88 R. Exh. 13.
89 R. Exh. 14.
90 In yet another poor display of credibility, Poole recalled seeing the union trial rescheduling notice
prior to the October 20 hearing date. (Tr. 480-481.) I also find it incredible that his attorney would not
have notified him of his conversation with Waters. (R. Exh. 13; 15; Tr. 259-263, 480-483, 602.)
Moreover, I do not credit Poole’s testimony that the attorney told him to stay away from a union trial until
after the PPO was resolved in court on November 9. (Tr. 446-448, 479; GC Exh. 35.)
91 Once again, Poole was not credible. He denied knowing about the October 20 trial date. (Tr. 492.)
He also did not recall whether he asked someone to testify on his behalf, but then pondered the question
and thought that he did ask Walker to testify on his behalf. (Tr. 483-484.)
92 R. Exhs. 16-18.
93 Although no one testified on behalf of Poole, there is no evidence that Waters failed to follow the
applicable MSEA constitution and trial procedures in conducting the October 20 hearing. (R. Exhs. 1-2;
Tr. 229, 266-267, 554.)
94 Poole’s testimony that he failed to appear based on legal advice was not credible due to my finding
that Waters made his attorney aware that Voigt would not be present, which was satisfactory to the
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The SITC’s membership suspension recommendation was scheduled for consideration
and action by MSEA’s board of directors at its December 1, 2012 meeting.97 While Poole did not
appear for the October 20 SITC committee hearing, he did appear at the December 1 board of
directors meeting.98 Connolly and Matthies appeared and recounted their versions of the June 8 5
incidents. Walker was present, but did not address the SITC recommendation.99 Poole also asked
to speak but, before he could be recognized, a board member called the question to a vote. The
board proceeded to vote in favor of suspending Poole’s MSEA membership for 2 years.100
LEGAL ANALYSIS10
I. COSA’S INFORMATION REQUEST
Gonzalez, a Moore ally, was assigned to temporarily fill Manning’s position while
Manning was out on sick leave. His appointment was not announced. In response, Westphal 15
requested that Moore provide COSA with Gonzalez’ title and position, date of hire, wages and
benefits, and whether he was full time, part time, permanent or temporary, vacancy postings for
his position, and confirmation that Gonzalez resigned from MSEA. Westphal also requested
Gonzalez’ personnel file and job information for any new employees. MSEA did not provide the
requested information.20
When a request for relevant information is received, an employer's obligation is to
provide it or set forth adequate reasons why it is unable to do so. Kroger Co., 226 NLRB 512,
513-514 (1976). The employer also has the obligation to respond in a reasonable period of time.
Bundy Corp., 292 NLRB 671, 679 (1989); DePalma Printing Co., 204 NLRB 31, 33 (1973). 25

attorney. (Tr. 171-172.) Moreover, Poole did not mention such a concern when he told Walker that he
would not attend. (Tr. 156.) I also found it significant that Walker did not seek to testify on Poole’s behalf
at that hearing. (Tr. 288.)
95 I found Waters’ denial credible that he did not hear anything prior to or at that meeting about
Connolly’s alleged insult. He did see Walker on the day of the SITC trial and assumed he would testify
since he had reason to believe that he had been in the area of the altercation on June 8. However, Walker
did not come forward to testify. (Tr. 270-272, 292-293, 295-296.)
96 R. Exh. 18.
97 The General Counsel notes that art. XV, sec. 4 of MSEA’s constitution required that Poole should
have been given 10 days’ written notice that the SITC’s recommendation would be considered at the
board meeting. (R. Exh. 1.)
98 Poole incredibly insisted that he showed up for the December board meeting without knowing that
a suspension recommendation from the SITC committee would be on the agenda. When asked whether he
received notification at his registered and last known address at the post office box, he evasively
responded that he could not recall. (Tr. 494-495.)
99 Walker was present and conceded that neither he nor anyone else raised the allegation that
Connolly hurled a racial insult at Poole. (Tr. 161, 275.)
100 The credible testimony of several witnesses established that once the question was called, the
motion at hand was voted on. (Tr. 161, 163, 168-169, 449-451, 655.) Having heard my inquiry of others,
however, as to whether it was routine for the board to forgo a vote on calling the question and, instead,
immediately vote on the motion at issue, Moore testified that a vote was taken first on whether to call the
question. I found that testimony contrary to the preponderance of the credible evidence and calculated to
strengthen MSEA’s claim that a fair hearing was conducted. (Tr. 655-656; GC Exhs. 36-37.)
JD–42–14
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Whether information is provided in a timely fashion depends on the existing circumstances in
each case, but the Board has held that a delay as short as 4 weeks can be unlawful. Postal
Service, 308 NLRB 54 7, 550 (1992).
The Board balances a union’s need for information against any “legitimate and 5
substantial confidentiality interests established by the employer.” Detroit Edison v. NLRB, 440
U.S. 301, 315, 318-320 (1979). The Board considers three factors in making such a
determination: (1) the sensitive nature of the information sought; (2) the minimal burden that a
requirement of employee consent would impose on the union; and (3) a lack of evidence that the
employer had fabricated concern for employee confidentiality only to frustrate the union in 10
discharge of its responsibilities. Id. at 319. Confidentiality is not a blanket defense where the
information is relevant to the union. New Jersey Bell Telephone Co., 289 NLRB 318, 319 (1988).
Even if Gonzalez was not an employee, the charging union still had a right to the
requested information since, as the Board has stated, “[i]t is certainly well within the statutory 15
responsibilities of the Unions to scrutinize closely all facets relating to the diversion or
preservation of bargaining unit work….” Associated General Contractors of California, 242
NLRB 891, 894 (1979), enfd. 633 F.2d 766 (9th Cir. 1980). Moore’s initial response to the
information request was nonresponsive, as it left out several answers without an explanation for
why the information was not provided. COSA was entitled to review Gonzalez’ personnel record 20
pursuant to article 31, section B of the collective-bargaining agreement. However, Moore
improperly refused to release the record, relying on Gonzalez’ request that his personnel file not
be provided based on confidentiality.
