Bridgestone Firestone South Carolina

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 52 526 Bridgestone Firestone South Carolina and United Steelworkers of America, AFL–CIO, CLC. Case 11–CA–20424 August 8, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW On May 4, 2005, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Charging Party filed exceptions and a supporting brief. The Re- spondent filed an answering brief to the Charging Party’s exceptions, cross-exceptions, and a supporting brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. For the reasons stated by the judge, we find that Bridgestone Firestone South Carolina (the Respondent) did not violate Section 8(a)(3) and (1) when it terminated employee Jeffrey Cockrell. However, as discussed be- low, we reverse the judge’s findings that the Respondent violated Section 8(a)(1) by creating the impression among its employees that their union activities were un- der surveillance, and by unlawfully interrogating and threatening Cockrell. We also reverse the judge’s find- ing that the Respondent violated Section 8(a)(3) and (1) when it issued Cockrell a written disciplinary action. Accordingly, we shall dismiss the complaint. I. BACKGROUND The Respondent manufactures tire products at a facil- ity in Graniteville, South Carolina. The employees at the Graniteville plant are not represented by a labor organi- zation. Two Graniteville employees, one of whom was Cockrell, became interested in obtaining union represen- tation and contacted the United Steelworkers of America (the Union). The Union started an organizational cam- paign at the plant in March or April of 2004.3 The Re- spondent learned of the campaign later that spring. 1 We grant the Respondent’s unopposed motion to correct its sup- porting brief. 2 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3rd Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 All dates are 2004, unless otherwise indicated. The complaint alleges, and the judge found, that dur- ing the campaign the Respondent violated the Act in the following respects. II. MANAGEMENT LETTER TO EMPLOYEES The judge found that, by its June 1 letter to employees, the Respondent violated Section 8(a)(1) by creating the impression among its employees that their union activi- ties were under surveillance. Facts On June 1, Plant Manager Michael Rose distributed a letter to all plant employees expressing his position on the union campaign. The June 1 letter, in its entirety, states as follows: Over the last six years I have had the good fortune of being part of something special—assisting in the build- ing and operating of Bridgestone Firestone’s Aiken tire plant. I am particularly proud of the culture we have developed together that puts the concern for our team members first. I believe we have created an environ- ment in which we can openly and honestly speak to one another on any topic. That is why I want to thank the many team members who have chosen to provide information to me regard- ing the recent attempt by the United Steelworkers to organize our facility. As I stated in the recent MAMM meeting, I do not believe we need a union to stand be- tween us and I want you to know that I will continue to support a culture in our plant that allows open dialogue while insuring that our team members at all times are treated with respect and dignity. In closing, I am very proud of the many successes we have shared and I know I can count on each of you to support me as we continue our journey in assuring the Aiken Facility’s place as the number one tire plant within the Bridgestone Firestone family without the as- sistance of a union. The General Counsel alleged that, in the context of the Respondent’s antiunion campaign, employees reasonably would assume from this letter that their union activities were under surveillance and that Rose was encouraging employees to continue disclosing employees’ union ac- tivity. The judge agreed. Although he acknowledged that Rose merely thanked employees who had provided him with information, the judge concluded that “it is ob- vious that Rose was encouraging employees to keep him informed,” thus reasonably putting employees on notice that their union activities were under surveillance. The Respondent excepts, contending (1) that the com- plaint did not allege that the Respondent unlawfully so- licited employees to report the union activities of others, BRIDGESTONE FIRESTONE SOUTH CAROLINA 527 (2) that the letter did no more than express views pro- tected under Section 8(c), and (3) that the existence of the organizing campaign did not render unlawful the statements in the June 1 letter.4 We find merit in these exceptions. B. Analysis In determining whether an employer’s statement has created an unlawful impression of surveillance, the test is “whether the employees would reasonably assume from the statement that their union activities had been placed under surveillance.” Flexsteel Industries, 311 NLRB 257, 257 (1993); United Charter Service, 306 NLRB 150 (1992). The standard is an objective one, based on the perspective of a reasonable employee. Flexsteel, supra. The General Counsel has the burden of establishing, by a preponderance of the evidence, that the employer unlaw- fully created the impression of surveillance. Grouse Mountain Lodge, 333 NLRB 1322, 1323 (2001). Not all employer statements about employees’ union activities are unlawful. An employer does not create an unlawful impression of surveillance where it merely re- ports information that employees have voluntarily pro- vided. See, e.g. Rock-Tenn Co., 315 NLRB 670, 682 fn. 19 (1994), enfd. 69 F.3d 803 (7th Cir. 1995), and over- ruled on another point by Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002). As we recently reaffirmed in North Hills Office Services, “The gravamen of an impression of surveillance viola- tion is that employees are led to believe that their union activities have been placed under surveillance by the em- ployer.” 346 NLRB 1099, 1104 (2006) (emphasis in original). Thus, merely informing employees that their coworkers have volunteered information about ongoing union activities does not create an impression of surveil- lance, particularly in the absence of evidence that man- agement solicited that information. Id. Nor is an impression of surveillance violation estab- lished where the employer simply thanks employees for voluntarily disclosing information about union activities. Cf. Bancroft Mfg. Co., supra, 189 NLRB at 630 (em- ployer did not create unlawful impression of surveillance by thanking employees for signing anti-union petition). Reviewing the June 1 letter in light of this precedent, we find that employees would not reasonably assume from the letter that their union activities had been placed under surveillance by the Respondent. Here, as in the foregoing precedent, the Respondent relayed to employ- 4 The Respondent also argued that Board law makes clear that merely thanking employees for their support, such as by signing a decertification petition, does not violate the Act. Cf. Bancroft Mfg. Co., Inc., 189 NLRB 619 (1971). ees only that certain coworkers had voluntarily provided information about the existence of the union campaign, and there was no evidence or implication that manage- ment had previously solicited or coerced that information from employees. Thus, reasonable employees would not discern from the letter that the Respondent learned of their activities through any program of unlawful surveil- lance. Similarly, the fact that the Respondent thanked the employees for engaging in a dialogue with management about the campaign does not, in our view, establish that the Respondent was putting employees on notice, as the judge concluded, that management was monitoring their union activities. Read in context, the statement simply reaffirms the culture of openness established by the Re- spondent, through “which [employees and management] can openly and honestly speak to