Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 177 (N.L.R.B. 2018)

366 NLRB No. 177
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ozburn-Hessey Logistics, LLC, and United Steel, Pa-
per and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers In-
ternational Union, AFL–CIO, CLC a/k/a United
Steelworkers Union and Lauren Keele and
Stacey Williams. Cases 26-CA-092192,
15-CA-097046, 15-CA-105527, 15-CA-106180,
15-CA-106387, 15-CA-106511, 15–CA–108749,
15-CA-109235, 15-CA-111520, 15-CA-111523,
15-CA-111581, 15–CA–117208, 15–CA–119826,
15–CA–119925, 15–CA–123315, and 15–CA–
117208
August 27, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND MCFERRAN
On April 28, 2015, Administrative Law Judge Keltner
W. Locke issued the attached decision. The judge found
that the Respondent violated Section 8(a)(5), (3), and (1)
of the Act in various ways, and he dismissed a number of
complaint allegations. On review of the record in light
of the exceptions and briefs,1 we affirm most of the
judge’s findings to the extent consistent with this Deci-
sion and Order, but for the reasons set forth below, we
reverse some of the judge’s findings.2 Moreover, alt-

1 The General Counsel and Charging Party United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL–CIO, CLC (the Union) each filed
exceptions and a supporting brief, the Respondent filed a combined
answering brief to both sets of exceptions, and the General Counsel and
the Union each filed a reply brief. The Respondent filed exceptions
and a supporting brief, the General Counsel and the Union each filed an
answering brief, and the Respondent filed a reply brief.
2 In the absence of exceptions, we adopt the judge’s dismissal of al-
legations that the Respondent violated Sec. 8(a)(1) by twice informing
employees that they were not in the bargaining unit and by discrimina-
torily drug-testing employees, and Sec. 8(a)(5) by implementing a
mandatory exercise program in January 2013. However, as explained
below, we adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by telling employees, on a third occasion, that they were not in
the bargaining unit, and Sec. 8(a)(5) by unilaterally implementing a
mandatory exercise program in May 2013.
The General Counsel has explicitly, and the Charging Party and Re-
spondent have implicitly, 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.
In addition, some of the General Counsel’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
hough the judge ordered some additional remedies in an
attempt to ensure the effectiveness of his order, we be-
lieve even those added measures are insufficient in light
of the Respondent’s repeated, serious violations of the
Act in this case as well as in five previous court-enforced
Board decisions.3 Accordingly, we have modified the
judge’s recommended remedies and Order to more fully
address the Respondent’s pattern of egregious miscon-
duct.4
Discussion
In 2009, the Union began a campaign to organize
workers at the Respondent’s Memphis, Tennessee ware-
houses. A representation election was held on July 27,
2011, and the Union was certified as the exclusive repre-
sentative of the bargaining-unit employees on May 24,
2013.5 Most of the allegations in the instant consolidated
proceeding involve conduct that occurred immediately
after a May 14, 2013 revised tally of ballots showed that
the Union had won the 2011 election.6
For the reasons stated by the judge, we adopt his con-
clusions that the Respondent violated Section 8(a)(1) of
the Act (1) on May 14, when Operations Manager Mar-

dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that these contentions are without merit.
We do not rely on the judge’s citations to Flex-N-Gate Texas, 358
NLRB 622 (2012), and Bloomfield Health Care Center, 352 NLRB 252
(2008), enfd. 372 Fed. Appx. 118 (2d Cir. 2010), decisions that issued
at times when the Board was later determined to have lacked a validly
appointed quorum. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014);
New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010). We note that
Vision of Elk River, 359 NLRB 69 (2012), cited by the judge, was
reaffirmed by the Board at 361 NLRB 1395 (2014).
3 Since the start of the Union’s organizing drive in 2009, the Board
has issued five decisions finding that the Respondent has violated the
National Labor Relations Act, and the Court of Appeals for the District
of Columbia Circuit has enforced the Board’s order all five times. See
Ozburn-Hessey Logistics, LLC, 357 NLRB 1456 (2011), enfd. mem.
605 Fed. Appx. 1 (D.C. Cir. 2015); Ozburn-Hessey Logistics, LLC, 357
NLRB 1632 (2011), enfd. mem. 609 Fed. Appx. 656 (D.C. Cir. 2015);
Ozburn-Hessey Logistics, LLC, 361 NLRB 921 (2014), incorporating
by reference 359 NLRB 1025 (2013), enfd. 833 F.3d 210 (D.C. Cir.
2016); Ozburn-Hessey Logistics, LLC, 362 NLRB No. 118 (2015),
enfd. 833 F.3d 210 (D.C. Cir. 2016); and Ozburn-Hessey Logistics,
LLC, 362 NLRB No. 180 (2015), enfd. mem. 689 Fed. Appx. 639 (D.C.
Cir. 2016). This is the sixth such decision, demonstrating the Respond-
ent’s apparent determination to continue disregarding its legal obliga-
tions under the Act.
4 We have amended the judge’s remedy and modified the judge’s
recommended Order consistent with our findings herein and to conform
to the Board’s standard remedial language.
5 Because the Regional Director issued that certification following a
decision issued when the Board included two members whose ap-
pointments were not valid (Ozburn-Hessey Logistics, LLC, 359 NLRB
1025 (2013)), the Board re-certified the Union on November 17, 2014,
“in an abundance of caution.” Ozburn-Hessey Logistics, LLC, 361
NLRB 921, 921 (2014), enfd. 833 F.3d 210 (D.C. Cir. 2016).
6 All dates are in 2013 unless otherwise noted.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
garet Bonner ordered employees Jerry Smith Sr.7 and
Glenora Whitley to leave the Respondent’s premises
while they were engaged in lawful union solicitation and
distribution activities; (2) on May 15, when Director of
Operations Phil Smith removed union literature from a
break room; and (3) on May 17, when Bonner told em-
ployees that if they were unsatisfied with their jobs, they
should quit. We also adopt the judge’s conclusions, for
the reasons he gives, that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by (1) unilaterally imple-
menting a mandatory exercise program in about May
2013; (2) unilaterally implementing an advance-notice
requirement for employees requesting time off; (3) uni-
laterally changing its policy to disallow employees from
using paid time off to make up their hours when they are
sent home early; (4) unilaterally changing the Shipping
Department hours from 8 hours per day, 5 days per week
to 11 hours per day, 3 days per week; (5) unilaterally
changing the Inventory Department’s start time from 4
a.m. to 8 a.m.; (6) unilaterally increasing enforcement of
its policy prohibiting employees from leaving the build-
ing after clocking in; and (7) refusing to provide request-
ed relevant information to the Union.8
We also agree with the judge, for the reasons he states,
that the Respondent did not violate Section 8(a)(1) when,
(1) on May 14, Bonner allegedly engaged in surveillance

