Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Administrative Judge Opinions

May 15, 2012

26-CA-024057 (N.L.R.B. May. 15, 2012)

JD(ATL)–12–12
Memphis, TN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
OZBURN-HESSEY LOGISTICS, LLC
and CASES 26–CA–24057
26–CA–24065
UNITED STEELWORKERS UNION 26–CA–24090
26–RC–8635
William Hearne and Linda Mohns, Esqs.,
for the Acting General Counsel.
Ben Bodzy and Stephen Goodwin, Esqs.
(Baker, Donelson, Bearman, Caldwell
& Berkowitz, PC), for the Respondent.
Glen Connor, Esq. (Quinn, Connor,
Weaver, Davies & Rouco, LLP),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was tried in Memphis,
Tennessee over the course of 7 days during October and November, 2011.1 On June 10, the
United Steelworkers Union (the Union) filed the original charge involved herein. The resulting
consolidated complaint (the complaint) alleged that Ozburn-Hessey Logistics, LLC (the
Company, OHL or Respondent) repeatedly violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act).
In addition to the above-described charges, the Union and OHL filed several objections
and challenges to a representation election, which was held on July 27. These objections and
challenges were based upon the same evidentiary record as the complaint and were, as a result,
heard simultaneously.
On the entire record, including my observation of the demeanor of the witnesses, and
after thoroughly considering the parties’ briefs, I make the following:

1 All dates herein are in 2011, unless otherwise stated.
JD(ATL)–12–12
2
FINDINGS OF FACT
I. JURISDICTION
5
At all material times, OHL, a limited liability company, with an office located in
Brentwood, Tennessee and a major warehouse hub located in Memphis, Tennessee (the facility)
has provided transportation, warehousing and logistics services. Annually, in conducting its
operations, it purchases and receives at the facility goods valued in excess of $50,000 directly
from points located outside of Tennessee. Based upon the foregoing, OHL admits, and I find, 10
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. It also admits, and I find, that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
A. Introduction
OHL provides integrated supply chain management solutions; including transportation,
warehousing, freight forwarding, and import and export consulting services. Its clients include 20
various apparel, chemical, electronics, retail, automotive, food and publishing concerns. It,
consequently, operates numerous distribution and warehousing centers throughout the United
States, including the facility at issue herein.
B. Prior Litigation and Organizing Efforts25
This hearing involves the Union’s ongoing efforts to organize OHL’s employees. This
litigation represents the third installment in a trilogy of cases involving the parties. The earlier
trials concerned many of the same issues involved herein.
1. First Hearing30
The first hearing, which was held in early 2010, involved numerous allegations that OHL
violated Section 8(a)(1) and (3). In this case, the Administrative Law Judge, and subsequently
the Board, found that OHL repeatedly violated the Act. (ALJ Exh. 1); Ozburn-Hessey Logistics,
LLC, 357 NLRB No. 136 (2011) (Ozburn I).35
2. First Election
On March 16, 2010, the Board conducted an election at the facility, which the Union lost
by a wide margin. (ALJ Exh. 2). The Union subsequently filed objections to the election, and 40
asserted that OHL’s unlawful actions tainted the election. These objections were sustained by
the Administrative Law Judge, who ordered a rerun election. (Id.).
JD(ATL)–12–12
3
3. Second Hearing
The second hearing, which occurred in late 2010, involved voluminous allegations that
OHL again violated Section 8(a)(1) and (3). (ALJ Exh. 2). In this case, the Administrative Law 5
Judge, and subsequently the Board, found that OHL repetitively violated the Act. Ozburn-
Hessey Logistics, LLC, 357 NLRB No. 125 (2011) (Ozburn II).2
4. Section 10(j) Injunction
10
In light of the seriousness and magnitude of the violations involved in the first two
hearings, Region 26 of the Board filed a Petition for Temporary Injunctive Relief in the United
States District Court for the Western District of Tennessee on August 10, 2010. (GC Exh. 4).
On April 5, a Petition for Temporary Injunctive Relief (the Injunction) was granted. (Id.).
15
C. April 11 – Confiscating Union Materials
Sandra Hayes, a former employee, testified that, on April 11, she, Glenora Rayford and
Helen Herron placed copies of the Injunction in a break area.3 She related that she later observed
Supervisor Eric Nelson remove the Injunctions from the break area. She recollected that she 20
responded by telephoning Union Organizer Ben Brandon, who directed her to place additional
copies of the Injunction in the break area, which she did. She indicated that, thereafter, she saw
Director of Operations Phil Smith discard the additional Injunctions. She averred that their
actions were unusual, inasmuch as supervisors typically do not remove waste from break areas.
She added that break areas are daily cleaned by a janitor, who typically stacks and leaves behind 25
written materials for several weeks at a time.
Rayford corroborated Hayes’ testimony. She said that she observed Supervisor Nelson
holding wadded Injunctions. She added that, when she asked Supervisor Randy Phillips why
OHL removed the Injunctions from the break area, he queried, “that trash?” She noted that she 30
never previously saw supervisors cleaning the break area, and estimated that reading material is
normally left in the break area for multiple weeks at a time. Herron corroborated Rayford’s and
Hayes’ accounts.
Supervisor Nelson, who has since resigned, testified that literature is generally left in the 35
break area for several days. He denied intentionally disposing of the Injunctions.
Philip Smith testified that, even though OHL employs janitors, he’s fastidious about
break area tidiness, and maintains a steady practice of cleaning away debris, including “empty
plates, food containers, general trash, papers, magazines, Avon books [and] anything that’s 40
laying there.” (Tr. 1466). However, he steadfastly denied discarding the Injunctions.

2 On July 1, the Board approved the Union’s request to withdraw its petition in Case 26–RC–8596, i.e. the first
election petition, which, thus, rendered any connected objections moot. The Board did not, as a result, address
the merits of setting aside the first election. See Ozburn II, 357 NLRB No. 125, slip op. at 1, n. 1.
3 “USW Organizing Committee” was written on each copy of the Injunction.
JD(ATL)–12–12
4
Inasmuch as Hayes, Rayford, and Herron indicated that they saw Smith and Nelson
remove the Injunctions from the break area, and Smith and Nelson denied such activity, I must
make a credibility determination. For several reasons, I credit Hayes, Rayford, and Herron.
First, Rayford and Herron were straightforward and plausible witnesses; they were consistent
and portrayed themselves as truthful witnesses, who wanted to aid the proceeding. Second, 5
Nelson was vague. Lastly, Phil Smith was a generally unbelievable witness, who although
straightforward on direct, seemed to change his demeanor on cross, and become vastly less
cooperative. He seemed to be more interested in advancing OHL’s interests than being
forthright. His “Mr. Clean” defense was also somewhat preposterous; it’s simply improbable
that a high-level manager would spend a regular part of his workday cleaning food waste and 10
other garbage left behind by his subordinates. It is even less plausible that he would have
maintained this alleged penchant for tidiness, after this practice was previously found unlawful in
an earlier litigation.4 See Ozburn I, supra, 357 NLRB No. 136, slip op. at 7–8. I find it probable
that he was disappointed by the Injunction, saw its distribution as beneficial to the Union, and
took steps to derail its dissemination. 15
D. April 29 - Meeting in the Hewlett Packard Department
Anita Wells testified that, on April 29, she attended a captive audience meeting in the
Hewlett Packard department, which was attended by 50 employees. She recollected Keith 20
Hughes, an open Union supporter, asking Senior Vice President of Operations Randall Coleman
whether the Union was obligated to represent employees, who did not pay dues. She indicated
that Coleman refused to answer the question and became frustrated, when Hughes refused to
drop the matter. She stated that Phil Smith then walked over to Hughes and stood closely behind
him for 15 minutes, in what appeared to an effort to intimidate him into silence.25
Hughes testified that, when Coleman told employees that the election would occur earlier
if they stopped filing charges, he queried why they should drop legitimate charges. He stated
that Coleman replied that it was “his floor,” and told him to be quiet. He stated that Phil Smith
then approached him and hovered over him for about 15 minutes. He added that, when the 30
meeting ended, Phil Smith threatened, “he thinks he’s something special; I got something for
him.”
Phil Smith testified that Hughes rudely interrupted the presentation, and even mumbled
and made odd noises. He acknowledged approaching Hughes, in order to confirm that he was 35
the actual heckler, and estimated that he stood behind him at a 10 foot distance for 10 minutes.
He denied uttering, “I got something special for him.”
Because Hughes testified that Smith hovered over and threatened him, in response to his
queries about Union issues, and Smith denied such activity, I must make a credibility 40
determination. I credit Hughes over Phil Smith. First, as noted, Phil Smith’s demeanor was less
than credible. Second, it is likely that Phil Smith was concerned that Hughes was undermining
the captive audience meeting, and silenced him. Third, Hughes was a refreshingly forthright and
well-spoken witness, who seemed to be committed to providing truthful testimony. Lastly,