one another on any topic,” including unionization. Thanking employees for participating in that culture cannot reasonably be viewed as creating an impression of surveillance. Finally, to the extent the General Counsel argues that the letter amounts to a solicitation that employees report on the union activities of their coworkers, no such allega- tion was alleged in the complaint. Moreover, Rose’s statement in the letter that he could “count on” the em- ployees clearly refers to an appeal for their support in the Respondent’s opposition to unionization. The letter does not state, or reasonably imply, that employees should report on the union activities of their colleagues. In sum, we conclude that the June 1 letter is protected by Section 8(c) and did not create an unlawful impres- sion of surveillance. III. BREAK ROOM INCIDENT INVESTIGATION AND DISCIPLINE The judge found that the Respondent unlawfully inter- rogated and threatened employee Jeffrey Cockrell in vio- lation of Section 8(a)(1) of the Act, and then violated Section 8(a)(3) and (1) by disciplining him for his union activities. The Respondent has excepted to these find- ings, arguing that the Respondent did no more than con- duct a proper investigation of Cockrell’s misconduct and discipline Cockrell pursuant to the Respondent’s estab- lished discipline system. For the reasons set forth below, we find merit in these exceptions and we dismiss these allegations. A. Facts On June 24, Cockrell initiated a conversation about the Union in the employee break room. Several other em- ployees were seated around the break room table, some of whom spoke against the Union. During the conversa- tion, Cockrell became very loud and angry, kicked a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528 chair, and appeared to be “out of control.” Cockrell ad- mits telling the other employees that if they “don’t [sic] like the idea of coming to work and letting the company fuck you in the ass everyday, don’t complain about it.” One of the employees in the break room, Elwood Parker, complained to Supervisor Robert Hamlin that Cockrell had engaged in threatening behavior. The Respondent immediately commenced an investi- gation, telephoning all of the employees involved in the incident. By the morning of July 6, the Respondent had received statements from all of the employees. These statements confirmed that a heated conversation had taken place in the break room, that Cockrell had used profane language, and that Cockrell had engaged in threatening behavior.5 The statements also indicated that profanity was used by other employees in the break room. On July 6, Human Resources Manager Steve Sucher told Cockrell that a complaint had been made against him, and offered Cockrell an opportunity to explain what had occurred. Cockrell was asked to provide a written statement describing what had happened in the break room. Cockrell gave a short statement that read: To Whom It May Concern: On June 24th at around 5:00 a.m. a group of peo- ple were in the break room. A discussion was brought up concerning the union and the pros and cons about a union were discussed. Sucher testified that he found this statement to be “very, very vague,” and asked Cockrell to rewrite it. Cockrell refused. On July 9, Cockrell met with Sucher, Human Resources Manager Dovie Majors, and Supervi- sor Bob Hamlin. Sucher again asked for a fuller state- ment about the break room incident and, in order to focus Cockrell precisely on the misconduct reported, presented Cockrell with a specific question to be answered: Did you make a statement to the other Team members that if they wanted to “get fucked in the ass” everyday 5 The Team Member Guidebook, which was distributed to all em- ployees, states that team members are subject to discipline “up to ter- mination” for the use of “profane, threatening or indecent language.” The company’s “Corrective Coaching and Counseling Guide” uses identical language. The Respondent employs a four-step system of employee discipline articulated in the “Corrective Coaching and Coun- seling Program” fact sheet. The severity of the discipline rises con- comitantly with the seriousness of the conduct at issue. The four levels of discipline are as follows. Level I discipline involves an informal meeting with the supervisor and follow-up reviews. Level II discipline involves a formal counseling session and the construction and imple- mentation of a plan to correct the problematic conduct. Level III disci- pline involves the same but also includes a formal counseling session with the crew leader, the area group leader, and a human resources representative. Level IV discipline involves termination. by the company here at work, they were fools and/or if they liked getting “fucked in the ass” everyday by the company then do not complain about it? Sucher testified that he further told Cockrell that the sub- stance of “what you discussed is irrelevant. What’s impor- tant is how did you discuss it. What language you used.” Cockrell again refused to respond to Sucher’s question. At that point, Majors testified that she told Cockrell that she “was required by law to protect our team members from harassment or threatening type work environment” and that if she did not get any information from him “that would suggest that these events did not occur” she was going to recommend his termination. Cockrell similarly testified that Majors told him that “in the event of my refusal to answer yes or no [to the question posed by Sucher], she said she was going to recommend my termination.” Cockrell still refused to answer. Later that day, Cockrell was informed that he would be disciplined. Majors recommended termination to the managers re- sponsible for imposing discipline, but they elected to impose a less-severe level III discipline. As a result of that discipline, the Respondent required Cockrell to af- firm that he was willing to go through corrective coach- ing and counseling, and abide by plant policies. Cockrell signed a letter of commitment stating that he would con- duct himself “in a clean and respectable manner” and that he understood that if he did not correct his actions he would be terminated. B. Analysis 1. Alleged interrogation In order to find unlawful interrogation, we look to see “whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1989). In the circumstances of this case, we find that no unlawful interrogation occurred. The Re- spondent had a legitimate basis for investigating Cockrell’s misconduct, and its investigation was entirely consistent with its policy prohibiting employees from using “profane, threatening or indecent language.” It was appropriate, as part of a full investigation, to ask Cockrell whether he made the statements attributed to him. Furthermore, the Respondent made reasonable ef- forts to circumscribe its questioning to avoid unnecessar- ily prying into Cockrell’s union views, and the limita- tions on its inquiry were clearly communicated to Cockrell. Thus, Human Resources Manager Sucher as- sured Cockrell that what was discussed during the inci- dent was irrelevant; what was important was strictly the language used. Sucher further assisted in narrowing the BRIDGESTONE FIRESTONE SOUTH CAROLINA 529 area of inquiry by allowing Cockrell simply to answer “yes” or “no” to the question whether he had made the precise statement attributed to him. Moreover, although Cockrell was further questioned by Human Resources Manager Majors, this additional questioning was caused by Cockrell’s repeated frustration of the Respondent’s efforts to investigate the incident. In sum, we find noth- ing in the Respondent’s investigation of Cockrell’s mis- conduct that constitutes unlawful interrogation. 