Gestamp South Carolina, LLC

GESTAMP SOUTH CAROLINA, LLC 357 NLRB No. 130 1563 Gestamp South Carolina, LLC and David Anthony Kingsmore and Reggie Alexander. Cases 11– CA–022595 and 11–CA–022628 December 8, 2011 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES On March 2, 2011, Administrative Law Judge Ira San- dron issued the attached decision. The Respondent filed exceptions. The Board has considered the decision and the record1 in light of the exceptions and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Gestamp South Carolina, LLC, Union, South Carolina, its officers, agents, successors, and assigns, shall take the action set 1 The Respondent has requested oral argument. The request is de- nied as the record and exceptions adequately present the issues and the positions of the parties. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Member Hayes agrees with the judge that the General Counsel es- tablished the animus element of his prima facie case under Wright Line, 251 NLRB 1083 (1980), enfd. 663 F.2d 899 (1st Cir. 1981), cert. de- nied 455 U.S. 989 (1982), based on Supervisor Fink’s comment to Kingsmore that “you’re gone” if Manager Evola found out about his union activity, the timing of the adverse actions against employees Kingsmore and Alexander, and the Respondent’s shifting reasons for disciplining Kingsmore. Further, he agrees that the Respondent failed to meet its Wright Line rebuttal burden to show that it would have terminated Kingsmore and suspended and fired Alexander even in the absence of their protected activity. In finding the violations, however, Member Hayes does not rely on the quality of the Respondent’s inves- tigation, the severity of the Respondent’s punishments, or the alleged failure to follow the progressive discipline system in finding animus. Nor does Member Hayes rely on the judge’s finding that it “is reasona- ble to believe that other employees reported Alexander’s and Kingsmore’s union activity to management” in finding that the Re- spondent knew of the employees’ union activity. Further, he would not draw an adverse inference based on the failure of General Manager Evola to testify regarding when he learned about Kingsmore’s inability to access the BMW site. 3 We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. forth in the Order as modified by substituting the follow- ing for paragraph 2(f). “(f) Within 14 days after service by the Region, post at its Union, South Carolina facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 1, 2010.” Jasper C. Brown Jr., Esq., for the General Counsel. John J. Coleman III and Marcel L. Debruge, Esqs. (Burr & Forman, LLP), of Birmingham, Alabama, for the Respond- ent. DECISION Statement of the Case IRA SANDRON, Administrative Law Judge. This matter arises out of a consolidated complaint and notice of hearing issued on September 30, 2010,1 against Gestamp South Carolina, LLC (the Respondent or Gestamp), stemming from unfair labor prac- tice (ULP) charges filed by David Anthony Kingsmore and Reggie Alexander, individuals. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by suspending and then discharg- ing Kingsmore and by discharging Alexander because they engaged in organizing activities on behalf of the United Steel- workers (the Union). The complaint further alleges that a su- pervisor committed two independent violations of Section 8(a)(1). Pursuant to notice, I conducted a trial in Columbia, South Carolina, from December 6–10, at which I afforded the parties full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 All dates hereinafter occurred in 2010, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1564 Issues (1) Did the Respondent suspend Kingsmore on February 17, and then discharge him on February 24, because he did not disprove the Respondent’s suspicion that he misrepre- sented the nature of his separation from prior employer BMW during his September 29, 2009 interview for a su- pervisory position, or because of his union activities? (2) Did the Respondent discharge Alexander on February 19 because he deliberately falsified his timesheet by claim- ing 38 extra minutes of pay for February 9, or because of his union activities? (3) Is Michael Fink a statutory supervisor and agent of the Respondent? (4) Did Fink, in approximately early February, unlawfully threaten Kingsmore with discharge for his union activi- ties? (5) Did Fink, on February 11, unlawfully interrogate Alexan- der about his union activities? Witnesses and Credibility The General Counsel called Alexander and Kingsmore, Un- ion Organizer Randy Rigsby, and the following employees: Human Resources (HR) Assistant Mary Harper, CMM Techni- cian Jimmy Stewart, Jr., and Forklift Driver Dean Tollison. The Respondent called the following managers/supervisors: HR Manager Susan Becksted, Maintenance Manager Dennis Blanton, General Manager Carmen Evola,2 Director of Purchas- ing and Logistics Roger Fuller, Quality Supervisor James Holt (who was an hourly employee at all times relevant), Mainte- nance Supervisor Daniel Morris, Assembly Shift Supervisor Jason O’Dell, Shipping and Receiving Manager Michael Sulli- van, and Quality Manager Jurgen Weckerman. The Respondent also called Quality Engineers Michael Fink and Charles Beasley. The General Counsel alleges Fink to be a statutory supervisor, a contention that the Respondent denies. Although Beasley holds the same position as Fink, he is not named in the complaint, and it is immaterial for purposes of this decision whether or not he is a statutory supervisor. Further, the Respondent called two employees: Line Tech- nician Dominic Gist, Sr., and IMS Leader Jennifer Meese. Deciding the issues in this case hinges on credibility resolu- tion, including the plausibility of certain accounts of conversa- tions and actions. Before going into specifics, I cite the well- established precept that “‘[N]othing is more common in all kinds of judicial decisions than to believe some and not all’ of a witness’ testimony.” Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). The trier of fact must consider the plausibility of a witness’ testimony and appropriately weigh it with the evidence as a whole. Golden Hours Convalescent Hospitals, 182 NLRB 796, 787–799 (1970). Alexander was generally credible. He answered questions 2 Evola has been the highest management official at the facility at all times relevant. See R. Exh. 10, an organizational chart. readily and with no apparent efforts to embellish or slant them, was appropriately consistent in his answers on direct and cross- examination, and his testimony comported with that of Rigsby, who was also credible. Kingsmore, on the other hand, was not fully reliable. I do take into account his apparent lack of sophistication and per- haps naïveté. This is reflected in his answer to my question of why he confided in Fink that he was trying to get the Union in. He readily answered that Fink “kind of made Alex Keller [Kingsmore’s supervisor] leave me alone . . . Keller was not a very nice person. . . . I’d had him throw stuff at me, cuss at me and grab me once.”3 That Kingsmore took such abuse from a supervisor certainly indicates that he was unaware of his ave- nues of recourse. Nonetheless, the following factors diminish his credibility, particularly vis-à-vis other witnesses who struck me as more reliable. As Kingsmore’s testimony progressed, he expanded on antiunion sentiments expressed by management/supervisors; his testimony that the Union did not instruct him to try to keep organizational activities from management’s knowledge was contradicted by Rigsby and Alexander (and possibly by com- mon sense); and his testimony on cross-examination did not fully comport with what he said on direct examination. The Respondent raised an issue about Harper’s status as a confidential employee, but in any event, she credibly testified only about general timekeeping practices in early 2010, and not on anything specific pertaining to Alexander or Kingsmore. Stewart, in contrast, was not a reliable witness. His demean- or was markedly defensive. That aside, his testimony was un- believable. Thus, he testified that at around the time Alexander was discharged, he was working at a computer when he over- heard Supervisor O’Dell make the statement on the floor, about 7 or 8 feet away, “We got one of them. Now the rest of them will probably be scared now, but there’s a couple more of them we got to get.”4 Yet, according to Stewart’s own testimony, he reacted casually and did not even bother to look up from the computer. This is particularly odd in light of Rigsby’s credited testimony that Kingsmore and Stewart were the first employees to have contact with the Union and were the most active mem- bers of the Union’s organized committee. O’Dell denied making any such statement, and I do not be- lieve that he would have been so crass. In this regard, I credit the Respondent’s witnesses’ testimony that training was given to supervisors concerning what they should and should not say to employees. I also accept their testimony that everyone in the production area must wear ear plugs, which interferes with hearing normal speaking other than in face-to-face conversa- tion. Accordingly, I do not credit Stewart’s testimony. One other witness was noticeably defensive: Manager Sulli- van, who appeared ill at ease throughout his testimony. As with Stewart, reasons aside from demeanor also lead me to 3 Tr. 437. Kingsmore’s testimony about his relationship with Fink was supported by Fink’s credible testimony that Kingsmore and other employees came to him to “vent” or seek advice when they experienced language problems with Keller and other members of the salaried group who had come from Germany. Tr. 607. 