PRYSMIAN CABLES AND SYSTEMS USA, LLC

372 NLRB No. 68 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Prysmian Cables & Systems USA, LLC and Rodney Slone and International Brotherhood of Team- sters (IBT), Local 651. Cases 09–CA–285597 and 09–CA–286774 March 23, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY On October 3, 2022, Administrative Law Judge Robert A. Giannasi issued the attached decision. The Charging Party Union filed exceptions and a supporting brief, and the Respondent filed an answering brief. 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 exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Dated, Washington, D.C. March 23, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1 The Charging Party Union has excepted to some of the judge’s cred- ibility findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance 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. 2 In affirming the judge’s conclusion that the Respondent did not vi- olate Sec. 8(a)(3) and (1) of the Act by discharging employee Rodney Slone, we do not rely on the judge’s citation to United Site Services of Daniel Goode, Esq., for the General Counsel. Brice C. Smallwood, Esq., for Respondent. Clement L. Tsao, Esq., for Charging Party Union. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried virtually in the Zoom for Government platform on Au- gust 15 and 16, 2022. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and thereafter discharging Charging Party Rodney Slone because he assisted the Charging Party Union. Respondent filed an answer denying the essential allegations of the complaint. After the con- clusion of the trial, the General Counsel and the Respondent filed briefs, which I have read and considered. Based on the briefs and the entire record, including the testi- mony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Kentucky limited liability corporation with a facility in Lawrenceburg, Kentucky, where it is engaged in the manufacture of cables and wires. I find, as Respondent admits, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. Respondent also admits, and I also find, that the Charging Party Union (hereafter, the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts Background Respondent’s plant in Lawrenceburg employs some 200 em- ployees and operates 24 hours a day and 7 days a week on four shifts identified as A, B, C and D, with roughly a fourth of the entire workforce on each shift. (Tr. 33.) The plant is divided into two sections based on the product manufactured: telecom, which produces telephone cable; and datacom, which produces computer cables. (Tr. 146, 149.) This case deals essentially with the discharge of Rodney Slone for an incident that occurred on October 31, 2021, between him and another employee, Kahlil Yates. Slone, who was employed by Respondent and its prede- cessor for 23 years before his discharge on November 2, 2021, was a team leader and quality control technician. He also filled in for employees on the production line when needed. (Tr. 22– 23, 151.) Yates, who was a datacom jacket operator and California, Inc., 369 NLRB No. 137 (2020). We also do not rely on the judge’s statement that “any alleged causal connection between the union activity and Slone’s discharge based on timing is undercut by the fact that the timing between Slone’s October 31 threats to another employee and Slone’s discharge was obviously the more direct and proximate cause.” See United Parcel Service, 340 NLRB 776, 776 fn. 10 (2003) (explaining that it is well established that “an employer might wait for a pretextual opportunity to discipline an employee”), enfd. 2005 U.S. App. LEXIS 8982 (6th Cir. 2005). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employed for some 6 months at the time of the October 31 inci- dent, ran what is called jacket line number 6 on the night shift. That line transforms pure copper into cables and prepares them for packaging. On October 31, and for several weeks before, Slone had been filing in on the same jacket line operated by Yates but on the day shift. Slone worked from 7 am to 7 pm and Yates worked from 7 pm to 7 am. Since this involved 12-hour shifts, the employees were permitted to work 3 days one week and 4 days the next. (Tr. 26, 151.)1 Union Activity and the Plant Manager’s Speech In early September 2021, Slone telephoned Gary Blake, a business agent for the Union, to initiate contact about union rep- resentation for Respondent’s employees. On October 6, Blake and another representative of the Union, Mike Watson, met with Slone and 5 other employees at Anderson County Park, about 2 miles from Respondent’s plant. During the one-hour outdoor meeting, the employees discussed their work-related concerns, mostly about benefits and seniority. A second meeting took place with the same representatives of the Union at the same out- door location on October 12 or 13. Some 30 or 40 employees