4 Phil Smith, ironically, confiscated the very same Injunctions that ordered him to stop “confiscating pro-union
literature from break areas.” See (GC Exh. 4).
JD(ATL)–12–12
5
Hughes’ testimony was corroborated by Wells, who was also credible.
E. May 11 - Human Resources Department Meeting
Sharon Shorter, an open Union supporter, testified that, before the July 27 election, she 5
was summoned to Human Resource Assistant Sara Wright’s office. She stated that Wright asked
her about changing a doctor’s appointment. She explained that she had been diagnosed with
high blood pressure, and recalled Wright asking whether someone was causing her stress. She
related that she forthrightly answered that she was upset about being underpaid, and believed that
such frustration was causing her blood pressure issues. She said that Wright failed to accept her 10
explanation, and followed up by asking whether someone at work was pressuring her about the
Union. She indicated that Wright continued this course, and identified Rayford, a Union
supporter, as the possible source of her stress:
She said, . . . “do you all talk about the Union?” I said, “. . . we have talked about 15
the Union, but, it’s during break time; we don’t talk about it during work time.”
And then I asked her, “. . . are you concerned about my blood pressure or are you
concerned about . . . Rayford coming to talk to me about the Union?” And she
said, “well, oh no Sharon, it’s not like that. I am concerned about your blood
pressure.” Then I told her, “you know [now],” [and] got up and left. And she . . . 20
[hasn’t] called me back since [to ask] about my blood pressure.
(Tr. 785).
Wright denied talking to Shorter about Rayford. She averred that their conversation was 25
limited to her concerns about Rayford’s health, and Shorter’s grievance about her wages.
Inasmuch as Shorter testified that Wright questioned her about Rayford’s Union
activities, and Wright denied such action, I must make a credibility determination. I credit
Shorter over Wright. Shorter provided detailed and honest testimony; she had a vivid 30
recollection of their discussion. I find it implausible that she would have concocted a story,
which involved Wright using her blood pressure problems as a mechanism to ask her about the
Union, unless it actually happened. Her apparent irritation over this exchange lent credence to
her testimony. Wright, on the other hand, appeared less credible, and only provided generalized
testimony about their discussion.35
F. May 25 – Handbilling
Carolyn Jones testified that, on May 25, she and several coworkers passed out handbills
and solicited coworkers to sign authorization cards in the Hewlett Packard parking lot in the late 40
afternoon. See (GC Exh. 6). She recollected that, within minutes of beginning, she observed
John McNamee, Director of Risk Management, park his vehicle, exit, and then stop and linger
for 7 minutes, while staring at the ground and feigning that he had lost something.
Renal Dotson testified that he saw McNamee standing a few feet away from his leafleting 45
activity, and alternate between peering at the ground and leafletters for 4 minutes, before
departing. He said that, within minutes of his departure, Coleman: exited the Hewlett Packard
JD(ATL)–12–12
6
building; walked to his parked car and sat in it for several minutes; slowly drove to another spot;
remained in his car a few more minutes; exited his car; stared at the ground outside of his car for
5 more minutes; and then, finally, reentered the building. Jerry Smith essentially corroborated
Jones’ and Dotson’s accounts.
5
McNamee testified that he is responsible for security at OHL’s various sites, including
the Memphis facility. He said that he visits Memphis 12 times per year and was there on May
25. He stated that he parked in the Hewlett Packard parking lot, walked around his car while
making a call to his spouse, and remained for several minutes. He denied watching employees’
Union activities, and initially even denied noticing them. (Tr. 799). He then agreed, on cross-10
examination, that he saw some employees, but, denied knowing that they were Union organizers.
(Tr. 806). He then changed his testimony again, and agreed that they were likely organizers.
(Tr. 807).
Coleman testified that he has observed frequent handbilling at the facility. He denied, 15
however, observing such handbilling on May 25.
I credit Jones, Dotson and Smith over McNamee and Coleman. First, Dotson and Smith
were extremely credible, helpful and straightforward witnesses. Second, their accounts were
corroborated by Jones, who provided clear testimony. Third, McNamee was implausible and 20
inconsistent. He first said that he never noticed the leafletters, which was implausible, given that
he is a security official who would likely notice such activities. He then inconsistently recanted
his testimony and said that he did observe them, but, denied that they were Union organizers. He
then contradicted himself again and said that they were organizers. Lastly, Coleman’s recall was
poor. 25
G. May 26 - Threat Against Carolyn Jones
Carolyn Jones testified that, on May 26, in a break area, she and her coworkers were
discussing potential Union dues. She asserted that their discussion succeeded a captive audience 30
meeting, where OHL exaggerated the cost of Union dues. She related that she told her
coworkers that President Barrack Obama supported their right to unionize, and that, if he
endorsed this right, it was worthy of their consideration. She recalled that Phil Smith then
appeared, stood behind her, and said:
35
[I] just had two . . . employees . . . [say] they were called stupid. [Y]ou all are the
ones that are stupid because you’re trying to get a Union . . . .
(Tr. 77). She recalled asking him whether he was referring to her, and him answering, “if the
shoe fits, wear it.” She recalled denying that she had called anyone stupid, but, said that it was 40
“stupid” for employees to not want a Union. She related that he answered that wanting a Union
was “stupid.” She indicated that she then tried to end their discussion by asking, “don’t you have
a meeting to go to?” She noted that he became irate, and warned, “you better watch your back!”
Annie Ingram, Troy Hughlett, James Bailey, and Kedric Smith corroborated Carolyn 45
Jones’ account. They observed the fracas, including Phil Smith saying that employees were
JD(ATL)–12–12
7
“stupid,” and telling Jones to “watch her back.” See also (GC Exh 10; tr. 1056–1057). See (GC
Exhs. 22, 58) (GC Exh. 17).
Phil Smith testified that employees complained to him that Carolyn Jones had proclaimed
that African American people, who did not support unionizing, were stupid. He stated that he 5
solely visited the break room to tell employees that OHL did not think that they were stupid. He
indicated that, at some point, Jones told him that he needed to go back to work, and that he told
her that she was out of line. He denied telling her to watch her back.
Given that Carolyn Jones indicated that Phil Smith threatened that she needed to “watch 10
her back,” and Phil Smith denied this statement, I must make a credibility determination, in order
to resolve this dispute. I credit Jones over Smith. First, I found her testimony on this point to be
credible, and the witness statement, which was created almost contemporaneously with the
incident, was consistent with her testimony. Second, her testimony was corroborated by
Hughlett, Ingram, Kedric Smith, and Bailey. Third, as stated, Smith was a less than credible 15
witness. Lastly, I note that, in a break area filled with people, it is conspicuously implausible
that OHL was unable to find a single witness to corroborate Phil Smith’s account.
H. June 3 Interview of Kedric Smith
20
Shannon Miles, Senior Employee Relations Manager, testified that, on June 3, she
interviewed Kedric Smith. As part of the interview, she asked:
Has C.J. tried to solicit you for the Union while you were working on the floor
(on the clock)?25
(GC Exh. 5 at 6).
I. June 9 Written Warning to Jennifer Smith
30
1. Final Warning Notice
On June 9, the Company issued Jennifer Smith a final warning, which provided:
On 6/8/2011, Stacey Williams and Jennifer Smith got into a verbal altercation 35
wherein Jennifer called Stacey a “house n****r,” . . . . This is in violation of
OHL’s anti-harassment and non-discrimination policy. . . .
(R. Exh. 2).
40
2. Knowledge of Smith’s Union Activities
Jennifer Smith distributed Union handbills and literature, and solicited coworkers to
support the Union. She testified for the Union at the prior unfair labor practice hearings. She
estimated that she collected 50 signed Union authorization cards. She recollected wearing Union 45
hats and shirts to work. OHL admits knowing about these activities. (GC Exh. 36; Tr. 475).
JD(ATL)–12–12
8
3. Events Leading to the Final Warning
Jennifer Smith testified that, on June 8, coworker Stacey Williams became childishly
upset over several missing red pens. She indicated that, before the ruckus, she retrieved a box of 5
red pens from the supply area. She reported that, subsequently, Williams became irate that the
red pen supply had become depleted. She said that she declined to acknowledge his demand for
the pen pilferer to come forward, in order to avoid a possible clash with an unstable coworker.
She stated that, at some point, Williams, who is also African American, stated, “I guess I have to
call the white people for you to give me those pens back.” (Tr. 480). She stated that Williams, 10
who is vehemently anti-Union, later accused her of calling him a “house nigger,” in response to
his tirade, which she denied. See (GC Exh. 37).
Sheila Childress, who witnessed the altercation, testified that she did not hear Smith call
Williams a “house nigger.” See (GC Exh. 40). She estimated that she stood about 30 feet from 15
the fracas. Jerry Smith, who witnessed the incident, denied hearing Jennifer Smith use profanity.
He averred that he would have heard such a comment, if it were said.
Williams testified that he was looking for a red pen and asked his coworkers for their aid.
He said that, when he was met with silence, he enlisted Brad, his supervisor, to help him. He 20
said that, when Brad arrived, Jennifer Smith relinquished several pens. He recalled her stating,
“you’re always starting stuff,” and “[you’re] nothing but a house nigger,” after Brad left.
Shirley Milan claimed that she witnessed Smith call Williams a “house nigger.” She
averred that she stood 4 feet away, when the comment was made. See also (R. Exh. 11). She 25
acknowledged, on cross-examination, that she previously accused Smith of threatening her with
a knife, but, that OHL found that this accusation was unfounded. (Tr. 938). She admitted that
she does not get along with Smith, whom she finds controlling.
Because Jennifer Smith, Childress and Jerry Smith denied that Jennifer Smith called 30
Williams a “house nigger,” and Williams and Milan provided opposite testimony, I must make a
credibility determination. I credit Jennifer Smith’s denial. First, I found her to be an honest
witness, who was cooperative during all phases of her examination. Second, her testimony was
consistent with Childress’ and Jerry Smith’s credible accounts. Third, Williams was a confusing,
hostile, and argumentative witness, whose testimony was disjointed. Finally, I found Milan, who 35
corroborated Williams’ account to be a biased witness, who previously made an unsubstantiated
claim that Smith threatened her with a knife, and who also conceded that she dislikes Smith.
J. June 14 – Petition for Second Election
40
On June 14, in Case 26–RC–8635, the Union filed a petition with the Board, which
sought a new election at the facility. (U. Exh. 14). The petition covered 300 employees. (Id.).
JD(ATL)–12–12
9
K. June 14 - Carolyn Jones’ Termination
1. Termination Letter
On June 14, the same date that the Union’s election petition was filed, Jones, a lead 5
Union organizer, was fired. Her termination letter provided:
Effective immediately, your employment with OHL is terminated based on your
violations of the OHL policies listed below. Each of these violations
independently justify your termination.10
Violation of the company’s conduct guidelines regarding failure to cooperate with
an internal investigation, including: failure to be forthright, open or truthful;
withholding information or evidence concerning matters under review or
investigation; fabricating information or evidence or conspiring to do so.15
Violation of the company’s Anti-Harassment policy through verbal conduct that
denigrates or shows hostility or aversion toward an individual due to race. . . .
(GC Exh. 14).20
Senior Employee Relations Manager Miles testified that she made the decision to fire
Jones. She stated that, although she initially investigated whether Phil Smith had threatened her,
she concluded that he was innocent, and determined that Jones had asked employees to sign a
blank sheet of paper and then fraudulently filled in a statement about the threat above their25
signatures. She added that, during the course of this investigation, she discovered that Jones had
repeatedly called Lee Smith a “UT,” an acronym for “Uncle Tom.” She stated that these actions
violated OHL’s policies. She claimed that she decided to fire Jones on June 13, the day before
the Union’s petition was filed.
30
I discredit Miles’ testimony; her demeanor was cagey and untruthful. She was an
uncooperative witness, who often sparred during cross-examination. Her testimony was marked
by extensive pauses, when faced with difficult questions, and she often failed to answer key
questions. I do not, as a result, credit her contention that she was unaware that the Union had
filed its petition, when she decided to fire Jones. Moreover, as will be discussed under my 35
Wright Line analysis, OHL’s discharge rationale was pretextual.
2. OHL’s Knowledge of Jones’ Union Activities
OHL conceded that it knew that Carolyn Jones was an active Union organizer. (Tr. 58; 40
GC Exhs. 7–9). She handbilled, solicited coworkers and gathered 80 authorization cards.
3. Discharge Reason #1 – Fabricating Evidence
OHL accused Jones of falsifying a statement, which described Phil Smith’s May 26 45
threat. It alleged that she fabricated evidence by: (1) asking coworkers to sign a blank statement;
(2) then fraudulently placing a statement before their names; and (3) finally, submitting the
JD(ATL)–12–12
10
statement to OHL, in order to instigate Phil Smith’s discipline.
Carolyn Jones credibly testified that, after Phil Smith told her to “watch her back,” she
prepared a witness statement and asked her coworkers to sign it. She indicated that the statement
was signed by Troy Hughlett, Annie Ingram, Kedric Smith, and James Bailey, and, thereafter, 5
was submitted to OHL. See (GC Exhs. 10, 12–13, 57).
Ingram testified that she signed Jones’ statement, which accurately described the
incident. She stated, however, that she was later interviewed by Regional Human Resources
Director Young about the incident, who gave her a blank piece of paper to sign. She stated that 10
Young subsequently inserted text in front of her signature to create a fraudulent statement against
Jones, which claimed that Jones gave her a blank statement to sign. See (GC Exh 23). I credit
her testimony on these points.
Hughlett testified that, although he did not carefully review Jones’ statement, it had text, 15
beyond signatures. He said that he trusted her account and did not need to carefully read it. He
acknowledged, however, that he subsequently signed another statement, which indicated that he
signed a blank statement for Jones. He disavowed the truth of this second statement and
explained that he felt pressured into signing it after a lengthy examination by OHL, and solely
executed it in order to end his interrogation. See (GC Exh. 18). I credit his testimony on these 20
matters.
Bailey stated that Jones subsequently approached him and asked him to sign a statement,
which he did. See also (GC Exhs. 19–20). He indicated, however, that, on June 6, Young
summoned him to her office, and handed him a prepared statement for his signature, which he 25
signed without close inspection. See (GC Exh 21). The June 6 statement provided:
James states that at the time he signed the paper was blank. He [has] never seen
or read Carolyn’s statement. . . .
30
(Id.). He indicated that he signed the June 6 statement under duress, which was prompted by
OHL’s ongoing interrogations. I credit his testimony on these points.
Kedric Smith stated that, after the incident, Jones gave him a piece of paper that just had
names on it, and asked him to sign it. When asked, however, “was there anything written above 35
the signatures?” he responded;
I couldn’t tell you that because I – the only thing I focused on was the names. I
didn’t know that there was an actual statement behind it for the simple fact that I
had just seen the names and just thought that it was a list of witnesses. So I didn’t 40
know that it was a statement on it.
(Tr. 1054). I found his recall on these issues to be poor, and afforded his testimony little weight.
In crediting Ingram’s, Hughlett’s, and Bailey’s testimonies, I rely upon several factors. 45
First, their demeanors were truthful. Second, it is improbable that they would collectively invent
JD(ATL)–12–12
11
a tale that OHL fabricated evidence against Carolyn Jones, and then risk its wrath by testifying
against it, unless their accounts were truthful. At the time of the hearing, they had neither been
disciplined, nor had they been identified as strong Union advocates. They, as a result, had
everything to lose by providing this testimony against OHL, and very little to gain. Their
willingness to accept this significant risk, without any obvious evidence of benefit, enhances 5
their credibility. Third, it is plausible that, after lengthy interrogations by the Human Resources
department about a controversial matter involving the Union, employees could easily be coerced
into signing a statement of their employer’s choosing. Lastly, their accounts are consistent with
the actions of an entity that has already expended tremendous resources to combat the Union’s
organizing drive.10
4. Discharge Reason #2 - UT Comments
a. UT Comments to Lee Smith
15
OHL accused Jones, who is African American, of calling Lee Smith, an African
American coworker, a “UT,” i.e. an “Uncle Tom.”5 OHL’s Anti-Harassment Policy prohibits,
inter alia, harassment based upon race, color and other protected characteristics. (R. Exh. 6).
Under the policy, harassment includes:
20
 Epithets, slurs or negative stereotyping;
 Threatening intimidating or hostiles acts;
 Denigrating jokes . . . .
(Id.). The OHL Handbook sets forth a progressive disciplinary procedure, which includes the 25
following successive punishments: verbal warning; written reprimand; suspension; and
termination. (GC Exh. 35). The Handbook further provides that termination is warranted when:
In cases in which . . . [progressive discipline] has failed to correct unacceptable
behavior or performance, or in which the performance issue is so severe as to 30
make continued employment with OHL undesirable . . . .
(Id.).
Jones denied calling Lee Smith a “UT.” See also (GC Exhs. 11, 13). She did 35
acknowledge, however, that the term is periodically used at the facility amongst African
American employees, and that she has said it before. Dotson testified that he never witnessed
Jones call Lee Smith a “UT.” See (GC Exhs. 24, 59).
Lee Smith testified that Carolyn Jones called him a “UT” several times during the spring 40
of 2011, before he asked her on May 17 what she meant. He said that, when she answered that it
meant “Uncle Tom,” he was deeply hurt. He stated that he then reported her actions to Human
Resources. He added that she began calling him a “UT,” after he voiced his Union opposition.