4 Tr. 68. GESTAMP SOUTH CAROLINA, LLC 1565 doubt his believability. Thus, he testified that he had no con- versations with Alexander about the discrepancy in the latter’s timecard records but then was directly impeached on this point by statements in his NLRB affidavit. He further testified that the reports two employees made to him that Alexander had come in late on February 9 did not lead him to investigate and compare the records, testimony that again was contradicted by his affidavit. Moreover, his testimony that he came across the discrepancies the following Monday in his routine checking of employees’ weekly hours for payroll was also inconsistent with his affidavit. I further note that his testimony about his role in checking the pertinent payroll records conflicted with Beck- sted’s account. This brings up a significant flaw in the Respondent’s presen- tation of its case. Alexander’s direct supervisor, Jean DeShields, was not called as a witness even though both Sulli- van and Becksted testified (albeit differently) that she played a role in the investigation of Alexander’s timecard and how it compared with the time clock records. I would have expected DeShields to testify on her role in Alexander’s investigation, particularly when the Respondent’s witnesses were incon- sistent. Similarly, Becksted testified that in early February, General Manager Evola told her that he had “just” learned that Kingsmore had been barred from BMW (an event that occurred in August 2009, 6 months earlier) and that they discussed what to do, yet the Respondent did not have Evola testify either about the circumstances of how he learned or about his conver- sation with Becksted. Leaving aside Kingsmore’s testimony, Supervisor Morris testified that he told Keller and Maintenance Supervisor Axel Zimmerman that day. Moreover, Becksted testified that when she called Keller in Germany in February, Keller confirmed Kingsmore’s testimony that on the day Kingsmore was barred, he called Keller and reported it. I would have expected Evola to testify about when and from whom he “just” learned of the BMW incident in February, es- pecially in light of the timing of the investigation and discipli- nary action vis-à-vis Kingsmore’s union activities. The Respondent’s failure to call DeShields or to elicit testi- mony from Evola on the above must be deemed to raise the suspicion that their testimony would not have corroborated Becksted and would have been unfavorable to the Respondent’s case. I therefore draw an adverse inference against the Re- spondent on these matters. See Palagonia Bakery Co., 339 NLRB 515, 538 (2003); Dalikichi Sushi, 335 NLRB 622, 622 (2001); International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem 861 F.3d 730 (6th Cir. 1988). I further note with regard to Becksted’s testimony that alt- hough she provided a very detailed account of her suspension interview with Kingsmore on February 17 (and her subsequent conversations with him), she professed little recall of specifics about her discharge interview with Alexander, just 2 days later. I also find suspicious her testimony that she did not know the name or identity of the person at BMW with whom she alleged- ly spoke concerning Kingsmore, and purportedly could not recall if she even documented such conversation at all. I would expect that, as an experienced and trained HR manager at a facility employing over 100 hourly employees, she would have realized the importance of documenting any such conversation, especially when Kingsmore was on suspension and facing dis- charge. In contrast to my reservations about Becksted’s credibility, Managers/Supervisors Blanton, Holt, Morris, O’Dell, and Weckerman appeared candid, they answered questions without any obvious attempt to slant the answers, and nothing in their testimony rang implausible. I will address Fink separately since his supervisory status is disputed. Blanton indirectly supported Alexander’s testimony that at a management meeting about the Union, certain employees threatened or implied violence against union supporters. Kingsmore testified that Blanton stated at such a group meet- ing, “[W]hat pisses me off is and I take personally is Gestamp came in here and bought us out, and the way we thank them is by calling the damn union.”5 No other witnesses corroborated Kingsmore on this, and I seriously doubt that Blanton would have used such intemperate language. Accordingly, I do not credit Kingsmore on this point. Fuller denied Alexander’s testimony that they had a conver- sation about how other employees were treating Alexander or about the Union. The General Counsel does not allege that Fuller said anything violating Section 8(a)(1) and, in light of other credited testimony, I need not resolve this conflict. Holt denied telling Kingsmore that Evola was firing employ- ees because of their union activities, and I credit him. Kingsmore did not testify at all about such an alleged statement until cross-examination—an unfathomable omission on direct examination and an example of how he expanded his testimony as he went along. Moreover, nothing in the record reflects that anyone was fired at the time. As noted earlier, Morris testified that he informed Keller and Zimmerman on the day that BMW barred Kingsmore. He also corroborated in part Alexander’s testimony that antiunion em- ployees had harassed him. Weckerman denied Kingsmore’s testimony that immediately after they left Kingsmore’s suspension meeting, they engaged in a brief conversation during which Weckerman said, “[P]eople are telling Carmen [Evola] that you are the one that called the Union and he believe[d] them.”6 Weckerman testi- fied that in their conversation, Evola was not mentioned. Ac- cording to Weckerman, Kingsmore sua sponte stated that his suspension was due to people saying he was related to the Un- ion, and Weckerman did not respond. Because Kingsmore equivocated on whether he or Weckerman brought up the Un- ion in the conversation, and in light of my overall credibility determinations, I credit Weckerman’s account. Fink struck me as truthful and reliable, a conclusion based both on his demeanor and on the substance of his testimony. In particularly, he candidly described a conversation that he had with Kingsmore about the Union in January–February, and he readily answered my questions concerning his supervisory au- thority over two offsite Gestamp employees who work fulltime at BMW. I further take note that although Alexander testified that Fink made a comment to him in early February that 5 Tr. 443. 6 Tr. 454; see also Tr. 597. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1566 demonstrated knowledge of Alexander’s union activities, the Respondent’s counsel did not elicit from Fink a denial or, in- deed, any testimony, about such a remark. Thus, Alexander’s version went unrebutted, and I credit it. To the extent that Beasley’s testimony was inconsistent with Fink’s in terms of their responsibilities and duties, I credit the latter. Finally, Gist, and Meese offered limited but generally credible testimony. Facts Based on the entire record, including testimony and my ob- servations of witness demeanor, documents,7 and stipulations, as well as the thoughtful posttrial briefs that the General Coun- sel and the Respondent filed, I find the following. The Respondent, a subsidiary of a company headquartered in Troy, Michigan, which in turn is a division of Gestamp Auto- mocion in Spain, owns and operates a plant in Union, South Carolina (the facility). There, it assembles and presses large “Class A” motor vehicle parts, the large outer pieces of a vehi- cle that the consumer first sees (including doors, hood, and roof). The Respondent has admitted jurisdiction as alleged in the complaint, and I so find. The Respondent purchased the facility from LSP effective October 1, 2009. It retained LSP’s employees and continued LSP’s personnel policies, including those set forth in the LSP employees’ handbook.8 The handbook provided, inter alia, that misleading or false statements made in an application form or during an interview would result in withdrawal of an offer of employment or in immediate dismissal (p. 11). The handbook also contained a provision (p. 25) setting out three steps of discipline: verbal warning, written warning, and termination, depending on the severity of behavior; stating that the Compa- ny could also utilize a fourth step of suspension without pay; and reserving the Company’s right, in its sole discretion, to determine the appropriate corrective action, including termina- tion. At the time of the Union’s organizing efforts, in January– February, the Respondent employed approximately 100–110 hourly production employees and 35 salaried employees, in- cluding supervisors and engineers. The Respondent’s sole customer was BMW, for which it made Class A parts for the BMW X6, a “crossover” or luxury vehicle. Most employees worked either the first (8 a.m.