Detroit Newspapers

National Labor Relations Board - Board Decisions

Sep 28, 2004

342 N.L.R.B. 1268 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 125
1268
Detroit Newspaper Agency, d/b/a Detroit Newspapers
and Detroit Mailers Union No. 2040, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 7–CA–42544
September 28, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On June 21, 2000, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief. The Respondent filed
a reply 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 conclusions, to
adopt the recommended Order as modified.2
The judge found that the Respondent violated Section
8(a)(3) and (1) by terminating reinstated striker Thomas
Hydorn because of his union and protected activities. In
its exceptions to the judge’s decision, the Respondent
argues that the complaint should be dismissed because
the General Counsel failed to meet his Wright Line3 bur-
den of establishing that a motivating factor in the Re-
spondent’s decision to discharge employee Thomas Hy-
dorn was Hydorn’s union or protected activities. Spe-
cifically, the Respondent argues that because the evi-
dence of antiunion animus on which the judge relied
consisted of Board decisions4 that were denied enforce-
ment in the court of appeals,5 the evidence does not sup-
port the administrative law judge’s finding of antiunion
animus. For the following reasons, we find that the Re-
spondent’s termination of Hydorn violated the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order and notice in
accordance with our decisions in Ferguson Electric Co., 335 NLRB
142 (2001), Excel Container, 325 NLRB 17 (1997), Indian Hills Care
Center, 321 NLRB 144 (1996), and Ishikawa Gasket America, Inc., 337
NLRB 175 (2001)
3 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983).
4 Detroit Newspapers, 330 NLRB 505 (2000); Detroit Newspapers,
326 NLRB 782 (1998); Detroit Newspapers, 326 NLRB 700 (1998).
5 Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109 (D.C.
Cir. 2000).
Background
The pertinent facts are fully set forth in the judge’s de-
cision. Briefly, in 1995, during negotiations for a suc-
cessor collective-bargaining agreement, six unions repre-
senting various units of the Respondent’s employees
launched a strike against the Respondent. One of those
six unions was Detroit Mailers Union No. 2040, the
Charging Party in this case. Although no agreement had
been reached, the unions ended their strike in 1997 when,
on behalf of the striking employees, they made an un-
conditional offer to return to work. The Respondent
treated the returning strikers as economic strikers and
offered them reinstatement as positions became avail-
able. With the strikers’ return, tension arose between
them and the replacement workers.
The Present Case
In 1978, Thomas Hydorn began his employment with
the Respondent. From the beginning of that employ-
ment, Hydorn worked as a material handler and was a
member of Local 2040. During his approximately 17
years of prestrike employment, Hydorn received only
one disciplinary notice, for absenteeism. Hydorn partici-
pated in the Union’s 1995–1997 strike and picketing of
the Respondent.
On August 16, 1999, 18 months after the Union’s un-
conditional offer to return to work, Hydorn was rein-
stated to a material handler position on the 8 p.m. to 4
a.m. shift at the Respondent’s North Plant in Sterling
Heights, Michigan. Following a brief orientation, the
Respondent assigned Hydorn to one of its “inserters,” a
machine that installs advertisements and other supple-
ments into the newspaper. The inserter is staffed by a
leadman operator and one or more material handlers,
according to the number of supplements that have to be
handled. The material handler’s job is to keep the in-
serter supplied with supplements and to monitor the
“heads” and “buckets” for paper jams or paper drags. It
is also the job of the material handler closest to the paper
drag to clear it. This latter duty represented a change in
the material handler’s duties. Before the strike, the
leadman machine operator was responsible for clearing
paper drags; material handlers were prohibited from per-
forming this work. Hydorn’s brief poststrike orientation
did not cover this change in the material handler’s duties.
On August 24, from 5 to 7 p.m., Attorney John Taylor,
Respondent’s in-house labor counsel, conducted a semi-
nar for Respondent’s supervisors on disciplinary proce-
dures. Taylor covered, among other things, the
“[e]lements of [e]ffective [c]orrective [d]iscipline,” in-
cluding “[i]nvestigat[ing] thoroughly before assuming
guilt,” and “[g]iv[ing the] employee an opportunity to
DETROIT NEWSPAPERS 1269
respond,” using a “progressive disciplinary” approach
taking into consideration the employee’s “[l]ength of
service” and “[p]rior work and conduct record.”
Later the same day of this supervisory training, Hy-
dorn was assigned to work on an inserter with Material
Handler John Dutka. Hydorn was stationed at the “V
head” of the machine while Dutka was situated at the “W
head,” closer to Machine Operator William Mihalik.
The first half of the 8 p.m. to 4 a.m shift passed with-
out incident. However, about 1 a.m., shortly after the
lunchbreak, Mihalik called out to Hydorn and Dutka,
“paper drag.” (That call was intended to signal to the
material handlers that a paper jam needed to be cleared,
otherwise additional supplements could not be cleanly
inserted.) In response to Mihalik’s call, Dutka, who was
closest to the paper jam, cleared the paper drag. Hydorn
saw Dutka clear the paper drag and, based on his pre-
strike experience, told Dutka that clearing paper drags
was not the material handler’s responsibility. Hydorn
then pointed at Mihalik and said it was the operator’s
“fucking job,” and that was why he got paid the “big
fucking dollars.” Upon hearing Hydorn’s remarks, Mi-
halik telephoned Supervisor Casey Leach.
Leach arrived and, after speaking with Mihalik, told
Hydorn that it was his job as a material handler to clear
paper drags, if he was in a position to do so. Leach did
not directly order Hydorn to clear a specific drag be-
cause, as found by the judge, “there was no paper drag
pending at the time.” Hydorn, still believing that mate-
rial handlers were forbidden from doing this task, re-
sponded that he would not clear paper drags, even if it
meant that he might be suspended or fired. Leach then
called for Louis Monroig, the acting post-press manager.
Monroig appeared, discussed the situation with Mihalik
and Leach, and then approached Hydorn. Monroig asked
Hydorn if he understood that Leach had given him a di-
rect order to clear paper drags. Hydorn responded that he
would not remove paper drags because that was the op-
erator’s and not the material handler’s job. Monroig or-
dered Hydorn to his office. Hydorn requested union rep-
resentation and Harold Sorenson was summoned to rep-
resent him.
Upon Sorenson’s arrival, the meeting proceeded.
Sorenson advised Hydorn that it was, in fact, his respon-
sibility to clear paper drags. Hydorn continued to insist
that it was the operator’s job, and told Leach and Mon-
roig that he would not handle paper drags. Monroig told
Hydorn that he was suspended pending an investigation
and directed Hydorn to turn in his identification card.
Hydorn turned in his card to Sorenson and left the build-
ing under the escort of a security guard.
Later that morning, after the end of the shift, Karen
Zemnickas, post-press director, was participating in a
company golf outing when she was telephoned and in-
formed about the circumstances of Hydorn’s suspension.
Zemnickas met with two other Respondent management
officials who were also at the outing: Mike Martin, a
post-press manager at the North Plant, and in-house
counsel Taylor. Taylor advised Zemnickas to obtain
written accounts of the incident from the supervisors
involved, which they could review upon their return to
work from the outing.
Zemnickas obtained Monroig’s and Leach’s written
reports and interviewed them regarding the incident with
Hydorn. She then discussed the matter with Taylor, who
also had reviewed Monroig’s and Leach’s reports. Nei-
ther Zemnickas nor Taylor discussed the matter with
Hydorn; nor did they interview Sorenson, Dutka, or Mi-
halik. Taylor recommended that Hydorn be discharged
and Zemnickas, based on her own evaluation, concurred
in that judgment.
On August 27, at Zemnickas’ direction, Manager Mar-
tin issued a letter to Hydorn informing him that he was
discharged because of his “refusal to follow the instruc-
tions and the direct order given by your supervisor.”
The Union filed a grievance contesting Hydorn’s dis-
charge. At the October 8 third-step grievance meeting,
Hydorn apologized for his August 25 conduct. His union
representatives conceded that Hydorn had been out of
line but argued that: the supervisors had handled the
situation poorly; Hydorn had received only a hypotheti-
cal and not a direct order to clear a paper drag; and Hy-
dorn’s discipline was excessive when compared to that
imposed on other employees. Specifically, Union Repre-
sentative Young pointed to an allegedly comparable cir-
cumstance of insubordinate behavior by replacement
employee Marcia Murphy that resulted in only a 1-week
suspension. Zemnickas rejected the Union’s arguments
and affirmed her original decision to discharge Hydorn.
In the Respondent’s final answer to the grievance, in-
house counsel Taylor wrote the Union on October 21,
that Hydorn’s grievance was denied on the basis that
Hydorn had refused to follow the instructions of his su-
pervisor.
Analysis
In Wright Line, the Board established an analytical
framework for deciding cases turning on employer moti-
vation. To prove that an employee was discharged based
on an unlawful motive, the General Counsel must first
persuade, by a preponderance of the evidence, that an
employee’s protected conduct was a motivating factor in
the employer’s decision. If the General Counsel makes
such a showing, the burden of persuasion shifts “to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
employer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct.” Wright Line, supra, 251 NLRB at 1089. See also
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
The elements the Board considers when determining
whether an employer’s conduct was discriminatorily mo-
tivated are generally the alleged discriminatee’s pro-
tected activity, employer knowledge of that activity, and
union animus. Farmer Bros. Co., 303 NLRB 638, 649
(1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993). How-
ever, the Board has held that “motive may be inferred
from the total circumstances proved. Under certain cir-
cumstances the Board will infer animus in the absence of
direct evidence. That finding may be inferred from the
record as a whole.” Fluor Daniel, Inc., 304 NLRB 970,
970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992) (cita-
tions omitted). The Board has further stated that “evi-
dence of a ‘blatant disparity is sufficient to support a
prima facie case of discrimination.’” New Otani Hotel &
Garden, 325 NLRB 928 fn. 2 (1998), quoting Fluor
Daniel, 304 NLRB at 970–971.
Applying these principles here, we find that the Gen-
eral Counsel met his burden of establishing by a prepon-
derance of the evidence that Hydorn was suspended and
discharged because of his union and protected activities.
We further find that the Respondent did not meet its bur-
den of showing that it would have discharged Hydorn
even in the absence of those activities.
The strike in this case was prolonged and bitter. It
lasted from July 1995 until February 1997, and ended
without a collective-bargaining agreement being reached.
Numerous unfair labor practice charges were filed by the
Respondent as well as by the striking unions, and the
striking employees who returned to work did so to al-
tered working conditions, without the benefit of the sen-
iority system that previously applied. Further, during the
course of the strike, the Respondent escalated tensions
between strikers and the replacement workers by distrib-
uting a bulletin to the replacements telling them that the
strikers were seeking to take their jobs.6

6 Contrary to our dissenting colleague’s assertion, we are not relying
on these facts as evidence of the Respondent’s animus. Rather, we are
considering the setting in which Hydorn’s discharge occurred. Al-
though the D.C. Circuit denied enforcement of the Board’s finding of
unfair labor practices connected to the strike events, no one disputes the
hostile and bitter atmosphere in which those events took place. The
dissent seems to fault the administrative law judge for having relied on
findings of animus that were only subsequently denied enforcement.
Moreover, our dissenting colleague accuses us of taking an unwar-
ranted “second bite at the animus apple.” We merely have examined
the record, without reference to the findings of animus subsequently
invalidated by the court, to determine if the General Counsel presented
enough evidence to support his case.
After the strike was over, Supervisor Monroig, who
was hired by the Respondent during the strike, contrib-
uted to the tensions between replacements and returning
strikers by telling the former strikers that the strike had
been a mistake, their return was an “unconditional sur-
render,” the unions were at fault, and that union employ-
ees had ruined everything while the Respondent had got-
ten things back together again.7
Against this backdrop, the Respondent reinstated Hy-
dorn to a material handler’s position on August 16, 1999.
It is undisputed that Hydorn, who had been a union
member since 1978, engaged in protected union activities
during the strike. Hydorn participated in the Union’s
1995–1997 strike against the Respondent and, during its
course, occasionally picketed the Respondent.
There is also no doubt that the Respondent knew that
Hydorn was a union adherent. This is shown by Hy-
dorn’s open support for the Union’s strike. In addition,
as the judge observed, the Respondent’s own records
listed Hydorn’s status as a “Union Returnee” on his ap-
plication for reinstatement at the conclusion of the strike.
Quite apart from the then extant Board decisions on
which the judge relied, the totality of the circumstances
supports the judge’s finding that the Respondent’s disci-
pline of Hydorn was discriminatorily motivated. Thus, at
the time of his August 1999 reinstatement, Hydorn had
been off the job for more than 4 years. Despite this fact,
Hydorn and other reinstated material handlers received
only a brief orientation by Post-Press Director Zem-
nickas. In that orientation, Zemnickas told the reinstated
strikers that they would have the same duties, except that
they might be required to work at more than one work-
station. Zemnickas did not tell Hydorn or the others that,
contrary to pre-strike operating procedures, they—the
material handlers, as opposed to the inserter operators—
would be required to clear paper drags. Accordingly,
when Hydorn repeatedly stated, on August 25, that the
task of clearing paper jams belonged to leadmen opera-
tors, and not material handlers, he was accurately reflect-