attended that meeting at which Slone was identified as the em- ployee leader of the union effort. The Union also distributed to those in attendance written flyers pointing out things that an em- ployer cannot do during a union campaign. (Tr. 26–35, 128– 133), (G.C. Exh. 2.) Slone distributed some of these flyers to employees at the plant during break times and left others on ta- bles in the break areas. (Tr. 32.) Union representatives also passed out blank union authorization cards to employees in at- tendance at the union meeting, including to Slone. The Union received signed cards, some of which were given to Business Agent Blake and some that were mailed to him. (Tr. 135–136.) Some cards were observed by supervisors lying around the plant in the days that followed. (Tr. 271–272.) Also observed were copies of an information packet including what was identified above as (G.C. Exh. 2.) See (Tr. 257–258.)2 In part at least because of observation of the above union doc- uments in the plant, the Respondent obviously knew that some union activity was going on. Respondent then had its labor rela- tions people conduct training sessions for the Lawrenceburg su- pervisors about what they could and could not legally say to em- ployees in a union campaign. (Tr. 258.) On October 18, 2021, Plant Manager Andy Small gave a speech to employees about the Union on each shift—meaning it was given four different times—based on a written script. The written version, which was received in evidence, was also posted on bulletin boards in the plant. There is no allegation that any- thing in the speech amounted to coercion within the meaning of Section 8(a)(1) of the Act. Nor is there evidence that Small de- viated from the written version of the speech, although he did take questions after at least the speech given on Slone’s shift. 1 Respondent acquired General Cable, the previous owner of the Law- renceburg plant, in June 2018. (Tr. 277.) 2 Business Agent Blake testified that he was aware that some of Re- spondent’s plants elsewhere in the country included employees repre- sented by the Teamsters. (Tr. 134–135.) 3 The exchange about leaving the line in bad condition, including leaving short reels, reflected a simmering bone of contention between Slone asked one question on that occasion as did others. (Tr. 40– 41.) In the speech, Small stated that he understood that the Union had met with at least some employees and “had several opportu- nities to give [its] view.” He said the Union was trying to con- vince Respondent’s employees to “pay [it] to represent you” and convince them that they would be better off with union represen- tation. He stated that Respondent did not believe the Union would help the employees and it just wanted to collect dues. He also said that, if the employees chose the Union to represent them, Respondent would bargain with it “in good faith.” But he emphasized that Respondent did not have to accept any union demands or proposals and it would not have to sign any contract it was “not comfortable with.” He also reminded employees that an initial contract is “not quick and easy,” but could take “more than a year to negotiate.” (G.C. Exh. 3), (Tr. 38–39.) The Incident that Led to Slone’s Suspension and Discharge On Sunday, October 31, Slone reported for work about a half hour before the beginning of his shift and asked Supervisor Steve Marshall to accompany him to the jacket line where he wanted to talk to Yates because it seemed to him that Yates had been aggravated at him at the change of shifts. (Tr. 152–153.) Appar- ently, Slone feared a confrontation, because, at one point, Mar- shall asked Slone, “[w]hat makes you think there is going to be a confrontation this morning?” Slone responded, “[b]ecause I’m going to tell him to stop.” When he and Marshall approached Yates on the work floor, Slone asked why Yates appeared mad at him during the change in shifts. Yates denied being mad. Then the discussion turned to Yates’ complaint about how Slone left the line for Yates at the change of shifts, particularly leaving him so-called short reels. Slone said that whatever the state of the line at the change of shifts, Yates did not have to “come in mad.” Yates again denied being mad. Slone then told Yates, “You come in wearing your earbuds,” which he said was a safety problem, and “watching your phone.” Yates took umbrage at that remark and then repeated criticism that he had heard from other employees about how Slone did his work.3 Slone then called what Yates had just said “horseshit” and stated, “If you want to meet after work sometime, we can.” Slone admitted that before his “horseshit” comment, there had been no threat from Yates. (Tr. 121.) At that point, Marshall immediately stepped in ending the exchange and told Slone to “go away.” (Tr. 156.) The parties then separated. Yates later told Marshall that he viewed what Slone said as a threat, and Marshall testified