MSEA relies on Detroit Edison, supra, in arguing that the sensitive nature of Gonzalez’ 25
personnel file outweighs COSA’s interest in obtaining the file. However, Detroit Edison is
distinguishable. There, the union requested the scores of every employee for a test that all
employees were required to take, and the employer had promised its employees that their scores
would remain confidential. Detroit Edison, 440 U.S. at 318. The employer conditionally agreed
to disclose the scores only with employee consent. Id. at 319. The employer had released scores 30
in the past, and as a result lower-scoring employees were mocked and ostracized. Id.
In contrast to the facts in Detroit Edison, COSA’s interest here is much greater, and the
risk to the employees is much smaller. COSA only requested job specific information relating to
Gonzalez and the remaining information generally related to the names and hiring dates of new 35
employees, all hardly information impacting on employees’ privacy interests. See Wayne
Memorial Hospital Assn., 322 NLRB 100, 103 (1996) (employer bears the burden of
demonstrating that the requested information is privileged). MSEA claimed confidentiality
concerns as to the production of Gonzalez’ personnel file, but not his date of hire, job title and
description, wages and benefits, duration of employment, or the names and hiring dates of all 40
new employees. As such, MSEA failed to show that the requested information other than the
personnel file was privileged. Id.
Moreover, MSEA never disputed the relevance or explained why the file was confidential
and simply provided it after charges were filed. Thus, MSEA failed to meet its burden of 45
showing that the requested information was in fact privileged. Id. Under the circumstances,
COSA’s interest in the relevant file information outweighed Moore’s claim of confidentiality.
JD–42–14
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See Aerospace Corp., 314 NLRB 100, 103 (1994) (holding that the Board must balance the
union’s need for information against the legitimate confidentiality interest established by the
employer). MSEA was obligated to provide the requested information.
The Union’s follow up request for more information was also not properly responded to. 5
Manning’s request for Gonzalez’ COSA membership information, position title, date of hire, and
employment type was not a request for confidential information. Moore replied that he had
already disclosed that information in the previous response, which was false, and did not supply
the requested information until after charges were filed. Here, the initial request was sent on
January 3 and not fully responded to until May 9, after charges were filed. The requested 10
information was relevant to the Union duties under the CBA and refusing to supply the
information for 3 months, and then only after charges were filed, constituted unreasonable delay.
See Bundy Corp., 292 NLRB at 679 (holding that a 2-month delay was unreasonable); Postal
Service, 354 NLRB 412 (2009) (finding a delay of 30 days to be unreasonable). Under the
circumstances, MSEA’s failure to bargain in good faith in violation of Section 8(a)(5) and (1) by 15
failing and unreasonably delaying in responding to COSA’s request for information relevant to
its responsibilities as the representative of bargaining unit employees.
II. SURVEILLANCE OF THE FEBRUARY 27 STAFF GATHERING
20
On February 27, 2012, Keelean, Westphal, and Durner engaged in a casual conversation
for about 20 minutes in Westphal’s office. All three were easily observable through Westphal’s
office window. They discussed their pets for a while, and then diverted to Moore’s suggestion
the previous day about getting retirees involved in Right-to-Work and COSA matters. Out of the
20 minutes, they discussed the COSA-related matters for about 5 minutes. Gonzalez saw the 25
gathering and reported it to Moore. Moore then questioned Keelean as to whether she divulged
MSEA’s financial information in the gathering. Keelean explained what transpired but denied
any discussion about MSEA’s financial information. Voigt, Moore’s secretary, emailed
Westphal later in the day stating that she wanted to deduct time from the COSA leave bank for
conducting a COSA meeting during work hours on MSEA’s premises.30
In determining whether an employer engaged in surveillance of union members, the
Board examines whether under all the circumstances, the questioning would reasonably tend to
interfere with, restrain, or coerce the employees in the exercise of his or her Section 7 rights. Air
Management Services, Inc., 352 NLRB 1280, 1286 (2008); Emery Worldwide, 309 NLRB 185, 35
186 (1992); Rossmore House, 269 NLRB 1176, 1177 (1984); Medcare Associates, Inc., 330
NLRB 935, 940 (2000). Specifically, the Board considers (1) the background of union activity
and animus; (2) the nature of the information sought; (3) the identity of the questioner; (4)
whether the questioner provides the employee with a valid purpose for the interrogation; and (5)
whether the employee was assured that no reprisals would be taken as a result of the questioning. 40
T-West Sales & Service, Inc., 346 NLRB 118, 127 (2005); Performance Friction Corp., 335
NLRB 1117, 1126 (2001).
Routine observation of employees engaged in open Section 7 activity on company
property is not unlawful surveillance. Aladdin Gaming, LLC, 345 NLRB 585, 585-586 (2005) 45
(citation omitted). “Out of the ordinary” observation is coercive. Id. at 586. If employee knows
or should know the employer can overhear them, and where the employer has a right to be
JD–42–14
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present, it is not surveillance. Blue Bell, Inc., 186 NLRB 712, 722 (1970). Indicia of coerciveness
include the duration of the observation, the employer's distance from its employees while
observing them, and whether the employer engaged in other coercive behavior during its
observation. Aladdin Gaming, 345 NLRB at 586; Sands Hotel & Casino, 306 NLRB 172 (1992),
enfd. sub nom. mem. S.J.P.R., Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993).5
Moore was determined to go after COSA and its members, and after the meeting took
place he retaliated against Durner by reprimanding her work. Moore also threatened to charge
the informal gathering to the COSA leave bank, alleging that the gathering was a formal COSA
meeting. This was a normal gathering of employees to simply chat, but Moore used it as an 10
excuse to continue going after COSA. He interrogated Keelean about what they discussed and
expressed concern as to whether Keelean disclosed any MSEA financial information. He also
interrogated Westphal after finishing with Keelean.