7 This evidence regarding Monroig’s statements is based on
Sorenson’s testimony, which was specifically credited by the judge
where it was not contradicted by other witnesses. Monroig did not deny
making the statements in question. Our dissenting colleague declines
to rely on this credited testimony, although he chooses to rely on the
testimony of Zemnickas, despite the judge’s finding that the problems
with her testimony “cast a cloud of doubt over the entirety of her testi-
mony.”
Contrary to our dissenting colleague’s allegation, we are not relying
on Monroig’s statements as direct evidence of the Respondent’s animus
toward returning strikers. Although not conceding that Monroig’s
statements, taking into account his supervisory status and the surround-
ing atmosphere, were not coercive, we consider his comments as evi-
dence of the general atmosphere in which the Respondent discharged
Hydorn without regard to its own disciplinary guidelines.
DETROIT NEWSPAPERS 1271
ing the prior practice which—to his knowledge—had
never been changed. Yet it was purportedly that unan-
nounced change that precipitated Hydorn’s discharge,
slightly more than 1 week after his reinstatement.
The record further establishes that Hydorn was disci-
plined for misconduct he did not commit. According to
his discharge notice, Hydorn was terminated because of
his “refusal to follow the instructions and the direct order
given by your supervisor.” However, while Hydorn may
have exhibited insubordinate behavior on August 25, we
agree with the judge that “he never defied a direct order
to remedy a pending paper drag. . . .” He could not have;
Leach never gave Hydorn a direct order to clear a paper
drag.8 Thus, the Respondent’s stated reason for dis-
charging Hydorn is false. Because it is false, we must
determine whether that false reason was designed to con-
ceal an unlawful reason for Hydorn’s discharge. See
Shattuck Denn Mining v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966). Evaluating all of the evidence, we are per-
suaded that it was. This is particularly demonstrated by
the Respondent’s rush to discipline Hydorn in disregard
of its own investigative and disciplinary procedures.
The Respondent failed to investigate fully the circum-
stances surrounding Hydorn’s suspension on August 25.
Monroig suspended Hydorn on August 25, “pending an
investigation.” That investigation was conducted by
Manager Zemnickas. According to the Respondent’s
own guidelines, which Zemnickas had Attorney Taylor
review with subordinate supervisors only hours before
Hydorn’s suspension, Zemnickas’ investigation should
have been “thorough,” and provided Hydorn with an
“opportunity to respond.” Zemnickas’ “investigation”
clearly did not comport with those standards. Zemnickas
and Taylor admitted that they did not interview Hydorn,
the accused, or Dutka, the other material handler present
at the incident. Nor, according to the credited testimony
of inserter operator Mihalik, did any representative of
management interview him before discharging Hydorn.
Instead, the Respondent rushed to judgment and termi-
nated Hydorn by letter of August 27, for an act which he
did not commit.9 Under these facts, we agree with the

8 Our dissenting colleague contends that Hydorn did refuse a direct
order and that he sought to unilaterally dictate to the Respondent his
terms and conditions of employment. This view ignores the circum-
stances in which the incident occurred. With tempers already flaring,
the Respondent insisted that Hydorn acknowledge facts not previously
communicated to him: that his job now included the responsibility of
clearing paper drags. No specific work was required of Hydorn at that
moment; and there is no evidence that he persisted in his view of this
job requirements once his equanimity returned after the confrontation
ended.
9 The dissent states that it “borders on frivolous” to suggest that the
Respondent failed to conduct a meaningful investigation, and that the
Board is attempting to “dictate appropriate methodologies” for the
judge’s conclusion that Respondent’s disregard of its
guidelines is “suspicious.”10 Further, we find that the
Respondent’s cursory investigation—contrary to its own,
contemporaneously reinforced, investigative guidelines -
supports the conclusion that the Respondent was not in-
terested in the outcome of a fair investigation.11
This conclusion is bolstered by the fact that the Re-
spondent failed even to consider whether Hydorn’s of-
fense warranted application of its progressive discipli-
nary policy. Thus, the Respondent did not take into ac-
count that this was Hydorn’s first offense for insubordi-
nation, and that, except for an absenteeism infraction
early in his tenure, he had an unblemished disciplinary
record during his approximately 17 years of employment
with the Respondent.
Under all of these circumstances, we find that the Gen-
eral Counsel has met his burden of establishing a prima
facie case that Hydorn’s protected and union activity was
a substantial or motivating factor in the Respondent’s
decision to discharge him. We stress the Respondent’s
animus, as expressed by Supervisor Monroig, toward
returning strikers such as Hydorn. In this setting, rein-
stating returning striker Hydorn, a known union sup-
porter, to a workplace still simmering with many of the
tensions that erupted during the strike, the Respondent
put him in a material handler’s job with the new and un-
stated responsibility of clearing paper drags, then dis-
charged him 11 days later for merely threatening not to
perform that responsibility, which he previously had
been prohibited from performing. Further, the Respon-

investigation. On the contrary, we are merely finding that the Respon-
dent’s failure to follow its own stated guidelines is evidence of its dis-
criminatory motivation. It is our dissenting colleague who would find
that Respondent’s investigation, and the ensuing inference of animus
for the failure to meet that standard, is based solely on the Respon-
dent’s own policy.
10 A thorough investigation could have revealed, for example, that
Hydorn was not the closest material handler to the paper drag, and thus
responsible for clearing it, or that Hydorn had not been informed previ-
ously of his responsibility for clearing paper drags, and that this respon-
sibility prior to the strike had been held by the operator not the material
handler.
11 We disagree with our dissenting colleague’s view that the Re-
spondent’s investigative guidelines were not followed because Hydorn
was not a candidate for “corrective” discipline and because his “ex-
treme” insubordination was “inconsistent” with continued employment.
The evidence concerning nonstrikers in the Local 2040 bargaining unit
who were disciplined for insubordination reveals otherwise. These
employees were given “corrective” discipline rather than discharge in
circumstances far graver than Hydorn’s conduct presented. Thus, the
Respondent did not discharge employees who refused repeated direct
orders to perform work. Further, one employee who threatened Mon-
roig used obscenities in speaking with him, and stated she didn’t care if
she was sent home, but was given only a suspension. Given a demon-
strated tolerance for this type of conduct, the contention that Hydorn’s
behavior called for action beyond the Respondent’s investigative guide-
lines is inconsistent with the totality of the evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
dent dismissed Hydorn, falsely alleging he disobeyed a
direct order, without following its own investigative pro-
cedures or its progressive discipline policy.
Having found that the General Counsel has met his
Wright Line burden, we further find, for the reasons
stated by the judge, that the Respondent did not meet its
burden of proving that it would have discharged Hydorn
even in the absence of his protected union activity. The
Respondent has sought to meet this burden by, among
other things, producing evidence that it discharged six
nonstrikers for insubordination.12 The Respondent ar-
gues that this evidence demonstrates that it treated Hy-
dorn similarly to those employees who did not engage in
union activity. The judge found, however, and we agree,
that the six instances relied upon by the Respondent do
not support that contention. As the judge noted, “[i]n all
but a single case, the evidence available indicates that
th[ose] discharges were based on significantly more than
an isolated episode of insubordination.” Thus, in five of
the cases on which Respondent relies the employees
committed specified offenses in addition to insubordina-
tion or multiple instances of insubordination. By con-
trast, the Respondent discharged Hydorn for a single,
isolated instance of insubordination.
As to the sixth employee, Usman Daramy, the evi-
dence shows that he was discharged for “refusal to obey
a direct order from the Division Sales Manager and
[i]nappropriate behavior.” (Emphasis added.) As the
judge observed, the Respondent presented no evidence
explaining the nature of Daramy’s “inappropriate behav-
ior.” However, it seems clear that Daramy’s inappropri-
ate behavior was an additional factor that contributed to
the Respondent’s decision to discharge him. Hydorn, on
the other hand, was discharged for the singular act of
“refus[ing] to follow the instruction and the direct order
given by [his] supervisor.” Under the circumstances, and
particularly since Hydorn did not refuse a direct order as
cited by the Respondent, we are unable to conclude from
the Respondent’s evidence that it evaluated Hydorn’s

12 Our dissenting colleague disingenuously suggests that Hydorn en-
gaged in multiple acts of insubordination because he repeatedly refused
to agree with the Respondent’s repeated assertions that it was his job to
clear paper drags and he initially balked at turning over his identifica-
tion and leaving the premises. While we agree that Hydorn behaved in
a disrespectful and insubordinate manner, we cannot view this one
incident as evidence of multiple acts. Hydorn returned to a workplace
containing deep and lingering bitterness, on both sides, based on the
strike and its effects. On his return to work, the Respondent did not tell
Hydorn about the change in the responsibilities of his job to include the
clearing of paper drags. He reacted strongly when confronted by his
superiors about his new responsibilities, but his insubordinate behavior
was limited to the single occasion on which they initially informed him
about the change.
misconduct according to the same standard applied to
employees who did not engage in protected activities.13
Furthermore, in this case, the General Counsel has
produced significant evidence of disparate treatment.
Based on Respondent’s personnel records, the General
Counsel has shown that between February 1997 and No-
vember 1999, Respondent disciplined 37 nonstrikers for
insubordination less harshly than Hydorn. In 20 of those
37 instances, the Respondent only issued a warning to
the offending employee, while in the remaining cases the
employees were disciplined with suspensions. We agree
with the judge that “the evidence in this case shows that
the Respondent had a relatively lax attitude towards in-
subordination by non-strikers, even those who defied
multiple direct orders or had been insubordinate on prior
occasions.”14
We are particularly persuaded of the Respondent’s
disproportionate response to Hydorn’s behavior based on
the evidence concerning nonstriking employee Marcia
Murphy. She threatened Monroig that she would “kick
his ass” and that she was not “one of his bitches.” When
Monroig threatened to send her home, Murphy told him
“I don’t give a fuck and you can send me home because I
don’t need this shit.” Murphy was given a 1-week sus-
pension rather than discharge. The record evidence on
discipline, as discussed above and in the judge’s deci-
sion, amply demonstrates that the Respondent treated
Hydorn more harshly than nonstrikers, like Murphy, who
engaged in similar conduct. Thus, we find that the Re-
spondent engaged in disparate treatment in disciplining
Hydorn. Given disparate treatment and the independent

13 We find our dissenting colleague’s reliance on the discharges of
Daramy and employee Sylvia Dean to be misplaced. As noted above,
Daramy’s discharge, without regard to Daramy’s work unit or the
judge’s view that nonstrikers generally received lesser discipline, is
distinguishable from Hydorn’s: unlike Hydorn, Daramy refused a direct
order. Regarding Dean, she had been given a lesser discipline for a
previous instance of insubordination, in which she refused a direct
order.
Our dissenting colleague suggests that we unfairly rely on the refer-
ence to Daramy’s “inappropriate behavior” while ignoring the absence
of a reference to prior misconduct in Dean’s discharge. As noted, the
Respondent has a policy of progressive discipline. Accordingly, al-
though Dean’s prior behavior undoubtedly impacted the level of disci-
pline meted out to her, the prior acts need not necessarily have been
cited in the document stating her latest misconduct and discharging her.
Moreover, although the dissent deems Hydorn’s behavior akin to Da-
ramy’s in being “inappropriate,” the pertinent point is that the Respon-
dent did not label it as such and did not rely on that as part of its basis
for Hydorn’s discharge.
14 In considering whether the Respondent engaged in disparate
treatment in its discipline of Hydorn, we draw no inference from the
Respondent’s failure to prove that it either reprimanded or suspended a
returning striker for insubordination. Our analysis is based on compar-
ing the conduct and discipline of Hydorn with those other incidents that
were actually adduced at the hearing.
DETROIT NEWSPAPERS 1273
evidence of union animus, including the Respondent’s
generalized animus towards returning strikers as ex-
pressed by Monroig, we conclude that the Respondent
has failed to meet its affirmative burden of showing that
it would have discharged Hydorn even absent his union
activities. Accordingly, we find that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Hydorn for engaging in protected concerted union activi-
ties.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Detroit Newspaper Agency d/b/a Detroit
Newspapers, Detroit, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth below.
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees in order to discourage union activity.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, offer
Thomas Hydorn full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
job, without prejudice to any rights or privileges previ-
ously enjoyed.
(b) Make Thomas Hydorn whole for any loss of earn-
ings or benefits he may have suffered due to the Respon-
dent’s discrimination, in the manner set forth in the rem-
edy section of the attached decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Thomas Hydorn and, within 3 days thereafter, notify him
in writing that this has been done and that the discharge
will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
the Respondent’s facility in Sterling Heights, Michigan,
copies of the attached notice marked “Appendix.”15
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being duly signed by the
Respondent’s authorized 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. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since August 27, 1999.
(f) Within 21 days after service by the Regional Direc-
tor, file with the Regional Director a sworn certification
of a responsible official on a form provided by the Re-
gion attesting to the steps that the Respondent has taken
to comply.