5 It is undisputed that the phrase "Uncle Tom" is a racial epithet for a person, who is excessively subservient to
perceived authority figures, and often is used to negatively describe African American persons, who are
believed to be behaving subserviently to Caucasian people.
JD(ATL)–12–12
12
Jennifer Sims, another employee, recalled Lee Smith describing to her what occurred,
when he asked Carolyn Jones what “UT” meant. She recollected this dialogue:
He said that as he [left] . . ., Carolyn was already outside and she called him UT 5
again. And this time he turned and asked her . . . what it meant. And she called
him an Uncle Tom. And he got upset. He was like what? And so he got ready to
walk away, and he turned back to her, and mentioned he wasn’t an Uncle Tom,
his faith isn’t in a company, his faith is in God. . . . And he stormed away and told
her . . . we have nothing else to discuss . . . . And he got in his truck and left . . . . 10
(Tr. 832).
Because Lee Smith testified that Carolyn Jones called him a “UT,” and Jones denied this
statement, I must make a credibility determination. I credit Lee Smith; he was forthright and his 15
offense appeared genuine and lasting. It is implausible that he would have concocted a story
about this incident. Jones’ admitted willingness to use this racial epithet against others suggests
that she likely used this epithet against Lee Smith, given his open opposition to the Union.
b. Other Sexually and Racially-Oriented Comments20
(i) Comparable Conduct Receiving Discipline
OHL’s records show that it meted out the following discipline for comparable offenses:
25
Employee Date Incident Discipline
A. Burgess 1/25/2006 Usage of profanity against a supervisor Verbal Discussion
B. Newberry 1/21/2010 Drew picture of coworker calling her “snitch #1” Final Warning
S. Northington 4/12/2010 Called a coworker a “silly bitch” Written Warning
K. Hughes 7/2/2010 Inappropriate language to a coworker. Final Warning
H. Quarles 7/2/2010 Inappropriate language to a coworker. Final Warning
R. Williams 9/1/2010 Sexual harassment of a subordinate Written Perf. Counseling
A. Burgess 9/27/2010 Profanity at coworker, while pointing pen at him. Discharge
K. Hughes 11/8/2010 Usage of profanity to coworkers Three-day suspension
J. Smith 6/9/2011 Calling a coworker a “house nigger” Final Warning
K. Hughes 8/26/2011 Told coworker that he would “rip her shirt off.” Final Warning
(GC Exhs. 25, 27, 30, 77–79; R. Exh. 2, 21).
(ii) Comparable Conduct Not Receiving Discipline6
30
Jill McNeal, an African American employee, testified that, Phil Smith, a Caucasian
employee, referred to her as a “monkey on a stick,” in front of Supervisor Steele. She related
that this comment prompted significant laughter. She indicated that she did not report this racial
slur to upper management because she thought that it would be ignored. Rayford stated that she,
and most of her department, witnessed the incident. Phil Smith and Steele denied the incident.35

6 Carolyn Jones said that 95 percent of the workforce is African American and the usage of racial slurs, e.g.
nigger, is commonplace.
JD(ATL)–12–12
13
Carolyn Jones testified that, in 2009, at a group meeting, Phil Smith called James Griffin
a “faggot ass.” Undenise Martin, another employee, corroborated this testimony. Phil Smith
denied calling Griffin this name.
5
I discredit Smith’s denials, and find that he used the epithets, “monkey on a stick” and
“faggot ass.” I found the testimonies of McNeal, Rayford, Jones, and Martin to be reliable.
L. June 22 – Confiscation of Union Materials
10
Rayford testified that, on June 22, she placed Union organizing literature in the break
area. She indicated that she later observed Operations Supervisor Alfreda Owens confiscating
this literature.7 She stated that Owens solely confiscated the Union materials and left the
remaining literature (e.g. Avon catalogs and newspapers) untouched. Herron corroborated her
testimony. I credit Rayford’s and Herron’s testimony; I found each to be credible.15
M. June 28 – Captive Audience Meeting
Jennifer Smith testified that, on June 28, OHL conducted another captive audience
meeting, where Karen White, Coleman, Phil Smith, and Young addressed 40 employees. She 20
stated that White advocated against unionizing. She related that Coleman told employees that
the Union was solely interested in their dues and would prompt a strike. She recalled that
Tondra Mitchell commented that, if the Union supporters were so unhappy, they should seek
other employment. She stated that Phil Smith replied, “exactly, that’s what I’m talking about,”
and that Young fell over laughing. Childress and Jerry Smith corroborated her account. 25
Phil Smith stated that, when Mitchell asked whether Union supporters should resign, he
replied that, “I can’t answer that question.” He denied encouraging anyone to resign.
Mitchell testified that, when she asked Phil Smith that, if employees were so unhappy, 30
why don’t they just leave, he solely responded that he could not answer the question. She did not
recall Young laughing. Coleman testified that he recalled Mitchell’s question, but, recollected
Phil Smith responding that she should ask the employees. He added that he did not recall Phil
Smith saying, “my point exactly.” He indicated that he thought that he would have remembered
such a comment, if it was said. White recalled Mitchell’s query, but, stated that Phil Smith told 35
her to ask employees that question. She denied that he responded, “my point exactly.” Young
testified that she generally recalled Mitchell’s statement, but, did not remember any manager’s
response, and denied falling down laughing.
I credit Jennifer Smith, Childress, and Jerry Smith, who were highly credible, over 40
OHL’s witnesses. As stated, I found Phil Smith and Coleman to be less than credible.

