E.A. Sween Co.

National Labor Relations Board - Administrative Judge Opinions

Oct 23, 2009

13-CA-044945 (N.L.R.B. Oct. 23, 2009)

JD–48-09
Woodridge, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
E.A. SWEEN CO.
and Cases: 13-CA-44945
13-CA-45106
TEAMSTERS LOCAL UNION NO. 754,
affiliated with THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Charles J. Muhl, Esq., for the General Counsel.
Scott V. Kamins, Esq., of Maple Lawn, Maryland,
for the Respondent.
Ramon D. Williams, Sr., of Chicago, Illinois,
for the Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Chicago, Illinois, on
July 27—29, 2009. In case 13—CA—44945, the original charge was filed October 1, 2008, and
an amended charge was added on November 21. In case 13—CA—45106, the initial charge
was filed February 4, 2009, and amended on March 26. The original complaint was issued
December 15, 2008, and a consolidated amended complaint followed on April 24, 2009.
The consolidated complaint alleges that the Employer, E.A. Sween Co., twice engaged
in unlawful conduct by disciplining its employee, Joe Mason.1 The first imposition of discipline
consisted of a written warning issued to Mason on September 16, 2008. This was followed on
January 23, 2009, by the Employer’s decision to terminate Mason’s employment. The General
Counsel contends that both actions were motivated by unlawful animus against Mason’s
activities in support of Teamsters Local No. 754 (the Union). As a result, it is contended that
these actions were taken in violation of Section 8(a)(1) and (3) of the Act.2 The Employer’s

1 Originally, the amended complaint alleged an additional pattern of discriminatory conduct
directed against Mason. (See, amended complaint, GC Exh. 1(p), at par. VI(c).) During the
course of the trial, the General Counsel withdrew this allegation. (Tr. 346.)
2 The consolidated complaint also alleged a variety of other violations of the Act. On July
27, 2009, the parties entered into a settlement agreement that resolved all of the additional
allegations. (The effect of the settlement on the issues involved in the trial of this case was
stipulated at tr. 13—16.) The settlement agreement did not contain any admission of
wrongdoing by the Employer. In accord with the Board’s established practice, I have not
considered the settlement as evidence of any such wrongdoing. See, Truserv Corp., 349 NLRB
Continued
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answer to the consolidated complaint denied the material allegations of wrongdoing.
Because the central issue in this case is the analysis of the Employer’s motivations
involved in the decisions to take adverse actions against Mason, I have applied the Board’s
methodology established in Wright Line.3 Applying that test, I conclude that Mason was a
prominent supporter of the Union and engaged in a variety of activities that manifested such
support. I further find that the Employer was aware of Mason’s attitude and many of his union
activities. I have also concluded that one of the motivations for the decisions to issue a written
warning and to ultimately terminate Mason’s employment was his involvement with the Union.
Despite this, at the ultimate step in the analysis, I have determined that the Employer would
have taken the adverse actions against Mason due to his workplace misconduct and regardless
of its animus against his union beliefs and activities. As a result, I conclude that the Employer
has not violated the Act in the manner alleged. I will explain my reasoning in detail in the
remainder of this decision.
On the entire record,4 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Employer, I make the following
Findings of Fact
I. Jurisdiction
The Employer, a corporation, has been engaged in the business of food distribution at its
facility in Woodridge, Illinois, where it annually purchases and receives goods and materials
valued in excess of $50,000 directly from points outside the State of Illinois. The Employer
admits,5 and I find that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
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227, 228 (2007) (“a settlement agreement is not an admission that the employer’s actions,
alleged but not found to be unlawful, constituted an unfair labor practice unless such an
admission is an express part of the agreement.”) I did, however, permit the General Counsel to
introduce testimony regarding the facts underlying the alleged violations where such evidence
was material to the issues remaining before me. See, Septix Waste, Inc., 346 NLRB 494, fn. 12
(2006) (where parties have agreed not to litigate unfair labor practice charges arising from
employer’s statements, such statements may still be considered “as background evidence of
Respondent’s antiunion animus.”)
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399—403
(1983).
4 The trial transcript is generally accurate. A few errors require correction. At tr. 249, l. 11,
“testimony” should be “test.” In tr. 456, l. 13, “disturb” should be “discharge.” At tr. 460, l. 7, “on
a daily election” should read “on the day of the election.” At tr. 499, l. 3, “readily” should be
“already.” Finally, at tr. 17, ll. 16—17, the transcription of my statement is garbled in a manner
that rendered the statement exactly opposite to my meaning. My comment was to the effect
that administrative law judges should not act in a manner contrary to current Board policy. Any
other errors are not significant or material.
5 See the Employer’s answer to the consolidated amended complaint, pars. 2 and 3. (GC
Exh. 1(r)).
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II. Alleged Unfair Labor Practices
A. The Facts
The Employer is headquartered in Minnesota and operates a variety of facilities
throughout the nation. The Woodridge facility involved in this case is a combined distribution
center that stores and distributes merchandise to its clients, all of which are convenience stores
in the Chicago metropolitan area operated by 7-Eleven, Inc. The merchandise consists of dairy
products, donuts, bread, other food items, and miscellaneous goods. Approximately 35 to 40
delivery truck drivers are employed by the Company in order to service the client stores.6
Among those drivers was Joe Mason who was hired on October 10, 1998.
The chain of command at the Woodridge facility begins with Robert Forte, the general
manager, and Chris Nevels, the operations manager in charge of both the warehouse and
delivery operations. Denise Forte is the facility’s human resources office manager. Frontline
supervision of the delivery drivers is provided by lead drivers who carry the formal title of driver
supervisor. Each driver supervisor is responsible for the performance of 8 to 9 drivers, including
the handling of “driver performance issues.” (Tr. 374.) The driver supervisor assigned to
Mason was Steven Gessner. These supervisors are the only management officials routinely on
duty during the nighttime hours. This is significant since the delivery drivers perform their duties
during those hours.
At this point it must be noted that there was some degree of factual dispute regarding
the supervisory authority of the driver supervisors. To be precise, only Mason contended that
these managers were not actually his supervisors. As will be seen later in this decision, his
idiosyncratic belief in this regard formed a key element of the events that led to his discharge. It
was also reflected in his testimony at trial. Thus, Mason’s direct examination on this point went
as follows:
COUNSEL FOR THE GENERAL COUNSEL: Who were your supervisors
in your position? Let’s stick with that month the Judge said, January
of 2009.
MASON: I don’t think, I don’t know if they were, at that time they were
considered lead drivers or, I’m not sure at that time[,] they wasn’t
appointed supervisors. And that would be Eric Dickson, Steve
Gessner . . . .
COUNSEL FOR THE GENERAL COUNSEL: And those were lead drivers
we’re talking about?
MASON: Yes.
(Tr. 258—259.)
I refer to Mason’s unwillingness to acknowledge the supervisory role of Gessner and the
other driver supervisors as idiosyncratic because it was contrary to every other item of evidence

6 The Company also employs personnel to operate its warehouse. Those employees are
represented by another affiliate of the Teamsters Union.
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on this point. Apart from the consistent assertions regarding the supervisory authority of the
driver supervisors made by the management witnesses, all of the General Counsel’s employee
witnesses differed with Mason’s viewpoint. Thus, driver David Duplessis testified that Gessner
was his immediate supervisor. Drivers, John Adaska, Vera Mason, Turner Goodwin, and Eslin
Lopez, all confirmed that the driver supervisors were their supervisors. The other drivers’
opinions may best be summarized by quoting yet another of their colleagues, Charles Williams.
He testified as follows:
COUNSEL FOR THE GENERAL COUNSEL: Well, the lead drivers are the
direct supervisors then?
WILLIAMS: Yes, directly to the drivers, yes.
(Tr. 138.)
The unanimous opinion of the other drivers is also supported by the parties’ positions
expressed in their formal statements. The General Counsel alleges that Gessner held the
position of “Lead Driver Supervisor” and was a supervisor within the meaning of the Act.
(Amended Complaint, par. IV(a), GC Exh. 1(p).) At trial, counsel for the Employer entered into a
stipulation that Gessner was a statutory supervisor. (Tr. 11.) Based on the great weight of the
evidence, I readily find that Gessner and the other driver supervisors were the direct, frontline,
and duly authorized supervisors of the Company’s delivery drivers, including Mason.
With this background, it is necessary to recount the events regarding the Union’s
organizing campaign and the Employer’s response. These events provide the context within
which the General Counsel’s allegations must be assessed. Prior to the period involved in this
case, the delivery drivers had been represented by another local affiliate of the Teamsters
Union. Approximately 2 years ago, the bargaining unit members voted to decertify that
representative.
Ramon Williams, Sr., an organizer for Local 754, testified that, at some time thereafter,
he observed the Company’s drivers performing their routes and decided to interview them
regarding their potential interest in representation by that local union. He was assisted in this
enterprise by another organizer, Orlando Fuller. Mason testified that Fuller first approached him
one night in January 2008. He decided to assist the organizers in their effort to become the
representative of the drivers. In this regard, he obtained authorization cards from Fuller and
passed them out to his colleagues. He reported that he secured between 15 and 20 signed
cards from the other drivers. He also spoke in support of the Union at meetings and joined the
Union’s organizing committee along with Adaska, Goodwin, and Duplessis.
Other drivers corroborated Mason’s account of his organizing activities. Adaska testified
that Mason asked him to sign an authorization card. After considering the matter for a few
weeks, he did sign the card. Adaska also reported that Mason passed out union flyers.
Duplessis provided similar testimony, indicating that he also signed a card given to him by
Mason. He characterized Mason as, “the head organizer for the union . . . the head guy.” (Tr.
78.) Williams described Mason as, “the voice of the union in the company.” (Tr. 147.) Lopez
added that Mason was, “the one who started the union.” (Tr. 242.)
On July 21, 2008, the Union filed a petition seeking a representation election among the
Company’s “regular full time and part time drivers.” (GC Exh. 2.) After the parties entered into
a Stipulated Election Agreement, an election was held on August 29, 2008. On election day,
Mason served throughout the day as the Union’s observer. As would be natural, his role as
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observer came to the attention of management officials. Upon conclusion of the vote, the
Regional Office certified that, of 34 total voters, 27 had cast ballots for the Union while 6 voters
opposed union representation.7 (GC Exh. 3.)
The Employer filed objections to conduct affecting the result of the election. A hearing
on the matter was held on September 25, 2008. The only witness called by the Union was
Mason. Nevels and Denise Forte were present on behalf of management and observed
Mason’s participation in the hearing. On December 2, 2008, the hearing officer issued her
report recommending that the Employer’s objections be overruled. (GC Exh. 14.)
The Employer filed exceptions to the hearing officer’s report.8 Shortly after the trial of
this case, the Board issued its Decision and Certification of Representative, dated August 17,
2009. By its terms, Local 754 was certified as the representative of the Company’s full-time and
regular part-time drivers.9
The General Counsel presented testimony of various witnesses regarding the conduct,
statements, and attitude of management officials during and after the election campaign.
Because it is asserted that the behavior of those officials manifested a consistent pattern of
opposition to the Union and animus against the Union’s supporters among the workforce, it is
necessary to evaluate the credibility of this testimony and of the conflicting testimony provided
by witnesses called by the Employer. I will address these events in chronological order.
Drivers Adaska and Lopez reported that, on July 31, 2008, they were in the drivers’
conference room with several other drivers. They were completing their paperwork when
Operations Manager Nevels entered the area. They both testified that Nevels asked the drivers
about their interest in the Union. He added questions about the source of their dissatisfaction
with the Company and sought to learn, “if there was anything that he could do or what it is that
we wanted.” (Tr. 237.) In reply, Adaska told him that they wanted higher wages. After this
exchange, both men were clear in recounting that Nevels next warned them that, “voting in the
union is not going to get you more money, it’s going to get you fired.”10 (Tr. 114.)
In his own testimony, Nevels presented a different version of this conversation. He
agreed that he spoke to the men in the drivers’ lounge area. He also confirmed that he asked
the drivers why they, “want to be in the Union or get the Union to come in.” (Tr. 488.) He
acknowledged that he was told that the reason was unhappiness with the current pay scale. He
indicated that he responded by telling the drivers that he would get back to them regarding their
wages.
In evaluating these conflicting accounts, I credit the drivers’ testimony. From Nevels’
own account it is clear that he had returned from vacation and learned of the organizing
campaign shortly before the conversation. Adaska and Lopez provided entirely consistent and
credible versions of his remarks to them. Significantly, Nevels corroborated most of the
contents of their descriptions of his behavior. While admitting that he engaged in highly