MEMBER SCHAUMBER, dissenting.
Introduction
Were it the Board’s role to sit in judgment on the rela-
tive wisdom or abstract fairness of disciplinary decisions
made by employers, this case might present a closer
question. The individual fired by the Respondent, Tho-
mas Hydorn, enjoyed a long and largely unblemished
prestrike tenure. He returned to Respondent’s employ
after a 4-year absence following an undoubtedly dis-
heartening, demonstrably bitter, and ultimately unsuc-
cessful economic strike. Hydorn found his workplace
populated with new supervisors and replacement co-
workers, and faced significantly different working condi-
tions. Under such circumstances, Hydorn’s adamant,
repeated and uncontested refusal to perform important
aspects of his job could be viewed as an impetuous lapse
in judgment warranting less severe sanctions. However,
it is not our place to second-guess personnel decisions;
our sole responsibility is to determine whether the Gen-
eral Counsel has established by a preponderance of the
evidence that discriminatory animus was a substantial or
motivating factor in the challenged disciplinary action.
Because the General Counsel did not come close to
meeting that burden in the instant case, I respectfully
dissent.

15 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 BOARD 1274
Facts
Hydorn worked at Respondent’s plant in Sterling
Heights, Michigan, primarily as a material handler, from
1978 through July 1995. Material handlers operate in-
serter machines, which place advertising supplements
into newspapers and comics. In July 1995, a number of
unions representing Respondent’s employees, including
Teamsters Local 2040, to which Hydorn belonged, initi-
ated what was later determined to be an economic strike
against Respondent.1 During the course of the strike,
Hydorn, like many other union members, occasionally
engaged in picketing of Respondent’s facilities.
Respondent recalled Hydorn to its Sterling Heights
plant 4 years later on August 16, 1999. On his second
day back, Hydorn was observed smoking while standing
at his station. His supervisor, Louis Monroig, informed
him that smoking was not permitted on company time
and an animated exchange ensued, after which Hydorn
refused Monroig’s offer to shake hands. Several days
later, Hydorn was working at a material handler’s station
when a paper jam or “drag” occurred near the station
where Hydorn and another employee, John Dutka, were
working. The machine operator called out “paper drag,”
and asked that someone clear it. Dutka did so, after
which Hydorn pointed to the machine operator and
loudly said that it was the operator’s “fucking job” to
clear drags, which was why they were paid the “big fuck-
ing dollars.”
The operator, unamused by Hydorn’s observation,
called a supervisor, Casey Leach, to report it. Leach
explained to Hydorn that clearing drags was part of the
material handler’s job. Hydorn replied that he would not
clear paper drags, even if it meant that he would be sus-
pended and fired. Leach then called the acting post-press
manager, Monroig, who, after conferring with the ma-
chine operator and Leach, asked Hydorn if he understood
that he had been given a direct order to clear paper drags.
Hydorn again responded that he would not remove paper
drags because he viewed that task to be the operator’s
job, not his. Monroig then asked Hydorn to accompany
him to his office, at which point Hydorn invoked his
right to the presence of a union representative.

1 In Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109,
122 (2000), the D.C. Circuit held that the Board’s conclusion that Re-
spondent committed various unfair labor practices during the negotia-
tions leading to the 1995 strike was legally erroneous and unsupported
by substantial evidence, and therefore reversed the Board’s subsequent
order holding the strikers to be unfair labor practice strikers. Conse-
quently, as an economic striker, Hydorn and his fellow employees were
not entitled to backpay or immediate reinstatement, but remained eligi-
ble for recall if and when substantially equivalent positions became
available. See generally Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
Monroig and Leach met with Hydorn and Union Rep-
resentative Harold Sorenson in the post-press supervi-
sor’s office. Sorenson, like Messrs. Leach and Monroig
before him, confirmed to Hydorn that it was, in fact, Hy-
dorn’s job to clear paper drags. Although Hydorn now
had been thrice warned by a supervisor, manager, and
union official that material handlers were required to
remedy paper drags, he continued to insist that was not
his job and told Leach and Monroig directly that he re-
fused to do such work. Monroig then suspended Hydorn
and asked him to turn in his identification card, which
Hydorn also stubbornly refused to do. He ultimately
acquiesced, relinquishing the card to Sorenson, after
which a security guard escorted Hydorn from the plant.
The following day, the post-press director, Karen
Zemnickas, learned of the incident. She arranged a meet-
ing with a post-press manager at the Sterling Heights
plant, Mike Martin, and Respondent’s senior legal coun-
sel and director of labor relations, John Taylor. Zem-
nickas frequently consulted Taylor on disciplinary mat-
ters that might lead to termination. Taylor directed Zem-
nickas to have the responsible supervisors prepare writ-
ten reports, after which they would meet to determine the
proper course of action. Zemnickas subsequently inter-
viewed Monroig and Leach, and provided their respec-
tive written accounts to Taylor. Taylor met again with
Zemnickas and ultimately recommended discharging
Hydorn because of Hydorn’s repeated refusal to perform
a duty that both management and the union had told him
was part of his job.2 Consistent with that recommenda-
tion of counsel, Respondent terminated Hydorn on Au-
gust 24, 1999, for his “refusal to follow the instructions
and the direct order given to him by his supervisor.”
The ALJ’s Wright Line Animus Analysis
In finding that the General Counsel satisfied his initial
Wright Line3 burden of proving that discriminatory ani-

2 Taylor testified that “[t]he information that I was provided, and that
I looked at, indicated that Mr. Hydorn had been asked by management .
. . to perform a particular task . . . and that he refused. That a union
steward had also asked him to do it, and he refused. And that his atti-
tude was also a factor. His attitude was not only did he refuse, but on
top of that he said, “Go ahead and fire me. Because I am not going to
do it today and I am not going to do it tomorrow.” ALJD at 5 (quoting
Tr. at 514).
3 In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board established
its familiar framework for determining whether an employer has dis-
criminated against an employee in violation of Sec. 8(a)(3). Under that
framework, in which unlawful intent is an essential element, the Gen-
eral Counsel must first, by a preponderance of the evidence, make a
showing “sufficient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision.” 251 NLRB at 1089.
Only if the General Counsel makes such a showing, does the burden of
persuasion then shift to the employer “to demonstrate that the same
DETROIT NEWSPAPERS 1275
mus was a substantial or motivating factor in the decision
to terminate Hydorn, the judge relied upon four factors:
(1) animus towards returning strikers inferred by the
judge based on prior unfair labor practices found by the
Board in connection with the strike; (2) the timing of
Hydorn’s discharge within 11 days of his “delayed” rein-
statement; (3) evidence that Respondent did not inter-
view all witnesses to the incident and did not follow re-
cently discussed termination guidelines in processing
Hydorn’s discharge; and (4) a notation on a document in
Hydorn’s personnel file identifying him as a returning
striker. Whether this “evidence” even creates a triable
issue of fact as to Respondent’s motivation is debatable,
but it clearly falls far short of proof by a preponderance
of the evidence, a fact the majority effectively concedes,
as discussed below, by abandoning much of the judge’s
reasoning.
First, the D.C. Circuit, subsequent to the judge’s deci-
sion in this case, refused to enforce the Board’s determi-
nation that Respondent violated the Act in the Board
cases relied upon by the judge as “background evidence”
of animus, concluding in no uncertain terms that the
Board’s findings were “legally erroneous and unsup-
ported by substantial evidence.” 216 F.3d at 231. Thus,
the “ample evidence” of anti-union animus the judge
discovered in those cases simply vanishes, and his sug-
gestion that Respondent improperly “delayed” in rein-
stating Hydorn is plainly wrong.4
Second, if the timing of the disciplinary action in the
case supports any inference, it is that Hydorn’s uncon-
tested insubordination provoked his discipline (which
followed shortly thereafter), not any protected activity in
which Hydorn may have engaged on the picket line years
before. Indeed, there is no evidence that Hydorn was a
particularly active union proponent, or that Respondent
had any reason to single out him, rather than other re-
turning strikers, for discipline. Cf. Saga Food Service of
Hawaii, Inc., 265 NLRB 1668, 1673 (1982) (respon-
dent’s knowledge of broad-based support among its em-
ployees for the union “dilutes any assertion that
[r]espondent had [an] insidious reason to single out cer-
tain persons for discrimination.”).
Third, the judge’s conclusion that Respondent’s al-
leged “failure to conduct a meaningful investigation” of
Hydorn’s misconduct supports a finding of animus
impermissibly treads on legitimate managerial preroga-
tives and is wrong as a matter of objective fact.5 It is

action would have been taken even in the absence of the protected
conduct.” Id.
4 Fn. 1, supra.
5 As noted above, consistent with her normal practice, Zemnickas
consulted with Respondent’s senior legal counsel and director of labor
simply not the Board’s province to dictate appropriate
methodologies for workplace investigations, and the
Board possesses no unique expertise qualifying it to do
so. Only where the record evidence reflects a demon-
strable departure from prior standards for investigations
of similar misconduct (i.e., disparate treatment), or indi-
cia of a sham investigation, is an inference of animus
warranted. Here, the General Counsel demonstrated nei-
ther.
The judge identified no regularly followed practices
from which the Respondent departed in investigating
Hydorn’s misconduct or making the decision to termi-
nate him. Rather, he deemed “particularly suspicious”
Respondent’s failure to interview the nonmanagement
material handlers who witnessed the incident on the line.
However, the judge ignored the fact no one contests that
Hydorn’s refusals to clear paper drags occurred in the
manner conveyed to Taylor through the written reports of
Monroig and Leach, who, unlike any nonmanagement
materials handler, personally observed Hydorn’s re-
peated refusals to perform the work at issue. Indeed,
even union president, Alex Young, conceded that Hy-
dorn behaved poorly, and Hydorn himself admitted, in a
moment of candid understatement, that he had been
guilty of a “bad attitude.” Consequently, there was no
need to corroborate uncontested material facts through
additional witness interviews, and there was no basis for
the judge to infer animus from Respondent’s entirely
reasonable decision not to do so.
Lacking any evidence of an actual departure from Re-
spondent’s normal investigation procedures, the judge
attempted to infer animus from Respondent’s alleged
departure from standards contained in an “outline [] of
elements of effective discipline” prepared by Taylor for
Respondent’s supervisors at Zemnickas’ request shortly
before Hydorn’s termination. The outline included typi-
cal suggestions for supervisors such as investigating
thoroughly before assuming guilt, progressive discipline,
and providing employees an opportunity to respond.
Nothing, however, in the outline dictated that the out-
line’s suggestions were to be followed mechanically and
inflexibly in every situation (e.g., by interviewing unnec-
essary corroborative witnesses), and there is absolutely
no evidence that the informational outline had been im-
plemented as a matter of practice. Moreover, even it had
been, there was no “blatant bypassing” of the outline’s

relations, Taylor, upon learning of the incident. At his direction she
then interviewed the managers who witnessed the insubordination and
had them prepare written statements detailing the facts. She then met
again with Taylor to discuss how to proceed and acted on his legal
advice to effect the termination. To assert that such an investigation
was not “meaningful,” particularly when the Hydorn’s repeated refusal
to clear paper drags was undisputed, borders on frivolous.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
guidelines as found by the judge, because witnesses were
interviewed and Hydorn was given multiple opportuni-
ties to explain his actions. Similarly, Respondent did not
“assume” Hydorn’s refusal to clear paper drags—Hydorn
made his position on that point abundantly clear. Thus,
the effective discipline outline provided no legitimate
basis for inferring animus.
Finally, the judge gleaned knowledge and animus from
the fact that a document in Hydorn’s personnel file iden-
tified Hydorn as a recalled striker, while Zemnickas testi-
fied initially that she did not believe Respondent main-
tained such records.6 When shown the document, Zem-
nickas explained that the notation might have been nec-
essary to ensure the proper resumption of Hydorn’s em-
ployee benefits. Nothing in this exchange evidences the
requisite Wright Line animus. First, there is no evidence
that either Zemnickas or Taylor, the individuals respon-
sible for the termination decision, knew of the document
or considered it or Hydorn’s status as a recalled striker in
deciding on the appropriate response to his insubordina-
tion. Second, some record of Hydorn’s status would not
be unusual because of the implicated benefits issues and
because economic strikers retain recall rights that em-
ployers must honor and document. Third, even assuming
knowledge of Hydorn’s status on the part of the relevant
decisionmakers, there is absolutely no evidence of a cas-
ual connection between that status and his termination.
If knowledge of an employee’s status as a returning
striker sufficed to satisfy the General Counsel’s burden,
we effectively would be imposing a presumption that any
disciplinary action taken against a returning striker is
unlawful. While my colleagues seem prepared to head
down that path, the Act does not provide strikers such
blanket protection.
In short, the judge’s Wright Line analysis, which is
particularly colored by reliance on prior Board findings
denied enforcement by the D.C. Circuit, is, like those
prior Board findings, legally erroneous and unsupported
by substantial evidence.
The Majority’s Second Bite at the Animus Apple
Apparently recognizing that the judge’s Wright Line
analysis cannot survive scrutiny, my colleagues take a
different tack, but one no less errant. First, despite the
D.C. Circuit’s decision, the majority—in assessing “the
totality of circumstances” supporting its finding of ani-
mus—cites “the numerous unfair labor practice charges”
filed during the strike and the fact that the Respondent
allegedly escalated tensions during the strike by distrib-