that he also considered what Slone said a threat. (Tr. 155–156, 170.) The above is based primarily on the written transcript of an audio recording made by Slone on his iphone, which was pro- vided to the General Counsel during the investigation of this case and was admitted in evidence as (G.C. Exh. 5) (the audio itself Slone and Yates. According to Datacom Supervisor Bryan Kidd, Slone and Yates had criticized each other for not cleaning the line at the end of the other’s shift and of leaving short reels for the other to handle. Those short reels apparently required more work. (Tr. 202.) Kidd also testified that complaints about operators leaving short reels are common, but not a matter subject to discipline. See (Tr. 216–217, 222–223.) PRYSMIAN CABLES & SYSTEMS USA, LLC 3 is G.C. Exh. 4). The Respondent did not know the contents of the recording until the hearing when it was introduced into the record. As shown below, it was not provided to Respondent dur- ing its investigation of the incident prior to Slone’s discharge. There are many gaps in the transcription of the roughly 25 minutes of the recording and of course it cannot capture the full context of what was said and where and how it was said. More- over, Slone himself had control of the recording and, in parts, it appears that the gaps contain important dialogue that was omit- ted or not intelligible enough to use in the transcription. Thus, in my findings, I will rely on testimonial evidence to fill in the gaps and to provide a better assessment of the context of the exchange on October 31.4 After a cooling off period during which Slone and Yates were apart, Supervisor James Overall, who had been told of the above confrontation by Marshall, approached Yates to get an explana- tion about what had happened. Yates told Overall that Slone had threatened him in the earlier confrontation. (Tr. 182.) After talk- ing with Yates, Overall left the area. (Tr. 182–183.) At this point there is a testimonial conflict between Slone and Overall.5 Slone testified that, while he was talking to another employee at some distance from the discussion between Yates and Overall, he observed the two pointing at him. Slone testified that Yates was “sitting there, piece of shit, cussing and pointing at me. I’m like, oh man, I need to diffuse this.” (Tr. 67.) So, again according to Slone, he walked up to Yates, who was “cuss- ing,” and said, “hey, man, can we meet after work and maybe get a beer, you know. Come on, I’m trying to be cordial with you.” (Tr. 68, 108.) Slone testified that when he approached Yates both Overall and Yates were present. (Tr. 69.) Overall’s testi- mony is to the contrary. He testified, as indicated above, that he had an initial discussion with Yates and then left to attend to business in another area. After that business was completed, he returned to observe Yates and Slone engaged in an argument. According to Overall, as he walked up to the two, he overheard Yates say something like “you’re not going to talk to me like that. I’m a grown man.” Slone then said, “we can go out to the parking lot and settle this.” According to Overall, when Slone saw Overall approaching, Slone tried to soften his prior state- ment by saying, “well, we can drink a beer in the parking lot.” (Tr. 183–184.) The transcription of the recording does not contain what hap- pened as described above in the testimony of Overall and Slone when Slone approached Yates. But, after a significant gap, the transcription begins with Yates’ response: “If I catch you out there I’m going to fuck you up. . . . If you threaten me, I don’t play that shit. So I told you, so I told you.” Slone then says, “we can talk outside” and “we can grab a beer.” Yates then tells Slone to “get away from me . . . before I have to hit you.” Overall then steps and says, “[l]et’s both separate this.” Slone replies, “No, I’m trying to be civil here. Overall then says, “Rodney, I’ve asked you to walk away.” Slone replies, “OK,” but Overall repeats, “Rodney, I’m going to ask you again.” (R. Exh. 5.) 4 Respondent did not object to receipt of the transcript in evidence. And, except for one section that is not relied upon in this decision, Re- spondent also agreed that it was an accurate reflection of the audio re- cording. (Tr. 118–119.) Slone admitted that Overall asked him to leave “a couple of times.” (Tr. 108.) Overall testified that, after he asked the two to separate, Yates did so, but Slone did not, “he continued argu- ing.” After he told Slone a second time to leave, Overall testified that Slone continued to argue. Then he told Slone he “needed to go or I would be forced to walk him out.” At that point Slone left. (Tr. 184.) To the extent that there are differences in the testimony of Overall and that of Slone about what happened at the beginning of this second encounter between Slone and Yates, I credit Over- all. Slone testified that there is not a part of