Caravan Knight Facilities Management, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 196 (N.L.R.B. 2015)

362 NLRB No. 196
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.
Caravan Knight Facilities Management, Inc. and Are-
tha A. Powell
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of Ameri-
ca (UAW), AFL–CIO, and its Local 1700 and
Aretha A. Powell. Cases 07–CA–081195 and 07–
CB–082391
August 27, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND MCFERRAN
On April 3, 2013, Administrative Law Judge Michael
A. Rosas issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Em-
ployer and the Union filed answering briefs, and the
General Counsel filed a reply brief. The Employer filed
cross-exceptions and a supporting brief, and the General
Counsel 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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The Employer and Union are parties to a collective-
bargaining agreement requiring, among other things, that
an overtime equalization list be posted on a bulletin
board. In 2009, Employer Site Manager Shoun Walle
and employee and Union Chairperson LeVaughn Davis
agreed to stop posting the list in the “cage” (where em-
ployees clock in and out and where pre-shift meetings
are held) because the list was frequently removed or de-
faced. From 2009 to 2012, the list was posted in Walle’s
office. In April 2012,3 the Employer resumed posting the
list in the cage after employee (and Charging Party) Are-
tha Powell objected to the parties’ practice of not doing
so. Much of the overtime work was in the body wash
area of the plant, and this work was considered onerous

1 There are no exceptions to the judge’s finding that the Respondent
International Union did not violate the Act.
2 The Employer and General Counsel have each excepted to some of
the judge's credibility findings. The Board’s established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance 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.
3 All dates are in 2012 unless otherwise noted.
and undesirable by most employees. Nonetheless, Davis
worked a substantial amount of voluntary overtime. The
judge found that Davis stood to lose some of that over-
time once the overtime equalization list was posted as a
result of Powell’s complaint. However, the record evi-
dence fails to support that finding. Rather, as explained
in the margin, the evidence shows that Davis’s ability to
volunteer for overtime would have been unaffected by
the posting of the list.4
The judge dismissed the complaint in its entirety. He
found that the Employer did not violate Section 8(a)(3)
and (1) by discharging Powell on May 16 after she
threatened employee and Union Executive Board Mem-
ber Balinda Tanner.5 He neglected, however, to address
allegations that the Employer violated Section 8(a)(3)
and (1) by assigning Powell different work, assigning her
to clean the body wash area, and disciplining her on May
10, all because she engaged in the protected union activi-
ty of protesting the parties’ failure to post the overtime
equalization list. We dismiss these allegations for the
reasons stated below. We also affirm, for the reasons
stated herein, the judge’s finding that the Union did not
violate Section 8(b)(2) by submitting a witness statement
to the Employer about Powell’s threat. Contrary to the
judge, however, we find that the Union breached its duty
of fair representation owed to Powell in violation of Sec-
tion 8(b)(1)(A) based on the particular circumstances
presented here, and we also find that the Employer vio-
lated Section 8(a)(1) by coercively interrogating employ-
ee Jackie Keys about her statements to the Board agent
investigating Powell’s unfair labor practice charges.
1. Alleged 8(a)(3) Violations. Following Powell’s
April 11 protest about the overtime equalization list, the
Employer changed her work assignment on April 20 to
require her to devote 4 hours to her usual cleaning duties

4 Shawn Dean, vice president of Local 1700, and Site Manager
Walle provided uncontradicted and mutually corroborative testimony
regarding overtime. Their testimony establishes the following. First,
employees may and do volunteer for overtime. The overtime equaliza-
tion list, which shows each employee’s cumulative overtime hours
since the beginning of the year, comes into play only when either too
few or too many volunteer. If too few volunteer, employees are as-
signed mandatory overtime, beginning with those with the fewest over-
time hours. If too many volunteer, those with fewer overtime hours are
selected over those with more. Second, the posting of the list has no
effect on who is assigned mandatory overtime. The Employer keeps
electronic records of employees’ overtime hours, and it assigns manda-
tory overtime or selects from among a surplus of volunteers based on
those records. Thus, the posted list does not affect overtime assign-
ments; it simply informs employees how their overtime hours stack up
relative to one another. Referring to the overtime equalization list,
Union Vice President Dean testified that “[y]our hours are your hours
whether it’s posted or not” (Tr. 79).
5 The judge spelled Ms. Tanner’s first name “Belinda.” Ms. Tanner
testified that “Balinda” is the correct spelling (Tr. 1151).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
and the other 4 hours to sweeping floors in the main
plant. The Employer also assigned Powell to work over-
time during the five weekends following her protest.
Beginning on May 5, some of Powell’s overtime work
included assignments to the body wash area. Powell had
not previously worked in body wash since transferring to
the first shift. The General Counsel alleges that the April
20 change in Powell’s work assignment and her assign-
ments to the body wash area starting May 5 were moti-
vated by her union activity of complaining about posting
the overtime equalization list.
On May 10, Powell walked away from the “cage” area
where the morning preshift meeting was being conducted
to look at a bulletin board about 40–50 feet away. It was
not uncommon for employees to move around during
these meetings, or to eat, use the microwave, go to their
lockers, or stand outside the cage area. After the meet-
ing, Shift Supervisor Lamont Richie asked Powell to
relate the main safety topic of the meeting. She could
not answer correctly, and the Employer issued her a writ-
ten warning. The General Counsel alleges that the May
10 discipline was similarly motivated by Powell’s pro-
tected complaint about the overtime list.
On May 11, Powell threatened Tanner with physical
violence.6 Tanner reported the incident to employee and
Union Steward Margaret Faircloth, and Tanner, Fair-
cloth, and Davis thereafter reported the incident to Walle.
Following an investigation, the Employer discharged
Powell on May 16. The General Counsel asserts that this
discharge, too, was motivated by Powell’s complaint
about the overtime list.
To determine whether an employer’s adverse employ-
ment action violates Section 8(a)(3) and (1), the Board
applies the analysis articulated in Wright Line, 251
NLRB 1083 (1980) (subsequent history omitted). To
establish a violation of Section 8(a)(3) under Wright
Line, the General Counsel must show, by a preponder-
ance of the evidence, that an employee’s union activity
was a motivating factor in the employer’s decision to
take adverse action against the employee. Id. at 1089. If
the General Counsel makes the required showing, the
burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of
the employee’s union activity. Id.
Here, it is undisputed that Powell engaged in protected
union activity when she protested the failure to post the
overtime equalization list as required by the collective-
bargaining agreement, and it is similarly undisputed that
the Employer was aware of that activity. We find, how-