6 Though the judge did not find Zemnickas to be a reliable witness,
he could not decide whether her fault was “untruthfulness or lapse of
memory.”
uting a bulletin to replacement workers telling them that
the strikers were trying to take their jobs. In effect, the
majority attempts to sneak in the back door what the
D.C. Circuit threw out the front. There is simply no evi-
dence that Respondent engaged in unlawful conduct dur-
ing the strike to support a finding of Section 7 animus.
Second, in finding animus the majority relies on com-
ments purportedly made by Supervisor Monroig to the
effect that the strike had been a mistake, that the strikers’
return was an “unconditional surrender,” that the unions
were at fault, and that union employees had ruined every-
thing while the employer had gotten things back to-
gether. The sole “evidence” of such comments is hear-
say reports provided by Union Representative Sorenson,
a witness the judge described as “very lacking in credi-
bility based on his evasive demeanor and the contradic-
tions in his testimony.” More importantly, even if cred-
ited, Monroig’s purported statements of opinion shed no
light on whether Taylor’s and Zemnickas’ decision to
terminate Hydorn was colored by discriminatory animus.
Finally, Section 8(c) precludes the use of such statements
to establish an unfair labor practice. See 29 U.S.C. §
158(c) (“The expressing of any [non-coercive] views,
argument or opinion, . . . shall not constitute or be evi-
dence of an unfair labor practice . . . .”).7
Third, the majority faults Respondent for failing to
more extensively retrain Hydorn before returning him to
the line, and somehow concludes that Respondent’s fail-
ure supports a finding that Hydorn’s discharge was dis-
criminatorily motivated. I see no logic in that leap.
Even supposing that Hydorn’s initial profane outburst
could be excused by his ignorance of Respondent’s new
operating requirements for materials handlers, Hydorn’s
initial ignorance does not explain or excuse his subse-
quent refusals to clear paper drags. Respondent “an-
nounced” to Hydorn not once, not twice, but three times
that clearing paper drags was part of his job, and each
time Hydorn refused to perform such work, even if it
meant that he would be suspended or fired.
Fourth, in a painfully strained bit of semantic slight of
hand, the majority asserts that “the Respondent’s stated
reason for discharging Hydorn is false [i.e., pretextual],”
and that Hydorn “was disciplined for misconduct he did
not commit.” This because Hydorn’s discharge notice
stated that he was terminated for “refusal to follow the
instructions and the direct order given by your supervi-
sor,” when, in fact, says the majority, Hydorn “never
defied a direct order to remedy a pending paper drag.”

7 See also NLRB v. Lampi LLC, 240 F.3d 931, 935 (11th Cir. 2001)
(Sec. 8(c) prohibits Board reliance on lawful statements as evidence of
either an unfair labor practice or Sec. 7 animus); Carry Cos. of Illinois,
Inc. v. NLRB, 30 F.3d 922, 927–928 (7th Cir. 1994) (same).
DETROIT NEWSPAPERS 1277
(Emphasis added.) Of course, the discharge notice does
not say he did. Rather it says Hydorn refused to follow
the instructions and the direct order given by his supervi-
sor—namely to clear paper drags. Indeed, as the credited
testimony summarized in the judge’s decision states:
“Monroig asked Hydorn if he understood that [supervi-
sor] Leach had given him a direct order to clear paper
drags, and Hydorn again stated that he would not remove
paper drags because doing so was the job of the operator,
not of the material handlers.” There is absolutely no
dispute that Hydorn pointedly refused to follow the in-
structions of his supervisor, and repeatedly refused to
comply with a “direct order” to clear paper drags.8
Hence, the only confusion concerning the basis for Hy-
dorn’s discharge emanates from my colleagues.
Having erroneously found Respondent’s basis for dis-
charging Hydorn to be false, the majority, as part of its
animus inquiry, proceeds to assess “whether that false
reason was designed to conceal an unlawful reason for
Hydorn’s discharge”—i.e., whether the Respondent’s
reason was a pretext for discrimination against Hydorn
because of his Section 7 activity. Putting aside the subtle
burden shifting this analysis achieves,9 the evidence cited
by the majority falls woefully short of establishing pre-
text or discriminatory animus.
First, my colleagues, like the judge, fault the thor-
oughness of Respondent’s investigation, characterizing it
as a “rush to judgment,” despite the uncontested nature
of Hydorn’s conduct, Zemnickas’ several consultations
with counsel, her interviews of pertinent witnesses and
obtaining of written statements for Taylor’s review, and
despite the fact that employers have every incentive to
expedite investigations where employees have been sus-
pended. To repeat, on the facts of this case, it was by no
means unreasonable for the Respondent to eschew addi-
tional witness interviews in light of Hydorn’s admitted
refusal to clear paper drags, a job duty he deemed exclu-
sively the province of operators making “the big fucking
dollars.” Nor, given Hydorn’s conceded “bad attitude”
and stubborn insistence that he would not clear paper
drags even if it meant his suspension and termination, do
I find it the least bit surprising that Taylor saw no need to
provide Hydorn additional opportunities to respond.
Nothing in the general supervisory guidelines required
Respondent to do so, nor did those guidelines mandate

8 The word “refuse” means “to show or express a positive unwilling-
ness to do or comply with (as something asked, demanded, expected).”
Webster’s Third International Dictionary.
9 It is one thing to buttress a strong prima facie case with clear evi-
dence of pretext, as the Board often does, it is another to fashion a weak
prima facie case from equally weak evidence of pretext—i.e. that the
Respondent here purportedly failed to carry its burden of proof in its
rebuttal case.
progressive discipline in every case.10 In fact, the record
reflects that Respondent imposed a range of discipline
from written warnings to discharge for acts of insubordi-
nation, and terminated at least one nonstriking employee
(Daramy) based on a single act of insubordination less
severe than Hydorn’s. Stripped to the core, my col-
leagues simply disagree with the severity of the disci-
pline imposed and substitute their judgment for that of
the Respondent. While their obvious sympathy for Hy-
dorn is understandable, this is not arbitration, and our
sole authority is to determine whether the General Coun-
sel carried his burden of establishing a violation of the
law. Because the General Counsel failed to satisfy his
initial Wright Line burden, I would dismiss the com-
plaint.
Respondent’s Rebuttal Case
In my view, the evidence of animus and a causation
nexus in this case is so weak that a discussion of whether
Respondent met its Wright Line rebuttal burden is aca-
demic. However, because my colleagues go there, I feel
compelled to at least make several points concerning
their analysis.
First, close scrutiny of the record evidence relating to
allegedly disparate treatment of insubordinate employ-
ees, if anything, reveals that the Respondent’s practice in
disciplining employees for insubordination was and is
decidedly mixed—both with respect to striking and nos-
triking employees. That is, Respondent, given the myr-
iad factual scenarios encompassed within the realm of
“insubordinate” behavior, has consistently been inconsis-
tent in imposing discipline. Indeed, the record suggests
that this lack of uniformity in discipline has long been a
source of tension between the Respondent and the Union.
Thus, even assuming some inconsistency with respect to
Hydorn, that inconsistency shows only that Respondent

10 Hydorn’s insubordination in this case was extreme and directly
challenged Respondent’s authority to establish production procedures
for workers on the plant floor. In effect, by announcing his intention to
defy any future directive to clear paper drags, Hydorn was seeking to
unilaterally dictate to the Respondent a term and condition of employ-
ment. See, e.g., Valley City Furniture, 110 NLRB 1589, 1594–1595
(1954), enfd. 230 F.2d 947 (6th Cir. 1956) (reasoning that attempting to
dictate terms and conditions of employment was antithetical to the
objectives of the Act). See also Broyhill & Associates, Inc., 298 NLRB
707, 709–710 (1990) (in which the Board adopts, on quite similar facts,
the judge’s determination that the General Counsel failed to establish
that respondent’s stated basis for discharging the employee—namely
his repeated and stubborn threat not to work an assigned shift—was a
pretext for discrimination, notwithstanding somewhat inconsistent
application of respondent’s progressive discipline policy). In light of
Hydorn’s repeated insistence that he would not clear paper drags re-
gardless of the discipline imposed, Respondent’s managers Taylor and
Zemnickas could reasonably conclude that progressive discipline would
be futile and that Hydorn’s attitude and behavior was inconsistent with
continuing an employer/employee relationship.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
did not have a hard and fast rule that discharge was the
automatic penalty for insubordination; it does not reflect
disparate treatment of returning strikers generally or Hy-
dorn specifically.
Second, my colleagues, like the judge, dismiss Re-
spondent’s evidence that it discharged six nonstrikers for
insubordinate conduct, arguing that all but one of those
cases involved more than a single isolated act of insub-
ordination. However, Hydorn did not engage in a single
act of insubordination—he steadfastly and repeatedly
refused to clear paper drags even in the face of contrary
advice from his union representative, occupying the time
of several supervisors in the process. He then refused to
comply with a request that he turn in his identification
and leave the premises. Moreover, over the course of his
insubordination, which amounted to insistence on unilat-
erally establishing the duties of his position, Hydorn
demonstrated and articulated his utter disregard for the
potential consequences of his actions. Not one of the
four cases cited by the judge as examples of nonstriking
employees subjected to lesser discipline, including em-
ployee Murphy, involved such persistent challenges to
duties assigned to a job classification.
Third, contrary to the judge and my colleagues, I be-
lieve that the cases most factually similar to Hydorn’s
situation are those of employees Sylvia Dean and Usman
Daramy, nonstrikers Respondent terminated for insubor-
dination. The judge attempted to distinguish Dean’s case
on the ground that she had been insubordinate on a pre-
vious occasion more than a year earlier. However,
Dean’s discharge notice does not mention the previous
offense. Rather, it notes that Dean was discharged for
refusing to perform an assignment and continuing that
defiance after being warned that doing so could lead to
her termination—exactly the behavior at issue here. (See
R. Exh. 3.)
Similarly, the majority attempts to distinguish Da-
ramy’s case on the ground that his discharge notice indi-
cated termination for refusing a direct order and “inap-
propriate behavior.” Though no record evidence exists
regarding the nature of the allegedly additional “inappro-
priate behavior,” my colleagues reckon that “it seems
clear that Daramy’s inappropriate behavior [whatever it
may have been] was an additional [and distinguishing]
factor that contributed to Respondent’s decision to dis-
charge him.” Hydorn, by contrast, the majority claims,
was discharged for the “singular act” of refusing a direct
order from his supervisor (which, as noted above, they
conclude he never did). The majority’s analysis scoots
past the contrary approach taken with Dean, whose dis-
charge notice makes no reference to the prior act of in-
subordination used to distinguish her case.11 More im-
portantly, it ignores the reality of what actually tran-
spired in favor of an unrealistic and artificially narrow
focus on the precise language of the discharge notice.
No one can reasonably dispute that Hydorn engaged in
conduct Respondent deemed “inappropriate” in the
course of his refusal to clear paper drags. Nor can one
reasonably claim that Respondent did not consider the
entire course of Hydorn’s conduct in deciding what dis-
cipline to impose. Taylor testified that he reviewed and
relied upon the written statements prepared by Supervi-
sors Monroig and Leach, spoke with Zemnickas, and
took into account Hydorn’s “attitude,” which was “[g]o
ahead and fire me[,] because I am not going to [clear
paper drags] today and I am not going to do it tomor-
row.”
Finally, contrary to the majority’s view, the fact Re-
spondent more frequently responded to single acts of
insubordination by nonstrikers with warnings or suspen-
sions does not establish disparate treatment of Hydorn.12
Respondent demonstrated that it did terminate similarly
situated nonstriking employees for insubordination, in-
cluding Daramy and Dean. The fact that other employ-
ees received lesser sanctions demonstrates only that in-
subordination may take many forms and that Respondent
did not automatically respond to such misconduct by
terminating the offender. Accordingly, even assuming
arguendo satisfaction of the General Counsel’s Wright
Line burden, I would find that Respondent carried its
rebuttal burden of establishing that it would have dis-
charged Hydorn for gross insubordination even if he had
not joined his coworkers on the picket line.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