the conversation between him, Overall and Yates that is not on the recording, whose transcript is in evidence as (G.C. Exh. 5.) (Tr. 69.) But that is not true. Slone himself testified that, when he first ap- proached Yates and Overall, Yates was “cussing” and Yates asked, in Overall’s presence, if he and Yates could meet after work for a beer. But the transcript of that encounter begins with Yates’ strong response to an apparent prior statement by Slone. Indeed, that response ends with Yates saying, “If I catch you out there, I catch you out there,” strongly suggesting that, immedi- ately before that response, Slone made another threat to take the matter outside. Significantly, it is only after Yates’ statement mentioned above that the recording shows that Slone says any- thing about having a beer. I also view as highly implausible, particularly in view of Marshall’s separation of the parties after the initial encounter between Slone and Yates, Slone’s testimony that he went over to Yates, who, according to his testimony, was talking to Supervisor Overall, to “diffuse” the situation. In con- trast, Overall’s testimony more accurately meshes with the tran- script of the recording. I also viewed Overall’s testimony as gen- erally more direct, objective, and reliable than Slone’s. Slone often rambled and appeared unduly defensive in his testimony, and he was prone in parts of his testimony to making unnecessary critical and ad hominem attacks on Yates. At the conclusion of his testimony, in response to a question from the General Counsel as to what he meant by wanting to meet Yates after work, Slone testified he meant only “can we go outside to get some dinner. We can meet up. We can talk after work.” He then accused Yates of becoming “irate after his trainer left him on his own. He doesn’t understand the job that was in front of me. You know maybe I need to connect with him.” (Tr. 124.) This response is self-serving and contrary to the objective meaning of what Slone said, not once but twice, and the context of what was said. But I also view Slone’s testimony in this respect, along with his testimony considered above in re- solving credibility differences between Slone and Overall, as well as Slone’s testimony about other matters discussed later in this decision, as showing that Slone was not generally a reliable witness. Later That Day After the Incident On the afternoon of October 31, Marshall prepared a statement describing his version of what happened during the incident which he sent to Parker Burton. Burton, who is no longer 5 Yates did not testify but he provided a statement about the incident to the Respondent for use in its investigation. See (R. Exh. 5.) By the time of the hearing, he had left Respondent’s employ. (Tr. 228–229.) 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employed by Respondent, was a “value stream manager” for the “datacom process.” Marshall provided the statement without be- ing asked because this was in accord with the normal procedure when an incident occurs as it did on this occasion. (Tr. 158–162, 167–168), (R. Exh. 1.) Later on October 31, Overall also pro- vided a statement for the same reason given by Marshall. (Tr. 186–187), (R. Exh. 2.) Overall testified that he felt that Slone was the aggressor in the situation. According to Overall, “[Slone] was in [Yates’] area. Steve Marshall had already told them once they needed to separate, they needed to stay away from each other. He had come back to the area again to talk to [Yates] and he did not need to be there after a supervisor had already asked him once to walk away.” (Tr. 184–185.) Overall also viewed Slone as the one at fault because he was a team lead and had a higher level of accountability. (Tr. 187.)6 Neither Overall nor Marshall, however, participated in the ultimate decision to dis- charge Slone. (Tr. 158, 187.) Later, on October 31, after the Slone-Yates encounter, Bryan Kidd, Slone’s immediate supervisor, approached Slone and asked him what had happened. Having heard about the incident from both Marshall and Overall, Kidd specifically asked whether Slone had threatened Yates. Slone replied that he had simply asked if Yates wanted to go out for a beer, which Kidd viewed with skepticism. Kidd told Slone it looked bad for him because two supervisors had overheard what they viewed as a threat. Slone then said he had a complete recording of the incident, and he played it for Kidd. After listening to the recording, Kidd sug- gested that Slone provide a copy of it to Respondent. (Tr. 203– 208, 214, 74–75.) Kidd also told Slone that he should provide a statement of his version of the incident for what was going to be an investigation by Respondent. Slone thereafter did provide a handwritten statement to Respondent. Tr. (76–81), (G.C. Exh. 6.) The Investigation and the Eventual Discharge On November 1, the day after the Slone-Yates encounter, Slone was directed to