Lamar Advertising of Hartford

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 261 (N.L.R.B. 2004)

LAMAR ADVERTISING OF HARTFORD
343 NLRB No. 40
261
Lamar Central Outdoor d/b/a Lamar Advertising of
Hartford and Gary Crump. Case 34–CA–10254
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On July 7, 2003, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions in
part and to reverse in part, as explained below.2
A. Issues
The judge recommended that the complaint be dis-
missed in its entirety. The General Counsel states in his
brief in support of exceptions that while he disagrees
with the judge’s recommended dismissal of the com-
plaint in its entirety, he is “only appealing three aspects
of the judge’s decision”:
1. The judge’s recommended dismissal of the al-
legation that the Respondent violated Section 8(a)(1)
of the Act by threatening Charging Party Gary
Crump with discharge on October 2, [2002,3] in the
course of an investigatory interview conducted by
the Respondent’s attorney, Clifford Nelson;
2. The judge’s failure to find that the Respondent
violated Section 8(a)(1) by threatening Crump with
discharge on October 3 in a meeting with the Re-
spondent’s Vice President Steve Hebert and Sales
Manager Jeff Burton; and
3. The judge’s failure to find that the Respondent
violated Section 8(a)(1) and (4) by discharging
Crump on October 3.
B. Decision on Issues
We adopt the judge’s recommended dismissals of the
alleged 8(a)(1) threat of discharge by the Respondent’s
attorney on October 2 and the alleged 8(a)(1) and (4)

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall provide a new Order to reflect the majority findings set
forth herein.
3 All dates are 2002 unless otherwise specified.
discharge on October 3 (items 1 and 3, above). We re-
verse the judge’s failure to find an 8(a)(1) threat of dis-
charge on October 3 (item 2, above).
C. Factual Background
The Respondent operates an outdoor advertisement
concern, with an office serving the Hartford, Connecticut
area. Steve Hebert is the Respondent’s vice-president
and general manager in charge of the Hartford office.
Jeff Burton is the sales manager responsible for a staff of
about eight account executives. Gary Crump, the Charg-
ing Party, worked for the Respondent as an account ex-
ecutive from December 13, 2000, until October 3, 2002.
As an account executive, Crump sold billboard advertis-
ing space, serviced existing clients, and sought new cli-
ents. As discussed more fully below, in September and
early October 2002, the Respondent removed Crump
from two major accounts, Sam’s Outdoor Outfitters
(Sam’s) and Cracker Barrel Restaurants, and on October
3, the Respondent terminated Crump.4
1. The Sam’s account
Problems with the Sam’s account began in March
when the artwork for Sam’s billboard was repeatedly
produced incorrectly. After several failed attempts to get
the artwork as the client wanted it, Sam’s wrote several
letters to the Respondent asserting that under the circum-
stances it did not wish to pay for the billboard. In its
final letter, dated September 13, it stated: “We suggest
some person in Baton Rouge get off their duff and call
Mr. Gary Crump, your representative in Hartford Conn.
for any further information and clarification.”
In mid-September, Hebert and Burton arranged to
meet with Sam’s representatives in an effort to resolve
the dispute, persuade the client to pay what was assert-
edly owed on the account, and retain the client’s busi-
ness. Hebert asked Crump before the meeting if there
was anything he should know. Hebert testified that
Crump did not provide details about Sam’s complaints
and that he and Burton were subsequently “ambushed”
by the quantity and specificity of the problems the Sam’s
representatives cited. Hebert testified that he decided to
take the account away from Crump on the trip back to
the office. The Respondent sometimes took such a
“clean slate” approach with difficult clients, by removing
the account executive and assigning a new one to the

4 The complaint alleges that the removal of the Sam’s Outdoor Out-
fitters account from Crump violated Sec. 8(a)(1) and (4). The judge
recommended dismissal of this allegation. Although the General Coun-
sel filed an exception to this recommendation, he does not make any
argument in support of it, and he does not include this matter in the
issues he specifically identifies as being at issue before the Board.
Therefore, we consider the General Counsel to have abandoned this
matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD262
account. On September 18, Crump was informed that he
was no longer on the Sam’s account.
Crump acknowledged that it was his responsibility to
resolve problems like those that arose with the Sam’s
account, and that Burton and Hebert had asked him for
details about the account before they met with the Sam’s
representatives. Crump testified that he updated Burton
and Hebert about the issues, but did not provide them
with documentation.5
The Respondent ultimately lost the Sam’s account.
2. The Cracker Barrel/Dana Volkswagen matter
In early September, Crump negotiated a transaction
with Cracker Barrel Restaurants, as mentioned, a major
account, but also one of the Respondent’s largest na-
tional accounts, to rent billboard space that another cli-
ent, Dana Volkswagen, was already renting. The prac-
tice in the Respondent’s business was to inform the client
occupying the billboard of the situation and allow it to
make a better offer. In this case, however, Crump had
agreed to rent the space at a lower price than Dana was
paying. Because of Crump’s mishandling of the transac-
tion, the Respondent was forced to provide Cracker Bar-
rel with free billboard space until the end of the year, and
to absorb the costs of moving both billboards.
The Respondent ultimately lost Dana Volkswagen as a
client.
Although Dana was not as large an account as Cracker
Barrel, the record shows that for the Respondent, the loss
of a local client, like Dana, could damage the Respon-
dent’s reputation and business prospects, as the good will
of local businesses—the “bread and butter” of the Re-
spondent’s client base—was a key factor in acquiring
and retaining clients. A failure with such a client could
result in negative “word-of mouth” regarding the Re-
spondent, and discourage other enterprises from doing
business with it.
In attempting to straighten out the Cracker Barrel/Dana
matter, Crump bypassed Burton, his immediate superior,
and sought a resolution to the problem directly from
Hebert. Burton resented his actions and complained to
Hebert, who took the view that Crump was calling Bur-
ton a liar. Hebert seriously considered discharging

5 The judge found that Crump was not personally responsible for the
problems with the Sam’s account. Although the record contains testi-
mony by Crump indicating that closer attention to detail might have
prevented some of the problems, we find it unnecessary to pass on who
was at fault in the alleged mishandling of the account. The focus of the
testimony at the hearing concerning the decision to remove Crump
from the account was on Hebert’s sense that Crump had put him and
Burton, and the Respondent itself, in a painful position by failing to
apprise them of the extent of the problems with the account.
Crump, but on September 12, informed Crump that he
had decided not to do so.6
3. The NLRB subpoena and Crump’s discharge
In early 2002, the Communications Workers of Amer-
ica had unsuccessfully attempted to organize the Re-
spondent’s employees. Two terminated employees,
Rachael Rychling and Kenneth Simmons, filed unfair
labor practice charges against the Respondent, alleging,
inter alia, that the Respondent had discharged them in
violation of Section 8(a)(3) and (1) of the Act. A hearing
in the Rychling/ Simmons proceeding was scheduled for
October 7.7
In mid-September, Crump and two other account ex-
ecutives were subpoenaed by the General Counsel to
testify at the hearing. On September 18, Crump in-
formed Hebert about the subpoena. About 30 minutes
later, the Respondent’s sales manager, Burton, emerged
from a meeting with Hebert and told Crump that the Re-
spondent was removing him from the Sam’s account
because of “customer service.” Crump complained that
he had not done anything wrong, but Burton replied,
“That doesn’t matter; that’s the way it is.”
On October 2, the Respondent’s attorney, Clifford
Nelson, interviewed Crump about his testimony in the
unfair labor practice case mentioned above. Nelson gave
Crump a written statement advising him of his rights
under Johnnie’s Poultry.8 After reading the statement,

6 As with the Sam’s Outdoor Outfitters account, above, the com-
plaint also alleges that the removal of the Cracker Barrel account from
Crump violated Sec. 8(a)(1) and (4). The judge recommended dis-
missal of this allegation. Although the General Counsel also filed an
exception to this recommendation, he again does not make any argu-
ment in support of it, and he does not include this matter in the issues
he specifically identifies as being at issue before the Board. Therefore,
we consider the General Counsel to have abandoned this matter.
7 There is no allegation that Crump engaged in union activity related
to the unsuccessful campaign
8 146 NLRB 770, 775 (1964), enf. denied on other grounds 344 F.2d
617 (8th Cir. 1965). Johnnie’s Poultry affords employers an opportu-
nity to question employees in preparation for unfair labor practice
hearings, under the following safeguards:
[T]he employer must communicate to the employee the purpose of the
questioning, assure him that no reprisal will take place, and obtain his
participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must
not be itself coercive in nature; and the questions must not exceed the
necessities of the legitimate purpose by prying into other union mat-
ters, eliciting information concerning an employee’s subjective state
of mind, or otherwise interfering with the statutory rights of employ-
ees. [146 NLRB at 775.]
The statement signed by Crump states in its entirety:
I was interviewed today by Clifford H. Nelson Jr., attorney
for Lamar Central Outdoor, Inc. d/b/a Lamar Advertising of Hart-
ford (“the Company”), concerning NLRB Case Nos. 34–CA–
10118, 34–CA–10119, and 34–CA–10120.
LAMAR ADVERTISING OF HARTFORD 263
Crump expressed some concerns about confidentiality.
Nelson told him that, by law, Crump was protected, and
that he had nothing to worry about. Changing the sub-
ject, Crump then asked Nelson how old he was. When
Nelson replied that he was 50, Crump stated that he was
43 and added, “We both know what the reality is, that if
the company wants to terminate you, they’re going to
find a way to terminate you.” Nelson replied, “There are
loopholes and that’s a possibility.” Nelson then returned
to the subject of the Johnnie’s Poultry interview, and
questioned Crump about Rychling and Simmons’ union
activities. Crump answered fully and without hesitation.
At the end of the interview, Crump again expressed con-
cerns about testifying adversely to the Respondent’s in-
terests. Nelson replied, “Gary, we just want you to tell
the truth.”
Later that day, the Respondent entered into a non-
Board settlement of the Rychling/Simmons proceeding.
This action resulted in the cancellation of the scheduled
hearing and obviated any need for Crump’s testimony.
The two alleged discriminatees, Rychling and Simmons,
were not reinstated under the terms of the settlement.
In other events on October 2, Hebert and Burton told a
Cracker Barrel representative that Crump should not
have sold Cracker Barrel the advertising space, that the
deal had caused another client to suffer financially, and
that Crump was going to be removed from the account.
The next day, October 3, the Respondent told its em-
ployees about the settlement. Shortly thereafter, Hebert
told Crump that he was being removed from the Cracker
Barrel account. Although the testimony as to exactly
what transpired at that point differs slightly, it is undis-
puted that Crump told both Hebert and Burton that, if the
Respondent took the Cracker Barrel account away from
him, he would seek legal advice.
Later on October 3, Hebert and Burton confronted
Crump. Hebert said, “You leave me no alternative but to
terminate you. What were you thinking, especially after
what just happened to Ken and Rachael?” Hebert said
that he did not really want to fire Crump, and offered

I was informed that the interview was for the purpose of in-
vestigating the unfair labor practice charges and that it was com-
pletely voluntary on my part to cooperate or not. I was informed
that all questions asked were only those considered relevant and
that no information concerning my union sympathies or any ac-
tivities was desired or sought. I was informed that even if I vol-
untarily agreed to the interview, if I chose to refuse to answer any
particular question or questions I could do so. I was specifically
informed that the Company would take no adverse action against
me of any kind based on my refusal to answer any questions or
cooperate in the interview.
The above statement is true and correct to the best of my
knowledge and belief and is signed voluntarily this 2nd day of
October 2002. [Signed] Gary Crump
Crump the opportunity to dissuade him. They raised
Crump’s threat to sue the Respondent. Crump replied
that he had not threatened to sue, but had merely stated
that he was going to seek legal advice. Burton stated,
“We’re tired of the NLRB poking and digging through
our books and records.” Hebert said that he was trying to
find a way to avoid terminating Crump, and that all
Crump had to do was to say that he was not going to seek
legal advice and sue the Respondent. Crump refused,
saying that today it was Cracker Barrel, tomorrow it
could be another account. Hebert told Crump that he
was probably right, and that he was terminated.9 Hebert
testified that he viewed the threat to consult an attorney
as one more attempt by Crump to avoid the blame for his
performance problems.
D. Review of Judge’s Findings
The judge dismissed the allegation that Nelson’s
statement that “there are loopholes and that’s a possibil-
ity” was an implied threat of job loss related to Crump’s
having been subpoenaed to testify in a Board hearing and
the possibility that his testimony would be adverse to the
Respondent. The judge found that Nelson made the
“loopholes” statement in the context of an employee in-
terview that in all other respects satisfied the Board’s
Johnnie’s Poultry criteria. In addition, the judge noted,
Crump admitted that Nelson had assured him that he was
protected by law and that the Respondent only wanted
him to tell the truth. The judge found that, in that con-
text, Nelson’s agreement with Crump’s comment about
what went on in the “real world” was not an implied
threat of job loss because of the subpoena or because
Crump would testify adversely to the Respondent’s in-
terests. The judge found that Hebert’s remark to Crump
about “what happened with” Rychling and Simmons
created reasonable cause to believe that the Respondent
equated Crump’s expressed intent to seek legal advice
with the initiation of unfair labor practice proceedings
against it. The judge, however, recommended dismissal
of the 8(a)(1) allegation that the remark constituted an
unlawful threat.
Finally, the judge recommended dismissal of the alle-
gation that the Respondent violated Section 8(a)(4) and
(1) by terminating Crump because he cooperated with the
General Counsel and planned to give testimony in a
Board proceeding. In his complaint and at the hearing,
the General Counsel’s theory of this alleged violation
was that the Respondent took the Sam’s and Cracker
Barrel accounts away from Crump and terminated him