11 You cannot have it both ways, focusing narrowly on the language
of discharge notices when favorable to do so, but viewing more expan-
sively the relevant conduct to distinguish other cases.
12 As to the theory, urged by the General Counsel and relied upon by
the judge, that Respondent systematically disciplined strikers more
harshly than replacement workers, the evidence does not support such a
finding. Nor was such an allegation contained in the complaint or
litigated at the hearing. My colleagues recognize as much and distance
themselves from the theory. Nonetheless, that theory appears to under-
pin my colleagues’ view of the case—i.e., that Respondent was simply
looking for an excuse to discharge reinstated strikers.
DETROIT NEWSPAPERS 1279
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 discharge or otherwise discriminate
against employees in order to discourage union activity.
WE WILL not in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Thomas Hydorn full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to any rights or privileges
previously enjoyed.
WE WILL make Thomas Hydorn whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful discharge of Thomas Hydorn and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used
against him in any way.
DETROIT NEWSPAPER AGENCY D/B/A DETROIT
NEWSPAPERS
Linda Rabin Hammel, Esq., for the General Counsel.
Robert M. Vercruysse, Esq. and William E. Altman, Esq. (Ver-
cruysse, Metz & Murray), of Bingham Farms, Michigan, for
the Respondent.
Duane F. Ice, Esq. (Martens, Ice, Geary, Klass, Legghio, Israel
& Gorchow, P.C.), of Southfield, Michigan, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Detroit, Michigan, on March 14 and 15, 2000. The charge
was filed on November 9, 1999, and the complaint was issued
on December 30, 1999. The complaint alleges that Detroit
Newspaper Agency d/b/a Detroit Newspapers (the Respondent)
discharged Thomas Hydorn in violation of Section 8(a)(1) and
(3) of the Act because he participated in a strike against the
employer and engaged in protected activity by questioning
whose responsibility it was to perform a particular work task,
and because of his union membership and support. The Re-
spondent denied the essential allegations of the complaint and
raised a number of affirmative defenses. The General Counsel
and the Respondent filed posthearing briefs. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the parties, I
make the following findings of fact.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a joint operating agreement partnership,
with an office and place of business in Detroit, Michigan. It is
engaged in the publishing and circulation operations of two
newspapers—The Detroit News and The Detroit Free Press.
During calendar year 1998, the Respondent derived gross reve-
nues in excess of $500,000 from these activities, and purchased
and received at its facilities in the State of Michigan goods and
materials valued in excess of $50,000 directly from points out-
side the State of Michigan. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor Relations Act
(the Act).
The Respondent admits, and I find, that Detroit Mailers Un-
ion No. 2040, International Brotherhood of Teamsters, AFL–
CIO (Local 2040 or the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent prints and distributes two newspapers—The
Detroit News and The Detroit Free Press—and sells advertising
in both publications. One of the Respondent’s printing facili-
ties, referred to as the North Plant, is located in Sterling
Heights, Michigan. At the North Plant a group of employees
known as “material handlers”1 use “inserter machines” to place
supplements into the newspaper and comics. Material handlers
man various stations, called “heads,” positioned around each
inserter machine. Each material handler places a particular
supplement into the machine, and then the machine inserts the
supplements into the newspaper or comics. There can be close
to two dozen material handlers assigned to each inserter ma-
chine, depending on the number of supplements in that issue.
An “operator” also works at each inserter machine. The opera-
tor is a nonmanagement employee, but one who has responsi-
bility for directing the work group at the inserter machine and
running the computer that helps the machine function properly.
From time to time supplements misfeed in the machine, and
this problem is, in most instances, referred to as a “paper
drag.”2 When a paper drag occurs a sensor causes the machine
to cease functioning until someone “clears” the paper drag by
removing the misfed paper and, if necessary, resetting the ma-
chine.

1 Apparently, during an earlier period the position now called “mate-
rial handler” was referred to as “mailer.” To avoid confusion I will
refer to the position as “material handler” regardless of what timeframe
is being discussed.
2 There was also some discussion in the testimony of a variant of a
paper drag that was known as a “floater” or “rotor floater.” Since the
difference does not affect the outcome of this case, I will refer to both
types of problems generically as “paper drags.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
Thomas Hydorn began working for the Detroit Newspapers
in 1978. Prior to his discharge on August 27, 1999, Hydorn
had worked for approximately 12 to 15 years on inserter ma-
chines at the Respondent’s North Plant. Most of this time Hy-
dorn was a material handler, although he also served intermit-
tently as an operator during busy periods. In the very early
period of his employment, while he was a part-time employee,
Hydorn received one disciplinary notice for absenteeism.
However, Hydorn subsequently was hired as a full-time em-
ployee and received no other discipline of any kind prior to the
incident that preceded his discharge in August 1999.
Beginning in July of 1995, a number of employees repre-
sented by Local 2040, and five other unions, ceased work and
began a strike against the Respondent. Thomas Hydorn was
among these employees. In February 1997, the striking mem-
bers of Local 2040 abandoned the strike effort and made an
unconditional offer to return to work. The Board subsequently
issued a decision on August 27, 1998, which held that the Re-
spondent was guilty of multiple unfair labor practice violations
against the members of Local 2040 and other unions, that the
strike was caused by the Respondent’s unfair labor practices,
and that the strike was an unfair labor practices strike from its
inception.3 In a separate decision issued the same day, the
Board found that the Respondent had committed an unfair labor
practice by failing to immediately reinstate the striking workers
when they made an unconditional offer to return to work. The
Board’s Order called for the immediate reinstatement of the
strikers.4 Hydorn was reinstated approximately 1 year later,
over 2 years after the Union’s unconditional offer to return to
work. When Hydorn returned, the Respondent assigned him to
a position as a material handler on the night shift at the North
Plant, where Hydorn had worked before the strike in the same
capacity on the day shift. At the time Hydorn was rehired, the
Respondent placed a form in Hydorn’s personnel file that iden-
tified him as a “Union Returnee.”
Prior to resuming his duties, Hydorn attended a brief orienta-
tion given by Karen Zemnickas, post-press director. Zem-
nickas is the management official at the North Plant in charge
of the work, and discipline, of Local 2040 members. She also
oversees the fourteen supervisors who direct the work of Local
2040 members. In the orientation, Zemnickas discussed the job
duties of the material handler position and distributed written
materials. Zemnickas told Hydorn that he should do the job as
he had done it before, except that he might now be called upon
to work at more than one station. Although the Respondent had
changed its policy regarding who was to clear paper drags at
the inserter machine, Zemnickas did not tell Hydorn about this
change, nor did the written materials mention it. Before the
strike, the inserter machine operator had responsibility for
clearing paper drags, and material handlers were forbidden
from doing so. When Hydorn returned to work, the new rule,

3 Detroit Newspapers, 326 NLRB 700, 707 (1998).
4 Detroit Newspapers, 326 NLRB 782, 785 (1998). The Board has
also found the Union guilty of unfair labor practice violations for cer-
tain strike-related activities. Teamsters Local 372 (Detroit Newspa-
pers), 324 NLRB 364 (1997).
of which he was not apprised, was that the material handler was
to clear a paper drag if he or she was nearest to it.
Almost as soon as Hydorn was reinstated, tensions devel-
oped between him and Louis Monroig, a supervisor hired dur-
ing the strike. On his second day back, Monroig observed Hy-
dorn smoking during a period when the inserter machine was
idle, and Monroig informed Hydorn that this was not permitted
on company time. As part of the ensuing exchange, or shortly
thereafter, Monroig said “we can do this the easy way or we
can do this the hard way, but you’re going to do it my way.”
(Tr. 110 and 150.) After making this statement, Monroig of-
fered to shake Hydorn’s hand, but Hydorn refused.
The episode that immediately preceded Hydorn’s suspension
and discharge also involved Monroig and transpired a week
later during the night shift that began on August 24, and ended
on August 25.5 Hydorn and John Dutka, another material han-
dler, were assigned to workstations adjacent to one another on
an inserter machine at the North Plant. William Mihalik, who
was hired after the strike began, was the “operator” of the ma-
chine. At about 1 a.m. in the morning, a paper drag occurred
near the stations where Hydorn and Dutka were assigned, but
closest to Dutka’s position. Mihalik called out “paper drag”
and said that somebody should get it. He did not refer to any
employee by name or direct an individual employee to address
the problem; however, Hydorn understood the statement to be
directed at both himself and Dutka. As a practical matter, Hy-
dorn could not have cleared the pending paper drag without
maneuvering around Dutka, given their respective positions and
the configuration of the machine. Dutka left his workstation
and cleared the paper drag. After Dutka cleared the paper drag,
Hydorn told Dutka that it was not their responsibility as mate-
rial handlers to fix paper drags. Hydorn pointed at Mihalik and
said that it was the operator’s “fucking job” and that was why
he got paid the “big fucking dollars.”6 Hydorn made these
statements to Dutka loudly enough for Mihalik to hear, and
Mihalik called for Casey Leach, an individual hired after the
start of the strike who had recently been made a supervisor.
Leach arrived and told Hydorn that it was Hydorn’s job to
clear paper drags, but did not directly order Hydorn to clear a
specific drag. Indeed, there was no paper drag pending at the
time. Hydorn, still believing that material handlers were for-
bidden from doing this task, responded that he would not clear
paper drags, even if it meant that he would be suspended or
fired. Leach called for Monroig, who was generally a supervi-
sor, but who was on this shift acting in the capacity of post-

5 There was some confusion in both the testimony and the documen-
tation as to whether the events occurred on the shift that began on Au-
gust 24, and ended on August 25, or during the shift that began on
August 25, and ended on August 26. I conclude that the episode took
place during the August 24 to 25 shift. The confusion regarding the
date appears to have been initiated by the letter from Mike Martin,
post-press supervisor, which stated that Hydorn was discharged based
on his actions on August 26. (GC Exh. 3.) At the hearing, Martin
testified that his letter stated the wrong date, and that the relevant
events took place during the shift that ended on August 25. This was
corroborated by other witnesses and also by one contemporaneous
written report. See GC Exh. 5.
6 Operators are paid more than material handlers are.
DETROIT NEWSPAPERS 1281
press manager—a higher position in the supervisory hierarchy.
When Monroig arrived at the machine there was no paper drag
pending. Monroig discussed the situation with Mihalik and
Leach, and then approached Hydorn. Monroig asked Hydorn if
he understood that Leach had given him a direct order to clear
paper drags, and Hydorn again stated that he would not remove
paper drags because doing so was the job of the operator, not of
the material handlers. Monroig told Hydorn to come to the
post-press supervisor’s office, at which point Hydorn requested
union representation.
Shortly thereafter, Monroig and Leach met with Hydorn and
Harold Sorenson, a union representative who had been called
by Leach, in the post-press supervisor’s office. At that meet-
ing, Sorenson confirmed to Hydorn that it was, in fact, his re-
sponsibility to clear paper drags. Although Hydorn had now
been told by a supervisor, a manager, and a union official that
material handlers were required to remedy paper drags, he con-
tinued to insist that it was the job of operators, and told Leach
and Monroig that he would not clear paper drags. Monroig
suspended Hydorn and directed him to turn in his identification
card. Hydorn at first resisted surrendering the card, then gave it
to Sorenson and left, escorted by a security guard.
Karen Zemnickas, post-press director, was informed about
the incident involving Hydorn in the early morning hours of
August 25, while at a company golf outing. She arranged a
meeting with two of the Respondent’s other management offi-
cials who were also at the outing. One was Mike Martin, a
post-press manager at the North Plant, and the other was John
Taylor who was the Respondent’s senior legal counsel and
director of labor relations. Taylor provides advice to supervi-
sors and managers regarding the discipline of workers in a
number of bargaining units at the North Plant, including local
2040, in which Hydorn worked. Zemnickas generally consults
Taylor when discharge is being considered as discipline. Tay-
lor’s advice was that Zemnickas have the supervisors involved
prepare written accounts of the incident, and that they review
the situation upon their return to work from the golf outing.
Subsequently, Zemnickas interviewed Monroig and Leach
regarding the incident with Hydorn. She then discussed the
matter with Taylor, who had reviewed the written accounts of
the incident prepared by Monroig and Leach. Neither Zem-
nickas nor Taylor discussed the matter with Hydorn, Sorenson,
or Dutka. Taylor recommended to Zemnickas that Hydorn be
discharged. Taylor testified regarding the basis for his recom-
mendation as follows:

The information that I was provided, and that I looked at, in-
dicated that Mr. Hydorn had been asked by management, su-
pervision, to perform a particular task, which was to clear the
paper drag, and that he had refused. That the Union steward
had also asked him to do it, and that he refused. And that his
attitude was also a factor. His attitude was not only did he re-
fuse, but on top of that he said, “Go ahead and fire me. Be-
cause I am not going to do it today and I am not going to do it
tomorrow.”