2. Alleged threat The judge also found that Majors unlawfully threat- ened Cockrell by telling him on July 9, that she would recommend his termination based on the information she possessed about the break room incident. We disagree. The Board will find a supervisory statement to violate Section 8(a)(1) of the Act where it “would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their rights under Section 7 of the Act.” Waste Stream Management, 315 NLRB 1099, 1100 (1994). Majors’ statement was not unlawful under this standard. Majors’ statement to Cockrell that she would recom- mend his termination unless he answered Sucher’s ques- tion would not have reasonably been understood as a threat to discipline Cockrell because of his union activi- ties. The meaning of the statement was plain: unless Cockrell denied that he had used the profane language attributed to him, Major would have no choice but to recommend his discharge. This meaning is especially clear given Majors’ accompanying statement that she was “required by law to protect our team members from harassment or threatening type work environment,” and the fact that the Respondent’s team member handbook specifically provided that employees using profane lan- guage were punishable by discharge. The judge relied on Greenfield Die & Mfg., 327 NLRB 237 (1998), to support finding the violation. Greenfield, however, is inapposite. In Greenfield, the employer sent a letter to an employee warning him to cease threatening and coercing employees who did not wish to unionize. There was no evidence that the employee had engaged in unprotected threats or coercion and, in that context, the letter conveyed the message that the employee “must cease the lawful union soliciting in which he had been engaged, because employees’ complaints about his solic- iting might be taken as unprotected conduct.” Id. at 238. Conversely, here, Majors’ statement about Cockrell be- ing disciplined was based on uncontradicted evidence that Cockrell had used profane language. Cockrell ad- mitted that he had, in fact, used such language. Thus, Cockrell would not have reasonably understood Major’s statement as a threat that Cockrell would be punished for engaging in protected activity. Accordingly, we dismiss this allegation. 3. Level III discipline The judge also found that the discipline imposed on Cockrell by the Respondent violated Section 8(a)(3) and (1). The judge applied a Wright Line analysis to find the violation. 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983). Although we agree with the judge that a Wright Line analysis is appropriate, we dismiss the violation. To prove a violation of Section 8(a)(3) and (1) under Wright Line, the General Counsel must establish by a preponderance of the evidence that antiunion sentiment was a substantial or motivating factor in the challenged employer decision. The elements required to show dis- criminatory motivation are that the employee was en- gaged in union activity, employer knowledge of that ac- tivity, and antiunion animus by the employer. See, e.g., Sears, Roebuck & Co., 337 NLRB 443, 443 (2002). Once the General Counsel makes such a showing, the burden of persuasion “shift[s] to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra, 251 NLRB at 1089. It is clear that Cockrell was engaged in union activity and that the Respondent knew of this activity. But the judge failed to analyze whether the General Counsel es- tablished animus, and our review of the evidence indi- cates that no such showing has been made. First, we have found, for the reasons explained above, that the Respondent’s June 1 letter and the Respondent’s actions in conducting its investigation of Cockrell’s misconduct in the break room were lawful. Thus, there is no basis for inferring animus from either. However, even assuming arguendo that a showing of animus had been made, and that the General Counsel met his initial Wright Line burden, we find that the employer has successfully demonstrated that a level III discipline would have been imposed on Cockrell even in the ab- sence of any protected conduct on his part. The Respon- dent’s disciplinary system, its record of enforcement, and the severity of Cockrell’s break room statements and conduct lead us to this conclusion. Employers may, of course, discipline employees for profane language, provided such discipline is adminis- tered in a nondiscriminatory fashion. See, e.g., Alumi- num Co. of America, 338 NLRB 20 (2002) (employer lawfully disciplined employee for saying “how is [the supervisor] going to f—k us now”); Honda of America Mfg., 334 NLRB 746 (2001) (employer lawfully disci- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530 plined employee for saying that management was at- tempting to “bone” the employees). Here, employee Parker reported to management that Cockrell used pro- fane and threatening language in the break room. The Respondent investigated the complaint and confirmed that Cockrell had, in fact, used profane language during a threatening tirade. Cockrell specifically admitted to the use of such language. Profane language is subject to investigation, counseling, and punishment, up to imme- diate discharge, under the Respondent’s established sys- tem, and its conduct towards Cockrell was entirely con- sistent with that system. Indeed, though profane lan- guage is punishable by immediate discharge under the disciplinary policy, the Respondent imposed a lower level of discipline. The judge found that Cockrell’s level III discipline amounted to disparate treatment, but this conclusion is not supported by the record. The Respondent’s treatment of Cockrell was consistent with its treatment of other employees who had used profane language at the work site. For example, though employee Clarence Garrett re- ceived a level II discipline for using profane language, his conduct was not brought to the Respondent’s atten- tion for 2 months. In determining the level of discipline, the Respondent took into consideration the fact that 2 months had elapsed and that there had been no reoccur- rence of the misconduct. Garrett also subsequently re- ceived a level III discipline for being rude to a vendor’s employee. Similarly, employee Terrence Brooks was fired pursu- ant to a level IV disciplinary action for using profane and threatening language. Although Brooks’ misconduct also involved a threat directed at a specific individual as opposed to the more generally threatening behavior of Cockrell, the Respondent’s established rules explicitly provide for level III discipline in the event of either pro- fane or threatening language. Furthermore, although the judge notes that other em- ployees in the break room used profanity during Cockrell’s tirade, none of those employees engaged in conduct as extreme as Cockrell. Moreover, Cockrell was the only employee against whom a complaint was filed, and his stubborn refusal to participate in the investigation left the Respondent with few alternatives. Under these circumstances, we find that the level III discipline im- posed on Cockrell did not amount to disparate treatment, and that the Respondent demonstrated that it would have imposed this discipline on Cockrell even in the absence of any protected conduct. IV. PARKING LOT INCIDENT We agree with the judge that the Respondent did not violate Section 8(a)(3) and (1) by discharging Cockrell after he drove his automobile through the plant parking lot in a reckless manner designed to frighten other em- ployees. We disagree with the judge’ finding, however, that the Respondent violated Section 8(a)(1) when Su- pervisor Bob Hamlin counseled Cockrell regarding this incident. A. Facts The relevant facts, described more fully in the judge’s decision, are as follows. On the morning of July 15, em- ployee Elwood Parker, with whom Cockrell had had the disagreement in the break room, and employee Steven Hendren left the plant building and began walking to- wards Hendren’s vehicle in the employee parking lot. As they passed through the parking lot, they heard a loud noise and saw Cockrell’s car speeding toward them. According to the credited testimony of witnesses, Cockrell was traveling at least 30 miles an hour or faster in an area that has a posted speed