Nexteer Automotive Corp.

National Labor Relations Board - Administrative Judge Opinions

Dec 10, 2018

07-CA-215036 (N.L.R.B. Dec. 10, 2018)

JD–80–18
Saginaw, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEXTEER AUTOMOTIVE CORP.
and Case No. 07-CA-215036
LOCAL 699, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW),
AFL-CIO
Scott R. Preston, Esq.,
for the General Counsel.
Kim F. Ebert, Esq., and Sarah M.
Rain, Esq., (Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.)
Indianapolis, Indiana,
for the Respondent.
Stuart S. Shoup, Esq.,
Detroit, Michigan,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried in Detroit, Michigan, on
August 6, 2018. Local 699, International Union, United Automobile and Agricultural Implement
Workers of America (UAW), AFL-CIO, (Union or Charging Party) filed the charge on February
16, 2018, and the amended charge on March 5, 2018. The General Counsel issued the
Complaint on April 9, 2018. The Complaint alleges that Nexteer Automotive Corp. (the
Respondent) discharged union representative Joshua Nuffer-Bauer (Bauer) in violation of
Section 8(a)(3) and (1) of the National Labor Relations Act (NLRA or Act) because he assisted
the Union and engaged in concerted activities, and/or in violation of Section 8(a)(4) and (1) of
the NLRA because he filed charges and gave testimony in a matter before the National Labor
Relations Board (Board or NLRB). The Respondent filed a timely Answer in which it denied
committing any of the violations alleged.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following Findings of Fact and Conclusions of Law.
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2
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a corporation, manufactures, assembles, and sells automotive parts at
its facilities in Saginaw, Michigan, from which it annually sells and ships goods valued in excess 10
of $50,000 directly to points outside the State of Michigan. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the NLRA and that the Union is a labor organization within the meaning of Section 2(5) of the
NLRA.
15
II. ALLEGED UNFAIR LABOR PRACTICES
A. BACKGROUND FACTS
The Respondent manufactures and sells parts for the automotive industry. Its20
operations include seven plants on a campus in Saginaw, Michigan. The Union represents a
bargaining unit of approximately 3200 production and maintenance employees at the
Respondent’s Saginaw facilities. The Union has 14 elected district committee persons who
assist unit members by, inter alia, addressing contractual disputes with management and by
guiding employee grievances through the contractual process. Bauer – who the Respondent is 25
alleged to have discriminatorily and unlawfully discharged – became a district committee person
in July 2014 after working for the Respondent for 3 years as a machine operator. Once Bauer
became a district committee person he was no longer assigned production or maintenance
duties, but rather worked full time on union business at Saginaw plants 3 and 6. During the
relevant time period, Bauer’s superior in the Union organizational structure was JoAnn Reyna-30
Frost (Frost), whose title was “shop committee person.”
B. RESPONDENT’S POLICIES
The parties referenced a number of employer policies during their presentations in this 35
case. Two of these, which are also referenced in the Complaint, are found in the “Shop Rules”
section of the relevant collective bargaining agreement (CBA). The Shop Rules, of which there
are a total of 38, provide in relevant part:
Violation of any of the following Shop Rules will be sufficient grounds for 40
disciplinary action ranging from reprimand to immediate discharge, depending on
the seriousness of the offense in the judgment of Management.
* * *
9. Assaulting, threatening, intimidating, coercing or interfering with
supervision.45
* * *
13. Abusive language to Supervision or other employees.
The Respondent also has a written “Global Workplace Violence Prevention Policy,”
which provides that disciplinary action may be imposed for a variety of activities defined as 50
violence, including: possessing weapons or dangerous devices, bullying, stalking, making
threats, causing harm to people or property, or “creat[ing] an intimidating, offensive, or hostile
JD–80–18
3
environment.” In 2017, the Respondent provided training to employees during which it stated
that under the “code of conduct” it “will not tolerate any acts or threats of violence, including
inappropriate verbal or physical threats, intimidation, harassment, or coercion,” and that
violations “may result in disciplinary action – up to and including termination.”
5
The Article in the CBA that pertains to “discipline, suspension, or discharge,” contains a
section entitled “cooling off period.” This section provides, in part, that:
The Union expressed concern that some disciplinary interviews escalated into
confrontation because tempers flared. . . . 10
The Company and the Local Union agreed that contemplated discipline should
be discussed in a calm manner allowing for an objective evaluation of the facts.
In those situations where emotions preclude this from happening, the parties
agreed that as a matter of practice and when possible such discussions should 15
be postponed until such time that, in the opinion of Management, a constructive
exchange of information could occur.
There is no language in this section that makes mention of using the “cooling off period” when
tempers flare outside the context of disciplinary interviews.20
In their briefs, the General Counsel and the Charging Party contend that the Respondent
has a progressive discipline policy that bears on the validity of the disciplinary action against
Bauer. Neither of those parties identifies any language in the CBA or any other company
document that sets forth a progressive discipline policy, and no such language can be found in 25
the CBA article titled “discipline, suspension or discharge.” General Counsel Exhibit Number
(GC Exh.) 2 at Page 31-32 (Article VII). Allison Bell, the Respondent’s human resources
business partner for plant 3, testified that the Respondent had a progressive discipline policy,
but not in the sense of setting forth a schedule of specific disciplinary “steps.” Transcript at
Page(s) (Tr.) 99-100. Denny Getgood, who preceded Bell as plant 3 human resources business 30
partner, testified that the Respondent used progressive discipline “to some extent” “depending
on the case.” Tr. 164. The record indicates that these references to progressive discipline only
mean that the Respondent has a range of disciplinary responses available to it – from
reprimand to discharge – and that it chooses which to apply based on the “seriousness of the
offense.” Ibid.; see also GC Exh. 2 at Page 155 (Violation of any shop rule “will be sufficient 35
grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon
the seriousness of the offense in the judgment of Management.”). The record does not show
that the Respondent had a formal progressive discipline policy in the sense of a schedule of
disciplinary actions based on the type and number of infractions.
40
Article VII, Section 3(A) of the CBA states that “[i]n imposing discipline on a current
charge, Management will not take into account any prior infractions which occurred more than
twenty-four months previously,” and will “eliminate from an employee’s record any infractions
where there was a lapse of time of greater than 18 months between infractions.” GC Exh. 2 at
Page 32. 45
The CBA states that when management is considering discipline the employee will be
interviewed “to allow for answering the charges before being required to leave the plant.” Id. at
31. There was credible and uncontradicted testimony that when an employee is accused of
making a threat, the Respondent’s customary response includes suspending that employee 50
pending investigation. Tr. 66-67
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C. PRIOR DISCIPLINE AGAINST BAUER
In its brief, the Respondent repeatedly makes reference to prior infractions by Bauer in
an effort to justify his termination. Brief of Respondent at Pages 3-4, 9-10, 21-22. This is
puzzling because the Respondent concedes that none of that prior conduct was, or properly 5
could be, taken into account to justify the Respondent’s challenged decision to terminate Bauer.