7 There are two Jerry Smiths who are alleged as discriminatees in
this case. To avoid confusion and comport with the way witnesses
identified them at the hearing, we refer to the elder Jerry Smith (re-
ferred to by the judge as “Smith III”) as “Smith Sr.,” and to his son as
“Smith Jr.”
8 Regarding the Sec. 8(a)(5) violations, it is well established that
“[w]hen a majority of the unit employees have selected the union as
their representative in a Board-conducted election, the obligation to
bargain, at least with respect to changes in terms and conditions of
employment, commences not on the date of certification, but as of the
date of the election.” Alta Vista Regional Hospital, 357 NLRB 326,
326–327 (2011) (citing Mike O’Connor Chevrolet-Buick-BMC Co., 209
NLRB 701 (1974)), enfd. sub nom. San Miguel Hospital Corp. v.
NLRB, 697 F.3d 1181 (D.C. Cir. 2012). Accordingly, “an employer
acts at its peril in making changes in terms and conditions of employ-
ment during the period that objections to an election are pending and
the final determination has not yet been made.” Id. An employer also
assumes the risk if it refuses to provide relevant information requested
by a union during the pendency of objections or challenges, even if the
request is made prior to certification. Id. at 327 (citing Sunstrand Heat
Transfer, Inc. (Triangle Division), 221 NLRB 544, 545 (1975), enfd. in
relevant part 538 F.2d 1257, 1259 (7th Cir. 1976)). Here, it is undis-
puted that the Union requested relevant information necessary for bar-
gaining on June 17, 2013—shortly after the Board’s initial May 24
certification—and that it had previously requested bargaining. Because
the Respondent was obliged to provide relevant requested information
and to refrain from making unilateral changes at all times after the July
27, 2011 election, we find it unnecessary to rely on the judge’s finding
that the Union’s certification “relates back” to May 24 or to determine
whether the May 24 certification was valid absent the Board’s subse-
quent prophylactic re-certification on November 17, 2014.
of employees’ union activities; (2) on May 15, Supervi-
sor Kyle Perkins allegedly engaged in surveillance or
created the impression of surveillance of employees’
union activity; (3) on May 23, the Respondent denied
employee Nannette French’s request for a union repre-
sentative during a meeting to communicate its previous
decision to discharge her; (4) on August 30, Phil Smith
threatened Smith Sr. with repercussions for distributing
union material during work time and disobeying an in-
struction to cease doing so; and (5) on September 5, the
Respondent denied Smith Sr.’s request for a union repre-
sentative during an investigative interview and chose
instead to terminate the interview. We also dismiss
complaint allegations, for the reasons given by the judge,
that the Respondent violated Section 8(a)(3) and (1)
when it issued a final warning to Smith Sr. for distrib-
uting union material on work time; suspended and dis-
charged employee Renal Dotson; discharged employees
Jerry Smith Jr., Reginald Ishmon, DeAngelo Walker, and
Nate Jones; and transferred employee Jennifer Smith to a
small-parts picking job and subsequently issued her a
final warning.9
Below, we discuss the remaining unfair labor practice
allegations. As we explain, we agree with the judge that
the Respondent did not violate Section 8(a)(1) on May
14 when Operations Manager Antonio Goodloe allegedly
engaged in surveillance of employees’ union activity.10
We also agree with the judge that the Respondent did
violate Section 8(a)(1) on September 5, when Human
Resources Manager Sarah Wright told Smith Sr. that he
had no union representation. And we affirm the judge’s

9 The General Counsel further alleged that the Respondent violated
Sec. 8(a)(4) when warning Smith Sr. and Jennifer Smith, transferring
Jennifer Smith, and suspending and discharging Dotson, because this
discipline was also in retaliation for those employees’ prior filing of
Board charges or giving testimony in Board proceedings. We find that
this conduct did not violate Sec. 8(a)(4) for the same reasons we affirm
the judge’s dismissal of the 8(a)(3) allegations—i.e., the Respondent
proved that it would have taken these actions even in the absence of the
employees’ protected activity. In adopting the judge’s dismissal of the
allegation regarding Nate Jones, we do not rely on the judge’s state-
ment that Jones’ refusal to corroborate Director of Operations Phil
Smith’s version of events regarding the suspension of Smith Sr. was not
protected concerted activity. Instead, we adopt the judge’s credibility-
based finding that Human Resources Manager Shannon Miles, who
made the decision to discharge Jones, did not know about Jones’ union
or protected concerted activity. Accordingly, we decline to impute to
Miles any knowledge that other managers may have had of Jones’
protected activity. See Vision of Elk River, Inc., 359 NLRB 69, 72
(2012) (“[T]he Board imputes a manager’s or supervisor’s knowledge
of an employee’s union activities to the decisionmaker, unless the em-
ployer affirmatively establishes a basis for negating such imputation.”)
(emphasis added), incorporated by reference in 361 NLRB 1395
(2014).
10 Member Pearce would find that Goodloe unlawfully surveilled
employees.
OZBURN-HESSEY LOGISTICS, LLC 3
conclusion that the Respondent violated Section 8(a)(3)
and (1) when it discharged employee Stacey Williams.11
Contrary to the judge, however, we find that the Re-
spondent also violated Section 8(a)(3) and (1) when it
discharged employees Shawn Wade, Nannette French,
and Smith Sr.12 And we find, contrary to the judge, that
the Respondent additionally violated Section 8(a)(5) and
(1) by unilaterally increasing its contributions to employ-
ee 401(k) plans, implementing new timekeeping and
leave-request systems, and changing certain employees’
start times.13 Finally, we find that the judge erred by
denying the General Counsel’s request to amend the
complaint to allege that Manager Ken Ball confiscated
union literature from employee break rooms, and we find
that Ball did so, in violation of Section 8(a)(1). But we
find that the judge correctly denied the General Coun-
sel’s request to amend the complaint to allege that Ball
also violated Section 8(a)(5) and (1) by bypassing the
Union to deal directly with employees about contemplat-
ed schedule changes.14
1. Antonio Goodloe’s conduct on May 14
For the following reasons, we agree with the judge that
the credited evidence is insufficient to support a finding
that Operations Manager Antonio Goodloe surveilled
two employees’ union activity on May 14 in violation of
Section 8(a)(1) of the Act. The judge discredited three
employees’ accounts pertaining to this allegation, and the
Board has adopted the judge’s credibility findings. The
relevant credited evidence, therefore, consists solely of
the testimony of Operations Manager Bonner. Bonner
testified that she spoke with two supervisors on the
phone that day, one of whom was Goodloe. One or both
of the supervisors told her that “two union people” were
in the parking lot. Bonner did not testify as to how the
supervisors knew that the employees were in the parking
lot or in what manner the supervisors observed the em-
ployees.
An employer’s routine observation of employees open-
ly engaged in union activity on company property does
not constitute unlawful surveillance. See, e.g., Roadway
Package System, 302 NLRB 961, 961 (1991). However,
an employer violates Section 8(a)(1) if it surveils em-
ployees engaged in union activity by observing them in a
way that is out of the ordinary and therefore coercive.
See, e.g., Aladdin Gaming, LLC, 345 NLRB 585, 585–