7 There was one challenged ballot.
8 There was a procedural glitch by which the Board, mistakenly assuming that the Company
did not file exceptions, issued a premature certification of representative. On motion of the
Company, this was subsequently revoked by the Board.
9 E.A. Sween Co., 13—RC—21777, August 17, 2009 (unpublished).
10 This was the language used by Adaska. Lopez described Nevel’s threat as warning that,
“the Union is only going to get you fired.” (Tr. 237.)
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questionable conduct by soliciting grievances and interrogating employees about their attitude
toward the Union, he stopped short of admitting the naked threat of discharge. This is hardly
surprising. Furthermore, his claim that he actually ended the conversation by promising to
investigate their wage rates is strongly undermined by his admission that, although he promised
to get back to the drivers regarding this matter, he never actually did so. For these reasons, I
conclude that Nevels did utter the clear threat to discharge union supporters in the manner
related by Adaska and Lopez.
At approximately the same time in late July, Mason reported that Nevels told him that,
“you know you have done started some shit.” (Tr. 264.) Nevels denied making this remark. I
credit Mason’s account because it is consistent with the contemporaneous threat made by
Nevels to the group of drivers in the lounge.
Also at roughly the same time, Duplessis and Adaska testified that they attended a
barbeque on the Employer’s premises. Such social events were periodically arranged by the
drivers with the consent of management. At this particular gathering, Driver Supervisor Dixon
quizzed the group of drivers as to, “what did we need from E.A. Sween in order for the union to
be eliminated.” (Tr. 82.) Drivers responded by expressing concerns about their wages and
current health plan. He then replied, “if I could get that for you, would you get rid of the union?”
(Tr. 82.) Both Duplessis and Adaska reported that in the following days Dixon told them that, “I
got what you guys wanted, everything is going to be fine.” (Tr. 117.) Dixon confirmed the
“debate” about the Union at the barbeque. (Tr. 435.) He admitted that he told the drivers that
he would ask higher management about their concerns, “and see what . . . they say.” (Tr. 436.)
To the limited extent that the accounts of the three witnesses differ, I credit the consistent
reports of the two drivers.
Duplessis testified that, in the following month, he had two conversations with Nevels.
The first took place in Nevels’ office. Nevels asked why the drivers wanted union
representation. Duplessis told him that it was due to poor treatment by the lead drivers and
concerns about pay and benefits. Nevels promised that he would “take care of” the lead driver
issue. (Tr. 84.) Consistently with his prior behavior in similar circumstances, he followed his
promise to remedy grievances with a threat, telling Duplessis that he would not receive his
yearly wage increase if the Union won the election. Approximately a week later, Nevels again
spoke with Duplessis, asking a similar series of questions about support for the Union and again
promising to remedy the problems with the lead drivers.11 Although Nevels testified in detail
about many matters at issue in this case, he did not address these two conversations with
Duplessis. Because Duplessis’ testimony is uncontroverted and his account shows conduct
consistent with Nevels’ previous pattern of behavior, I credit it.
Eslin Lopez provided testimony about another encounter with Nevels in mid-August.
The conversation took place in Nevels’ office. According to Lopez, Nevels promised him a pay
raise if the Union were defeated in the election. He added that, “he couldn’t do anything about it
if the union came in.” (Tr. 91.) Once again, this testimony was both consistent with Nevels’

11 Duplessis also testified that, during this conversation, Mason walked by and Nevels spoke
to him as well. The content of that discussion is not relevant to the issue of management’s
attitude toward the Union’s campaign, but it is illustrative of the pattern of interactions between
Mason and his supervisors. The two men got into an argument over how long it took for drivers
to fill out their logbooks. The exchange became loud and Duplessis indicated that, “[b]oth of
them were trying to talk over the other.” (Tr. 93.)
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pattern of behavior during the campaign and uncontroverted. I find it credible.12
Several drivers testified that, as the date of the election approached, Denise Forte made
two blatant threats to them. Duplessis reported that he had a conversation with her in her office.
He testified that she told him, “if the union was voted in, she said E.A. Sween would close their
doors and they would bring in another whole crew.” (Tr. 90—91.) The reliability of this
testimony was undercut by his additional report that she threatened that he would not receive
his pay raise if the Union came in as representative of the drivers. Although this testimony is
uncontroverted, I find it puzzling. It is well recognized in labor law that an employer’s threat to
close the plant doors is the rhetorical equivalent of a promise to impose the ultimate sanction.13
It strikes me as unlikely that a management official would deploy this ultimate weapon of
intimidation in the same conversation that allegedly contained a far less severe threat of a
potential delay in an annual pay raise. Having threatened that which labor law considers the
ultimate sanction, it was hardly necessary to also threaten a far less severe punishment. Given
the illogic of Duplessis’ account in this instance, I decline to accord it probative value. I
conclude that there is a significant element of exaggeration involved in his recollection of this
particular conversation.
Two drivers, Adaska and Lopez, reported that Forte issued blatant and profane threats
against them on election day. Adaska contended that he was present among a group that
consisted of both supervisors and drivers. Forte came up to the entire group and stated, “if
these guys want to fuck with us and bring in the union, vote in the union, then we could fuck with
them back.” (Tr. 118—119.) I have two problems with this account. First, Adaska was
impeached with the language of his earlier affidavit in which he claimed that Forte used the
word “mess” in place of the much stronger epithet. (Tr. 133.) Second, I find it inherently
unlikely that Forte would make these inflammatory remarks that are clearly directed toward
fellow management personnel while they were also in the presence of drivers.
Lopez also reported that Forte came up to the group on election day and said, “if they
wanted the union and if they wanted to fuck with her, you know, then as soon, you know, they
get seven points they were going to, she was going to fire them.” (Tr. 241.) Once again, I do
not credit this portion of Lopez’ testimony. In the first place, it differs significantly from Adaska’s
version of the conversation. Beyond that, I note that Forte testified in detail about the entire
event. She noted that Lopez’s reference to seven points did refer to a statement she had made
in a meeting. In those remarks, she had explained that, under a union contract, management
would have no flexibility on matters of attendance policy and if an employee accumulated seven

12 According to Goodwin and Mason, at some unspecified time prior to the election, Nevels
made additional statements to the effect that the Employer had the drivers, “by the balls.” (Tr.
206.) By contrast, Nevels reported that there was a conversation in which he told Mason, “Joe it
doesn’t matter whether you’re in the Union or not, you have to perform your job.” (Tr. 492.) He
added that Mason responded, “well, what you are saying, you got us by the balls.” (Tr. 492.)
Mason’s claim about Nevels’ conduct is consistent with Nevels’ pattern of behavior. On the
other hand, Nevels’ claim about Mason’s conduct is equally consistent with Mason’s pattern of
behavior. Recognizing that Mason’s testimony about this is corroborated by Goodwin, I
conclude that Nevels did make statements in these discussions that conveyed an aura of
intimidation in relation to the organizing campaign.
13 As another judge has put it, “[l]oss of employment, frequently referred to as the ‘capital
punishment’ of the workplace, has been long recognized as the type of action which would
demonstrate most sharply the power of the employer to its employees.” Reno Hilton Resorts,
320 NLRB 197, 209 (1995). [Citation omitted.]
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points under the policy, they would have to be terminated. Beyond that, she “absolutely” denied
making profane threats. As she put it, “I’m in HR, I don’t talk like that to employees.” (Tr. 460.)
While I realize that some people may masquerade as polite and dignified in the courtroom while
behaving like a bully in the workplace, I did not perceive this to be the case with Forte. I found
her demeanor and presentation to be entirely consistent with her contention that she considered
herself to be a human resources professional and would not denigrate her professionalism in
the crass and profane manner claimed. On balance, I conclude that the severe threats
attributed to Forte have not been proven.
Having described the history of the Union’s organizing campaign and management’s
response to it, it is now necessary to examine the two disciplinary events that form the focus of
this litigation. In the first of these episodes, management issued a written warning to Mason on
September 16, 2008. The precipitating event was Mason’s failure to attend a safety meeting.
Forte testified that the Employer posted three advance notices to the drivers regarding
this meeting. The copy admitted into evidence shows that the notice contained a very large
print advisory that the meeting was “MANDATORY.” (GC Exh. 12.) After providing the time and
location for the meeting, the notice concluded with the following instructions:
If you are unable to make the safety meeting please let Denise
[Forte] know PRIOR to the meeting. If you do not make the
meeting and have not discussed this with me prior, it counts
as a call off for the meeting on your minimum standards.
(GC Exh. 12.) [Italics and capitalization in the original.]
In his testimony, Mason forthrightly conceded that the meeting was mandatory and that
the drivers were paid to attend it. Equally forthrightly, he admitted that he missed the meeting
due to the fact that, “I overslept.” (Tr. 276.) Mason reported that he was later called into
Nevels’ office for a conference with Nevels and Driver Supervisor John Morris. At that time, he
was given a Disciplinary Action Form. The form advised him that he was being disciplined by
issuance of a written warning. The reason for the disciplinary action was described on the form
as follows:
A mandatory safety meeting was held on 9/16/08 and
every driver was required to be there, or to contact Denise
if they could not make it to the meeting. Joe Mason did not
contact Denise or any other member of management to let
them know that he was not able to attend the meeting. Failure
to do so results in a written warning for a no-call no show.
(GC Exh. 12, p. 3.)14 The form is signed by Nevels and Morris. It also notes that Mason
refused to sign it. Mason explained that he told Nevels he was refusing to sign it because he
believed that he should not have been issued a written warning since the infraction was “my first
offense.”15 (Tr. 279.) According to Mason, Nevels responded that, because it had been a