See Tr. 57, 166, 169-171. All of the prior conduct either had occurred more than 24 months in
the past, and thus Article VII of the CBA prohibited the Respondent from considering it, GC Exh.
2, or had been withdrawn and expunged by the Respondent, GC Exh. 4. The General Counsel
also discusses prior discipline against Bauer, although the General Counsel does so as part 10
of an argument that the Respondent followed progressive discipline with respect to Bauer
prior to when he filed NLRB charges, but then skipped straight to discharge for the same
type of conduct after Bauer filed charges. 1
As noted previously, Bauer became a union official in July 2014. Prior to that time,15
he was disciplined twice in 2013. The first time was on April 30 when he called his
supervisor a “pompous jackass” and was cited for violating shop rule number 9 (the rule that
prohibits “assaulting, threatening, intimidating, coercing or interfering with supervision”). It
appears that the Respondent initially suspended Bauer for 2 weeks, but after he grieved the
discipline the suspension was reduced to 1 week. In May of 2013, the Respondent cited 20
Bauer for violating a shop rule against wasting time during working hours. Initially, the
Respondent suspended Bauer for 30 days, but after he filed a grievance, the suspension
was reduced to 1 week.
The first discipline to be imposed on Bauer during the period after he became a 25
union official came on March 4, 2015. The Respondent cited him for violating shop rule
number 9 and another shop rule regarding failure to follow a supervisor’s instructions. In
that instance, Bauer had a disagreement with a supervisor who objected when Bauer
engaged in a 5-minute discussion with an employee who had requested union assistance.
Bauer notified the supervisor in advance that he would be doing this, and had arranged for 30
the employee’s position on the production line to be covered. At some point during the
ensuing disagreement, Bauer yelled “bullshit” at the supervisor. Bauer received a 1-week
suspension in that instance. On July 30, 2015, the Respondent suspended Bauer for 2
weeks, citing him for violating a shop rule prohibiting “abusive language” by making a
derogatory remark about a supervisor’s sex life. On October 15, 2015, the Respondent 35
cited Bauer for interfering with production by having a discussion with an employee without
properly coordinating with a supervisor. The initial action taken by the Respondent was to
discharge Bauer, but the discipline was subsequently reduced to a 30-day suspension. As
indicated previously, all of the above discipline occurred more than 24 months prior to the
December 2017 incident that the Respondent relies on to justify Bauer’s removal, and 40
therefore the Respondent was prohibited, under the CBA, from considering that discipline
when it discharged Bauer.

1 The Respondent contends that although the prior infractions were not a basis for the discharge, I
should consider them as evidence of the “pattern of [Bauer’s] behavior.” Tr. 57. The relevance of a
pattern of behavior is not clear to me under the circumstances here. While there is a factual dispute
about some of the particulars of the key December 13 meeting between Bauer, Taylor, and Bell, the
disciplinary history is no more supportive of one version than of the other. I do conclude, however, that
the prior discipline should be examined to determine whether management’s response to Bauer’s conduct
was demonstrably more lenient before he filed NLRB charges than it was afterwards.
JD–80–18
5
The most recent disciplinary action against Bauer was imposed on August 15, 2016,
but was subsequently withdrawn and expunged by the Respondent. The record indicates
that Bauer and a plant 3 supervisor had a disagreement about the schedule for grievance-
related employee interviews. The supervisor threatened to interview the employees without
Bauer present, and Bauer responded that his response was “still going to be ‘fuck no.’” The 5
Respondent initially suspended Bauer for 30 days for violating shop rule 13 (abusive
language to a supervisor). Bauer filed unfair labor practices charges with the Board and the
matter was settled with the Respondent agreeing to, inter alia, retract the challenged
discipline and expunge all references to it from the Respondent’s files. The Respondent
also provided backpay to Bauer. 10
The Respondent has no information indicating that Bauer had ever been physically
violent. Tr. 94, 115-116.
D. NOVEMBER 9 MEETING15
In the latter part of 2017, Bauer was concerned that the treatment he was receiving
from supervisors and managers at plant 3 was interfering with his ability to represent
bargaining unit employees. Group supervisors in plant 3 had reacted to Bauer’s attempt to
resolve employee grievances by telling him that his “grievances were bullshit” and that he 20
was “being an asshole.” Supervisors objected to Bauer talking to employees who had
requested union assistance. Benny Taylor – the area manager for the plant – had
threatened to eject Bauer from the plant on the basis that Bauer was not wearing the proper
safety shoes. In another instance, Dean Storm, a supervisor, threatened to eject Bauer for
reasons unrelated to his shoes. Bauer discussed his concerns with Frost, a higher level 25
union official. Frost arranged for Bauer and herself to have a meeting with Dereon Pruitt,
the human resources manager for the Respondent’s entire “steering division,” on November
9, 2017. Also present at the meeting was Bell, who reported to Pruitt, and who had become
a human resources business partner for plant 3 just a month earlier in October 2017. This
meeting was the first time that Bell and Bauer met. 30
Some aspects of the November 9 meeting are not disputed. Specifically, the
evidence establishes that the meeting took place in Bauer’s office and the only attendees
were Bauer, Frost, Pruitt and Bell. Bauer described the problems he was having at plant 3.
In particular Bauer discussed that his attempts to resolve plant 3 grievances had met with 35
resistance, dismissive comments, and threats to eject him from the plant. Pruitt asked
whether Bauer had discussed these issues with Benny Taylor, who was the area manager
for plant 3. Bauer said that he had not, and Pruitt stated that Bauer’s problems should be
dealt with first at the plant level. He directed Bell to arrange a meeting between Bauer and
Taylor. 40
There was conflicting testimony regarding other elements of the November 9
meeting. Most importantly, there was conflicting testimony about alleged statements
criticizing Bauer’s prior use of the NLRB processes. Bauer testified that Pruitt said that he
“couldn’t believe” that Bauer had gone to the NLRB regarding matters about which the 45
parties “had a grievance settlement.” Bauer also testified that when he explained that plant
3 managers were not communicating with him, Pruitt responded that this was the case
because they “don’t want to end up in front of the NLRB.” Frost reported Pruitt saying
something similar to this – i.e., that Pruitt was “not surprised that [plant 3 supervisors and
JD–80–18
6
managers] won’t communicate with [Bauer] because they’re afraid that they would end up
down in Detroit in front of the Labor Board.” In addition, Frost testified that during the
meeting Bell said “when she hears the name Josh Bauer, she thinks NLRB.”