11 Chairman Ring would find Williams’ discharge lawful.
12 Chairman Ring would find French’s and Smith Sr.’s discharges
lawful.
13 Chairman Ring would find the implementation of a new timekeep-
ing and leave-request system lawful.
14 Member Pearce would permit the direct-dealing complaint allega-
tion and find that the record establishes that violation.
586 (2005), review denied sub nom. Local Joint Execu-
tive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir.
2008). Here, Bonner’s testimony does not establish that
Goodloe’s observation of the two employees violated the
Act. From her testimony, it cannot be concluded that
Goodloe did anything other than simply observe two
employees openly engaged in union activity in a parking
lot typically used by both employees and managers. The
credited record evidence does not permit a finding that
Goodloe observed the employees in a way that was out
of the ordinary and thus coercive. We accordingly affirm
the judge’s dismissal of this complaint allegation.15
2. Sara Wright’s September 5 denial that Smith Sr. had
union representation rights
We agree with the judge, for the reasons discussed be-
low, that Human Resources Manager Sara Wright violat-
ed Section 8(a)(1) by making certain remarks to Smith
Sr. during an investigatory interview.
On September 5, management called Smith Sr. to a
meeting in Operations Manager David Maxey’s office to
investigate an August 30 incident in which Smith Sr. had
distributed union literature on working time and refused
an instruction to cease doing so.16 Wright was also pre-

15 The complaint also alleged that Goodloe unlawfully ordered em-
ployees engaged in lawful union solicitation and distribution to leave a
company parking lot. We have unanimously adopted the judge’s find-
ing that the Respondent violated Sec. 8(a)(1) when Manager Bonner
ordered employees Smith Sr. and Whitley to leave the company lot
shortly after Goodloe’s alleged interactions with the employees. We
thus find it unnecessary to pass on the additional allegation that Good-
loe’s order also violated the Act, as finding that violation would not
affect the remedy and therefore would be merely cumulative.
Contrary to his colleagues, Member Pearce would find that Goodloe
violated Sec. 8(a)(1) by unlawfully surveilling Smith Sr. and Whitley
on May 14 while they were engaged in protected activity. In Member
Pearce’s view, whatever lack of confidence the judge expressed about
the employees’ testimony is dispelled once management’s corroborat-
ing testimony is also considered. As the majority acknowledges, Good-
loe in fact observed the employees’ protected conduct on May 14.
More specifically, Bonner testified that Goodloe informed her that “we
have some union people on our parking lot,” one of two reports that
prompted Bonner to interrupt her lunch break, return to the facility, and
unlawfully order Smith Sr. and Whitley to leave the Yazaki parking lot
on May 14. Bonner’s testimony bolsters Smith Sr.’s assertions that he
was watched by an individual sitting in a vehicle in the lot and talking
on a mobile phone while he and Whitley were engaged in protected
activity. And employee Nannette French’s testimony further fills the
interstices by placing Goodloe in a vehicle in the parking lot at the
relevant time. Considering this testimony together, Member Pearce
finds that the logical inference is that Goodloe was the individual
whom Smith Sr. described scrutinizing him from a parked vehicle.
Member Pearce would accordingly reverse the judge and find that
Goodloe unlawfully surveilled employees’ protected conduct.
16 As stated above, we have adopted the judge’s findings that neither
Manager Phil Smith’s threat of consequences for Smith Sr.’s conduct
nor Smith Sr.’s subsequent final warning for the same incident violated
the Act.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sent and did most of the talking. When Smith Sr. re-
quested union representation, Wright terminated the
meeting and handed him a questionnaire to fill out.
Wright also told Smith Sr. that he had no union represen-
tation and “no rights up here.”
The judge found that Wright’s statement violated the
Act. He reasoned that although the Respondent lawfully
terminated the interview and thus did not violate Smith
Sr.’s rights under NLRB v. J. Weingarten, Inc., 420 U.S.
251 (1975), Wright’s statement indicated to Smith Sr.
that he had no such rights at all, which was untrue and
tended to undermine the status of the Union as exclusive
bargaining representative. In so finding, the judge noted
that although the Board’s re-certification of the Union on
November 17, 2014, postdated the September 5 events at
issue here, this did not matter because the Union’s “sta-
tus as exclusive bargaining representative flows from its
majority support,” which it enjoyed at the time of
Wright’s statement regardless of whether the Union’s
initial May 24 certification was valid.
As explained below, employees’ Weingarten rights at-
tach when a union has won a representation election, not
when the certification of representative issues. Accord-
ingly, regardless of whether the Union was validly certi-
fied on May 24, the Respondent violated Section 8(a)(1)
when, on September 5, a date subsequent to the Union’s
challenged election win (July 27, 2011), Wright told
Smith Sr. that he had “no rights up here”—meaning, in
context, no Weingarten rights. See Anchortank, Inc. v.
NLRB, 618 F.2d 1153 (5th Cir. 1980).
In Anchortank, supra, the Court of Appeals for the
Fifth Circuit addressed the very issue presented here. In
that case, the union had prevailed in an election on Janu-
ary 7, 1977. However, a determinative number of ballots
had been challenged, those challenges were not resolved
until November 4, 1977, and the certification of repre-
sentative did not issue until November 29, 1977. In the
interim, on or about March 25, 1977, the employer re-
fused employee Herbert Charles’ request to have a union
representative present at an investigatory interview
Charles reasonably believed might result in discipline.
The Fifth Circuit upheld the Board’s finding that this
refusal violated Section 8(a)(1), although on narrower
grounds than those on which the Board had relied.17

17 In finding that the employer had violated Sec. 8(a)(1) by refusing
Charles’ request prior to the union’s certification, the Board reasoned
that the right to assistance at an investigatory interview applies “wheth-
er or not the employees are represented by a union” and regardless of
“the status of the requested representative, whether it be that of Union
not yet certified or simply that of fellow employee.” Anchortank, Inc.,
239 NLRB 430, 431 (1978). Although Members Pearce and McFerran
express no views as to the merits of this rationale, they recognize that in
IBM Corp., 341 NLRB 1288 (2004), the Board held that “the
The court reasoned that once a union has won a chal-
lenged election, “the employee quite properly perceives
his request to be one for the concerted mutual aid and
protection of his fellows, for the union then stands in for
all the unit employees.” Anchortank, 618 F.2d at 1162.
Accordingly, the court held that if, following a contested
union victory, an employee requests union representation
at an investigatory interview he reasonably believes will
result in discipline, the employer acts at its peril in deny-
ing that request, just as an employer acts at its peril when
making unilateral changes to conditions of work follow-
ing a contested union win. Id. at 1164–1165. In both
situations, if the union ultimately is certified, “the em-
ployer [will have] lost its gamble in denying union repre-
sentation” and its denial will violate Section 8(a)(1). Id.
at 1164. Applying these principles, the court found that
because the union had already won the election when the
employee requested representation at an investigatory
interview, and because the union was later certified, An-
chortank violated Section 8(a)(1) by denying that re-
quest.
We adopt the Fifth Circuit’s analysis. Thus, we hold
that when a union has prevailed in a representation elec-
tion but the results of the election are challenged, if the
union is subsequently certified as the unit employees’
bargaining representative, the employees’ Weingarten
rights will have attached as of the time of the election,
not of the certification. In other words, if an employer
refuses to honor a valid Weingarten request following a
challenged union election win, it does so at the risk that it
will be found to have violated Section 8(a)(1) if the un-
ion ultimately prevails and is certified.18 That same
analysis controls the situation presented here, in which
the Respondent complied with the requirements of
Weingarten by terminating the interview when Smith Sr.
requested a union representative, but also told Smith Sr.
that he had no Weingarten rights. Thus, in making this