–4 p.m.) or second (4 p.m.– midnight) shifts. Only a small “skeleton” crew worked the third shift, midnight–8 a.m. Alexander, hired by LSP in June 2007, was a supply coordi- nator on the first shift and responsible for taking care of parts and supplies that employees needed throughout the plant. He was the sole employee based in the tool crib or general storage area and spent about 80 percent of his working time there, the remainder in various areas of the facility. Alexander’s supervi- sor was Logistics Manager Jean DeShields; however, Sullivan had the responsibility of timekeeping for her employees, as well as those he directly supervised. Alexander testified with- out controversion that prior to his termination, he received no 7 The Respondent’s unopposed motion to supplement the record, filed on January 14, 2011, is granted. 8 R. Exh. 9, in effect at all times material. written warnings or suspensions. Kingsmore, whom LSP hired in May 2007, was a first-shift quality inspector. His job was to inspect body parts and inner body parts for defects or for any other problems that would keep them from passing BMW’s standards. On a daily basis, he left his work station and went to other areas of the building to perform his duties. At times, another individual performed more detailed checks, and Kingsmore had a counterpart on the second shift. Keller was his supervisor until Michael Greene took over in that position shortly before Kingsmore’s discharge. The Respondent’s counsel represented that prior disciplines Kingsmore received played no part in his discharge.9 Fink’s Status Under Section 2(11) For purposes of this decision, Section 2(11) of the Act de- fines “supervisor” as an individual having authority, in the interest of the employer, to, inter alia, assign, reward, or re- sponsibly direct other employees, or effectively to recommend such action, if the exercise of such authority is not merely rou- tine or clerical in nature but requires the use of independent judgment. An individual need possess only one of these indi- cia. NLRB v. Yeshiva University, 444 U.S. 672, 682 fn. 13 (1980); Mountaineer Park, Inc., 343 NLRB 1473, 1474 (2004); Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003). Kingsmore testified that Fink regularly assigned him work and overtime and authorized his requests for time off. On the other hand, both Fink and Manager Weckerman, Keller’s su- pervisor, testified to the contrary, stating that Fink had no su- pervisory authority over Kingsmore. Fink did testify that, once a month or so, at most, he instructed Kingsmore to perform certain work, after first consulting with Keller, and that, on occasion, he has signed off on an employee’s request for vaca- tion when Keller was on vacation or otherwise unavailable. Fink was a more credible witness than Kingsmore, and I credit his corroborated testimony over Kingsmore’s. I again note that according to both Kingsmore and Fink, Fink some- times operated as something of an intermediary between Kingsmore and Keller, with whom Kingsmore had a difficult relationship, in part because of language issues. As to Fink’s occasionally substituting for Keller in granting requests for vacation leave, sporadic assumption of supervisory duties is insufficient to establish supervisory status at other times. See, e.g., Kanawha Stone Co., 334 NLRB 235, 237 (2001); Carlisle Engineered Products, 330 NLRB 1359, 1361 (2000). This same rationale would appear applicable to Fink’s less-than-monthly instructions to Kingsmore to perform certain work. Moreover, nothing in the record reflects whether Fink sua sponte determined that Kingsmore should perform certain work or received requests for such from other employees or supervisors and then related them to Keller. In any event, the burden to show supervisory status is on the party asserting such. Loyalhanna Care Center, 352 NLRB 863, 865 (2008); Masterform Tool Co., 327 NLRB 1071, 1071 (1999). The General Counsel has not done so. Accordingly, I find that Fink had no supervisory authority over any hourly employees in the plant. On the other hand, his 9 Tr. 488. GESTAMP SOUTH CAROLINA, LLC 1567 testimony reflected his supervisory authority over the two Ges- tamp employees who work full time off-site at BMW’s plant in Greer, South Carolina: Christopher Coggins and Reginald Fleming. Thus, he gives them instructions, and if they have any problems, they report them to him or Beasley. When they need to take off early, they inform him or Beasley. If they need time off for an emergency, they contact him or Beasley. In such situations, Fink gives initial approval; final approval is left to Weckerman, who has never disagreed with him. Fink and Beasley prepare their biannual evaluations and review their training reports, the results of which can impact on their getting raises; Weckerman has never disagreed with Fink’s recommen- dations. Fink’s authority to effectively recommend the perfor- mance evaluations of the two off-site employees, which affects their remuneration, is sufficient, standing alone, to establish supervisory status. As the Supreme Court articulated in Yeshi- va University, above, at 683 fn. 17: The statutory definition of “supervisor’ expressly contem- plates that those employees who “effectively . . . recommend” the enumerated actions are to be excluded as supervisory. 29 U.S.C. § 152(11). Consistent with the concern for divided loyalty, the relevant consideration is effective recommenda- tion or control rather than final authority. In Pepsi-Cola Co., 327 NLRB 1062, 1063 (1999), the Board stated, “The fact that the account representatives exercise their authority over employees who are not included in the bargain- ing unit does not preclude the Board from finding the account representatives to be statutory supervisors. Where the perfor- mance of supervisory functions is ‘part and parcel of the indi- vidual’s primary work product rather than an ancillary part of their duties,’ the Board has found individuals to be statutory supervisors although they exercise such authority over nonunit personnel.” See also Union Square Theatre Management, 326 NLRB 70, 72 (1998); Rite Aid Corp., 325 NLRB 717 (1998); Detroit College of Business, 296 NLRB 318, 320–321 (1989). I recognize that the above cases pertain to whether an indi- vidual was eligible to join the bargaining unit or was precluded as a 2(11) supervisor. However, the same reasoning appears applicable to whether statements made by such an individual to rank-and-file employees are imputable to the employer. I am unaware of any Board decisions expressing the doctrine that an individual can be found a statutory supervisor for some purpos- es but not for others. In other words, whether an individual is or is not a statutory supervisor is an all-or-nothing proposition, and holding otherwise would be anomalous. I find, based on Fink’s testimony, that Fink’s supervision of Coggins and Fleming is an important component of his primary work responsibilities, particularly in light of the dependence of Gestamp on BMW. Accordingly, I conclude that Fink has been a statutory supervisor over the Respondent’s employees at the BMW plant. Ergo, I further conclude that his statements to employees at the facility, including Alexander and Kingsmore, were imputable to the Respondent. Union Organizing Activity In late December 2009, Kingsmore initiated contact with the Union in Pittsburgh, Pennsylvania, concerning organizing the facility’s hourly employees.10 The Union assigned Rigsby to follow up with him. Rigsby’s first contacts were with Kingsmore and Stewart. The Union’s strategy, conveyed to Alexander, Kingsmore, and other employees, was to keep or- ganizing efforts from the Company’s knowledge. Alexander and Kingsmore were among the seven or eight employees on the organizing committee that Rigsby formed. Rigsby held approximately four meetings of employees in late January and early February, three at a hotel in Union, South Carolina, and one in an apartment. Alexander and Rigsby at- tended all but one of them. Alexander was vocal at these meet- ings. After the last of the meetings, in mid-February, the Union decided to discontinue its organizing efforts. Both Alexander and Kingsmore spoke to other employees about supporting the Union after work, on breaks, and during and after lunch times. In January–February, management became aware of the Un- ion’s organizing efforts because of the many questions that employees were asking on the subject,11 and Evola heard of such activity on or before February 1.12 In approximately early February, Kingsmore had conversa- tions concerning the Union with Fink and Sullivan, as fol- lows.13 At his work area, Kingsmore told Fink that he was going to try to unionize the plant. Fink warned him to be careful be- cause if Evola found out, “[Y]ou’re gone.”14 As noted earlier, Fink recalled that Kingsmore initiated a conversation about the Union but could not recall the specifics, and both of them of- fered testimony demonstrating why Kingsmore would have considered Fink something of a confidant. Kingsmore spoke to Sullivan in the smoking dock area. He asked Sullivan what he thought about the Union. Sullivan re- plied that it was good for employees and bad for management and talked about his experiences working in union plants and the pro’s and con’s of union representation. Kingsmore said that he was going to try to get the Union in. Kingsmore credi- bly testified that he had this conversation with Sullivan because he considered him sympathetic. I again note Sullivan’s unreli- ability as a witness. Shortly thereafter, Kingsmore spoke to Sullivan before the latter was scheduled to attend a meeting with the Company’s legal counsel concerning the Union. Sullivan stated that if Kingsmore had anything to say to him about the Union, to say it then because after the meeting, Sullivan would no longer be able to talk to him on the subject. It is undisputed that Kingsmore later called Evola and told him that rumors that Kingsmore was for the Union were false. At the time, Evola testified, he had not heard any such rumors “other than discussions with my attorneys.”15 In early to mid-February, management, through Evola or 10 R. Exh. 6 at 1–2. 