Pruitt testified that he was aware of Bauer’s prior NLRB charges and their resolution, 5
but he denied that either himself or Bell made any mention of the NLRB during the
November 9 meeting. Similarly, Bell denied that she said that when she heard Bauer’s
name she thought of the NLRB and also denied that Pruitt made any mention of the NLRB
during the meeting.
10
Regarding the references to the NLRB, I do not find a basis on the record here to
credit Bauer’s and Frost’s testimony over Pruitt’s and Bell’s, or vice versa. None of these
individuals were disinterested witnesses and all of them presented their testimony on this
subject in a clear and certain manner. No significant inconsistencies were demonstrated in
this aspect of their testimonies. The parts of the meeting that are not disputed do not show 15
that the disputed statements regarding the NLRB were necessary to the November 9
discussion. If anything, the alleged statements are, to my ears, strangely gratuitous and
suspiciously clueless coming from human resources staff, especially a senior human
resources official like Pruitt. The parties did not introduce any contemporaneous written
accounts, or other writings, that might provide a basis for crediting one set of witnesses over 20
the other. Neither Bauer nor Frost claimed to have made a contemporaneous record of the
alleged statements of hostility towards Bauer’s NLRB activity, nor was either Bauer or Frost
shown to have taken issue with such statements by filing an NLRB charge or pursuing any
other course of action. As regards the statement about the NLRB attributed to Bell (when
she hears “Josh Bauer” she thinks “NLRB”), I note that Bauer did not corroborate Frost’s 25
testimony that such a statement was made. On balance, I cannot conclude that the disputed
statements by Pruitt and Bell more likely than not were made or were not made.
E. DECEMBER 13 MEETING
30
As noted above, the upshot of the November 9 meeting was that Pruitt directed Bell
to set up a meeting between Bauer and plant manager Taylor. That meeting was held on
December 13, 2017, in Bell’s office. Present for the meeting were Bauer, Taylor and Bell.
Bell’s office was approximately 9.5 feet by 12 feet, with most of that space being occupied
by Bell’s desks and work area. During the meeting Bauer and Taylor were sitting in a 35
narrow and cramped area on the visitor side of Bell’s main desk.2 Bauer was in the corner
of that area, away from the door out of the office. Taylor was sitting about a foot away from
Bauer – positioned between Bauer and the door. The part of the facility where Bell’s office
was located was one that bargaining unit employees were generally unable to access
during the time the meeting took place. There were, however, a number of salaried, non-40
bargaining unit, engineers working outside Bell’s office.
While Bauer and Taylor were waiting for Bell to arrive at the office, they had a
friendly discussion about their pets. Once Bell arrived, the meeting lasted about 10
minutes. During the meeting Bauer did most of the talking and raised a range of issues in a 45
short period of time. Taylor and Bell felt that Bauer was cutting them off and not allowing
them a reasonable opportunity to address his concerns. The concerns that Bauer raised

2 The area was a tight fit for Bauer, who is 5’11” and weighs 250 pounds, and Taylor, who is 5’10”
and weighs 260 pounds.
JD–80–18
7
included: supervisors interfering with his ability to talk to unit employees; supervisors
requiring him to leave their departments; supervisors refusing to “deal with” him; the
frequency with which supervisory or managerial employees were doing bargaining unit
work; and safety.
5
Bauer became more emotional when the parties discussed unit employees’ safety.
Bauer stated that supervisors were setting a bad safety example by talking on their cell
phones while walking in proximity to plant equipment. Taylor responded that, while Bauer
was always complaining about safety, Bauer himself was setting a bad safety example by
not wearing the right type of shoes while in the plant. At that point during the meeting, 10
Taylor tried to inspect Bauer’s shoes, but Bauer would not permit him to do so. Another
safety issue raised by Bauer concerned management’s response when a unit employee
vomited in her work area and on herself. Bauer complained that management had forced
this employee to continue working for 2 hours without the opportunity and/or assistance to
clean the vomit from her work area and from her person. Bauer’s understanding was that 15
Taylor had been approached about this employee’s predicament and responded “she
puked, she can clean it up.”3 Bauer appears to have found the discussion regarding the
treatment of this employee particularly upsetting. At various points Taylor and Bell both told
Bauer to “calm down.” Taylor commented to Bell, “This is why we can’t get anything done .
. . ; [Bauer is] just so hostile.” At that point Bauer stood up, began pointing at Taylor, and 20
yelled “fuck you” or “go fuck yourself” at Taylor approximately one to three times. Bauer
was 12 to 16 inches away from Taylor during this portion of the meeting, but, as discussed
earlier, the visitor area of Bell’s office was a tight fit such that Bauer and Taylor had already
been only about 12 inches apart. Thus the proximity does not suggest that Bauer moved
aggressively into Taylor’s personal space after he stood up. Taylor leaned back in his chair, 25
away from Bauer. The door to Bell’s office had been closed for most of the meeting, but
after Bauer stood up, Bell proceeded towards the door in order to open it. The meeting
ended and Bauer left the office. It is undisputed that during this exchange, Bauer did not
touch Taylor. In addition, Bauer did not make any statements threatening physical or other
harm to Taylor, Bell, or anyone else. There is no claim that he attempted to strike anyone, 30
or raised his hands as if preparing to do so. Bauer had not refused a direction from Taylor
or Bell to leave the meeting or otherwise end the confrontation.
The above account of the December 13 meeting is largely consistent with the
testimonies of all three of those present. There were, however, a number of respects in 35
which the accounts of the three witnesses were contradictory regarding potentially relevant
aspects of the meeting. One contradiction concerns Bauer’s testimony that while he
directed profanity at Taylor in the office, he did not do so it in the presence of the salaried
engineers outside Bell’s door. Bell and Taylor, on the other hand, testified that Bauer
continued yelling “fuck you” in the presence of those employees as he walked out into the 40
area beyond Bell’s office door. As is discussed later in this decision, and as counsel for
both parties recognize in their briefs, the question of whether an employee’s outburst
towards supervisors or managers takes place in the presence of other employees is a factor
that may bear on whether the employee’s otherwise protected activity forfeits that
protection. In this case, I credit Bauer’s testimony that he did not yell profanities at Taylor45
while in the presence of other employees. Tr. 36-37. The credibility of Taylor’s and Bell’s
contrary trial testimony was undermined by the written accounts that they prepared close in

3 Taylor did not testify about his own recollection of the incident involving the sick employee.
JD–80–18
8
time to the event. In the written account that Taylor prepared the day after the meeting, he
states that Bauer directed profanity at him, then said “this meeting is done and walk[ed] out
the door.” Respondent Exhibit Number (R Exh.) 7. In the account that Bell prepared the
same day as the meeting, she states that after Bauer cursed at Taylor, “I stood up, opened
the door to my office and told him that this meeting is done and that he needs to leave and 5
Josh[ Bauer] stormed out.” R Exh. 3. In neither statement did Taylor or Bell claim, as they
did at trial, that Bauer cursed or yelled in the presence of the employee’s outside Bell’s
office, or even after Bell opened the door to the office. In addition, I note that the
Respondent did not provide corroborating testimony or statements from any of the
engineering employees who they suggest would have heard Bauer yelling and cursing. 10
They did not even identify any such employee by name. For these reasons, I find the trial
testimony of Taylor and Bell that Bauer cursed at Taylor while in the presence of other
employees to be less credible than Bauer’s contrary testimony.