7 OHL’s counsel credibly explained that Owens was subsequently fired, and that he was unable to subpoena her
to attend hearing. (Tr. 1349). He contended, as a result, that he was unable to rebut this testimony.
JD(ATL)–12–12
14
N. July 14 – Captive Audience Meeting
Hughes testified that, on July 14, he attended a captive audience meeting in the Hewlett
Packard break area, which was conducted by White and Phil Smith. He recalled that this 5
meeting focused on the salaries of the Union’s staff. He added that, when he asked White what
her salary was, she became irate and called him a “rabble rouser,” and Phil Smith told him to
“shut up.” He recollected that, when he asked Phil Smith what he was going to do, Smith
answered, “I’m going to get you on subordination and get you out of here.” He averred that he
then told Smith that it was an open meeting and threats were inappropriate.10
Phil Smith testified that, during White’s presentation, Hughes posed an unending string
of questions and intentionally interrupted her. He stated that, when he politely asked him to stop,
Hughes asked him whether he was going to take him outside. He indicated that he then replied
that he would address the matter through OHL’s disciplinary system. I credit Hughes, a highly 15
credible witness, over Phil Smith, a witness with diminished credibility.
III. ANALYSIS
A. Independent 8(a)(1) Allegations20
1. Interrogation8
OHL unlawfully interrogated employees. On May 11, Wright summoned Shorter to her
office and asked whether Rayford was talking to her about the Union during working time. On 25
June 3, Senior Employee Relations Manager Miles asked Kedric Smith, an employee, whether
Union advocate Carolyn Jones solicited him to support the Union during working time.
In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that the
following factors determine whether an interrogation is unlawful:30
(1) The background, i.e. is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual 35
employees?
(3) The identity of the questioner, i.e. how high was he in the company
hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to
the boss’s office? Was there an atmosphere of unnatural formality?40
(5) Truthfulness of the reply.
Id. at 939. In applying these factors, however, the Board concluded that:

8 These allegations are listed under paras. 9(a), 11 and 14 of the complaint.
JD(ATL)–12–12
15
In the final analysis, our task is to determine whether under all the circumstances
the questioning at issue would reasonably tend to coerce the employee at whom it
is directed so that he or she would feel restrained from exercising rights protected
by Section 7 of the Act.5
Id. at 940.
For several reasons, I find that Wright and Miles committed unlawful interrogations.
First, there is an extensive history of Union hostility, as demonstrated by the instant case, Ozburn 10
I and Ozburn II. Second, both Wright and Miles appeared to be asking questions, in order to
assess whether OHL could discipline Union advocates Rayford and Carolyn Jones for matters
connected to their Union activities. Third, both Miles and Wright are significantly higher in the
corporate hierarchy than the interrogated employees. Lastly, the questioning took place in the
Human Resource department’s offices, as opposed to the warehouse floor, which likely 15
amplified the intimidation level.
2. Surveillance9
OHL engaged in unlawful surveillance. On May 25, Coleman and McNamee observed 20
Carolyn Jones, Dotson, and Jerry Smith distribute Union organizing materials to employees.
An employer violates Section 8(a)(1), when it “surveils employees engaged in Section 7
activity by observing them in a way that is ‘out of the ordinary’ and thereby coercive.” Aladdin
Gaming LLC, 345 NLRB 585, 586 (2005). Indicia of coerciveness, include the “duration of the 25
observation, the employer’s distance from its employees while observing them, and whether the
employer engaged in other coercive behavior during its observation.” Id.
Both Coleman and McNamee observed Union organizers distribute leaflets to employees
on May 25. Their observation lasted several minutes, took place from a close vantage point, was 30
out of the ordinary,10 and likely dissuaded several employees from interacting with the Union’s
organizers, out of fear of reprisal. Such activity violated the Act.
3. Impression of Surveillance11
35
OHL unlawfully created the impression that employees’ Union activities were under
surveillance. On May 11, Wright told Shorter that she knew that Rayford was soliciting her on
behalf of the Union.
An employer creates an unlawful impression of surveillance, when reasonable employees 40
would assume that their union activities have been monitored. Stevens Creek Chrysler, 353
NLRB 1294, 1295–1296 (2009). Where an employer tells employees that it knows about their
union activities but fails to cite its information source, Section 8(a)(1) is violated because

9 This allegation is listed under paras. 10 and 14 of the complaint.
10 It was more than coincidental that McNamee appeared just as the leafleting began, and Coleman appeared
immediately after McNamee left.
11 This allegation is listed under paras. 9(b) and 14 of the complaint.
JD(ATL)–12–12
16
employees are left to speculate about how such information was obtained and assume that
surveillance occurred. Id. at 1296. If an employer tells employees that it learned of their union
activities from a specific employee, such comments are generally lawful, and do not lead one to
assume that surveillance has occurred. Park 'N Fly Inc., 349 NLRB 132, 133 (2007).
5
Wright commented that OHL knew that Shorter and Rayford were discussing Union
affairs at the facility, but, failed to identify her informant. This statement, as a result, left Shorter
to speculate about OHL’s information source and reasonably conclude that it was monitoring
their discussions; and, accordingly, created an unlawful impression of surveillance.
10
4. Confiscation of Union Materials12
OHL violated the Act, when it confiscated Union materials. Phil Smith, Nelson, and
Owens confiscated Union materials from break areas. Employees generally have the Section 7
right to possess union materials at work, absent evidence that their employer restricts possession 15
of other personal items, or that possession of union materials interferes with production or
discipline. Brooklyn Hospital-Caledonian Hospital, 302 NLRB 785, 785 fn. 3 (1991). An
employer, thus, violates the Act by confiscating union literature and materials from employees.
Ozburn I, supra; Brooklyn Hospital-Caledonian Hospital, supra. Given that there is no evidence
that OHL restricted the possession of other personal items, or that the Union materials at issue 20
interfered with production or discipline, OHL’s repeated confiscation was unlawful.
5. Telling Union Supporters to Resign13
OHL violated the Act, when it told Union supporters to resign. At a June 28 meeting, an 25
employee posed the question that, if Union supporters were so unhappy, why didn’t they just
quit? When Phil Smith replied, “my point exactly,” he invited Union supporters to quit, which
was unlawful. See, e.g., Solvay Ironworks, 341 NLRB 208 (2004).
6. Threats1430
OHL violated the Act, when Phil Smith threatened employees. On April 29, he
threatened Hughes, when he hovered over him for 15 minutes, in response to his questions about
Union issues, and warned that, “I got something for him.” See F. W. Woolworth Co., 251 NLRB
1111, 1112–1113 (1980) (conduct is protected, ever where employee repeatedly and loudly 35
insists upon speaking at a captive audience meeting, in contravention of a direct order to cease
and desist). On May 26, he threatened Carolyn Jones, when he responded to her commentary
about a captive audience meeting by stating that, “she better watch her back.” See Jordan Marsh
Stores Corp., 317 NLRB 460, 462–463 (1995); Trover Clinic, 280 NLRB 6 fn. 1 (1986) (“keep a
low profile” and “be quiet about it”); Union National Bank, 276 NLRB 84, 88 (1985) (“watch 40
yourself”). On July 14, at a captive audience meeting, Hughes responded to a presentation about
Union staff salaries, by asking White her salary, which prompted Phil Smith to threaten
disciplinary action. See F. W. Woolworth, supra.

12 These allegations are listed under paras. 7(a), 8, 12 and 14 of the complaint.
13 This allegation is listed under paras. 7(d) and 14 of the complaint.
14 These allegations are listed under paras. 7(b), (c) and (e), and 14 of the complaint.
JD(ATL)–12–12
17
B. 8(a)(3) Allegations15
OHL violated Section 8(a)(3), by issuing a final warning to Jennifer Smith and firing
Carolyn Jones. The framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 5
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is the appropriate standard:
Under that test, the General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivating factor in the
[discharge]. The elements commonly required to support such a showing are 10
union or protected concerted activity by the employee, employer knowledge of
that activity, and union animus on the part of the employer.
If the General Counsel makes the required initial showing, the burden then shifts
to the employer to prove, as an affirmative defense, that it would have taken the 15
same action even in the absence of the employee's union activity. To establish
this affirmative defense, “[a]n employer cannot simply present a legitimate reason
for its action but must persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the protected activity.”
20
Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007) (citations omitted).
To meet this burden, “an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363, 25
1366 (2000). If the employer’s proffered defenses are found to be a pretext, i.e., the reasons
given for its actions are either false or not, in fact, relied on, the employer fails by definition to
show that it would have taken the same action for those reasons, and there is no need to perform
the second part of the Wright Line analysis. On the other hand, further analysis is required if the
defense is one of “dual motivation,” that is, the employer defends that, even if an invalid reason 30
might have played some part in the employer’s motivation, it would have taken the same action
against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
1. Jennifer Smith’s Final Warning35
OHL violated the Act, when it issued Jennifer Smith a final warning. The record
demonstrates that she engaged in substantial Union activity,16 which was known to OHL.17 The
record reveals strong evidence of animus, which includes the meritorious interrogation,

15 These allegations are listed under paras. 13 and 15 of the complaint.
16 As noted, she distributed Union handbills and literature, openly encouraged coworkers to support the Union,
previously testified on behalf of the Union, collected 50 signed Union authorization cards, and wore Union
stickers, buttons, hats and shirts.
17 See (GC Exh. 36); Tr. 475.
JD(ATL)–12–12
18
surveillance, impression of surveillance, threat and confiscation of Union literature allegations.
An inference of animus can also be gleaned from the false rationale that OHL proffered for
Smith’s final warning, i.e. that she called Stacey Williams a “house nigger.”18 See Electronic
Data Systems Corp., 305 NLRB 219 (1991) (false discharge reasons demonstrate animus).
5
I find, therefore, that counsel for the Acting General Counsel has proven that: Jennifer
Smith engaged in Union activity; OHL was aware of such activity; and Union animus was a
“substantial or motivating factor” behind the final warning. Accordingly, he has met his initial
burden of persuasion under Wright Line.
10
Given that I previously found that Jennifer Smith did not commit workplace crime that
gave rise to her final written warning (i.e. calling Stacey Williams the alleged epithet), as well as
my consideration of the many factors that led me to find animus and knowledge, I conclude that
OHL’s proffered reason was a mere pretext and that antiunion animus motivated its actions.
Accordingly, no further analysis of its defenses is necessary for, as the Board stated in Rood 15
Trucking Co., 342 NLRB 895, 898 (2004):
A finding of pretext defeats any attempt by the Respondent to show that it would
have discharged the discriminatees absent their union activities. This is because
where “the evidence establishes that the reasons given for the Respondent’s 20
actions are pretextual—that is, either false or not in fact relied upon—the
Respondent fails by definition to show that it would have taken the same action
for those reasons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis.” Golden State Foods Corp.,
340 NLRB 382, 385 (2003). . . .25
2. Carolyn Jones’ Discharge
OHL violated the Act, when it fired Carolyn Jones. The record demonstrates that she
engaged in substantial Union activity,19 which was known to OHL.20 There is also extensive 30
evidence of animus, which includes the Section 8(a)(1) violations found herein, and Jennifer
Smith’s unlawful discipline. I also note that animus can be gleaned from the close timing
between Jones’ discharge and the filing of the Union’s election petition, which both occurred on
the same date. See Adco Electric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir.
1993) (suspicious timing supports an inference of animus). 35
Thus, I find that counsel for the Acting General Counsel has proven that: Carolyn Jones
engaged in Union activity; OHL knew of such activity; and Union animus was a “substantial or
motivating factor” behind her firing. Accordingly, he has met his initial burden of persuasion
under Wright Line, and I will now consider the alleged discharge reasons.40