report to the office where he met with Par- ker Burton and Jennifer Stewart, the HR manager.7 He was told that he was suspended pending an investigation of the incident the day before and he would be informed later of the result of the investigation. Stewart told Slone that she had a copy of his state- ment that Burton had given to her, and, at that point, Slone said he had a recording of the incident. Stewart said that Slone should send it to her. 230–232, 267–269, 82–83. Later that day, Slone did send Stewart a recording, but it had nothing to do with the Slone-Yates confrontation. Slone testified that he later learned—actually, months later, that he had sent Stewart the wrong recording. (Tr. 83–85, 113–114, 116–117, 232.) That same day, November 1, Stewart started her investigation of the October 31 incident by reading the statements provided by 6 Marshall offered uncontradicted testimony that Slone came into Marshall’s office the next day and told him that his statement the day before in Marshall’s presence only meant that he wanted to go outside to have a beer with Yates. Marshall did not find that explanation credible. (Tr. 157–158.) 7 Technically, Stewart’s job title was HR business partner, but she was Respondent’s only HR person stationed at the Lawrenceburg facil- ity. (Tr. 226.) Slone, Yates, Marshall and Overall that were provided to her by Burton. (Tr. 229, 235–239.) Those statements are all in the rec- ord. (R. Exhs. 1, 2 and 5), and (G.C. Exh. 6.) Although the statements of Marshall, Overall and Yates described the events and the alleged threats by Slone in slightly different ways from the transcript of the recording, they were generally compatible with that transcription. Not so Slone’s statement, even though he made the recording and had it in his possession when he wrote his statement. Slone’s statement mostly concentrates on his ap- parent differences with Yates and offers only a short summary of the first alleged threat he made to Yates. And this is what he says about the second alleged threat: “Later, I walked up on him and Overall talking and tried to explain myself and was met with threats and anger! (There could be a recording and maybe a video of all this, everything these days is recorded!)” (G.C. Exh. 6.) The statement is cryptically evasive because it does not mention Slone’s offer to go outside with Yates even to get a beer and be- cause Slone knew for a fact that there was a recording.8 At the conclusion of her investigation, Stewart decided that Slone would have to be terminated due to what she considered threats to another employee and insubordination that had been witnessed by two different supervisors. She also concluded that Yates would also have to be disciplined for his reaction to the threats. (Tr. 239.) She further noted that Slone’s use of a record- ing violated Respondent’s policy on that matter. In accordance with Respondent’s policy on terminations, Stewart provided her reasoning for the termination decision to her superiors at Re- spondent’s headquarters. They approved the termination later in the day on November 1. (Tr. 239–245, 261, 279), (G.C. Exh. 14.) The next day, November 2, HR Manager Stewart called Slone to inform him that he was terminated. (Tr. 85.) Slone was offi- cially notified of his termination by letter from Stewart, dated November 2, 2021. In pertinent part, the letter states as follows: On October 31st, 2021, there was an incident involving you and another employee. Our investigation revealed multiple vi- olations of the Plant’s Personal Conduct Policy and Recording Policy, which have resulted in your termination. Effective im- mediately, you are no longer permitted on Prysmian Group property. (G.C. Exh. 7.) Applicable Policies of the Respondent Respondent’s written Personal Conduct Policy lists numerous misconduct violations that are subject to discipline “up to and including termination of employment.” Among those violations are number 8, “Insubordination or disrespect toward supervi- sors,” and number 23, “Committing or threatening to commit a violent act against any associate, customer, or vendor, whether inside or outside the workplace. Violence is not a joking matter, and all statements will be taken seriously.” (R. Exh. 8.) Stewart 8 Stewart also listened to another recording that Slone had provided to Burton (Tr. 109–110) and that Burton provided to her. That recording was relevant, but only had about a minute of the incident covering Yates’ profane rejoinder to what Slone had said to him, ending with Overall asking Slone to leave. (Tr. 233–234), (R. Exh. 3.) Stewart thought Yates was in the wrong for his bad language and the way he handled the situa- tion in that recorded snippet. (Tr. 235.) PRYSMIAN CABLES & SYSTEMS USA, LLC 5 testified that this policy is available to all employees on a web site portal and Slone’s conduct violated items 8 and 23 of the policy. (Tr. 242–244.) The Respondent