There was also contradictory testimony on the subject of who declared an end to the 15
meeting. According to Bauer, he was the one who stated that the meeting was over. Tr. 36.
Bell testified that she was the one who ended the meeting. The written statement that
Taylor, the Respondent’s other witness on this point, completed shortly after the event
supports Bauer’s testimony, rather than Bell’s testimony, in this regard. R Exh. 7. At trial,
Taylor reversed himself and aligned himself with Bell, stating that Bell was the one who 20
declared that the meeting was over. Tr. 116. Under the circumstances here, I credit
Bauer’s testimony that he was the one who stated that the meeting was over. At any rate,
even if I were to find that Bell was the one who declared the meeting over, the evidence
would show that Bauer complied by immediately leaving the office. There was no testimony
that Bauer refused to end the confrontation after being directed to leave the office or 25
otherwise end the meeting.
In its brief, the Respondent’s counsel asserts again and again that at the end of the
meeting Bauer was standing over Taylor with his “fists balled up.” Brief of Respondent at
Pages 5, 7, 17, 18. The idea that Bauer made fists as he stood over Taylor is completely the 30
invention of Respondent’s counsel. The only mention in the trial transcript of Bauer “balling up
his fists” is in counsel’s own opening statement. Tr. 14-15. The supposedly supporting
transcript citations that counsel provides in the Respondent’s brief – to transcript pages 80 and
108 – refer instead to Bauer pointing at Taylor, not to him making fists. In response to a leading
question by Respondent’s counsel, Bell did agree that at some point during the 10-minute 35
meeting Bauer “clenched” his fists. Tr. 81. This bit of testimony, even if credited, does not
provide evidence for the picture that Respondent’s counsel tries to paint, because the testimony
does not relate to the time when Bauer was standing and addressing Taylor. In fact, Bell’s
contemporaneous written account explicitly states that Bauer was sitting when he clenched his
fists, R Exh. 3, and her more spontaneous trial testimony had Bauer squeezing a pen with both 40
hands during the meeting, Tr. 76, 79. In any case, even assuming that Bauer clenched his fists
while sitting at the meeting, there is no testimony that he raised his fists or otherwise gave any
indication that he was preparing to use clenched fists to strike Taylor.
Taylor testified that he was concerned that Bauer would assault him during the 45
December 13 meeting. Under relevant precedent, the Board determines whether conduct is
threatening by applying an objective standard, and so Taylor’s claim that he subjectively felt
threatened, even if credited, would be of little, if any, relevance.4 At any rate, Taylor’s testimony

4 The Board uses an objective standard, rather than a subjective standard, to determine whether the
JD–80–18
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that he felt threatened with physical violence is self-serving and not credible based on the
record here. While Taylor claims he felt threatened with physical violence when Bauer stood,
Taylor did not himself stand up or raise his hands in a protective gesture. Tr. 87. Indeed in the
written statement Taylor prepared shortly after the incident, and well before testifying, he
reported that he remained calm during the confrontation with Bauer. R Exh. 7. Taylor 5
conceded that he knew of no conduct by Bauer involving physical violence during Bauer’s 8
years with the Respondent. The two men are comparable in height and weight. See, supra,
footnote 2. After the meeting, Taylor did not contact security or law enforcement officials to
report the incident or request protection from Bauer. Although the Respondent’s standard
procedure when an employee is suspected of making a threat is to suspend the offending 10
employee pending an investigation, the Respondent did not find it necessary to suspend Bauer
after the meeting and the Respondent makes no claim that Taylor asked that Bauer be
suspended. Rather, Bauer continued to have his usual access to the facility until the time that
the Respondent discharged him 6 days later. I also find that Taylor palpably strained to
describe Bauer’s behavior in the most inflammatory terms. For example Taylor testified, 15
regarding the complaints that Bauer made during the meeting, that Bauer “came in firing, firing,
and firing.” Tr. 106. Taylor’s effort to somehow equate a union official verbalizing union
concerns with that official’s use of a firearm is overreaching. Moreover, Taylor’s testimony that
Bauer was being “so aggressive” as soon as the meeting started, Id., is hard to square with his
testimony that when Bauer and himself first arrived at Bell’s office they had a conversation 20
about things outside of work and had no issues. Tr. 113. For these reasons, and based on the
record as whole, I consider Taylor a particularly biased witness, prone to exaggeration.
F. RESPONDENT DISCHARGES BAUER
25
After the December 13 meeting in her office ended, Bell contacted Pruitt and told him
that Bauer had been threatening and intimidating during the meeting. Pruitt advised Bell to “get
some statements together.” Bell prepared a statement after discussing the matter with the
Respondent’s labor attorney, Tamika Frimpong. In addition, Bell obtained a statement about
the meeting from Taylor. Subsequently, the Respondent had a conference call about the 30
matter. The participants were Bell, Pruitt, Frimpong, and Tony Biermann (general director of
human resources for North America). They decided that Bell would hold a “fact finding”
interview with Bauer, that she would report back, and a group decision would be made about
discipline.
35
On December 15, Bell held a fact finding interview with Bauer that was also attended by
Frost. During this interview, Bauer admitted that, at the December 13 meeting, he had raised
his voice. Bell asked Bauer what was said. Bauer responded “words.” According to Bell’s notes
of the interview, R Exh. 4, Bauer explained that he used those “words” because management
had been “failing to acknowledge the Union wanting a safe and sanitary work environment” and 40
that he was “trying to defend” union members. Bell reported back to Pruitt about the interview.
Pruitt testified that “we weighed the information, came to a group decision on what needed to be
done.” According to Pruitt, he concluded that Bauer had “stepped over the line.”
At a meeting on December 19, 2017, the Respondent informed Bauer that the 45
Respondent had decided to terminate his employment. The discharge meeting was conducted
by Bell and Savanna West, who like Bell was a human resources business partner. Bauer and
Frost were present at the meeting. The Respondent provided Bauer with paperwork stating that
he was being discharged for violating shop rule 9 and the company’s workplace violence policy.5

conduct in question is threatening. Plaza Auto Center, Inc., 360 NLRB 972, 974 (2014).