6 Powell told Tanner, “I see I’mma have to tear off into your mother-
fucking ass.”
ever, that the General Counsel failed to establish animus
on the Employer’s part towards Powell’s union activity.
In 2009, Walle had agreed with Union Chairperson Da-
vis to stop posting the list in the cage because employees
kept defacing or removing it. When Powell complained,
Walle promptly resumed posting the list in the cage.
Asked if he was upset about this, Walle testified that he
“really didn’t even think two thoughts about it” (Tr.
147). Walle’s indifference is consistent with his related
testimony, credited by the judge, that he did not care who
worked overtime in the body wash area as long as there
were enough volunteers. For these reasons, we find that
the General Counsel has not established that Powell’s
union activity was a motivating factor in her discharge,
and we dismiss this allegation on that basis.
We reach the same conclusion with regard to the
changes in Powell’s work assignments—the addition of
sweeping floors in the main plant for half of her shift and
overtime in the body wash area. Assuming that these
assignments constituted adverse actions, the General
Counsel has failed to establish that they were motivated
by Powell’s union activity. In addition to the reasons
stated above, there is no evidence that Powell was as-
signed to weekend overtime unfairly—i.e., that employ-
ees with fewer overtime hours were skipped over to
reach Powell. And there is no evidence that when Pow-
ell worked weekend overtime, she was unfairly targeted
for more than her share of body wash work. Similarly,
although the Employer changed Powell’s duties on April
20, there is no evidence that the Employer assigned her
more work overall than other similarly situated employ-
ees. Thus, in addition to the lack of evidence that the
Employer was hostile to Powell’s request to resume post-
ing the overtime list, there is no substantial evidence of
disparate treatment that would support a finding of un-
lawful motivation.
Regarding the discipline issued on May 10, there is
some evidence to suggest that the Employer may not
have disciplined other employees who wandered around
or engaged in similar conduct during preshift meetings.
But, here, the Employer did not discipline Powell merely
because she was wandering around during the meeting.
Rather, the Employer disciplined her only after determin-
ing that she could not state the main safety topic of the
meeting. Moreover, the judge found that employee con-
duct at preshift meetings was a problem that concerned
the Employer, the record supports the judge’s finding,
and the Employer’s concerns predated Powell’s April 11
protest regarding the posting of the overtime list. Final-
ly, the evidence indicates that although Walle (with the
Union’s agreement) removed the overtime equalization
list from the cage because employees repeatedly defaced
CARAVAN KNIGHT FACILITIES MGMT., INC. 3
or removed it, he promptly reposted it when Powell
complained and did not “think two thoughts about it.”
Under the circumstances, the evidence is insufficient to
support a reasonable inference that Powell’s complaint
about posting the overtime list was a motivating factor in
her May 10 discipline.
Accordingly, we will dismiss these three allegations.
2. Alleged 8(b)(2) Union report to Employer regarding
threat made by Powell. In early May, Powell stated that
she wanted to fight employee and Union Steward Marga-
ret Faircloth, and she offered to pay $100 to anyone who
would fight Faircloth. Union Executive Board Member
Balinda Tanner witnessed the threat and told Faircloth
about it. Powell learned that Faircloth was aware of her
comments and apologized to Faircloth, and Faircloth did
not report this threat to the Employer. On May 11, Pow-
ell threatened Tanner with physical violence. Tanner
reported the threat to Faircloth. Faircloth testified that
she informed Tanner that Tanner “had choices. She could
report the issue, make a statement, or speak to” Union
Chairperson LeVaughn Davis. Tanner chose to speak to
Davis; thereafter, Tanner, Faircloth, and Davis reported
the incident to Walle. Faircloth and Tanner submitted
witness statements to the Employer regarding the inci-
dent. Faircloth testified that she prepared her statement
at Davis’s request. In her witness statement, Faircloth
asserted that she had witnessed the threat. Consistent
with the judge’s credibility determinations, which we
have adopted, that was not the case. Instead, Faircloth
learned of the threat when Tanner reported it to Faircloth
immediately following the incident.
The complaint alleges that the Union, by Faircloth and
Tanner, violated Section 8(b)(2) by presenting these wit-
ness statements to the Employer. The judge dismissed
this allegation on the grounds that Faircloth and Tanner
were not acting as agents of the Union when they submit-
ted their statements, and even if they were, they did noth-
ing more to cause Powell’s discharge than submit “re-
quired employee witness statements.” As explained be-
low, we agree that Tanner was not acting as the Union’s
agent when she submitted her witness statement, but we
find that Faircloth was. However, we also find that she
did not cause the Employer to discriminate against Pow-
ell in violation of Section 8(b)(2).
To establish a violation of Section 8(b)(2), there must
be some evidence of union conduct; it is not sufficient
that an employer’s conduct might please the union.
Wenner Ford Tractor Rentals, Inc., 315 NLRB 964, 965
(1994). Thus, we first address whether Faircloth and/or
Tanner were acting as agents of the Union when they
provided the Employer with statements about Powell’s
threat.
Faircloth was an elected union steward whose duties
included processing grievances on the Union’s behalf.
The Board regularly finds elected or appointed union
officials to be agents of the union. See, e.g., Security,
Police and Fire Professionals of America (SPFPA) Local
444 (Security Support Services), 360 NLRB No. 57, slip
op. at 7 (2014); Penn Yan Express, 274 NLRB 449
(1985); IBEW Local 453 (National Electrical Contrac-
tors Assn.), 258 NLRB 1427, 1428 (1981), enfd. mem.
696 F.2d 999 (8th Cir. 1982). Although holding elective
office does not mandate a finding of agency per se, it is
persuasive and substantial evidence that will be decisive
in the absence of compelling contrary evidence. SPFPA
Local 444, supra; IBEW Local 453, supra.7 We find no
compelling contrary evidence here.
We recognize that “a union is not responsible for every
act of a shop steward, simply by virtue of his position. If
he acts only as an individual rather than within the au-
thority the union has conferred, the union is absolved.”
NLRB v. Teamsters Local 815, 290 F.2d 99, 104 (2d Cir.
1961). Faircloth, however, plainly acted in her steward
capacity when she informed Tanner of her options,
which included reporting the threat and making a state-
ment. Moreover, Faircloth testified that she was acting
at Union Chairperson Davis’s behest when she prepared
her statement. Under all the circumstances discussed
above, we find she was acting as an agent of the Union
when she provided the Employer her witness statement.8
Having found union conduct, we next determine
whether the Union violated Section 8(b)(2) when Fair-
cloth provided the Employer her witness statement. A
union violates Section 8(b)(2) when it causes or attempts
to cause an employer to discriminate against an employ-
ee in violation of Section 8(a)(3). Paperworkers Local
1048 (Jefferson Smurfit Corp.), 323 NLRB 1042, 1044

7 The judge failed to cite or apply this long-standing precedent.
8 Although Tanner was an elected member of the Union’s executive
board, the General Counsel’s burden was to show that Tanner’s posi-
tion was one of some “prominence or actual authority.” IBEW Local
453, supra, 258 NLRB at 1428. In IBEW Local 453, the Board found
that a union executive board member was an agent of the union where
the evidence showed that the executive board was the union’s primary
governing body, was involved in membership issues and all financial
matters, acted as a trial board for internal union charges, and was re-
sponsible for the union’s daily operations between regular union meet-
ings. No such evidence was presented here. Tanner testified without
contradiction that the Union’s executive board plays no role in griev-
ances, and the only evidence of its authority was her vague testimony
that it votes “on different things that go on throughout the whole plant,
not just for Caravan or Chrysler together. It's just like a Caravan, I
guess you could say like just a person for Caravan of interest for our
people as to what's going on and to have a say.” On this record, IBEW
Local 453 is clearly distinguishable, and the General Counsel has not
shown that Tanner’s position on the executive board was “not a titular
position devoid of any prominence or actual authority.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(1997). In determining whether a union has violated
Section 8(b)(2), the Board has applied both the analytical
framework set forth in Wright Line9 and the duty-of-fair-
representation framework.10 For the reasons that follow,
we find that the Union did not violate Section 8(b)(2)
under either standard.11
Under the duty-of-fair-representation standard, when-
ever a labor organization causes the discharge of an em-
ployee, there is a rebuttable presumption that it acted
unlawfully because by such conduct it demonstrates its
power to affect the employees’ livelihood in so dramatic
a way as to encourage union membership among the em-
ployees. Acklin Stamping, supra, 351 NLRB at 1263;
Graphic Communications Local 1-M (Bang Printing),
supra, 337 NLRB at 673. One way in which a union may
rebut that presumption is by showing that it acted pursu-
ant to a valid union-security clause. Operating Engi-
neers Local 18 (Ohio Contractors Assn.), supra, 204
NLRB at 681. The other is by showing that its actions
were “done in good faith, based on rational considera-
tions, and were linked in some way to its need effectively
to represent its constituency as a whole.” Operative
Plasterers & Cement Masons, Local No. 299 (Wyoming
Contractors Assn.), 257 NLRB 1386, 1395 (1981).
Under the Employer’s work rules, threatening an em-
ployee is a “major offense” for which employees are
subject to discharge without warning. Consistent with
this rule, in 2011 the Employer discharged employee
Kendall Shepard after Faircloth submitted a witness
statement against him for a verbal altercation with Fair-
cloth and supervisor Scott Paulson during which Shepard
threatened Faircloth. Thus, when Davis and Faircloth
reported Powell’s threat and Faircloth submitted a wit-
ness statement supporting that report, they knew full well
that doing so would in all likelihood result in Powell’s
discharge. Accordingly, we find that the Union effec-
tively caused Powell’s discharge. Town & Country Su-
permarkets, supra, 340 NLRB at 1411, 1430 (union
caused discharge when it reported employee for threat of
physical harm knowing employer’s history of discharg-
ing employees for such threats); Paperworkers Local
1048, supra, 323 NLRB at 1044 (union attempted to