9 Hebert and Burton did not specifically deny making the above
statements attributed to them by Crump (although Hebert did contradict
Crump’s general version of the final meeting between them).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD264
because Crump was subpoenaed and was cooperating
with the General Counsel in that he was to give testi-
mony to the Board in the Rychling/Simmons case. Al-
though the judge found that the General Counsel met its
burden of proving that Crump’s cooperation was a moti-
vating factor for the adverse actions,10 the judge dis-
missed the allegation, finding that the Respondent would
have taken the two accounts away from Crump and ter-
minated him even if he had not been cooperating with the
Board.
According to the judge, Crump lost the Sam’s account
when the Respondent knew nothing more than that
Crump was one of three employees who had been sub-
poenaed, and before it could have been aware that Crump
was testifying and the content of Crump’s testimony.11
The judge also found persuasive Hebert’s testimony that
Crump should have done a better job of resolving the
problems with these major accounts before they became
so serious. With respect to the Cracker Barrel account,
the judge concluded that Burton was equally at fault with
Crump, but the Respondent wished to protect Burton,
and it did so by making Crump the scapegoat for mis-
handling the account. However, the Respondent’s moti-
vation for doing so was not unlawful under the Act.12
The judge found that the Respondent terminated Crump
when he threatened to consult an attorney over loss of the
Cracker Barrel account, which the judge found would
have been in Crump’s own economic interest and was
therefore unprotected by the Act. Thus, he found that the
Respondent’s motivation for discharging Crump was not
unlawful under the Act, and recommended dismissal of
the allegation.
E. Findings and Discussion
1. We agree with the judge that Nelson’s “loopholes”
comment to Crump during the Johnnie’s Poultry inter-
view did not constitute a threat of discharge in violation
of Section 8(a)(1). In addition to the judge’s findings,
we also note that other factors in Crump’s conversation
with Nelson militate against an interpretation of Nelson’s
remark as a threat. Before Nelson made the “loopholes”
comment, Crump shifted the subject matter of the discus-
sion sharply away from the subpoena and his upcoming

10 The judge found that Burton’s comment that the Respondent “was
tired of the NLRB poking and digging through [the Respondent’s] book
s and records” demonstrated animus. We do not adopt this finding.
11 The fact that an employer becomes aware that an employee has re-
ceived a subpoena in a case against the employer does not, standing
alone, show that an adverse action taken against the employee was for a
retaliatory motive. This appears especially true in this case, where
other employees were subpoenaed and were subject to no adverse ac-
tions.
12 The judge characterized the Respondent’s treatment of Crump as
“unfair.” We express no view as to these comments.
testimony to a different area of concern—the two men’s
relative ages and, by obvious implication, workplace
pressures on employees as they gain in years. It is diffi-
cult to fathom why Crump made the remark and what he
meant. Given the ambiguity of the remark, it is also dif-
ficult to ascertain the meaning of Nelson’s response
about “loopholes.” However, it is the General Counsel’s
burden to show that the response was a threat to dis-
charge Crump because of his anticipated testimony. The
very ambiguity and puzzling nature of the remark and
response show that the burden was not met.
We disagree with our dissenting colleague’s argument
that the “loopholes” comment “trumped” or made hollow
the Johnnie’s Poultry assurances. As described above,
Nelson’s matter-of-fact comment was elicited by Crump
after Crump raised the age issue. In the overall context
of the interview, Nelson’s comments cannot reasonably
be viewed as a threat, either direct or indirect, that the
Respondent would discharge Crump because of the sub-
poena or his testimony at the pending hearing. Indeed,
apart from Crump reading the Respondent’s written as-
surances under Johnnie’s Poultry and Nelson assuring
him that he was protected by law, the interview con-
cluded with Nelson reassuring Crump once again when
he said, “we just want you to tell the truth.”
2. We disagree with the judge’s finding that Hebert’s
“What were you thinking, especially after what just hap-
pened to Ken and Rachael?” comments to Crump did not
violate Section 8(a)(1), and find that the Respondent vio-
lated Section 8(a)(1) by linking Crump’s termination to
the fates of Rychling and Simmons. Crump was fully
aware, when Hebert invoked the situations of Simmons
and Rychling as points of comparison for Crump’s situa-
tion, that they had filed unfair labor practice allegations
against the Respondent, and that they were not being
reinstated to their jobs under the settlement agreement.
Burton provided another link to Board processes when he
stated, “we’re tired of the NLRB poking and digging
through our books and records.” 13 We find that Crump
could reasonably believe, based on Hebert and Burton’s
statements, whether they were made intentionally or un-
intentionally, that the Respondent was linking his termi-
nation to the Rychling/Simmons proceeding. We further
find that Crump could reasonably understand the Re-
spondent’s statements as threatening him with discharge

13 Burton’s statement that he and Hebert were tired of the NLRB
poking in the Respondent’s books and records is not alleged to be
unlawful, nor do we find it to be so. But taken with the linkage of
Crump’s statement about seeking legal advice to Rychling and Sim-
mons, we find that this further comment reasonably established a nexus
between Crump’s situation, the Respondent’s unwillingness to undergo
another Board investigation, and the threat of discharge.
LAMAR ADVERTISING OF HARTFORD 265
if he filed unfair labor practice charges over the loss of
the account. Accordingly, we find that the Respondent
violated Section 8(a)(1).14
3. We agree with the judge that the Respondent’s dis-
charge of Crump did not violate Section 8(a)(4) and (1),
but for the following reasons. As an initial matter, the
General Counsel no longer argues that the removal of
Crump from the Sam’s and Cracker Barrel accounts vio-
lated the Act, and we find these decisions were based on
the Respondent’s business judgment; they were not mo-
tivated by Crump’s receipt of the Board subpoena and
planned testimony. We further find that the Respondent
has successfully established that it discharged Crump for
legitimate business reasons, and it would have done so
even in the absence of the subpoena and Crump’s
planned testimony.15
In the months immediately preceding the discharge,
Crump made serious errors in his handling of at least two
major accounts, one of which was one of the Respon-
dent’s largest national clients. These errors resulted in
significant business losses for the Respondent. Crump
admitted that he had been told by the Respondent that he
did not accept criticism well, and that he made excuses
rather than taking responsibility for problems with his
accounts. Moreover, between September 9 and 12, be-
fore the Respondent was aware that Crump had been
subpoenaed, he came close to being terminated for a con-
flict with Burton related to the Cracker Barrel account.
Finally, although Crump had been a productive account
executive, his revenues had begun to fall off, and, ac-
cording to unrebutted testimony, his problems in collect-
ing fees from his clients persisted. With all this record
evidence, we find that, apart from any activity of Crump
relating to the unfair labor practice proceeding, the stage
was set for Crump’s discharge. Although, as the judge
found, Crump’s threat to consult an attorney was a key
element of the termination decision, we find that, as
Hebert testified, it underscored the Respondent’s conclu-
sion that Crump would not take responsibility for his
performance deficiencies, which had recently resulted in
the loss of major accounts, and the performance prob-
lems were the reason for the discharge. Our conclusion
is supported by the fact that neither of the two other em-
ployees who were subpoenaed in connection with the

14 While we agree with the dissent that the statements of Hebert and
Burton in the October 3 meeting with Crump gave Crump reasonable
cause to believe that Hebert was threatening him with discharge if he
filed an unfair labor practice charge against the Respondent, we find in
the following section that the record does not establish that Hebert was
in fact motivated to discharge Crump for this reason.
15 In view of this finding, we need not reach the issue of whether the
General Counsel has established a prima facie case.
Rychling/Simmons proceeding suffered any adverse con-
sequences as a result.
In his exceptions, the General Counsel expands the
theory of the violation beyond what was alleged in the
complaint and litigated at the hearing. The General
Counsel now argues to the Board that Crump’s protected
activity consisted both in his cooperation with the Gen-
eral Counsel, albeit under subpoena, and his threat to
retain counsel, which he alleges, was a threat to file an
unfair labor practice charge. The General Counsel ar-
gues that a finding that the Respondent violated Section
8(a)(4) and (1) by terminating Crump is important, be-
cause employees must feel free to seek recourse from the
Board. While we certainly agree with the principle that
employees must be able to go to the Board without fear
of retaliation or interference, we find no merit in these
exceptions.
The complaint does not allege that Crump’s threat to
retain counsel was protected and a motivating factor in
Crump’s discharge, and the General Counsel did not seek
to amend his complaint and argue this theory of the vio-
lation. It is too late for him to do so now. The theory of
the General Counsel’s allegation, as it was litigated at the
hearing and argued to the judge, was that the protected
activity at issue was Crump’s receipt of a subpoena and
subsequent cooperation with the General Counsel in the
Rychling/Simmons case. To find that the Respondent
violated Section 8(a)(4) and (1) by discharging Crump on
a theory that it was in retaliation for his threat to hire an
attorney and presumably to file an unfair labor practice
charge would violate fundamental principles of proce-
dural due process, which require meaningful notice of a
charge and a full and fair opportunity to litigate it.
The fundamental elements of procedural due process
are notice and an opportunity to be heard. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950). Congress incorporated these notions of due
process in the Administrative Procedure Act. Under the
Act, “[p]ersons entitled to notice of an agency hearing
shall be timely informed of . . . the matters of fact and
law asserted.” 5 U.S.C. Section 554(b). To satisfy the
requirements of due process, an administrative agency
must give the party charged a clear statement of the
theory on which the agency will proceed with the case.
Bendix Corp. v. FTC, 450 F.2d 534, 542 (6th Cir.
1971). Additionally, “an agency may not change theo-
ries in midstream without giving respondents reason-
able notice of the change.” Id. (quoting Rodale Press v.
FTC, 407 F.2d 1252, 1256 (D.C. Cir. 1968)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD266
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357
(6th Cir. 1992). See also Henry Bierce Co. v. NLRB, 23
F.3d 1101, 1107 (6th Cir. 1994).
Our dissenting colleague argues that a finding that the
Respondent unlawfully discharged Crump because it
suspected or believed that Crump planned to file unfair
labor practice charges over removal of the Cracker Barrel
account is justified under the two-part test set out in Per-
gament United Sales, 296 NLRB 333, 334 (1989), enfd.
920 F.2d 130 (2d Cir. 1990). We firmly disagree.
In Pergament, the Board held that it “may find and
remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated” (footnote omitted). Applying this
standard the Board adopted the judge’s finding that the
respondent had violated Section 8(a)(4) and (1) based on
the unambiguous testimony of an official of the respon-
dent that he halted the rehire of employees because unfair
labor practice charges had been filed. The Board based
its finding that the issue had been fully and fairly liti-
gated on this admission, which corroborated the testi-
mony of the General Counsel’s witness and was not real-
istically subject to rehabilitation through rebuttal wit-
nesses. Id. at 335. By contrast, in this case there is no
comparable evidence.
Even assuming arguendo that the finding of an 8(a)(4)
violation based on the suspicion that Crump planned to
file unfair labor practice charges because of the loss of
the Cracker Barrel account is closely related to the com-
plaint allegations, the necessary predicates for an 8(a)(4)
finding—one, that the Respondent understood Crump’s
statement that he would hire an attorney if he lost the ac-
count to mean that he would file a charge with the Board,
as opposed to a civil law suit, and two, that Crump’s
statement constituted protected concerted activity—were
not litigated. Neither the General Counsel nor the Re-
spondent sought to develop evidence on either issue.
There was simply no exploration on either direct or cross-
examination of what Crump meant or what Hebert under-
stood Crump to be saying. Without such evidence, a vio-
lation of Section 8(a)(4) and (1) cannot lie, and finding
one would constitute a denial of due process.
Further, even if these procedural problems were sur-
mounted, and even if a reason for discharging Crump was
the concern that he was going to file a charge with the
NLRB, we find that the Respondent would have fired
Crump in any event for the work-related reasons set forth
above.
Our dissenting colleague contends that the Respondent’s
discharge of Crump was “solely and immediately” moti-
vated by Crump’s refusal to promise not to seek legal ad-
vice, and, as a result, violated Section 8(a)(4) and (1). We
disagree for the reasons set forth above.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Lamar Central Outdoor d/b/a Lamar Advertising
of Hartford, Windsor, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees for filing unfair
labor practice charges against it.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Windsor, Connecticut, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 34,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since October 3, 2002.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
MEMBER WALSH, concurring and dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) of the Act on October 3, 2002,1 by
threatening Charging Party Crump with discharge for
filing unfair labor practice charges against it.
I disagree with my colleagues, however, that (1) the
Respondent’s attorney did not threaten Crump with dis-
charge in violation of Section 8(a)(1) on October 2, and
(2) the Respondent did not discharge Crump in violation