5 Shop rule 9 prohibits “assaulting, threatening, intimidating, coercing or interfering with supervision.”
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10
During the 6-day period leading up to the discharge, the Respondent had not taken any action
to protect Taylor or others from Bauer. Pruitt conceded that Bauer did not pose an immediate
danger and that it was not necessary to suspend him or contact security or law enforcement
about his statements or actions on December 13. Tr. 183,186.
5
The record evidence regarding the Respondent’s disciplinary responses to conduct
similar to Bauer’s is very thin and does not demonstrate that its rules or policies were, or were
not, applied selectively in this case. While testifying, Bell and Pruitt both made conclusory
statements that the decision to discharge Bauer was consistent with the way the Respondent
had handled other cases. Both also denied that Bauer was discharged because he was a union 10
official or because he raised workplace concerns. Tr. 88-89, 91-92. On the other hand, Frost,
who was a union official at the Respondent from 2011 until June 2018, testified that employees
and supervisors at the plant use profanity at the facility every day and that discipline is imposed
for this “very rarely.” Frost discussed one instance in which a human resources staffer told her
that the grievance she was presenting was “bullshit” and “fucking ridiculous.” Frost complained 15
about the staffer’s remarks to Pruitt, and Pruitt later told Frost that the matter was “resolved.”
According to Frost, the staffer was not disciplined and, in fact, received a promotion a few
months later. In 2013, Bauer himself, prior to becoming a union official, called his supervisor a
“pompous jackass” and was cited under shop rule 9. For that conduct, Bauer’s punishment
was a 2-week suspension, later reduced to a 1-week suspension.20
The Respondent introduced disciplinary reports from 2016 and 2017, which indicated
that thirteen individuals other than Bauer were discharged under the shop rules and policy
against workplace violence.6 The record does not reveal whether, as had been the case with
Bauer’s prior disciplines, the Respondent subsequently reduced the level of discipline imposed 25
on these individuals. Moreover, these reports are very bare bones and do not provide details
sufficient to show that the conduct involved in any of the cases was comparable to Bauer’s. To
the extent that the details provided in some instances do permit a comparison, they indicate that
the conduct involved was more severe than Bauer’s – involving either an actual assault or an
express threat. See, e.g., R Exh. 24 (employee Hood sent text threatening to “beat the fuck out 30
of” co-worker); R Exh. 25 (noting that employee Brown admitted to assaulting a member of
management); Id. (employee Williams assaulted his group leader); Id. (employee Allen threw
water at his supervisor); Id. (employee Smith makes physical conduct with a manager while
making vulgar comments).
35
III. DISCUSSION
A. Section 8(a)(3) and (1): Discharge of Bauer
The General Counsel alleges that, pursuant to the framework set forth in Atlantic Steel, 40
245 NLRB 814 (1979), the Respondent’s discharge of Bauer violated Section 8(a)(3) and (1) of
the NLRA because that action was taken based on Bauer’s protected activity at the December
13 meeting and nothing Bauer did in the course of that activity caused him to forfeit the NLRA’s
protection. The Respondent does not dispute that it discharged Bauer for his conduct in the

The Respondent’s global workplace violence policy prohibits a variety of activities defined as violence,
including: possessing weapons or dangerous devices, bullying, stalking, making threats, causing harm to
people or property, and “creat[ing] an intimidating, offensive, or hostile environment.”
6 The disciplinary reports submitted by the Respondent include one additional report, but that report
makes no reference to violent or threatening conduct or to the rules concerning such conduct. See R
Exh. 24 (Boykins).
JD–80–18
11
course of his otherwise protected union activity on December 13,7 and agrees that the Atlantic
Steel framework is applicable, but argues that under that framework Bauer’s outburst caused
him to forfeit NLRA protection. The determination about whether an employee’s conduct in the
course of otherwise protected activity is “sufficiently egregious or opprobrious” to forfeit NLRA
protection is based on a balancing of four factors: (1) the place of the discussion; (2) the subject 5
matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst
was, in any way, provoked by an employer's unfair labor practice. 245 NLRB at 816; see also
Meyer Tool, Inc., 366 NLRB No. 32, slip op. at 1 fn.2 (2018) (same), Postal Service, 360 NLRB
677, 677 fn. 2 and 683 (2014), and Stanford Hotel, 344 NLRB 558 (2005) (“When an employee
is discharged for conduct that is part of the res gestae of protected concerted activities, the 10
pertinent question is whether the conduct is sufficiently egregious to remove it from the
protection of the Act.”). This framework balances employees’ rights under Section 7 of the Act
and the employer’s interests in maintaining workplace order and discipline. Triple Play Sports
Bar & Grille, 361 NLRB 308 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015); see also Piper
Realty, 313 NLRB 1289, 1290 (1994) (“[E]mployees are permitted some leeway for impulsive 15
behavior when engaging in concerted activity, [but] this leeway is balanced against an
employer’s right to maintain order and respect.”). After considering the relevant factors, I find
that Bauer’s conduct during the course of otherwise protected activities on December 13 fell
well short of being so egregious or opprobrious as to cause him to forfeit the protection he was
otherwise entitled to as a union official engaged in protected union activity. 20
The first factor, the place of the discussion, weighs heavily in favor of continued
protection. The conduct that the Respondent points to – Bauer’s profane language, raised
voice, pointing – all took place in the private office of Bell (a human resources official) with only
Bauer, Bell, and Taylor present. The door to the office was closed during the discussion. To 25
the extent that the door may have been open at the very tail end of Bauer’s interaction with
Taylor, this would be because Bell, not Bauer, chose to open it. In such circumstances, the
Board has repeatedly found that the location of the discussion weighs against forfeiture of the
NLRA’s protection. “An employer's interest in maintaining order and discipline in his
establishment is affected less by a private outburst in a manager's office away from other 30
employees than an outburst on the work floor witnessed by other employees.” Plaza Auto
Center, 360 NLRB 972, 978 (2014). Therefore, the Board has “’regularly observed a distinction
between outbursts under circumstances where there was little if any risk that other employees
heard the obscenities and those where that risk was high.’” Id., quoting NLRB v. Starbucks
Corp., 679 F.3d 70, 79 (2d Cir. 2012); see also, Success Village Apartments, 347 NLRB 1065, 35
1069 (2006) (protection not forfeited when union representative yells and uses crude language
during meeting in manager’s private office) and Stanford Hotel, 344 NLRB at 558 (where
outburst occurred in secluded area behind a closed door, this weighs in favor of continued
protection, even though one other employee overheard the outburst). There were no unit
employees, or other rank-in-file employees, present in the room as spectators to Bauer’s 40
profane statements to Taylor. There were some salaried, non-bargaining unit employees,
working in the area outside Bell’s office, but none of those employees stated that they heard, or
otherwise witnessed, Bauer’s conduct. Indeed, the Respondent does not name a single
individual, other than Bell and Taylor, who it claims witnessed the conduct. I find that it is
unlikely that any other employee heard the conduct. Moreover, as demonstrated by some of the 45
cases cited above, the location of a profane outburst weighs in favor of continued protection as

7 I agree that Bauer was engaged in protected union activity at the December 13 meeting. Bauer
attended the meeting in his capacity as a union official and discussed union issues such as the
processing of grievances, his access to employees for representational purposes, unit member safety,
and the Respondent’s use of non-unit employees to perform bargaining unit work.