(Tr. 514.) Zemnickas decided to discharge Hydorn. On August
27, only 2 days after the incident occurred, and 11 days after
Hydorn returned to work following the strike, the Respondent
issued a letter, under Mike Martin’s signature, which informed
Hydorn that he was discharged because of his “refusal to follow
the instructions and the direct order given by your supervisor.”
(GC Exh. 3.)
On August 24, three days prior to the issuance of the letter
discharging Hydorn, Taylor presented a “Labor/Legal Issues
Workshop,” at the North Plant in response to a request from
Zemnickas. The outline of that talk includes a section on the
“Elements of Effective Discipline.” This outline states that a
“cardinal principle” of an investigation of misconduct is to
“[i]nvestigate thoroughly before assuming guilt” and to “[g]ive
[the] employee an opportunity to respond.” The outline states
that among the factors to consider in determining proper correc-
tive action are the employee’s “[l]ength of service” and [p]rior
work and conduct record.” The outline listed “[p]rogressive
disciplinary action” as one of the “Elements of Effective Cor-
rective Discipline.” (R. Exh. 8. )
Although Taylor had given this presentation only days be-
fore, much of the advice was not heeded in the decision-making
process regarding Hydorn, even by Taylor himself. Martin,
Zemnickas, and Taylor did not talk to Hydorn at all about the
incident prior to issuing the letter, dated August 27, converting
his suspension to a discharge. In fact, it does not appear that
these officials provided Hydorn with any opportunity to re-
spond to the allegations against him prior to issuance of the
discharge letter on August 27. Nor did Martin, Zemnickas, or
Taylor interview or obtain statements from Mihalik, Dutka, or
any nonmanagement witness to the incident, or for that matter
from Sorenson, who was present at the initial meeting when
Hydorn was suspended. In his testimony explaining the con-
siderations that led him to recommend that Hydorn be termi-
nated, see supra, Taylor made no mention of Hydorn’s ap-
proximately 15 years of service with the Respondent or of Hy-
dorn’s virtually unblemished prior work and conduct record,
although his seminar outline specifically stated that these were
factors to be considered. Nor did Zemnickas or Martin state
that Hydorn’s length of service or work record were factors in
the decision. Progressive discipline was not applied inasmuch
as Hydorn was discharged for his first offense.
On September 1, 1999, Alex Young, president of the Union,
filed a formal grievance regarding Hydorn’s discharge. A joint
standing committee meeting regarding the grievance was held
on October 8, 1999, which was attended by Taylor, Zemnickas,
Young, and Hydorn. At the meeting, Young argued that the
discipline was excessive because Hydorn had never received a
direct order to remedy a pending paper drag. Rather he had
received a “hypothetical” order to remedy paper drags in the
future. Moreover, as noted above, Dutka, not Hydorn, was
nearest to the drag and therefore was the one who would have
been compelled to act under the general rule that paper drags
were to be cleared by the closest material handler. Young con-
ceded that Hydorn had behaved poorly, but took the position
that the supervisors had also done so. He argued that a lack of
communication between Hydorn and the supervisors had un-
necessarily escalated to the point that Hydorn was discharged.
At the same meeting, Young argued that the discipline was
excessive because lesser discipline for similar offenses had
been meted out to workers hired as strike replacements. Young
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
presented Zemnickas and Taylor with documentation regarding
the discipline that Zemnickas had given Marcia Murphy, an-
other worker supervised by Monroig, but one who had been
hired as a replacement after the strike began. In his written
summary of the events that led to Murphy’s suspension, Mon-
roig stated the following:

I . . . heard Marcia Murphy yelling and swearing. I asked her
what was the matter and she said that she told Gloria that she
didn’t want to work up here and the bitch has her favorites
and took care of them. . . . [A]s I walked away I heard her
say, “he better walk away or I will kick his ass because I’m
not one of his bitches.” . . . I walked over to her and said
enough already you vented for 15 minutes; now stop, she said
bullshit. I then told her it’s a long day so give me a break and
she said fuck that we still have nine hours of this. I then told
her if she didn’t stop yelling and using profanity I will send
her home, she then said I don’t give a fuck and you can send
me home because I don’t need this shit. I then knocked her
off and told her to call in before reported to work again. This
is a clear case of insubordination and I will not stand for that
type of abuse from anyone.

(GC Exh. 14) Murphy, who had a far shorter period of service
than Hydorn, and was also supervised to some extent by Mon-
roig, received a 1-week suspension for her insubordinate behav-
ior.
At the standing committee meeting on October 8, regarding
the grievance, Hydorn stated that he was guilty of a “bad atti-
tude” and he apologized for his behavior. (Tr. 282.) Appar-
ently neither Young’s arguments, nor Hydorn’s apology were
persuasive to Zemnickas and Taylor. In a letter dated October
21, Taylor informed Young that the grievance was denied be-
cause of Hydorn’s refusal to follow the instructions of his su-
pervisor. The unfair labor practice charge giving rise to the
instant complaint was subsequently filed on November 9. The
Regional Director issued the complaint in this case on Decem-
ber 30, 1999.
B. Credibility
I credited the testimony of Mihalik, Leach, and Monroig re-
garding some of what occurred at the North Plant on August
25. I did not, however, credit their testimony that Hydorn, not
Dutka, was closest to the paper drag. See American Pine Lodge
Nursing, 325 NLRB 98 (1997) (A trier of fact is not required to
accept the entirety of a witness’ testimony, but may believe
some and not all of what a witness says); see also Excel Con-
tainer, Inc., 325 NLRB 17 (1997) (nothing is more common in
all kinds of judicial decisions than to believe some and not all,
of a witness’ testimony). Both Hydorn and Dutka testified that
it was Dutka who was closest to the paper drag, and that Hy-
dorn could not have reached it without maneuvering around
Dutka. I found Dutka’s testimony on this point particularly
credible. He testified in a direct and clear manner, and ex-
pressed complete certainty regarding his and Hydorn’s relative
positions with respect to the paper drag. Dutka has nothing
personally at stake in this proceeding, is not a personal friend of
Hydorn’s, and has only worked with Hydorn to a limited extent
in the past. Dutka readily admitted that there were aspects of
the incident at the inserter machine about which he had no
knowledge, and he seemed disinclined to embellish his testi-
mony to suit either side in this dispute. My credibility findings
with respect to Dutka are made independently of Dutka’s status
as a current employee of the Respondent at the time of his tes-
timony. I nevertheless note that these findings are consistent
with the Board’s view that the testimony of a current employee
that is adverse to his employer is “given at considerable risk of
economic reprisal, including loss of employment . . . and for
this reason not likely to be false.” Shop-Rite Supermarket, 231
NLRB 500, 505 fn. 22 (1977); see also Flexsteel Industries,
316 NLRB 745 (1995), enfd. 83 F.3d 419 (5th Cir. 1996).
Hydorn’s own testimony was contradictory and vague re-
garding many aspects of the incident, a result, I believe, largely
of his self-confessed agitation at the time those incidents took
place. As a result, I have not credited a good deal of his ac-
count. I did, however, credit Hydorn’s testimony regarding his
position relative to the paper drag. Unlike much of his other
testimony, his memory was clear about this aspect of the inci-
dent, and his demeanor was straightforward when testifying
about it. I also note that Hydorn specifically testified that, at
the grievance meeting on October 8, Zemnickas acknowledged
that it was Dutka’s responsibility to get the paper drag at issue
since Dutka was the one closest to it. (Tr. 109.) Zemnickas
testified, but did not contradict Hydorn’s testimony regarding
this. (Tr. 491.)
While both Monroig and Leach prepared written accounts of
the incident shortly after it occurred, neither one of those ac-
counts states that Hydorn was nearest to the paper drag, al-
though this would have been a significant point given the rule
that the person closest to the paper drag was responsible for
clearing it. In fact, in his written statement Leach indicates that
he was called to the inserter machine because Hydorn was tell-
ing Dutka that it was not their job as material handlers to clear
paper drags. If Hydorn had been closest to the paper drag, I
would expect that his own failure to clear the paper drag, not
his statements to Dutka, would have been the problem that
necessitated supervisory intervention.
Mihalik did not prepare a statement, but I found him a less
credible witness than Dutka on the question of the respective
positions of Hydorn and Dutka. Mihalik testified that after
giving the general command to clear the paper drag, he directly
told the material handler at the “V head,” who he had earlier
identified as John [Dutka], to clear the paper drag. (Tr. 390–
391.) This would suggest that Dutka was closest to the paper
drag, since the rule was that the material handler closest to the
drag was responsible for clearing it. Looking at the testimony in
context, it is possible that Mihalik intended to testify that he
told Hydorn, not Dutka, to clear the paper drag. However, the
discrepancy suggests confusion, or lapse of memory, on Mi-
halik’s part regarding the respective positions of Dutka and
Hydorn. By contrast, Dutka was very clear that he, not Hydorn,
was the one closest to the paper drag, and that he cleared the
paper drag without either Hydorn or himself being given a di-
rect order to do so. In addition, unlike Dutka, Mihalik has
something at stake in this case. It was Mihalik who first called
a supervisor about Hydorn after Hydorn had referred to Mihalik
in an insulting and profane manner. Moreover, Mihalik knew
DETROIT NEWSPAPERS 1283
that Hydorn was a returning striker and he testified that he had
received literature from the Respondent stating that the return-
ing strikers wanted to take away the jobs of the replacement
workers. (Tr. 397, 402.) Thus, I believe that Mihalik’s testi-
mony was tainted to a degree by bias as well as being under-
mined by discrepancies showing confusion or lapse of memory.
I did not credit Leach’s claim that he gave Hydorn a direct
order to clear an existing paper drag. Leach’s own testimony
was inconsistent regarding this point. First he testified that he
had told Hydorn that it was Hydorn’s job to clear paper drags,
but that he had never directly ordered Hydorn to clear a pend-
ing paper drag. (Tr. 420–421.) Later Leach testified that he
had directly ordered Hydorn to clear the paper drag, or at least
that he had told Zemnickas this. (Tr. 430.) I do not credit the
latter statement, which was conclusory and contradicted by his
more precise testimony giving the specifics of the incident, and
was also undercut by his written statement, which makes no
mention of giving Hydorn a direct order regarding an existing
paper drag. (See GC Exh. 5.) I also do not credit Leach’s tes-
timony that a paper drag occurred after he arrived at the inserter
machine to talk to Hydorn. In his written statement, Leach did
not mention that a paper drag occurred while he was at the
inserter machine with Hydorn. Moreover, Dutka specifically
denied that a paper drag occurred during this timeframe, and for
the reasons discussed above I found Dutka a very credible wit-
ness.
I agree with the arguments in the Respondent’s brief that
Sorenson was very lacking in credibility based on his evasive
demeanor and the contradictions in his testimony. I have gen-
erally not credited Sorenson’s testimony except where it was
uncontroverted or was corroborated by other evidence.
Zemnickas was not a credible witness. For example, she
first testified that the company did not in any way identify
which workers were returning strikers. (Tr. 492.) However, a
document was subsequently introduced from Hydorn’s person-
nel file that explicitly identified him as a “Union Returnee.”
(GC Exh. 19.) This document was initialed by Zemnickas her-
self at the time Hydorn was rehired. (Tr. 503.) When con-
fronted with the document, Zemnickas changed her earlier posi-
tion, and claimed that the company identified returning strikers
in order to ensure that the strikers’ benefits would resume. (Tr.
503–504.) Zemnickas also testified that as part of her investi-
gation prior to discharging Hydorn in August of 1997, she
spoke to Monroig, Leach, and Mihalik. (Tr. 487.) However,
Mihalik, one of the Respondent’s own witnesses, said that this
was not true, and that no one from the company had discussed
the incident with him or asked him to put his recollection in
writing until a week before the hearing in March of 2000. (Tr.
401–402.) John Taylor stated that he did not have any state-
ment from Mihalik before recommending Hydorn’s discharge.
(Tr. 528.) Zemnickas’ untruthfulness, or lapse of memory,
regarding these important factual matters cast a cloud of doubt
over the entirety of her testimony.
C. The Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) and Section 8(a)(3) of the Act by discharging Hydorn
on August 27, 1999, because he participated in the strike, en-
gaged in concerted protected activity by questioning whose job
it was to clear paper drags, and was a member of the union.
The complaint further alleges that by taking this action the
Respondent interfered with, restrained, and coerced employees
in the exercise of their rights under Section 7 of the Act.
III. ANALYSIS7
A. Were the Respondent’s Actions Motivated by Antiunion
Considerations?
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983), the Board set forth the standards for determining
whether an employer has discriminated against an employee on
the basis of union or protected activity. Under the Wright Line
standards, the General Counsel bears the initial burden of
showing that the Respondent’s actions were motivated, at least
in part, by antiunion considerations. The General Counsel
meets this burden by showing that: (1) the employee engaged
in union or other protected activity, (2) the employer knew of
such activities, and (3) the employer harbored animosity to-
wards the Union or union activity. Senior Citizens Coordinat-
ing Council of Riverbay Community, 330 NLRB 1100, 1105
(2000); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If
the General Counsel establishes discriminatory motive, the
burden shifts to the employer to demonstrate that it would have
taken the same action absent the protected conduct. Senior
Citizens, supra at 1105.
It is undisputed in this case that Hydorn is a member of the
Union and had engaged in protected activity by participating in
a strike against the Respondent. In addition, I have no doubt
that the Respondent was aware of Hydorn’s involvement with
the Union and the strike. The Respondent explicitly identified
Hydorn as a “Union Returnee” on a form placed in his person-
nel file at the time of his reinstatement. Zemnickas, the man-
agement official who made the decision to discharge Hydorn,
herself initialed the personnel form identifying Hydorn as a
“Union Returnee.” (GC Exh. 19.) Thus the Respondent was
aware of Hydorn’s union membership and strike activity.
The record also provides ample evidence that the Respon-
dent harbored anti-union animus. In the wake of the strike
against the Respondent, the Board issued multiple decisions
finding the Respondent guilty of unfair labor practices against
Local 2040 and other unions. See, supra, fn. 3 and 4; see also