9 See SPFPA Local 444, supra, 360 NLRB No. 57, slip op. at 6–7;
Town & Country Supermarkets, 340 NLRB 1410, 1411 (2004); Freight
Drivers, Local 287 (Container Corp. of America), 257 NLRB 1255,
1258–1259 & fn. 18 (1981).
10 See Operating Engineers Local 18 (Ohio Contractors Assn.), 204
NLRB 681 (1973), enf. denied on other grounds 555 F.2d 552 (6th Cir.
1977) (per curiam); Acklin Stamping Co., 351 NLRB 1263, 1263
(2007); Graphic Communications Local 1-M (Bang Printing), 337
NLRB 662, 673 (2002); Operating Engineers Local 478 (Stone &
Webster), 271 NLRB 1382, 1382 fn. 2 (1984).
11 The judge did not apply either framework.
cause discipline when it reported employee for racial
harassment to employer with a policy of strong discipline
for violation of rules against racial harassment).
Under the duty-of-fair-representation framework, there
is a rebuttable presumption that this request violated Sec-
tion 8(b)(2). We find, however, that the Union rebutted
that presumption here. Based on the credited testimony,
Powell threatened to fight Faircloth in early May and
then threatened to fight Tanner on May 11. A union has
a legitimate interest in reporting such threats to an em-
ployer, consistent with its duty to represent all unit em-
ployees. See Acklin Stamping, 355 NLRB 824, 825–826
(2010) (union lawfully sought discharge of employee
based on reasonable concerns his presence on jobsite
endangered coworkers because he was unqualified);
Graphic Communications Local 1-M (Bang Printing),
supra, 337 NLRB at 674 (recognizing that unions have
legitimate interest in reporting genuine instances of sex-
ual harassment to employer). Faircloth testified that she
did not report the threat in early May because Powell
apologized and “[b]ecause I'm a steward and a co-
worker.” She reported the May 11 threat, however, be-
cause Tanner was being threatened and Powell’s behav-
ior was escalating.
In some cases the Board has found similar union re-
ports to be a pretext for discrimination, but those cases
involve facts not present here. See Town & Country Su-
permarket, supra, 340 NLRB at 1411 (union official be-
latedly reported threat only after employee’s dissident
activity and did not consider threat to be serious); SPFPA
Local 444, supra, 360 NLRB No. 57, slip op. at 6–7 (un-
ion official provided exaggerated and misleading account
of employee’s outburst to employer’s client despite not
actually considering employee to have engaged in any
misconduct); Paperworkers Local 1048, supra, 323
NLRB at 1044 (union official belatedly reported em-
ployee for alleged racial harassment only after dissident
activity, contrary to its practice of not involving man-
agement in disputes between employees). Faircloth did
not make a belated report of the May 11 threat only after
dissident activity on Powell’s part (assuming Powell’s
complaint about the nonposting of the overtime equaliza-
tion list qualifies as dissident union activity). Instead,
her report was contemporaneous with Powell’s threat.
Moreover, Faircloth did not report Powell’s early May
threat to fight Faircloth, an incident closer in time to
Powell’s complaint about the list, which undercuts any
notion that the Union was out to get Powell and seized
on the May 11 threat to get rid of her. Even if Faircloth
falsely stated that she witnessed the encounter in an ef-
fort to bolster the complaint, that does not mean that she
submitted the witness statement because of Powell’s dis-
CARAVAN KNIGHT FACILITIES MGMT., INC. 5
sident activity. To the contrary, Faircloth’s reporting of
the May 11 threat is consistent with her submission of a
witness statement regarding Shepard’s threat. Moreover,
Faircloth reasonably explained that she reported Powell’s
behavior because it was escalating.
We reach the same result—dismissal of the Section
8(b)(2) allegation—applying a Wright Line analysis.
Assuming without deciding the General Counsel estab-
lished his initial burden under Wright Line, we find the
Union established that it would have taken the same ac-
tion even in the absence of Powell’s protected union ac-
tivity, essentially for the reasons stated above. Powell
did threaten Tanner with physical violence, within days
of a similar threat directed at Faircloth, and a union has a
legitimate interest in reporting such threats to an employ-
er, consistent with its duty to represent all unit employ-
ees. The report was made immediately after the threat,
and it was consistent with the Union’s treatment of em-
ployee Shepard under similar circumstances. For all of
the foregoing reasons, we find that the Union has estab-
lished that it would have reported Powell’s threat even
absent her protected activity and we therefore dismiss
this complaint allegation.
3. Alleged breach of the Union’s duty of fair represen-
tation in violation of Section 8(b)(1)(A). After Powell’s
May 16 discharge, the Union filed a grievance challeng-
ing the discharge. At step 2, Davis negotiated a settle-
ment offer under which the Employer would reinstate
Powell if she completed an anger management class and
submitted to a 90-day “last chance” agreement. This
settlement was consistent with a settlement negotiated
for Shepard after he was discharged for the verbal alter-
cation with Faircloth and Paulson discussed above.
Powell refused the offer, after which the grievance was
settled with Powell’s discharge allowed to stand.
A union breaches its statutory duty of fair representa-
tion in violation of Section 8(b)(1)(A) when its conduct
towards a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith. Roadway Express, 355
NLRB 197, 202 (2010), enfd. 427 Fed. Appx. 838 (11th
Cir. 2011) (per curiam) (citing Vaca v. Sipes, 386 U.S.
171, 190 (1967)). The complaint alleges that the Union
violated Section 8(b)(1)(A) by refusing “to process to
arbitration” Powell’s grievance. We find no breach of
the duty of fair representation in the Union’s failure to
take the grievance to arbitration for the reasons the judge
stated in his decision. The Union negotiated a settlement
that was reasonable and consistent with a recent settle-
ment negotiated for another employee. Moreover, a un-
ion has substantial latitude to determine whether to pro-
cess a grievance through to arbitration,12 and the facts
presented here establish that the Union could reasonably
conclude that Powell’s grievance did not warrant taking
it to arbitration.
However, we find merit in an alternative theory of vio-
lation that has been articulated by the General Counsel,
who argues that Faircloth’s representation of Powell at
step 1 of the grievance procedure violated the duty of fair
representation because Faircloth was hostile to Powell,
did not fully divulge the accusations Powell faced, and
filed a false statement against her.13 We find that the
Union violated Section 8(b)(1)(A) based on the follow-
ing facts, which we consider cumulatively: (i) Union
Steward Faircloth submitted a statement against Powell
that was, in part, false; (ii) Faircloth represented Powell
in step 1 of the grievance procedure without disclosing
that she had submitted a statement against Powell; and
(iii) throughout the processing of her discharge griev-
ance, Powell remained unaware that Faircloth had sub-
mitted a statement regarding the matters at issue in Pow-
ell’s grievance. We find it particularly significant that
Faircloth represented Powell at step 1 of the parties’
grievance procedure without disclosing either the exist-
ence or the nature of her statement against Powell. Fair-
cloth thus deprived Powell of a potentially crucial piece
of information—that the Employer had what appeared to
be an eyewitness statement corroborating Tanner’s re-
port—that reasonably could have altered Powell’s ap-
proach to the processing of her grievance. Had Powell
known of Faircloth’s statement, Powell might have asked
the Union for a different representative. As found by the
judge, Faircloth offered no arguments on Powell’s behalf
at the step 1 grievance meeting. Later, Powell might
have accepted the Employer’s step-2 offer to reinstate
her subject to certain conditions. The submission of a
statement by Faircloth regarding the matters in dispute
reasonably could have affected Powell’s evaluation of
the Employer’s settlement offer and her assessment of
whether the Union was likely to pursue her grievance to
arbitration in the absence of a settlement. Instead, Pow-
ell rejected that offer, and the Union let her discharge
stand. We are persuaded that these actions, considered

12 See, e.g., Transit Union Division 822, 305 NLRB 946, 949 (1991)
(“An employee has no absolute right to have a grievance processed
through to any particular stage of the grievance procedure or to have a
grievance taken to arbitration. A union may screen grievances and
press only those it concludes will justify the expense and time involved
. . . .”).
13 This is not the conduct alleged in the complaint to have violated
Sec. 8(b)(1)(A). However, the lawfulness of the Union’s handling of
Powell’s grievance is closely connected to the subject matter of the
complaint and was fully litigated. See Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
together, constitute bad faith or impermissible arbitrary
conduct. That is anything but “fair representation.”
We emphasize the unique circumstances that narrowly
circumscribe our Section 8(b)(1)(A) finding here. We
would not find a violation based merely on the fact that
Faircloth provided the Employer a statement concerning
the incident under investigation, even though that state-
ment was adverse to a unit employee. As we stated
above, a union has a legitimate interest, based on its duty
to fairly represent the interests of the entire bargaining
unit, in reporting workplace violence or threats of vio-
lence. Nor does the fact that Faircloth misrepresented
that she witnessed the threat constitute a per se breach of
Section 8(b)(1)(A). We have found that the Union did
not violate Section 8(b)(1)(A) by exercising its discretion
not to arbitrate Powell’s grievance. Nor are we suggest-
ing here that the Union was required to furnish a copy (or
disclose the substance) of Faircloth’s statement to Pow-
ell.14 Rather, we regard as material the absence of any
disclosure to Powell—before, during, or after Faircloth’s
representation of Powell at step 1—that Faircloth had
submitted a statement to the Employer relevant to Pow-
ell’s grievance. If this fact had been disclosed to Powell,
it is possible that Faircloth might have represented Pow-
ell with no violation of Section 8(b)(1)(A). Cf. Roadway
Express, supra, 355 NLRB at 202 (union did not breach
duty of fair representation by permitting business agent
to represent grievant “notwithstanding their adversarial
relationship”).
4. Alleged 8(a)(1) interrogation of employee about her
statement to the Board. The judge found that the Em-
ployer did not violate Section 8(a)(1) of the Act by inter-
rogating employee Jackie Keys about a statement she
made to Board agents during the Board’s investigation of
the charges in this case without providing the safeguards
required in Johnnie’s Poultry Co., 146 NLRB 770, 775
(1964), enf. denied 344 F.2d 617 (8th Cir. 1965). The
judge reasoned that Johnnie’s Poultry was inapplicable
because no Board hearing was scheduled regarding Pow-