JD–80–18
12
long as there is “little if any risk that other employees” heard it, even if the outburst is, in fact,
inadvertently overheard. See Plaza Auto, supra, and Stanford Hotel, supra.
There is, moreover, no indication on the record that Bauer expected or hoped that other
employees would witness his conduct. His outburst was impulsive and not the result of an 5
improper motive to undermine discipline by making a show of challenging a supervisor on the
shop floor. The fact that Bauer’s obscenities were impulsive rather than the product of an
improper motive weighs in favor of continued protection. Prescott Industrial Products Co., 205
NLRB 51, 51-52 (1973) (continued protection when outburst results from “animal exuberance”
not an improper motive), enfd. 500 F.2d 6 (8th Cir. 1974); see also Plaza Auto, 360 NLRB at 978 10
(employee's right to engage in protected activity permits some leeway for impulsive behavior).
I find that the second Atlantic Steel factor – the subject matter of the discussion – also
weighs heavily in favor of continued protection. The meeting had been arranged for the
purpose of addressing important issues related to the interests and welfare of bargaining unit 15
employees, including: Bauer’s allegation that supervisors were interfering with his ability to
provide representation to bargaining unit employees, the employer’s frequent use of non-unit
individuals to perform bargaining unit work, and safety. In addition, the subject matter of the
discussion provides context that favors continued protection. Specifically, I note that the subject
matter that the December 13 meeting was called to address included Bauer’s frustration with 20
what he considered to be the Respondent’s dismissive treatment of his efforts to represent
employees. However, Taylor’s dismissive treatment of Bauer’s concerns at the meeting did
nothing to calm that frustration, but rather aggravated it. When Bauer expressed concern about
safety, Taylor, by his own account, did not propose a way of addressing those concerns, but
rather dismissed the safety concerns by stating that while Bauer was always talking about 25
safety he himself was not wearing the proper type of shoes. Taylor even attempted to subject
Bauer to an impromptu inspection of his shoes. When Bauer became emotional while
discussing a unit employee who had reportedly been forced, with Taylor’s knowledge, to
continue working in her own vomit, Taylor did not express concerns or an interest in improving
the employer’s approach, but dismissed Bauer by commenting to Bell that he could not “get 30
anything done” because Bauer was “just so hostile.” When Taylor made these dismissive
comments to Bauer on December 13, during the very meeting that was called to discuss
Bauer’s frustration over the Respondent’s dismissive treatment of him, it arguably constituted a
provocation. The nature of an employee’s outburst is examined in the context in which it
occurred, and here the subject matter of the discussion provides context that weighs in favor of 35
continued protection.
I find that the third factor, the nature of the outburst, also weighs in favor of continued
protection. Bauer used crude language, but he did not engage in any physical violence, or even
touch, anyone at the December 13 meeting. He did not make a threat, either express or 40
implied. Moreover, he did not improperly prolong the confrontation, or refuse a direction to end
it. Although the Respondent claims that Bauer’s behavior was threatening, the Respondent did
not act consistently with that claim. It did not, for example, suspend Bauer pending investigation
as is its practice when an employee is suspected of making a threat. The Respondent was
sufficiently unconcerned with Bauer’s outburst, that it did not contact its own security, much less 45
law enforcement. This is not surprising given that Bauer, during his 8 years with the company,
had sometimes been verbally volatile, but had never been known to be violent. See Plaza Auto
Center, 360 NLRB at 976 (outburst not threatening where, inter alia, employee had no history of
violent behavior).
50
Bauer’s outburst was a spontaneous expression of his frustration with management’s
response to the concerns he was raising on December 13, and not a premeditated diatribe that
JD–80–18
13
was calculated to, or that reasonably would, either intimidate Taylor or undermine discipline. It
is true that Bauer directed profanity at Taylor, a supervisor, during his outburst. However, this is
a type of outburst for which employees are granted leeway when, as here, it occurs in the
course of otherwise protected activity. As the Board explained in Plaza Auto, such leeway is
warranted because the language of the industrial workplace “is not the language of polite 5
‘society,’” and “[t]he protections [that] Section 7 affords would be meaningless were [the Board]
not to take into account the realities of industrial life and the fact that disputes over wages,
hours, and working conditions are among the disputes most likely to engender ill feelings and
strong responses.” 360 NLRB at 978 (internal citations omitted).
10
In its brief, the Respondent repeatedly makes reference to the fact that Bauer and Taylor
were in close proximity during Bauer’s outburst and gives the impression that Bauer had moved
towards Taylor in a threatening way. However, the record indicates that Bauer had no choice
but to be close to Taylor given the tight confines of the office. Bauer was 12 to 16 inches away
from Taylor when he engaged in the conduct that the Respondent cites to justify his termination, 15
but throughout the meeting the two had already been only 12 inches apart while sitting in two
guest chairs in Bell’s office. Photographs of Bell’s office show that the area for visitors was very
confined. Under these circumstances, I reject the Respondent’s suggestion that the proximity of
the two men indicates that Bauer moved into Taylor’s personal space in order to threaten or
intimidate him. Under similar circumstances, in Plaza Auto, the Board found that the fact that an20
employee’s outburst had included standing and pushing his chair aside was, when viewed
objectively, not threatening given that the tight confines of the office would have made it difficult
for the employee to stand up without pushing the chair. 360 NLRB at 976. In another similar
case, Alton H. Piester, LLC, an employee retained the protection of the Act even though he rose
and took a step towards the employer’s agent given that the tight confines of the office rendered 25
it difficult to move without approaching that individual. 353 NLRB 369, 374 (2008), enfd. 591
F.3d 332 (4th Cir. 2010).