7 The General Counsel in this case served a subpoena duces tecum
on the Respondent and, after the hearing began, the Respondent pro-
duced records in response to this subpoena. The Respondent asserts
that this subpoena was improper and that the complaint should there-
fore be dismissed. R. Br. at 7–8. The Respondent claims that the Gen-
eral Counsel violated “its own rules” against discovery by serving the
subpoena and then reviewing the subpoenaed documents during the
hearing. Contrary to the Respondent’s contention, the subpoena proce-
dure did not violate the Board’s rules, but is specifically provided for
under the Board’s rules and regulations Sec. 102.31. Indeed, the Re-
spondent availed itself of this very procedure to request documents
from the Union. The Respondent’s assertion that the General Coun-
sel’s subpoena was in violation of Board rules, and that the complaint
must be dismissed on that basis, lacks merit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
Detroit Newspapers Agency, 330 NLRB 505 (2000). The
Board found that the Respondent had exhibited bad faith in its
bargaining with the Union by: repeatedly obfuscating and with-
holding details about its proposal so that the employees’ bar-
gaining representative could not formulate a response; provid-
ing more information on its proposal to unit employees than it
provided to their bargaining representative; proposing bargain-
ing on dates when it knew the employees’ representative was
unavailable and then falsely informing employees that the rep-
resentative had refused to attend a bargaining session; misrep-
resenting the representative’s position to unit employees; and
unilaterally implementing a proposal that was inherently de-
structive of the statutory collective-bargaining process. 326
NLRB 700, 706 (1998). In another case against the Respon-
dent, the Board held that the Respondent had unlawfully re-
fused to immediately reinstate the former strikers upon their
unconditional offer to return to work. 326 NLRB 782 (1998).
The Board’s Order called for the immediate reinstatement of
the striking members of Local 2040, but the Respondent did not
reinstate Hydorn until August 16, 1999, almost a year later. It
is proper to rely on the findings and evidence in recent cases
against the Respondent as background in this case. Stark Elec-
tric, 327 NLRB 518 fn. 2 (1999); Tama Meat Packing v. NLRB,
575 F.2d 661 (8th Cir. 1978), enfg. as modified 230 NLRB 116
(1977), cert. denied 439 U.S. 1069 (1979). The background of
the claimant’s bad-faith bargaining behavior and its unlawful
failure to immediately reinstate the returning strikers supports
the conclusion that the Respondent harbored antiunion animus.8

8 The Respondent argues that under a Board decision from 1977 “a
finding of violations of 8(a)(5) ‘is essentially a dispute resolved under
contract law without necessary implication of animus.’” (R. Br. 10.)
(Ray’s Liquor Store, 227 NLRB 1800 (1977)). The prior case at issue
there centered on the question of whether, as a matter of contract law,
an offer by the employer had expired prior to the union’s acceptance of
it. The Board affirmed the administrative law judge’s conclusion that
the employer’s offer had not expired, that an agreement had therefore
been reached between the employer and the union, and that the em-
ployer had violated 8(a)(5) when it refused to honor that agreement.
Ray’s Liquor Store, 224 NLRB 26 (1976). I agree that the 8(a)(5)
violation in that case involved a “dispute resolved under contract law”
and that, without more, it would not carry “a necessary implication” of
antiunion animus. However, the 8(a)(5) violations found against the
Respondent are of a different variety altogether. The Respondent’s
8(a)(5) violations, discussed above involved, inter alia, providing mis-
information about the bargaining representative to members of the
bargaining unit, and attempting to go around the bargaining representa-
tive by giving the members of the unit more information about its pro-
posal than it gave to the bargaining representative. This was not a
dispute over contract law, but rather over the Respondent’s effort to use
misinformation and other tactics to undermine the Union and the bar-
gaining process. The Board has not hesitated, in appropriate cases, to
conclude that prior 8(a)(5) violations involving bad-faith bargaining are
evidence of antiunion animus. In CJC Holdings, 320 NLRB 1041
(1996), the administrative law judge found that the employer’s use of
“bad-faith tactics during . . . negotiations,” “demonstrate[d] an anti-
union animus.” The Judge’s rulings, findings, and conclusions were
affirmed by the Board. Similarly, in Union-Tribune Publishing Co.,
307 NLRB 25 (1992), the Board considered an 8(a)(5) violation involv-
ing bad-faith bargaining to be a factor supporting an inference of anti-
union animus. Under the facts present in this case, I conclude that the
Timing is an important factor in assessing motivation in
cases alleging discriminatory discipline based on union or pro-
tected activity, see, e.g., Detroit Paneling Systems, Inc., 330
NLRB 1170 (2000); Bethlehem Temple Learning Center, 330
NLRB 1177(2000); American Wire Products, 313 NLRB 989,
994 (1994), and the timing of Hydorn’s discharge in this case
provides further evidence of discriminatory motive. The Re-
spondent issued the letter discharging Hydorn only 11 days
after Hydorn returned from work following the strike. As dis-
cussed above, the Respondent had previously unlawfully re-
fused to immediately reinstate Hydorn, and finally reinstated
him almost a year after the Board’s Order calling for the imme-
diate reinstatement. The fact that the Respondent discharged
Hydorn for alleged insubordination only days after the belated
reinstatement is very suspicious, particularly given that Hydorn
had never been disciplined for insubordination in his 15 years
of employment with the Respondent prior to the strike.
An employer’s failure to conduct a meaningful investigation
of alleged wrongdoing by an employee and failure to give the
employee an opportunity to explain are indicia of discrimina-
tory intent. New Orleans Cold Storage & Warehouse Co., 326
NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir. 2000).
Such indicia are present here. Neither Taylor, who recom-
mended Hydorn’s discharge, nor Zemnickas, who made the
discharge decision, gave Hydorn any opportunity to address the
allegations against him prior when the Respondent issued the
discharge letter on August 27. Indeed, when Hydorn was able
to address the allegations him at a grievance meeting on Octo-
ber 8, he conceded that he had been guilty of a “bad attitude,”
and apologized for his behavior. Moreover, neither Taylor nor
Zemnickas claim to have interviewed or obtained statements
from Dutka or any of the other material handlers who witnessed
the episode. This failure is particularly suspicious given that
only a few days earlier Taylor had, at Zemnickas’ request, out-
lined the elements of effective discipline, and had included
among those elements: giving the employee an opportunity to
respond; investigating thoroughly before assuming guilt; and
considering the employee’s length of service and prior conduct
record. In this case, Zemnickas, in consultation with Taylor,
decided to discharge Hydorn—an employee with 15 years of
service and no prior discipline for insubordination—without
even giving him an opportunity to explain his actions and with-
out interviewing anyone other than the supervisors who alleged
the insubordination. An employer’s departure from established
procedures for discharge is evidence of unlawful motive. Ed-
dyleon Chocolate Co., 301 NLRB 887, 889 (1991); Richmond
Refining Co. 212 NLRB 16, 19 (1974); see also D.H. Baldwin
Co., 207 NLRB 25, 27 (1973), enfd. 505 F.2d 736 (8th Cir.
1974) (deviation from established practice of reassigning,
rather than discharging, poorly performing employees, an indi-
cia of discriminatory motive). While the disciplinary guide-
lines outlined by Taylor are something short of “established
procedures,” they were guidance from the Respondent’s direc-
tor of labor relations. I would expect Taylor to follow his own
advice, absent a satisfactory explanation for deviating from it.

Respondent’s prior 8(a)(5) violations are a factor supporting an infer-
ence of antiunion animus.
DETROIT NEWSPAPERS 1285
Similarly, it is fair to expect that Zemnickas would follow the
guidelines that she herself had asked Taylor to provide. That
the Respondent so blatantly bypassed the most basic elements
of the guidance when it investigated and disciplined Hydorn
supports the view that the Respondent wished to be rid Hydorn
for reasons other than his misconduct alone.
The conclusion that the discharge was motivated by anti-
union animus is also buttressed by the fact that the Respondent
explicitly identified Hydorn as a returning union member at the
time of his reinstatement. As discussed above, Zemnickas at
first testified that the Respondent did not keep records of which
employees were returning strikers. It was only after she was
confronted with a document containing the “Union Returnee”
notation that she admitted that the Respondent maintained such
information in its records and claimed that doing so was neces-
sary to ensure the proper resumption of employee benefits. In
these circumstances I find that the notation confirms that the
Respondent was singling out Hydorn for discriminatory rea-
sons. This is especially true in light of the evidence, discussed
below, that nonstrikers were treated less harshly than Hydorn
for similar conduct.
I conclude that the General Counsel has easily cleared the
hurdle of establishing that this Respondent harbored antiunion
animus. The General Counsel has established that Hydorn
engaged in union and protected activity, that the Respondent
was aware of this, and that the Respondent had antiunion bias.
Under the Wright Line standards, the General Counsel has met
its initial burden of showing antiunion animus was a factor in
Hydorn’s discharge.
B. Would the Respondent Have Discharged Hydorn Absent
Anti-Union Considerations?
Since the General Counsel has met its initial burden of show-
ing that the Respondent’s actions were motivated, at least in
part, by antiunion considerations, the burden shifts to the Re-
spondent under Wright Line, supra, to show that it would have
taken the same actions even in the absence of Hydorn’s union
and protected activities. See Senior Citizens, 330 NLRB 1100,
1105 (2000); NLRB v. General Sec. Services Corp., 162 F.3d
437, 445 (6th Cir. 1998).
The Respondent contends that its actions were taken because
of Hydorn’s insubordinate conduct on August 25. The record
leaves no doubt that Hydorn did behave improperly. I agree he
was insubordinate and conclude that his misconduct played a
role in the Respondent’s decision to discipline him. Although I
find that Hydorn never defied a direct order to remedy a pend-
ing paper drag,9 he was insubordinate when he told Leach and
Monroig that he would not clear paper drags in the future de-
spite their instructions. However, under Wright Line, once the
General Counsel has shown that antiunion animus played a part
in the decision to discharge an employee, the Respondent can-
not meet its burden merely by showing that employee miscon-

9 Mihalik simultaneously directed Dutka and Hydorn to clear a paper
drag, a task that requires only one person. Dutka cleared the paper
drag. The fact that Hydorn failed to clear the paper drag before Dutka
did, does not constitute defiance of a direct order. For the reasons
discussed above, I do not credit Leach’s claims that he gave Hydorn a
direct order to clear an existing paper drag.
duct also factored into the Respondent’s decision. Rather, the
Respondent must show that the misconduct would have re-
sulted in the same discipline even in the absence of the em-
ployee’s union and protected activities. Monroe Mfg., 323
NLRB 24, 27 (1997). As discussed below, the evidence in this
case shows that the Respondent had a relatively lax attitude
towards insubordination by nonstrikers, even those who defied
multiple direct orders or had been insubordinate on prior occa-
sions. This leads me to conclude that the Respondent has not
shown that it would have discharged Hydorn for his insubordi-
nation if not for Hydorn’s union and protected activity. Id. at
26–27 (employer violated Sec. 8(a)(1) when it discharged em-
ployee who engaged in protected activity based on a rule that
was not strictly enforced against other employees).
At the hearing, the General Counsel and the Respondent
each introduced evidence regarding the discipline that the com-
pany had meted out to other employees.10 The General Counsel
introduced an exhibit containing records showing that 37 non-
strikers who were disciplined for insubordination between Feb-
ruary of 1997 and November of 1999, had received lesser pun-
ishment than Hydorn. (GC Exh. 14.) The punishments meted
out to these nonstriker employees ranged from a verbal warning
to a 15-day suspension. In 20 of the 37 instances put forward
by the General Counsel, the nonstriker employee received only
a reprimand or warning for insubordination.
Among the nonstrikers within the Local 2040 bargaining unit
who received lesser discipline than Hydorn were a number