limit of only 15 miles per hour. Based on the credited testimony, the judge found that Cockrell drove his car substantially over the mid point of the 25 foot driveway and within 2 to 5 feet of Parker and Hendren, while revving his turbo-charged engine. When Cockrell returned to work that evening, he ap- proached Supervisor Hamlin in order to talk with him about a rumor that Cockrell had intentionally attempted to run over an employee in the parking lot that morning. Hamlin suggested that they meet in the warehouse where it was quieter. Cockrell denied that he had attempted to run over anyone, and asserted that the company was out to get him. According to Cockrell, Hamlin replied by stating, “I know you are not stupid, but . . . is this really worth it.” Cockrell also testified that Hamlin stated that Cockrell should “think about his newborn baby.” Ham- lin testified further regarding his response to Cockrell’s assertion that the company was harassing him: I said the issue that’s at hand is your behavior, it’s not—it’s not the topic you’re discussing. That you can be talking religion, politics, whatever but it is the be- havior that’s the issue and Jeff just continued to state that he was feeling harassed and it was because of his Union activity and I told Jeff it is not okay for anybody to be harassed, including him and if he wanted to make those allegations we would investigate that.” The Respondent investigated the parking lot incident; it interviewed Cockrell, Parker, Hendren, and another employee who had been present in the parking lot, Chad Head. Cockrell also provided the Respondent with a BRIDGESTONE FIRESTONE SOUTH CAROLINA 531 detailed written statement. His version of the incident was contradicted by the other employees. On July 19, the Respondent sent a letter of termination to Cockrell. B. Analysis We agree with the judge that Cockrell’s termination did not violate Section 8(a)(3) and (1). As discussed above, the General Counsel failed to carry his Wright Line burden of establishing that the discipline was moti- vated by animus towards Cockrell’s union activities. But even if animus had been demonstrated, we agree with the judge that the General Counsel has failed to rebut the Respondent’s evidence that it would have discharged Cockrell even in the absence of protected activity. The primary impetus for Cockrell’s discharge6 was his inten- tionally reckless and life-threatening driving. Under the Respondent’s established disciplinary policy, immediate termination is permissible for such a grave offense, and there is no evidence of disparate treatment. Moreover, the Board will not second-guess an employer’s efforts to provide its employees with a safe workplace, especially where threatening behavior is involved. See Tenneco Packaging, Inc., 337 NLRB 898 (2002), review denied 350 F.3d 105 (D.C. Cir. 2003); Clark Equipment Co., 250 NLRB 1333 (1980). Consequently, we affirm the judge’s dismissal of this allegation. However, the judge also found that Hamlin’s counsel- ing of Cockrell following the driving incident contained unspecified threats of reprisal for Cockrell’s participation in union activities, and therefore violated Section 8(a)(1). We disagree. There is nothing in Hamlin’s statements that “would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their rights under Section 7 of the Act.” Waste Stream Mgmt., supra, 315 NLRB at 1100. It was Cockrell who approached Hamlin. He did so for the apparent purpose of refuting the rumor that he had tried to run down an employee with his car, and to solicit Hamlin’s assistance in dealing with what Cockrell per- ceived to be harassment by the company. Hamlin was aware of the rumor that Cockrell had intentionally tried to hit someone with his car, and it was within that con- text that Hamlin warned Cockrell to think about whether 6 The uncontradicted testimony was that the managers who made the decision to discharge Cockrell did so based solely on Cockrell’s reck- less driving. The discharge letter sent to Cockrell, however, provides that his discharge was based on the “recurrence of inappropriate behav- ior.” The Respondent asserts that this language was added to the dis- charge letter in order to defend its interests in unemployment compen- sation proceedings by anticipating inquiries as to whether the employee had previously been disciplined. We find no need to resolve whether Cockrell was discharged solely for his reckless driving or also based on his earlier discipline for use of profane language, given that both bases for discipline were lawful. such misconduct was “really worth it,” especially when he had a family to support. Hamlin also made an active effort during the discussion to assist Cockrell in under- standing that it was important for him to focus on his behavior, and to separate that from the union issues that he was pursuing. Hamlin even offered to aid Cockrell by investigating any allegations that he was being harassed because of his union activities. In these circumstances, an employee would not reasonably believe that he was being threatened with reprisals based on his protected activities. Accordingly, we dismiss this allegation as well. ORDER The complaint is dismissed. Jasper C. Brown Jr., Esq., for the General Counsel. Kathryn W. Pascover, Esq. and Arnold E. Perl, Esq., for the Respondent. Samuel H. Penn Sr., for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me in Aiken, South Carolina, on January 19, 20, and 21, 2005, pursuant to a complaint issued by the Regional Director for Region 11 of the National Labor Rela- tions Board (the Board) on October 29, 2004. The complaint, as amended at the hearing, alleges that Respondent Bridgestone Firestone South Carolina (the Respondent) or (the Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The complaint is based on a third amended charge filed by the United Steelworkers of America, AFL–CIO, CLC (the Charging Party or the Union). The complaint is joined by the answer of Respondent filed on the November 15, 2004, as amended at the hearing wherein it denies the commis- sion of any unfair labor practices and asserts certain affirmative defenses. The Respondent also filed a motion to dismiss fol- lowing the presentation of the General Counsel’s case. Upon consideration of the testimony of the witnesses, the exhibits admitted at the hearing and late filed Joint Exhibit 1,1 which is received in the case record evidence, and the positions of the parties as argued at the hearing and as set out in their posthearing briefs, I make the following I. FINDINGS OF FACT 2 A. The Business of the Respondent The complaint alleges, Respondent admits, and I find, that at all times material, Respondent has been a South Carolina cor- poration, with a plant located at Graniteville, South Carolina, where it is engaged in the manufacture of tire products, that during the past 12 months, a representative period, it sold and 1 Late filed Jt. Exh. 1 consists of a July 9 and 15, 2004 taped inter- view of employee Jeffrey Cockrell. 2 The following includes a composite of the credited testimony and the exhibits received in evidence. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532 shipped from its Graniteville, South Carolina plant, products valued in excess of $50,000 directly to points outside the State of South Carolina and that Respondent has been at all times herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization The complaint alleges, Respondent admits, and I find, that at all times material, the Union has been a labor organization within the meaning of Section 2(5) of the Act. C. Background Respondent’s Graniteville, South Carolina, plant is a non- union plant. The Union was contacted separately by two em- ployees who indicated that the employees were interested in obtaining union representation at the plant. Employee Jeffrey Cockrell was the second employee to contact the Union. The Union commenced an organizational campaign in late March to early April 2004,3 and the Respondent was notified of the cam- paign and/or learned of the campaign in late spring 2004. Cockrell became a leading advocate of the Union and spoke to other employees in support of the Union at the plant and in- formed them of the union meetings. The complaint alleges that Respondent interfered with, restrained, and coerced employees, and is interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights and that Plant Manager Mike Rose created the impression of surveillance of its em- ployees by a June 1, 2004 letter sent to the employees by Rose and, that on or about July 9, 2004, Crew Leader Bob Hamlin, Area IV Group Leader Dovie Majors, Human Resource Gener- alist Debbie Reed, and Human Resources Development Ser- vices Leader Steve Sucher interrogated employees regarding their union activities.4 The complaint also alleges that Respon- dent, in writing, threatened employees with discharge because they engaged in union activities. The complaint also alleges that on July 15, 2004, Crew Leader Bob Hamlin threatened employees with unspecified reprisals because they engaged in union activities. The complaint further alleges that on July 9, 2004, Respondent issued employee Jeffrey Cockrell a level III written disciplinary action and that on July 19, 2004, Respon- dent discharged Jeffrey Cockrell. The issues as framed by the complaint are: 1. Whether Respondent violated Section 8(a)(1) of the Act by the acts and conduct as alleged in paragraph 6 of the com- plaint. 2. Whether Respondent violated Section 8(a)(3) of the Act by its issuance of a level III written disciplinary warning to employee Jeffrey Cockrell as alleged in paragraph 7 of the complaint. 3. Whether Respondent violated Section 8(a)(3) of the Act by its discharge of employee Jeffrey Cockrell as alleged in paragraph 8 of the complaint. D. The 8(a)(1) Conduct 1. Creating among its employees the impression that their 3 All dates are in 2004 unless otherwise stated. 4 Par. 6(b) alleging unlawful interrogation by Reed and Sucher was withdrawn by the General Counsel at the hearing. union activities were under surveillance On June 1, 2004, Plant Manager Michael Rose distributed a letter to all employees stating his opposition to the Union. The letter stated in part “That is why I want to thank the many team members who have chosen to provide information to me re- garding the recent attempt by the United Steelworkers to organ- ize our facility.” In the letter Rose stated further that he knew he could count on the support of employees in maintaining the plant without the assistance of a union. General Counsel notes that in determining whether a respondent employer has unlaw- fully created the impression of surveillance, the Board applies the following test: whether employees would reasonably as- sume from the statement in question that their union activities have been placed under surveillance citing United Charter Service, 306 NLRB 150 (1992), where the Board found that statements made by an employer to employees that the em- ployer was aware the employees were trying to organize a un- ion, had thereby created the impression of surveillance. Gen- eral Counsel contends that Respondent’s June 1 letter, when taken in the context of its admitted antiunion campaign would indeed cause employees to reasonably assume their activities were under surveillance, as Rose in his letter is simply encour- aging employees to continue telling him about the union activi- ties in the plant and is thereby creating the impression of sur- veillance. I find in agreement with the General Counsel’s con- tentions as set out above that Rose’s statement in the June 1 letter thanking employees for providing him with information about the Union unlawfully created the impression of surveil- lance and violated Section 8(a)(1) of the Act. In making this finding, I recognize the contention by the Respondent that this was no more than a simple “thank you.” However, this “thank you” was also followed by a statement that he knew he could count on the support of employees in maintaining the plant without the assistance of a union. I find that it is obvious that Rose was encouraging employees to keep him informed of union activities which would reasonably put the employees on notice that their union activities were being watched or placed under surveillance. 2. The interrogation of Jeffrey Cockrell regarding his union activities These allegations are considered together since they derive from the same discussions. Employee Jeffrey Cockrell testified that on June 24, shortly before the end of his shift, he went to the break room for his final break period. Several other em- ployees were seated around the break room table. He (Cockrell) initiated a discussion of the union campaign by ask- ing the employees what they thought about the Union. Accord- ing to Cockrell’s unrebutted testimony, employee Robbie Den- nis stated that he “did not need a mother fucker to say a god- damn thing for him” as he stood up and walked around the table, made other comments and then walked out of the break room. Dennis quickly returned to the break room, made some additional comments and left the break room again. After this, the employees discussed the merits of having a union in the plant. Everyone in the group voiced their opinion except em- ployee Robbie Rutland. Cockrell spoke in favor of the Union and employee Elwood Parker spoke against the Union and spe- BRIDGESTONE FIRESTONE SOUTH CAROLINA 533 cifically disagreed with some statements that Cockrell made as to how a union presence would work at the plant. Cockrell admitted at the hearing that he used profanity as did several other employees during this discussion. According to Cockrell, no one took offense to his use of profanity because almost all of the employees, with one exception, used profanity during this discussion. Cockrell stated that the discussion in the break room lasted 20 to 25 minutes before the employees returned to work. 3. The threat issued to Cockrell because of his engagement in union activities Cockrell testified that the following week he was informed by employee Curtis Jennings that he (Jennings) had been con- tacted by Human Resources Manager Debra Reed about an investigation of the break room discussion. On the morning of July 6, Reed called Cockrell and instructed him to report to the human resources department that morning. He had a prior ap- pointment and called Reed and left his telephone number. Later that day, Human Resources Manager Steve Sucher called him and told him there were allegations made against him re- garding his conduct in the break room. He asked Sucher what the allegations were. Sucher did not tell him what the allega- tions were but told Cockrell he wanted a statement from him. Cockrell prepared a written statement and sent it to Sucher on the same day. The statement reads as follows: To Whom It May Concern: On June 24th at around 5:00 a.m. a group of people were in the break room. A discussion was brought up concerning the union and the pros and cons about a union were discussed. Jeffrey S. Cockrell On July 7, Sucher called Cockrell again and told him he had received his statement but it was not sufficient as he wanted to know what Cockrell had said in the break room incident. Cockrell again asked him what the allegations were and Sucher told him he did not have to tell him. He then told Cockrell to rewrite the statement but Cockrell did not agree to do so. Sucher then told Cockrell to come to human resources on Fri- day morning. 