Under T-West Sales, weighing these factors indicates that the surveillance and 15
interrogation was coercive. 346 NLRB at 127. There was no credible evidence that Keelean ever
disclosed MSEA’s financial information in the past. As such, there was legitimate reason for
Moore to suspect that she had and then to inquire whether she disclosed it in that meeting with
such exacting scrutiny. Therefore, given Moore’s anti-COSA inclination, the lack of a valid
purpose for the interrogation, Moore’s failure to assure Keelean that there would not be any 20
reprisals, and Moore’s reprimand of Durner after the meeting, the surveillance was coercive.
Under Air Management Services, the questioning and retaliatory actions by Moore would
reasonably tend to interfere with COSA members exercising their Section 7 rights. 352 NLRB at
1286. This constitutes surveillance, and discourages COSA members from meeting under any 25
circumstances, whether COSA-related or not, because such meetings could be reported to Moore
and he could reasonably be expected to retaliate. While there is no direct evidence that Durner,
Keelean, or Westphal in fact saw anyone observing the gathering, it is not necessary for them to
have suspected surveillance at the time for the observation to in fact be surveillance. See Hialeah
Hospital, 343 NLRB 391, 394 (2004) (employer’s installation of a hidden surveillance camera 30
without the targeted employee’s knowledge constituted surveillance).
MSEA correctly notes that Gonzalez’ observation of the meeting and reporting it to
Moore was not coercive surveillance in and of itself; it took place on MSEA’s premises and
Gonzalez had a right to be outside Westphal’s office. There was no evidence that the duration of 35
the observation and Gonzalez’ distance from the gathering were inappropriate. On the other
hand, although MSEA correctly notes that the gathering took place in an area where it was
reasonable to assume that MSEA directors could see them, the surveillance was still coercive
because Moore and MSEA engaged in other coercive behavior during and after the observation.
40
MSEA relies on Aladdin Gaming in arguing that it was not surveillance as the gathering
took place on MSEA’s premises. It also relies on Blue Bell in arguing that the observation was
“routine” and therefore not coercive. However, Moore’s extensive follow up after the meeting
far exceeds “routine observation.” Moreover, because Moore’s actions after the observation were
so out of the ordinary, indeed some amounted to labor violations in their own right, under 45
Aladdin Gaming the observation was coercive surveillance. It is also not disputed that MSEA
employees regularly have personal conversations on work time, and since this was not a union
JD–42–14
19
meeting but just a regular conversation, MSEA’s further reliance on Blue Bell that it is lawful for
an employer to discipline employees doing union activity during work hours when they should
be working is inapplicable.
Under the circumstances, Moore and MSEA violated Secton 8(a)(1) of the Act by 5
implying that they engaged in surveillance of the February 27 gathering of bargaining unit
members as they exercised their Section 7 rights.
III. INTERROGATION OF WESTPHAL
10
Gonzalez reported the February 27, 2012 gathering of Westphal, Durner, and Keelean to
Moore. Voigt, Moore’s personal secretary, then sent Westphal an email stating that she wanted
to deduct time from the COSA leave bank for conducting a COSA meeting in her office.
Westphal replied the next day that she had not conducted a COSA meeting. Moore directed
Voigt to follow up by email to Westphal asserting that she conducted a COSA meeting in her 15
office. Westphal responded by asking for more information and reiterated that there was no
meeting. Moore responded by stating that he spoke with someone and was concerned that she
was asking about MSEA’s financial information.
The Board looks to whether under all the circumstances the interrogation reasonably 20
tends to restrain, coerce, or interfere with the rights guaranteed by the Act. Bridgestone Firestone
South Carolina, 350 NLRB 526, 528 (2007). Where a legitimate basis exists for a management
official’s inquiry of an employee such an inquiry is not considered an unlawful interrogation.
Tribune Co., 279 NLRB 977 (1986).
25
Voigt acted as Moore’s agent in interrogating Westphal about the gathering of staff on
February 27. See Guild Industries Mfg. Corp., 133 NLRB 1719, 1727 (1961) (interrogation
imputed to employer where it instructed employee to question other employees). Moore had
already questioned Keelean about the gathering, and by that point knew it was not a COSA
meeting. He instructed Voigt to question Westphal anyway and then questioned Westphal 30
himself. Westphal was involved in the prior bargaining for a new contract for COSA, so Moore
knew of her COSA affiliation. This questioning interfered with Westphal’s Section 7 rights, and
therefore violated Section 8(a)(1).
MSEA relies on Bridgestone in arguing that Moore’s concern about MSEA’s financial 35
information should serve as a legitimate basis for investigating the gathering of staff. However,
Voigt’s first email to Westphal did not ask whether MSEA’s financial information had been
discussed at the meeting. Instead, it only contained a statement that the meeting would be
charged to the COSA leave bank. Voigt’s second email also failed to mention any concern about
disclosure of MSEA financial information; it simply asserted that the gathering amounted to a 40
COSA meeting. MSEA’s financial information was not mentioned until the third interaction,
when Moore emailed Westphal to suggest that either Durner or Keelean disclosed MSEA’s
financial information. The alleged concern over such disclosure was a pretext to insulate
Moore’s true intentions in questioning Westphal and spurred by his desire to harass COSA
members. 45
IV. MOORE’S THREAT TO CHARGE THE COSA LEAVE BANK
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Following the February 27 gathering, later that afternoon Voigt emailed Westphal stating
that she wanted to deduct time from the COSA leave bank for conducting a COSA meeting in
her office. Westphal responded that they did not conduct a COSA meeting. At Moore’s behest,
Voigt responded with another email asserting that the meeting had in fact been a COSA meeting. 5
Westphal responded by asking for more information and reiterating that it was not a COSA
meeting. She also expressed a concern that MSEA would have a problem with employees
gathering, since there was no company policy against nonwork discussions during worktime, and
in fact such conversations occur frequently. Moore then emailed Westphal that he spoke to
someone else who said MSEA’s financial information was discussed, and instructing her not to 10
misuse worktime. Westphal responded that it would be inappropriate to charge the COSA leave
bank. The leave bank was not charged after a further exchange with Westphal indicated that it
was not a structured meeting, but Moore did not make this final determination until May 3, 2013.