14 In a recent, divided opinion, the Board addressed the potential ob-
ligation of an employer, upon request by a union, to give the union
copies of witness statements obtained during certain investigations.
See Piedmont Gardens, 362 NLRB No. 139 (2015). However, neither
Piedmont Gardens nor this opinion indicates that any obligation exists
for unions or employers to give copies or convey the substance of wit-
ness statements to grievants or other employees. See id., slip op. at 4
fn. 12 (“[N]othing in our decision today prevents the parties from bar-
gaining over a reasonable accommodation, such as a nondisclosure
agreement, when the employer has a legitimate confidentiality concern
regarding the union’s use of the requested information,” and “[i]f dis-
closure [of a witness statement] is ultimately required . . . , it is disclo-
sure to the union, not to supervisors or coworkers. And . . . the union
can, and almost certainly will, refuse to provide such statements to
involved individuals.”).
ell’s charges at the time the Employer interrogated Keys.
We reverse.
An employer who interrogates an employee witness in
preparation for a Board hearing must, among other safe-
guards, give the employee explicit assurance against re-
prisal for refusing to answer or for the substance of any
answer given. Freeman Decorating Co., 336 NLRB 1,
14 (2001), enf. denied on other grounds sub nom. Stage
Employees IATSE v. NLRB, 334 F.3d 27 (D.C. Cir.
2003). Here, without giving Keys this assurance, the
Employer asked Keys why she told Board agents investi-
gating this case that the Employer had never interviewed
her during its initial investigation of Powell’s threat. The
question obviously conveyed to Keys the Employer’s
interest in her statement made to the Board during its
unfair labor practice investigation, because the Employer
directly sought information about that statement. More-
over, a truthful answer to the question would have con-
firmed that she made the statement at issue. In these
circumstances, we find the Employer’s failure to provide
the Johnnie’s Poultry assurances to Keys violated Sec-
tion 8(a)(1). Contrary to the judge, these principles ap-
ply regardless of whether a hearing date has been sched-
uled. Gene’s Bus Co., 357 NLRB No. 85, slip op. at 2
(2011) (applying Johnnie’s Poultry where the question-
ing at issue took place prior to the issuance of the com-
plaint).15
REMEDY
Having found that the Respondent Employer violated
Section 8(a)(1) of the Act and the Respondent Union
violated Section 8(b)(1)(A) of the Act, we shall order
each of them to cease and desist and to take certain af-
firmative action necessary to effectuate the policies of
the Act.
Specifically, having found that the Respondent Union
breached its duty of fair representation owed to Aretha
Powell in connection with the processing of her griev-
ance in violation of Section 8(b)(1)(A), we shall provide
the remedy prescribed in Iron Workers Local 377
(Alamillo Steel Corp.), 326 NLRB 375 (1998). Accord-
ingly, we shall order the Respondent Union to promptly
request that the Employer consider Powell’s grievance,
commencing at step 1, and, if it agrees to do so, to pro-
cess the grievance in accordance with the then-extant
collective-bargaining agreement between the Respondent
Union and the Employer, including whatever settlement

15 Members Miscimarra and Johnson agree with the principle for
which Gene’s Bus is cited above, and that the Employer’s questioning
of Keys regarding her statement to the Board was subject to Johnnie’s
Poultry safeguards. They did not participate in Gene’s Bus, and they
express no view as to whether Johnnie’s Poultry safeguards were re-
quired for the questioning at issue in that case.
CARAVAN KNIGHT FACILITIES MGMT., INC. 7
discussions or proposals may be consistent with the par-
ties’ processing of the grievance.
In addition, we shall order the Respondent Union to
permit Powell to be represented by her own counsel at
any grievance proceeding, including any arbitration that
the Union authorizes or other resolution proceedings that
may follow from the Respondent Union's efforts on
Powell’s behalf, and pay the reasonable legal fees of
such counsel.16 Following exhaustion of any renewed
grievance processing in the pre-arbitration stages of the
grievance procedure, the Union may exercise its discre-
tion, consistent with its duty of fair representation, and
decide in good faith whether or not to pursue the griev-
ance to arbitration. In the event that it is not possible to
pursue the grievance based on the Employer’s unwilling-
ness to do so, and if the General Counsel shows in com-
pliance proceedings that a timely pursued grievance
would have been successful in arbitration, the Respond-
ent Union shall make Powell whole for increases in dam-
ages, if any, suffered as a consequence of its failure to
process her grievance in good faith, as set forth in Iron
Workers Local Union 377 (Alamillo Steel Corp.), supra,
with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010).17

16 We have found that the Union’s prior decision not to pursue Pow-
ell’s grievance to arbitration was lawful under Sec. 8(b)(1)(A).
17 Member McFerran acknowledges that the Board has broad reme-
dial discretion and that different remedies might be reasonable under
the facts of this case, but in her view a different remedy for the Union’s
unlawful conduct is appropriate. The underlying policy of Sec. 10(c) of
the Act is to create a “restoration of the situation, as nearly as possible,
to that which would have been obtained but for the unfair labor prac-
tice.” Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No.
10, slip op. at 2 (2014) (quoting cases). Here, the Union’s violation
adversely affected Powell’s ability fairly to evaluate the merits of ac-
cepting the Employer’s settlement offer in light of the prospects for
success otherwise. Restoring Powell to the status quo should therefore
be grounded in a showing of whether she would have accepted the
settlement offer in the absence of the Union’s unlawful conduct. Mem-
ber McFerran would require the Respondent Union to request the Em-
ployer to reinstate the Last Chance Agreement settlement offer Powell
previously rejected, and give her a reasonable period of time to accept
it. If the Employer does so, and the offer is accepted, the Union would
be required to make Powell whole for the time period from her earlier
rejection of the settlement offer until her present acceptance of it. If
Powell were again to reject the offer, the Union would owe her no
make-whole relief. If the Employer refuses to reinstate the Last Chance
Agreement offer, Member McFerran still would require the Union to
make Powell whole if the General Counsel shows in compliance that
she would have accepted the offer when it was made in May 2012, had
the Union informed her of Faircloth’s statement against her. The latter
is the next best alternative method to restore the status quo ante, “as
nearly as possible,” and to provide Powell with a meaningful remedy.
ORDER
The National Labor Relations Board orders that
A. The Respondent Employer, Caravan Knight Facili-
ties Management, Inc., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
statements to the Board during the Board’s investigation
of alleged unfair labor practices.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Sterling Heights, Michigan, copies of the
attached notice marked “Appendix A.”18 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In 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
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 any facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 20, 2012.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. The Respondent Union, International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), Local 1700, its officers,
agents, and representatives, shall
1. Cease and desist from

18 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(a) Breaching its duty of fair representation by repre-
senting a unit employee in connection with his or her
grievance arbitrarily or in bad faith.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly request Caravan Knight Facilities Man-
agement, Inc. (the Employer) to consider Aretha Pow-
ell’s grievance and, if it agrees to do so, process the
grievance with due diligence in accordance with the col-
lective-bargaining agreement between the Employer and
the Respondent Union.
(b) Permit Aretha Powell to be represented by her own
counsel at any grievance proceeding, including arbitra-
tion or other resolution proceedings, and pay the reason-
able legal fees of such counsel.
(c) In the event that it is not possible for the Respond-
ent Union to pursue the grievance, and if the General
Counsel shows in compliance proceedings that a timely
pursued grievance would have been successful, make
Aretha Powell whole for any increases in damages suf-
fered as a consequence of the Respondent Union's failure
to process her grievance in good faith, in the manner set
forth in the remedy section of this decision.
(d) Within 14 days after service by the Region, post at
its union office and all other places where notices to
members are customarily posted copies of the attached
notice marked “Appendix B.”19 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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 members 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 members 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.
(e) Within 14 days after service by the Region, deliver
to the Regional Director for Region 7 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Sterling Heights, Michigan facility, if it

19 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.”
wishes, in all places where notices to employees are cus-
tomarily posted.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2015
Philip A. Miscimarra, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you about your
statements to the Board during the Board’s investigation
of alleged unfair labor practices.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
CARAVAN KNIGHT FACILITIES
MANAGEMENT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-081195 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
CARAVAN KNIGHT FACILITIES MGMT., INC. 9
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT breach our duty of fair representation to
you by representing you in connection with your griev-
ance arbitrarily or in bad faith.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL promptly request Caravan Knight Facilities
Management, Inc. to consider Aretha Powell’s grievance
and, if it agrees to do so, process the grievance in accord-
ance with our collective-bargaining agreement with the
Employer.
WE WILL permit Aretha Powell to be represented by
her own counsel at any grievance proceeding, including
arbitration or other resolution proceedings, and WE WILL
pay the reasonable legal fees of such counsel.
WE WILL, in the event that it is not possible to pursue
the grievance, and if the General Counsel of the National
Labor Relations Board shows in compliance proceedings
that a timely pursued grievance would have been suc-
cessful, make Aretha Powell whole for any increases in
damages suffered as a consequence of our failure to pro-
cess her grievance in good faith, plus interest.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW), LOCAL 1700
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-081195 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Robert A. Drzyga, Esq., for the General Counsel.
Daniel G. Cohen (Pilchak Cohen & Tice, P.C.), of Auburn
Hills, Michigan, for the Respondent Employer.
Darcie R. Brault, Esq. (McKnight, McClow, Canzano, Smith &
Radtke, P.C.), of Southfield, Michigan, for the Respondent
Unions.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Detroit, Michigan, on November 7–9, 2012, and
January 7–8, 2013.1 The complaint, issued on August 21, al-
leges that Caravan Knight Facilities Management, LLC (the
Company) violated Section 8(a)(1) of the Act by coercively
interrogating employees regarding their activities with the
Board, Section 8(a)(3) by imposing onerous working conditions
on the Aretha Powell, the charging party, and then disciplining
her because she engaged in concerted protected activities. The
complaint also alleges that the International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL–CIO, and its Local 1700 (the Local
Union), collectively referred to as the Unions, breached the
duty of fair representation owed to Powell in violation of Sec-
tion 8(b)(1)(A) or (b)(2) of the National Labor Relations Act
(the Act) and violated Section 8(a)(3) by causing her termina-
tion because she engaged in protected conduct. The Respond-
ent Unions deny the charges and contend that Powell was ter-
minated after threatening another member of the bargaining
unit.