4. The issuance of a level III written disciplinary warning to Cockrell on July 9 On Friday, July 9, Cockrell met with Sucher, Reed, and De- partment Manager Dovie Majors and Supervisor Bob Hamlin in the conference room of human resources. Sucher told Cockrell there had been some serious allegations of inappropriate lan- guage and behavior made against him. Sucher again told Cockrell that he had received his statement and that it was not what he was looking for. He then told Cockrell he was going to give him another chance to rewrite his statement. Cockrell stated that what he had said in his prior statement was the truth. After another request by Cockrell as to what the allegations were, Sucher said he was not obligated to tell him the specific allegations. Sucher then showed Cockrell a statement and asked him to read it and whether he had made the following statement: Did you make a statement to the other Team members that if they wanted to ‘get fucked in the ass’ everyday by the com- pany here at work, they were fools and/or if they liked getting ‘fucked in the ass’ everyday by the company then do not com- plain about it? Cockrell told Sucher that he gave his opinion the same way as everyone else in the break room. Sucher asked Cockrell if he wanted to rewrite his statement or to maintain his position. Cockrell said he would stand by his statement. Sucher then told Cockrell that Respondent would proceed with the investigation and the supervisors left the room and returned about 20 minutes later. Department Manager Dovie Majors then told Cockrell that because he refused to answer the question posed by Sucher, she would recommend his termina- tion to the “core group.” The “core group” is composed of various department heads and other highly placed management personnel to whom all disciplinary actions must be presented for approval by the head of the department in which the particu- lar employee is employed. Cockrell was then instructed to turn in his badge, stamps and tools and was escorted from the plant. Sucher telephoned Cockrell about 11:30 a.m. on the same day and told him that the core group had decided not to termi- nate him but to issue him a level III disciplinary action. Sucher explained at the hearing and the record shows that there are four steps in Respondent’s disciplinary procedure. Steps I and II are the less serious steps. Step III is the most serious step prior to step IV which is the discharge step. Once an employee has been issued a level III warning he is subject to discharge for any subsequent offense. Sucher testified that Respondent does not follow progressive discipline other than for attendance but rather that the issuance of a step I, II, III, or IV level depends on the severity of the offense. Thus, an employee without any prior discipline can be issued a level I, II, III, or IV discipline depending on the serious nature of the offense. Sucher told Cockrell he was being issued a level III disciplinary action for the use of abusive and profane language. Cockrell was required to draft a written letter of commitment and answer a series of written questions which were submitted to Majors who ap- proved them. He was then permitted to go home for the rest of the day and returned to work on July 13, which was his next scheduled workday. It is clear from the record in this case that Respondent based its decision to issue the level III warning to Cockrell on the uncorroborated testimony of Elwood Parker who also testified at the hearing. On June 24, Robert Hamlin, crew leader for area 4, final assembly, received a complaint about Cockrell from employee Elwood Parker as they were leaving the plant at the end of the shift. Hamlin called this to the attention of Dovie Majors as she was leaving the plant. She then asked Parker to return to the office and took him to the human resources de- partment to speak with Steve Sucher, human resources devel- opment leader. Parker gave Respondent a statement that day that while Cockrell was talking with other employees in the break room concerning a union, Cockrell became loud and angry, stood up, kicked a chair and told fellow employees that if they “liked getting fucked in the ass everyday here at work we were fools.” Parker further testified that Cockrell remained DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534 agitated and left and reentered the room in an agitated state on three occasions and that Cockrell seemed to be out of control and that he felt threatened by Cockrell’s conduct. At the trial in this case, Cockrell admitted to telling the employees in the break room that if they “don’t like the idea of coming to work and letting the company fuck you in the ass everyday, don’t complain about it.” During the investigation interview, Cockrell told Sucher that he did not recall leaving the room and returning on more than one occasion. As part of its investigation, Respondent’s management took statements from several of the other employees who had been in the break room during the June 24 discussion about unions. In his statement, Curtis Jennings related that he overheard a debate about the pros and cons of union, that the conversation got a little loud causing one team member to leave and come back after it was over. “Elwood and Jeff were talking mostly and I guess it got to Jeff. I remember Jeff saying that if we liked getting fucked in the ass everyday by the Company then do not complain about it.” Jeff got a little vocal during the conversation and also used profanity. Finally, break was over and I left because I do not see a need for a union in our plant so I am not getting involved in all the union hype. Employee Robbie Rutland states in his statement that he knew that Jeff, Steve, and Elwood were talking about something but he wanted to rest his eyes and put his earplugs in and did not know what they were talking about. He stated that he did hear foul lan- guage but it did not offend him. He did not hear “anybody being cussed out.” “I would not remember what curse words were said.” In his statement, employee Michael Williams said “Jeff was talking about what the Union can do for us as a com- pany and we didn’t agree.” He stated that Jeff said the Com- pany wasn’t doing the right thing so he got a little hot about the things we didn’t agree on. Then he called us stupid. He was going on so Williams “told him he needs to quit if it’s that bad.” In her statement, Patricia Butler said as follows: Everyone was sitting around the table and the conversation about the Union came up. Everyone was voicing their opin- ion about the Union. Jeff was saying what the union can do for us. Elwood and Jeff was back and forth talking about the pros and cons. If you didn’t agree to things, Jeff would get his point across. Profanity was used by people in the break room but it wasn’t directed to a particular person. I didn’t hear any threatening behavior. They were trying to make their point. After break, Jeff and I went to the palletizer. In his statement, employee Steve Lorick said that a discussion took place about a pamphlet that was handed out. “Nothing to my knowledge was said that made me feel uncomfortable by anyone” and “I still remember bits and pieces and at no time did I think that this discussion was any different than many other topics that we talk about” and “I was not in the break room when any (heated or otherwise) topic took place.” Em- ployee William Joyce, in his statement, said as follows: On 6/24/04 the team members indicated on the list described by Debbie Reed were all in discussion about the Union during our break in Area 400. The total discussion centered around the pros and cons of the Union. Some minor profanity was used mostly by all participants but nothing I would think to be offensive toward anyone in the group or at least no one in the group displayed any signs of discomfort. Actually, I didn’t feel any different at the end of the discussion than I would have for any other topic we discuss as a group. In my opinion this discussion ended with no harm done to anyone. /s/ Will Joyce General Counsel contends, and I find, that as a result of its review of the employee statements, Respondent was well aware that Cockrell had not engaged in any misconduct. Furthermore, Sucher admitted at the hearing that there was no evidence of physical attack or threat of physical attack by Cockrell and that Cockrell had not lunged at Parker nor made any type of verbal