The “‘test’ of interference, restraint, and coercion for whether a remark constitutes a 15
threat under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the
coercion succeeded or failed, but whether the employer engaged in conduct, which it may
reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”
Joy Recovery Techology Corp., 320 NLRB 356, 365 (1995); Miami Systems Corp., 320 NLRB
71 fn. 4 (1995). The Board examines the totality of the circumstances in making this 20
determination. Mediplex of Danbury, 314 NLRB 470, 471 (1994). The Act allows supervisors to
enforce workplace policies that uphold productivity and discipline within the workplace. Blue
Bell, Inc., 186 NLRB 712, 721 (1970).
As MSEA does not have any policies against casual conversations in the workplace, and 25
it is routine for employees to discuss personal and family members in the office, MSEA cannot
claim that charging this gathering to the COSA leave bank falls under enforcement of a policy to
maintain productivity and discipline in the workplace. As in Joy Recovery, supra, Moore
interrogated several COSA members and engaged in retaliatory actions for their alleged union
activities. By threatening to deduct time from the COSA leave bank, Moore restrained COSA’s 30
members from engaging in protected activities by harassing them for any perceived union
activity. Moore’s threat to deduct the “meeting” from the COSA leave bank would reasonably
threaten to interfere with the employees’ Section 7 rights, as he was specifically targeting
informal gatherings of COSA members.
35
MSEA relies solely on Blue Bell, supra, to argue that the employer may lawfully limit
union activity during work hours in order to enforce workplace policies regarding productivity
and discipline within the workplace. However, this case is distinguishable because there was no
actual union meeting, and MSEA had no rules in place restricting casual conversations at the
office. This threat was targeted solely at a gathering of COSA members in an attempt to keep 40
them from meeting with one another.
Under the circumstances, Moore’s threat to charge the COSA leave bank for the February
27 staff gathering violated Section 8(a)(1) by interfering with the exercise of employees’ Section
7 rights. 45
V. REPRIMAND OF DURNER
JD–42–14
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Following the February 27 gathering, Moore confronted Durner later that day with an
error she had made on a Statewide mailing. Normally, either Voigt or Moore would check over
Durner’s work before sending out mailings. Nevertheless, Moore reprimanded her the following
day for sending out incorrect mailings. Durner was involved in the contentious bargaining 5
between COSA and MSEA in 2011. Moore denied that her involvement in the prior bargaining
was a factor in reprimanding her. Durner was terminated, but was reinstated after prevailing
during arbitration.
It is unlawful for an employer to take action based on actual or perceived union activity. 10
Internet Stevensville, 350 NLRB 1349, 1356 fn. 19 (2007). For adverse employment actions first
the General Counsel must show that the action was due to an antiunion motivation, and then the
employer must show that its business justification is not pretextual. Wright Line, 251 NLRB
1083, 1089 (1980). Inferences that actions are taken for discriminatory reasons are warranted
under all the circumstances of a case, even in the absence of direct evidence, if there is 15
suspicious timing. Electronic Data Systems Corp., 305 NLRB 219, 219 (1991), enf. in rel part
985 F. 2d 801, 805 (5th Cir. 1993). Simply stating that the company’s claimed reason is
pretextual is not sufficient; evidence indicating invidious purpose is required. Neptune Water
Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir. 1977). Union activity cannot insulate a worker
from being discharged for just cause. Id.20
The timing of the reprimand is suspicious, as it took place the day after the staff
gathering, while Moore was also engaged in labor violations against the other participants.
Electronic Data, 305 NLRB at 219. Moore was aware of Durner’s COSA-affiliation from the
prior bargaining. Credible witnesses have testified that Moore intended to go after COSA 25
members, such as remarks overheard by Poole when Moore first became MSEA president. Also,
the combined evidence of the actions he took to that end, specifically interrogating Westphal,
threatening to charge the COSA leave bank, interrogating Keelean, removing work from
Keelean, and terminating Keelean, further reveal antiunion motivation. Therefore, the General
Counsel carried its burden of showing that antiunion animus was Moore’s primary motivation in 30
reprimanding Durner. Wright Line, 251 NLRB at 1085 (holding that the Board uses a “primary
motivation” test, requiring the General Counsel to show that antiunion motivations were the
primary reason behind the adverse employment action).
MSEA failed to carry its burden to demonstrate that Moore’s justification for the 35
reprimand and termination of Durner was not pretextual. MSEA contends that the reprimand and
termination were motivated by Durner’s poor work performance, as she allowed a Statewide
mailing to go out with errors in it. MSEA also points to previous errors that Durner made and
suggests that, taken as a whole, this background supports a proper motive for discipline.
40
MSEA relies almost entirely on Neptune Water to argue that evidence of invidious
purpose beyond a bare declaration that Moore’s claimed justification is pretextual is required.