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 All dates are 2002 unless otherwise stated.
LAMAR ADVERTISING OF HARTFORD 267
of Section 8(a)(1) and (4) on October 3 because the Re-
spondent believed that Crump was going to file unfair
labor practice charges against it. The record establishes
these violations.
1. The 8(a)(1) threat of discharge on October 2 by the
Respondent’s attorney
a. Facts
The Respondent’s attorney, Clifford Nelson, inter-
viewed Crump about a pending separate unfair labor
practice case against the Respondent. Nelson gave
Crump a written statement advising him of his rights
under Johnnie’s Poultry.2 Crump expressed concerns to
Nelson about confidentiality, and Nelson told Crump that
Crump was protected by law and did not have to worry
about anything. Crump then asked Nelson how old he
was. Nelson replied that he was 50. Crump then said
that he was 43 and that “we both know what the reality
is, that if the company wants to terminate you, they’re
going to find a way to terminate you.” Nelson replied
that “there are loopholes and that’s a possibility.”3 At the
end of the interview, Crump again expressed his concern
to Nelson about having talked with Nelson after being
subpoenaed by the General Counsel. Crump asked Nel-
son what he should do if the General Counsel asked him
questions about Rychling and Simmons. Crump told
Nelson, “I’m damned if I do and damned if I don’t.”
Nelson told Crump, “We just want you to tell the truth.”

2 146 NLRB 770, 775 (1964), enf. denied on other grounds 344 F.2d
617 (8th Cir. 1965). My colleagues have set out the Johnnie’s Poultry
safeguards and the related statement signed by Crump in the course of
his interview with Nelson.
3 I disagree with my colleagues that Crump was changing the subject
when he asked Nelson how old he was, and in turn volunteered his own
age. There was nothing in Nelson’s interview, either before or after
Crump’s question, that even remotely supports the notion that Crump
was suddenly, but only momentarily, shifting the entire focus of the
discussion at that point from Crump’s expressed concern about confi-
dentiality in the Respondent’s Johnnie’s Poultry interview to an amia-
ble rumination about workplace pressures on employees as they grow
old at ages 43 and 50. A far more reasonable inference to be drawn
from Crump’s question at this point in the interview about how old
Nelson was, and his reciprocal disclosure of his own age to Nelson, is
that Crump was implying to Nelson that they were both well experi-
enced in workplace and employment matters by this time in their work-
ing lives, and that Crump and Nelson both understood based on their
experience that, notwithstanding the facially reassuring language in the
Respondent’s written statement of Johnnie’s Poultry safeguards that
Crump had just signed, he was not beyond the reach of possible adverse
action by the Respondent based on his disclosures during the interview.
Nelson immediately agreed with Crump’s experience-driven assess-
ment by acknowledging that there were loopholes and that termination
was a possibility.
b. Analysis and conclusions
(1) Applicable principles
It is a violation of Section 8(a)(1) of the Act for an
employer to threaten to discharge an employee for coop-
erating in a Board investigation.4 The standard for de-
termining an 8(a)(1) violation is whether the employer
engaged in conduct that reasonably tends to interfere
with the free exercise of employees’ Section 7 rights.5
This standard is objective; the subjective perceptions of
individual employees are not taken into account.6 And
the test of interference, restraint, and coercion under Sec-
tion 8(a)(1) of the Act does not turn on an employer’s
motive or on whether the coercion succeeded or failed;
the test is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.7
(2) Application of principles
Nelson’s remark constitutes an 8(a)(1) threat of dis-
charge for cooperating in the Board’s investigation. Nel-
son’s reference to “loopholes” could reasonably be un-
derstood by Crump as a reference to loopholes in the
written statement of Johnnie’s Poultry safeguards that
Crump had just been given only moments before, or,
more generally, loopholes in the Respondent’s legal ob-
ligation not to terminate Crump for unlawful reasons.
The Respondent’s written presentation of Johnnie’s
Poultry safeguards to Crump does not immunize Nel-
son’s subsequent unlawful remark made during the inter-
view. Accordingly, Nelson’s earlier statement to Crump,
that Crump was protected by law and had nothing to
worry about, was trumped and made to ring hollow by
Nelson’s subsequent reference to “loopholes” in direct
response to Crump’s suggestion that the Respondent
could find a way to discharge him, notwithstanding Nel-
son’s statement that Crump was protected by law.
Again, this is not a question of whether Nelson in-
tended to threaten Crump with discharge, or even
whether Crump subjectively in fact felt threatened, but
rather a question of whether, objectively, Crump could
reasonably understand Nelson’s reference to “loopholes,”
and (in response to Crump’s assertion) the “possibility”
of being terminated, as a threat of discharge for conduct
detrimental to the Respondent—notwithstanding the

4 See, e.g., Morgan Services, 284 NLRB 862, 862 fn. 3 (1987) (em-
ployer’s threats of reprisal if employees cooperated with Board in in-
vestigation of unfair labor practice charges and objections to election
violated Sec. 8(a)(1)); Certain-Teed Products, 147 NLRB 1517, 1519–
1520 (1964) (employer’s statements that employees need not voluntar-
ily cooperate with Board investigation violated Sec. 8(a)(1)).
5 See, e.g., American Freightways Co., 124 NLRB 146, 147 (1959).
6 See, e.g., Curwood, Inc., 339 NLRB 1137, 1140 (2003).
7 See, e.g., American Freightways Co., supra, 124 NLRB at 147.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD268
written Johnnie’s Poultry safeguards that Nelson had just
presented to Crump. Crump reasonably could have per-
ceived such a threat, and the Respondent therefore vio-
lated Section 8(a)(1) by making it.
2. The 8(a)(1) and (4) discharge of Crump on October 3
a. Facts
Crump separately told Hebert and Burton on the morn-
ing of October 3 that he was going to seek legal advice if
the Respondent took the Cracker Barrel account away
from him. At the start of Crump’s meeting with Hebert
and Burton that afternoon, Hebert said, “You leave me
no alternative but to terminate you. What were you
thinking, especially after what just happened with Ken
[Simmons] and Rachael [Rychling]?” (i.e., the alleged
discriminatees in the unfair labor practice case that had
just settled the day before). Hebert then told Crump that
Hebert did not want to fire him, and that Crump should
try to talk Hebert out of it. Thereafter, Hebert and Bur-
ton brought up Crump’s asserted “threat to sue” them.
Crump replied that he had not threatened to sue, but only
said that he was going to seek legal advice. Burton said,
“We’re tired of the NLRB poking and digging through
our books and records.” Hebert said that he was trying to
find a way to avoid terminating Crump, and that all
Crump had to do to avoid termination was to say that he
was not going to seek legal advice and not going to sue
them. Crump would not say that, because in his ex-
pressed view, today it was Cracker Barrel, but tomorrow
it could be another account. Hebert told Crump that he
was probably right, and that he was terminated.
b. Analysis and conclusions
(1) Applicable principles
It is a violation of Section 8(a)(1) and (4) of the Act
for an employer to take action against an employee be-
cause the employer believes, or even suspects, that the
employee plans to avail himself of the Board’s services.8
This is so even if the employee himself does not in fact
intend to avail himself of the Board’s services.9 The

8 See, e.g., National Surface Cleaning, 314 NLRB 549 (1994), enfd.
54 F.3d 35 (1st Cir. 1995); Trayco of S.C., 297 NLRB 630, 636 (1990),
enf. denied mem. 927 F.2d 597 (4th Cir. 1991).
9 See, e.g., National Surface, supra at 552, where the Board found
that Sec. 8(a)(4) is applicable when an employer discriminates against
an employee because the employer suspects him of filing a charge or
giving testimony; Trayco, supra, where the employer violated Sec.
8(a)(1) and (4) when a supervisor issued a written warning because the
supervisor believed that the employee’s threat to “go over the head” of
the employer’s president with a pay dispute/requested raise was actu-
ally a threat to file charges with the Board (although the employee
herself did not in fact make any threat to go to the Board). 297 NLRB
at 635–636.
analytical framework set forth in Wright Line 10 (which
involved an 8(a)(3) discharge) is applicable to the 8(a)(4)
situation involved here,11 because the Respondent argues
that Crump was discharged because of poor work per-
formance.
In order to establish an 8(a)(1) and (4) violation under
Wright Line, the General Counsel must first establish that
the Respondent suspected or believed that Crump was
going to file unfair labor practice charges against it; that
the Respondent harbored animus toward Crump based
upon this suspicion or belief; and that the Respondent
took an adverse employment action against Crump.
Proof of the above elements would shift the burden to the
Respondent to establish an affirmative defense to the
unlawful discharge allegation. Under Wright Line, the
Respondent must do more than show that it had reasons
that could have warranted discharging Crump. Rather,
the Respondent must show by a preponderance of the
evidence that it would have discharged Crump even in
the absence of its belief or suspicion that he was going to
file unfair labor practice charges against the Respon-
dent.12
(2) Application of principles
First, the record establishes that the Respondent sus-
pected or believed that Crump was going to file unfair
labor practice charges against it over the removal of the
Cracker Barrel account. Crump told Hebert and Burton
only that Crump was going to seek legal advice if the
Respondent took the Cracker Barrel account away from
him. But Hebert responded to that by rhetorically asking
Crump what Crump was thinking, especially after what
just happened to Rychling and Simmons, whom Hebert,
Burton, and Crump all knew had recently been dis-
charged after filing unfair labor practice charges against
the Respondent. For his part, Burton responded to
Crump’s stated intent to seek legal advice by telling
Crump that the Respondent was tired of the NLRB pok-
ing and digging through the Respondent’s books and
records, presumably in the course of conducting an in-
vestigation. The record establishes, therefore, that the
Respondent clearly equated Crump’s statement of intent
to seek legal advice as a threat to file unfair labor prac-
tice charges against the Respondent with the Board.
Second, the record also establishes that the Respondent
harbored animus toward Crump based upon its suspicion
or belief that he was going to file unfair labor practice