10 Both the General Counsel and the Respondent introduced evi-
dence of discipline involving employees not only in the Local 2040
bargaining unit, but also in the Local 372 bargaining unit at the North
Plant. Nevertheless, the Respondent contended strenuously at the hear-
ing and in its post-hearing brief, R. Br. at 25–26, that there was not a
sufficient nexus to make discipline of employees of Local 372 relevant
to the question of whether Hydorn, who was a Local 2040 employee,
was discriminated against. I conclude that the evidence of discipline
received by employees of Local 372 is relevant to an evaluation of
whether Hydorn was disciplined more harshly because of his union
activities. The Respondent’s own witness, John Taylor, testified that,
as director of labor relations, he was involved with disciplinary actions
and grievance meetings regarding members of both Local 2040 and
Local 372. The documentary evidence shows that Taylor received
copies of discipline letters involving employees in both the Local 2040
and the Local 372 bargaining units. In the instant case, it was Taylor
who recommended that Hydorn be discharged in August of 1999, and
then signed the letter stating that the grievance regarding that discipline
had been denied. Taylor’s involvement demonstrates a nexus between
the discipline of Local 372 employees and the discipline received by
Hydorn.
In addition, the Board has recently found the Respondent guilty of
unfair labor practices affecting employees within multiple bargaining
units, including Local 2040 and Local 372. See Detroit Newspapers,
330 NLRB 505 (2000); Detroit Newspapers, 326 NLRB 782 (1998);
Detroit Newspapers, 326 NLRB 700 (1998). The Respondent’s recent
history of a pattern of unlawful antiunion practices involving multiple
bargaining units, as well as the involvement of Taylor, makes the disci-
pline received by workers in Local 372 relevant to the question of
whether Hydorn was disciplined more harshly because of his union
activities. I did, however, consider the arguments made by the Respon-
dent in determining how much weight to accord to the evidence, and
gave relatively greater weight to records regarding discipline that in-
volved employees in the Local 2040 bargaining unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
whose misconduct was similar to Hydorn’s. Gwendolyn
Hayes, a nonstriker who was within the Local 2040 bargaining
unit, received a 3-day suspension for insubordination in April
of 1998. The documentary evidence shows that Hayes refused
instructions from a supervisor to feed a hopper by hand, and
then refused the same instruction again when it was given by a
superintendent. She was told to go home after her repeated
refusal to perform the task as instructed. Tamika West, a non-
striker who was part of the Local 2040 bargaining unit, was
disciplined in February of 1998 and again in May of 1998 for
refusing to follow the directions of supervisors. In the second
instance she is reported to have disobeyed a direct order. De-
spite the fact that she disobeyed a direct order on that occasion,
and that it was her second act of insubordination in less that 6
months, West received only a written warning as punishment.
The Respondent suspended Tonya Stewart, another nonstriker
who was within the Local 2040 bargaining unit, for insubordi-
nation in May of 1999. Stewart was instructed several times to
help out at another workstation, but she refused to do so, and
then ignored the supervisor when he tried to talk to her about it.
When the supervisor suspended her, Stewart defied him by
returning to her workstation and refusing to surrender her iden-
tification card. For this conduct Stewart received a 3-day sus-
pension. Marcia Murphy, a nonstriker within the Local 2040
bargaining unit, received a 1-week suspension for insubordina-
tion in November of 1997. According to Monroig’s account of
her misconduct, Murphy had stated that she would “kick his
ass” and that she was not “one of his bitches.” Monroig di-
rected Murphy to stop “venting,” to which she replied “bull-
shit” and, later, “fuck that.” Monroig told Murphy that if she
did not stop yelling and using profanity he would send her
home to which he reports she replied “I don’t give a fuck and
you can send me home because I don’t need this shit.” (GC
Exh. 14.)
None of the Respondent’s witnesses discussed the discipline
that had been given to these employees, compared Hydorn’s
misconduct to theirs, or specifically explained why Hydorn had
been discharged when these employees received only warnings,
reprimands, or suspensions. The Respondent did, however,
introduce evidence showing that it had discharged six nonstrik-
ers. In all but a single case, the evidence available indicates
that these discharges were based on significantly more than an
isolated episode of insubordination. One of the nonstrikers,
Robert MacDonald, a Local 372 bargaining unit employee, was
discharged not only for insubordination, but also because of his
“overall disciplinary record,” and because he had made false
allegations involving racism against a manager. Jacqueline
Ridley, a nonstriker and Local 372 bargaining unit employee,
was discharged in part for insubordinate behavior, but also
because of her overall disciplinary record and because she had
been involved in three avoidable accidents. A third nonstriker,
Hillard Smith, who was within the Local 2040 bargaining unit,
was discharged for insubordination, but his misconduct in-
volved not only failing to follow instructions, but also threaten-
ing a supervisor. The Respondent also introduced documents
stating that Sylvia Dean, a nonstriker who was in the Local
2040 bargaining unit, had been discharged for refusal to follow
instructions on June 17, 1998. However, these records also
state that this was not Dean’s first offense and that she had been
previously disciplined for insubordinate conduct on March 15,
1997.11 Sandra Shelton was discharged in May of 1998 for her
overall disciplinary record and performance. She was dis-
charged only after three instances of misconduct. Prior to the
episode that led to her discharge, she had behaved insubordi-
nately towards Monroig in November of 1997 and had failed to
perform duties in December of 1997.
The last of the discharged employees forwarded by the Re-
spondent is Usman Daramy, an employee in the Local 372
bargaining unit, who was discharged for failure to follow a
direct order and “inappropriate behavior.” I begin by noting
that while I have not accepted the Respondent’s own contention
that the discipline of Local 372 members is completely irrele-
vant in this case, I do find that such evidence is entitled to less
weight than evidence regarding employees who, like Hayes,
West, Stewart, and Murphy, were within the same bargaining
unit as Hydorn. In addition, the evidence introduced by the
Respondent does not reveal what Daramy’s “inappropriate
behavior” was or whether it was similar to Hydorn’s conduct.
Even if the conduct was similar, it would not be sufficient to
show that the Respondent would have discharged Hydorn ab-
sent his union and protected activity, given that the great weight
of the evidence regarding other discipline shows that nonstrik-
ers, including at least four within Local 2040 who were guilty
of misconduct similar to Hydorn’s, received lesser discipline
than Hydorn.12
The Respondent also offered evidence regarding two em-
ployees who, like Hydorn, were returning strikers, but who
received discipline short of discharge for their insubordination.
Ronald Swoveland, who was within the Local 2040 bargaining
unit, received a 10-day suspension for failure to follow instruc-
tions, and Wayne Tabb, who was a Local 372 employee, re-
ceived a 3-day suspension for refusal to follow a direct order.
However, the Respondent did not introduce evidence of any
returning strikers who received only a warning or reprimand as
punishment for insubordination, even though the evidence indi-
cates that this was the single most common punishment it
meted out to nonstrikers for insubordination.13 Thus, this evi-
dence, if anything, actually suggests disparate treatment of
returning strikers other than Hydorn, and undercuts the Re-
spondent’s contention that it would have treated Hydorn the
same even if he had not been a striker and union member. See
American Wire Products, 313 NLRB at 994 (absent a reason-
able explanation, disproportion between the number of union

11 The records submitted state that as punishment for Dean’s first in-
subordination offense she was “sent home, paid for shift.” GC Exh. 18.
12 The Respondent also introduced evidence showing that Elaine
Rideout, a nonstriker who was within the Local 2040 bargaining unit
was discharged for insubordination on October 2, 1998. However, a
document subsequently introduced by the General Counsel showed that
the Respondent revoked this discipline and reinstated Rideout.
13 Excluding Hydorn, the record contains evidence of approximately
45 instances when the Respondent disciplined an employee at least in
part for insubordination. In 21 of these cases the punishment was a
warning or reprimand (treating Dean being “sent home, paid for shift”
as a warning), in 18 cases it was a suspension (treating the period prior
to Rideout’s reinstatement as a suspension), and in 6 it was discharge.
DETROIT NEWSPAPERS 1287
and nonunion employees discharged may be persuasive evi-
dence of discrimination); Sonoma Mission Inn & Spa, 322
NLRB 898, 905 (1997) (indicia of improper motive when em-
ployees who were not involved in protected activity are given
lesser discipline for worse conduct).
The Respondent argues that the General Counsel has failed
to establish disparate treatment because “no testimony was
offered explaining the circumstances underlying the discipline
that had been issued” to the nonstrikers. Respondent’s Brief at
21. However, the burden at this stage in the analysis is on the
Respondent, since the General Counsel has introduced other
evidence independently sufficient to show that antiunion mo-
tives played a part in Hydorn’s discharge. If the Respondent
was aware of evidence showing that the circumstances sur-
rounding the lesser discipline issued to similarly situated non-
strikers were different than the circumstances involved in Hy-
dorn’s case, then it could have introduced that evidence at the
hearing. Moreover, although all the details of the discipline
administered to each of the other insubordinate employees was
not developed, the evidence that was presented tends to support
the conclusion that the Respondent treated similarly situated
nonstrikers better than Hydorn. I conclude that the record evi-
dence regarding the discipline received by other employees
clearly fails to satisfy the Respondent’s burden of showing that
it would have taken the same action against Hydorn absent his
union and protected activity.
The Respondent also contends that unlawful discrimination
has not been shown since the General Counsel did not produce
evidence that nonstriker employees who received lesser disci-
pline had refused multiple direct orders or had said that the
Respondent could fire or suspend then. Respondent’s Brief at
27. As noted above, the burden at this point in the analysis is
on the Respondent, not the General Counsel. At any rate, even
the records that are available do show that, in fact, both Hayes
and Stewart—two nonstrikers—had refused multiple direct
orders during the episodes that led each to receive a 3-day sus-
pension. West, another nonstriker employee, was insubordinate
on two occasions within a 6-month period yet received only a
written warning as punishment. Murphy received only a 1-
week suspension after continuing to yell and use profanity after
Monroig repeatedly told her to stop. When Monroig told Mur-
phy that he would send her home unless she stopped yelling
and using profanity she replied, “I don’t give a fuck and you
can send me home because I don’t need this shit.” GC Exh. 14.
Thus the evidence that was presented does not support the Re-
spondent’s contention.
“‘While it is a truism that management makes management
decisions, not the Board , . . it remains the Boards role, subject
to deferential review, to determine whether management’s prof-
fered reasons were its actual ones.’” Detroit Paneling Systems,
330 NLRB 1170 (2000) quoting Uniroyal Technology Corp. v.
NLRB, 151 F.3d 666, 670 (7th Cir. 1998). In this case, the
evidence leads me to conclude that the Respondent would not
have discharged Hydorn for his insubordination absent his un-
ion and protected activity. I find that the Respondent dis-
charged Hydorn because of his union and protected activities,
in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSION OF LAW
By discriminatorily discharging employee Thomas Hydorn
because of his union and protected activities, Respondent has
violated Section 8(a)(3) and (1) of the Act, and that violation is
an unfair labor practice within the meaning of the Act.14
THE REMEDY
In addition to the usual cease-and-desist order and other af-
firmative action, I will recommend that the Respondent offer
full and immediate reinstatement to employee Thomas Hydorn
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, and make him whole for any loss of
earnings or benefits resulting from the discrimination against
him. The backpay is to be computed in accordance with F.W.
Woolworth, Co., 90 NLRB 289 1950), with interested com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]

14 I make no determination regarding the question of whether Hy-
dorn engaged in protected concerted activity on August 25, by ques-
tioning whether it was the job of material handlers to clear paper drags.
There is Board precedent indicating that Hydorn’s statements to Dutka
are properly viewed as a protected effort to educate a co-worker about
duties and that Hydorn’s subsequent insubordinate statements to Leach
and Monroig were part of the res gestae of that protected activity and
not so offensive, vulgar, defamatory, or opprobrious as to deprive his
actions of their protected status. See, e.g., Guardian Industries Corp.,
319 NLRB 542, 549 (1995). There is, however, Board precedent that
favors a contrary conclusion. C & D Charter Systems, 318 NLRB 798,
802 (1995), enf. 88 F.3d 1278 (D.C. Cir. 1996); Daly Park Nursing
Home, 287 NLRB 710 (1987). Fortunately it is not necessary for me to
enter onto this difficult terrain. As discussed above, I conclude that
Respondent’s decision to discharge Hydorn was unlawfully motivated
by Hydorn’s union and strike activity and that the Respondent has not
shown that it would have discharged Hydorn based on his insubordina-
tion alone. Therefore, the Respondent has violated Section 8(a)(1) and
Section 8(a)(3) regardless of whether Hydorn’s conduct on August 25,
was protected, and I need not reach the question involving the status of
that conduct.