1 All dates are in 2012 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Company and the Union,2 I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a Michigan corporation with a worksite at
the Chrysler Sterling Heights Assembly Plant located in Ster-
ling Heights, Michigan, where it annually derives gross reve-
nues in excess of $1 million and, during that same period, pur-
chased and received at the Sterling Heights facility, goods and
materials valued in excess of $50,000 directly from points out-
side of the State of Michigan. The Company admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
The Company performs maintenance, cleaning, and janitorial
services for Chrylser at its Sterling Heights Assembly Plant
(SHAP). SHAP includes a main plant, the Linkers Building,
Fitness Center, and Jitney Repair section. The SHAP supervi-
sors relevant to this dispute include: Lamont Richie and Scott
Paulsen, shift supervisors; and Shoun Walle, a site manager.
The Union and the Company are parties to a collective-
bargaining agreement (CBA) in effect from December 2009
through November 2012. Janitors are covered by the CBA.3 In
pertinent part, the overtime work provision consisted of two
types of overtime assignments—mandatory overtime and vol-
untary overtime.4
Aretha Powell was hired by the Company as a janitor on
September 2, 2008, and became a member of the bargaining
unit. She started work at SHAP on the third shift and trans-
ferred to the first shift in 2011. While on the first shift, Powell
worked with approximately 15 other janitors. In 2012, Pow-
ell’s immediate supervisor was Paulsen. Her duties included
sweeping, mopping, cleaning windows, dusting, vacuuming,
cleaning restrooms, and emptying trash.5
B. Company Operations
The Company’s employees at SHAP are assigned to one of
three daily 8-hour shifts. Mandatory attendance is required at
preshift meetings, which were held in the “cage area” prior to

2 The Union’s Motion for Leave to File Response Brief, dated Feb-
ruary 28, 2013, is denied, as there is no provision in the Board’s Rules
for such submissions. Moreover, the General Counsel’s request for
reconsideration of my trial ruling regarding rejected exhibit GC Exh.
29, and impeachment of Balinda Tanner based on her criminal plea, is
also denied.
3 GC Exh. 2.
4 GC Exh. 2, Sec.15.
5 Except as to the Body Wash area, discrepancies between Powell’s
testimony and the records as to when she worked where within SHAP
have little bearing on the issues in this case. (RE Exh. 1; Tr. 106, 270–
271, 273–274, 340–343; 532, 841–842.)
the start of each shift. In May, the preshift meetings were con-
ducted by Richie and Paulsen. The cage area contains supplies,
employee lockers, as well as tables, benches, chairs, and a mi-
crowave used by employees during breaks and lunch periods.6
A bulletin board is posted inside the entrance of the cage area.
This bulletin board has an overtime sign-up sheet posted on it
that employees use to volunteer for overtime.7
C. Overtime Work
Janitors work overtime at SHAP. The Company records the
number of overtime hours worked by employees on an over-
time equalization list. That list has been kept in Walle’s office
pursuant to his agreement in 2009 with Davis because the post-
ed list was frequently removed or defaced.8 Employees still
had access to their overtime hours upon request or by examin-
ing their pay stubs.9 Weekend overtime is open to employees
who volunteer by signing the overtime sign-up sheet. If there
are not enough volunteers, employees are supposed to be as-
signed based on fewest overtime hours worked.
Pursuant to the CBA, overtime lists are required to be posted
on the bulletin board. In 2009, however, Site Manager Shoun
Walle and union chairperson Lamont Davis agreed that over-
time and seniority lists would no longer be posted because they
were frequently removed or laced with profanities. In April,
Davis informed Walle that unit members were complaining that
the overtime and seniority lists were not posted.10
D. Body Wash Work Assignments
Overtime work at SHAP can include assignment to clean the
Body Wash area, which contains dirty, grimy machinery, and
equipment. The work is performed on weekends when the
plant operations are shut down. While weekend work also
includes other tasks, such as mopping aisles and working in the
final wash, the Body Wash is the bulk of the work. According-
ly, it is not an overtime opportunity that most employees, in-
cluding Powell, seek.11 During the period of January 1––May
20, a group comprised of four males—LeVaughn Davis, Amber
Abobker, Dishan Longmire, and Kiernan Johns—was assigned
to clean the Body Wash nearly 79 percent of time.12 At times,
depending on the amount of work, that group would expand to
five or six workers. Moreover, the Body Wash group seldom
included female employees. During the same period, at least
one female employee was assigned to perform work in the

6 It is not disputed that the meetings were held regularly in the cage
area. (RU Exh. 4, 16; Tr. 841, 847–851.)
7 GC Exh. 12; RU Exh. 4, 20.)
8 RE Exh. 5; Tr. 144, 146, 896, 992–993.
9 Powell conceded the availability of overtime work information in
sources other than the posted list. (Tr. 146, 408–409, 993, 1084–1085.)
10 There was no evidence to refute Walle’s testimony that he and
Davis entered into this arrangement in 2009. (GC Exh. 2 at 13; Tr. 80,
91, 144, 146–147, 275–276, 992–993, 1033–1034.)
11 Davis was the only exception. (Tr. 288–289, 617–618, 748, 898,
995–996).
12 That group performed Body Wash work on 66 of the 84 weekends
between January and May. (GC Exh. 11; Tr. 211–212, 214, 226–227,
287, 364, 564, 582, 749, 764, 788–789.) While the records do not
specify dates, Walle credibly explained that employees worked in the
Body Wash on the weekends listed. (GC Exh. 11; Tr. 123–124.)
CARAVAN KNIGHT FACILITIES MGMT., INC. 11
Body Wash 17 percent of the overtime shifts. However, the list
was not always accurate, as the number of females who actually
worked in the Body Wash area was less.13
E. Powell’s Discussions Regarding the Overtime List
Powell, the charging party, previously worked the Body
Wash when she worked the third shift. By the time she got to
the first shift in 2012, the Company knew that she did not want
to work in the Body Wash and her wish was granted.14 Prior to
April 11, the Company overtime list reflects that Powell
worked two Saturdays, on January 28 and April 7. However,
Powell’s actual payroll record indicates that she did not work
on either of those dates.15
On April 11, Powell was working at the Fitness Center when
she asked Margaret Faircloth, the steward, why the overtime
and seniority lists were not posted on the bulletin board and
employees were not getting charged overtime hours. Cowork-
ers Marquita Harris and Shantell Thomas were also present
during the discussion. Faircloth said she did not know and
asked Powell if she wanted them posted. Powell answered indi-
rectly that the list was supposed to be posted.16 Faircloth ex-
plained that the list was not posted because second and third
shift employees were filing grievances alleging that a dispro-
portionate amount of the overtime opportunities were going to
first shift employees.17 A few days later, Powell expressed her
concern about the overtime equalization list to Sean Dean, vice

13 Neither the Company nor the Union refuted the testimony of sev-
eral credible employees that they did not work in the Body Wash on
weekends that their names were on the overtime lists for certain weeks.
The witnesses were Jackie Keys (Tr. 121, 550), Marquita Harris (Tr.
593), and Patrice Williams (Tr. 748–749).
14 It is not disputed that Powell performed Body Wash work prior to
transferring to the first shift in 2012. (Tr. 132.) In contrast to her Body
Wash assignments while during her time on the third shift, the credible
testimony reveals that Powell’s desire to avoid Body Wash work while
on the first shift was granted, as Walle did not care who performed the
work. (Tr. 286289, 589, 616–617.) Circumstances changed, however,
after Powell complained in April about the need to post the overtime
and seniority lists. She was retrained later that month and assigned to
work in the Body Wash on May 5. (Tr. 141, 201202, 297.)
15 GC Exh. 11, 25.
16 It is perplexing as to why Powell pushed the issue of posted over-
time lists. Her explanation about low overtime hours and lack of sen-
iority as factors that would cause her to be assigned to the Body Wash
was not credible since she did not work overtime in the Body Wash
since coming to the first shift, as the overwhelming amount of that
work was being performed by a specific group of first shift males. (Tr.
278, 287, 407, 414–417, 521, 589.) Indeed, Powell conceded that she
did not want to know her overtime hours because she was not “doing
overtime” (Tr. 357), which conflicts with her statement to the Board
that she was working overtime every weekend. In fact, Powell was
able to call out on at least three days that she was assigned to overtime
work—March 16, 23, and 29—in order to avoid overtime. (Tr. 446;
GC Exh. 25.). In actuality, neither Powell nor Harris wanted the over-
time equalization list posted because they would have to work the Body
Wash area. (Tr. 281, 592, 617.)
17 The weight of the credible evidence supports Faircloth’s remarks
that most overtime opportunities were going to first shift employees
and that other employees were complaining. Davis, in particular,
worked during most weekends. (Tr. 693, 721, 1019–1021; GC Exh. 11,
24, 28; RE Exh. 20.)
president of the Local Union. He responded by directing Davis
to post the list.18
Later that morning, Harris told Powell that Faircloth in-
formed Davis that Powell and Harris requested that overtime
and seniority lists be posted in the cage area. Powell then con-
fronted Faircloth and asked if she did inform Davis and others
about her request to have the overtime lists posted. Paulsen and
Thomas were present. Paulsen asked if there was a problem.
Powell responded that there was no problem, except that the
lists were supposed to be posted. Derrick Hamlet, the Local
Union alternate chairperson joined the conversation as Powell
asked again why the listing was not posted or canvassed so that
employees could be charged. Hamlet interjected, said the meet-
ing was over and that the list would be posted the following
Monday. Faircloth told Powell that she passed along her re-
quest to Davis and others because it was in Powell’s best inter-
ests. Powell replied that she wanted to leave the Union, which
Paulsen explained was not possible. Faircloth, however, said
that would be possible.19
F. April 12
On April 12, Powell and Harris spoke to Walle about the
overtime and seniority lists. Around the same time, Davis also
informed Walle about complaints by Powell and others that the
overtime list was not posted. Powell told Walle she was con-
cerned about the canvassing of overtime hours and how hours
were being charged. Powell reiterated her disinterest in work-
ing in the Body Wash as little as possible and urged Walle to
canvass the employees to ensure that everyone had at least
every other weekend off. Walle replied that he did not care
who worked in the Body Wash, provided there were sufficient
volunteers. He also explained that the overtime list had not
been posted because employees on second and third shift were
complaining about not getting enough overtime.20