14 This document was inadvertently admitted into the record twice. The second copy is GC
Exh. 4. I have relied on the version admitted at GC Exh. 12 because the earlier copy is slightly
defaced by an evidence sticker.
15 As I will discuss when analyzing the legal significance of these events, Mason’s
contention is totally at variance with reality. Not only did he have a long history of documented
Continued
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mandatory meeting, “it has to be a written warning.” (Tr. 279.)
Given subsequent events, it is also significant that, while the portion of the form that
permits the supervisor to advise the employee of the “next disciplinary action step if problem
continues” is left blank, the employee is nevertheless specifically advised that:
[F]urther violations of policies and/or procedures will result in
additional disciplinary action, up to and including termination.
Discipline is completely discretionary based on the severity of
the incident and manager’s discretion.
(GC Exh. 12, p. 3.)
The events involved in this case reached their culmination in January 2009. Matters
began when Driver Supervisor Gessner received a written inquiry from his own superior, Robert
Forte. This consisted of a copy of the drivers’ Timecard Report for the January 21 shift. On that
report, Forte had circled the times recorded for three of the eight drivers listed, including Mason.
He added handwritten comments that were almost identical regarding each of the three. As to
Mason, the printed report indicated that he clocked out of his shift at 6:12 a.m. Forte’s note to
Gessner regarding this asked, “He was here a[t] 5:10. What was he doing?” (E. Exh. 3, p. 2.)
Gessner testified that he understood Forte’s intent was to have him obtain an explanation from
each of the three drivers as to the reason they had remained on the clock “for an hour after they
returned from their route.” (Tr. 377.)
Gessner testified that the first step he took in response to Forte’s directive was to
examine the performance history of each of the three drivers. The manner in which he
accomplished this was by analysis of the Standards of Performance record for each employee.
That record consists of a detailed list of performance criteria with space provided next to each
item for assessment of each criterion on a daily basis. The practice is for supervisors to leave
the space blank if the employee’s performance as to that criterion on that date has been
satisfactory. On the other hand, if the performance of that job function on that date has been
deficient, the supervisor is to note the deficiency by placing a zero in the space provided. In
Mason’s case, Gessner’s review of his Standards of Performance ratings for January revealed
that he had been marked deficient in the category of “Complete shift in allotted time frame” on
10 occasions prior to January 21.16 (E. Exh. 4, p. 1.)
Having determined that Mason had a pattern of deficiency notations similar in type to the
matter referenced in Forte’s note, Gessner decided that it was appropriate to meet with Mason
to discuss the overall problem.17 Company policy required that such discussions be held
privately and that the supervisor obtain the presence of an additional supervisor to witness the
conversation. Gessner asked Driver Supervisor Dixon to perform this function for him. Dixon
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disciplinary infractions, he had a documented record of having missed other mandatory safety
meetings on September 19, 2005, and June 17, 2008.
16 The notice of deficiency for January 8 contains what appears to be a question mark above
the zero.
17 There was nothing unusual in such a procedure. For instance, driver Williams testified
that, approximately a week earlier, Gessner had called him into his office to discuss his
performance under the minimum standards, including situations where he had returned late
from his route. Duplessis also reported that his supervisors held meetings with him regarding
the minimum standards in an effort to assist him in reducing the time spent on his route.
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testified that Gessner told him that he intended to speak to Mason about the specific issue that
concerned Forte, but also wanted Dixon to be there when “he went over the minimum
standards” with Mason. (Tr. 422.) Dixon agreed to assist Gessner.
Early in the morning of January 23, Mason returned to the facility after completing his
deliveries. Upon his return at approximately 5:30 a.m., he proceeded to the drivers’ area to
complete his paperwork. Also present in that area were fellow drivers Goodwin, Williams and
Vera Mason.18 At that time, Driver Supervisor Gessner came into the area and asked Mason to
accompany him into his office in order to speak with him.
The events that happened next were described in great detail by a variety of witnesses,
including Gessner and Mason. Unfortunately, as any experienced trial judge has also come to
expect, some of those witnesses provided accounts which differed with each other and
sometimes with their own descriptions given earlier in that same testimony. Despite this
persistent and natural problem involved in human recollection, interpretation, and motivation, it
is noteworthy that the crucial features of the interaction between Gessner and Mason are not
really in dispute. With this in mind, I will now describe and characterize the critical testimony
about this event.
Gessner testified that he approached Mason and told him that he needed to speak with
him in his office. Mason responded, “no, I’m not speaking to you in your office, if you need to
talk to me you can talk to me right here.” (Tr. 388.) Gessner explained that this was not
possible because other drivers were present in the room. Gessner reported what happened
next:
I again asked Joe, I said Joe, come in to the office, I need to
speak to you about your time. He goes no, I’m not speaking
to you about my time and if you want to talk to me about
anything else you can talk to me right here.”
(Tr. 388.) Gessner characterized Mason’s tone as “defiant.” (Tr. 388.)
Confronted with Mason’s refusal, Gessner reported that he returned to his office and
retrieved the timecard report that contained Forte’s instructions to him. As he put it, “I had to get
an answer for my supervisor’s question.” (Tr. 390.) With the record in hand, Gessner returned
to the drivers’ area and asked Mason why he had remained on duty at the facility for so long
after returning from his deliveries. Mason told him that he was doing his paperwork and putting
away materials from his route. Upon hearing the explanation, Gessner ended the conversation
and returned to his office.
As I have already noted, there is very little substantive difference between Gessner’s
version and that provided by Mason. On direct examination, Mason described the incident as
follows:
Steve [Gessner] asked me to come to his office. I told him no,
why don’t you come in, I’m doing my paperwork and whatever
you want to talk about[,] bring it out here.
(Tr. 287.) Mason indicated that, upon hearing this, Gessner went back to his office. He

18 Vera Mason happens to be Mason’s sister.
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returned a few minutes later with some paperwork. At that point, he asked Mason, “what took
me so long to punch out the other night, the night before.” (Tr. 289.) Mason agreed that he
explained his reasons and the conversation ended. He then clocked out and went home.
While Mason’s direct testimony outlined the event, it was under cross examination that
his account was fleshed out with descriptions of his attitude and reasoning. Counsel for the
Employer asked him to again describe the exchange and Mason responded:
He approached me, asked me to come in the office and I told
him no, bring whatever you want to talk to me about, you can
bring it out here.
(Tr. 304.) Counsel then probed Mason’s reasoning as follows:
COUNSEL FOR RESPONDENT: He is your supervisor, correct?
MASON: He’s a lead driver.
COUNSEL: He’s your supervisor, correct?
MASON: Yes, I guess.
COUNSEL: And as your supervisor he can tell you he wants to talk
to you in a private area, isn’t that correct?
MASON: I guess.
(Tr. 304—305.) After a brief digression, the examination continued as follows:
COUNSEL: Okay, but he asked you to go into his office and you said—
MASON: And I refused, yes.
(Tr. 305.)
Still later in cross examination, counsel again asked probing questions that elicited key
insights into Mason’s reasoning and attitude. The line of questioning began as follows:
COUNSEL: [Y]ou felt you had the right to refuse Mr. Gessner’s
request to come into the office. Is that correct?
MASON: Yes.
COUNSEL: Why was that?
MASON: He’s a lead driver. He wasn’t, at that point he was a lead
driver to me. He wasn’t appointed supervisor. There were lead
drivers, your Operation Manager and your General Manager.
COUNSEL: So you felt he had no right to ask you to come in to talk
to you?
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MASON: No, not really.
(Tr. 313—314.) Because this struck me as a key point, I interrupted and asked Mason, “are you
saying [“]no he did not have the right, really, to require me to come into his office[”]? (Tr. 314.)
Mason responded, “That’s correct.” (Tr. 314.) Counsel pursued the matter and asked if the
reason Mason had this belief was because, “you didn’t think he had enough authority.” Mason
replied, “Correct.” (Tr. 314.) Mason then raised another explanation for his behavior, asserting
that he felt that he had not engaged in any insubordination because meeting with Gessner in his
office was, “not part of work.” (Tr. 328.) Counsel explored this further:
COUNSEL: Now is it that or because you didn’t think that
Mr. Gessner had the authority to ask you to come into his
office?
MASON: Actually both.
(Tr. 329.)
As is evident from the foregoing, the two participants in this exchange are in essential
agreement as to the salient events. Mason’s supervisor asked him to go to his office for a
discussion of his job performance. He declined to do so. Instead, he completed his work tasks
and went home. He testified that he made the decision to refuse Gessner’s request based on
his conclusions that Gessner lacked authority to require him to attend a meeting about his job
performance and that such a meeting was not a required part of his job duties.19
Faced with Mason’s flat refusal to meet with him in his office, Gessner told Dixon that he
would provide a written account of the incident to his own superior, Robert Forte. That report,
dated January 23, 2009, was received into evidence. In its entirety, it provides:
I spoke to Joe [Mason] about what he was doing for an hour
when he returned from his route on Wed 1/21/09. He said
he was doing his paperwork and putting away his clips. I asked