Here, the evidence of suspicious timing for Durner’s reprimand and the evidence of Moore’s
general attack on and animus towards COSA shows invidious purpose. Electronic Data, 305
NLRB at 219. In the past, Moore had only given verbal reprimands to Durner for clerical errors, 45
and when questioned why he issued a written reprimand for this particular error he only stated
that it was the next step in the progressive discipline. However, a full week passed from when
JD–42–14
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the mailings were issued to when she received the reprimand. Based on such suspicious timing,
Moore’s claimed justification was pretextual and, therefore, the reprimand violated Section
8(a)(3) and (1) by retaliating against Durner for her COSA activities.
5
VI. KATHERINE KEELEAN
10
A. Questionnaires Sent to Keelean
When Gonzalez reported the February 27 gathering of staff to Moore, that same day
Moore questioned Keelean in person whether she discussed MSEA’s financial information
during the gathering. She told Moore what had been discussed, and then stated that she did not 15
mention MSEA’s financial information. Moore reminded Keelean not to disclose MSEA
financials without his permission. Moore then sent an investigatory questionnaire to Keelean on
March 5, which contained a provision that she keep the questionnaire confidential and not
discuss it outside union representation.
20
“To justify a prohibition on employee discussion of ongoing investigations, an employer
must show that it has a legitimate business justification that outweighs employees' Section 7
rights.” Banner Estrella Medical Center, 358 NLRB No. 93 (2012). Communication among
coworkers about an ongoing investigation is important in helping them understand what their
colleagues face, and what to do if they are also under investigation. Verizon Wireless, 349 NLRB 25
640, 658 (2007).
The questionnaires sent to Keelean concerning the February 27 meeting and changes she
made to employees’ tax withholdings all contained an overly broad prohibition that Keelean was
not to discuss the questionnaire outside union representation and keep it confidential. This 30
prohibited Keelean from discussing an ongoing investigation into her work with her coworkers,
which is improper under Verizon Wireless. Id.
Moore did not provide a business justification for the confidentiality requirement.
Instead, MSEA premised its defense to the overbroad term on Moore’s failure to review the 35
template used by Voigt for the questionnaire’s final version. However, Moore’s claim that this
was mere clerical error was not credible.
Under the circumstances, the nondisclosure clause in each of the questionnaires that
Moore required Keelean to answer violated Section 8(a)(1) by restraining her Section 7 rights.40
B. Removal of Work from Keelean
Moore required Keelean to train Wilson, an anti-COSA staffer, to perform her functions.
In 2013, as MSEA began to migrate from their old payroll system to a new one, Wilson was 45
given responsibility for the new system while Keelean continued working with the old system,
which was later discontinued. It is not disputed that Moore had Wilson gradually assume all of
JD–42–14
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Keelean’s responsibilities. Moore then issued a memorandum to Keelean on July 15, dated July
13, prohibiting her from accessing MSEA’s financial records and removing her computer access.
This limited her work to two of the nine tasks listed in her position description in the collective-
bargaining agreement.
5
An employer violates its duty to bargain under 8(a)(1) and (5) when it unilaterally
implements changes while a collective-bargaining agreement is in effect. NLRB v. Katz, 369 U.S.
736, 737 (1962). Section 8(d) requires employee consent before making midterm modifications
to a collective-bargaining agreement. Oak Cliff-Gloman Baking Co., 207 NLRB 1063, 1063
(1973), enfd. 505 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975). 10
The collective-bargaining agreement listed nine duties for Keelean’s position, but seven
of these duties were removed from her. They were transferred to Wilson, an anti-COSA staffer
whom Moore required Keelean to train. This removal of work constituted a change to the terms
and conditions of Keelean’s employment while the collective-bargaining agreement was still in 15
effect, and therefore is a violation of 8(a)(3) and (1). Katz, 369 U.S. at 737. The change was
unilateral, and Moore never gave COSA or Keelean an opportunity to discuss the changes to her
work, even though the collective-bargaining agreement had not yet expired and, therefore,
Keelean’s job duties were a permissive, not a mandatory, subject of bargaining.
20
MSEA contends that Keelean was locked out of the system as a preliminary step to
protect MSEA’s financial information as it investigated Keelean’s manipulations to the payroll
system. MSEA claims that the memorandum was issued when MSEA first became aware of the
changes Keelean made to the payroll. However, Keelean had been making changing employee
tax withholdings since she started doing payroll, and Jecks informed Moore of the alterations in 25
May. Moore waited until the Company switched entirely to the new payroll system in June
before locking Keelean out of the system, rather than lock her out as soon as he knew of her
actions. If Moore truly was acting in defense of MSEA rather than going after Keelean for her
COSA affiliation, he would have locked her out as soon as he learned of the alterations she made
to the payroll. However, Moore himself even requested alterations to his withholdings in the 30
past, so he clearly did not have any issue with the practice prior to July 15. MSEA has failed to
show that this was truly a protective measure. Cf. Texas Gas Corp., 136 NLRB 355, 369 (1962)
(employer’s 5-day strike notice was a protective measure to safeguard against a sudden strike
that would significantly affect the employer, rather than motivated by antiunion animus).
35
Under the circumstances, Moore’s removal of seven of the Keelean’s nine responsibilities
without her consent or that of COSA constituted midterm modifications to an existing collective-
bargaining agreement in violation of Section 8(a)(5) and (1).
C. Keelean’s Suspension and Termination40
Moore wrote a disciplinary report recommending Keelean’s discharge, stating that “even
without work rules in place, [Keelean’s] actions are grounds for discipline because the trust of
the employer has been irreparably damaged and she was aware that such actions are prohibited.”
Moore presented the report to a specially convened meeting of the executive board. They agreed 45
with Moore’s recommendation to discharge Keelean, but decided to offer her the opportunity to
resign. Keelean was placed on emergency disciplinary suspension. She was offered the
JD–42–14
24
opportunity to resign via letter, but did not respond as she was out of Michigan at the time.
Keelean was discharged and replaced by Wilson.