18 As stated, I fully credit her denial of this allegation.
19 Since the inception of the Union’s organizing drive, Jones has distributed handbills and Union organizing
materials, solicited coworkers to sign authorizations cards, attended Union meetings, spoke on behalf of the
Union at OHL’s captive audience meetings, and obtained roughly 80 signed Union authorization cards.
20 See (GC Exhs. 7–9); Tr. 58.
JD(ATL)–12–12
19
OHL’s asserted discharge reasons are pretextual. It advanced 2 independent reasons, in
support of Jones’ discharge: fabrication of evidence; and violation of its racial harassment policy.
OHL’s allegation that Carolyn Jones fabricated evidence connected to the altercation
between her and Phil Smith on May 26 was pretextual. As discussed, it accused Carolyn Jones 5
of fabricating a witness statement, which alleged that Phil Smith threatened her to “watch her
back.” First, the majority of the witnesses stated that they signed a witness statement that had
text above their signatures, although they admittedly had a poor recall of the statement’s
contents; this deeply undercuts the fabrication allegation. These witnesses also credibly stated
that OHL was so zealous in its pursuit of Carolyn Jones that it actually coerced them into signing 10
false statements. Second, Phil Smith threatened Carolyn Jones in the manner described by her
statement. Third, the statement does not appear to have been created after the fact, given that the
signatures are located immediately after the text and about a third of the way down the page. I
find it implausible that Jones created an after-the-fact statement, and correctly predicted where
witness signatures would ultimately fit. Lastly, if OHL were genuinely motivated to address 15
concerns about false statements, it would have also disciplined Phil Smith, who falsely denied
threatening Carolyn Jones, and committed a more serious transgression.21 Based upon the
foregoing, I find that this discharge reason was pretextual.
OHL’s assertion that Carolyn Jones’ “UT” comments served as an independent basis for 20
her termination is also pretextual. Although I find that Jones made the comments at issue, OHL
addressed this offense much more severely than prior similar offenses; such disparate treatment
demonstrates pretext. Specifically, in the 10 prior disciplinary actions involving profanity and
racial epithets, OHL issued 8 warnings, a suspension and a discharge; with the suspension arising
from recidivism, and the discharge arising from both recidivism and a connected assault. In this 25
case, Jones was neither a recidivist nor did she commit an assault. If OHL genuinely wanted to
discipline her consistently, her misconduct would have generated the same warning that it
uniformly issued to others.22 See La Gloria Oil and Gas Co., 337 NLRB 1120, 1124 (2002)
(disparate disciplinary treatment demonstrates pretext). Second, Carolyn Jones’ firing is deeply
inconsistent with OHL’s willingness to completely overlook the several grossly offensive 30
statements made by Phil Smith, a high-level supervisor, to subordinate employees.23 Lastly,
OHL’s decision to terminate Carolyn Jones for this offense deviated from its progressive
disciplinary system, which sets forth a lesser penalty for her violation, and allegedly espouses the
merits of rehabilitation. (GC Exh. 35).
35
I find, as a result, that its proffered reasons for Jones’ discharge were mere pretexts and
that antiunion animus motivated its actions. Accordingly, no further analysis of
OHL’s defenses is necessary. Rood Trucking Co., supra at 898.
40

21 As noted, several independent employee witnesses agreed that he threatened Jones.
22 In an effort to respond to the disparate treatment allegation, OHL offered several examples of workplace
misconduct, which prompted immediate firings. These example were, however, vastly more severe than
Carolyn Jones’ transgression, and, thus, not comparable. See (R. Exhs. 32–33 (workplace violence, theft of
time, and sexually explicit misconduct)).
23 Without disciplinary consequences, and in front of several witnesses, Phil Smith brazenly called an African
American worker a “monkey on a stick,” and another employee a “faggot ass.”
JD(ATL)–12–12
20
IV. REPRESENTATION CASE
A. Petition and Stipulated Election Agreement
On June 14, in Case 26–RC–8635, the Union filed an RC Petition seeking to represent 5
OHL’s employees. (U. Exh. 14). On June 23, the parties entered into a Stipulated Election
Agreement, whereby they agreed to allow the Board to conduct an election in the following unit:
INCLUDED: All full time custodians, customer service representatives, senior
customer service representatives, cycle counters, inventory 10
specialists, maintenance, maintenance techs, material handlers,
operators 1, operators 2, operates 3, quality assurance coordinators,
returns debts, and team leads employed by the Employer at [the
facility] . . . .
15
EXCLUDED: All other employe[e]s,24 including, office clerical and professional
employees, guards, and supervisors as defined in the Act.
(U Exh. 13). As an addendum to the Agreement, the parties agreed that:
20
[T]he job classification of Administrative Assistant is in dispute and [will not be]
place[d] in the inclusions or the exclusions of the Stipulated Election Agreement
. . . . [T]he two administrative assistants Tia Harris and Rachel Maxie will vote
subject to challenge by the Union . . . . If the challenged ballots . . . are
determinative to the outcome of the election, the parties have agreed to resolve the 25
matter in a post-election hearing . . . .
(U. Exh. 13A).
B. Second Election30
On July 27, the Board held an election, which the Union won by a single vote. The tally
provided:
Category Quantity
Approximate number of eligible voters 347
Number of votes cast for the Union 165
Number of votes cast against the Union 164
Number of challenged ballots 14
35
(U. Exh. 23).

24 Contrary to OHL’s position in its brief (see R. Br. at 43, n. 19), I find that, although the stipulated election
agreement, states under the unit exclusion paragraph, “[a]ll other employers,” this is a typographical error and
the parties clearly excluded, “all other employees.” (U. Exh. 13). First, excluding other “employers” from a
unit of OHL employees is absurd. Second, the subsequent usage of the phrase, “office clerical and professional
employees, guards and supervisors” as examples of excluded personnel indisputably clarifies that the parties’
meant to say “employees,” as opposed to “employers.” Lastly, if OHL truly believed that the exclusion was
supposed to say something other than “employees,” it would have explained why it meant to say “employers.”
JD(ATL)–12–12
21
C. Union Objections25
On August 3, the Union filed 20 objections to OHL’s conduct during the critical period5
preceding the second election, i.e., the period between the first election on March 16, 2010, and
the second election on July 27.26 (GC Exh 1(q)). Many of these objections duplicated the
complaint allegations, which I have already found unlawful. The parties presented argument
concerning these objections in their posthearing briefs.
10
1. Objection 1
Objection 1 alleged that OHL engaged in unlawful surveillance of Union activities, in the
manner described by the complaint. Given that I have found these allegations unlawful, this
objection is valid. 15
2. Objection 2
Objection 2 alleged that OHL unlawfully interrogated employees. The Union contended
that this objection was based upon the complaint’s interrogation allegations, which I have found 20
unlawful. Accordingly, I find merit to this objection.
3. Objection 3
Objection 3 alleged that OHL issued Jennifer Smith a written warning, in retaliation for 25
her Union activities. Given that I have found the warning to be unlawful, this objection is valid.
4. Objection 4
Objection 4 alleged that OHL conducted captive audience meetings within 24 hours of30
the election. This objection focused on an alleged meeting between Senior Human Resources
Coordinator Melissa Castillo and 3 employees within 24 hours of the election.
Glorina Kurtycz testified that, within hours of the election, she saw Castillo meeting with
3 employees in the break area. She stated that Castillo asked her for a sample ballot, which she 35
declined to provide. Castillo testified that she attended the election, in order to offer translation
for Spanish-speaking employees, but, did not recall speaking to the 3 employees at issue.
In general, the Board has held that employers and unions are prohibited from “making
election speeches on company time to massed assemblies of employees within 24 hours before 40
the scheduled time for conducting an election.” Peerless Plywood, 107 NLRB 427 (1953). The
Board has held, however, that this 24-hour rule “was not intended to . . . prohibit every minor
conversation between a few employees and a union agent or supervisor for a 24-hour period
before an election.” Business Aviation, Inc., 202 NLRB 1025 (1973). The Board has, as a result,

25 At the hearing, the Union withdrew objection 7. (Tr. 1603).
26 Star Kist Caribe, Inc., 325 NLRB 304 (1998) (second critical period runs from first election to second).
JD(ATL)–12–12
22
explained that the rule does not prohibit employers and unions from making campaign speeches
during the 24-hour period, if employee attendance is voluntary and on their own time. Foxwoods
Resort Casino, 352 NLRB 771, 771, 780–781 (2008).
Even assuming arguendo that Kurtycz is fully credited, the Union failed to offer 5
sufficient evidence regarding the substance of Castillo’s discussion, or address whether
employees voluntarily initiated the conversation on their own time. The Union has not,
consequently, demonstrated that this meeting violated Peerless Plywood, and this objection is
overruled.
10
5. Objection 5
Objection 5 alleged that OHL stated that, it would “bargain from scratch.” Jerry Smith
credibly testified that, at a June 28 meeting, Coleman made this statement:
15
There’s no guarantee that [I] can . . . get Mr. Brennan to sign a guarantee for
benefits . . . . [W]hen you get to the bargaining table you have to start from
scratch. And even though you bargain from scratch, you could already lose what
you already have.
20
(Tr. 618). Coleman denied these statements, and White failed to recall the specific meeting.
As a threshold matter, I credit Jerry Smith, who was a believable and straightforward
witness, with a strong recall, over Coleman, who was less than credible. I also found Coleman’s
recollection of the relevant events to be poor. White’s testimony about this issue was too general 25
to be afforded much, if any, weight.
The Board and Courts have held that, barring outright threats to refuse to bargain in good
faith with an incoming union, the legality of any particular statement depends upon its context.
See Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994). Statements made in a coercive 30
context, or designed to threaten employees that existing benefits will be lost if they unionize are
unlawful, inasmuch as they, "leave employees with the impression that what they may ultimately
receive depends upon what the union can induce the employer to restore." Earthgrains Co., 336
NLRB 1119, 1119–1120 (2001). The Board has, as a result, found that statements analogous to
those at issue herein were lawful in certain contexts, while unlawful in others. See, e.g., 35
Jefferson Smurfit Corp., 325 NLRB 280, fn. 3 (1998) (telling employees that benefits "could go
either way" as a result of collective bargaining was lawful); Earthgrains Co., supra (statement
that everything was negotiable once the union was voted in was unlawful in the context of prior
threats to withhold planned wage increases); Noah's Bay Area Bagels, LLC, 331 NLRB 188, 189
(2000) (statements that negotiations would start from “scratch” were unlawful in the context of 40
other unfair labor practices).
Given the many valid unfair labor practices and objections present herein, Coleman’s
comments unlawfully conveyed that employees would only achieve in bargaining “what the
Union could induce the employer to restore.” This objection, as a result, is sustained. 45
JD(ATL)–12–12
23
6. Objection 6
Objection 6 alleged that OHL confiscated Union literature from break areas. Given that I
have already found this allegation to be valid, this objection is sustained.
5
7. Objection 8
Objection 8 alleged that OHL aided employee Union opposition by distributing anti-
Union t-shirts. The Union contended that such actions placed “employees in a position of having
to make an observable choice that would reveal [their Union sentiments].” (U. Br. at 17). 10
Jerry Smith credibly testified that, a week before the election, he observed a man loading
boxes of lime green t-shirts bearing the slogan, “no means no,” into Human Resources Manager
Young’s vehicle. Rayford credibly testified that, before the election, she observed Operations
Supervisor Phillips distribute a bright blue, “I can speak for myself and no means no,” t-shirt to 15
Eric Collins, a coworker, by the lockers. She stated that she also saw a box of lime green, “no
means no,” shirts in Supervisor Owens’ office, and saw her giving shirts to 2 coworkers. Such
testimony was corroborated by considerable evidence of employees wearing these shirts in the
facility. Given that I previously found Jerry Smith and Rayford to be highly credible, I credit
their testimony on these issues. I also note that Owens was unavailable to testify to refute their 20
accounts.
The Board has held that offering employees “vote no” buttons, t-shirts or other
paraphernalia is tantamount to an unlawful interrogation, inasmuch as it forces them to make an
open declaration either for or against the Union. See Houston Coca Cola Bottling Co., 256 25
NLRB 520 (1981). This objection is, accordingly, sustained.
8. Objections 9 and 11
Objection 9 alleged that OHL, “threatened . . . employees because of their Union 30
activities.” Objection 11 averred that OHL, “[t]hreatened employees with plant closure,
reduction of work or relocation if the Union won . . . .” The Union asserted that these objections
were based upon OHL’s threats that it would lose customers, if employees unionized.
McNeal testified that she was told, at a captive-audience meeting, that the Fiskars 35
account would “pull out,” if employees unionized. Although she related that such meetings were
attended by Phil Smith, Coleman, and White, she did not identify who made the statement, or
confirm that this statement was not employee-generated. She also indicated that Phil Smith
stated that Hewlett Packard would withdraw, if employees unionized, but, similarly failed to
offer much detail about the comment. I, therefore, afford her testimony concerning these40
statements little, if any, weight. Jerry Smith credibly testified that, at a June 28 meeting, Tammy
Stewart asked White whether OHL would lose clients if it unionized, and that White solely
responded that certain accounts have not, to date, renewed their contracts. He recollected that
Phil Smith added that contract renewal rests within the customer’s sole discretion.
45
JD(ATL)–12–12
24
It is well settled that employer predictions of adverse consequences arising from sources
outside its control are required to have an objective factual basis in order to be found lawful.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617–619 (1969). In the instant case, I find that
White accurately conveyed that certain clients had not yet renewed their contracts, and Phil
Smith truthfully added that customers retained the final decision on contract renewal. These 5
statements were, thus, reasonable and these objections should be overruled.
9. Objection 10
Objection 10 alleged that OHL, “[c]reated the impression of futility of selecting the 10
Union.” This objection was based upon OHL telling employees that discriminatees Kurtycz,
Dotson, and Jerry Smith had been only temporarily reinstated. Such commentary was
technically true at the time, given that the injunction stated that it was “temporary,” until such
time as the Board issued its final order. (GC Exh. 4). This objection, thus, lacks merit.
15
10. Objection 12
Objection 12 alleged that OHL threatened that employees would lose benefits, if they
unionized. This objection was based upon OHL’s comments about the 410K plan.
20
Jerry Smith credibly testified that he attended a meeting, where Human Resources
Representative Dani Bowers told employees that they could not participate in the 401k plan, if
they unionized.27 Rayford corroborated this testimony, which Bowers was not called to refute.
I, therefore, credit Jerry Smith’s unrebutted and corroborated testimony.
25
A company commits objectionable conduct, when it threatens that employees will “be
foreclosed from participating in their current company pension [or retirement] plan,” if they
unionize. Longview Fibre Paper & Packaging, 356 NLRB No. 108 (2011). Bowers’ comments
were, as a result, objectionable.
30
11. Objection 13
Objection 13 alleged that OHL unlawfully fired Carolyn Jones, Stanley Jones and Vicky
Hodges, because of their Union activities.28 Given that I found that Carolyn Jones’ discharge
was unlawful, this component of the objection is valid. 35
12. Objection 14
Objection 14 alleged that OHL solicited Union supporters to resign. Given that I found
that this complaint allegation was unlawful, this objection is valid. 40