19 It is fortunate that Gessner and Mason provided consistent accounts about this meeting.
Two other drivers, Charles Williams and Turner Goodwin, provided conflicting and confusing
testimony on the same subject. Both of them reported that Mason merely refused to meet with
Gessner until after he completed his paperwork. They both asserted that once he finished this
job task, he did report to Gessner’s office for the meeting. Of course, this cannot be accurate
since both Gessner and Mason were clear in their testimony that Mason never reported to
Gessner’s office. It was evident that the other drivers’ sense of outrage about Mason’s
subsequent termination was grounded in their belief that he was fired for the trivial offense of
briefly postponing his meeting with Gessner in order to finish his paperwork. I suspect that the
General Counsel may have been under the same impression until Mason testified at trial. I
base this on counsel for the Respondent’s impeachment of Mason with the contents of the
affidavit he had provided to the General Counsel on the day after the Union filed the unfair labor
practice involving his termination. Mason conceded that, as reflected in that affidavit, he never
told the General Counsel that he had refused to meet with Gessner in his office. Indeed, Mason
explained that he did not think it was important to provide this piece of information. In this
regard, I agree with counsel for the Employer’s inference that counsel for the General Counsel
had “understandabl[y]” been misled by Mason’s previous affidavits that neglected to mention his
absolute refusal to meet privately with Gessner. (R. Br., at pp. 22—23.)
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to speak to him in my office—he refused. He also said he does
not want to discuss anything about his times. Eric Dixon—witness
(GC Exh. 7.)
Denise Forte testified that Robert Forte gave her Gessner’s report and asked her to
“follow up with it.” (Tr. 451.) She discussed the matter with Gessner and scheduled a meeting
with Mason upon his return to work that evening to begin his next shift. She indicated that her
intention was to discuss the seriousness of the matter with Mason and see if he would
apologize. If he expressed comprehension of the gravity of the matter, he would have been
subjected to a suspension and then returned to work. She testified that there had been no
decision to terminate Mason prior to the meeting. As she credibly explained,
Traditionally, we don’t call people into the office to terminate
them. Most of the time if we have a termination, we’ll do that
per telephone. It saves the person, you know, the agony of
having to drive to work to go home terminated and it also
prevents any kind of issues that we could have for someone
who wasn’t expecting this and can be quite upset at the
workplace.
(Tr. 454.) These considerations as outlined by Forte appear logical and consistent with the
realities of the modern workplace.
The meeting did take place as scheduled. Those present were Denise Forte, Gessner,
Nevels, and Mason. Forte and Mason provided testimony regarding what transpired. They both
agreed that the meeting began with Nevels’ invitation for Mason to sit down. Mason refused,
indicating his desire to remain standing.20 From this point, the testimony about the meeting
diverged. Forte testified that Nevels asked Mason whether he had refused to meet with
Gessner and Mason admitted that he had refused to attend the meeting. Forte followed up by
asking Mason if he understood that Gessner was his supervisor and, “if he calls you into the
office, you have to go in and speak with him.” (Tr. 453.) Mason responded by asserting that, “I
don’t have to talk to him.” (Tr. 453.) Nevels then advised him, “Joe, you understand that’s
insubordination and we’re going to have to terminate you.” (Tr. 453.) Mason asked, “so I’m
fired, I’m terminated?” (Tr. 453.) Nevels confirmed it.
Mason disputed this portion of the account of the events at the meeting. Instead, he
testified that immediately after he refused to take a seat, Nevels said, “well, suit yourself.
You’ve been terminated.”21 (Tr. 291.) He then asked Mason to return his keys and other
company property. Gessner escorted him to his vehicle and he left the premises.
As to the conflicting descriptions of this meeting, I credit Forte’s version. It possesses a
key attribute of reliability in that it provides important details that are consistent with the prior
behavior of the parties. In contrast, Mason’s version is inherently implausible. As I will describe

20 This was consistent with the large body of testimony that described Mason’s general work
attitude as confrontational.
21 It should be noted that, under cross examination, Mason did appear to acknowledge that
the managers present at this meeting asked him if he had refused to meet with Gessner. As he
described it in response to counsel’s question, “[t]hey mentioned it, yes.” (Tr. 317.) He reported
that he declined to respond. This certainly corroborates Forte’s account of the meeting.
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in detail in the legal analysis portion of this decision, Forte’s account indicates that the Company
was willing to take corrective measures designed to alter Mason’s deficient performance while
retaining him as an employee. This would track the Company’s similar efforts over the years of
his employment. Those efforts are thoroughly documented in the personnel files. On the other
hand, Mason’s account would require one to conclude that, although they had already decided
to fire him, they chose to invite him to a group meeting for the sole purpose of conveying that
decision to him in person. Such peremptory treatment is at variance with past corporate
behavior and seems unlikely. By the same token, Forte’s description of Mason’s unyielding
response to the attempt to elicit an apology for his misconduct is entirely consistent with the
pattern of his behavior both before and after the meeting. His defiance mirrors his similar
treatment of Gessner that provoked the meeting. Furthermore, his open refusal to acknowledge
the error of his conduct is entirely consistent with his stance during his testimony at trial. I
conclude that Forte’s description of what took place at the meeting is reliable.
Upon leaving the company’s premises, Mason telephoned Ramon Williams and
informed him of his termination. Williams instructed him to return to the facility and ask for a
letter of termination. He followed this instruction. Forte and Nevels told him they would mail
him this document. The resulting letter was dated February 6, 2009, and signed by Vicki Greco,
a human resources employee. The letter informed Mason that:
The reason for your termination was insubordination, a direct
violation of E.A. Sween Company’s Code of Conduct found in
the Employee Handbook. In the past few months, on more than
one occasion, you intentionally refused to obey a direct or implied
order, which was reasonable in nature, given by your supervisor
or lead, who had the proper authority. As a result of this continuing
behavior, following coaching from your supervisor, a decision was
made to terminate your employment.
(GC Exh. 5.) A similar rationale was provided on the Employer’s contemporaneously prepared
termination form which lists the sole reason for Mason’s termination as “[i]nsubordination.” (GC
Exh. 6.)
On February 4, 2009, the Union filed a charge alleging the discriminatory discharge of
Mason. (GC Exh. 1(j).) The General Counsel issued the complaint containing that allegation on
April 24. (GC Exh. 1(p).) The Company continues to refuse to employ Mason.
B. Legal Analysis
Although the General Counsel contends that the Employer’s disciplinary actions against
Mason were substantially motivated by unlawful animus toward his union sympathies and
activities, counsel for the General Counsel also forthrightly acknowledges that Mason had a
long and troubling history of job-related misconduct. For example, the General Counsel
concedes that Mason had a lengthy history of “repeated acts of insubordination, including
refusals to follow supervisor’s instructions or proper workplace procedures.” (GC Br. at p. 22.)
Indeed, counsel for the General Counsel notes Mason’s continuing “penchant for
insubordination.”22 (GC Br. at p. 24.) Given this background, it is clearly necessary to engage

22 Counsel for the General Counsel is equally frank in reporting Mason’s history of other
serious performance issues. Thus, he observes that, “Mason’s employment history is littered
with customer complaints . . . including ones in which he refused to correct the issue raised by
Continued
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in a mixed motive analysis in order to untangle the skein of decisional threads that underlay the
Employer’s conduct in this case.
In assessing such a claim, I must apply the analytical framework devised by the Board in
Wright Line, supra. A comprehensive exposition of that test was provided by the Board in
American Gardens Management Co., 338 NLRB 644, 645 (2002):
Wright Line is premised on the legal principle that an employer’s
unlawful motivation must be established as a precondition to finding
an 8(a)(3) violation. In Wright Line, the Board set forth the causation
test it would henceforth employ in all cases alleging violations of
Section 8(a)(3). The Board stated that it would, first, require the General
Counsel to make an initial showing sufficient to support the inference
that protected conduct was a motivating factor in the employer’s decision.
If the General Counsel makes that showing, the burden would then shift
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The ultimate burden
remains, however, with the General Counsel.
To establish his initial burden under Wright Line, the General
Counsel must establish four elements by a preponderance of the evidence.
First, the General Counsel must show the existence of activity protected by
the Act. Second, the General Counsel must prove that the respondent was
aware that the employee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered an adverse
employment action. Fourth, the General Counsel must establish a motivational
link, or nexus, between the employee’s protected activity and the adverse
employment action.
If, after considering all of the relevant evidence, the General Counsel
has sustained his burden of proving each of these four elements by a
preponderance of the evidence, such proof warrants at least an inference
that the employee’s protected conduct was a motivating factor in the
adverse employment action and creates a rebuttable presumption that a
violation of the Act has occurred. Under Wright Line the burden then shifts
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. [Internal quotation
marks, citations, footnotes, and language not relevant to this case have
been omitted.]
See also the Board’s discussion of this quoted language and Member Schaumber’s additional
commentary in Frye Electric, Inc., 352 NLRB 345, fn. 2 (2008).
Applying this test, it is first necessary to determine whether Mason engaged in protected
union activities. On this point, the evidence is overwhelming. Mason’s coworkers considered
him to be the person who “started” the Union’s campaign, was its “head organizer,” and “voice
of the union in the company.” (Tr. 242, 78, & 147.) Indeed, Mason’s efforts were responsible
for obtaining as many as 20 signed authorization cards from other drivers. As counsel for the
Employer noted in his opening statement, “[t]he company certainly won’t deny that Mr. Mason,
_________________________
the customer.” (GC Br. at p. 35.)
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for example, was a supporter of the union.” (Tr. 353.) I readily find that Mason was a strong, if
not the strongest, supporter of the Union among the workforce.
At the next analytical step, I must determine whether the Employer had knowledge of
Mason’s union sympathies and activities at the time it took the adverse actions against him.
Mason testified that he did not disclose his activities to his employer. It is unlikely that the
Employer was aware of the full extent of his organizing efforts. Nevertheless, there can be no
question that the Employer had a thorough awareness of Mason’s support for the Union and of
his involvement in significant actions intended to assist the Union. The allegedly discriminatory
issuance of a written warning to Mason occurred just a bit more than two weeks after the
representation election. Mason had served as the Union’s observer during that election and
management knew of his participation in this prominent role. Similarly, Mason was discharged
months after both the election and his testimony as the sole employee witness on behalf of the
Union at the representation hearing.
Denise Forte readily admitted that, at the time of Mason’s discharge, she was aware that
he was a “supporter” of the Union. (Tr. 456.) By the same token, counsel for the Employer
acknowledged in his opening statement that, “I don’t think they’ll be any dispute that we knew
Mr. Mason was a supporter of the Union.” (Tr. 355.) The record demonstrates that the
Employer was well aware of Mason’s union sympathies. Beyond this, it is also undisputed that
management officials who took the disciplinary actions against him had personally witnessed his
participation in activities designed to bring the Union into the workplace as representative of the
drivers.
Resolution of the third analytical issue is also beyond dispute. There can be no doubt
that the decisions to issue a written warning to Mason and to discharge him from employment
constituted adverse actions taken against him. Thus, it is only at the next step that the battle
lines are truly drawn. The General Counsel asserts that the Employer’s officials harbored
unlawful animus against Mason arising from their knowledge about and disapproval of his
significant Union activities. The Employer disputes this contention, arguing that there was no
credible evidence of such unlawful animus.
In resolving this dispute, I am mindful that the Board requires a thoroughgoing and
comprehensive assessment of the evidence. As the Board has described, “motive may be
inferred from the total circumstances proved. Under certain circumstances 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), enf. 976 F. 2d 744 (11th Cir. 1992).
[Footnotes omitted.]
In this case, the General Counsel points to three broad categories of evidence as
establishing unlawful animus underlying the decisions to discipline Mason. Each category
involves actions and statements made by management officials during the Union’s organizing
campaign. The most serious type of such conduct consists of threats to discharge employees
or close the business in response to the organizing campaign. Second in order of gravity are
statements of the type prohibited by the Act because, while not rising to the level of threatening
the loss of employment, they nevertheless constitute intimidation because they consist of
threats of lesser sanctions, improper interrogations, solicitation of grievances, and promises of
benefits. Finally, the General Counsel contends that “arguably lawful statements which reflect
Respondent’s general antiunion sentiments” may be considered in evaluating the presence of
unlawful animus. (GC Br. at p. 12.)
I have previously determined that Operations Manager Nevels, a high ranking
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supervisor, made a series of statements of the type referred to by the General Counsel as
sufficient to establish unlawful animus as a motivating factor in the discipline meted out to
Mason. The most significant of these statements was Nevels’ threat to Adaska and Lopez that,
“voting in the union is not going to get you more money, it’s going to get you fired.” (Tr. 114.)
As the Board has explained in another case involving an employer’s warning of layoffs in the
event of a union electoral victory:
Threats to eliminate the employees’ source of livelihood
have a devastating and lingering effect on employees. An
inference may be drawn from the animus behind such
threats, which the discharge would gratify, that the animus
was the true reason for the discharge. [Citations omitted.]
Vico Products Co., 336 NLRB 583, fn. 16 (2001), enf. 333 F. 3d 198 (D.C. Cir. 2003). I find that
Nevels’ naked threat to Adaska and Lopez displayed precisely the sort of mindset that would
constitute the type of unlawful animus necessary to commit the discriminatory discharge of an
employee for his or her union activity. In this regard, I also note that the Board holds that
statements manifesting animus need not be directed against the specific employee who was
subsequently disciplined. As the Board put it, “[b]y threatening the group of employees with
shutdown and job loss because of their protected activity, [the employer] manifested its animus
toward all of them, including [the alleged discriminatee].” Ingramo Enterprise, Inc., 351 NLRB
1337, 1339 (2007), rev. denied 310 Fed. Appx. 452 (2d Cir. 2009).
While Nevels’ threat of discharge was not directed specifically toward Mason, his later
comment to Mason that he had “done started some shit,” was targeted at the very employee
who was subsequently disciplined. (Tr. 264.) The import of Nevels’ choice of language has
been noted by the Board. For example, in Lana Blackwell Trucking, LLC, 342 NLRB 1059, fn. 1
(2004), the Board observed that an employer’s statement that, although two employees were
her best drivers, they “start too much shit,” constituted evidence of antiunion animus. Similarly,
Nevels comment to Goodwin and Mason to the effect that the Employer had the drivers, “by the
balls,” is also a veiled threat directed at the same employee who was subsequently subject to
disciplinary action. (Tr. 206.)
The Board takes particular account of the significance of prior misconduct by an
employer directed at the same employee who is alleged to have been subjected to subsequent
acts of discriminatory discipline. In such circumstances, the Board has held that, “[t]he
inference that antiunion animus was a substantial or motivating factor in the Respondent’s
decision to discharge [the employee] can fairly be drawn because . . . [the employee] was the
specific target of two contemporaneous unfair labor practices.”23 Waste Management of
Arizona, Inc., 345 NLRB 1339, 1341 (2005). I conclude that Nevels’ statements directed
specifically toward Mason justify an inference that he bore animus against Mason to a degree
that would influence his disciplinary decisions regarding him.