For discriminatory termination cases, first the General Counsel must show that the
termination was due to an antiunion motivation, and then the employer must show that its 5
business justification is not pretextual. Wright Line, 251 NLRB at 1089.
The General Counsel has carried its burden of showing that Keelean’s suspension and
termination were primarily motivated by her COSA affiliation and activities. Moore conducted
an extensive investigation into how she handled tax withholdings in an attempt to create a 10
legitimate reason for her discharge. However, given that her predecessor altered employees’ tax
withholdings in the same manner without complaint, and that Keelean made these alterations for
years also without complaint, this justification is purely pretextual. MSEA never had to pay any
fines or penalties due to her modification of the tax withholding, and Moore himself even
requested that she alter his withholdings in the past. 15
In attempting to rebut the General Counsel’s evidence of discrimination, MSEA insists
that Moore had a legitimate business justification in terminating Keelean. Relying on NLRB v.
Ogle Protection Service, 183 NLRB 682 (1970), MSEA contends that, so long as the discharge is
not for union activities, an employer has the right to discharge an employee for any reason. It 20
stresses that Keelean’s alterations to tax withholdings were improper and exposed the Company
to liability. However, Moore himself asked for the alterations to his own tax withholdings in the
past and, thus, knew that this was an ongoing process. Keelean’s predecessor also made such
alterations, with no ramifications. Given the longevity of this custom and practice and the fact
that MSEA was never fined for under-withholding at some point, it is evident that adverse action 25
by MSEA would not have flowed her way in the absence of any involvement with COSA. Moore
had full knowledge of Keelean’s COSA affiliation, and even before she had to train Wilson or
news of the alterations to the tax withholding was “discovered,” Moore interrogated Keelean
about the gathering of staff. Moore simply kept looking until he could find a plausible charge,
but ultimately his justification that Keelean improperly handled the payroll system is pretextual, 30
because she did not in fact mishandle it. Therefore, Keelean’s discharge was a retaliatory act by
Moore in violation of 8(a)(3) and (1).
VII. INTERNAL UNION CHARGES AGAINST POOLE
35
A. Jurisdiction
Poole was never an employee of MSEA, but has been a member of MSEA for many
years. He is a retired employee of the State of Michigan. While an active State employee, he was
in one of the bargaining units represented by MSEA. Once retired, he retained his MSEA 40
membership, which is permitted under MSEA’s bylaws and constitution.
The Board has jurisdiction over Poole’s charges against Moore and MSEA. Section
8(b)(1)(A) applies, as Poole was a MSEA union member, but not a MSEA employee. Section
8(b)(1)(A) prohibits unions, in this case MSEA, from restraining or coercing employees in the 45
exercise of their Section 7 rights. In this context, “employees” does not mean employees of the
labor organization, but of the employer the labor organization normally works with. Retaliatory
JD–42–14
25
motives by a union are sufficient to establish that the union’s action would reasonably tend to
restrain or coerce an employee from filing charges with the Board. Letter Carriers Branch 47
(Postal Service), 330 NLRB 667 (2000). The Board does not bar intraunion discipline under
Section 8(b)(1)(A) if it “concerns a purely intraunion dispute, and does not interfere with the
employee-employer relationship, or contravene a policy of the National Labor Relations Act.” 5
Office Employees Local 251 (Sandi National Laboratories), 331 NLRB 1417 (2000).
This is not a standard case of intraunion discipline. This involves a dispute between two
unions, as MSEA and COSA had been at loggerheads, and Poole was targeted for his COSA
affiliation. Also, the supposed “intraunion discipline” otherwise contravenes a policy of the 10
National Labor Relations Act because of its retaliatory nature. The Act prohibits retaliatory
action in response to protected activity. In addition, since “employees” under Section 8(b)(1)(A)
does not refer to employees of the labor organization, and union members normally sue the union
under this provision regardless of employment status, Poole did not need to be an employee to
fall under this provision. See Carpenters Local 370 (Eastern Contractors Assn.), 332 NLRB 174 15
(2000) (finding jurisdiction under 8(b)(1)(A) where union member filed charges against the
union for discrimination regarding job referrals). Therefore, the Board has jurisdiction over these
charges.
MSEA argues that because 8(b)(1)(A) refers to action by a labor organization, and MSEA 20
is not a labor organization, the Board does not have jurisdiction over this charge. However,
MSEA has been an organization in which employees participate and which exists for a purpose,
in whole or in part, of dealing with employers concerning labor disputes, wages, or other terms
and conditions of employment. It annually derives gross revenues in excess of $250,000 and sent
funds in excess of $50,000 from its Lansing, Michigan facility to points outside the State of 25
Michigan. Therefore, MSEA is engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and MSEA is a labor organization under Section 2(5) of the Act. Since MSEA
is in fact a labor organization, jurisdiction under Section 8(b)(1)(A) is proper.
B. Retaliation30
After Moore became MSEA president, he voiced frequent remarks about getting rid of
COSA during the regular and executive sessions of board meetings, which Poole regularly
attended both before and after his retirement in 2010. Poole expressed concern over these
remarks during the meetings, and went to the Board’s Regional Office in Detroit and reported 35
Moore’s anti-COSA remarks in December 2011. MSEA members later found out about that
visit. Subsequently, during the June 8, 2012 board meeting or shortly thereafter, Moore criticized
MSEA’s decision to assign Bush to write Slaughter’s hearing brief, which Matthies heard. When
the meeting broke for lunch, Connolly told Poole, an older African American male, to “open the
door, boy.” Poole followed Connolly screaming, and told her she did not know what she was 40
talking about. He blocked her from going to the restroom, and at one point raised his fist.