threat toward Parker. It is undisputed that Respondent did not investigate and fol- low up on profanity used by other employees in the June 24 discussion in the break room. Its focus was only on Cockrell, the acknowledged leading union adherent. It is also clear that Respondent had issued milder level I and level II warnings to other employees for engaging in verbal altercations where pro- fanity was used rather than issue a level III warning as it did in the case of Cockrell, thus, providing a showing of disparate treatment against Cockrell by Respondent. I find that Respondent violated Section 8(a)(1) and (3) of the Act by its issuance of the level III discipline to Cockrell. I find that Sucher’s intense questioning of Cockrell by Sucher was unlawful interrogation designed to take disciplinary action against Cockrell and was thus violative of Section 8(a)(1) of the Act. I find that the threat issued by Dovie Majors was violative of Section 8(a)(1) of the Act. Greenfield Die & Mfg. Corp., 327 NLRB 237 (1998); Consolidated Diesel Co., 332 NLRB 1019 (2000); Rossmore House, 269 NLRB 1176 (1984); Emery Worldwide, 309 NLRB 185, 186, 187 (1992). With respect to the issuance of the level III discipline to Cockrell, Sucher testi- fied that the use of profanity alone would probably lead to a level I discipline and that level III discipline would require more provocative “in your face” type of conduct and that a level IV or discharge would require physical violence or a threat of physical violence. It is undisputed that Cockrell’s participation in the break room discussion did not rise to the level of either a level III or level IV discipline even if it had occurred as stated by Parker. I find that Parker’s contentions with respect to Cockrell’s conduct at the break room discussion were not corroborated by any of the other employees in atten- dance. It is also noteworthy that Parker himself did not contend that Cockrell had directed any profanity directly to him or in any manner got into his face or threaten or engage in any vio- lence against Parker or anyone else. With respect to another prior discussion between employee Wright and Cockrell in the exercise room at which Cockrell became agitated during a dis- cussion about the Union which discussion had been initiated by Cockrell, I find it has no relevance in this case and is not de- terminative of any issue in this case. E. The Discharge of Cockrell Having been returned to work by Respondent on July 13, Cockrell worked that date until the morning of July 15 when he left work at the completion of his shift and exited the parking lot. Elwood Parker and employee Steven Hendren with whom BRIDGESTONE FIRESTONE SOUTH CAROLINA 535 Parker carpooled were walking to Hendren’s vehicle on the edge of the two-way driving lane in the parking lot which has a 15 miles per hour speed limit. Parker and Hendren testified that as they walked they were suddenly confronted with a loud sound of a turbo charger as Cockrell’s blue Dodge Neon came dangerously close to them. Employee Steven Hendren testified that he was involved in an incident in the parking lot on July 15 as follows: As me and Elwood [Parker] were leaving the parking lot and going to my vehicle, just got off of night shift, about half way across the parking lot, let’s see, I was on the outside and he (Parker) was on the inside, all of a sudden there was a turbo kick in on a car. The speed limit is 15 [miles per hour] so within about a matter of seconds he was doing within 50 miles an hour plus. He came within maybe two to three feet. Hendren testified he knew at the time that the person driving the car was Jeff Cockrell as he “was the only one that just bought a brand new turbo Neon ‘04 Dodge.” He testified he actually saw Cockrell at that time as “when the turbo kicked in, when I turned my head, he was pretty much right there, the window was down.” He testified further “Well hearing the sound, I knew what it was; but seeing the vehicle and that close, it—it got me a little angry.” His normal shift at the time was 6:45 in the evenings to 7:15 in the mornings. The incident occurred in the morning at the end of his shift. Chad Head was further down the road from where he and Parker were at the time of the incident. Employee Chad Head testified that he had been waiting for his sister in his truck and “I had my radio on in my truck and my windows up and everything and I heard a car speeding up, revving up, accelerating and I turned around to look and see what it was. I was on the very front row and it was coming behind my truck . . . and I seen the car coming and I noticed it was a Neon . . . and I saw that it was Jeff Cockrell, and he sped on by, and stopped at the end real quickly and went out of the parking lot and at the time, I didn’t think anything of it, except that he was going mighty fast in the parking lot.” He then saw Parker and Hendren walking up to Hendren’s truck. Parker asked if he had seen anyone in the parking lot and he told them he had seen Cockrell. Head testified further that he had not seen the incident himself. Head acknowledged that in a state- ment given to Respondent’s representatives later that day (July 15) he had estimated the vehicle “was going maybe 25 to 30 miles an hour or faster, more than you should in a parking lot.” Elwood Parker testified concerning the parking lot incident that he and Hendren were walking along the front of the parked cars to their vehicle as they carpool together. “. . . all of a sud- den I [Parker] just feel and hear a car . . . just out of nowhere, and I’m jerking back and kind of almost grabbing Steven and moving him and it was Jeff [Cockrell] flying by. . . . I didn’t even hear him coming. All I did was felt the car on my chest. I felt the car and heard it and I just had seconds to react . . . it scared me, shocked me and made me angry all at once because, you know, he was very close, two to three feet, and he just stayed and he stayed—his car was at full throttle all the way. Didn’t slow down, didn’t stop, nothing.” “I saw him [Cockrell] . . . looking back in his rearview mirror. . . . [H]e was already down at the end of the parking lot, slamming on his brakes.” Parker placed the speed of Cockrell’s vehicle to have been traveling 45 to 50 miles an hour. In an earlier statement to Respondent (GC Exh. 14) he stated that Cockrell reached speeds of 30 to 35 miles per hour. Cockrell was questioned concerning the incident. He told them that he had left the parking lot as he normally does. At the hearing, Cockrell testified that he told Debra Reed: I told her that I went to the front of the building, I clocked out, walked out the front doors, went across the circle in the center, walked to the left to where my car is at the far end of the building, and got in it, cranked it up and took a left hand turn and went straight down along the sidewalks, between the cars and the sidewalk, and headed all the way down and stopped, you know, to get into the traffic to get on the main drag to go out the front gate. Just the same way I’ve done for the last five years. Cockrell also testified that at the meeting of July 15, he was told by Reed that some employees had stated that he had “ex- ceeded the speed limit an excessive amount that morning” and that he denied this. Cockrell was discharged on July 19 for the parking lot incident. The termination letter also refers to the level III warning. Cockrell testified that on the evening of July 15, shortly after his arrival at work, he met employee Robert Frietas who told him that Brad Carter, a member of the antiunion committee was telling department employees that he (Cockrell) had intention- ally attempted to run over an employee in the parking lot that morning. Cockrell immediately contacted his supervisor, Bob Hamlin, and asked to speak to him about this matter. Hamlin suggested they meet in the warehouse which is quieter. Cockrell told Hamlin of the rumor and asked Hamlin about it. Cockrell also told Hamlin