23 I recognize that in this case the unfair labor practice allegations regarding Nevels’
statements were resolved through a settlement. Despite this, the Board holds that, “[t]he law is
well-settled that conduct that exhibits animus but that is not independently alleged to violate the
Act may be used to shed light on the motive for, or the underlying character of, other conduct
that is alleged to violate the Act.” [Citation omitted.] American Packaging Corp., 311 NLRB
482, fn. 1 (1993). See also Meritor Automotive, Inc., 328 NLRB 813 (1999), to the same effect.
This principle would certainly apply to conduct that was alleged to violate the Act but has since
been resolved through a settlement.
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While less compelling, I also find that other statements made by Nevels and Dixon are
indicative of antiunion animus. These include Nevels’ repeated promises to Duplessis that he
would “take care of” drivers’ problems regarding their lead supervisors. (Tr. 84.) They also
include Nevels’ warning to Lopez that his ability to grant him a pay raise would be precluded in
the event of a union victory in the election. Finally, statements from both Nevels and Dixon that
contained solicitation of employee grievances and promises to remedy such grievances also fall
within this category. As the Board has observed, a supervisor’s questioning of an employee “as
to what steps the Respondent might take in order to make the Union ‘go away’ shows antiunion
animus.” [Citation omitted.] Sears, Roebuck and Co., 337 NLRB 443, fn. 8 (2002).24
Based on the statements of a high level management official that constituted threats of
discharge, intimidation of the very employee who was subsequently disciplined, and other
misconduct that included solicitation of grievances and promises of benefits, the Employer has
manifested an attitude of unlawful animus directed toward the supporters of the Union generally
and Mason specifically. Having found that Mason engaged in protected activities, that the
Employer was aware of Mason’s union activities and sympathies and subjected him to adverse
disciplinary actions, and that the Employer possessed a state of mind consistent with a
willingness of retaliate against Mason for his protected activity, I conclude that the General
Counsel has met his initial burden under Wright Line.
At the final stage of the inquiry, I must evaluate the Employer’s proffered justifications
offered in support of the disciplinary actions taken against Mason. While conducting this
assessment, I am mindful of certain principles enunciated by the Board. Foremost among these
is the requirement that I avoid the temptation to determine the outcome based on my own belief
concerning the reasonableness of an employer’s behavior. Thus, the Board has cautioned:
Under Wright Line, an employer cannot simply present a
legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action
would have taken place even in the absence of protected
activity. Nor is a judge’s personal belief that the employer’s
legitimate reason was sufficient to warrant the action taken
. . . a substitute for evidence that the employer would have
relied on this reason alone.
Ingramo Enterprise, Inc., 351 NLRB 1337, fn. 10 (2007), rev. denied 310 Fed. Appx. 452 (2d
Cir. 2009).
On the other hand, the Board has also warned against any tendency to improperly
second guess the employer’s judgment. In a case involving the motives behind an employer’s
choice of which employees to select for a layoff, the Board observed:

24 Because I have found that the Employer’s patently unlawful conduct in making threats
and otherwise engaging in coercion and intimidation of employees mandates a finding of
unlawful animus, I need not address the more vexing issue of whether lawful statements
manifesting opposition to unions also constitute such evidence. I note, for example, that the
Board has been careful to observe that, “denigration of the Union is insufficient to support a
finding that the Respondent has violated the Act unless it is such as to threaten reprisals or
promise benefits.” [Internal quotation marks and citation omitted.] Children’s Center for
Behavioral Development, 347 NLRB 35, 36 (2006).
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We emphasize that it is not our objective to determine whether
the Respondent’s choice . . . was the correct decision or that
the Respondent used the best decision-making process. The
Respondent may make its layoff decision on any basis it chooses,
good, bad, or indifferent—as long as it is not an unlawful basis . . . .
The wisdom of the Respondent’s decision is immaterial. We are
concerned only with discerning the sincerity of the Respondent’s
contention that the decision was not motivated by union animus.
Children’s Services International, Inc., 347 NLRB 67, 70 (2006).
Several other principles bear mentioning. First, “it is to be remembered that Respondent
is required to establish its Wright Line defense only by a preponderance of the evidence. The
Respondent’s defense does not fail simply because not all the evidence supports it, or even
because some of the evidence tends to negate it.” [Footnote omitted.] Merillat Industries, Inc.,
307 NLRB 1301, 1303 (1992). Furthermore, in Lasell Junior College, 230 NLRB 1076 (1977), a
majority of the Board noted that it shared the dissent’s concern that the discharge of an
employee was suspicious, but added that “mere suspicion cannot substitute for proof of an
unfair labor practice.” [Citation omitted.] Finally, it must be recalled that this is a dual motive
case. In other words, while I agree with the General Counsel that Mason’s union activities and
sympathies were among the reasons he was disciplined, rather than ending the analysis, that
finding merely begins the proper inquiry into whether the Employer would have discharged him
regardless of his participation in those activities. See, Arlington Hotel Co., 278 NLRB 26, 26
(1986) (evidence compelled a conclusion that, although union activity was one reason for an
employee’s discharge, the employer would have reached the same result regardless).
It is first necessary to examine the Employer’s motivation for issuing a warning letter to
Mason on September 16, 2008. There is no factual dispute as to the precipitating events. The
Employer intended to conduct a safety meeting for drivers on the date in question. Such
meetings were held periodically and drivers were paid to attend. Mason, himself, acknowledged
the significance of such events when he was asked how often they occurred. He replied, “[n]ot
that often unless something serious has happened.” (Tr. 277.)
In advance of the meeting date, the Employer posted notices in very large print format
advising drivers that their attendance was mandatory. The notices also instructed those
employees who were unable to attend to notify management prior to the meeting. Finally, those
notices warned that a failure to either attend or provide advance notification would be treated as
conduct that fell below the Employer’s minimum standards.
There is no dispute that Mason neither attended the meeting nor provided advance
notice that he would be unable to attend. Indeed, he admitted that he missed the meeting
because he “overslept.” (Tr. 276.) Mason was issued a written warning arising from his failure
to attend the meeting or notify management in advance.
Although there is nothing particularly surprising about the issuance of a written warning
for an admitted unexcused absence from a mandatory, paid, safety meeting, the General
Counsel nevertheless contends that this discipline was both unlawful and part of a scheme to
build “its paper case” for Mason’s termination 5 months later. (GC Br., fn. 19.) In my view, such
speculation is entirely misplaced.
Apart from Mason’s lengthy pattern of other varied forms of job-related misconduct, he
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had a documented history of noncompliance with the Employer’s efforts to promote workplace
safety through periodic meetings with its drivers. On September 19, 2005, Mason was issued a
written warning for failure to attend a mandatory safety meeting regarding the topic of driving
under the influence of alcohol. In that warning he was advised in boldface type that, “All
drivers must attend mandatory meetings for safe driving.” (GC Exh. 8, p. 24.) He was
further cautioned that any subsequent violations of this policy, “may result in additional
disciplinary action leading up to and including potential termination of employment.” (GC Exh.
8, p. 24.)
Significantly, just months before the incident currently under consideration, Mason chose
to engage in a repeat violation of the safety meeting policies. While there is some dispute as to
the precise nature of Mason’s behavior, there is no dispute that he intentionally failed to comply
with the safety policy involved. The incident occurred on June 17, 2008. Prior to that date,
Mason had been involved in a job-related accident in which he suffered injury. Denise Forte
provided uncontroverted testimony that the Employer’s policy in such situations was to hold a
mandatory, paid, safety meeting for the drivers. At the meeting, the injured employee would
describe the incident to his or her colleagues. Forte explained that the purpose for this was to,
open up the discussion for anyone who is at the meeting to
ask questions to better understand what happened so that
we can put . . . maybe something in place so that we can
prevent that incident from happening again.
(Tr. 440.)
According to Forte, she advised Mason about the meeting in advance and informed him
that his attendance was mandatory. Mason told her that he would not attend. Mason did fail to
attend the safety meeting that had been called to discuss his accident. Afterward, Forte
confronted him about his absence, testifying about their conversation as follows:
I say, you know, you were supposed to do this and you didn’t. He
[Mason] says I told you I wasn’t going to do that. And I said, well,
Joe, I’m trying to help you out here. This is mandatory and if
management tells you to do something, we really need you to
cooperate and do that for us. Joe just gave me a dirty look and
walked away, completely disregarding the conversation I had with
him.
(Tr. 444.) Forte’s testimony is corroborated by a memorandum that she wrote for inclusion in
Mason’s personnel file. In that document, she reported that Mason told her that, “he wasn’t
going to a meeting to present anything.” (R. Exh. 7.) Forte testified that she considered her
post meeting reprimand of Mason to constitute a verbal warning.
In his own testimony, Mason disputed the contention that he failed to appear at the
meeting. He testified that he was present. Nevertheless, he reported that he did refuse to
discuss his accident during the meeting. He asserted that he was not required to do so
because he had previously provided a written account of the event in an incident report. As a
result, he contended that his oral explanation of the event was not required, “[b]ecause I filled
out the form. They have it in black and white what took place.” (Tr. 297.)
There is simply no need for me to resolve this conflict in testimony. Under either
version, it is evident that Mason failed to comply with the Employer’s safety policies. Whether
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he skipped the meeting entirely or simply refused to participate while present, the result is the
same.25
From this account, it is clear that Mason’s warning letter in September represented the
Employer’s response to Mason’s third documented violation of the same important safety policy.
Having been given a verbal warning for this type of offense just a few months previously, the
Employer’s decision to impose a written warning seems entirely logical, if not somewhat
lenient.26 Given the circumstances, I conclude that the Employer’s contention that the warning
would have been issued regardless of Mason’s prounion attitude and activities is credible.
Mason chose to repeatedly disobey a safety policy designed to meet important and legitimate
goals related to his employment as a driver.27 I conclude that the Employer’s response to this
admitted misconduct would have been the same regardless of Mason’s union activities and
sympathies. As a consequence, I find that the Employer has met its burden of establishing that
its conduct was in compliance with the requirements of the Act.
Turning now to the facts involved in Mason’s termination, it is apparent that both sides
agree that the Employer’s stated reason for Mason’s discharge was his commission of the
offense of insubordination. Despite this apparent agreement, in actuality the parties disagree as
to the precise nature of such insubordination. In my view, the disagreement on this point is of
critical importance.
It will be recalled that there is no dispute between Mason and Gessner regarding the
facts. On January 23, 2009, pursuant to a directive from his own supervisor, Gessner planned
to meet with Mason. His purpose was two-fold; to obtain an explanation for his supervisor as to
why Mason had spent considerable time on duty at the facility after returning from his route and
to discuss Mason’s pattern of deficient performance in this regard as documented on his