Matthies caught part of the altercation and filed internal union charges for maligning Bush’s
skills. Poole testified against MSEA at the Board hearing, and Moore made an insulting remark
to Poole at one point during the trial. During the trial, Voigt served Poole with notice of internal
union charges against him. They got into a verbal argument, and Voigt filed for and received a 45
Personal Protection Order against Poole as a result of the argument. Poole evaded service of
notice of the internal union trial dates, and did not appear even though he effectively received
JD–42–14
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notice of the location and time, and that Voigt would not be present. Poole later challenged the
PPO in court and it was struck down. The hearing recommended suspension, and at the
following board meeting the board upheld the recommendation, and denied Poole an opportunity
to speak even though a board member was willing to give him time to speak.
5
The General Counsel must show by a preponderance of the evidence (1) that the
employee was engaged in protected activity; (2) that the employer was aware of the activity; and
(3) that the activity was a substantial or motivating reason for the employer's action. Wright Line,
251 NLRB at 1089. This includes proof that the employer's reasons for the adverse personnel
action were pretextual. Rood Trucking Co., 342 NLRB 895, 897-898 (2004), citing Laro 10
Maintenance Corp. v. NLRB, 56 F.3d 224,229 (D.C. Cir. 1995). MSEA must then demonstrate
by a preponderance of the evidence that it would have taken the same action even in the absence
of union or protected concerted activities. NLRB v. Transportation Management Corp., 462 U.S.
393, 395 (1983); Wright Line, 251 NLRB at fn. 11; T & J Trucking Co., 316 NLRB 771, 771
(1995), enfd. 86 F .3d 1146 (1st Cir. 1996); Peter Vitale Co., 310 NLRB 865, 871 (1995).15
Poole’s termination was primarily motivated by his membership in COSA, and his
testimony against MSEA in the prior hearing. The General Counsel has carried its burden under
Wright Line to show that the internal union charges were motivated by Poole’s protected
activities. Poole was engaged in protected activity, as shown by his testimony at the prior trial 20
against MSEA. Moore had full knowledge of this participation since he was also present at the
trial, and even made a negative remark to Poole at the courthouse. In February 2012, Spenner,
Gonzalez, and Schutt each commented to Poole that they heard about his visit to the Board’s
Regional Office, and since Gonzalez is an ally of Moore he was most likely informed Moore of
Poole’s action. Moore was going after COSA and its members, and Poole testified to that effect 25
at the prior trial. Since Poole testified on behalf COSA at the prior trial, the General Counsel
carried its burden to show that the internal union charges and ensuing suspension were motivated
by Poole’s COSA affiliation and his testimony at the prior hearing.
MSEA has failed to show its burden under Wright Line that its business justifications for 30
suspending Poole’s MSEA membership were not pretextual. Transportation Management, 462
U.S. at 395. It argues that the internal union charges were handled properly, and that MSEA was
justified in suspending his membership for his altercation with Connolly and for maligning
Bush’s work. MSEA has not shown that absent the anti-union motivation, charges against Poole
would still have been filed and his membership would still have been suspended. Id. 35
Poole was charged with violating Art. XV Sec. (e) of the MSEA Constitution for
misfeasance, malfeasance, and nonfeasance of duties as a steward for maligning Bush’s work
skills and the Connolly incident. However, that provision does not mention personal misconduct
or unprofessionalism as grounds for charges.101 Poole could only be charged if he failed to carry 40
out his duties as an MSEA steward, but MSEA never argued that. The charges themselves allege
that his conduct interfered with Moore and Connolly’s ability to carry out their own obligations.
However, the MSEA constitution requires that the interference must be deliberate, and must
hamper the MSEA official’s discharge of his or her lawful union duties. Connolly was on her
way to the bathroom when the altercation occurred and nothing further occurred between them, 45

101 R. Exh. 3 at 1.
JD–42–14
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so it is ludicrous to suggest that Poole prevented her from discharging her union duties.
Similarly, Poole’s criticism of MSEA’s assignment of Bush to file a post-hearing brief on
Slaughter’s behalf did nothing to impede Bush.
While Poole did in fact receive notice, the board of directors’ meeting considering the 5
SITC suspension recommendation wreaked of unfairness. Even though he was present and a
member sought to cede time to him, MSEA’s board of directors heard from Matthies, Connoly
and her husband, who was not even present at the time of Pooles’s altercation with his wife. As
such, the process and the charges were not legitimate in suspending Poole’s membership. It is
quite clear that if Poole had not been involved in COSA and testified against MSEA in the prior 10
hearing, Moore would not have sought to suspend his MSEA membership. Therefore, MSEA
violated Sections 8(b)(1)(A) and 8(a)(4) for retaliating Poole for his support for COSA and
testimony against MSEA at the prior hearing.
CONCLUSIONS OF LAW15
1. By asking employees questions about their conversations on February 27, 2013,
MSEA created an impression among its employees that their union activities were under
surveillance in violation of Section 8(a)(1) of the Act.
20
2. By interrogating employees on February 27, 2013, about their union activities, MSEA
violated Section 8(a)(1) of the Act.
3. By issuing an investigatory questionnaire to an employee on March 5, 2013 and
prohibited her from discussing it outside union representation, MSEA promulgated an overly 25
broad rule in violation of Section 8(a)(1) of the Act.
4. By threatening to charge employees with time to the COSA leave bank on March 7,
2013, MSEA violated Section 8(a)(1) of the Act.
30
5. By (1) removing job duties from Katherine Keelean on July 15, 2013, without
bargaining with COSA or seeking its consent, and (2) failing to furnish personnel information for
new hires and related-job posting information requested by COSA, MSEA has been failing and
refusing to bargain collectively and in good faith with COSA as the exclusive collective-
bargaining representative of the unit in violation of Section 8(a)(5) and (1) of the Act.35
6. By initiating internal union charges and procedures against Benny Poole on June 8 and
11, 2012, and then suspending his MSEA union membership for 2 years on December 1, 2012,
because he engaged in protected concerted activity on behalf of COSA, cooperated in a Board
investigation, and subsequently testified at a Board hearing in Case 07-CA-053541, et al., MSEA 40
violated Section 8(b)(1)(A) and 8(a)(4) of the Act.