27 I denied OHL’s objection that this testimony was inadmissible hearsay. See Fed. R. Evid. 801(d)(2)(agent’s
admissions are not hearsay).
28 No evidence was presented regarding Stanley Jones or Hodges; therefore, I find no merit to these allegations.
JD(ATL)–12–12
25
13. Objection 15
Objection 15 alleged that OHL told employees that, “they would be permanently . . .
replaced, and will not be eligible for food stamps when the union called them out on strike.” The 5
Union filed to adduce any evidence supporting this objection; therefore, it is denied.
14. Objection 16
Objection 16 alleged that OHL “violated the stipulated agreement on . . . releasing of 10
voters.” Union Organizer Ben Brandon testified that, although the Agreement contained a
detailed release procedure, it was inconsistently followed and resulted in one department being
released to vote prematurely and another released belatedly. Given that affected employees still
voted, these isolated issues were de minimis, and not objectionable.
15
15. Objection 17
Objection 17 alleged that OHL “escort[ed] . . . discriminatees to the polls.” Brandon
testified that, while he did not directly observe discriminatees being escorted to the polls by
security officers, he observed Carolyn Jones being admitted to the facility by security. This 20
testimony, although credible, was insufficient to substantiate this objection.
16. Objections 18 and 20
Objection 18 alleged that OHL “created and condone[d] a hostile environment,” while 25
objection 20 alleged that OHL, “engaged in other conduct for which the election should be set
aside.” Given that I have already found that several objections were valid, these catchall
objections, although duplicative, are legitimate.
17. Objection 1930
Objection 19 alleged that OHL destroyed the laboratory conditions of the election by
allowing Administrative Assistants to vote. This issue will be considered under the Challenged
Ballots section, and is not objectionable.
35
D. OHL’s Objections
On August 3, OHL filed 13 objections to the Union’s pre-election conduct. (GC Exh
1(q)). The parties presented connected argument in their posthearing briefs.
40
1. Objections 1 and 2
Objection 1 alleged that the Union made, “inappropriate and inflammatory appeals to
racial prejudice; whereas, objection 2 alleged that the Union made, “inappropriate and
inflammatory appeals to violence.” As will be discussed, these objections are meritless.45
JD(ATL)–12–12
26
a. Inflammatory Leaflet
In support of these objections, OHL cites an exhibit (R. Exh. 20), which was not offered
at the hearing (see (R. Br. at 45; tr. 1201–1203)), and a hearsay statement that an unnamed
employee told White that the unoffered exhibit was distributed in the parking lot by anonymous 5
individuals. Simply put, OHL wholly failed to substantiate this allegation.
b. “UT” Comments
Although Respondent failed to raise this issue in its brief, I note that I did find that 10
Carolyn Jones called Lee Smith a “UT,” in response to his failure to support the Union. There is,
however, insufficient evidence that this statement was disseminated beyond two other voters,
who had already taken a strong position on the election (i.e. Jerry Smith, a staunch Union
supporter, and Jennifer Sims, a staunch OHL supporter). I find, as a result, that the “UT”
comments were insufficient to affect the outcome of the election and not objectionable.15
c. Hughes’ Comments
Operations Manager Vania Washington testified that, a week before the election, she
heard Hughes ask Michael Guy whether he had “heard what Coleman had said during a 20
meeting?” She said that Hughes then told him that Coleman had called Union supporters,
“robbers and killers.”
Operations Manager James Cousino testified that, at a captive audience meeting,
Coleman read aloud a newspaper article concerning a labor dispute at another company, which 25
involved violence. He related that, after the meeting, he heard Hughes state that Coleman had
implied that OHL’s employees were “thugs, gangbangers and killers.” On cross-examination,
however, Cousino acknowledged that the article read by Coleman described the involved union
representatives as “gangbangers, thugs and killers.” He surprisingly denied, however, that
Coleman intentionally drew a connection between the Union involved herein and the 30
“gangbangers, thugs, and killers” described by the article. He stated that, once he told Hughes to
stop discussing the matter, he complied.
Hughes’ comments were reasonable and responded to an article raised by Coleman at a
captive audience meeting. OHL was obviously trying to draw a connection between the Union 35
and the “gangbangers, thugs and killers” described by the article, in order to dissuade employees
from unionizing and associating with alleged thugs. Hughes challenged this assertion in a
reasonable way, and his commentary, which was isolated, was not objectionable.29
2. Objections 3, 4, and 940
Objections 3, 4 and 9 alleged that the Union’s election observers and release personnel
engaged in inappropriate electioneering. Bobby Hill, an employee and OHL observer, testified
that, on July 27, he and the Union’s observer released employees to vote. He indicated that, at
some point, a voter told the Union’s observer that, “it didn’t take me but 15 seconds to know 45

29 It is also debatable whether Hughes, a Union supporter, was a Union agent.
JD(ATL)–12–12
27
how to vote,” and that the Union’s observer responded that he did the right thing, and offered
him a “high five.” He acknowledged, however, that this conversation was not witnessed by
anyone, who had not yet voted.
I do not find that this post-vote conversation was improper electioneering, which, by 5
definition, needs to occur before votes are cast. These objections are, accordingly, overruled.
3. Objections 5, 6, 8 and 12
Objection 5 alleged that the Union issued, “[i]nappropriate instructions to employees not 10
to vote.” Objection 6 alleged that the Union “[told] employees that they were required to vote
for the Union if they signed an authorization card.” Objection 8 alleged that the Union,
“[w]alk[ed] into unauthorized areas . . . to campaign to working employees on election day.”
Objection 12 alleged that the “Union observer display[ed] union insignia at [the] polling location
by removing tape covering insignia before [the] polls closed.” OHL failed to adduce any 15
evidence supporting these objections, or raise these matters in its post-hearing brief. These
objections are, therefore, denied.
4. Objections 7, 10, and 11
20
Objections 7, 10, and 11 alleged that the Union unlawfully threatened pro-OHL
employees with reprisals. Dawn Barnhill, an employee, testified that in July, Hughes observed
her wearing a shirt, which stated “no means no, and I can speak for myself,” and threatened to
rip it off of her. She stated that she reported the incident to her supervisor, Cousino, who
confirmed her account. Hughes consequently received a final warning.25
These objections are invalid. First, as noted, there is no evidence that Hughes is a Union
agent. Second, there is no evidence that his actions, which were isolated, were adopted by the
Union or disseminated in a manner that would affect the election. Lastly, his actions were
mitigated by OHL, when it disciplined him and erased any potential effect on voters. 30
5. Objection 13
Objection 13, a catchall objection, alleged that the Union, “[e]ngaged in conduct that
interfered with employee free choice.” Given that OHL’s other objections were invalid, this 35
objection is similarly overruled.
E. Challenged Ballots
The 10 challenged ballots are described below:3040

30 At the hearing, the parties agreed that 3 additional voided ballots were “properly challenged . . . either because
they were unclear or identified the voter.” (Tr. 1701). They also stipulated that challenge of Vicky Hodge’s
ballot was valid. (GC Exh. 1(q) at 2).
JD(ATL)–12–12
28
Employee Challenged By Reason
Gloria Kurtycz Company Board Reinstatement
Brenda Stewart Union Supervisor
James Brewer Union Retired Part-time
Jerry Smith Company Board reinstatement
Carolyn Jones Board Not on list
Renal Dotson Company Board reinstatement
Rachel Maxie-Chaisson Union Administrative Assistant
Tammy Stewart Union Management
Tia Harris Union Management
Richard James Union Part-time
(GC Exh. 1(aa)).
1. Prior Discriminatees: Kurtycz, Jerry Smith, and Renal Dotson5
The Board affirmed the Administrative Law Judges’ decisions to reinstate Kurtycz, Jerry
Smith, and Renal Dotson. See Ozburn I, supra; Ozburn II, supra. Their challenges were,
therefore, invalid, and their ballots should be counted.
10
2. Carolyn Jones
Given that OHL unlawfully fired Jones and reinstatement is appropriate, her challenge
was invalid, and her ballot should be counted.
15
3. Part-time Employees: Richard James and James Brewer
The Union challenged their ballots, and contended that they are part-time employees,
who were expressly excluded by the Stipulated Election Agreement. OHL avers that the
Agreement is ambiguous regarding their exclusion, they share a community of interest with the 20
unit, and their challenges were, accordingly, inappropriate.
The Stipulated Election Agreement provided:
INCLUDED: All full time custodians, . . . maintenance, maintenance techs, . . . 25
employed by the Employer . . . .
EXCLUDED: All other employe[e]s, including, office clerical and professional
employees, guards, and supervisors as defined in the Act.
30
(U. Exh. 13) (emphasis added). James and Brewer testified that they are part-time maintenance
employees, who work 15 to 18 hours per week. They do not receive the health insurance, dental,
disability, life insurance, or other benefits provided to full-time employees.31