Weingarten right does not extend to a workplace where . . . the employ-
ees are not represented by a union.” Id. at 1288. Chairman Ring agrees
with the holding of IBM Corp. and thus disagrees with the Board’s
rationale in Anchortank. Although for somewhat different reasons, we
are in agreement not to rely on the rationale of the Board’s decision in
Anchortank, supra, in holding that the Weingarten right attaches prior
to certification when a union has won a challenged representation elec-
tion. Rather, as explained below, we rely on the rationale of the Fifth
Circuit’s decision in Anchortank.
18 This result flows from the employees’ majority support for the
Union and is consistent with well-established principles governing
other aspects of the relationship between an employer and a union
during proceedings contesting a representation election. See, e.g., Alta
Vista Regional Hospital, above; Mike O’Connor Chevrolet, above
(obligation to refrain from unilateral changes); Sunstrand Heat Trans-
fer, Inc. (Triangle Division), above (obligation to provide relevant
requested information).
OZBURN-HESSEY LOGISTICS, LLC 5
declaration, the Respondent assumed the risk that it
would thereby violate Section 8(a)(1) of the Act if the
Union was later certified. Because that eventuality came
to pass, we find that the Respondent violated Section
8(a)(1) regardless of the validity of the May 24 certifica-
tion when, on September 5, Human Resources Manager
Sara Wright told Smith Sr. that he had no Weingarten
rights.
3. Discharge of Stacey Williams
We adopt the judge’s conclusion that the Respondent
violated Section 8(a)(3) and (1) on June 25 when it dis-
charged employee Stacey Williams because he refused to
follow certain directions during the course of his protect-
ed concerted request for a union representative.19 The
essential facts are undisputed. On June 20, Managers
Maxey and Wright called Williams into a conference
room to issue him a disciplinary warning. Williams re-
quested a union representative, Wright denied his re-
quest, and Williams left the conference room. A few
minutes later, Maxey and Wright approached Williams at
his workstation and at least twice directed him to return
to the conference room. Each time, Williams—who was
neither loud nor disruptive—requested union representa-
tion, which the managers denied. Wright then directed
Williams to clock out. When Williams did not immedi-
ately comply with Wright’s directive, Maxey unplugged
Williams’ computer. Maxey and Wright then escorted
Williams from the building. Again, Williams did not
make any disturbance. On June 25, the Respondent dis-
charged Williams for “[u]nprofessional, inappropriate
conduct/insubordination,” in a letter informing Williams
that, when Maxey and Wright “tried to administer a
write-up . . . [y]ou left the office, went to the warehouse
floor and refused to return.”20
We agree with the judge, for the reasons he states, that
Williams’ repeated requests for a union representative
were protected union and concerted activity.21 Because

19 Chairman Ring does not join this section of the decision. For the
reasons given in his partial dissent, he would reverse the judge and find
that the Respondent lawfully discharged Williams.
20 The letter also asserted that Williams had refused an instruction to
go home, but the judge concluded that no credible evidence supported
this claim.
21 We agree with the judge’s implicit finding that Williams requested
union representation for an investigatory meeting that he reasonably
believed might result in discipline. The fact that the Respondent was
not obliged to agree to Williams’ requests because the meeting was for
the purpose of imposing a previously determined discipline does not
undermine the protected nature of his requests. Thus, just as a reasona-
ble, but mistaken, belief in rights under a collective-bargaining agree-
ment does not eliminate the protected nature of an employee claim (see,
e.g., Omni Commercial Lighting, 364 NLRB No. 54, slip op. at 3
(2016)), neither does the fact that Williams was ultimately not entitled
to his requested representative.
Williams’ alleged insubordination occurred in the course
of this protected conduct, the judge correctly analyzed
whether the asserted misconduct was sufficiently egre-
gious to forfeit the protection of the Act under the test
articulated in Atlantic Steel Co., 245 NLRB 814, 816
(1979).22 Contrary to our dissenting colleague, the Re-
spondent’s motivation in discharging Williams is not at
issue—everyone agrees that it discharged him because he
refused at least twice to return to the conference room
when instructed to do so. That the Respondent labeled
this conduct “insubordination” does not bring its motive
into question.23 Rather, for the reasons discussed by the
judge, we agree that Williams’ refusals to return to the
conference room were inextricably intertwined with his
protected request for union representation and did not
come close to costing him the protection of the Act.24
Accordingly, his discharge violated the Act.
4. Discharge of Shawn Wade
For the reasons discussed below, we find, contrary to
the judge, that the Respondent violated Section 8(a)(3)
and (1) by discharging Shawn Wade. On May 14, fol-
lowing the resolution of challenged ballots cast in the
2011 election, the Regional Director issued a revised
tally of ballots showing that the Union had won the elec-
tion.25 Wade heard about the Union’s victory. That day,
he met with another employee, Anita Wells, in the park-

Further, Williams’ requests for union representation were concerted
as well as protected union activity. As the Fifth Circuit stated in An-
chortank, once a union has won a challenged election, “the employee
quite properly perceives his request [for representation] to be one for
the concerted mutual aid and protection of his fellows, for the union
then stands in for all the unit employees.” 618 F.2d at 1162. That
concerted purpose was particularly manifest here. Williams’ request
was on the heels of the Union’s certification, and the Respondent’s
continued refusal to recognize it. As the judge found, Williams’ re-
quest was “in furtherance of the Union’s effort to assert its continuing
presence in the workplace, an effort the Union initiated by giving em-
ployees the ‘Weingarten cards’” so that the Respondent “would recog-
nize and deal with the Union as the employees’ exclusive representa-
tive.”
22 We adopt the judge’s application of the Atlantic Steel factors
without relying on his citation of NLRB v. Burnup & Sims, 379 U.S. 21
(1964), as the genesis of that test.
23 We accordingly find it unnecessary to pass on the judge’s alterna-
tive analysis under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
24 We reject the Respondent’s claim that Williams was lawfully dis-
charged for insubordination. His requests for representation, even if he
was not entitled to it, remain protected unless his conduct is sufficiently
egregious to forfeit the Act’s protection. We agree with the judge that
Williams’ conduct did not cost him that protection. See, e.g., Omni
Commercial Lighting, supra, slip op. at 18 (rejecting employer’s claims
that it lawfully terminated employee for insubordinate, aggressive
behavior, where employee was pursuing good faith (albeit mistaken)
contract claim, and his conduct did not cause him to lose the Act’s
protection).
25 See Ozburn-Hessey Logistics, 361 NLRB at 921.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing lot of one of the Respondent’s warehouses to sign a
union card. While he was doing so, Vice President Ran-
dall Coleman drove by. The judge credited Wade’s tes-
timony that Coleman saw him. Although the judge
found it unlikely that Coleman, a senior executive, would
recognize Wade, Coleman testified that he knew who
Wells was.
The next day, May 15, Wade was running late to work.
He parked in a visitor parking spot, entered the ware-
house, clocked in, and then left the warehouse to move
his car to the employee lot. Manager Ken Ball observed
him leaving the building after his shift started and re-
entering the building 3 minutes later, and Ball reported
the incident to Wade’s manager. The Respondent dis-
charged Wade that same day, purportedly for stealing
time.
Applying Wright Line, 251 NLRB at 1089, the judge
found that although Wade had engaged in union activity
and the Respondent bore antiunion animus, the General
Counsel did not meet his burden of showing that the Re-
spondent knew of Wade’s union activity. The judge
found that there was no reason to believe that Coleman
knew who Wade was or that Coleman knew what Wade
was doing in the parking lot. The judge rejected the
General Counsel’s argument that knowledge should be
inferred from other relevant circumstances, including the
timing of Wade’s discharge, contemporaneous unfair
labor practices, and the disparate treatment of similarly
situated employees. Contrary to the judge, we find the
General Counsel’s argument persuasive. Accordingly,
we find that the General Counsel met his initial burden
under Wright Line to show that union activity was a mo-
tivating factor in the Respondent’s decision to discharge
Wade.
Under the Wright Line test, the elements required to
meet the General Counsel’s initial burden of proof “are
union or protected concerted activity, employer
knowledge of that activity, and union animus on the part
of the employer.” Libertyville Toyota, 360 NLRB 1298,
1301 (2014), enfd. in relevant part sub nom. AutoNation,
Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015).26 Regarding
the second of these elements, the General Counsel may