also has a written policy prohibiting the use of privately owned recording devices at work. It prohibits such “recording devices of any type . . . without the prior permission from the Plant Manager or Human Resources Manager.” The policy also requires prior permission from the person or persons being recorded. And it specifically states that violation of the policy is “subject to immediate disciplinary action up to and in- cluding termination.” (R. Exh. 9.) This policy is communicated and available to employees in the same manner as the above gen- eral policy. (Tr. 244–245.) Respondent also has a written Performance Improvement Pol- icy that provides, among other things, for progressive discipli- nary actions. There are four steps in that process: Improvement 1 Meeting; Improvement 2 Meeting; Decision Making Leave; and Termination. The policy makes clear that any or all of the steps mentioned above “may be omitted based on the seriousness of the offense and the associate’s past work record.” Some ex- amples of those serious offenses are listed, such as fighting and insubordination. But applicable specific serious offenses are not limited to the listed examples. (R. Exh. 17.) This policy is com- municated and available to employees in the same way as the above policies. (Tr. 246–247.) According to Stewart, it was pursuant to the above improve- ment policy that she determined that Yates should receive a coaching because his behavior was not acceptable, and it was her understanding that Yates did receive such a coaching. (Tr. 247.) Again, according to Stewart, Yates received less of a punishment than Slone because Yates was “provoked several times and he was not the aggressor in this situation.” (Tr. 247.)9 Other Relevant Disciplines Respondent submitted a packet of documents describing the investigation and ultimate termination of another employee for making a threat in violation of Respondent’s policy. The docu- ments are related to the investigation and eventual termination of employee Jay Sams in December of 2019. Like Slone, Sams had been involved in a confrontation with another employee and threatened to take the matter outside. Like Slone, Sams had said he did not mean to harm the other person. The investigation of Sams proceeded along the same lines as the investigation of Slone with the consideration of statements provided by the par- ticipants and witnesses. (Tr. 254–57), (G.C. Exh. 16). Respondent also submitted what can only be described as a memo reprimand criticizing Slone for his “inappropriate behav- ior” with respect an encounter that Slone had with a fellow em- ployee named Kris Churchman in December of 2013. The lengthy memo cited him for insubordination and creating a hos- tile and threatening work environment. (R. Exh. 12), The memo was introduced and received in evidence to rebut Slone’s testi- mony that he had never been disciplined for making threats in the past. (Tr. 96–102.) In an apparent effort to show disparate treatment, the General 9 Stewart testified that she believes that the coaching for Yates was conducted by Burton. She also testified that coachings are sometimes documented and sometimes not. (Tr. 264–266.) But it was later Counsel relies on Slone’s testimony about an incident where an- other employee had threatened Slone and was not terminated. According to Slone, he provided a statement (G.C. Exh. 8) to Respondent regarding the investigation of an alleged threat to him by employee Lois Stratton on October 18, 2020. According to Slone, Stratton threatened to “cut my fucking throat.” (Tr. 87– 91.) His testimony on the matter was very brief and conclusory. But, on cross examination, he admitted something he had not mentioned on direct: He later asked HR Manager Stewart, who was undertaking an investigation of the matter, to stop the inves- tigation, although his answer was given reluctantly, blaming the Respondent for saying that there was nothing it could do. (Tr. 121–123.) Supervisor Kidd gave a more detailed and reliable description of the confrontation. It began, according to Kidd, with a dispute over criticism by Slone of Stratton for taking too long on breaks. Kidd testified that Slone did not complain to him that Stratton had threatened him. As in the Yates matter, Slone had recorded some of the dialogue between the two and played it for Kidd, who testified that the recording showed that Stratton told Slone to “kiss my ass.” Kidd agreed to talk to Stratton about her lan- guage. (Tr. 210–211.) Thereafter, Slone took the matter to Par- ker Burton, who apparently heard the recording to reflect that Stratton threatened to “kick [Slone’s] ass.” (Tr. 211.) An inves- tigation followed and the relevant witnesses, including Kidd, provided statements. (Tr. 211–213, 218–219.) Neither Kidd’s testimony before me nor his statement during the investigation of the Stratton matter (R. Exh. 14) supports the notion that Slone told