31 Brewer testified that employees must work over 30 hours per week, in order to receive full-time benefits.
JD(ATL)–12–12
29
In Bell Convalescent Hospital, 337 NLRB 191 (2001), the Board held:
It is well settled that, in reviewing a stipulated unit, the Board's function is to
ascertain the intent of the parties with regard to inclusion or exclusion of a
disputed voter and then to determine whether such intent is inconsistent with any 5
statutory provision or established Board policy. If the objective intent of the
parties concerning the questioned portion of the unit description is expressed in
clear and unambiguous terms, the Board will hold the parties to their agreement.
In order to determine whether the stipulation is clear or ambiguous, the Board will
compare the express language of the stipulated bargaining unit with the disputed 10
classifications. The Board will find a clear intent to include those classifications
that match the express language, and will find a clear intent to exclude those
classifications not matching the stipulated bargaining unit description. Under
this view, if the classification is not included, and there is an exclusion for
“all other employees,” the stipulation will be read to clearly exclude that 15
classification. The Board bases this approach on the expectation that the parties
are knowledgeable as to the employees' job title, and intend their descriptions in
the stipulation to apply to those job titles.
Id. at 191 (citations omitted, with emphasis added). 20
Part-time employees were expressly excluded by the Stipulated Election Agreement,
which only included, “[a]ll full time . . . maintenance [and] maintenance techs . . . employed by
the Employer,” while expansively excluding, “[a]ll other employe[e]s.” Given that OHL
obviously knew that it employed part-time maintenance employees when it signed the 25
Agreement, I find that James and Brewer, as part-time employees, were expressly excluded, and
their challenges were valid.32 See Bell Convalescent Hospital, supra, 337 NLRB at 191–192
(excluding “central supply/patient supplies/nurse aide” classification, when the title was not
expressly listed under inclusions and the stipulated election agreement broadly excluded “all
other employees.”); Regional Emergency Medical Services, 354 NLRB 224, 224–225 (2009) 30
(excluding contingent employees from the unit, when the inclusions listed full and part-time
employees and the stipulated election agreement extensively excluded “all other employees.”).
4. Team Leads: Brenda and Tammy Stewart
35
The Union challenged the ballots of Team Leads Brenda and Tammy Stewart; it asserted

32 Even if the language in the Agreement were ambiguous, which it is not, I find that, if OHL intended to include
part-time maintenance employees in the unit, it would taken one of the following steps: inserting “and regular
part-time employees” under inclusions in the Agreement; agreeing that they would vote subject to challenge; or
litigating their inclusion in an R-case proceeding. It is noteworthy that the parties took such a step regarding the
Administrative Assistants, when they expressly stated in a Side Agreement that they would “vote subject to
challenge.” (U. Exh. 13A). OHL’s failure to take a similar step regarding part-time employees suggests that
their exclusion was intentional. Lastly, assuming arguendo that OHL employs other part-time employees
beyond maintenance employees, it is unclear why it neglected to also raise the inclusion of these additional part-
time employees, and solely focused on maintenance employees. Its unexplained failure to encourage other part-
time employees to vote, and then comprehensively litigate their inclusion is inconsistent, and suggests that OHL
is more concerned with election results than the Agreement’s fair construction.
JD(ATL)–12–12
30
that they were supervisory. OHL takes the opposite stance.
a. Brenda Stewart
Brenda Stewart credibly testified that she unloads pallets, receives product from shippers, 5
and retrieves product within the warehouse. She stated that she does not attend supervisory
meetings and lacks disciplinary authority. She denied assigning work to employees.
Wayne Morton, former Senior Operations Manager, credibly testified that Brenda
Stewart is an hourly employee and Team Lead, who performs the same duties as other Team 10
Leads, who were included in the unit. He added that she does not have a private office, uses a
desk located on the shop floor, and is not supervisory.
Steele credibly testified that Brenda Stewart’s duties include: confirming that product is
unloaded; verifying that accurate data is listed on palletized product; and recording inventory on 15
OHL’s system. He stated that all Team Leads perform these tasks. He added that she does not
transfer workers and lacks disciplinary authority.
Herron testified that Brenda Stewart is a managerial employee. However, beyond stating
that she has specialized access to certain areas, she neglected to provide supporting detail.20
b. Tammy Stewart
Tammy Stewart, a Team Lead, who works in the MAM Baby USA department, credibly
denied having the authority to: assign work to Team Leads; recommend discipline; layoff; hire; 25
or recall. She stated that she closes orders, “picks,” “blasts,” loads and unloads trucks, and
receives product. Regarding assignments, she stated:
I assign work . . . if my supervisor . . . releases the work, then I go in [the
system], . . . if they run out, they will come to me if Jim is not around and I will 30
give them more work. . . . So, however many is assigned to go out today if it’s 18,
then I divide those 18 up.
(Tr. 1669) (grammar as in original). She added that she equitably divides assignments, and does
not consider who is better-suited for particular tasks. She averred that assignments are 35
prioritized by the computerized inventory system by shipping date. She stated that she has a
desk in the warehouse.
Steele credibly testified that he supervises Tammy Stewart, who picks, packs, ships, and
closes orders. He stated that all Team Leads perform these tasks. He added that she does not 40
transfer, interview or discipline employees.
McNeal testified that Tammy Stewart is an Operations Supervisor. She said that Tammy
Stewart determines the arrival and departure times for trucks, and schedules breaks.
45
JD(ATL)–12–12
31
Hayes testified that, when she worked in the aerosol department roughly 2-1/2 years ago,
Tammy Stewart periodically filled in for the manager, conducted morning meetings, and
distributed assignments. She stated that other Team Leads reported to Tammy Stewart, who sat
behind a desk, issued orders and trained them. She related that Tammy Stewart did not scan or 5
label inventory, took her breaks in a separate area, and had keys to the buildings.
c. Legal Precedent
Section 2(11) defines a supervisor as:10
Any individual having the authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the 15
exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
The party alleging supervisory status must establish that: the disputed individual possesses at
least one of the supervisory authorities delineated above; and that independent judgment is used 20
in exercising such authority.33 Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006).
“Independent judgment” is defined as judgment that is, “free of the control of others . . . [and]
not . . . dictated or controlled by detailed instructions . . . [including] the verbal instructions of a
higher authority.” Id. at 693.
25
d. Analysis
For several reasons, I find that the Union has failed to show that either Tammy or Brenda
Stewart were supervisory. Because the record fails to reveal any evidence that they exercise the
authority to hire, transfer, suspend, layoff, recall, promote, discharge, reward, or discipline 30
employees, or adjust their grievances, I will solely analyze their authority to assign and
responsibly direct.
(i) Assigning Duties
35
Neither Brenda nor Tammy Stewart exercise independent judgment, when assigning
duties. The Board defines “assign” as:
[T]he act of designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime period), or 40
giving significant overall duties, i.e., tasks, to an employee.
Oakwood Healthcare, supra, 348 NLRB at 689.