11 Tr. 771, testimony of Blanton. 12 Tr. 909, testimony of Becksted. 13 The dates he gave for them were somewhat contradictory and con- fusing as far as whether they occurred in late January–early February or in mid-February. 14 Tr. 436. 15 Tr. 742. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1568 Blanton, conducted group meetings with approximately 20 employees each, explaining the Respondent’s perspective re- garding unionization. The General Counsel has not alleged that anything Evola or Blanton said violated the Act. Alexander and Meese attended one of Evola’s meetings, on about February 11,16 and Kingsmore one that Blanton led on about that same date. Statements that other employees made at and after those meetings reflect how divisive the issue of union- ization was among them and the maelstrom of emotion generat- ed. Kingsmore testified that at the meeting he attended, an em- ployee asked who had called the Union. Blanton replied that it did not matter, and the employee said that when they found out, “[W]e’re going to catch him in the parking lot and whip his ass.”17 Although Blanton did not recall any employees making threats at that meeting, he did recollect stating, “[T]here’s no place for that. We need to make sure that that doesn’t hap- pen.”18 These remarks would naturally follow the making of a threat or suggestion of violence or other illegal retaliation against union supporters, thereby indirectly corroborating Kingsmore’s testimony, which I therefore credit. At the meeting Alexander attended, Meese and other em- ployees made remarks about the effects on employees if the Union came in, including a possible shutdown. After the meet- ing, Alexander returned to his work station. Soon afterward, three employees came over, two together and one separately, and accused him of being one of those trying to bring in the Union. Alexander named Gist as one of them. Although Gist put the time of their conversation as shortly after he and Alex- ander arrived to work, he did recall approaching Alexander and stating that he had overheard that Alexander might have some- thing to do with the Union. In part because Morris corroborated Alexander’s version of what occurred, I credit Alexander. However, in any event, Gist’s account is not necessarily inconsistent with Alexander’s as far as substance and similarly reflects suspicions among employees that Alexander was one of the chief union support- ers. Later that day, Alexander testified, he had a conversation with Morris in the tool crib in which he related the accusations that the three employees had made against him. Morris asked if they were causing a hostile work environment, and Alexander replied that he did not know. Morris’ account was quite simi- lar. He recalled a conversation in the tool crib that they had after he observed Alexander appearing quite upset. He asked Alexander why he was so bothered, and Alexander answered that “his coworkers were harassing him about this ‘union stuff.’”19 Morris asked if he was being harassed, and he said no. Morris reminded him of the Company’s antiharassment policy and that Morris had an open door at all times. I credit Alexander’s unrebutted testimony that following the 16 The date is based on Alexander’s testimony; the Respondent pro- vided no documents or other evidence of another specific date of the meeting. 17 Tr. 444. 18 Tr. 777. 19 Tr. 648. conversation with Morris, Fink came by the tool crib and made the comment, “I didn’t know you were one of the ones that was trying to bring the Union in.”20 Alexander did not respond. Another employee, whose identity Alexander could not recall, was in the vicinity. Alexander further testified that on the day he was dis- charged, February 19, he brought the subject up again with Fuller. According to Alexander, as Fuller walked by the tool crib, they exchanged greetings, after which Alexander injected, “I’ve had three different people come up to me, talking to me about my union activity.”21 Fuller simply replied that he would get back to him. Fuller denied ever having such a conversation. My problem with Alexander’s version concerns the date he gave—a week after the incident occurred—and the absence of an explanation of why he would have abruptly interjected the subject at that time. Possibly, Alexander did make the statement to Fuller but was mistaken as to the date and circumstances. Regardless, the version that Alexander set out was implausible, and I do not credit it. Review of Alexander’s February 9 Time Records Alexander, Becksted, Harper, and Sullivan all testified that it was normal procedure at Gestamp for hourly employees to create weekly self-prepared timesheets detailing their start times, end times, and total hours, and to submit them to their supervisors. All further testified that employees also “swiped” in and out of an electronic time system upon arrival and depar- ture, thereby creating an electronic timecard report that supervi- sors used to verify the reporting on the timesheets. This system of dual timekeeping began in December 2009, and Harper testi- fied that through February employees were paid according to their timesheets, which supervisors normally turned in to Har- per by 5 p.m. on Mondays. As previously stated, Sullivan han- dled timekeeping for DeShield’s employees, including Alexan- der. During the week of February 8, Alexander arrived late on two occasions, February 9 and 10.22 He maintained a prepre- pared template on his computer with 7 a.m. start times for his timesheet. Most likely on Friday, February 12, he changed his start time for February 10 to reflect his late arrival at 7:15 a.m. but neglected to do so to reflect his late arrival at 7:38 a.m. on February 9. Alexander had no record of timesheet cheating or any other dishonest conduct, and I find it quite unlikely that he would have deliberately falsified his timesheet, knowing that Sullivan weekly checked his timesheet against the electronic records. I therefore credit Alexander’s testimony that he did not deliberately seek to steal 38 minutes of time but instead simply forgot to make the change. On the morning of February 9, two hourly employees whom Sullivan directly supervised, Melvernia Jeter and Dean Tolli- son, asked whether Alexander had a new start time after they 20 Tr. 316. 21 Tr. 318. 22 See GC Exh. 2, his timesheet for the week. GESTAMP SOUTH CAROLINA, LLC 1569 observed him arrive late.23 Sullivan’s account of his subsequent actions conflicted with his affidavit. He testified that their comment did not lead him to inquire into Alexander’s timesheet and that he came upon Alexander’s timecard 6 days later, in the usual course of busi- ness of checking timecards for all logistics department employ- ees. Similarly, he testified that their comment did not cause him to handle Alexander’s timecard any differently. However, in his affidavit, he stated that their remark triggered his investi- gation into Alexander’s timesheet. In any event, when Sullivan compared Alexander’s electron- ic timecard24 to the timesheet Alexander submitted, he noticed the discrepancy between the 7 a.m. start time in the timesheet and the 7:38 a.m. start time reported by the electronic timecard system for February 9. He advised Alexander of this discrep- ancy when Alexander came to his office to request a vacation day. Alexander insisted that if he wrote 7 a.m., then 7 a.m. was correct. Alexander testified that Sullivan responded, “Well, I’ll fix it this time. Be more careful about your time.”25 Sullivan denied ever having any conversation with Alexander about the discrepancy—testimony directly contradicted by Sullivan’s affidavit and by Tollison’s, account that he witnessed Sullivan and Alexander discuss the electronic time clock in Sullivan’s office. In light of Sullivan’s impeachment on this point and his general unreliability, I credit all of Alexander’s testimony re- garding this conversation and find that Sullivan promised to fix the discrepancy. Prior to Alexander’s termination meeting, no one from management ever again mentioned the matter to Al- exander. Because Sullivan and Becksted offered different accounts of DeShields’ involvement in the investigation of Alexander’s time records, and the Respondent did not call DeShields as a witness, I am not satisfied that the Respondent provided a full and accurate account of what subsequently transpired. Suffice to say, Sullivan, on February 15, corrected the timesheet by striking out the 7 a.m. start time and manually writing in 7:38 a.m. above it, and correspondingly adjusted the total hours for the day from 8 hours to 7.12 hours. These corrections were made before Alexander’s timesheet for the week went to pay- roll, and he was in fact paid for only the actual hours that he worked. Becksted testified that after she confirmed the discrepancy with DeShields, she brought the matter to Evola’s attention. However, she did not describe the conversation on the record, and Evola offered no testimony thereon. I credit the following testimony of Alexander over Sullivan’s denial. On two earlier occasions, both about 3 months before Alexander’s termination, Sullivan corrected his timesheets. In both instances, they concerned Alexander’s inadvertent failure to put in dates. I note that Sullivan admitted to correcting other employees’ timesheets on occasions when the electronic time system was not working properly. 