10 251 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 NLRB 393, 399–403 (1983).
11 See, e.g., Montag Oil, 271 NLRB 665 (1984).
12 See Wright Line, supra, 251 NLRB at 1089. See also Manno Elec-
tric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
LAMAR ADVERTISING OF HARTFORD 269
charges against it. Specifically, the Respondent unlaw-
fully threatened to discharge Crump when Hebert told
Crump that by threatening to seek legal advice (which, in
the Respondent’s eyes, was a threat to file unfair labor
practice charges against it) if the Respondent took away
the Cracker Barrel account, Crump had left Hebert with
no alternative but to discharge him. In addition, the tim-
ing of the discharge, immediately upon Crump’s refusal
to promise the Respondent that he would not seek legal
advice or sue the Respondent (which, in the Respon-
dent’s eyes, was a refusal to promise not file unfair labor
practice charges against it) also establishes the Respon-
dent’s animus toward him based upon its suspicion or
belief that he was going to file unfair labor practice
charges against it.
Finally, the Respondent ultimately took adverse em-
ployment action against Crump by discharging him.
Because the General Counsel has therefore met his
evidentiary burden under Wright Line as described
above, the burden shifts to the Respondent to establish
that it would have discharged Crump even if it did not
believe or suspect that he was going to file unfair labor
practice charges against it. The Respondent has failed to
meet that burden.
Hebert testified that he decided to terminate Crump
because of Crump’s track record of customer service
complaints, with the Cracker Barrel/Dana Volkswagen
issue being the last straw, and Crump’s unwillingness to
take responsibility for any of the problems that arose
with his clients. Hebert testified that Crump’s threat to
seek legal advice did not affect his decision to terminate
Crump, other than to confirm his belief that Crump was
unwilling to take responsibility for any mistakes he
made.
The Respondent’s assertion that Crump was termi-
nated because of poor job performance culminating in
the Cracker Barrel incident is belied by the sequence of
discussion at what turned out to be Crump’s discharge
meeting on the afternoon of October 3. Compelling evi-
dence establishes that the Respondent discharged Crump
not because of any job performance shortcomings, but
solely and immediately because of his refusal to promise
not to seek legal advice and not to sue the Respondent,
which the Respondent considered to be a refusal to
promise not to file unfair labor practice charges against
it. Thus, when Crump met with Hebert and Burton on
the afternoon of October 3, a few hours after telling each
of them separately that he was going to seek legal advice
if the Cracker Barrel account was taken away from him,
Hebert first unlawfully threatened to discharge Crump
because of what the Respondent believed to be Crump’s
plan to file unfair labor practice charges against it.
Crump told Hebert and Burton that Crump was not
threatening to sue the Respondent, only to seek legal
advice about the removal of the Cracker Barrel account.
But, as established above, the Respondent demonstrably
construed Crump’s threats to seek legal advice as a threat
to file unfair labor practice charges against it. Neverthe-
less, Hebert next told Crump that Hebert did not want to
fire Crump and that Crump should try to talk Hebert out
of it. But the focus of the discussion soon shifted back to
Crump’s stated intent to seek legal advice. Burton then
said that the Respondent was tired of the NLRB poking
and digging through the Respondent’s books and records.
Again, however, Hebert told Crump that Hebert was try-
ing to find a way to avoid discharging Crump, and that
all Crump had to do to avoid being discharged was to
promise not to seek legal advice and sue the Respondent.
Crump refused to make that promise and Hebert immedi-
ately discharged him.
Thus, notwithstanding any and all of Crump’s asserted
job performance shortcomings, until the precipitous mo-
ment in the meeting between Crump, Hebert, and Burton
on the afternoon of October 3, the Respondent admit-
tedly and manifestly did not want to discharge Crump,
and Hebert was purposefully trying to find a way to
avoid doing so. The Respondent discharged Crump only
when Crump refused to promise not to seek legal advice
and sue the Respondent, which the Respondent perceived
as a refusal to promise not to file unfair labor practice
charges. The record therefore establishes that, but for
what the Respondent perceived to be Crump’s refusal to
promise not to file unfair labor practice charges against
it, the Respondent would not have discharged him. Ac-
cordingly, the Respondent did not meet its burden of
establishing that it would have discharged Crump even if
it did not believe or suspect that he was going to file un-
fair labor practice charges against it. Consequently,
Crump’s discharge violates Section 8(a)(1) and (4) of the
Act.
I disagree with my colleagues that the Respondent
cannot properly be found to have been unlawfully moti-
vated to terminate Crump because of its suspicion or
belief that Crump was going to file unfair labor practice
charges against it over the Respondent’s removal of the
Cracker Barrel from Crump, assertedly because this the-
ory of the alleged unlawful termination was not set out in
the complaint or litigated at the hearing.
It is well established that the Board may find and rem-
edy a violation not specifically alleged in the complaint
without violating a party’s due process rights if the issue
is closely connected to the subject matter of the com-
plaint and has been fully litigated. Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD270
(2d Cir. 1990). Under the instant circumstances, a find-
ing that the Respondent violated Section 8(a)(1) and (4)
of the Act by discharging Crump because the Respondent
suspected or believed that Crump was going to file unfair
labor practice charges over removal of the Cracker Barrel
account meets the Pergament two-part test.
With respect to the first part of the test, the complaint
alleged that the Respondent violated Section 8(a)(1) and
(4) by, inter alia, discharging Crump because he planned
to testify against the Respondent in a Board unfair labor
practice proceeding. A close connection exists between
that allegation and the question whether the Respondent
violated Section 8(a)(1) and (4) by discharging Crump
because the Respondent believed that Crump was plan-
ning to file unfair labor practice charges against the Re-
spondent. In both instances, the lawfulness of the Re-
spondent’s motivation for discharging Crump is directly
at issue.
With respect to the second part of the test, the record
reveals that the Respondent had a full and fair opportu-
nity to litigate the issue of its motive for discharging
Crump. The Respondent raised no objection to Crump’s
testimony on direct examination that he threatened to
seek legal advice over removal of the Cracker Barrel
account from him in his separate morning conversations
with Hebert and Burton on October 3, and in his termina-
tion meeting with Hebert and Burton together that after-
noon. Indeed, the Respondent itself specifically ques-
tioned Crump on cross-examination about his threats to
seek legal advice during his separate morning meetings
with Hebert and Burton. In addition, both Hebert and
Burton testified for the Respondent, but neither of them
denied making the statements at issue attributed to them
by Crump during the October 3 meeting. Finally, Hebert
was questioned on direct examination about whether
Crump’s threat to seek legal advice played a part in
Hebert’s decision to discharge him. Although the Gen-
eral Counsel objected to the leading nature of the ques-
tion, the judge overruled the objection and permitted
Hebert to answer it on the grounds that although the
question was leading, it was “intended to rebut some-
thing specifically,” and permissible on those grounds.
(Hebert answered no to the question.) Under these cir-
cumstances, there has been fair and full litigation of the
issue of whether the Respondent discharged Crump be-
cause the Respondent believed that Crump was going to
file unfair labor practice charges against the Respondent.
Consequently, there is no due-process barrier to finding
and remedying the serious unfair labor practice that the
Respondent committed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten to discharge our employees for
filing unfair labor practice charges against us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights set forth above.
LAMAR CENTRAL OUTDOOR D/B/A LAMAR
ADVERTISING OF HARTFORD
Quesiyah S. Ali, Esq. and Thomas E. Quigley, Esq., for the
General Counsel.
Cliford H. Nelson Jr., Esq. and Leigh Tyson, Esq. (Wemberly,
Lawson, Steckel, Nelson & Schneider, P.C.), of Atlanta,
Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Hartford, Connecticut, on April 1–3, 2003.
Gary Crump, an individual, filed the charge on October 11 and
amended it on November 22, 2002.1 The complaint issued De-
cember 10, alleging that Lamar Central Outdoor, Inc. d/b/a
Lamar Advertising of Hartford (the Respondent) violated Sec-
tion 8(a)(1) and (4) of the Act. Specifically, the complaint
alleges that the Respondent violated Section 8(a)(1), through its
alleged supervisors and agents, by threatening Crump with
unspecified reprisals because he engaged in protected concerted
activities, threatening him with job loss because he had been
subpoenaed by the General Counsel in connection with an un-
fair labor practice hearing; and informing Crump that he was
being terminated because he had been subpoenaed. The com-
plaint alleges that the Respondent also violated Section 8(a)(1),
through Sales Manager Jeff Burton, by threatening employees
with loss of bonuses because the General Counsel had issued
subpoenas to Crump and several other employees. Finally, the
complaint alleges that the Respondent took certain customer

1 All dates are in 2002 unless otherwise indicated.
LAMAR ADVERTISING OF HARTFORD 271
accounts away from Crump and terminated him, in violation of
Section 8(a)(1) and (4), because he cooperated with the General
Counsel and planned to give testimony in a Board proceeding.
The Respondent filed its answer to the complaint on December
23, denying the unfair labor practice allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the production
and sale of outdoor advertising at its facility in Windsor, Con-
necticut, where it annually derives gross revenues in excess of
$500,000 and purchases and receives goods valued in excess of
$50,000 directly from points outside the State of Connecticut.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The Respondent, which is headquartered in Baton Rouge,
Louisiana, is a national company that owns and operates out-
door advertising structures, commonly referred to as billboards.
The facility in Windsor, Connecticut (the Hartford office), is
one of 153 local offices throughout the United States. The Re-
spondent acquired the Hartford office when it purchased an-
other outdoor advertising company in 1999. The Hartford office
operates, maintains, and services billboards in Connecticut and
in western Massachusetts. The Massachusetts operation became
part of the Respondent’s business in the fall 2000 when the
Respondent acquired a company called Springfield Advertising.
Currently, the Hartford office consists of the facility in Windsor
and an operations facility in Springfield, Massachusetts. 2
At the time relevant to these proceedings, the Respondent
employed 22 individuals in the Hartford office. Steve Hebert is
the Respondent’s vice president and general manager in charge
of the Hartford office. Jeff Burton is the sales manager respon-
sible for a staff of about eight account executives, including the
Charging Party. The Respondent also employed several other
managers and administrative and clerical employees in Windsor
and an operations crew in Springfield. The Springfield employ-
ees were already represented by the Painters Union when the
Respondent acquired that facility. The employees working out
of the Windsor office were unrepresented.
Crump, the Charging Party, began working for the Respon-
dent on December 13, 2000, as an account executive. He was
paid a salary and received commissions and bonuses based on
his individual sales performance as well as bonuses tied to the
performance of the office. When he was hired, Lynn Terlaga
was the general manager and Drew Driscoll was the sales man-
ager. Hebert replaced Terlaga in March 2001 and Burton re-

2 The employees at the Springfield facility are responsible for hang-
ing the advertisements on the outdoor structures and maintaining those
structures.
placed Driscoll in September 2001. As an account executive,
Crump was responsible for selling and servicing outdoor adver-
tising on the Respondent’s billboards.3 Crump acknowledged
that he was expected to maintain existing clients and find new
ones, through cold-calling if necessary. Crump also conceded
that as the Respondent’s account representative he was the
primary link between the clients and the Respondent and was
expected to oversee things from negotiation of the initial con-
tract for outdoor advertising space through production of the
advertising material to posting on the billboard, resolving any
issues that might come up along the way.
In approximately March, the Communications Workers of
America attempted to organize the Respondent’s Hartford em-
ployees. In early May, the Union and two individuals, Rachael
Rychling and Kenneth Simmons, filed unfair labor practice
charges against the Respondent. Those charges led to issuance
of a complaint by the Board’s Regional Director on July 30.
The complaint alleged independent violations of Section 8(a)(1)
of the Act, allegedly committed by Hebert, and the termination
of Rychling and Simmons as violative of Section 8(a)(1) and
(3) of the Act.4 The hearing on the complaint was scheduled
for October 7. The parties stipulated that the General Counsel
issued subpoenas to three of the Respondent’s current employ-
ees, Crump, David Angeli, and Eric Lambert, to appear as wit-
nesses at the hearing. On or about October 2, the Respondent
entered into a non-Board settlement of the case with the Union
and the individual Charging Parties. By Order dated December
17, the Board’s Regional Director approved withdrawal of the
charges conditioned on the Respondent’s compliance with the
terms of the non-Board settlement.5 The allegations in the in-
stant case relate to the Respondent’s treatment of Crump after
he received the subpoena.
Crump testified that he was initially contacted by a Board
agent during the investigation of the charges that were filed in
May. According to Crump, he met with the Board agent in the
Board’s Hartford Regional Office but declined to give an affi-
davit, expressing a fear of retaliation. Crump was again con-
tacted by the Board’s agents in September about testifying in
the unfair labor practice trial scheduled for October 7. Crump
told the Board’s counsel that he would only cooperate if sub-
poenaed because he feared losing his job. On September 13,
counsel for the General Counsel issued a subpoena ad testifi-
candum to Crump, which he recalled receiving the next day.6
Crump testified that he anticipated that he would be testifying
about the meetings held by Hebert on the subject of the Union