33 Section 2(11) solely requires possession of a listed supervisory function, not its actual exercise. See Barstow
Community Hospital, 352 NLRB 1052, 1052–1053 (2008). The fact that most of an alleged supervisor's duties
involve routine tasks “does not preclude the possibility that such regular assignments require the exercise of
independent judgment.” Loyalhanna Care Center, 352 NLRB 863, 864, n. 4 (2008).
JD(ATL)–12–12
32
Regarding Brenda Stewart, the record fails to sufficiently show that she assigns work. It
establishes that she solely performs the same hourly warehousing assignments performed by
other hourly workers, i.e. receiving, stocking, retrieving, and shipping product.
5
Regarding Tammy Stewart, although I find that she assigns tasks to colleagues when they
run out of work, I do not find that she exercises independent judgment in making such
assignments. Her assignments are prioritized by the computer; and she provided unrebutted
testimony that she never considers a worker’s skills before assigning work, and robotically
divides up the next series of assignments in the queue. Such activity falls short of the exercise of 10
independent judgment. See Sears, Roebuck & Co., 292 NLRB 753, 754–755 (1989).
(ii) Responsible Direction
Neither Brenda nor Tammy Stewart responsibly directs employees. Such authority exists 15
when:
[An employee decides] what job shall be undertaken next or who shall do it, . . .
provided the direction is both “responsible” . . . and carried out with independent
judgment. 20
Oakwood Healthcare, Inc., supra, 348 NLRB at 691. “[F]or direction to be ‘responsible,’ the
person performing the oversight must be accountable for the performance of the task . . . such
that some adverse consequence may befall the one providing the oversight if the tasks performed
are not performed properly.” Id. at 692. 25
Even assuming arguendo that Brenda and Tammy Stewart direct coworkers to perform
tasks, and exercise independent judgment in doing so, which it does not, the record failed to
reveal evidence of “actual accountability.” Moreover, the record failed to demonstrate that they
were potentially subject to adverse consequences, if assignments were delayed or unsatisfactory. 30
Accordingly, I find that they do not responsibly direct others. See Golden Crest Healthcare
Center, 348 NLRB 727, 731 (2006).
(iii) Conclusion
35
Brenda and Tammy Stewart are not supervisory; they are Team Leads, who are included
in the unit under the Stipulated Election Agreement. Their challenges are, thus, overruled.
5. Administrative Assistants: Harris and Maxie-Chaisson
40
The Union challenged these ballots and contended that the employees are office clericals,
who should be excluded. OHL avers that they are plant clericals, and should be included.
a. Harris
45
Administrative Assistant Harris testified that she works at a desk, and spends the majority
of her time using the computer. She explained that she uses the REDPRAIRIE application,
JD(ATL)–12–12
33
which generates reports on warehouse operations and productivity. She stated that these reports
are primarily disseminated to managers, who use such to determine proper staffing levels. She
stated that she tracks the productivity of every employee on the warehouse floor and generates
related reports. She added that she has no discretion to set productivity targets and only collects
and processes data. She noted that she also uses ACCUPLUS software to perform accounts 5
receivable and billing work. She conceded that she did not vote in the first election.
Cotton, a Customer Service Representative, testified that Harris’ office is located in an
area, which requires special access and states, “authorized employees only.” She related that
Harris does not share the same break room with rank and file employees, and that she rarely 10
observes her on the warehouse floor. She stated that Operators and other members of the unit
spend most of their workday on the warehouse floor. Wells and Herron corroborated Cotton’s
account.
b. Maxie-Chaisson15
Administrative Assistant Maxie-Chaisson testified that she uses the REDPRAIRIE
system to track productivity. She indicated that she posts productivity reports, and explains data
to employees, when asked. She explained that the REDPRAIRIE system shows managers where
they can better place people and product within the warehouse. She indicated that she also 20
performs some accounts receivable and billing work.
McNeal testified that she has never seen Maxie-Chaisson retrieving warehouse stock,
shipping product, or engaging in other activities normally performed by Operators. Rayford
corroborated McNeal’s testimony. Phil Smith testified that Maxie-Chaisson is essentially a data 25
clerk, who is paid at a lower rate than several Team Leads.
c. Analysis
Harris and Maxie-Chaisson are office clerical employees, who should be excluded from 30
the unit. Concerning the distinction between office and plant clericals the Board has held that:
[T]he distinction between office and plant clericals is rooted in community of
interest concepts. Clericals whose principal functions and duties relate to the
general office operations and are performed within the office itself are office 35
clericals who do not have a close community of interest with a production unit.
This is true even if those clericals spend as much as 25 percent of their time in the
production area and have daily contact with production personnel.
Mitchellace, Inc., 314 NLRB 536, 536–537 (1994) (citations omitted).40
My finding that Harris and Maxie-Chaisson are office clerical employees is based upon
several factors. They work in a separate office area, and spend an extremely small percentage of
their work time on the warehouse floor. They are data clerks, who mainly sit behind a computer,
prepare productivity reports and perform accounts receivable work. Their reports are primarily 45
used by management to gauge productivity and resource allocation. On some occasions, these
reports can also be used to support a discipline, transfer or layoff. Under these circumstances,
JD(ATL)–12–12
34
their challenges are valid. See, e.g., Mitchellace, Inc., supra, 314 NLRB at 536–537 (analogous
data entry clerks were office clerical employees); Virginia Mfg. Co., Inc., 311 NLRB 992 (1993)
(analogous production control clerk, who compiled production information, kept track of
inventory and raw materials, and prepared reports for management that determined daily
production priorities, was an office clerical).5
F. Conclusion
The 6 ballots cast by Kurtycz, Jerry Smith, Carolyn Jones, Dotson, Brenda Stewart, and
Tammy Stewart should be counted. The ballots cast by Brewer, James, Harris, and Maxie-10
Chaisson should not be counted. The 6 uncounted ballots are sufficient in number to affect the
outcome of the election, which was decided a single vote.
Union objections 1–3, 5–6, 8, 12–14, 18, and 20 are valid. The conduct underlying these
objections, much of which also violated Sections 8(a)(1) and (3), prevented employees from 15
exercising free choice during the July 27 election.34 Accordingly, in the event that the Union
does not win the election after the 6 challenged ballots are counted, I recommend that the second
election be invalidated, and that employees be permitted to vote in a third untainted election. See
General Shoe Corp., 77 NLRB 124 (1948); IRIS U.S.A., Inc., 336 NLRB 1013 (2001).
20
CONCLUSIONS OF LAW
1. OHL is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
25
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. OHL violated Section 8(a)(1) of the Act by
a. Threatening employees with discipline and other unspecified reprisals, if 30
they engage in Union or other protected concerted activities;
b. Interrogating employees concerning their Union or other protected
concerted activities;
35
c. Engaging in surveillance of employees’ Union or other protected
concerted activities;
d. Creating the impression that employee Union activities were under
surveillance;40
e. Confiscating Union materials and related documents from employee break
areas; and
f. Telling employees, who support the Union, to resign.45

34 OHL’s objections were, as noted, not valid.
JD(ATL)–12–12
35
4. OHL violated Section 8(a)(1) and (3) of the Act by issuing a final written warning
to Jennifer Smith, and by discharging Carolyn Jones, because they engaged in Union or other
protected concerted activities.
5
5. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. OHL has not otherwise violated the Act.
10
7. By the foregoing violations of the Act, which occurred during the critical period
before the second election, and by the conduct cited by the Union in objections 1–3, 5–6, 8, 12–
14, 18, and 20, OHL has prevented the holding of a fair second election, and such conduct
warrants setting aside the July 27, 2011 election in Case 26–RC–8635.35
15
REMEDY36
Having found that OHL has engaged in certain unfair labor practices, it must be ordered
to cease and desist and to take certain affirmative action designed to effectuate the policies of the
Act.20
OHL, having unlawfully discharged Carolyn Jones, must offer her reinstatement and
make her whole for any loss of earnings and other benefits. Backpay shall be computed on a
quarterly basis from the date of her discharge to the date of her proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus 25
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily under Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
OHL shall also expunge from its records any references to Jennifer Smith’s final warning 30
and Carolyn Jones’ discharge, give them written notice of such expunction, and inform them that
its unlawful conduct will not be used against them as a basis for future discipline.
OHL shall distribute appropriate remedial notices electronically via email, intranet,
internet, or other appropriate electronic means to unit employees at the facility, in addition to the 35
traditional physical posting of paper notices. See J Picini Flooring, 356 NLRB No. 9 (2010).
In addition to the traditional remedies for the 8(a)(1) and (3) violations found herein,

35 As noted, a rerun election is only warranted, if the counting of the challenges causes the Union to lose the
second election.
36 In the complaint, the Acting General Counsel seeks an order requiring reimbursement of amounts equal to the
difference in taxes owed upon receipt of a lump-sum payment and taxes that would have been owed had there
been no discrimination. He also requests that OHL be required to submit the appropriate documentation to the
Social Security Administration so that when backpay is paid, it will be allocated to the appropriate periods.
These requests are denied, inasmuch as the granting of such remedies deviates from current Board law. See
Metropolitan Hotel Group, 358 NLRB No. 30, slip op. at 4, n. 4 (2012); Waco, Inc., 273 NLRB 746 fn. 14
(1984) (holding that “[i]t is for the Board, not the judge, to determine whether . . . precedent should be varied.”).
JD(ATL)–12–12
36
OHL shall permit a Board agent to read the notice marked “Appendix” to unit employees at its
facility, during work time, in the presence of Coleman and Phil Smith. A notice reading will
counteract the coercive impact of the instant unfair labor practices, which were substantial and
pervasive. See McAllister Towing & Transportation Co., 341 NLRB 394, 400 (2004). It will
also foster the environment required for a final third election result, if such an election is 5
required.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended37
10
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC, Nashville, Tennessee, its officers,
agents, successors, and assigns, shall
15
1. Cease and desist from
a. Threatening employees with discipline and other unspecified reprisals, if
they engage in Union or other protected concerted activities.
20
b. Interrogating employees concerning their Union or other protected
concerted activities.
c. Engaging in surveillance of employees’ Union or other protected
concerted activities.25
d. Creating the impression that employee Union activities were under
surveillance.
e. Confiscating Union materials and related documents from employee break 30
areas.
f. Telling employees, who support the Union, to resign.
g. Terminating, issuing final warnings, or otherwise disciplining employees35
for engaging in Union activities.
h. In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.38
40
2. Take the following affirmative action necessary to effectuate the policies of the

37 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.
38 A broad cease and desist order is appropriate herein. See, e.g., Regency Grande Nursing & Rehabilitation
Center, 354 NLRN 530, 531, n. 10 (2009).
JD(ATL)–12–12
37
Act
a. Within 14 days from the date of the Board’s Order, offer Carolyn Jones
her former job or, if such job no longer exists, offer her a substantially equivalent position,
without prejudice to her seniority or any other rights or privileges previously enjoyed.5
b. Make Carolyn Jones whole for any loss of earnings and benefits suffered
as a result of the discrimination against her, in the manner set forth in the remedy section of this
Decision.
10
c. Within 14 days from the date of the Board’s Order, remove from its files
any reference to Carolyn Jones’ unlawful discharge, and Jennifer Smith’s unlawful final
warning, and within 3 days thereafter notify them in writing that this has been done and that their
discipline will not be used against them in any way.
15
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 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 backpay amounts due under the terms of this Order.20
e. Within 14 days after service by the Region, physically post at its
Memphis, Tennessee facility, and electronically send and post via email, intranet, internet, or
other electronic means to its unit employees who were employed at its Memphis, Tennessee
facility at any time since April 11, 2011, copies of the attached Notice marked “Appendix.”3925
Copies of the Notice, on forms provided by the Regional Director for Region 26, after being
signed by OHL’s authorized representative, shall be physically posted by OHL and maintained
for 60 consecutive days in conspicuous places including all places where Notices to employees
are customarily posted. Reasonable steps shall be taken by OHL to ensure that the Notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of 30
these proceedings, OHL has gone out of business or closed the facility involved in these
proceedings, OHL shall duplicate and mail, at its own expense, a copy of the Notice to all current
employees and former employees employed by it at the facility at any time since April 11, 2011.
f. Within 14 days after service by the Region, hold a meeting or meetings at 35
the facility, during working hours, which will be scheduled to ensure the widest possible
attendance of unit employees, at which time the attached notice marked “Appendix” is to be read
to unit employees by a Board agent, in the presence of Senior Vice President of Operations
Randall Coleman and Director of Operations Phil Smith.
40
g. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

39 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(ATL)–12–12
38
IT IS FURTHER ORDERED that the Regional Director for Region 26 shall, in the
event that the inclusion and counting of the 6 challenged ballots does not result in the Union
winning the representation election conducted in Case 26–RC–8635, set aside that election
result, and hold a new election at a date and time to be determined by the Regional Director.5
Dated Washington, D.C. May 15, 2012
10
_________________________________
Robert A. Ringler
Administrative Law Judge
JD(ATL)–12–12
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 that interferes with these rights.
WE WILL NOT threaten you with discipline and other unspecified reprisals, because you
support the United Steelworkers Union (the Union) or any other union.
WE WILL NOT interrogate you about your Union activities.
WE WILL NOT engage in surveillance of your Union activities.
WE WILL NOT create the impression that your Union activities are under surveillance.
WE WILL NOT confiscate Union materials and related documents from employee break areas.
WE WILL NOT tell employees, who support the Union, to resign.
WE WILL NOT fire you, issue final warnings, or otherwise discriminate against you because
you support the Union or any other union.
WE WILL NOT in any other 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 Carolyn Jones full reinstatement to
her former job or, if her 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 Carolyn Jones whole for any loss of earnings and other benefits resulting from
her discharge, less any net interim earnings, plus interest.
JD(ATL)–12–12
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Carolyn Jones and the unlawful final warning to Jennifer Smith.
WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the
discharge and final warning will not be used against them in any way.
WE WILL hold a meeting, or meetings, during working hours and have this notice read to you
by an agent of the National Labor Relations Board, in the presence of our current Senior Vice
President of Operations and Director of Operations.
OZBURN-HESSEY
LOGISTICS, LLC
(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.
The Brinkley Plaza Bldg., Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2481
(901) 544-0018, Hours: 8 a.m. to 4:30 p.m.
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, (901) 544-0011.