18 I credit Powell’s testimony that she spoke with Dean and that he
directed Davis to post the list. (Tr. 74–75, 77–78, 85, 276–279.) Harris
credibly corroborated Powell’s testimony about the conversation. (Tr.
278–281, 283–284, 287, 418, 446, 481, 586–589, 646.) I am perplexed,
however, as to why Powell continued to pursue the issue since she, as
well as Harris, did not want to work the Body Wash. (Tr. 281, 592,
617.) Powell’s explanation about low overtime hours and lack of sen-
iority as factors that would cause her to be assigned to the Body Wash
was not credible, since she had not worked in the Body Wash since
coming to the first shift; the overwhelming amount of that work was
being performed by a specific group of first-shift male employees. (Tr.
278, 287, 407, 414–417, 521, 589.) Moreover, Powell conceded that
she did not want to know her overtime hours because she was not “do-
ing overtime” (Tr. 357), which conflicts with her statement to the
Board that she was working overtime every weekend. In fact, Powell
avoided overtime by calling out on at least three assigned overtime
dates—March 16, 23, and 29. (Tr. 446; GC Exh. 25.)
19 Faircloth did not refute this credible testimony. (Tr. 282–286,
439, 481–483, 591–593.)
20 I found Powell’s testimony that she confronted Walle more credi-
ble than his denial that she spoke with him on April 12. The credible
evidence reveals that Powell and Davis had significant problems com-
municating and that Powell would have gone over his head to Walle.
(Tr. 111–112, 146–147, 200, 215, 286–289, 408–415, 447, 521, 616–
617.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
G. April 16
Not satisfied with Walle’s response, Powell requested a
meeting with Local Union Vice President Shawn Dean. On
April 16, Powell met with Dean and Davis in the Local Union
office. Powell recounted her May 11 conversation with Fair-
cloth, expressed her displeasure with the Union’s representation
and wanted to leave the bargaining unit. After Dean said he
would provide the applicable information, Powell laced into
Davis. She chided him for reporting her comment to manage-
ment instead of speaking with her. Davis responded that he did
not have to speak with her. After a further exchange of person-
al attacks, Dean attempted to calm the situation by sending
Davis get Powell’s file.21 Before long, however, Richie called
Powell on the phone and instructed her to return to her job,
even though she received permission to attend the meeting.22
H. Powell’s Work Assignment Changes
After speaking to Faircloth on April 11, Powell worked over-
time the next five weekends (April 14 through May 12).23 In
addition, on April 20, Richie informed Powell of a change in
her work assignment by requiring that she perform her normal
duties in 4 hours, and that the remainder of her shift would be
dedicated to sweeping floors in the main plant. On April 29,
Powell was “trained” in the Body Wash. On May 5, she was
assigned to work in the Body Wash for the first time as a first-
shift employee.24
I. Powell’s May 10 Discipline
On May 10, Powell attended the morning preshift meeting in
the cage area.25 Others present included Walle, Paulsen, Fair-
cloth, Belinda Tanner, Williams, Harris, Hamlet, Johns,
Bullard, and Moore. During the meeting, Walle observed Pow-
ell walk from the area where the meeting was being conducted
to look at the bulletin board near the cage area entrance—a
distance of approximately 40 to 50 feet away.26 It was not un-
common for employees to move around or engage in other

21 Davis did not credibly refute Powell’s assertions that he had a
personal problem with her. (Tr. 66, 74–75, 80, 77–80, 93–96, 99, 292–
295, 387, 408–415, 505–506, 974–977; RU Exh. 2.)
22 Richie did not dispute Powell’s account. (Tr. 296.)
23 The credible evidence indicates that the overtime work did not in-
clude assignment to the Body Wash. (GC Exh. 25.)
24 This was the first time Powell worked in the Body Wash area as a
first-shift employee. (Tr. 201–202, 296–297, 342, 522–524; GC Exh.
11).
25 I do not credit testimony by Davis about prior remarks to him by
Richie about Powell’s conduct at preshift meetings since no one from
the Company brought this to Powell’s attention prior to May 10. (Tr.
902, 913, 916–918, 1047.) However, I do credit Faircloth’s unrefuted
testimony that, at her supervisor’s request, she spoke with Powell about
her conduct wearing headphones and singing while others were talking.
(Tr. 1047–1048.)
26 Consistent with the weight of the credible evidence that Powell
did not want to work overtime, I do not credit her testimony that she
went to the bulletin board to sign up for overtime. (Tr. 151–153, 254–
257, 298–302, 738.)
conduct during the preshift meetings, eating, using the microwave,
going to their lockers, or even stand outside the cage area during
the meetings.27
After the meeting, Richie approached Powell and quizzed
her about the main safety topic of the meeting.28 Walle and
Paulsen were also present. Powell responded incorrectly that
the presentation dealt with trash pickup, when in fact the main
safety topic discussed dealt with cautionary advice to be ob-
servant of hi-lo vehicles in their work areas.29
Later that day, Powell was issued a written discipline for
moving around and not paying attention during the morning
meeting.30 Wanting to avoid communicating with Davis, Pow-
ell contacted Dean and Union Local President Bill Parker.
Parker assured Powell that someone would get back to her.
Davis and Faircloth contacted her the following day and be-
lieved that “everything was smoothed out.” Powell, however,
never asked them to file a grievance concerning the May 10
discipline.31
J. Powell’s Relationship with Faircloth and Tanner
Sometime in early May, Powell was speaking in the parking
lot with Balinda Tanner, Patrice Williams, and Jackie Keys.
During that conversation, Powell stated that she wanted to fight
Faircloth and offered to pay $100 to anyone else who would
fight her. Tanner passed along the comment to Faircloth the
next day. Powell, learning that her comments reached Fair-
cloth, apologized to the latter.32
Subsequently, on May 10, Powell engaged in a fight at work
with Dishan Longmire, her ex-boyfriend, because she saw him
embrace Tanner. There is no doubt that this touched off bad
feelings between Powell and Tanner.33
K. Powell’s Suspension
On May 11, as the janitors mulled around the cage area be-
fore starting the first shift, Powell was engaging in a conversa-
tion with another employee about their supervisor when Tanner
made a comment. Powell uttered to Tanner: “I see I’mma have
to tear off into your motherfucking ass.” Tanner then respond-
ed, “[y]eah, yeah, whatever, whatever; that ain’t going to hap-

27 It is not disputed that employee conduct at pre-shift meetings was
a problem that concerned the Company. (Tr. 302–304, 738–740, 790–
791, 901, 918, 998–999.)
28 Richie credibly testified that he was not involved in the discipline
issued, but was present when Powell was questioned about the preshift
subjects, and he agreed with the discipline. (Tr. 244–245, 254–257.)
29 Powell did not provide credible evidence that she was paying at-
tention to the presentation. (Tr. 151–152, 300).
30 GC Exh. 6.
31 There was scant detail about the May 11 discussion between Pow-
ell, Faircloth, and Davis. (Tr. 304–307, 317–320, 355, 423–424, 449,
484–485, 529, 919, 1049–1050.)
32 This credible testimony by Tanner and Faircloth was not refuted
by Powell. (Tr. 923–924, 1060, 1129–1131.)
33 Powell provided inconsistent and less than credible testimony as
her reasons for fighting with Longmire. (Tr. 434, 452–455.) The cred-
ible evidence of coworkers indicates that she engaged in the fight be-
cause of Tanner. (Tr. 643–645, 669, 812.)
CARAVAN KNIGHT FACILITIES MGMT., INC. 13
pen.”34 Faircloth was not present in the room at the time.35
Immediately following the incident, Tanner reported the
comments to Faircloth and Davis, and the three went to Walle
to register a complaint against Powell. Faircloth and Tanner
each submitted statements. With Davis present, Walle pro-
ceeded to interview several employees present during the en-
counter, including Keys, Moore, and Bullard. Keys and Hud-
son had no knowledge of anything unusual that happened in the
cage area. Moore and Bullard both reported that they did not
hear or see any altercation. Hudson told Walle that there was
no altercation or threat made by Powell.36 Meanwhile, Patrice
Williams, Longmire, Thomas, and “Deborah” were never inter-
viewed by the Company.37 Davis, who was present for all of
these interviews, never asked any questions at any time, and
never took any notes.38
Later that morning, Powell spoke with Davis and Faircloth.
Davis told Powell that Dean asked him to speak to her about
her problems. Powell told Davis she didn’t understand how
everything got blown out of proportion about the posting (over-
time and seniority). Davis explained that he did not request
that the overtime and seniority lists be posted so that female
employees would not have to work in the Body Wash. Powell
suggesting they have union meetings and Davis said he was
working on that and the meeting concluded.39
On May 12, shortly after Powell reported to work, Faircloth
told her to report to Walle’s office.40 When Powell arrived,
Davis took her outside and asked if she recently had an alterca-
tion with another employee. Powell asked if it was Tanner
because she saw them speaking outside that morning. Davis
confirmed that he was referring to Tanner. After Powell down-
played any recent communication with Tanner, Davis said he
would try to help her. Davis took Powell to the Union trailer
where she started to write her statement. Davis told her that she
has to watch what she says because everything she says gets