3 At the hearing, the witnesses referred to billboards, bulletins, and
posters. For ease of reference, I will use the term billboards to refer to
all the outdoor structures.
4 I took official notice of the pleadings in the earlier cases, Cases 34–
CA–10118, 34–CA–10119, and 34–CA–10120, at the request of the
General Counsel. I make no findings as to the merits of the allegations
in the earlier complaint, which have been settled and were not litigated
before me.
5 Because the General Counsel has not attempted to revoke approval
of the withdrawal of the prior charges, I must infer that the Respondent
satisfactorily complied with the terms of the settlement agreement.
6 The parties stipulated that Angeli and Lambert were subpoenaed at
about the same time as Crump.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
and about Rychling’s and Simmons’ union activities. There is
no evidence that the Respondent was aware of Crump’s con-
tacts with the Board before he received his subpoena or of the
substance of the testimony he was expected to give.
Crump testified that, on September 18, he went into Hebert’s
office and told Hebert that he had been subpoenaed to testify in
the unfair labor practice case. According to Crump, Hebert
replied that he figured it was Crump, Eric (Lambert), and Dave
(Angeli), and that Dave had already told Hebert he had been
subpoenaed.7 Crump testified further that he saw Burton go
into Hebert’s office after he informed Hebert about the sub-
poena. Crump recalled that Burton came out of Hebert’s office
about 30 minutes later and told Crump that they were thinking
of taking the Sam’s Outdoor account away from Crump.8
When Crump asked why, Burton responded, “customer ser-
vice.” Crump then told Burton that he hadn’t done anything
wrong and Burton replied that “doesn’t matter; that’s the way it
is.” Burton also told Crump that it hadn’t been decided yet, they
were just thinking about it. When Crump returned to the office
in the afternoon, Burton told him that the Respondent was go-
ing to take the Sam’s account away from him and that he
wouldn’t be getting his commission for the contract that had
just been signed.
Crump testified that problems with the Sam’s account began
in March when Lamar Graphics, the Respondent’s affiliate in
Louisiana, produced the wrong size poster for the billboard
Sam’s had contracted to use. When the poster was reproduced
at the right size, the client was unhappy because a topographi-
cal map in the ad was faint and not as visible as in the original
version. The record reveals it took several attempts to get the
poster put up to the client’s satisfaction and that the client had
written several letters to the Respondent’s Hartford office and
its billing department in Baton Rouge objecting to being billed
for the period that the ad was not properly posted. The last let-
ter in evidence is dated September 13, and ends with the fol-
lowing sentence:
We suggest some person in Baton Rouge get off their duff
and call Mr. Gary Crump, your representative in Hartford
Conn. for any further information and clarification. [Empha-
sis in original.]
It is undisputed that after the last letter Hebert and Burton
drove to Vermont to meet with the client to try to resolve the
dispute. Hebert testified that he asked Crump before going to
this meeting if there was anything he should know. Hebert testi-
fied that Crump did not provide any details regarding the cli-
ents’ complaints and that, when he and Burton met with the
client, they were “ambushed” with a file several inches thick.
Hebert testified that it was on the way home from Vermont that
he decided to take the account away from Crump. Although he
was called as a witness for the Respondent, Burton was not
asked any questions about this matter.

7 Angeli, who testified as a witness for the Respondent, recalled that
he mentioned to Hebert, in passing, that he had been subpoenaed. He
could not recall any response from Hebert.
8 Sam’s Outdoor Outfitters is a store in Brattleboro, Vermont, that
caters to outdoor enthusiasts and had a contract with the Respondent for
a billboard in Massachusetts. Sam’s was one of Crump’s accounts.
Crump acknowledged that as the account representative it
was his responsibility to work with the client to resolve issues
like those that were raised by Sam’s. Crump acknowledged
being asked about the account by Burton and Hebert before
they went to Vermont for their meeting with the client. Accord-
ing to Crump, he did update Burton and Hebert regarding the
issues with Sam’s, although he did not provide them with any
documents. In any event, it is clear from the evidence that
Crump was not responsible for the errors and delays in getting
the ad posted in accordance with the contract. It also appears
that the client never complained about Crump’s handling of the
account.
Crump testified that on the same day that he informed Hebert
about the subpoena and lost the Sam’s account Burton held an
impromptu sales meeting with all the account executives.9
According to Crump, Hebert was also present. Crump recalled
that Burton expressed his concern that the office was $68,000
short of its monthly space budget.10 Burton asked the employ-
ees how they were going to make up the difference. He replied
by going out and selling. Crump also recalled that Burton told
the account executives to be “creative” in finding sources of
revenue. According to Crump, Burton told the employees that
they would lose their bonuses for the remainder of the year if
they did not make up the $68,000 shortfall. After this sales
meeting, Crump, Lambert, and Angeli met with Hebert who
told them that because they had been subpoenaed they would
have to meet with the Respondent’s attorney when he came to
the Hartford office to prepare for the trial.11
The Respondent chose not to ask Burton any questions about
this meeting. The Respondent did ask Angeli about it. Accord-
ing to Angeli, Burton held a meeting with the employees in
September to discuss the upcoming fourth quarter. Burton told
the employees that the Respondent was going into the quarter
short of its goals and that they needed to make up the differ-
ence. Angeli testified that Burton then jokingly told the em-
ployees that if they didn’t make up the difference, he would
take the money he lost out of their paychecks. Angeli explained
that Burton’s compensation, as sales manager, was more di-
rectly tied to the overall performance of the office and he would
be hurt more by a shortfall than the individual account execu-
tives. Angeli described this meeting and Burton’s statements as
typical of the motivational tools used by a sales manager to
inspire the sales people. Dan Giordano, another account execu-
tive who was called as a witness by the Respondent, was also
asked generally about Burton’s practice of holding sales meet-
ings. According to Giordano, if the Respondent was not making
budget, Burton would tell the employees this and would offer
some kind of incentive to get them to increase their sales. If

9 It is undisputed that weekly sales meetings are usually held on Fri-
day mornings. September 18, 2002, was a Wednesday.
10 The space budget, according to Crump, is the income received
from rental of billboard space. The monthly budget is the total of all
revenue, including from sale of advertising, production of advertising
materials, etc. Crump testified that the Respondent had already met its
monthly budget by the time of this meeting.
11 Angeli also recalled the three subpoenaed employees telling
Hebert, after a sales meeting, that they had been subpoenaed. Again, he
did not recall any specific response from Hebert to this information.
LAMAR ADVERTISING OF HARTFORD 273
employees did not make the goal set, they would not get what-
ever incentive was offered. Giordano did not testify specifically
about the meeting that Crump described.
There is no dispute that Crump met with the Respondent’s
attorney, Clifford Nelson, on October 2. It is also undisputed
that Nelson gave Crump a written statement advising him of his
rights under the Board’s Johnnie’s Poultry12 decision and that
Crump read and signed this statement before being interviewed
by Nelson. No one else was present during the interview.
Crump testified that on reading the statement he expressed
some concerns about confidentiality and Nelson told him that
by law Crump was protected and that he didn’t have anything
to worry about. Crump then asked Nelson how old he was.
Nelson replied that he was 50. Crump then said that he was 43
years old and “we both know what the reality is, that if the
company wants to terminate you, they’re going to find a way to
terminate you.” Crump testified that Nelson replied, “There are
loopholes and that’s a possibility.” According to Crump, Nel-
son then proceeded to ask Crump questions about the duties
and responsibilities and the union activities of the alleged dis-
criminatees and whether they were open about such activities.
Crump answered the questions without hesitation, confirming
for Nelson that both discriminatees, Rychling and Simmons,
were active in support of the Union. At the end of the inter-
view, Crump again expressed his concerns about being in the
position he was in, i.e., having talked to Nelson after being
subpoenaed by the General Counsel. Crump testified that Nel-
son told him that the Board would probably ask him questions
about Rychling and Simmons. When Crump asked Nelson,
“What should I do? I’m damned if I do and damned if I don’t.”
Nelson replied, “Gary, we just want you to tell the truth.” Be-
cause Nelson did not take the stand to testify in this proceeding,
Crump’s testimony about his meeting with the Respondent’s
attorney was not contradicted
Crump testified that, earlier the same day, Hebert told him to
call Joey Boykin and ask him to “end his day in Hart-
ford,”referring to the Respondent’s Hartford office. Boykin was
a field account manager for Buntin Out-of-Home Media, the
advertising agency for one of Crump’s accounts, Cracker Barrel
Restaurant. Boykin was scheduled to be in town for a market
visit, i.e., to check on the advertising that his agency had placed
in the local market. Crump did as Hebert instructed. Later that
day, Crump introduced Boykin to Hebert and Burton when
Boykin came into the Hartford office as requested. According
to Crump, he saw Boykin again as he was finishing up his in-
terview with Attorney Nelson. Hebert came into the room and
told Crump that he was finished his meeting with Boykin and
Nelson suggested Crump attend to his client. Crump and his
wife went out to dinner with Boykin that evening. According to
Crump, Boykin told him, over dinner, that he was concerned
that Hebert was not very happy about a contract that Crump had
recently negotiated with Boykin for a Cracker Barrel billboard
and had tried to renegotiate the deal. Boykin spent the night at
Crump’s house and the next morning, over breakfast, told
Crump that Hebert had also suggested, during their meeting the
previous day, that he was going to take the Cracker Barrel ac-

12 146 NLRB 770 (1964).
count away from Crump and make it a house account, i.e., one
serviced by the sales manager. Boykin told Crump he thought
Crump should be aware of this before going into the office.
According to Crump, the issue regarding the Cracker Barrel
billboard began in about June when Boykin expressed interest
in moving an ad from a billboard owned by a competitor of the
Respondent to one owned by the Respondent that was already
occupied by another of the Respondent’s clients, Dana Volks-
wagen. Crump testified that he discussed this with Burton,
Hebert, and Dave Angeli, who was Dana’s account executive.
Crump testified that Hebert said if they could get more money
from Cracker Barrel for the billboard and take them away from
a competitor, it was a win-win situation. Dana Volkswagen had
a pre-emptible contract for that space which meant that its ad
could be bumped by another client willing to pay more for the
space. Crump testified that there was another billboard avail-
able where Dana’s advertising could be moved. By August,
Crump had negotiated the details of a 3-year contract with
Boykin, i.e., $2200/month for the first 12 months, increasing in
each succeeding year. On August 20, Boykin’s agency faxed a
contract for the Respondent to sign confirming the agreement to
place a Cracker Barrel ad on the Dana billboard. The record
shows that Boykin’s agency faxed two more requests that the
Respondent sign this contract, on August 23 and 29, the last
one designated as “urgent” because the ad was scheduled to go
up October 1 and needed to be produced. Crump testified that
he had several conversations with Burton about getting the
contract signed. The apparent cause of the delay in finalizing
the contract was the Respondent’s efforts to find a satisfactory
result for Dana, which was unhappy about being bumped from
their billboard. Although the evidence in the record shows that
Burton signed the contract with Boykin’s agency on August 30,
the issue continued to fester into September.13
Crump testified that in early September14 he approached
Burton and Angeli who were in Burton’s office about the Dana
Volkswagen board, telling them that they needed to resolve the
issue because Cracker Barrel was scheduled to go up October 1.
Burton instructed Angeli to get Dana’s contract. Crump went
with Angeli to retrieve the contract and, while doing so, “poked
his head in Hebert’s office” and asked if they could “pick his
brain” about an issue. Angeli followed Crump into Hebert’s
office. Crump then proceeded to tell Hebert about the contract
with Cracker Barrel and its impact on Dana’s ad. Crump admit-
tedly prefaced his remarks to Hebert with the statement, “I hate
to go over Jeff [Burton]’s head, but.” While Crump was dis-
cussing the issue with Hebert, Burton came into the office and
said he needed to speak to Crump and Angeli right away. Ac-
cording to Crump, when they got into the hallway, Burton an-
grily said, “Gary, don’t you ever go over my head again.” The
three men then walked toward Burton’s office. After Angeli
went back to his cubicle, Burton asked to speak to Crump

13 It is undisputed that Burton has the authority to review and initial
contracts but only Hebert can sign a contract.
14 Earlier in his testimony, Crump placed this conversation as occur-
ring on the same day he told Hebert that he had been subpoenaed by the
General Counsel. Later, he testified that it occurred on September 9. He
finally acknowledged that he could not recall whether it happened
before or after he received his subpoena.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD274
alone. According to Crump, Burton said, “Don’t ever go over
my head again or I’ll make your life so miserable you can’t
stand it.”
The next day, Crump told Hebert about Burton’s “threat.”
Hebert called Burton into the office and relayed what Crump
had just reported. Burton denied making the statement attrib-
uted to him by Crump. According to Crump, Hebert said this
was a serious situation, calling one of his managers a liar.
Crump said that they were calling him a liar. Hebert then asked
Burton how he should handle this and Burton said he thought
Crump needed to resign. Crump replied that he was not going
to resign. Hebert told Crump he wanted to think about it. He
told Crump to come back at the end of the day. When Crump
returned, at about 4 p.m., he spoke to Kathie Houghton about
Burton’s threat. Houghton is the Respondent’s office manager
and, according to Crump, the designated human resources rep-
resentative for the Hartford office. Crump testified that when he
told Houghton that Burton was calling him a liar, Houghton
said “B . . . S . . . I heard part of it and Dawn Thibodeau heard
it too.” Thibodeau is the Respondent’s billing coordinator. She
works at a desk in front of Houghton.
Houghton, who testified for the Respondent, corroborated
Crump’s testimony in substantial part. Houghton recalled see-
ing Crump and Angeli go into Hebert’s office with Burton fol-
lowing them in there several minutes later. She recalled seeing
all three men leave Hebert’s office and heard Burton yelling at
Crump and Angeli about having gone over his head. According
to Houghton, she and Thibodeau looked at one another with
expressions of shock at Burton’s conduct. Houghton also cor-
roborated Crump’s testimony that he came to see her about this
incident in her role as a liaison with personnel in Louisiana.
She recalled, however, that Crump came to see her the same
day that Burton yelled at him. Houghton denied hearing Burton
make any threats to Crump or Angeli.
After his conversation with Houghton, Crump met with
Hebert. Hebert told Crump he was upset that he had spoken to
Houghton about the issue. Crump asked who else was he sup-
posed to talk to. Hebert then brought Burton in and said that he
thought he had a resolution but, because Houghton said she
heard part of the conversation, he needed to think about it over-
night. Crump testified that “out of the blue” Burton and Hebert
brought up new “versus” renewal contracts. Although Crump
explained the difference between new and renewal contracts
and testified that the Respondent had a formula of new and
renewal contracts account executives were expected to have, he
did not testify precisely what Hebert and Burton said about this
issue in the meeting.15 The next morning, according to Crump,
Hebert told him that after a sleepless night he had decided he
was not going to terminate Crump over this incident, that it had
been blown out of proportion.
The General Counsel called Boykin as a witness. Boykin
was no longer employed by Buntin at the time of the hearing,
having left employment on good terms in November. Accord-
ing to Boykin, Cracker Barrel was one of Lamar’s largest ac-