26 Once the General Counsel has met this burden, the employer can
“avoid being adjudicated a violator by showing what [its] actions would
have been regardless of [its] forbidden motivation.” NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 400–401 (1983). Thus,
contrary to the judge’s statement of the Wright Line test, the employer’s
defense burden is to show that it would have taken the same action
even if the employee had not engaged in protected activity—not to
show, as the judge suggests, the lack of a connection or nexus between
the employee’s protected activity and the challenged adverse employ-
ment action. See Allstate Power Vac., Inc., 357 NLRB 344, 346–347
(2011).
establish that an employer knows of an employee’s union
activity through circumstantial evidence, including “(1)
the timing of the allegedly discriminatory action; (2) the
respondent’s general knowledge of union activities; (3)
animus; and (4) disparate treatment.” Montgomery Ward
& Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d
1448 (4th Cir. 1996).
Here, we find that circumstantial evidence supports an
inference, which we draw, that the Respondent knew of
Wade’s union activity. Immediately after the revised
tally of ballots demonstrated the Union’s victory, openly
prounion employees, including Wells, solicited signa-
tures on authorization cards in the Respondent’s parking
lots. The Respondent witnessed some of this activity and
was undoubtedly aware of it. Both managers and em-
ployees used the parking lot in which Wade signed the
card, and the judge concluded that at least one manager
saw Wade with Wells in that lot. The Respondent then
discharged Wade the very next day. Thus, the Respond-
ent discharged Wade immediately after he engaged in
protected union activity, the Respondent knew that union
activity was taking place in its parking lots when Wade
signed his card, and the Respondent bore animus against
its employees’ union activity—as shown by unfair labor
practices, including Manager Bonner’s unlawful May 14
order to two employees to leave the premises. Moreover,
as explained below, the Respondent treated Wade differ-
ently from other employees who had briefly left the
building during their shift. This evidence of disparate
treatment accomplishes three purposes. First, it further
supports an inference that the Respondent knew that
Wade supported the Union. Montgomery Ward, supra.
Second, the disparate treatment further supports a finding
of animus,27 and third, as explained below, it defeats the
Respondent’s attempt to show that it would have dis-
charged Wade for stealing time even in the absence of
his union activity.
The General Counsel introduced two exhibits showing
that the Respondent had not discharged employees for
first offenses similar to Wade’s. In one instance, em-
ployee Brandon Smith left the building to move his car,
Manager Bonner observed him doing so, and Bonner told
Smith that he could not do so. Smith was not discharged.
On a subsequent occasion, before Smith left the building,
Bonner told Smith not to do so, and Smith ignored her
and left the building. Contrary to the judge’s analysis,
this second incident, not the first, led to Smith’s dis-
charge, and on that occasion Smith not only left the
building to move his car, he also disobeyed a direct order

27 See, e.g., Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1185
(2011) (“Animus may be inferred from circumstantial evidence, includ-
ing . . . disparate treatment.”).
OZBURN-HESSEY LOGISTICS, LLC 7
not to leave the building and thus was insubordinate. In
another example, unmentioned by the judge, employee
Shakila Banis clocked in 1 minute before her shift start-
ed, left the building, and returned 8 minutes later, and the
Respondent issued Banis an attendance point. In other
words, the Respondent viewed Banis’s actions as akin to
arriving late, not as stealing time. Although Banis was
terminated, she was terminated because she had accumu-
lated 16 attendance points. Wade, on the other hand, was
discharged for a first instance of briefly leaving the
building to move his car.
In addition to those two instances, employees almost
uniformly testified that before Wade’s discharge, em-
ployees regularly left the building without consequence,
sometimes in full view of supervisors. Employee
Dwayne Nelson testified that “we all” clocked in and
then left to move cars, and Nelson added that Supervisor
Darnell Flowers saw him do so on at least one occasion.
Nelson was not disciplined. Similarly, employee Teresa
Pressman testified that she would leave the building to
get a box cutter or roll up her windows, and although
Flowers told her to tell somebody when she did so, she
was not disciplined regardless of whether she told a su-
pervisor. This testimony, not addressed by the judge,
established that as of the time of Wade’s discharge,
Wade’s actions were common and were deemed by the
Respondent to warrant at most a coaching or an attend-
ance point, not a discharge for a first offense.
To the extent that the Respondent has terminated em-
ployees for stealing time, it has done so only when em-
ployees have been absent for significant periods. As
explained above, the evidence shows that before Wade’s
termination, the Respondent did not treat briefly leaving
the building for a few minutes as stealing time, but in-
stead as, at most, an attendance infraction. In these cir-
cumstances, having previously found that the General
Counsel sustained his initial burden under Wright Line,
we have no difficulty finding that the Respondent did not
meet its Wright Line defense burden of showing that it
would have discharged Wade absent his union activity.
We therefore find that Wade’s discharge violated Section
8(a)(3).
5. Discharge of Nannette French
We also find, contrary to the judge, that the Respond-
ent’s discharge of Nannette French violated Section
8(a)(3).28 On May 14, French, who worked at the Re-
spondent’s Yazaki warehouse,29 handed out union au-