25 If fact, it could be claimed that Mason’s own version of what happened represents a more
severe form of misconduct that Forte’s account. If Mason is correct, then he not only violated
the policy, but chose to do so in a very public and confrontational manner that would have been
likely to undermine the policy in the eyes of his fellow drivers.
26 Indeed, as will become apparent in the discussion of Mason’s discharge, the General
Counsel’s position is paradoxical. On the one hand, he complains that Mason was wrongfully
issued a written warning. Later on, his contention will be that Mason’s discharge must have
been unlawful because it was peculiarly harsh in light of the Employer’s established pattern of
treating him leniently when he misbehaved. In my view, the issuance of a mere written warning
for a third violation of the safety policy makes a stronger argument for that viewpoint than for a
contention that the warning was unduly harsh, pretextual, and unlawfully motivated.
27 Counsel for the General Counsel asserts an alternative view based on a large amount of
speculation. He draws significance from the fact that the meeting sign-in sheet shows that a
considerable number of drivers were not signed in as being present. He adds that the sheet did
not contain a list of excused drivers, while a sign-in sheet from an earlier meeting did contain
such a list. From this, he strains to conclude that other drivers engaged in unexcused failures to
attend the meeting and were not punished. In the first place, this theory requires too much
guesswork. There was no testimony whatsoever about any established policy regarding the
listing of excused absentees. Nor is there any evidence as to whether any unexcused drivers
had prior disciplinary histories for violating the safety policy. Finally, it is noteworthy that two
other drivers were issued identical written warnings for failing to attend this meeting. The
General Counsel claims that they were targeted to mask the effort to build a case against
Mason. Again, this is pure conjecture. It is belied by Mason’s admitted violation of the safety
policy on the heels of a previous, documented violation just a few months earlier.
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minimum standards performance record for the month of January. It is undisputed that the
Employer’s policy required that discussions of performance issues between a supervisor and
driver be conducted in private and with another supervisor in attendance as a witness.
When Gessner approached Mason, he was in a public area along with several other
drivers. Gessner asked Mason to accompany him to the office. He flatly refused. As Mason
testified, “I told him no, bring whatever you want to talk to me about, you can bring it out here.”
(Tr. 304.) Faced with this refusal, Gessner retreated. A short while later, he returned and the
two men had a public discussion about the reasons for Mason having remained on duty at the
facility after finishing his route. It is undisputed that Mason never consented to meet with
Gessner and Dixon privately so that his compliance with the performance standards could be
addressed. Instead, he went home.
At trial, Mason was given an opportunity to explain his behavior. His explanation reveals
critical information about the precise nature of his insubordination and permits full assessment
of the gravity of his offense. In his testimony, Mason directly and clearly asserted that he
refused to meet privately with Gessner because he believed that Gessner lacked the
supervisory authority to require such a meeting. He further asserted his view that attendance at
such private meetings to discuss compliance with the Employer’s performance standards was
not a required job-related activity.
Counsel for the General Counsel bends over backward to minimize the nature of
Mason’s act of defiance. He characterizes it as follows:
Because Mason was not insubordinate with respect to refusing to
discuss his [time spent at the facility after his shift], the only possible
hook on which Respondent can hang its insubordination claim was
Mason’s refusal to talk to Gessner in his office. Mason admitted to
refusing to do so. Nonetheless, Gessner himself again defeats the
contention that this constituted insubordination. Gessner testified
that the only issues he needed to discuss in private were performance
issues of drivers, as reflected in the minimum performance standards,
and he did not consider the discussion about Mason’s timecard report
to be a performance issue. Robert Forte had not instructed Gessner
to speak to Mason about minimum performance standards; he only
asked that Gessner find out what Mason had been doing for that hour
period. Thus, the conversation between Gessner and Mason did not
need to be in the privacy of Gessner’s office. [Internal citations to the
record omitted.]
(GC Br. at pp. 19—20.)
What is particularly striking about this formulation is that it consists of an unapologetic
effort to substitute counsel’s opinion of how to manage the Employer’s workforce in place of the
Employer’s own management official’s view. Thus, counsel opines that there was no need for
Gessner to discuss Mason’s compliance with performance standards, nor was there any need
to conduct any discussions with Mason in the privacy of Gessner’s office.
In my opinion, this analysis transgresses the fundamental limitations on the Board’s
statutory authority and invades the prerogatives vested in private parties under our system of
free enterprise. As the Board has explained,
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An employer has the right to determine when discipline is
warranted and in what form. It is well established that the
Board cannot substitute its judgment for that of the employer
and decide what constitutes appropriate discipline. The
Board’s role is only to evaluate whether the reasons the
employer proffered for the discipline were the actual reasons
or mere pretexts. [Citations and internal punctuation omitted.]
Cast-Matic Corp., 350 NLRB 1349, 1358—1359 (2007).28
Apart from attempting to interpose his own judgment in place of that of the Employer’s
manager, counsel’s formulation misunderstands the true nature of Mason’s misconduct. When
that misconduct is properly examined, the logic of the Employer’s behavior is clearly revealed.
The Company’s rationale for the decision to terminate Mason’s employment was well
summarized by its human resources manager, Denise Forte. As she explained,
When Joe [Mason] made it very obvious that Steve [Gessner]
was not, you know, his supervisor and he did not have to have
a discussion with a supervisor, it really left the company in a bad
position. You know, we can’t really help an employee who isn’t
willing to recognize a supervisor and have conversations with him.
(Tr. 454.)
As just explained, my task is not to judge the wisdom of this rationale, but simply to
determine its sincerity and credibility as representing the actual reason for Mason’s termination.
I do not find it difficult to credit the Employer’s rationale. Mason admittedly refused to recognize
the authority of his immediate supervisor. This takes on increased significance when it is
recalled that this particular level of supervisor was the only type of management official on duty
during most of Mason’s work shifts. Beyond this, Mason expressed his defiance of duly
authorized supervisory authority in the presence of his coworkers and adhered to his stubborn
insistence on determining who had the authority to require his attendance at meetings when
given an opportunity to back down in order to mitigate any possible disciplinary consequence.
The situation recalls the Board’s admonition in a slightly different context that employees cannot
“decid[e] for themselves which rules to follow and which to ignore.” Bird Engineering, 270 NLRB
1415, at fn. 3 (1984) (discharge for insubordination upheld where employees chose to ignore a
newly imposed work rule).29