34 The General Counsel sought to impeach Tanner’s credibility based
on a previous guilty plea to an assault. (Tr. 1167–1174.) I foreclosed
additional inquiry into the circumstances regardless this prior bad act,
as they were collateral to the matter at hand and had little relevance in
assessing truthfulness. In any event, I found Tanner’s testimony more
credible than the tentative and inconsistent testimony of Powell. (Tr.
315–317, 473–476, 480, 743–744, 1135–1140; RE Exh.4, 7, 20.)
35 I find, based on the credible testimony of Hudson that Faircloth
was not present at the time. (Tr. 784–785, 1061–1062.) As an aside, it
should be noted that I precluded testimony by Tanner as to whether
Faircloth ever directed a racial slur towards her as a collateral issue.
(Tr. 1154–1160.)
36 I credit the testimony of these witnesses. (Tr. 112–118, 117, 173–
174, 184–186, 217–218, 545, 547–548, 560, 583, 781–784, 787, 804–
805, 927, 939–940; GC Exh. 5.)
37 Williams is the only one who testified (Tr. 745), but there is no
documentary evidence that the others were interviewed.
38 It is evident that Davis’ role as Union representative on behalf of
Powell was entirely passive. (Tr. 202–203, 1003–1015.)
39 Powell testified that she thought, based on the conversations in the
meeting, that her problems relating to the Tanner incident were re-
solved. (Tr. 317–320.)
40 Walle confirmed Powell’s testimony that she gave her statement
on May 12. (Tr. 155–156, 160; RE Exh. 7.) As such, I do not credit
Davis’ testimony that he took Powell’s statement on May 11.
back to him, and nothing gets past him.41
Davis drove Powell back to Walle’s office. When they ar-
rived, Walle and Faircloth were waiting. Powell submitted her
statement of the May 11 incident with Tanner, at which point
Walle told her that she was suspended pending an investigation
of the alleged threat.42 Powell, however, refused to sign the
suspension. Neither Faircloth nor Davis spoke up on her behalf
during this meeting.43
L. Powell’s Discharge and Grievance
Powell was terminated on May 16 for threatening Tanner on
May 11.44 In arriving at that decision, Walle considered Pow-
ell’s bad attitude and personal demeanor, although there was no
reference to those characteristics in her personnel file. Given
the quantum of witness statements either favoring Powell’s
position that nothing significant happened on May 11, it is clear
that Walle’s problem with her attitude was the driving force
behind his decision to terminate her.45
On May 18, Faircloth filed a timely grievance challenging
Powell’s discharge. Faircloth represented Powell at the step 1
meeting, but offered no arguments on her behalf. The griev-
ance was denied at step 1.46
The Local Union proceeded to step 2. After Davis met with
Walle, the Company agreed to settle the grievance by reinstat-
ing Powell, with no backpay, on the condition that she com-
plete an anger management class and submit to a 90-day last
chance agreement.47 The proposed settlement was consistent
with the recent settlement of Kendall Shepard’s grievance after
he was terminated for threatening Faircloth in June 2011.
Shepard accepted the settlement, completed its conditions, and
was reinstated.48
On or about May 23, Davis contacted Powell and relayed the
settlement proposal to her, plus the condition that Powell49 drop

41 I base this finding on Powell’s credible testimony. (Tr. 320–324.)
42 Company human resources director, Ruth Ann Little testified that
she consulted Walle during the investigation and she had no knowledge
of any other misconduct Powell committed at the time she made her
decision/recommendation, and there were no other incidents of similar
misconduct in Powell’s file. (Tr. 51–52, 56.)
43 Neither Davis nor Faircloth disputed Powell’s testimony that they
were silent during the May 12 meeting with Walle. (GC Exh. 8; Tr.
155–156, 188, 191–192, 325–328, 393, 398, 949–951).
44 GC Exh. 9.
45 It is clear that Walle had a significant problem with Powell’s atti-
tude and that was the driving force behind his decision to terminate.
However, I found no credible evidence to suggest that Davis, Faircloth,
Tanner or anyone else from the Local Union exerted undue influence
into that decision. (Tr. 111, 119–120, 163, 868; GC Exh. 8–9; RU Exh.
1011.)
46 It is undisputed that Faircloth remained silent throughout the first
step meeting. (GC Exh. 10; Tr. 111, 113, 194, 957, 1077–1078, 1125.)
47 GC Exh. 10; Tr. 166–167, 956-957, 961, 1025.
48 RE Exh. 14A–C.
49 Davis testified that he spoke with a Chrysler official about provid-
ing Powell with access to a free anger management course. (Tr. 958–
960.) He did not, however, refute Powell’s testimony that he never told
her that such a resource was available. (Tr. 379.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
the NLRB charges50 against management. Davis also informed
Powell she would have to take an anger management course at
her own expense. Powell said she was unemployed and could
not afford to pay for such a course. Davis replied that the
Company did not comment on that. Powell rejected the offer.
Davis then settled the grievance at the second step, making no
counterproposal.51
On or about May 25, Powell called Faircloth and asked her if
a grievance was filed on her discharge because she never saw
one. Faircloth replied there was. Powell then told Faircloth she
wanted to advance her grievance to arbitration. Faircloth in-
formed her that is not how it works, and told her the grievance
had to take its course. Powell then received a call from Davis.
Powell asked Davis what type of investigation he did, and how
it was determined that she was guilty and then terminated.
Davis responded that “none of your co-workers had your back.
None of them came to your rescue.” Davis also told Powell
since she turned down the offer there was nothing else that he
could do.52
After Powell filed charges with the Board, Wille conducted
additional interviews of employees about the May 11 incident.
On June 20, he interviewed Keyes, with Davis present.53 He
asked Keys why she told Board representatives that manage-
ment never interviewed her during the initial investigation.
Keys denied making such a statement and the interview con-
cluded.54
Legal Analysis
I. ALLEGATIONS AGAINST THE COMPANY
The General Counsel contends that the Company violated
Section 8(a)(3) and (1) of the Act by discharging Powell be-
cause she engaged in protected concerted activity, and (2) vio-
lated Section 8(a)(1) by Walle’s coercive interrogation of em-
ployees regarding their communications with the Board.
A. The 8(a)(3) Charge
Charges alleging 8(a)(3) violations are analyzed under the
Wright Line framework, which requires the General Counsel to
make a prima facie showing sufficient proof to support the
inference that protected conduct was a motivating factor in the
employer’s decision. 251 NLRB 1083, 1089 (1980). To meet
this burden, the General Counsel must establish that the em-
ployee engaged in protected activity, the employer had
knowledge of the protected activity, and that the employer took