23 I credit Sullivan on this. His testimony comported with statements in his affidavit, GC Exh. 11, and Tollison testified that he did not re- member and therefore did not controvert Sullivan’s version. 24 GC Exh. 3. 25 Tr. 320. Alexander’s Discharge on February 19, 2010 Becksted conducted a termination meeting with Alexander on the afternoon of February 19, in Fuller’s office. Fuller and DeShields were also present. Fuller testified that he played no part in the decision to discharge Alexander and attended solely as a witness. Becksted began by describing the time discrepan- cy on February 9 between the 7 a.m. self-reported start time and the 7:38 a.m. start time shown by the electronic timecard. Al- exander replied that he had discussed the problem with Sulli- van, who had promised to fix it. Fuller interjected that he had no knowledge of that. Becksted stated that Alexander had vio- lated company policy and was immediately terminated for falsi- fying his timesheet. Kingsmore’s Suspension on February 17 Before coming to LSP, Kingsmore was employed at BMW from August 9, 1999, to May 21, 2007.26 His employment application for LSP was blank as far as previous employment,27 and he did not fill out a new application when Gestamp as- sumed control of the facility. In August 2009 (the exact date is unknown), while the plant was still under LSP ownership, both Kingsmore and Supervisor Morris were scheduled to take a tour of BMW’s Geer, South Carolina plant. Morris was allowed entry, but Kingsmore was denied entrance. BMW representatives gave neither him nor Morris any reason for this bar. Morris proceeded to go on with the tour, which lasted 2 to 3 hours. Afterward, he returned to the LSP plant and informed both his own supervisor, Axel Zimmerman, and Kingsmore’s supervisor, Keller, that Kingsmore was denied access. Immediately after being barred, Kingsmore called Keller from the BMW parking lot and in- formed him of what had occurred. When Becksted spoke with Keller in February, he confirmed that Kingsmore had called him in August 2009 and stated that he had been denied access into the BMW plant. Kingsmore testified, in considerable detail, that as soon as he returned to LSP that day, he went into Evola’s office and told Evola that guards at BMW had refused to allow him to enter the plant. Per Kingsmore, “I went to Carmen’s office, and I said they wouldn’t let me in. And he said I don’t know what I was thinking. He said I knew they wasn’t [sic] going to let you in; you used to work there. I said yes, sir. He said, well, I’m sorry I wasted your time. I said, no, you didn’t waste my time. I said I’ve been on the clock.”28 Kingsmore’s account of in- forming Evola remained substantively consistent throughout his testimony. Evola directly contradicted this account, testifying both that he and Kingsmore never had any conversations about Kingsmore’s inability to enter BMW and that in August 2009, he had no knowledge that Kingsmore was barred from BMW. In this regard, Becksted testified that Evola approached her in early February and told her that he had “just” learned that Kingsmore had been barred from BMW.29 She could not recall 26 See GC Exh. 5. 27 R. Exh. 12. 28 Tr. 472. 29 Tr. 924. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1570 what he said about who informed him. The Respondent’s fail- ure to have Evola testify about how and when he learned that Kingsmore was barred from BMW (or concerning his conver- sation with Becksted) raises the suspicion that Evola’s testimo- ny on when he learned of the bar would have been unfavorable to the Respondent’s case. I therefore draw an adverse inference against the Respondent on the matter and credit Kingsmore’s testimony that he told Evola in August 2009. On September 2, 2009, Kingsmore applied internally for promotion to a quality supervisor position, for which Becksted and Weckerman interviewed him on September 29, 2009. In the course thereof, Becksted asked why he had left BMW. He replied that he was tired of the long commute and being away from his family. She did not specifically ask if his separation from BMW was voluntary or involuntary, and nothing in either her interview summary or Kingsmore’s internal job application addresses this point.30 Kingsmore’s ability to access the BMW plant was never mentioned. Kingsmore did not receive the promotion. Becksted testified as follows. In early February, Evola called her into his office and stated that he had just learned that Kingsmore was banned from BMW. Becksted was startled because she believed that Kingsmore had told her in the inter- view that he left BMW voluntarily, and she found it incon- sistent that someone could both leave BMW voluntarily and be banned from the plant. She was also concerned because Ges- tamp employees need to be able to go to BMW, as Gestamp’s only client. She expressed those concerns to Evola, who in- structed her to investigate fully the reasons why Kingsmore left BMW and why he was banned from their premises. Next, she called Keller, who was in Germany. He told her that Kingsmore advised him of the ban in August 2009. Becksted then returned to Evola, described her conversation with Keller, and said that she planned to call Kingsmore into a meeting to ask him face-to-face whether or not he had left BMW volun- tarily and whether or not he was in fact banned. On February 17, Becksted met with Kingsmore and Weck- erman in the latter’s office. Weckerman played no role in the decision to suspend Kingsmore. In that meeting, Kingsmore stated that he left BMW on a voluntary basis because of the long drive and his desire to spend more time with his family. When Becksted said that she learned Kingsmore was barred from BMW, he did not deny it. She stated that she would need additional information about why he was banned from BMW’s premises and asked him to sign a release form authorizing her to get information directly from BMW.31 Kingsmore hesitated, stating that he did not understand what the document was. He asked what would happen if he did not sign, and she replied that he could be terminated. Kingsmore signed the release and asked for a copy. Becksted left to confer with Evola. They agreed that Kingsmore should not receive a copy of the release because it was an internal company document. She returned to Wecker- man’s office and so informed Kingsmore. She told him that he was suspended with pay, effective immediately, and that during 30 See R. Exh. 14. 31 GC Exh. 4. his suspension he was not allowed to enter the Respondent’s premises or communicate with other employees because it would interfere with the investigation. Weckerman went with Kingsmore to retrieve his personal items and then to the front door to exit the facility. At the breezeway near the exit, they engaged in a brief conversation. Kingsmore stated that he believed his suspension was due to the Union. Weckerman replied that he did not know about that. Kingsmore’s Discharge on February 24 On the day of the suspension, February 17, Becksted sent the release to BMW, to which she received no response. As a re- sult, within 2 business days following Kingsmore’s suspension, she called BMW. A man there stated that he would not give her any information regarding Kingsmore’s employment at BMW. By her own admission, the conversation lasted mere “seconds.”32 Becksted testified, incredibly, that she could not recall if she made any kind of notation of the phone call, and she could not provide a specific time and date or the name and title of this BMW employee.33 If a memorandum was in fact made, it was not offered in evidence. Various witnesses of the Respondent testified to the need of Gestamp employees to visit the BMW plant, the Respondent’s sole customer at times relevant. They take tours of the BMW plant and may be required to go there when BMW requests assistance or when the two on-site Gestamp employees are off. Becksted testified that quality department supervisors visit the BMW plant on a regular basis, consistent with Holt’s testimony that he has gone there three or four times. Regarding what his reaction would be on learning that an employee was refused access to the BMW plant, Evola stated, “I’m 100 percent cer- tain there’s no way as a leader in the company that an associate could come to me with such dramatic news and me not take any action whatsoever.”34 However, the Respondent’s counsel represented that Kingsmore’s inability to enter the BMW plant per se played no part in his suspension or discharge, and that “misrepresentation and failure to provide information” were the sole bases for his discipline.35 On the morning of Monday, February 22, Becksted called Kingsmore and stated that she had been unable to get any de- tailed information from BMW on why he had left. She advised Kingsmore that he was now responsible for getting information from BMW that would clearly state why, by 5 p.m. on Wednesday, February 24. Kingsmore replied that he would do his best. I credit his unrebutted testimony that he denied her suggestions that he had been fired from BMW. Kingsmore called BMW HR. Several representatives told him that BMW would provide only a verification of the dates of his employment. Upon receiving a letter stating such on Febru- ary 24, Kingsmore faxed it to Becksted at 3:53 p.m., along with an explanation that this was the only information he could ob- 32 Tr. 945. 