28 Chairman Ring does not join this section of the decision. For the
reasons stated in his partial dissent, he would affirm the judge’s finding
that French was lawfully discharged.
29 In addition to the Respondent’s own Memphis warehouses, the
Respondent contracted to provide employees to work at a Memphis
thorization cards to other employees and solicited their
signatures. She did so openly in the Yazaki parking lot.
Although there is no credited evidence that any supervi-
sor saw her doing so, Bonner’s testimony, described
above, establishes that Goodloe saw “two union people”
distributing cards in the Yazaki lot on that day. Moreo-
ver, it is undisputed that Bonner knew of handbilling on
May 14 and ordered two other employees who were so-
liciting cards to leave the Yazaki lot.
On May 17, French returned to the facility 1 minute
late from her lunchbreak. For this infraction, the Re-
spondent assessed her an attendance point. Under the
Respondent’s written attendance policy, employees are
assessed one point for being late to a shift, including be-
ing late returning from their lunchbreaks. The attendance
policy states that employees will receive particular forms
of discipline when they accumulate specified numbers of
points, culminating in discharge when an employee ex-
ceeds 12 points. French’s attendance point for being late
on May 17 was her 13th, and the Respondent discharged
her for violating its attendance policy.
The judge dismissed the allegation that French’s dis-
charge violated Section 8(a)(3), finding the evidence
insufficient to support an inference that the Respondent
knew of French’s union activity. For much the same
reasons discussed above in connection with Wade’s dis-
charge, we reverse. Here, the circumstantial evidence
even more strongly supports an inference that the Re-
spondent knew of French’s union activity. French open-
ly distributed union authorization cards in the Yazaki
parking lot on a day when managers saw similar activity
in that very same parking lot. She was discharged short-
ly afterward. Moreover, as discussed below, the Re-
spondent has not consistently discharged employees who
reach 13 attendance points. Based on the timing of
French’s discharge, the Respondent’s general knowledge
of union activity, the Respondent’s antiunion animus,
and the disparate treatment of French, we infer that the
Respondent knew of her open union activity on May 14.
See Montgomery Ward & Co., above; see also Coastal
Sunbelt Produce, 362 NLRB No. 126, slip op. at 2
(2015) (citing cases) (“[T]he Board has long held, with
court approval, that knowledge of union activity may be
established by circumstantial evidence.”). Accordingly,
having also established French’s union activity and the
Respondent’s animus against such activity, the General
Counsel met his initial burden under Wright Line.
Because the Respondent treated French disparately
from other employees who reached 13 attendance points,

warehouse owned by Yazaki, an automotive parts supplier. See
https://en.wikipedia.org/wiki/Yazaki (last visited June 14, 2018).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent did not satisfy its Wright Line defense
burden of showing it would have discharged French even
in the absence of her union activity. Despite its written
policy, the Respondent generally did not discharge em-
ployees for reaching 13 attendance points. To the contra-
ry, it has frequently allowed employees to accumulate far
more than 13 points. See Ozburn-Hessey Logistics, LLC,
362 NLRB No. 180, slip op. at 23 (listing seven exam-
ples of employees who were not discharged until they
reached 23 or more attendance points). For instance, in
October 2011, employee M. Davis was discharged when
he reached 27 attendance points—more than twice as
many as French. Id.30
We also reject the Respondent’s argument that
French’s discharge was a nondiscriminatory consequence
of stricter enforcement of attendance policies, starting in
2011 when Shannon Miles took charge of human re-
sources. The Respondent introduced no documentary
evidence or credited testimony to support this claim.
Further, even if the Respondent had established that it
had implemented a stricter attendance policy—which it
has not—we would be reluctant to accept as an affirma-
tive defense what amounts to an admission of conduct
that violates the Act. Thus, any Respondent action to
unilaterally enforce its attendance policy more strictly
after the July 27, 2011 representation election would
have constituted an unlawful unilateral change. See, e.g.,
Vanguard Fire & Security Systems, 345 NLRB 1016,
1017 (2005) (“The Board has held that a change from lax
enforcement of a policy to more stringent enforcement is
a matter that must be bargained over.”).
Accordingly, for the reasons stated above, we find that
the General Counsel has met his burden of proving that
French’s union activity was a motivating factor in her
discharge, and the Respondent did not meet its burden of
proving that it would have discharged French even ab-
sent her union activity. We therefore find that French’s
discharge violated Section 8(a)(3).
6. Discharge of Smith Sr.
Contrary to the judge, we find that the Respondent’s
discharge of Smith Sr. also violated the Act.31 As stated
above, we have adopted the judge’s finding that the Re-
spondent violated Section 8(a)(5) by unilaterally increas-
ing enforcement of its rule against employees leaving the

30 The record reveals only one other instance when the Respondent
discharged an employee—Lauren Keele—for accumulating 13 attend-
ance points. As discussed below, we find Keele’s discharge unlawful
because she accrued her final attendance point as a result of the Re-
spondent’s unlawful unilateral change in its timekeeping system.
31 Chairman Ring does not join this section of the decision. As ex-
plained in his partial dissent, he would adopt the judge’s finding that
Smith Sr. was lawfully discharged.
warehouse after clocking in. In September, as part of
this increased enforcement, Human Resources Manager
Wright reviewed the Respondent’s security footage and
compiled a list of employees who had recently left the
warehouse without clocking out. She then issued each
employee on the list a questionnaire, which asked them if
they had left the building after clocking in, and if so, if
they had received management permission to do so.
Smith Sr. was one of the employees who was shown
leaving the building on the security footage, and he re-
ceived a questionnaire.
In his response to the questionnaire, Smith Sr. denied
leaving the building after clocking in. The Respondent
discharged him, ostensibly for lying. It did not discipline
any other employees who left the building. Although the
Respondent routinely used questionnaires in disciplinary
investigations, there is no record evidence of any other
instance where it disciplined an employee for the em-
ployee’s answer on a questionnaire.
The judge found that Smith Sr. had engaged in union
activity, the Respondent knew of that activity, and the
Respondent bore antiunion animus. Therefore the judge
found that the General Counsel met his initial burden
under Wright Line. There are no exceptions to this find-
ing.32 However, the judge also found that the Respond-
ent proved that it would have discharged Smith Sr. for
lying regardless of his union activity. Contrary to the
judge, we find that the Respondent did not sustain its
Wright Line defense burden.
In finding that the Respondent proved its affirmative
defense, the judge observed that the Respondent has a
strong interest in protecting the integrity of its investiga-
tions because actions taken on the basis of those investi-
gations could have serious consequences for the affected
employees and carry the potential for legal liability. Alt-
hough we do not disagree with this general justification
for a rule against lying in investigations, it carries little
weight here. The Respondent had indisputable video
evidence of employees leaving the building after clock-
ing in. It had no need to rely on Smith Sr.’s answer to
the questionnaire. Most tellingly, despite its asserted
business justifications for disciplining employees who lie
on questionnaires, the Respondent has not consistently
done so: in at least one instance the Respondent conclud-
ed that an employee lied on a questionnaire but took no

32 The judge mischaracterized the General Counsel’s initial burden
under Wright Line as a burden of production rather than a burden of
proof. But this was harmless error, as the judge correctly identified the
elements required to meet the General Counsel’s burden of proof—
protected activity, knowledge of protected activity, and animus against
protected activity—and he found that the General Counsel established
each of these elements. Effectively, therefore, the judge found that the
General Counsel met his burden of proof under Wright Line.
OZBURN-HESSEY LOGISTICS, LLC 9
action. As the judge found, employee Jennifer Smith
touched employee Luz Balderrama in the bathroom on
August 30, less than a month before Smith Sr.’s dis-
charge, and the Respondent concluded that she had done
so. But when Jennifer Smith submitted a questionnaire
that stated she had not touched Balderrama, the Re-
spondent did not discipline her for this untruthful an-
swer.33
Given the Respondent’s widespread use of question-
naires, its failure to identify any other instance in which
it has disciplined or discharged an employee for an un-
truthful answer, and evidence of at least one instance
where the Respondent knew an employee had lied on a
questionnaire and did not impose discipline, we find the
Respondent has not shown that it typically disciplines or
discharges employees for lying on an investigative ques-
tionnaire. Smith Sr. was the Union’s primary organizer,
and the Respondent had already discharged him unlaw-
fully once before. See Ozburn-Hessey Logistics, 357
NLRB 1632, 1633, 1643–1644 (2011). It takes no great
inferential leap to find that the Respondent used his lie
on the questionnaire as a pretext to get rid of Smith Sr.
for his union activity. We therefore find that the Re-
spondent did not prove its affirmative defense that it
would have discharged Smith Sr. regardless of his union
activity, and Smith Sr.’s discharge therefore violated
Section 8(a)(3).34
7. Unilateral increase in contributions to employees’
401(k) accounts
The judge found that the Respondent unilaterally in-
creased its contributions to employees’ 401(k) retirement
accounts and that such contributions constitute a manda-
tory subject of bargaining. There are no exceptions to