15 A weekly sales report summary for the week ending September 13
reveals that Crump had the lowest ratio of new to renewal contracts of
any account executive.
counts nationwide and used to getting whatever it wanted in
terms of location and pricing of ad space. Boykin recalled,
contrary to Crump, that it was Crump who first broached the
subject of Cracker Barrel taking over the billboard occupied by
Dana.16 Boykin testified that because Cracker Barrel was
locked into a contract with another billboard company at the
time he told Crump he could not make a move at that time but
would consider it when the other contract came up for renewal.
These conversations occurred in the spring. Boykin testified
further that when the time came for Cracker Barrel to renew its
contract for the other board he again spoke to Crump about
moving to the Dana board. After he and Crump reached an
agreement on the terms of a contract for that board, Boykin sent
the proposal to his client, Cracker Barrel, which signed off on
it, and then had his office fax a contract to the Respondent for
signature. Boykin identified the three requests sent to Respon-
dent between August 20 and 29 as emanating from his office.
After the third request was sent, Boykin spoke to Crump about
the issue. According to Boykin, Crump told him that the Re-
spondent did not want to sign the contract because the rate was
too low. After Boykin spoke to Burton, Burton signed and re-
turned the contract to Buntin and the advertisement was pre-
pared and posted by October 1 as agreed.
Boykin testified that he heard nothing further about this issue
until he came to Hartford for a market visit on October 1 or 2.
During that visit, he verified that the ad was posted in the new
location and was satisfactory. At the end of his visit, he went to
the Respondent’s Hartford office, as requested by Crump and
met with Burton and Hebert. Hebert did most of the talking for
the Respondent at this meeting. According to Boykin, Hebert
said that Crump shouldn’t have sold Boykin that board at that
price. He told him that Dana, which had been paying more for
the space, was very unhappy about being moved. Boykin told
Hebert and Ross that while he was sorry to hear this there was
nothing he could do about it, that his client had a signed con-
tract for that location at an agreed-upon rate and he was not
going to change it. Boykin recalled that Hebert asked during
this meeting how Crump had done as his account representa-
tive. Boykin testified that he replied that there had been a few
problems, citing the incident in late 2000 when Cracker Barrel
had been taken down from a board without its consent, but that
Crump was eager and had resolved any problems that came up.
Hebert also told Boykin in this meeting that he was going to
take Crump off the account. Boykin testified that he replied it
was their decision to make. Boykin testified that it appeared
that Hebert and Burton blamed Crump for the problem that
arose over Cracker Barrel bumping Dana off the board. Boykin
testified that he told Crump about Hebert’s plans to remove him
from the Cracker Barrel account over dinner, not breakfast, as
Crump recalled. Boykin also acknowledged that it was not
unusual for a sales manager or general manager to service the
Cracker Barrel account, that Lamar’s practice varied from of-
fice to office.

16 When recalled as a Rule 611(c) witness by the Respondent, Crump
admitted that he was the one who first suggested the Dana billboard to
Boykin.
LAMAR ADVERTISING OF HARTFORD 275
Boykin testified that the Cracker Barrel/ Dana Volkswagen
dispute was resolved, after Crump’s termination, by Dana’s ad
being returned to the billboard it had been occupying and the
Cracker Barrel ad being moved to another location further
north. This arrangement was to last through the end of the year,
at which point Dana’s ad would come down and the Cracker
Barrel ad would go back to the location specified in the contract
signed by Burton on August 30. According to Boykin, the Re-
spondent was to bear the costs involved in producing new ad-
vertising material and taking down and putting up Cracker Bar-
rel and Dana’s ads. In addition, the Respondent agreed not to
bill Cracker Barrel for the rest of the year while its ad was on a
different billboard than that specified in the contract.
Angeli also testified regarding the Cracker Barrel/Dana
Volkswagen issue. He recalled that Crump first approached him
in August about Cracker Barrel bumping Dana off its billboard.
Angeli acknowledged that, because of its pre-emptible contract,
Dana was always at risk of being bumped off the board by an-
other client willing to pay more for the space. Angeli testified
that the practice, however, is to give the holder of a pre-
emptible contract an opportunity to match or beat the higher
rate being offered by the other client. According to Angeli,
Crump did not do this. Angeli testified that after the initial con-
versations about Cracker Barrel bumping Dana, he heard noth-
ing further until he learned that a contract with Cracker Barrel
had already been signed at a lower rate than Dana was paying.
Specifically, he recalled that Crump never told him, before the
contract was signed, the terms of Crump’s offer to Cracker
Barrel.
Angeli recalled being in Burton’s office in early September
with Crump when he learned that Cracker Barrel had a signed
contract for Dana’s board. Angeli admits that he was upset that
his client had not been given a chance to match the rate offered
to Cracker Barrel. Angeli conceded that because Cracker Barrel
was a national account and a bigger client than Dana it would
probably get whatever it wanted. Angeli recalled Burton asking
him to pull the Dana contract. He and Crump left Burton’s
office and went to the file cabinets outside Hebert’s office to
pull the contract. According to Angeli, Crump went into
Hebert’s office while he got the contract. Next thing he knew,
Angeli was called into Hebert’s office. Angeli recalled that
Hebert did not appear to be familiar with the issue and seemed
surprised to learn that there was a signed contract with Cracker
Barrel. While he and Crump were discussing the issue, Burton
came into Hebert’s office. Angeli recalled Hebert telling Burton
to “wait till you’re a General Manager before you start signing
contracts.” He also recalled Hebert telling Burton to take his
account executives and resolve the problem. Angeli testified
that Burton was “mad” and that on leaving Hebert’s office Bur-
ton told him and Crump that he was not happy with their going
over his head to talk to Hebert. According to Angeli, the three
men returned to Burton’s office, he stated his case and went
back to his cubicle, telling Burton and Crump that they had to
work it out and let Angeli know what he was supposed to do
with Dana. Crump was still in Burton’s office when he left.
Angeli confirmed Boykin’s testimony regarding the compro-
mise that ultimately resolved the issue. According to Angeli, he
lost Dana as a client when its contract ran out in December,
despite having proposed a number of different locations to re-
place the board it lost to Cracker Barrel.
Burton also testified about the incident with Crump and An-
geli. He recalled that this meeting occurred in late August. Ac-
cording to Burton, this was the first discussion he had with
either of them about the disputed billboard. Burton recalled that
after Crump and Angeli laid out the facts he asked them to
retrieve a copy of the Dana contract to verify that it was pre-
emptible and what rate they were paying. After Crump and
Angeli left his office, Burton waited about 10 minutes and then
went to look for them. He admitted being surprised and “very
upset” to find them in Hebert’s office discussing the issue. He
told them to return to his office so they could work it out with-
out involving the general manager. Burton admitted telling
Crump and Angeli not to go over his head again, but denied
making any threat to Crump. According to Burton, the matter
escalated after this meeting. Although Burton believed he made
notes of this incident, none were produced. The only handwrit-
ten note from Burton offered into evidence is dated October 3,
the date of Crump’s termination, and refers only to the removal
of the Cracker Barrel account from Crump and Crump’s “threat
. . . to hire a lawyer to protect his income.”
Hebert confirmed Crump’s testimony that Crump com-
plained to him that Burton had threatened to “make his life so
miserable he couldn’t stand it” after Crump had gone over his
head to talk to Hebert about the Cracker Barrel/Dana billboard
dispute. Hebert investigated this complaint by meeting with
Burton and Angeli to get their versions of what happened. The
Respondent offered into evidence handwritten notes made by
Hebert in the course of investigating Crump’s complaint.
Hebert’s notes are dated August 27 and Hebert testified that he
believed that was the date he conducted the investigation. The
handwritten notes essentially corroborate the testimony of the
other witnesses as to their respective versions of the event with
one exception. Hebert’s notes indicate that Crump also stated
that Burton told him he would “fry his ass.” Crump denied that
Burton said this or that he told Hebert that Burton said this.
Hebert’s notes also do not reflect that he spoke to Houghton
about Burton’s alleged threat even though Houghton herself
recalled being asked about it by Hebert.
Crump testified that after having breakfast with Boykin on
October 3 he went into the Hartford office. Sometime after he
arrived, Hebert called the employees together and announced
that the Respondent had settled the unfair labor practice case
for a specified amount of dollars and that this was good for the
company and good for the employees who had been subpoe-
naed. According to Crump, Hebert said the subpoenaed em-
ployees wouldn’t have to feel uncomfortable and worry that
their jobs were in jeopardy. Hebert admitted gathering the em-
ployees together and telling them that the case had been settled.
He also admitted telling the employees that this was good for
the company and that nobody would have to testify. He specifi-
cally denied telling the employees that the subpoenaed employ-
ees wouldn’t have to worry about their jobs being in jeopardy.
None of the employees who testified in the Respondent’s case
recalled learning about the settlement at a meeting. Angeli testi-
fied that he learned from the Board’s counsel, not the Respon-
dent, that he did not have to testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD276
Immediately after this meeting, Crump asked to speak to
Hebert about what Boykin had told him over breakfast. Hebert
confirmed what Boykin had told Crump, i.e., that the Respon-
dent was going to take the Cracker Barrel account away from
him. When Crump asked why, Hebert said that Crump had
taken Cracker Barrel down without their permission. Crump
said that was correct but that Hebert knew about it. Crump then
reminded Hebert that this had occurred when the Respondent
had a dispute with a landowner, Peter Picknelly, over leases for
billboards in Massachusetts and that the account executives had
been instructed not to tell the clients that the billboards were
coming down until the last minute.17 According to Crump,
although Hebert agreed with his recollection of the events, he
told Crump that they were taking the account away from him
anyway. Crump denied that Hebert cited the more recent issue
with the Cracker Barrel/Dana Volkswagen board as the reason
for this action. Crump then told Hebert that he hoped he
wouldn’t go through with this because, if he did, Crump would
have very little alternative than to seek legal advice. At that
point, according to Crump, Hebert told him to get out of his
office.
After leaving Hebert’s office, Crump went to see Burton.
According to Crump, Burton told him the decision was not
“written in stone yet.” Crump told Burton that he hoped they
changed their mind because, if they took Cracker Barrel away
from him, he would have no alternative but to seek legal ad-
vice. According to Crump, Burton did not give him any reason
why the Respondent was considering removing the account
from him. Crump left the office to go out to work after his con-
versation with Burton.
Hebert testified that he took Crump off the Cracker Barrel
account because of what happened with the Dana Volkswagen
board. According to Hebert, Crump should not have promised
Cracker Barrel that location at the rate he did because it caused
problems for the Respondent with one of its largest national
clients as well as with a local client. Hebert specifically denied
that the earlier issue with Cracker Barrel, when they were re-
moved because of the Picknelly lease dispute, had anything to
do with his decision to remove Crump from the account. Hebert
testified further that, when Crump asked him, on October 3,
why Hebert was taking the account away, he told Crump that it
was because of the “many discussions they had about his lack
of attention to detail and paperwork that caused problems like
this.” According to Hebert, he told Crump that his actions had
caused problems for the Respondent with a national and local
client and that they couldn’t have it happen again. Hebert testi-
fied further that Crump said he was going to hire a lawyer.
According to Hebert, he responded to this by telling Crump to
“do what you feel you need to do.” Burton was not asked any
questions by the Respondent’s counsel about this issue.
When Crump returned to the office in the afternoon, on Oc-
tober 3, Hebert called him into his office. Burton was also
there. According to Crump, Hebert said, “You leave me no
alternative but to terminate you. What were you thinking, espe-