7. By reprimanding Nancy Durner, on February 28, 2013 because she engaged in
protected concerted activity on behalf of COSA, MSEA violated Section 8(a)(3) and (1) of the
Act.45
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8. By suspending Kathleen Keelean on August 16, 2013 and discharging her on
September 24, 2013 because she engaged in protected concerted activity and testified in the
previous Board proceeding, MSEA violated Section 8(a)(3), (4) and (1).
9. The aforementioned unfair labor practices of MSEA affect commerce within the 5
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that MSEA has engaged in certain unfair labor practices, I shall order it to 10
cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
MSEA, having discriminatorily discharged Keelean, must offer her reinstatement and
make her whole for any loss of earnings and other benefits. Backpay shall be computed in 15
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
MSEA shall file a report with the Social Security Administration allocating backpay to 20
the appropriate calendar quarters. MSEA shall also compensate Keelean 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 No. 44 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended102
ORDER
The Respondent, Michigan State Employees Association d/b/a American Federation of 30
State County 5 MI LOC Michigan State Emps Assoc., AFL-CIO (MSEA), Lansing, Michigan,
its officers, agents, and representatives, shall
1. Cease and desist from
35
(a) Creating the impression that employees conversations about their union activities are
under surveillance, interrogating employees about their union activities, issuing investigatory
questionnaires to employees that contain overly broad confidential rules, and threatening to
charge employees with time to the COSA leave bank for engaging in casual conversation about
the union.40

102 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48
of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD–42–14
29
(b) Failing and refusing to bargain collectively and in good faith with COSA as the
exclusive collective-bargaining representative of bargaining unit employees by (1) removing job
duties from bargaining unit employees without first bargaining with COSA or seeking its
consent, and (2) failing to furnish personnel information for new hires and related-job posting
information requested by COSA.5
(c) Reprimanding, suspending, discharging or otherwise disciplining employees for
engaging in protected concerted activity on behalf of COSA or cooperating with the National
Labor Relations Board.
10
(d) 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.
(e) Initiating internal union charges, suspending or otherwise disciplining MSEA
members because they engaged in protected concerted activity, cooperate in a Board 15
investigation or testify at a Board hearing.
(f) In any like or related manner restraining or coercing union members in the exercise of
the rights guaranteed them by Section 7 of the Act.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind and/or dismiss with prejudice the internal union charges filed against Benny
Poole and remove all references to the charges from his member file, and notify the Charging
Party in writing that it has done so.25
(b) Reinstate Benny Poole’s MSEA membership and make him whole for any loss of
any benefits he suffered as a result of the unlawful discrimination against him.
(c) Rescind the written reprimand issued to Nancy Durner and remove all references30
to the reprimand in MSEA’s personnel and employment records, and notify her in writing
that it has done so.
(d) Offer Kathleen Keelean immediate and full reinstatement to her former position of
employment with the job duties she had prior to July 15, 2013, or, if the position is no longer35
available to a substantially equivalent position, without prejudice to her seniority or other
rights or privileges previously enjoyed.
(e) Make her whole for any loss of earnings or other benefits she suffered as a result
of the discrimination against her by payment of backpay, and reimburse her for any out-of-40
pocket expenses she incurred while searching for work as a result of the discrimination
against her, with interest in accordance with Board policy.
(f) 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 designated by the Board 45
or its agents, all payroll records, social security payment records, timecards, personnel records
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30
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in Lansing, Michigan,
copies of the attached notice marked “Appendix.”
103
Copies of the notice, on forms provided by 5
the Regional Director for Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees and members 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 10
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
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 15
all current employees and former employees employed by the Respondent at any time since
February 27, 2013.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 20
the Respondent has taken to comply.
Dated, Washington, D.C. July 23, 2014
25
___________________________
Michael A. Rosas
Administrative Law Judge

103 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.”
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APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT reprimand, suspend, discharge or otherwise discriminate against any of you for
supporting Central Office Staff Association (COSA) or any other union.
WE WILL NOT reprimand, suspend, discharge or otherwise discriminate against any of you for
cooperating with or testifying before the National Labor Relations Board.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT place your union activities or protected concerted activities under surveillance.
WE WILL NOT issue investigatory questionnaires to employees that contain overly broad
confidential rules.
WE WILL NOT threaten to charge you with to the COSA leave bank for engaging in engaging
in casual conversation about the Union during worktime.
WE WILL NOT refuse to provide information requested by COSA that is relevant to its duties as
the exclusive collective-bargaining representative of employees in the following bargaining unit:
[A]ll positions whether full-time, part-time or temporary for employees who are
employed for more than 30 calendar days with exception of the Assistant to the President.
WE WILL NOT refuse to bargain in good faith with COSA as the exclusive collective-
bargaining representative of the aforementioned collective-bargaining unit by removing job
duties from bargaining unit employees without first bargaining with COSA or seeking its
consent.
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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 Act.
WE WILL, within 14 days from the date of this Order, offer Kathleen Keelean full reinstatement
to her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Kathleen Keelean whole for any loss of earnings and other benefits resulting
from her 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 Kathleen Keelean for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay 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 suspension and discharge of Kathleen Keelean and reprimand of Nancy Durner, and
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the aforementioned discipline will not be used against them in any way.
MICHIGAN STATE EMPLOYEES
ASSOCIATION d/b/a AMERICAN
FEDERATION OF STATE COUNTY
5 MI LOC MICHIGAN STATE
EMPS ASSOC, AFL-CIO
(Employer and Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
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The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-103202 or by
using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by
calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.