33 We are puzzled by our dissenting colleague’s argument that the
Respondent’s disparate treatment of Jennifer Smith does not undermine
its proffered reason for discharging Smith Sr. because the Respondent
merely believed Jennifer Smith lied, while Smith Sr. indisputably lied.
If the Respondent had a nondiscriminatory practice of disciplining
employees for lying on questionnaires, surely it would have disciplined
employees the same regardless of how it had determined untruthful-
ness. That it did not do so supports our conclusion that it would not
have discharged Smith Sr. absent its desire to punish him for his pro-
tected conduct.
34 Indeed, given the General Counsel’s strong showing of unlawful
motivation against Smith Sr., the Respondent’s rebuttal burden was
substantial. Alternative Energy Applications, Inc., 361 NLRB 1203,
1207 (2014). It clearly was not met here.
As noted above, we do not rely on the judge’s suggestion that, after
the General Counsel has made his initial showing under Wright Line, a
respondent can meet its defense burden by showing a lack of connec-
tion or nexus between the employee’s protected concerted or union
activity and the challenged adverse employment action.
The judge did not address whether Smith Sr.’s discharge also violat-
ed Sec. 8(a)(4) as alleged in the complaint. We find it unnecessary to
pass on this allegation as it would not materially affect the remedy.
these findings. However, on Section 10(b) grounds, the
judge dismissed the allegation that this unilateral change
violated Section 8(a)(5). We reverse.
The judge found that the charge alleging this unilateral
change, filed on October 26, 2012, was untimely under
Section 10(b) of the Act because the unilateral change
occurred in January 2012, more than 6 months before the
charge was filed. However, the 6-month Section 10(b)
limitations period does not begin to run until the charg-
ing party has “clear and unequivocal notice” of a viola-
tion of the Act. Broadway Volkswagen, 342 NLRB
1244, 1246 (2004), enfd. sub nom. East Bay Automotive
Council v. NLRB, 483 F.3d 628 (9th Cir. 2007). The
burden of proof rests on the party asserting a Section
10(b) defense. See, e.g., Chinese American Planning
Council, 307 NLRB 410, 410 (1992), review denied
mem. 990 F.2d 624 (2d Cir. 1993). Therefore, to estab-
lish that the 401(k) unilateral change allegation must be
dismissed as untimely, the Respondent had to show that
the Union failed to file a relevant charge within 6 months
of being put on clear and unequivocal notice of the Re-
spondent’s unilateral increase in 401(k) contributions.
The Respondent did not make that showing. At the
hearing, no witness testified that he or she notified the
Union of the change. Indeed, there is no record evidence
establishing when the Union was put on notice of the
change. Accordingly, the Respondent has not carried its
burden of showing that the allegation is time-barred, and
the unilateral increase in contributions to unit members’
401(k) retirement accounts violated Section 8(a)(5) of the
Act.
8. Unilateral implementation of the Kronos
timekeeping system
We also reverse the judge to find that unilateral chang-
es in the Respondent’s timekeeping and leave-request
systems violated the Act.35 In late April, the Respondent
replaced its Unitime timekeeping equipment with a new
system called Kronos. Under the Unitime system, em-
ployees would clock in and out on a clock equipped with
physical buttons for each recordable event (signing in
and out for shifts and lunch). In addition, the Unitime
system did not handle time-off requests. To request paid
time off, employees submitted a leave request on paper.
The paper request was submitted directly to a manager,
who would approve or disapprove the request. The Kro-
nos system was more sophisticated than the Unitime sys-
tem. It came with a 50-page instruction manual. It fea-
tured a touchscreen, not physical buttons. Moreover,

35 Chairman Ring does not join this section of the decision. For the
reasons stated in his partial dissent, he would find that these changes
were made lawfully.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees were required to use the Kronos system for
several purposes, including requesting time off. Em-
ployees were instructed to submit leave requests through
the Kronos system, and they would find out if their leave
was approved or denied by checking Kronos later. It is
undisputed that the Respondent did not notify the Union
before switching to the Kronos system.
The judge found that the implementation of the Kronos
system did not violate Section 8(a)(5) of the Act on the
basis that it did not constitute a material, substantial, and
significant change in employees’ terms and conditions of
employment. We disagree and reverse.
The Kronos system was significantly more complicat-
ed than the Unitime system. As stated, it came with a
50-page instruction manual.36 Its greater complexity was
exemplified by the experience of employee Lauren
Keele. When Keele attempted to timely log in from her
lunchbreak, she pressed the wrong “button” on the Kro-
nos clock’s touchscreen, prompting another screen to
appear. Keele needed assistance to return to the prior
screen. By the time she was able to successfully log
back in, she was 1 minute late and subsequently fired
purportedly for accrued attendance points. This would
not have occurred with the Unitime clock.
In addition, the Respondent used the Unitime system
solely for timekeeping, but it uses the Kronos system
both for timekeeping and the submission, approval, and
tracking of leave requests. Significantly, employees who
submitted leave requests under the new system no longer
immediately learned whether their requests were ap-
proved. Instead, they had to wait for a manager to enter
the approval or disapproval in the Kronos system. The
Board has found less impactful changes than this to be
material, substantial, and significant. See, e.g., Verizon
New York, Inc., 339 NLRB 30 (2003) (finding Sec.
8(a)(5) violation for unilateral termination of twice-
yearly practice of permitting employees to donate blood
during worktime), enfd. 360 F.3d 206 (D.C. Cir. 2004);
Rangaire Co., 309 NLRB 1043 (1992) (finding 8(a)(5)
violation for unilateral withdrawal of extra 15 minutes
for lunchbreak once a year, on Thanksgiving), enfd.
mem. 9 F.3d 104 (5th Cir. 1993). We find that the
change from the Unitime clock to the Kronos system
constituted a material, substantial and significant change
to employees’ working conditions. Because the Re-