28 The Fifth Circuit has made the same point perhaps even more forcefully, observing that,
“[i]n passing the Act, Congress never intended to authorize the Board to question the
reasonableness of any managerial decision nor to substitute its opinion for that of an employer
in the management of a company or business, whether the decision of the employer is
reasonable or unreasonable, too harsh or too lenient. The Board has no authority to sit in
judgment on managerial decisions.” NLRB v. Florida Steel Corp., 586 F. 2d 436, 444—445 (5th
Cir. 1978). Significantly, the Board itself has recently cited this quotation with approval in
Neptco, Inc., 346 NLRB 18, fn. 16 (2005).
29 For an example of the Board’s assessment of conduct quite similar to Mason’s, see
Waste Management of Arizona, supra, p. 1341. In that case, the employer’s Wright Line
defense was upheld where an employee was discharged for a loud, public, and profane refusal
to meet with a supervisor in private. As the Board put it, “[h]is conduct was insubordinate, it
disrupted the workplace, and undermined [the supervisor’s] authority.” While Mason refrained
Continued
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Based on the credible explanation provided by the Employer and the inherent
probabilities involved in assessing the severe challenge Mason’s blatant insubordination
presented to management’s authority to run the business, I conclude that Mason was
discharged for the predominant reason that his conduct constituted intolerable insubordination.
I accept counsel for the Employer’s characterization of his client’s rationale as presented in his
opening statement as follows:
These lead supervisors are the only supervisors at night and
with Mr. Mason saying [“]I don’t recognize him, I don’t have to
meet with him,[”] what was the company supposed to do at that
point, say fine, go out there, you can go back to work. You don’t
have to recognize your supervisors anymore. And so we feel that
Mr. Mason really put the company in a very difficult position and
that [the] company had no choice but to discharge him.
(Tr. 362.)
The Employer’s contention that Mason would have been terminated for this misconduct
regardless of his support for, and activities on behalf of, the Union is supported by the weight of
the evidence and by the logic of the situation. I reject the General Counsel’s attempt to
characterize this rationale as a pretext.
In addition to alleging that Mason’s discharge was grounded in pretext, counsel for the
General Counsel cites several other factors that he contends serve to demonstrate that the
Employer’s conduct was unlawful. This list includes, “disparate treatment, timing, other unfair
labor practices, and failure to investigate properly.” (GC Br. at p. 28.) I have already concluded
that he is correct in his assessment that the commission of unfair labor practices by
management officials is probative of a conclusion that animus against Mason’s union
sympathies formed some of the rationale for his discharge. It is for this reason that I have
determined that the General Counsel has met his initial burden of proof.
While I have found the presence of unlawful animus, I reject counsel for the General
Counsel’s additional arguments in support of an ultimate determination that Mason’s discharge
was illegal. Turning first to the matter of the timing of the disciplinary actions at issue, it is true
that this factor may, in appropriate circumstances, be powerful circumstantial evidence of
improper motivation. See, Davey Roofing, Inc., 341 NLRB 222, 223 (2004) (timing of lay offs on
the same day employer received union petition signed by the laid off employees supports
finding of unlawful motivation). Mason’s written warning came just weeks after his participation
in the election as the Union’s observer. On the other hand, his discharge came fully 4 months
after his testimony as the Union’s sole witness at the representation hearing.30
In my view, the critical factor that must be analyzed when assessing the timing of events
in this case is the full context. It is not sufficient to simply measure the time between Mason’s
significant union activities and the disciplinary actions. Rather, it is essential to also factor in the
timing between Mason’s admitted misconduct and the imposition of the discipline. As the Board
_________________________
from profanity, his conduct was otherwise of similar gravity.
30 Compare with Consolidated Biscuit Co., 346 NLRB 1175, 1179 (2006), enf. 301 Fed.
Appx. 411 (6th Cir. 2008) (timing of discharge that took place five months after employee last
engaged in protected activity “does not support an inference of unlawful motive”).
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has explained:
While the employees’ union activities and the discharges did
occur within a relatively brief time period, so, too, was there a
close proximity in time between the employees’ blatant misconduct
and the Respondent’s decision to terminate them. Under these
circumstances, the factor of timing is too weak a foundation upon
which to base a finding of pretext.
Syracuse Scenery & State Lighting Co., 342 NLRB 672, 675 (2004). See also, Frierson
Building Supply Co., 328 NLRB 1023, 1024 (1999) (where unsatisfactory work performance and
union activity were contemporaneous, the timing of employee’s discharge was nothing more
than a “coincidence”).
In this case, Mason determined the timing of his second violation of the safety policy in a
period of months and also chose when to assert his refusal to acknowledge Gessner as his
supervisor. I cannot conclude that the chronology of events in this case supports the General
Counsel’s position in any manner.
The General Counsel next cites disparate treatment of Mason’s conduct when compared
to other instances of employee misbehavior. Without doubt, this type of circumstantial evidence
may carry weight in establishing pretext. See, Publix Super Markets, Inc., 437 NLRB 1434,
1439 (2006) (“atypically strict treatment” of employee’s misconduct supports finding of
discriminatory disparate treatment).
In seeking to establish that the Employer in this case engaged in this type of misconduct,
the General Counsel observes that, “Respondent failed to establish that it discharged any
employee for insubordination of the type it claimed Mason engaged in.” (GC Br., at p. 27.)
[Emphasis in the original.] While this assertion is correct, it takes more to raise an inference of
unlawful motivation. As the Board has noted when discussing unusual fact patterns, “it is rare to
find cases of previous discipline that are ‘on all fours’ with the case in question, and the
Respondent should not be faulted for being unable to show that it had discharged an employee
[whose circumstances were identical to those at issue].” Merillat Industries, 307 NLRB 1301,
1303 (1992). This observation is particularly apt in reference to the case before me. Mason’s
degree of insubordination was extreme. He refused to acknowledge the authority of his
immediate supervisor. His position in this regard stood in sharp contrast to the testimony of all
of the other employee witnesses, each of whom did not hesitate to agree that the driver
supervisors were their immediate superiors. Among the employee witnesses who testified that
the driver supervisors were their authorized superiors were three of Mason’s fellow members of
the Union’s organizing committee, Duplessis, Goodwin, and Adaska. Because Mason’s degree
of insubordination was severe, persistent, and unprecedented, I do not find that the Employer’s
inability to cite consistent imposition of discipline for this offense to be probative of unlawful
motivation.
The General Counsel also argues that disparate treatment may be established by the
Employer’s actual history of disciplining employees for other examples of insubordination.
There is no doubt that the Employer’s Code of Conduct and Disciplinary Policy prohibits this sort
of misconduct by employees. It lists this offense as the 3rd of 16 enumerated types of conduct
that will result in disciplinary action. Thus, “[i]nsubordination, including the refusal or failure to
perform work as assigned,” subjects the offender to “disciplinary action up to and including
termination.” (R. Exh. 2, pp. 1 & 2.) [Boldface in the original.] As the General Counsel notes,
employees have been subjected to discipline for violating this rule. While the specific examples
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cited by the General Counsel did not result in termination, examination of each one reveals that
they were qualitatively distinct from Mason’s behavior.
In the first instance, employee John Morris was suspended for cursing at his supervisor
and refusing to cease the reloading of his truck. The disciplinary report does not suggest that
Morris was asserting that his supervisor lacked authority to give him directions. While I agree
that his insubordination was serious, it stopped well short of a blanket denial of the supervisor’s
authority. Furthermore, the Employer demonstrated its intolerance of the behavior by imposing
an immediate suspension and a subsequent written warning. (GC Exh. 10.)31 The second
example offered by the General Counsel involved employee Rich Marcin. When a driver
supervisor asked him if his truck was clean, Marcin responded with a profanity. He was issued
a written warning, explaining that “[t]his type of behavior is considered insubordination and will
not be tolerated.” (GC Exh. 11.) Once again, this is an example of a situational outburst and
contained no blanket suggestion that the employee refused to recognize his supervisor’s
authority. Because these examples involved significantly less severe forms of insubordination
that still resulted in formal discipline, they do not suggest that Mason’s termination for a blanket
refusal to acknowledge his supervisor’s authority was a comparatively stricter sanction to any
inappropriate degree.
The General Counsel cites one further example of the Employer’s treatment of instances
of insubordination. In my opinion, that example actually provides strong support of the
Employer’s defense in this case. Driver Williams testified that he had an exchange with
Supervisor Gessner that in some respects was similar to the one that prompted Mason’s
termination. He reported that Gessner approached him while he was completing paperwork
after a shift. Gessner’s purpose was to direct Williams to report to his office to discuss his
minimum performance standards. Williams testified that he told Gessner he would go into the
office after he completed his paperwork. In response, Gessner returned to his office. While all
of this is similar to the incident that led to Mason’s discharge, there is a highly illuminating
difference. Williams testified that, after completing his paperwork, he went into Gessner’s office
and, “[w]e were in there and we just discussed it [the minimum standards].” (Tr. 145.) It is
undoubtedly true that Williams was not subjected to any form of discipline for his conduct, while
Mason was discharged for his. The supervisory responses are not remotely comparable for the
simple reason that the two employees’ conduct was not remotely comparable. Seeking a brief
delay in attending a private counseling session in order to complete a work task cannot be
compared to an obstinate refusal to attend such a session at all due to an asserted belief that
the supervisor lacks authority to require such attendance.
The General Counsel next contends that the Employer’s failure to conduct a proper
investigation prior to discharging Mason is evidence of improper motivation. Once again, he is
correct in noting that the Board will not hesitate to infer unlawful motivation from an employer’s
rush to judgment. For example, in Sociedad Espanola de Auxillo y Beneficia de P.R., 342
NLRB 458, 460 (2004), enf. 414 F. 3d 158 (1st Cir. 2005), the Board found evidence of unlawful
intent due to the employer’s conduct in “simply accept[ing] the complaints as true, without
offering . . . an opportunity to refute them.” Similarly, in Rood Trucking Co., 342 NLRB 895, 900
(2004), the Board found the refusal to delay discipline in order to “seek an explanation” from the

31 During the trial, counsel for the General Counsel sought admission of GC Exh. 10.
Counsel for the Employer requested an opportunity to verify that it was an authentic document
generated by his client. I provisionally admitted it and directed counsel to address any concerns
about authenticity in his post trial brief. As counsel has not raised any such concerns in his
brief, I now admit the exhibit unconditionally.
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employee constituted “hasty action” that was “indicative of a discriminatory intent.”
There are several problems involved in the General Counsel’s attempt to invoke this
doctrine in the present case. In the first instance, there is no factual dispute regarding the event
that led to Mason’s discharge. Both Mason and Gessner expressed agreement about the
nature of the conversation between them and Mason’s subsequent conduct. Their consistent
testimony established that Gessner directed Mason to report to his office for a private meeting
to discuss Mason’s adherence to the Company’s minimum performance standards. Mason
refused this directive, instead choosing to punch out and go home. In these circumstances,
there was simply nothing to investigate.
It is true that Mason testified that, at the meeting held on the following workday, his
supervisors simply informed him of his discharge. For reasons already discussed, I have
rejected this account of the content of that meeting. Instead, I have found that the supervisors
gave Mason an opportunity to recant his rejection of Gessner’s supervisory authority. It was
only after Mason declined to do so that he was terminated from employment. This conduct
serves to bolster the Employer’s claim that it was sincerely motivated to address Mason’s
insubordination, not his union activity. In Boardwalk Regency Corp., 344 NLRB 984, 998—999
(2005), rev. denied 196 Fed. Appx. 59 (3rd Cir. 2006), the Board adopted my conclusion that
the employer’s thoroughness in offering an opportunity for the employee to explain his version
of events supported the lawfulness of the subsequent disciplinary action. In this case, the
Employer’s decision to afford Mason an opportunity to affirm his acceptance of his supervisor’s
authority also supports a finding of lack of improper motivation.
One remaining contention needs to be addressed. In an effort to make a virtue out of a
necessity, counsel for the General Counsel argues that Mason’s long and discouraging history
of job-related misconduct supports an inference that the Employer’s decision to finally terminate
his employment stemmed from animus against his union sympathies and activities rather than
his latest instance of misbehavior. Thus, in his opening statement, counsel for the General
Counsel took note of Mason’s “variety of verbal and written discipline from Respondent
throughout his ten-year career” and argued that, after Mason engaged in protected activity,
“conduct that the Respondent had tolerated for years suddenly became a terminable offense.”
(Tr. 40.)
At the outset, I recognize that, in appropriate circumstances, the Board will adopt this
line of reasoning.32 Perhaps the classic case was one that occurred during the height of World
War II. The facts are so striking that one cannot help but imagine that they were invented by a
law professor seeking to enliven an examination question offered to a class of bored labor law