In its brief, the Respondent cites cases in which it was found that an employee who,
like Bauer, used profanity during otherwise protected activity, forfeited the protection of the 30
NLRA. Brief of Respondent at Pages 15 ff. Those cases, unlike the instant one, concerned
profane outbursts made in the presence of others and under circumstances that threatened to
undermine the employer’s authority. For example, the Respondent cites Waste Management
of Arizona, Inc., 345 NLRB 1339 (2005). In that case, the Board’s decision that protection was
forfeited specifically relied on the fact that, even after a manager repeatedly told the employee 35
to move the profane confrontation to a private office, the employee prolonged the confrontation
in an area where employees and supervisors were gathered. Id. at 1340. Bauer and Taylor, on
the other hand, were already in Bell’s private office out of the presence of other employees, and
Bauer did not refuse an order to move or end the confrontation. The Respondent also relies on
Aluminum Company of America, 338 NLRB 20, 20-22 (2002). The employee who forfeited 40
protection in that case was still a probationary employee and his profane outburst occurred in a
break room where he was surrounded by multiple employees and a supervisor. Some of the
employees not only heard the profane outburst, but found it disturbing enough that they
complained about it to the employer. Moreover, profanity was not common or tolerated in the
workplace involved in that case. In Piper Realty, 313 NLRB at 1289-90, another case relied on 45
by the Respondent, the employee continued his profane outburst towards a supervisor even
after the supervisor repeatedly directed him to end the confrontation and leave to perform a
work assignment. His profane outburst, moreover, was made within the hearing of employees
who testified that they were disturbed by it and who, in one case, relocated to escape hearing it.
, Additionally, in Piper the employee not only called his a supervisor a profane name, but also 50
asked the supervisor if he “had a problem” – a question that, under the circumstances, smacked
JD–80–18
14
of an invitation to escalated, possibly physical, conflict. In the instant case, Bauer outburst was
not heard by other employees, he did not persist after being directed to end the confrontation,
and he did not make any statements that suggested an invitation to escalated conflict.8
The Respondent also relies on Trus Joist MacMillan, 341 NLRB 369 (2004), a case in 5
which an employee forfeited protection, but under circumstances that are far removed from
Bauer’s. In Trus Joist the employee engaged in a premeditated diatribe for the express the
purpose of undermining and embarrassing an assistant manager in front of others. Id. at 370-
372. Indeed in Trus Joist, the employee had arranged for the presence of others during the
meeting as part of his plot to “call [the assistant manager] a liar and embarrass him.”9 10
Moreover, unlike Bauer, the employee continued his profane outburst even after the employer
repeatedly directed him to end the confrontation. In Trus Joist, the employee’s outburst was not
the sort of impulsive behavior to which the Board permits “leeway,” but rather was a calculated
attempt to undermine the employer’s ability to maintain order and respect in the workplace.
See Piper Realty, 313 NLRB at 1290 (“employees are permitted some leeway for impulsive 15
behavior when engaging in concerted activity”) and Prescott Industrial Products Co., 205 NLRB
at 51-52 (continued protection for outburst resulting from “animal exuberance” as opposed to
improper motive); see also Plaza Auto Center v. NLRB, 664 F.3d 286, 292-293 (9th Cir. 2011)
(distinguishing Trus Joist on the basis that “the employee in that case instigated the meeting for
the express purpose of embarrassing a manager, which “accentuate[d] and exacerbate[d] the 20
disruptive effect of [the employee's] outburst”).
It is telling that the Respondent, in order to argue that the nature of Bauer’s outburst
weighs against continued protection, relies on cases such as Waste Management of Arizona,
supra, Aluminum Company of America, supra, Piper Realty, supra, and Trust Joist, supra, that 25
concern conduct that was so different than Bauer’s. In fact, the Board has not been unrealistic
or prudish about the use of foul language in industrial settings, including about the use of
variations on the word “fuck.” In Pier Sixty, an employee retained NLRA protection after, in a
Facebook post attacking a manager’s conduct, he called the manager a “nasty mother fucker,”
and added “[f]uck his mother and his entire fucking family!!!” 362 NLRB No. 59, slip op. at 2 30
(2015), enfd. 855 NLRB 115 (2nd Cir. 2017). In Coors Container Company, an employee who
engaged in protected activity did not forfeit protection by calling two agents of the Respondent
“mother-fuckers.” 238 NLRB 1312, 1320 (1978). Although Bauer’s outburst was intemperate
in nature, it was not so egregious or opprobrious as to warrant stripping his union activity of the
protection to which it was otherwise entitled under federal law. The third Atlantic Steel factor 35
weighs in favor of continued protection.
The fourth and final Atlantic Steel factor is whether the misconduct was provoked by the
employer's unfair labor practices. The analysis under this factor is not confined to circumstances
in which the employer’s provocation is actually alleged to be an unfair labor practice, but rather 40
includes circumstances in which the employer evinced an intent to interfere with protected rights

8 The Respondent does not cite Stanford Hotel, supra, but I note that in that case the Board, while
finding that the employee retained NLRA protection, also stated that the employee’s calling a supervisor a
“fucking son of a bitch” weighed against retaining protection. In that case, however, the Board’s
assessment of the language was based on a finding that the employer – a hotel – was a work setting
where profanity was inappropriate and uncommon. 344 NLRB at 559. Bauer, on the other hand, used
profanity in an industrial setting, where the Board recognizes that the language of “polite society” does not
prevail, and in a facility where profane language was, in fact, widely used and generally tolerated.
9 In that case, the employee called the assistant manager a liar, a “lying bastard,” and, repeatedly, a
“prostitute.” At one point he also grabbed his crotch and said “I have your manhood hanging right here.”
Trus Joist MacMillan, 341 NLRB at 370-371.
JD–80–18
15
or escalated the confrontation. See Meyer Tool, Inc., 366 NLRB no. 32, slip op. at 13; Network
Dynamics Cabling, Inc., 351 NLRB 1423, 1429 (2007); Overnite Transportation Co., 343 NLRB
1431, 1438 (2004). In this case, Bauer was present at the meeting to complain about employer
conduct that, if proven, would arguably constitute an unfair labor practice. However, that
potential unfair labor practice was not alleged in a Board complaint and was not fully litigated5
before me. The record in this case is insufficient to permit a finding as to whether the
supervisory dismissiveness and interference and other conduct that Bauer was complaining
about constituted unfair labor practices. That being said, I do find, as discussed above in
reference to the second Atlantic Steel factor, that Taylor’s responded somewhat dismissively to
concerns raised by Bauer during the December 13 meeting. I find that Bauer’s outburst in 10
response to dismissive comments at a meeting held to discuss, inter alia, Bauer’s frustration
about the Respondent’s prior dismissive comments, was not wholly unprovoked. Given that it
has not been alleged or proven that the conduct Bauer was complaining about at, or that he
experienced during, the December 13 meeting constituted unfair labor practices, I find that this
final factor weighs in the Respondent’s favor. However, Bauer’s outburst was not wholly without 15
provocation and this factor weighs only lightly in the Respondent’s favor.