that he had not tried to run over any- one. Hamlin told Cockrell this was out of character for him. Cockrell told Hamlin that he felt this was something the Com- pany was doing to get him out of the plant and that he (Cockrell) wasn’t stupid. According to Cockrell, Hamlin then said “I know you’re not stupid; but . . . is this really worth it?” Hamlin also said, “think about your newborn baby.” Cockrell told him that when he started the campaign, he knew there would be risks but that once you start, you can’t stop it. At that point, Hamlin received a telephone call from Reed and then told Cockrell that he was to escort him “up front.” Hamlin did not deny having made these comments to Cockrell and testified that it was something he could possibly have said to an em- ployee who already had a warning and was now involved in another matter. Hamlin also testified that he already had been contacted and advised that he would be asked to escort Cockrell to human resources to discuss the parking lot incident. I find that Hamlin’s question to Cockrell whether it was really worth it and his advice to Cockrell that he should think about his newborn baby were clearly references to Cockrell’s union activities and were clearly unspecified threats of reprisal for his engagement in union activities. I find that Respondent thereby violated Section 8(a)(1) of the Act. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536 NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983), the Board set forth its causation test for cases alleging violations of the Act that turn, as does the case herein, on employer motiva- tion. First, the General Counsel must persuade the Board that antiunion sentiment was a substantial or motivating factor in the challenged employer conduct or decision. Once this is es- tablished, the burden then shifts to the employer to prove its affirmative defense that it would have taken the same action even if its employee had not engaged in protected concerted activity. See Manno Electric, Inc., 321 NLRB 278 fn. 12 (1996). Counsel for the General Counsel must demonstrate by a preponderance of the evidence (1) that the employee was engaged in protected concerted activity; (2) that the employer was aware of the activity; (3) that the activity or the workers’ union affiliation was a substantial or motivating reason for the employer’s action; and (4) there was a casual connection be- tween the employer’s animus and its discharge decision. Applying the foregoing test to the facts in this case, I find that Cockrell was a leading union advocate, that the employer was aware of his union activity and that the activity was a sub- stantial motivating factor in Respondent’s decision to issue the level III warning to Cockrell and subsequently to discharge him following the parking lot incident as the discharge was clearly based on not only the parking lot incident but also was based on the level III warning as set out in Respondent’s letter of dis- charge sent to Cockrell. I find that the Respondent’s animus against the Union and its supporters has been established and that there was a casual connection between the Respondent’s animus and its discharge decision. I thus find that the General Counsel has established a prima facie case of Section 8(a)(1) and (3) of the Act by the issuance of the level III warning and the discharge of Cockrell. Once a prima facie case of a violation has been found, it is incumbent on the employer to demonstrate by the preponder- ance of the evidence that the adverse action such as the level III warning and discharge in this case would have been taken even in the absence of the unlawful motivation, I find in this case that Respondent has met this burden with respect to the dis- charge of Cockrell and has established that he would have been discharged for his conduct in the parking lot incident. I find the General Counsel has failed to rebut Respondent’s evidence that it would have discharged Cockrell even in the absence of the unlawful motivation. I reach this conclusion by the weight of the credible evidence that Cockrell drove his automobile in a reckless manner de- signed to frighten Elwood Parker with whom he had had a dis- agreement in the break room discussion and for whom he most certainly blamed for the level III warning issued to him by Re- spondent. In so doing, Cockrell put both Parker’s and Hen- dren’s life and safety in jeopardy. I find he was, as testified to by Parker and Hendren, traveling at least 30 miles per hour or higher in the parking lot which has a 15 mile per hour speed limit and I find that he was substantially over the mid point of the 25 foot driveway and drove his automobile so that he was within 2 to 5 feet of these employees as he passed by them with his turbo charged to add to the fear of these individuals by sub- jecting them to the startling sound as well. I find, in agreement with Respondent in this case, that this conduct in the parking lot by Cockrell could not be ignored and that Respondent was fully justified in discharging Cockrell for this conduct. As noted in Respondent’s brief, it is a necessity for businesses to respond promptly to incidents of workplace violence as emphasized by Board Member Liebman in her con- curring opinion in Tenneco Packaging, Inc., 337 NLRB 898 (2002), at 899 where she stated: Employers justifiably are more concerned today than ever about workplace violence and they must remain free to quickly address genuine threats. The Board’s sound policy is not to second-guess well-intended employer efforts to provide a safe workplace. In Clark Equipment Co., 250 NLRB 1333 (1980), the admin- istrative law judge concluded that an employee who openly supported a union, while operating his vehicle in the employ- ees’ parking lot had driven “hazardously close to striking” an- other employee with whom he had a dispute. Id. at 1338. He held that the employee’s conduct was justifiable grounds for discharge. Although the Respondent in this case may have welcomed the opportunity to rid itself of a leading union adher- ent as a response to the Union’s organizing campaign and its overall goal in shutting down the union campaign, it was Cockrell who provided Respondent a lawful opportunity to do so by his actions in engaging in the dangerous operation of his motor vehicle putting Parker’s and Hendren’s life and personal safety at risk. According to the unrebutted testimony of Union Organizer Samuel Penn Sr., which I credit, the discharge of Cockrell had the effect of shutting the union campaign down as employees no longer attended union meetings. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by (a) Creating among its employees the impression that their union activities were under surveillance. (b) Unlawfully interrogating its employee Jeffrey Cockrell regarding his union activities. (c) Threatening Jeffrey Cockrell with discharge because of his engagement in union activities. (d) Threatening employee Jeffrey Cockrell with unspecified reprisals because of his engagement in protected concerted activities. 4. The Respondent violated Section 8(a)(1) and (3) of the Act by its issuance of a level III written disciplinary warning to employee Jeffrey Cockrell because of his participation in pro- tected concerted activities. 5. Respondent did not violate Section 8(a)(1) and (3) of the Act by its discharge of employee Jeffrey Cockrell. 6. The aforesaid unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in violations of the Act, it will be recommended that Respondent cease and BRIDGESTONE FIRESTONE SOUTH CAROLINA 537 desist therefrom and take certain affirmative actions to effectu- ate the purposes and policies of the Act and post the appropriate notice. It is recommended that Respondent remove the level III writ- ten warning from the employment records of Jeffrey Cockrell and advise him in writing of this and that such warning will not be used against him in any manner in the future. [Recommended Order omitted from publication.]