17 There is no dispute that the Picknelly lease dispute occurred in late
2000—early 2001 and was resolved shortly after Hebert took over as
General Manager.
cially after what just happened with Ken and Rachel?” Hebert
told Crump he didn’t want to fire him and he asked Crump to
“talk me out of it.” Crump responded that his numbers speak
for themselves, that he had billed $1.3 million for the current
year and almost $490,000 for the next year. He told Hebert that
if he was going to start terminating people because of their
numbers, that there were a lot of people whose numbers were
lower. Burton then interjected that Crump was not committed
to the Company. When Hebert asked Crump what he thought of
Burton’s comment, Crump responded with examples of his
commitment to the Company. According to Crump, Hebert and
Burton then brought up his “threat to sue” them. Crump replied
that he did not threaten to sue them, he only said he was going
to seek legal advice. Crump testified that Burton then said,
“We’re tired of the NLRB poking and digging through our
books and records.” Crump recalled that Hebert wrapped up the
meeting by telling Crump that he was trying to find a way out
of this, that all Crump had to do was say he was not going to
seek legal advice and sue them. Crump replied that he could
not say this because today it was Cracker Barrel, tomorrow it
could be another account. Hebert responded, “You’re probably
right.” Hebert told Crump that he was terminated and that he
would contact Crump later to discuss severance and COBRA.
According to Crump, Hebert did contact him later that evening
and asked for a couple days so Hebert could talk to “corporate”
and come back with a settlement offer that would be agreeable
to everyone. Crump testified that Hebert never did contact him
again with such an offer.
Burton was not asked any questions about Crump’s termina-
tion and the meeting at which Crump was informed he was
terminated. Burton did not specifically deny the statement at-
tributed to him by Crump about the NLRB. Hebert testified that
he made the decision to terminate Crump and that he relied on
Crump’s track record of customer service complaints with the
Cracker Barrel/Dana Volkswagen issue being the last straw.
According to Hebert, it was Crump’s unwillingness to take
responsibility for any of the problems that arose with his clients
that persuaded him to take the drastic step of termination.
Hebert acknowledged that his memory regarding the meetings
was “fuzzy” and he exhibited confusion regarding some of the
meetings. Nevertheless, he claimed that he reviewed with
Crump at this meeting all of the issues in his “critical incident
file” and that the meeting lasted several hours. Hebert denied
that Crump’s “threat” to seek legal advice affected his decision
other than to confirm his belief that Crump was unwilling to
take responsibility for any mistakes he may have made. Hebert
did not specifically contradict Crump’s testimony that Hebert
referred to Rychling and Simmons when discussing Crump’s
“threat to sue.” Hebert also did not specifically contradict
Crump’s testimony that Hebert said during this meeting that all
Crump had to do to avoid termination was say he wasn’t going
to seek legal advice and sue them. Although Hebert and Burton
referred in their testimony to a “critical incident file,” which
Burton apparently started maintaining sometime in June, no
such file was offered into evidence.18

18 During the course of the hearing, the Respondent offered a number
of documents, including correspondence regarding some of Crump’s
LAMAR ADVERTISING OF HARTFORD 277
In an attempt to show disparate treatment, the General Coun-
sel offered into evidence documents purported to be written
warnings given to other employees before they were termi-
nated. Hebert conceded that he has in some situations issued
written warnings to employees before terminating them. Hebert
testified further that it is his practice to try to work with an
employee, or “coach” them, before taking the step of termina-
tion.19 He claimed that he, in fact, did this with Crump. Ac-
cording to Hebert, he met with Crump on numerous occasions
to discuss customer complaints, Crump’s lack of attention to
details and poor paperwork. He conceded that there was no
written documentation of these “coaching” sessions. Although
Crump denied receiving any warnings before his termination
that his job was in jeopardy, he did acknowledge having discus-
sions with Burton and Hebert about issues that arose with his
clients. While disagreeing with Respondent’s counsel’s charac-
terization of these discussions during cross-examination,
Crump did acknowledge being told by Burton and Hebert that
he did not take constructive criticism very well and always
made excuses. He did not say when this occurred.
Finally, the General Counsel offered, as rebuttal evidence,
the position statement submitted by the Respondent’s attorney
on November 22, during the investigation of Crump’s charge.
During the investigation, the Respondent took the position that
Crump was discharged for poor customer service and unsatis-
factory job performance.20 As examples, the Respondent’s
attorney cited the same issues with some of Crump’s accounts
that it developed at the hearing through cross-examination and
Rule 611(c) examination of Crump.21 In the position statement,
counsel also claimed that Crump’s sales performance had de-
clined after April 2002, attaching documents to support this
claim. Similar documents were introduced at the hearing. Al-
though Hebert did not emphasize the declining sales perform-
ance in his testimony, he did refer to it when question by coun-
sel for the General Counsel and the Respondent. Moreover, the
documentary evidence does support the claim that Crump’s
sales performance, including his solicitation of new business,
had declined, even though he had already made his yearly
budget by the time of his discharge. Finally, the Respondent’s
counsel, in the position statement, cited Crump’s handling of
the Cracker Barrel/Dana Volkswagen billboard dispute as the

accounts, into evidence and questioned Crump and other witnesses
about problems that arose with specific clients, some dating to a year or
more before Crump’s termination. It was never explicitly stated that
these were the “incidents” in Crump’s file that Hebert relied on to
terminate Crump.
19 Although Hebert identified four other employees he terminated for
poor performance and a fifth who he terminated because of a customer
complaint, no specifics were provided regarding what led to the termi-
nation of each. In light of the absence of such evidence, it is impossible
to determine whether the circumstances surrounding their terminations
were comparable to that of Crump.
20 This is similar to the reason identified by Hebert on a termination
report he prepared on October 4, i.e., “poor performance regarding
customer service.”
21 Although Crump disputed most of the claims made by Respon-
dent’s counsel regarding these accounts, the issues cited at the hearing
regarding these accounts do not differ from those cited in the position
statement.
event that triggered his termination. Hebert’s explanation at the
hearing of his reason for discharging Crump over this dispute
was almost identical to counsel’s claim in the position state-
ment that Crump sold a billboard that was already under con-
tract to a local client to one of the Respondent’s biggest na-
tional clients for less than the local client was paying, resulting
in a loss of revenue to the Respondent.
B. Analysis
1. 8(a)(1) allegations
The complaint alleges that the Respondent, through Burton,
violated Section 8(a)(1) of the Act on or about September 9 by
threatening Crump with unspecified reprisals because Crump
concertedly complained to Hebert about Burton’s supervision.
This allegation is based on Crump’s testimony that Burton told
him, after he and Angeli had met with Hebert about the Cracker
Barrel/Dana dispute, “don’t ever go over my head again or I’ll
make your life so miserable you can’t stand it.” Burton denied
making this statement. No other witness could corroborate
Crump as to this particular statement because it was uttered
when he and Burton were alone in Burton’s office. I credit
Crump’s testimony that the statement was made because it is
consistent with the testimony of other witnesses that Burton
was angry and yelled at Crump and Angeli in the hallway about
their having gone over his head. Considering Burton’s state of
mind at the time, it is likely he did go further and threaten
Crump when the two of them were alone in his office.
Crediting Crump’s testimony does not end the analysis with
respect to this allegation because the threat is unlawful only if
directed at concerted activity that is protected under the Act. It
is clear that the threat was made by Burton because he believed
Crump and Angeli had “gone over his head” when he found
them in Hebert’s office discussing the Cracker Barrel/Dana
issue. Burton was, in fact, correct in his belief. There is no dis-
pute that Crump took it upon himself to “pick [Hebert’s] brain”
for a creative solution to the dispute at a time when he and An-
geli were in the midst of a meeting with Burton over the same
issue. Although Crump testified that he solicited Angeli’s
agreement to bring the matter to Hebert, I find Angeli’s testi-
mony, that Crump went into Hebert’s office first and then he
was called in, more credible. Thus, there was nothing concerted
about Crump’s activity. Even assuming Crump and Angeli did
discuss soliciting Hebert’s input before they went into the of-
fice to discuss the matter, the subject of the meeting, i.e., what
to do about the competing claims to the billboard, is not a mat-
ter protected by the Act. No employee right within the broad
definition of Section 7 was implicated by this essentially rou-
tine workplace encounter. I specifically find that the General
Counsel has not proved that Crump and Angeli concertedly
complained about Burton’s supervision. Crump’s sole interest
in going into Hebert’s office that day was to get a favorable
resolution for his client to the dispute to protect his commis-
sion. While Burton’s threat in response to this was unprofes-
sional and inappropriate, it did not rise to the level of an unfair
labor practice under the Act. Accordingly, I shall recommend
dismissal of this allegation of the complaint.
The complaint alleges that the Respondent, again through
Burton, violated Section 8(a)(1) of the Act on or about Septem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD278
ber 18, by threatening employees with the loss of bonuses be-
cause the General Counsel had issued subpoenas to several
employees, including Crump, in connection with the unfair
labor practice trial in the prior case. The General Counsel relies
upon Crump’s testimony about the impromptu sales meeting
Burton held on the same day Crump informed Hebert that he
had been subpoenaed. Burton did not specifically contradict
Crump’s testimony regarding this allegation. At the same time,
no other employee who was allegedly present when the threat
was made corroborated Crump. Angeli, who was called as a
witness by the Respondent recalled a different meeting, one at
which Burton referred to the Respondent’s shortfall going into
the fourth quarter and “jokingly” threatened to take any bo-
nuses he lost out of the employees’ pay if the Respondent did
not improve in the next quarter.
I find it unnecessary to make any credibility resolution with
respect to this allegation because I find that even if Crump were
credited the statements attributed to Burton would not violate
the Act. I note, in particular that Crump did not testify that
Burton linked the potential loss of bonuses to the upcoming
unfair labor practice trial or the issuance of subpoenas. The
only connection between Burton’s alleged threat and the issu-
ance of subpoenas is the timing of the alleged statement. The
fact that Burton told employees they would lose their bonuses if
they did not make up a budget shortfall on the same day that
Crump and Angeli told Hebert that they had been subpoenaed
is nothing more than a coincidence. Without any express link-
age by Burton in his statements to employees, it is unlikely the
employees would reasonably believe that the potential loss of
bonuses had something to do with the trial or the fact that some
of them had received subpoenas. In fact, there is no evidence
that any employees, other than those who had been subpoenaed,
even knew that subpoenas had been issued. In making these
findings, I also note the testimony of Angeli and Giordano that
it was not uncommon to have sales meetings and to offer incen-
tives to the account executives to push them to meet their goals.
I find that Burton’s statement on September 18 was nothing
more than a motivational sales tool unrelated to any activity
protected by the Act. Accordingly, I shall recommend dismissal
of this allegation as well.
The complaint alleges that the Respondent, through its attor-
ney and agent, Nelson, violated Section 8(a)(1) of the Act on or
about October 2 by impliedly threatening Crump with job loss
because he had informed the Respondent that he had been sub-
poenaed by the General Counsel to testify at the unfair labor
practice hearing and that his testimony would be unfavorable to
the Respondent. The General Counsel relies upon Crump’s
uncontradicted testimony that, during his meeting with Nelson
in preparation for the trial, Nelson said, “there are loopholes
and that’s a possibility” in response to Crump’s statement that
if a company wants to terminate an employee, it’s going to find
a way to do it.
While there is no dispute that such a statement was made, it
occurred in the context of an employee interview that in all
other respects satisfied the Board’s Johnnie’s Poultry require-
ments. Crump acknowledged reading and signing a written
statement of his rights under that decision, he confirmed that
Nelson told him he was protected under the law and that he
didn’t have anything to worry about, and he admitted that,
when he asked Nelson what he should do, Nelson told him that
all the Respondent wanted him to do was tell the truth. Only
when Crump pushed him to acknowledge “the reality” that an
employer will find a way to rid itself of an employee it didn’t
want did Nelson acknowledge this grim reality. I find that Nel-
son’s agreement with Crump’s description of the “real world,”
when considered in the context of the entire interview, did not
amount to an implied threat of job loss because Crump had
been subpoenaed or was going to testify adversely to the Re-
spondent. Accordingly, I shall recommend dismissal of this
allegation as well.
Finally, the complaint alleges that the Respondent violated
Section 8(a)(1) of the Act on October 3 when Hebert allegedly
informed Crump that he was being terminated because he had
informed the Respondent that he had been subpoenaed by the
General Counsel to testify at the unfair labor practice hearing
and that his testimony would be unfavorable to the Respondent.
Crump did not testify that this was the reason he was given
when Hebert terminated him on October 3. Rather, Crump testi-
fied that Hebert opened the meeting on October 3 by saying,
“you leave me no alternative but to terminate you. What were
you thinking, especially after what happened with Ken [Sim-
mons] and Rachel [Rychling]” and that Hebert ended the meet-
ing by saying that “all Crump had to do [to avoid termination]
was say he was not going to seek legal advice and sue them”
and that Hebert told him he was terminated when he wouldn’t
say this. Hebert did not specifically deny making these state-
ments but he did contradict Crump’s version of the final meet-
ing between them.
Looked at narrowly, the General Counsel has not met his
burden with respect to this allegation because there is no evi-
dence that Hebert in fact told Crump specifically that he was
being terminated because of the subpoena or because of his
expected testimony at the unfair labor practice hearing which,
by October 3, was no longer going forward. The statements
attributed to Hebert by Crump are subject to the interpretation
that Crump was being fired because he had indicated his intent
to seek legal advice over the Respondent’s removal of the
Cracker Barrel account. Hebert’s alleged reference to what had
just happened with the two alleged discriminatees in the prior
unfair labor practice case suggests that Hebert may have linked
Crump’s desire to seek legal advice with those two former em-
ployees having pursued charges with the NLRB. Under this
analysis, it could be argued that Hebert was essentially telling
Crump he was being fired for threatening to file a charge with
the NLRB. However, even assuming the complaint allegation
were broad enough to cover this theory of a violation, I am not
prepared to reach this conclusion. As will become apparent in
the next section of this decision, I find that Hebert’s reference
to Crump’s perceived threat to sue was not a reference to his
having been subpoenaed by the Board. Moreover, because there
is no evidence that Crump ever told Hebert that his testimony at
the unfair labor practice hearing was going to be unfavorable to
the Respondent, Hebert could not have cited this as a factor in
his decision to terminate Crump. In sum, I find that even con-
sidering Crump’s testimony in the most favorable light, the
General Counsel has not proved that the Respondent told
LAMAR ADVERTISING OF HARTFORD 279
Crump that his being subpoenaed or his participation in the
Board’s unfair labor practice proceedings was the reason for his
termination. Accordingly, I shall recommend dismissal of this
allegation. In the next section of this decision, I will address the
question whether, irrespective of what Hebert said on October
3, he in fact terminated Crump because of he had been subpoe-
naed.
2. The 8(a)(1) and (4) allegations
The complaint alleges that the Respondent took the Sam’s
Outdoor and Cracker Barrel accounts away from Crump on
September 18 and October 3, respectively, and terminated
Crump on October 3 because Crump cooperated with the Gen-
eral Counsel and planned to give testimony to the Board in the
prior unfair labor practice case. Because resolution of this issue
turns on motivation, the Board’s decision in Wright Line22 is
applicable. Under Wright Line, the General Counsel bears the
initial burden of proving by a preponderance of the evidence
that protected activity, such as participation in a Board proceed-
ing, was a motivating factor in the employer’s decision to take
adverse action against an employee. To meet this burden, the
General Counsel must offer evidence that the employer was
aware of the employee’s protected activity, and had animus
against such activity motivating the employer to take the action
it did. The Board has recognized that direct evidence of an
unlawful motivation is rarely available. The General Counsel
may meet his burden through circumstantial evidence, such as
timing and disparate treatment, from which an unlawful motive
may be inferred. See Naomi Knitting Plant, 328 NLRB 1279
(1999), and cases cited therein. However, mere suspicion is not
enough to sustain the General Counsel’s burden. King’s Ter-
race Nursing Home, 229 NLRB 1180 (1977). See also New
Otani Hotel & Garden, 325 NLRB 928 (1998); Alexian Bros.
Medical Center, 307 NLRB 389 (1992). If the General Counsel
meets his burden, then the burden shifts to the respondent to
prove by a preponderance of the evidence that it would have
taken the same action, or made the same decision, even in the
absence of protected activity. To meet its burden, a respondent
simply has to show that it “possessed a good-faith belief (e.g.,
not one that was the result of a discriminatory failure to investi-
gate) that [the employee] engaged in misconduct and that that
belief was the motivating cause of the discharge.” Doctor’s
Hospital of Staten Island, Inc., 325 NLRB 730 fn. 3 (1998).
See also Rockwell Automation/Dodge, 330 NLRB 547, 549–
551 (2000).
It is undisputed that Crump was subpoenaed to testify in the
prior unfair labor practice case by the General Counsel. I credit
Crump’s testimony, over Hebert’s denial, that Crump informed
Hebert that he had received a subpoena on September 18. An-
geli corroborated Crump to the extent he testified that the three
subpoenaed employees, Crump, Angeli, and Lambert, met with
Hebert in September and told Hebert that they had all received
subpoenas. In any event, the Respondent was aware that Crump
was going to be a witness for the General Counsel by the time