33 More precisely, she professed not to recall if she made any kind of record thereof (Tr. 936), testimony that is even more incredible and damaging to her credibility. 34 Tr. 732. 35 Tr. 766. GESTAMP SOUTH CAROLINA, LLC 1571 tain.36 After receiving the fax that afternoon, Becksted called Kingsmore. She said that this was not the information she had requested and that he was terminated. At trial, I admitted, over the Respondent’s objections, two documents going to the issue of Kingsmore’s separation from BMW. The first is General Counsel’s Exhibit 9, on its face a BMW document dated May 21, 2007 email stating that Kingsmore voluntarily resigned his employment. The second is General Counsel’s Exhibit 15, a December 10 email to the Re- gion from Steve Warren, BMW’s attorney, confirming that a document of resignation signed by Kingsmore is contained in BMW’s files. Because neither of these documents were availa- ble to any of the parties at the time of Kingsmore’s suspension or termination, they cannot have a bearing on deciding the Re- spondent’s motivation for those actions. Whether Kingsmore’s separation from BMW was a resignation, resignation in lieu of discharge, or a discharge is not an issue before me. Other Instances of Discipline by the Respondent The Respondent presented testimony regarding the discharge of two other employees for first offenses. One was Ron Gist, who was terminated within a month before trial, for failing to report a forklift accident in accordance with Gestamp’s acci- dent policy. Becksted terminated him immediately after she conducted a full investigation, which found him responsible, and he admitted culpability. The second was William Gregory, for sanding words into vehicle sides, considered destruction of company property. A department supervisor brought the matter to Becksted’s attention. After an investigation and Gregory’s admission, Becksted immediately terminated him. The Re- spondent provided no date for his discharge. The Respondent also submitted former employee Joseph Hicks’ timesheet for the week of April 12, and a determination by the South Carolina Employment Security Commission that he had been allowed to resign in lieu of discharge.37 However, the Respondent failed to elicit any testimony regarding the circumstances of his separation, and Becksted could not say when it occurred. I am therefore unable to ascertain how simi- lar or dissimilar his situation was vis-à-vis Alexander’s. Analysis and Conclusions The General Counsel alleges that the Respondent discharged Alexander and suspended and discharged Kingsmore in viola- tion of Section 8(a)(3) and (1) of the Act. The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must make a prima facie showing sufficient to support an inference that the employee’s protected conduct motivated an employer’s adverse action. The General Counsel must show, either by direct or circumstantial evidence, that the employee engaged in protected conduct, the employer knew or suspected the employee engaged in such conduct, the employer harbored animus, and the employer took action because of this animus. Under the Wright Line framework, if the General Counsel 36 GC Exhs. 5 & 6. 37 R. Exhs. 17 & 18. makes a prima facie case of discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the evidence, that protected activity was a motivating factor in the employer’s action. Once this is established, the burden of persuasion shifts to the employer to show that it would have taken the same ad- verse action even in absence of the protected activity. NLRB v. Transportation Corp., 462 U.S. 393, 399, 403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To meet this burden, “an employer cannot simply present a legitimate reason for its ac- tion 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, 1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). If the employer’s proffered defenses are found to be a pre- text, i.e., the reasons given for the employer’s 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 rea- sons, 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 might have played some part in the employer’s motivation, the employer 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). The initial question is whether Alexander’s and Kingsmore’s actions qualify as protected, concerted activity under Section 7 of the Act. I find that the General Counsel has established this element inasmuch as Alexander and Kingsmore actively partic- ipated in a union–organizing campaign. More specifically, Kingsmore initiated contact with the Union, he and Alexander were on the organizing committee that Rigsby formed, and they attended several union-sponsored meetings for employees at which Alexander was vocal. In addition, both solicited support for the Union from other employees after work, on breaks, and during and after lunch times. Secondly, I conclude that Respondent knew of their union activities—several members of management/supervision had direct knowledge, as follows. Alexander communicated to Supervisor Morris that “his coworkers were harassing him about this ‘union stuff,’” and Supervisor Fink stated that he had heard of Alexander’s involvement in seeking to bring in the Union. Kingsmore told Supervisors Fink and Sullivan that he was trying to get the Union in. It is well established that a supervisor’s knowledge of union activities is imputed to the employer unless credited testimony establishes the contrary. State Plaza, Inc., 347 NLRB 755, 756–757 (2006); Dobbs International Services, 335 NLRB 972, 973 (2001); Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82, 82 (1983). The Respondent chose not to have Evola testify as to wheth- er he had knowledge of Alexander or Kingsmore’s union activi- ty at the time of their suspension/terminations, so there is no credited testimony denying that Morris, Sullivan, or Fink transmitted their knowledge to Evola. He did testify that he DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1572 believed Kingsmore when Kingsmore called and assured him that rumors of Kingsmore’s union activity were untrue.38 However, even if so, this was not tantamount to testimony that he had no knowledge of Kingsmore’s union activities at the time Kingsmore was suspended and then discharged. I further note Evola’s testimony that at the time of this conversation, he had not heard any rumors about Kingsmore trying to bring in the Union, “other than discussions with my attorneys.” The Respondent argues (R. Br. at 22) that none of the “deci- sionmaking supervisors” involved in the decision to discharge Alexander or the decisions to suspend and discharge Kingsmore were aware of either’s union activities, and (R. Br. at 28) that Becksted made the decisions. True, the record remains unclear on who made the decisions, but this is because Evola did not testify whether he did or did not play a role therein and, contrary to the Respondent’s con- tention, Becksted did not specifically testify that she made them or who else did. Inasmuch as Becksted admittedly consulted with Evola on whether to investigate Kingsmore and, later, whether she should give Kingsmore a copy of the release he signed, I must doubt whether she would have not also have consulted with him about the far more drastic measure of dis- charging employees. Ultimately, the Respondent bears the responsibility for the insufficiency of the record evidence on who made the decisions, and I will not reward the Respondent with any favorable inferences. Assuming arguendo that I accepted the Respondent’s argu- ment that supervisors’ knowledge should not be imputed to Gestamp’s management, the element of knowledge can be sat- isfied by reasonable inference. Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 983 fn. 36 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009). See also Active Transportation, 296 NLRB 431, 431–432 (1989), enfd. 924 F.2d 1057 (6th Cir. 1991) (knowledge inferred where, inter alia, three of four discharged employees engaged in union activities in the presence of employee who was an informer for the em- ployer); Clark & Wilkins Industries, 290 NLRB 106, 106 (1988), enfd. 887 F.2d 308 (D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990) (imputing supervisor’s knowledge to employer where supervisor observed organizing campaign in small shop). Here, the union campaign clearly created a highly-charged atmosphere that engendered widespread sentiments among employees, both for and against the Union. This is best reflect- ed in the threat of physical violence that an employee made against union supporters at a management–conducted meeting, and the accusations that three employees leveled against Alex- ander. In these circumstances, it is reasonable to believe that other employees reported Alexander’s and Kingsmore’s union activities to management. The General Counsel’s final burden under Wright Line is to show that the Respondent harbored antiunion animus and took discriminatory action because of this animus. The only direct evidence of animus is Supervisor Fink’s warning to Kingsmore that, “You’re gone” if Evola found out that he was trying to unionize the plant. Nevertheless, infer- ences of animus and discriminatory motivation can be warrant- 38 Tr. 735. ed under all the circumstances of a case, even in the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992); Electronic Data Systems Corp., 305 NLRB 219, 219 (1991), enfd. in relevant part 985 F.2d 801, 805 (5th Cir. 1993). The timing of the Respondent’s actions raises a bright red flag, especially as to Kingsmore. Evola and Supervisors Keller, Morris, and Zimmerman all knew in August 2009 that he was barred from entering BMW’s plant, but no one from manage- ment or supervision again mentioned the subject to Kingsmore until his suspension meeting with Becksted on February 17. Thus, the Respondent had knowledge of Kingsmore’s ban from entering BMW’s plant for over 6 months yet took no action whatsoever until only weeks after he first engaged in union activities. Alexander, too, was discharged just weeks after he began engaging in union activities. Adverse action occurring shortly after an employee has engaged in protected activity raises an inference of unlawful motive. State Plaza, Inc., above at 756; La Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003). So does the severity of the discipline that the Respondent imposed in proportion to the offenses. See Detroit Paneling Systems, 330 NLRB 1170, 1170 (2000); KNTV, 319 NLRB 447, 452 (1995). Alexander and Kingsmore were the first in- stances of the Respondent immediately discharging an employ- ee for alleged timesheet falsification or the falsification of prior work history. The Respondent represents Gist and Gregory as other em- ployees terminated for first offenses in similar circumstances (R. Br. at 27–28). However, those situations were distinguish- able in that they involved physical damage to company proper- ty: Gist was terminated for failing to report a forklift accident and Gregory for deliberately vandalizing a vehicle. In contrast, Alexander’s timesheet discrepancy and anything that Kingsmore said in the interview for a supervisory position re- sulted in no harm to the Respondent whatsoever. Thus, Alex- ander’s error was caught prior to his pay being submitted to payroll, and he received only the remuneration to which he was entitled for the day in question. Even crediting Becksted, Kingsmore’s reason for leaving BMW came up as an issue only as a result of his interview for a promotion that he did not re- ceive. I again note the Respondent’s counsel’s representation that the Respondent discharged Kingsmore solely for misrepre- sentation and failure to provide information, not because he was barred from BMW. Additionally, both Gist and Gregory admitted to the misconduct, a factor not present here. Signifi- cantly, the Respondent did not have affirmative evidence that either Alexander deliberately falsified his timecard or Kingsmore his employment history but instead chose to paint their conduct in the worst light possible. This brings up another factor that leads to the inference of animus and constitutes evidence of discriminatory intent against Alexander and Kingsmore: the Respondent’s failure to conduct full and fair investigations. See Hewlett Packard Co., 341 NLRB 492, 492 fn. 2 (2004); Firestone Textile Co., 203 NLRB 89, 95 (1973). Becksted never spoke to Alexander at all prior to his dis- charge. By her own testimony, she simply looked at the pa- GESTAMP SOUTH CAROLINA, LLC 1573 perwork, decided that Alexander had deliberately lied on his timesheet, and terminated him. Both employees and manage- ment were well aware that an electronic system was in place to monitor attendance, and that supervisors compared self– prepared and electronic records, yet Becksted presumably con- cluded that Alexander deliberately sought to cheat the Re- spondent out of 38 minutes of work time without first inquiring as to whether he had an alternate explanation for the discrepan- cy. The Respondent’s willingness to discharge Alexander without even interviewing him or affording him an opportunity to defend against the serious accusation of deliberate falsifica- tion is evidence that the Respondent’s true motivation was Al- exander’s protected activities. See Joseph Chevrolet, Inc., 343 NLRB 7, 8 (2004); Tubular Corp. of America, 347 NLRB 99, 99 (2001). Turning to Kingsmore, Becksted, an experienced and trained HR manager, allegedly could not recall if she even documented the conversation she had with a BMW HR representative con- cerning Kingsmore’s employment, and the Respondent pro- duced nothing that memorialized it. This, along with her ap- parent satisfaction with a conversation that lasted mere seconds, strongly suggests that her investigation lacked diligence and a genuine desire to ascertain the truth. This conclusion is bol- stered by the very short timeframe that she gave Kingsmore to obtain documentary evidence of his separation from BMW, and the absence of any showing of why the Respondent needed it so immediately. Still another basis for inferring animus is that the Respondent discharged Alexander and Kingsmore, rather than imposing lesser penalties as per the Respondent’s progressive discipline system. An employer’s failure to follow such a system is fre- quently indicative of a hidden motive for the imposition of more severe discipline. Fayette Cotton Mill, 245 NLRB 428 (1978); Keller Mfg. Co., 237 NLRB 713, 713–714 (1978). This proposition appears particularly apropos to the instant matter because both were employees of long tenure, Alexander had never previously been disciplined for any reason, and the Re- spondent relied on nothing in Kingsmore’s prior disciplinary record in making the decision to terminate him. Finally, animus can be inferred from the Respondent’s shift- ing rationales for disciplining Kingsmore. Becksted testified that Evola asked her to investigate both why Kingsmore left BMW and why he was banned from entering BMW’s premises. However, the Respondent provided no evidence that it ever specifically asked Kingsmore why he was not allowed into BMW’s plant, or attempted to obtain such information from BMW. In Kingsmore’s employee separation checklist, three reasons are stated for his termination: “Falsification of prior work history, not supplying proper documentation from prior employer as requested and not supplying information for reason of BMW’s refusal to allow employee on property.”39 Although the Respondent elicited considerable testimony on the im- portance of an employee’s need for entry into the BMW plant, the Respondent’s counsel expressly represented that Kingsmore’s bar from entering BMW was not one of the rea- sons for his discharge. 39 GC Exh. 7. Such shifting of rationales is evidence that the Respondent’s proffered reasons for discharging Kingsmore are pretextual. See Approved Electric Corp., 356 NLRB 238 (2010) (citing City Stationery, Inc., 340 NLRB 523, 524 (2003) (nondiscrimi- natory reasons for discharge offered at the hearing were found to be pretextual where different from those set forth in the dis- charge letters); GATX Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer provides inconsistent or shift- ing reasons for its actions, a reasonable inference can be drawn that the reasons proffered are mere pretexts designed to mask an unlawful motive.”). Considering all of the above factors, I conclude that the Gen- eral Counsel has established the last elements, of animus and of actions based thereon, and thus has met his initial burden of persuasion under Wright Line. I now turn to the Respondent’s burden under Wright Line to show that it would have taken the same action in the absence of that protected activity. The Respondent has represented that Alexander’s timesheet falsification was the sole reason for his discharge and that Kingsmore’s misrepresentation and failure to provide information of prior work history were the sole bases for his suspension and discharge. Based on the same factors that have led me to find inferred animus, I conclude that these proffered reasons were mere pretexts and that antiunion animus motivated the Respondent’s actions. Accordingly, no further analysis of the Respondent’s defenses is necessary for, as the Board stated in Rood 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 es- tablishes that the reasons given for the Respondent’s 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). . . . See also SPO Good-Nite Inn, LLC, above. Accordingly, I conclude that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging Alexander and by suspending and then discharging Kingsmore. Alleged 8(a)(1) Violations A statement from an employer is an unlawful threat under Section 8(a)(1) if it interferes with, restrains, or coerces em- ployees in the exercise of their Section 7 rights. 