32 The Board’s adoption of this analytical tool is not without its critics, notably including the
Seventh Circuit. In Vulcan Basement Waterproofing of Illinois, Inc. v. NLRB, 219 F. 3d 677,
689-690 (7th Cir. 2000), that Court observed that, “[a]n employer who has tolerated bad
behavior in the past is not forced to continue to do so, let along required to tolerate increasingly
bad behavior. . . . The Board applied in effect a presumption that the discharge of a union
adherent during an organizing campaign is motivated by hostility to the union, a presumption
that can be rebutted only by showing that the discharge was for good cause—and maybe not
even then. . . . Evidently, if a worker is a good worker he cannot be fired if he is a union
adherent because the company will not be able to show good cause for firing him, and if he is a
bad worker . . . he cannot be fired either, for since he was not fired previously this shows that
the company does not fire workers because they are bad workers but only because they are
union adherents.” [Citation and internal punctuation omitted. Emphasis in the original.]
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students. That venerable case, Edward G. Budd Mfg. Co. v. NLRB, 138 F. 2d 86 (3rd Cir.
1943), cert. denied 321 U.S. 778 (1944), involved the discharge of an employee named
Weigand. As the Court of Appeals put it while affirming the Board’s finding of a discriminatory
discharge, “[i]f ever a workman deserved summary discharge it was he.” 138 F. 2d at 90.
Weigand came to work drunk, attended when he felt like it, and left when he pleased. In this
regard, the Court noted that, “a foreman on one occasion was agreeably surprised to find
Weigand at work and commented upon it. Weigand amiably stated that he was enjoying it.”
138 F. 2d at 90. As to his performance when on the job, it was best reflected in this snippet of
testimony:
Weigand stated that he was carried on the payroll as a “rigger.”
He was asked what was a rigger. He replied: “I don’t know; I
am not a rigger.”
138 F. 2d at fn. 6. Perhaps best of all, using the carefully circumscribed language appropriate in
those more decorous times, the Court noted that Weigand brought a woman known as the
“Duchess” to the rear of the plant and “introduced” her to his fellow employees, one of whom
returned to work so drunk that he passed out in a conference room. 138 F. 2d at 90.
Not surprisingly, Weigand was eventually discharged by the employer.33 Unfortunately
for that employer, Weigand’s discharge followed on the heels of his decision to support the CIO.
Indeed, he was fired on the day after he was observed by management while conversing with
the union’s organizer. At trial, the company defended its conduct by arguing that “Weigand was
discharged because of cumulative grievances against him.” 138 F. 2d at 90. Both the Board
and the Court rejected this defense, noting that on four separate occasions Weigand had been
awarded pay raises “at times when other employees in the plant did not receive wage
increases.” 138 F. 2d at 90. As the Court stated,
an employer may discharge an employee for a good reason,
a poor reason, or no reason at all so long as the provisions of
the National Labor Relations Act are not violated. . . . But it is
certainly too much a strain on our credibility to assert, as does
the petitioner, that Weigand was discharged for an accumulation
of offenses. We think he was discharged because his work on
behalf of the CIO had become known to the plant manager. That
ended his sinecure at the Budd plant.
138 F. 2d at 91.
In the years since Weigand’s victory in court, the Board continues to employ the type of
analysis endorsed in his case. Counsel for the General Counsel cites five such precedents
which he contends support application of this doctrine to the case before me. I will address
each in turn.34

33 I cannot help but observe that Weigand’s tale demonstrates that not everyone alive during
the War deserved to be called a member of “The Greatest Generation.”
34 To begin with, it is clear that Mason’s discharge is readily distinguishable from Weigand’s.
Mason’s personnel file is filled with documentation of his misconduct and the Employer’s formal
disapproval of that behavior and repeated warnings that future misconduct may result in
termination. More importantly, the Employer in this case does not contend that Mason was
discharged due to an accumulation of past offenses. Mason’s insubordination toward Gessner
Continued
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In the first cited case, Greenfield Die & Mfg. Corp., 327 NLRB 237 (1998), the employer
contended that the discharge was premised on the employee’s refusal to perform a work
assignment after having been previously warned about similar misconduct. The case is readily
distinguishable for at least two reasons. In the first place, the employee’s actual behavior
mirrored that of driver Williams in this case, not that of Mason. In other words, upon being
directed by his supervisor to pick up some trash, the employee told his supervisor that he would
pick it up after he completed another work task. When he returned to get the trash, he found
that it had already been removed by someone else. The Board recognized that the trial judge
had specifically found that the employee had not refused the assigned task. In addition, the
Board noted that the employer contended that the discharge was premised on a progressive
discipline plan that took note of a prior incident of insubordination by the employee.
Significantly, the Board reported that no record of the prior discipline was admitted into evidence
and observed that, “[w]e cannot assist the Respondent in carrying its burden of establishing its
Wright Line defense by drawing inferences in its favor concerning documents of its own that it
fails, without explanation, to produce.” 327 NLRB at 239. By contrast, there is no dispute in this
case that Mason committed the infraction that is asserted to have led to his discharge.
Similarly, there is no contention that Mason did not violate the safety policy that resulted in his
warning notice and the Employer most certainly did produce documentary evidence regarding
past discipline for violations of the same policy.
In the next case cited by counsel for the General Counsel, the Board adopted the trial
judge’s finding that an employee had been discharged for union activity despite the employer’s
contention that the termination resulted from a pattern of 15 to 20 instances of misconduct.
Although the employer contended that the errant employee had been given verbal counseling
after each incident, the judge noted that the employee denied this and “no documentary
evidence was produced.” Tres Estrellas de Oro, 329 NLRB 50, fn. 17 (1999). By contrast, the
Employer in this case produced careful documentation of its persistent efforts to discipline
Mason. More importantly, it must be stressed that Mason’s termination was not the product of
an accumulation of offenses. I am persuaded that it resulted from the Employer’s unwillingness
to tolerate the blatant insubordination engaged in by Mason immediately prior to his termination.
Similarly, in PVMI Associates, Inc., 328 NLRB 1141 (1999), the employee was
discharged based on an alleged pattern of misconduct. The Board adopted the judge’s finding
that the discharge was unlawful since, “[b]y Respondent’s own contention, until the time [the
employee] made his union sentiments known his work had been, at least, satisfactory for almost
a year and suddenly it became unsatisfactory.” 328 NLRB at 1153. Once again, I must stress
that Mason’s discharge was a direct response to his blatant insubordination in refusing to
acknowledge his supervisor’s authority. It was not the supposed culmination of an accumulation
of lesser offenses. By contrast, in One Stop Immigration and Education Center, Inc., 330 NLRB
413 (1999), enf. 25 Fed. Appx. 524 (9th Cir. 2001), the employee was discharged for one
specific act of alleged misconduct. In that sense the case is indeed similar to the one before
me. However, the crucial distinction is that the trial judge specifically found that the employer
had failed to prove that the specific instance of misconduct actually occurred. Of course, this
represents an entirely different circumstance from the situation before me. There is simply no
dispute that Mason did flatly deny the authority of his immediate supervisor. Indeed, he
continued to do so in his trial testimony.
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was not alleged to be a straw that broke the camel’s back. Instead, it was credibly shown to be
an independent incident of insubordination of such gravity as to be intolerable by his otherwise
forgiving employer. It is that defense that I have found entirely reasonable and credible.
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The next precedent involves a classic example of disparate treatment meted out to
similarly situated offenders. Thus, in Grand Central Partnership, 327 NLRB 966 (1999), the
employer’s workforce included many individuals with troubled backgrounds. The judge noted
that “verbal threats are commonplace occurrences at Respondent’s facility.” 327 NLRB at 975.
The evidence established that, typically, such incidents were resolved by counseling and
“persuad[ing] the employees to shake hands and forget about it.” 327 NLRB at 975. In sharp
contrast, an employee, who had testified on behalf of the union 2 days earlier, was discharged
for engaging in the same type of conduct that was routinely tolerated. Once again, this is clearly
distinct from Mason’s circumstances since his blanket assertion of unwillingness to recognize
supervisory authority was unprecedented and severe.
To summarize, I have carefully considered the application of the Board’s longstanding
analytical principle that an abrupt change from tolerance to intolerance of an employee’s course
of conduct that takes place after the employer becomes aware of union activity supports a
finding of unlawful discrimination. In my view, it is consistent with the Board’s intentions that
fact-finders should take care not to apply this doctrine mechanically. Certainly, the Board would
not wish the use of this analytical tool to be applied carelessly lest it send a message to
employers to refrain from tolerance and compassion in the exercise of their disciplinary
authority. I find that the Employer in this case engaged in a longstanding policy of addressing
Mason’s disciplinary infractions with sensitivity and respect for his length of service. While the
Company’s managers refrained from imposing severe discipline, they consistently documented
their disapproval of his episodes of misconduct and provided clear warnings to him of the
potential consequences of recidivist behavior. It was only when Mason chose to escalate his
defiance and opposition to management by drawing a proverbial line in the sand that
management terminated his employment. Even then, he was offered a final opportunity to
recant, an offer that he obstinately rejected. At trial, he remained steadfast in his idiosyncratic
view that his immediate supervisor was not duly authorized to direct his activities. I conclude
that it was this defiant stance that was the proximate cause of his discharge, not his employer’s
disapproval of the union activities that he had been involved with during the organizing
campaign.
At the final step of the Wright Line analysis in this case, I find that the predominant,
actual cause of Mason’s discharge was his blanket refusal to acknowledge the authority of his
immediate supervisor, the only management official routinely on the premises during his work
shifts. Mason’s position in this regard presented his employer with an intolerable dilemma and
was the preeminent and proximate cause of the decision to terminate his employment. As a
consequence, the General Counsel has failed to meet his burden of establishing a violation of
the Act.
Conclusion of Law
The Employer did not violate the Act in the manner alleged by the General Counsel in
the portions of the consolidated amended complaint dated April 24, 2009, that were not
previously resolved by settlement among the parties or withdrawn during the course of the trial.
On these findings of fact and this conclusion of law and on the entire record, I issue the
following recommended35

35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
Continued
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ORDER
The complaint is dismissed.
Dated, Washington, D.C., October 23, 2009.
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Paul Buxbaum
Administrative Law Judge

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102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.