22 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See also Manno Electric, 321
NLRB 278, 280 fn. 12 (1996).
Crump met with attorney Nelson on October 2. Although there
is no evidence that Crump told Hebert what he was going to
testify about, he did provide information to Nelson on October
2 indicating that, at the least, he would corroborate the union
activity of the two alleged discriminatees. To the extent that
proof of such activity was a critical element in the General
Counsel’s case against the Respondent, this information would
put the Respondent on notice by October 2 that Crump’s testi-
mony would be adverse to the Respondent.23 As previously
noted, there is no evidence that the Respondent was aware be-
fore September 18 of any participation by Crump in the inves-
tigation or prosecution of the prior unfair labor practice
charges.
Having recommended dismissal of the independent 8(a)(1)
allegations, the only remaining evidence of animus on the part
of the Respondent is Burton’s statement during Crump’s dis-
charge meeting that the Respondent was “tired of the NLRB
poking and digging through our books and records.” Because
Burton is still employed as the Respondent’s sales manager and
would be expected to be favorably disposed to the Respondent,
I must draw an adverse inference from the Respondent’s failure
to question Burton about this comment. Queen of the Valley
Hospital, 316 NLRB 721 (1995). Such a comment is evidence
that the Respondent did not view NLRB investigations favora-
bly. In addition, Crump’s testimony that Hebert asked, “what
were you thinking, especially after what just happened with
Ken and Rachel” another reference to the unfair labor practice
charges that had just been settled, is further evidence of animus
that was not contradicted by the Respondent.
The timing of the Respondent’s actions against Crump, i.e.,
removing the Sam’s Outdoor account on the same day that
Crump told Hebert that he had been subpoenaed and removing
the Cracker Barrel account and terminating him soon after
Crump met with Attorney Nelson, strongly supports an infer-
ence that Crump’s participation in the unfair labor practice case
played a role in the Respondent’s decision to take these actions.
Further support for such an inference can be found in the seem-
ingly abrupt nature of the Respondent’s actions, there being no
dispute that the Respondent took these actions without warning
Crump in advance of the possibility he could lose two valuable
accounts and his job. In this regard, I find that whatever con-
versations occurred beforehand among Crump, Burton, and
Hebert, regarding specific issues that cropped up involving
Crump’s handling of his accounts, were not sufficient to put
him on notice that his livelihood and job were in jeopardy.
Because the General Counsel has proved knowledge and
animus and sufficient circumstances to support an inference of
unlawful motivation, I find that the General Counsel has met
his initial burden of proof in this case. The burden was thus on
the Respondent to show, notwithstanding the strong indication
that it took adverse action against Crump because he had been
subpoenaed, that it would have acted the same even in the ab-
sence of the subpoena. Resolution of this issue is complicated
by the coincidence of events here. Specifically, Crump was

23 Because the Respondent admitted that Nelson was its agent for
purposes of representing the Respondent in the unfair labor practice
case, any knowledge he had must be imputed to the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD280
subpoenaed and suffered these adverse actions at the same time
that the Respondent was dealing with significant problems on
two of Crump’s accounts. Although the problems with the
Sam’s Outdoor account began 6 months earlier, they apparently
came to a head in September when Burton and Hebert went to
Vermont to meet with the client, shortly after receiving the last
angry letter from this client. Crump was removed from the
account shortly after Burton and Hebert returned from Ver-
mont. Similarly, the dispute over the Cracker Barrel/Dana
Volkswagen billboard was being played out in August and
September, reaching a head on October 2, when Hebert met
with Boykin in an unsuccessful attempt to renegotiate the
Cracker Barrel contract that had been proposed by Crump and
signed by Burton. Under these circumstances, it is almost im-
possible to know, with any certainty, which was the true moti-
vating factor, the Respondent’s animus toward Crump’s par-
ticipation in the NLRB proceeding, or its displeasure with the
way he was handling his accounts.
After careful consideration, I have concluded that the weight
of the evidence establishes that the Respondent would have
taken the two accounts away from Crump and terminated him
even had he not been subpoenaed by the Board. I have reached
this conclusion notwithstanding the fact that Crump was not the
cause of Sam’s disagreements with the Respondent and not-
withstanding the fact that it was Burton, not Crump, who
signed the contract with Cracker Barrel before a resolution was
reached with Dana Volkswagen, even though Burton had no
authority to do so. I reach this result because I found Hebert’s
testimony, that Crump should have done a better job of resolv-
ing the problems with Sam’s before they reached the point they
did and that Crump should not have undersold the local client,
persuasive. With respect to the removal of the Sam’s account,
Hebert’s testimony was bolstered by the testimony of Angeli
that, at times, the best way to handle a difficult client is to
change account representatives, essentially to start over with a
clean slate. Moreover, the removal of the Sam’s account took
place at a time when the Respondent knew no more than that
Crump was one of three employees who had been subpoenaed
by the General Counsel. Because the Respondent took no ad-
verse action against the other two, the balance tips in favor of a
nondiscriminatory motive for this particular action.
The Cracker Barrel/Dana Volkswagen dispute is more trou-
blesome. Although Crump may have erred in promising the
billboard to Boykin at a lower rate than Dana was paying for
the same spot and in not advising Angeli beforehand that this
was the offer being extended to Cracker Barrel, Burton erred in
signing a contract committing the Respondent to these terms
without authorization. While Crump lost the account and was
terminated over this, Burton apparently suffered no adverse
consequences for his involvement in the dispute. This set of
circumstances suggests that Crump was unjustly terminated.
The same set of circumstances also suggests that the true moti-
vation behind this unjust discharge was not Crump’s subpoena
but Burton’s and Hebert’s desire to protect Burton and make
Crump the scapegoat for the problems caused by the Cracker
Barrel contract. Any injustice suffered by Crump at the hands
of the Respondent, however, is not one cognizable under the
Act.24
The timing of the Respondent’s decisions to remove Crump
from the Cracker Barrel account and terminate him also tip the
balance in favor of the Respondent. The decision to remove
Crump from the account was made after Boykin had refused
Hebert’s request to renegotiate the contract, and the decision to
terminate Crump was made after he informed the Respondent
that he was going to seek legal advice if they took this account
away. By the time these decisions were made, the unfair labor
practice case had been settled, eliminating the possibility that
Crump would testify adversely to the Respondent. There was
thus no reason, at the time, to retaliate against Crump for his
participation in the Board’s processes. I find, as noted above,
that the Respondent’s true motivation for taking Crump off the
Cracker Barrel account is that described above, i.e., to make
Crump the fall guy for the problems that arose between Cracker
Barrel and Dana Volkswagen. I also find that the Respondent
decided to go further and terminate Crump when it believed he
was going to hire a lawyer and sue the Respondent for taking
the account away. Crump’s “threat to sue” was not protected
activity under the Act because it is clear that he intended to
seek legal advice to protect his individual interest in income
from this account rather than to promote any common interest
among the Respondent’s employees.
In conclusion, I find that the General Counsel has not proved
by a preponderance of the evidence that the Respondent took
the actions it did against Crump because he had been subpoe-
naed and planned to testify in a Board proceeding. Accord-
ingly, I shall recommend dismissal of this allegation of the
complaint.
CONCLUSION OF LAW
The Respondent has not committed any unfair labor prac-
tices in violation of Section 8(a)(1) and (4) of the Act, as al-
leged in the complaint.
[Recommended Order is omitted from publication.]

24 I express no opinion on what, if any, private cause of action
Crump may have against the Respondent. That is a matter for discus-
sion between Crump and an attorney of his choosing.