The first two Atlantic Steel factors weigh heavily in favor of Bauer retaining NLRA
protection, and the third factor also weighs in favor of continued protection. The fourth factor
weighs in favor of forfeiture of protection, but it does so only lightly. I find that the three factors 20
favoring the retention of protection outweigh the one factor marginally favoring forfeiture.
Therefore, I find that Bauer retained the NLRA’s protection for his actions during the December
13 meeting, and that the Respondent violated Section 8(a)(3) and (1) of the NLRA when, on
December 19, 2017, it terminated him for those actions.
25
B. Section 8(a)(4) and (1): Discharge of Bauer
Section 8(a)(4) and (1) of the NLRA makes it unlawful for an employer “to discharge . . .
an employee because he has filed charges or given testimony under this Act.” The General
Counsel alleges that Bauer’s discharge violated the NLRA not only because, as found above, 30
the Respondent based the discharge on Bauer’s protected union activity during the December
13 meeting, but also because the discharge was discriminatorily based on Bauer’s prior charges
and testimony under the NLRA. The Board applies the analysis set forth in
the Wright Line decision to allegations that an employer violated Section 8(a)(4) and (1) by
discriminating against “an employee because he has filed charges or given testimony” in a 35
Board proceeding. Verizon, 350 NLRB 542, 546-547 (2007), American Gardens Mgmt. Co., 338
NLRB 644, 644-645 (2001), McKessen Drug Co., 337 NLRB 935, 936 (2002): Gary Enterprises,
300 NLRB 1111, 1113 (1990), enfd. 958 F.2d 368 (4th Cir. 1992) (Table). Under the
Board's Wright Line analysis, the General Counsel bears the initial burden of showing that the
Respondent's decision to take adverse action against an employee was motivated, at least in 40
part, by considerations prohibited by the NLRA. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. (1982), approved in NLRB v. Transportation
Corp., 462 U.S. 393 (1983). The General Counsel may meet this burden by showing that: (1)
the employee engaged in union or other protected activity, (2) the employer knew of such
activities, and (3) the employer harbored animosity towards the protected activity. Camaco 45
Lorain Mfg. Plant, 356 NLRB 1182, 1184-1185 (2011); ADB Utility Contractors, 353 NLRB 166,
166-167 (2008), enf. denied on other grounds, 383 Fed. Appx. 594 (8th Cir. 2010); Intermet
Stevensville, 350 NLRB 1270, 1274-1275 (2007); Senior Citizens Coordinating Council, 330
NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the General
Counsel establishes discriminatory motive, the burden shifts to the employer to demonstrate 50
that it would have taken the same action absent the protected conduct. Camaco Lorrain,
JD–80–18
16
supra; ADB Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra.
In this case, the record demonstrates that Bauer filed prior unfair labor practices charges
against the Respondent and that the Respondent was aware of those charges. However, I find
that the General Counsel has not established the third element of its initial Wright Line burden,5
i.e., that the Respondent bore animosity towards Bauer’s participation in NLRB proceedings. To
establish this element, the General Counsel relies primarily on statements regarding Bauer’s
NLRB activity that Pruitt and Bell allegedly made at the November 9 meeting. For the reasons
that are discussed above in the statement of facts, the record does not demonstrate that Pruitt
and Bell more likely than not made those statements. In addition, the General Counsel did not10
establish animus by demonstrating that the Respondent gave significantly more favorable
treatment under its shop rules to employees who had comparable profane outbursts, but who
had not previously filed charges with, or given testimony to, the NLRB. The General Counsel
and the Charging Party argue, in particular, that the Respondent failed to follow its progressive
discipline policy in addressing Bauer’s December 13 conduct, whereas it followed its 15
progressive discipline policy when he had been rude or profane in conversations with
supervisors during the period prior to his involvement with the NLRB. The record does show
instances, discussed above in the statement of facts, that occurred before Bauer filed his NLRB
charges and in which he used profanity during disagreements with supervisors and was
suspended rather than discharged. The evidence regarding the details of those incidents was 20
insufficiently developed to allow a determination about whether the infractions were comparable
or whether the shop rules were applied selectively to Bauer’s December 13 conduct. To the
extent that the General Counsel’s contention is that the Respondent departed from a
progressive discipline policy when it discharged Bauer, I find that the record does not show any
such departure. The Respondent was not shown to have a formalized progressive discipline25
policy with a schedule of infractions and punishments, or other meaningful parameters, from
which it departed when it discharged Bauer, or which even shed light on the discharge.
The record does not establish that the Respondent discharged Bauer because he filed
charges or gave testimony under the NLRA. Therefore, the allegation that the Respondent 30
violated Section 8(a)(4) and (1) of the Act must be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section 35
2(2), (6), and (7) of the NLRA.
2. Local 699, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.40
3. The Respondent discriminated in violation of Section 8(a)(3) and (1) of the NLRA on
December 19, 2017, when it discharged Bauer based on his protected union activity during a
meeting on December 13, 2017.
45
4. The record does not show that the Respondent selectively enforced shop rules
because Bauer filed charges or gave testimony under the NLRA, or otherwise discriminated in
violation of Section 8(a)(4) and (1) of the NLRA when it discharged Bauer.
50
JD–80–18
17
REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily discharged Joshua Nuffer-Bauer, 5
must offer him full and immediate reinstatement and make him whole for any loss of earnings
and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). The Respondent shall file a report with the Social Security Administration 10
allocating backpay to the appropriate calendar quarters and shall also compensate the
discriminatee 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).
15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.10
ORDER
20
The Respondent, Nexteer Automotive Corp., Saginaw, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
25
(a) Discharging or otherwise discriminating against employees for supporting Local 699,
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other labor organization.
(b) In any like or related manner interfering with, restraining, or coercing employees in 30
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Joshua Nuffer-Bauer full 35
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Joshua Nuffer-Bauer whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the 40
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Joshua Nuffer-Bauer in
writing that this has been done and that the discharge will not be used against him in any way.45
(d) 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

10 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–80–18
18
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
5
(e) Within 14 days after service by the Region, post at its facilities in Saginaw, Michigan,
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by
the Regional Director for Region Seven, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 10
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 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 15
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since December
19, 2017.
20
Dated, Washington, D.C. December 10, 2018.
25

PAUL BOGAS
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
~~ ~---~,~---
JD–80–18
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting Local 699,
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Joshua Nuffer-Bauer full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Joshua Nuffer-Bauer whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Joshua Nuffer-Bauer for the adverse tax consequences, if any, of
receiving one or more lump-sum 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 discharge of Joshua Nuffer-Bauer, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
JD–80–18
Nexteer Automotive Corp.
(Employer)
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.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-215036 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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) 335-8042.