50 The Company was served a copy of the unfair labor practice
charge by regular mail on May 17, approximately 6 days before this
conversation. (GC Exh. 1(a)-(b).)
51 Powell’s testimony made it clear that she would still not have ac-
cepted the last chance agreement even if the anger management class
was free. (Tr. 125, 167, 329–330, 379–380, 501, 961, 1023–1026.)
52 This finding is based on Powell’s unrefuted testimony. (Tr. 331–
333.)
53 Davis’ testimony that it was Keys who contacted Walle about the
Board statement was not credible in light of Walle’s testimony that he
called her back to re-interview her. (Tr. 967–969; GC Exh. 4.)
54 The General Counsel correctly notes that the record indicates that
Walle never informed Keys that any response voluntary and not subject
to reprisals. (Tr. 32–36, 118, 130–131, 548–549, 580; GC Exh. 3–5.)
adverse action against the employee as a result of this protected
activity. American Gardens Mgmt. Co., 338 NLRB 644, 645
(2002). Once the General Counsel has proven these elements,
the burden shifts to the employer to demonstrate that he would
have taken the same action even in the absence of protected
conduct. Manno Electric, 321 NLRB 278, 281 (1996). If the
evidence establishes that the reasons given for the discharge are
pretextual, either in that they are false or not relied on, the em-
ployer has failed to show that it would have taken the same
action absent the protected conduct, and there is no need to
perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382, 385 (2003).
Walle’s investigation of the incident on May 11 between
Powell and Tanner was clearly flawed. Tanner and Faircloth
submitted written statements accusing Powell of conveying a
threat on May 11. However, Walle interviewed other employ-
ees about the incident, including Keys, Moore, Bullard, and
Hudson, but none of them corroborated Tanner’s story. Keys
and Hudson stated that they had no knowledge of anything
unusual that happened in the cage area, while Moore and
Bullard reported that they did not hear or see any altercation.
Although the quantity of testimony does not necessarily mean
that Walle would have been expected to have arrived at a dif-
ferent decision, there was no credible explanation by Walle as
to whether he even considered the testimony of employees
other than Tanner and Faircloth.
Nonetheless, I find that Walle already had a problem with
Powell’s general attitude—even though her attitude had not
been reflected in her personnel file—which was the driving
force behind his decision to terminate her. Such circumstances
are normally seen as pretextual and indicative of unlawful mo-
tivation under Golden State Foods Crop. However, there is no
indication here that Walle’s problems with Powell were at all
connected in any way to her protected concerted activities, such
as the issue concerning her demands that the overtime list be
posted on the bulletin board. It is also clear that Walle did not
care whether Powell worked in the Body Wash area. Powell
was assigned to the Body Wash area on May 5 as a direct result
of her advocacy for the posting of the list. However, such a
response could hardly be deemed an adverse action, as it was a
direct result of the Company action that she advocated—the
posting of an overtime list and assignment to overtime work,
including the Body Wash. Without a causal connection be-
tween the alleged coercive or restraining activity and exercise
of protected concerted activities under Section 7, the General
Counsel has not established that the Company violated Section
8(a)(3) by firing Powell due to an unlawfully discriminatory
purpose. That charge is dismissed.
B. The 8(a)(1) Charge
An employer violates Section 8(a)(1) when it engages in the
coercive interrogation of employees regarding their communi-
cations with the Board. In Johnnie’s Poultry, 146 NLRB 770,
the Board articulated a policy for permitting employers to in-
terview employees in preparation for a Board trial: (1) com-
municate to the employee about the purpose of the interview;
(2) assure the employee that no reprisals would occur; (3) ob-
tain the employee's participation on a voluntary basis; (4) con-
CARAVAN KNIGHT FACILITIES MGMT., INC. 15
duct the interview in an environment free of employer hostility;
and (5) not be coercive in nature.
On June 20, after Powell filed charges, Keys was summoned
to meet with Wille. With Davis present, Will interrogated Keys
for a second time about the May 11 incident. He asked her why
she told Board representatives that management never inter-
viewed her during the initial investigation. Keys denied mak-
ing such a statement and the interview concluded. At the time,
a Board trial was not yet scheduled in connection with Powell’s
charges.
Accordingly, as noted by the Company, the conversation
must be analyzed under the Board’s totality of circumstances
approach for interrogating employees in Rossmore House, 269
NLRB 1176 (1984). See also Bourne v. NLRB, 332 F.2d 47, 48
(2d Cir. 1964). Applicable factors include whether the employ-
ee is an open union supporter, the background of the interroga-
tion, the nature of the information sought, the identity of the
questioner, and time, place, and method of interrogation.
In this case, the background reveals no history of Company
hostility towards the Local Union; indeed, Wille and Davis
worked extremely well together. The meeting was conducted
in Wille’s office with Davis, the Union representative present.
The meeting was formal, but brief. The information sought by
Wille, Keys direct supervisor, related to whether Keys provided
the Board with the incorrect information that Wille did not
interview her during the disciplinary investigation when he
actually did; the question was obviously based on public infor-
mation in the charges and did not involve anything confidential
in nature. Under the totality of the circumstances, I do not find
the interrogation unlawfully coercive and dismiss that charge.
II. ALLEGATIONS AGAINST THE UNION
The complaint alleges that: (1) the Union violated Section
8(b)(1)(A) of the Act by refusing to process Powell’s discharge
grievance to arbitration because she requested the posting of
seniority and overtime lists pursuant to the collective bargain-
ing agreement for reasons that were “arbitrary, discriminatory
and in bad faith;” and (2) violated Section 8(b)(2) of the Act by
presenting witness statements against Powell because the latter
requested the Company to post overtime and seniority lists as
required by the collective-bargaining agreement, and Section
8(a)(3) by causing the Company to discharge Powell.
A. The 8(b)(1)(A) Charge
It is well established that “the Union has a duty of fair repre-
sentation on behalf of all those for whom it acts without hostile
discrimination. A union's power must be exercised fairly, im-
partially, and in good faith which gives an employee the right
to be free from unfair or irrelevant or invidious treatment by his
exclusive bargaining agent.” Bottle Blowers Local 106, 240
NLRB 324, 328 (1979). “A breach of the statutory duty of fair
representation occurs only when a union's conduct toward a
member of the collective bargaining unit is arbitrary, discrimi-
natory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190
(1967). But “[w]here . . . a union undertakes to process a griev-
ance but decides to abandon the grievance short of arbitration,
the finding of a violation turns not on the merit of the grievance
but rather on whether the union's disposition of the grievance
was perfunctory or motivated by ill will or other invidious con-
siderations.” Bottle Blowers Local 106, at 328. “Though . . . a
union may not arbitrarily ignore a meritorious grievance or
process it in perfunctory fashion, we do not agree that the indi-
vidual employee has an absolute right to have his grievance
taken to arbitration regardless of the provisions of the applica-
ble collective bargaining agreement.” Vaca v. Sipes, supra at
191.
It is undisputed that there were bad relations between Powell
and the three Local Union officials involved—Davis, Faircloth
and Tanner—and they preferred to communicate with Powell
as little as possible. It is also evident that Davis was directly
affected by Powell’s insistence that the overtime list be posted,
since he stood to work less overtime in the Body Wash if the
assignments were more evenly distributed among the employ-
ees. Nevertheless, it is undisputed that the Local Union filed a
grievance discharge on Powell’s behalf. After proceeding to
step 2, Davis was able to negotiate a settlement reinstating
Powell if she signed a last chance agreement and agree to com-
plete an anger management course. The settlement was con-
sistent with the recent settlement of another employee’s griev-
ance involving similar facts. The General Counsel argues,
however, that neither Davis nor Faircloth sought to take the
grievance to arbitration after Powell declined a settlement at
step 2.
There is an absence of discernible, credible evidence that the
Local Union proceeded arbitrarily or in bad faith at step 1 or 2.
The duty of fair representation does not grant individuals the
absolute right—especially in a case where the Union negotiated
a settlement—to have his grievance taken to arbitration regard-
less of the provisions of the applicable collective-bargaining
agreement. Vaca v. Sipes, 386 U.S. at 191–192.
Under the circumstances, I conclude that the Local Union
did not breach its duty of fair representation in Powell’s case.
There were definitely bad relations between Davis, Faircloth,
Tanner and Powell. However, she was offered a reasonable
deal and turned it down. In fact, the evidence reveals that Pow-
ell would still have declined the settlement even if the anger
management course was offered at no cost to her.
The General Counsel also contends alleges that Tanner and
Faircloth, acting as Local Union agents, restrained or coerced
Powell in violation of Section 8(b)(1)(A) by submitting witness
statements against her because she insisted that overtime list be
posted.
With respect to motivation, there were definitely bad rela-
tions between Faircloth and Powell, even before the latter
raised the issue of posting the overtime list. As to Tanner, there
was a personal situation brewing involving Powell’s ex-
boyfriend; there is no evidence, however, that she knew any-
thing about the overtime list issue.
The General Counsel has the burden to prove that Tanner
and Faircloth acted as union agents when they submitted wit-
ness statements accusing Powell of threatening Tanner. Tyson
Fresh Meats, Inc., 343 NLRB 1335 (2004). While Tanner and
Faircloth had positions within the Local Union, at the time,
they were acting in their capacities as employees involved in, or
witness to, an incident and required to submit statements during
the resulting investigation. The fact that they had positions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
with the Local Union did not require them to refrain from co-
operating with a workplace investigation or take some other
action. IBEW, Local 45, 345 NLRB 7 (2005); Building & Con-
struction Trades Council, Local 397, 132 NLRB 1564 (1961).
Under the circumstances, I dismiss the Section 8(b)(1)(A)
charge.
B. The 8(b)(2) Charge
The General Counsel also contends that the Local Union vio-
lated Section 8(b)(2) when Tanner and Faircloth submitted their
statements in order to cause Powell’s termination because she
requested the posting of the overtime list.
An 8(b)(2) violation requires a showing that the Local Union
caused or attempted to cause Powell’s discharge. Acklin
Stamping Co., 351 NLRB 1263 (2007). In this case, even if
Tanner and Faircloth were acting as union agents—they were
not—there is no credible proof that they did anything, separate
and apart from submitting their required employee witness
statements, to cause the Company to terminate Powell. North
Hills Office Services, Inc., 346 NLRB 96 (2006). Under the
circumstances, I dismiss this charge as well.
With respect to the International Union, there is no credible
proof that any of its officials were involved in Powell’s disci-
pline or the Local Union’s handling of the ensuing grievance.
Powell called the International Union when she became frus-
trated with her communications with the Local Union, but the
call resulted in the Local Union followed up after that. Given
the legal distinction between the Local and International Un-
ions, there is no derivative duty of fair representation on the
part of the latter. Carbon Fuel Co. v. Mine Workers, 444 U.S.
212 (1979). Accordingly, the International Union’s prima facie
motion to dismiss, upon which I initially reserved decision, is
granted as to all charges against it.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Local and International Unions are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The Company, Local Union, and International Union
have not violated the Act as alleged.
ORDER
The complaint is dismissed in its entirety.55
Dated, Washington, D.C. April 3, 2013

55 If no exceptions are filed as provided by Section 102.46 of the
Boards Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.