Kidd that Stratton said that she would “cut [Slone’s] fucking throat.” HR Manager Stewart, who conducted the Slone-Stratton in- vestigation, also testified about the matter. According to Stewart, Stratton acknowledged that, during the dispute with Slone, she jokingly said, “I’m going to kill you motherfucker,” but she did not threaten Slone. Other participants and witnesses did not hear or perceive a threat and Stewart determined that Slone’s charge “lacked credibility.” Stewart also confirmed that Slone asked that the investigation be stopped. (Tr. 247–253.) Stewart never- theless had a conversation with Stratton and told her that her lan- guage was inappropriate even in a joking manner. (Tr. 253– 254.) See also (R. Exh. 15), which contains all the statements considered by Stewart in the Slone-Stratton investigation. B. Discussion and Analysis The General Counsel alleges that Slone was suspended and thereafter fired for engaging in union activity, which basically presents an issue of motivation. Such cases are analyzed under the dual motive causation test set forth in Wright Line, 251 NLRB 1083 (1980), enf’d on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). See also Security Walls, Ltd., 371 NLRB No. 74, slip op. 3 (2022). Under Wright Line, the General Counsel must satisfy an initial burden of showing by a preponderance of the evidence that the stipulated that there is no documented coaching in Yates’ personnel file. (Tr. 279–280.) It was also stipulated that there were no disciplines in Yates’ personnel file. (Tr. 143.) 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employee’s protected activity was a motivating factor in a re- spondent’s adverse action. If the General Counsel meets that in- itial burden, the burden shifts to the respondent to show that it would have taken the same action even absent the employee’s protected activity. See Hard Hat Services, LLC, 366 NLRB No. 106, slip op. 7 (2018), and cases there cited. Applying the above principles, I find that the General Counsel has failed to prove the violation in this case. Although Slone was in effect the employee leader in the union effort, and the Respondent clearly knew as a general matter that the Union was attempting to organize the employees, there is in- sufficient evidence to support a finding that Respondent specifi- cally knew of Slone’s role in the campaign. Nor was there any demonstrated hostility against Slone individually for his union activity. Indeed, there are no allegations in this case of related Section 8(a)(1) violations that typically show union hostility as a general matter. And the plant manager’s speech was protected by Section 8(c) of the Act. See United Site Services of Califor- nia, Inc., 369 NLRB No. 137, slip op. 14, fn. 68 (2020). Finally, any alleged causal connection between the union activity and Slone’s discharge based on timing is undercut by the fact that the timing between Slone’s October 31 threats to another employee and Slone’s discharge was obviously the more direct and proxi- mate cause. Nor is there evidence that anything that happened during the October 31 incident or in the subsequent investigation had anything at all to do with Slone’s union activity. Contrary to the General Counsel’s position, the evidence does not permit an inference of discrimination for lack of a “meaning- ful investigation” (G.C. Brief at pp. 21, 26, 29). The General Counsel relies in part on the fact that Respondent did not tell Slone that the complete recording he provided was not relevant (G.C. Br. 30). Slone provided Respondent with a written state- ment of his version of the incident, as did the other witnesses and Yates. Respondent considered all these statements. Respondent also considered the relevant but incomplete snippet recording of the incident that Slone provided to Burton. Respondent also agreed to consider the complete recording Slone said he made of the incident. Putting aside that the recording clearly violated the Respondent’s rules of conduct, it was Slone who mistakenly sent a recording that had nothing to do with the incident. And it was his obligation to send the correct one. In the circumstances, in- cluding the fact that it fully considered Slone’s written statement of the events, it was not incumbent on Respondent to affirma- tively do anything more on his behalf. In any event, the complete recording was fully considered in my decision, and, although, as indicated in the factual statement, it does not tell the full story of the incident, it in no way exonerates Slone. On the contrary, it 10 There is testimony that Slone served as a union election observer during a Board election back in 2008 or 2009 where a different union unsuccessfully sought representation of the employees of Respondent’s predecessor. (Tr. 47–50.) At that time, Slone apparently attempted to get Supervisor Parker Burton to help in the union involved in that cam- paign