29 U.S.C. Sec- tion 158(a). The General Counsel contends that the Respondent violated Section 8(a)(1) in about early February, when Supervisor Fink unlawfully threatened Kingsmore with discharge for his union activities, and separately on February 11, when Fink unlawfully interrogated Alexander concerning his union activities. In approximately early February, Kingsmore told Fink that he was going to try to unionize the plant and Fink warned him to be careful because if Evola found out, “You’re gone.” Clearly, Kingsmore initiated the conversation and viewed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1574 Fink as a confidant due to Fink’s role in protecting him from Keller’s aggressiveness. Nevertheless, the level of trust be- tween them is not pivotal in assessing Fink’s statement. Ra- ther, “[T]he Board does not consider subjective reactions, but rather whether, under all the circumstances, a respondent’s remarks reasonably tended to restrain, coerce, or interfere with employees’ rights guaranteed under the Act.” Sage Dining Service, 312 NLRB 845, 846 (1993). Fink’s statement reason- ably conveyed the message that Kingsmore’s protected activi- ties might harm his employment and thus reasonably could have caused Kingsmore to fear reprisals for engaging in pro- tected activities. The Respondent references (R. Br. at 41) Rogers Electric, Inc., 346 NLRB 508, 509 (2006), in arguing that Fink’s state- ment was merely a matter of opinion and therefore protected by the free speech provisions of Section 8(c) as an “intemperate expression of personal opinion.” Such an argument mischarac- terizes the type of expressions to which the Rogers Electric holding applies. Under that decision and related precedent, Section 8(c) protects as free speech an employer’s and its agents’ flip and intemperate statements disparaging a union as futile, violent, or of other impugned character. See, e.g., Chil- dren’s Center for Behavioral Development, 347 NLRB 35, 35 (2006) (if unaccompanied by threats or promises of benefit, employer may “criticize, disparage, or denigrate a union”); Miller Industries Towing Equipment, Inc., 342 NLRB 1074, 1076 (2004) (employer may offer his “perspective” against union so long as it is not accompanied by threats). In contrast, Fink’s statement predicted retaliation against Kingsmore if management learned of his protected activities. Thus, the Rog- ers Electric holding is inapposite. Accordingly, I conclude that Fink’s statement was an unlaw- ful threat within the meaning of Section 8(a)(1). On February 11, Fink approached Alexander in the tool crib and made the comment, “I didn’t know you were one of the ones who’s trying to bring the Union in.” Asking an employee about his or her knowledge of union activities may, depending on the totality of the circumstances, reasonably tend to interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Blue Flash Express, 109 NLRB 591, 592–595 (1954); see also Michigan Roads Maintenance Co., 344 NLRB 617 (2005), citing Donaldson Brothers Ready Mix, 341 NLRB 958, 959 (2004). Circumstances considered in evaluating the ten- dency to interfere include the (1) background, (2) the nature of the information sought, (3) the identity of the questioner, and (4) the place and method of the interrogation. Sunnyvale Medi- cal Clinic, 277 NLRB 1217, 1218 (1985); Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984). Both Fink and Kingsmore testified to Fink’s role in the workplace as something of a mediator between rank-and-file employees and their foreign speaking managers, in that em- ployees confided to Fink that they were being mistreated. Alt- hough a supervisor, Fink was not a senior manager within the company hierarchy, and his supervisory authority was limited to off-site employees. As such, his position and reputation within the organization did not tend be specially coercive or threatening. Rather than single Alexander out or call him to a manage- ment office, Fink spoke at Alexander’s workstation and in the presence of another employee. Fink made but a single state- ment and did not pursue the issue when Alexander did not re- spond. His words contained no implication that employees would be adversely affected for their support of the Union, and they were presented as a declaration of fact rather than posed as a question. In the totality of circumstances, I conclude that Fink’s state- ment regarding Alexander’s union activities did not amount to coercive interrogation or otherwise reasonably tend to interfere with, restrain, or coerce employees in the exercise of their Sec- tion 7 rights. Accordingly, I find no merit to this allegation. General Counsel’s Motion to Amend Complaint The General Counsel (GC Br. at 11) moves to amend the complaint to add the allegation that on February 17, Wecker- man unlawfully threatened Kingsmore in violation of Section 8(a)(1). The motion is moot in light of my credibility resolu- tion favoring Weckerman’s version of what he said over Kingsmore’s account, with the resulting finding that Wecker- man said nothing about the Union to Kingsmore that day. Ac- cordingly, I need not address the question of whether Section 10(b) bars such an amendment as untimely. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Reggie Alexander and by suspending and discharging David Kingsmore, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and (1) of the Act. 3. By threatening an employee with discharge for engaging in activities on behalf of the United Steelworkers, the Respond- ent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and vio- lated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged employ- ees, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest compound- ed daily, Kentucky River Medical Center, 356 NLRB 6 (2010), with an applicable rate of interest as computed in New Hori- zons, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended40 40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- GESTAMP SOUTH CAROLINA, LLC 1575 ORDER The Respondent, Gestamp South Carolina, LLC, Union, South Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending, discharging, or otherwise discriminating against any employee for engaging in activities on behalf of the United Steelworkers (the Union) or any other labor organiza- tion. (b) Threatening any employee with discharge or any other adverse action for engaging in activities on behalf of the Union or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Reggie Alexander and David Kingsmore full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Reggie Alexander and David Kingsmore whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discharge of Reggie Alexander, and within 3 days thereafter notify him in writing that this has been done and that the discharge will not be used against him in any way. (d) Within 14 days from the date of the Board’s Order, re- move from its files any references to the unlawful suspension and discharge of David Kingsmore, and within 3 days thereaf- ter notify him in writing that this has been done and that the suspension and discharge will not be used against him in any way. (e) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its fa- cility in Union, South Carolina, copies of the attached notice marked “Appendix.”41 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent’s authorized representative, shall be posted by ed by the Board and all objections to them shall be deemed waived for all purposes. 41 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since February 1, 2010. (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. IT IS FURTHER ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT suspend, discharge, or otherwise discriminate against you because you engage in activities in support of the United Steelworkers (the Union) or any other labor organiza- tion. WE WILL NOT threaten you with discharge or any other ad- verse action because you engage in activities in support of the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of your rights under Sec- tion 7 of the Act, as set forth at the top of this notice. WE WILL within 14 days from the date of the Board’s Order, offer Reggie Alexander and David Kingsmore full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Reggie Alexander and David Kingsmore whole for any loss of earnings and other benefits suffered as a result of our discrimination against them, in the manner set forth in the remedy section of the decision. WE WILL remove from our files any reference to our unlawful discharge of Reggie Alexander, and within 3 days thereafter notify him in writing that this has been done and that the dis- charge will not be used against him in any way. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1576 WE WILL remove from our files any reference to our unlawful suspension and discharge of David Kingsmore, and within 3 days thereafter notify him in writing that this has been done and the suspension and discharge will not be used against him in any way. GESTAMP SOUTH CAROLINA, LLC