and, according to Slone, Burton seemed amenable to the idea. (Tr. 46–47.) There is no evidence that Respondent raised anything about Slone’s involvement in that earlier union campaign with Slone or anyone else during the present union campaign. There is also testimony from Slone that, on October 27, 2021, Burton had a conversation with Slone about a job posting that had nothing to do with Slone. During that clearly supports the Respondent’s decision to discharge Slone. My findings also support the notion that the Respondent’s inves- tigation was perfectly proper.10 Thus, I find that the General Counsel has failed completely to meet the initial burden of showing that the suspension and dis- charge was motivated by union activity.11 Nor has the General Counsel met the initial burden of showing discrimination by virtue of alleged disparate treatment. The General Counsel attempts to show such disparate treatment by comparing Respondent’s treatment of Slone with its treatment of Yates for his participation in October 31 incident as well as its treatment of employee Stratton in an earlier confrontation be- tween her and Slone. But those situations are different and sup- port the propriety of the discharge. As shown in the factual statement, Slone, not Yates, was the aggressor in their confrontation. In the first part of the encounter only Slone made a threat. Then, after the parties were separated, Slone again approached Yates and made another threat. Only then did Yates react saying he would defend himself. Thus, whatever Yates said in response to the threats, he was provoked. Moreover, Slone was a lead person with the kind of authority where more was expected of him than of rank-and-file employ- ees. Nor was there any evidence of Yates position on union rep- resentation, thus removing any inference of discriminatory treat- ment on that account. In any event, even if Yates were somewhat at fault and even if he were not disciplined properly, this would not excuse Slone’s threats. In addition, Slone was discharged not only for making threats, but also for insubordination for not separating after he was told to do so. Even after the first encoun- ter when the two men were separated, he approached Yates a second time. And after the second encounter he had to be told more than once to separate by Overall and only did so after Over- all said he would walk Slone out if he did not separate. Finally, the reasons for discharge included Slone’s use of a recording de- vice in the plant. All were violations of well-disseminated poli- cies. Nor was Stratton’s use of bad language during her confronta- tion with Slone as serious as Slone’s multiple violations of Re- spondent’s policies. The evidence did not support the credibility of Slone’s allegation that Stratton had threatened him, and Slone asked that the investigation be halted. Moreover, unlike Slone in his confrontation with Yates, Stratton did not act in an insub- ordinate way to a supervisor or use a recording in the plant. In contrast, the treatment of Slone due to his threats to Yates was comparable to the way Respondent treated Sams for making a similar threat in the past. And Sams did not commit the other violations of policy that Slone did on this occasion. Moreover, conversation, according to Slone, Burton wanted to give the job to a per- son without regard to plant seniority, with which Slone apparently disa- greed. (Tr. 41–45.) There was no mention in that conversation about the Charging Party Union or Slone’s role in the contemporary union cam- paign. None of this testimony, even if found credible from a witness I have found generally unreliable, would warrant an inference that the dis- charge of Slone was motivated by his most recent union activity. 11 Contrary to the General Counsel’s assertion (G.C. Br. 33) there was nothing shifting about Respondent’s reasons for the discharge. All rea- sons manifested themselves on October 31 and were listed in the dis- charge notice of November 2. PRYSMIAN CABLES & SYSTEMS USA, LLC 7 Slone had been cited for threats and insubordination in an earlier incident involving a confrontation with employee Churchman. Thus, even had the General Counsel satisfied the initial bur- den of proving discrimination, the Respondent clearly showed that it would have discharged Slone even in the absence of any union considerations. In these circumstances, the General Coun- sel has not proved by a preponderance of the evidence that Slone was suspended and discharged for his union activities. CONCLUSION OF LAW Respondent has not violated Section 8(a)(3) and (1) of the Act by suspending and thereafter discharging employee Rodney Slone for engaging in union activities. On these findings of fact and conclusion of law, and on the entire record, I issue the fol- lowing recommended12 ORDER The complaint herein is dismissed in its entirety. 12 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purposes.