36 Contrary to our dissenting colleague, this case is therefore not sim-
ilar to Rust Craft Broadcasting of New York, Inc., 225 NLRB 327
(1976), where an employer changed from handwritten timecards to a
time clock. Timecards and time clocks accomplish the same task of
recording an employee’s start and stop times, and they place approxi-
mately the same burdens on employees. Here, the evidence shows that
the Kronos system was significantly more complex and burdensome
than the Unitime clock it replaced.
spondent implemented this change unilaterally, it violat-
ed Section 8(a)(5).
9. Changing the start times of Anita Wells
and Chris Waller
Employees Anita Wells and Chris Waller worked in
the Receiving Department of the Respondent’s Hewlett-
Packard account. Until about April, Wells and Waller
alternated starting work 1 hour before the Receiving De-
partment’s general start time (i.e., 7 a.m. compared with
the 8a.m. start for other department employees). When
Manager Stacey Deal took over the department, she end-
ed this arrangement and required both employees to start
work at the same time as the rest of the department. It is
undisputed that the Respondent implemented this change
unilaterally. As with the implementation of the Kronos
timekeeping system, the only dispute here concerns
whether the change constituted a material, substantial
and significant change to Wells’ and Waller’s terms and
conditions of employment.
Contrary to the judge, we find that the change in the
employees’ start times was a material, substantial and
significant change. The Board has found shift changes of
15 minutes or less to be material, substantial and signifi-
cant. See Pepsi-Cola Bottling Company of Fayetteville,
Inc., 330 NLRB 900, 902 (2000) (finding that requiring
employees to start their shifts 15 minutes earlier each day
constitutes a material, substantial and significant
change), enfd. in relevant part 24 Fed. Appx. 104 (4th
Cir. 2001); Hedison Manufacturing Co., 260 NLRB 590
(1982) (finding that requiring employees to report to
their workstations 5 minutes earlier than the previous
reporting time is a material, substantial and significant
change). We therefore find that the change to Wells’ and
Waller’s shifts was material, substantial and significant,
and by implementing this change unilaterally the Re-
spondent violated Section 8(a)(5).
10. Motion to amend the complaint
Before the hearing closed, the General Counsel moved
to amend the complaint to add two allegations based on
the testimony of Manager Ken Ball. Specifically, the
General Counsel sought to add allegations that the Re-
spondent violated Section 8(a)(1) when Ball, on two oc-
casions, removed union literature from a break room, and
Section 8(a)(5) when Ball allegedly dealt directly with
employees in the Hewlett-Packard (HP) account over
potential changes to the shifts employees in that account
would work. The judge denied the General Counsel’s
motions. He found that the literature-removal allegation
was cumulative and also that allowing the motion would
unfairly prejudice the Respondent, and he found that the
direct-dealing allegation was not fully litigated. For the
OZBURN-HESSEY LOGISTICS, LLC 11
reasons set forth below, we grant the General Counsel’s
motion to amend the complaint to add the literature-
removal allegation, but we adopt the judge’s denial of the
motion to add the direct-dealing allegation.37
In determining whether to allow an amendment to the
complaint where the motion is made during or after the
unfair labor practice hearing, the Board considers a varie-
ty of factors, “including the identity of the party who first
introduced evidence relating to the unfair labor practice
issue, whether the issue was fully litigated, and whether
the [r]espondent demonstrated that the amendment is
prejudicial.” Pincus Elevator and Electric Co., 308
NLRB 684, 684 (1992), enfd. mem. 998 F.2d 1004 (3d
Cir. 1993). The Board has also considered “surprise or
lack of notice” and “whether the General Counsel offered
a valid excuse.” CAB Associates, 340 NLRB 1391, 1397
(2003). In CAB Associates, the General Counsel waited
until after the hearing closed to move to add an allega-
tion, and the Board adopted the judge’s recommendation
to allow the amendment because the allegation was based
on evidence adduced from the Respondent’s witnesses at
trial. Id.
Ball testified that on two occasions, he noticed union
literature in the HP account’s break room. Believing that
Human Resources should see the literature, he removed
it and sent it to Human Resources. Ball also testified that
he removed the literature between employee breaks, and
no employee saw him remove it. Ball further testified
that before the Respondent split the HP account into two
teams, each of which worked 11-hour shifts 3 days per
week, he met with employees in the account and solicited
opinions from employees on possible shift changes. Ball
could not identify any particular suggested change that
he incorporated into the final schedule, but he testified
that the employees’ overriding concern was to avoid a
reduction in hours, and he kept that consideration in
mind in making the changes.38
Here, as to both allegations, several of the applicable
factors mentioned above favor allowing the amendment
to the complaint. Ball was called as a witness by the
Respondent, and the General Counsel promptly moved to
amend the complaint after Ball testified. Although the
union literature that Ball admitted removing had been
provided to the General Counsel in response to a sub-
poena, the General Counsel had no reason to know that

37 As discussed below, Member Pearce would grant the General
Counsel’s motion to add the direct-dealing allegation.
38 In denying the General Counsel’s motion to amend, the judge did
not specifically credit or discredit Ball’s testimony summarized above.
However, the judge did credit Ball’s testimony in another instance. We
see no reason not to credit Ball’s uncontroverted testimony in relevant
part here as well.
Ball removed all copies of the literature from a break
room until Ball testified. Similarly, before Ball testified,
the General Counsel had no documentary or testimonial
evidence regarding the alleged direct dealing. Therefore,
three of the five factors recited above are met for each
allegation the General Counsel seeks to add by way of
amendment: the Respondent introduced the relevant
testimony, the General Counsel offered a valid excuse
for not having alleged the violation earlier, and there was
no surprise or lack of notice because the General Counsel
moved to amend the complaint at the earliest possible
opportunity, promptly after Ball testified.
In addition, the literature-removal allegation was fully
litigated at the hearing, and allowing the amendment to
the complaint to add that allegation would not unduly
prejudice the Respondent. It is undisputed that Ball re-
moved union literature from the break room and that he
did so because he thought Human Resources should see
it. It is also undisputed that Ball removed the literature
between breaks, and thus before the last break of the day,
which may have prevented some employees from seeing
it. Moreover, Ball testified that nobody saw him remove
the literature, so by Ball’s own admission no witness
could have been called to dispute Ball’s testimony. The
Respondent has not identified any evidence it was pre-
vented from introducing due to the late amendment of
the complaint. We therefore find that the literature-
removal allegation was fully litigated, and the Respond-
ent is not prejudiced by allowing the amendment.
On the merits of the allegation, we further find that the
Respondent violated Section 8(a)(1) when Ball removed
the union literature from the break room. Ball’s testimo-
ny establishes that he was not enforcing a nondiscrimina-
tory housekeeping rule in a nondiscriminatory manner.
See, e.g., North American Refractories Co., 331 NLRB
1640, 1642–1643 (2000) (holding that an employer may
lawfully maintain and enforce housekeeping rules that
result in the confiscation from nonworking areas of pro-
union literature left behind following break periods).
Rather, the evidence shows that Ball specifically targeted
union literature for removal. By doing so, the Respond-
ent violated Section 8(a)(1). See, e.g., Venture Indus-
tries, 330 NLRB 1133, 1134, 1137–1138 (2000); Vemco,
Inc., 304 NLRB 911, 927 (1991).
On the other hand, we find that the direct-dealing alle-
gation was not fully litigated, and the Respondent would
be prejudiced were the amendment to be allowed. When
Ball testified about his meetings with employees on the
HP account, the Respondent was not on notice that his
testimony might be used to support a direct-dealing alle-
gation. Moreover, multiple employees were present at
these meetings and might have had different recollec-
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions of what Ball said. Ball testified late in the last
week of the hearing, and the Respondent did not have an
opportunity to subpoena the testimony of employees pre-
sent at those meetings. Contrary to the suggestion of our
dissenting colleague, had the Respondent known that this
testimony would be the basis for a new direct-dealing
allegation, it might have presented additional rebuttal
testimony or other evidence specifically addressing the
components of that cause of action. Not having adequate
notice of the General Counsel’s intent to present this as a
separate allegation, however, the Respondent here could
not present tailored evidence in support of its position.
Moreover, the Respondent’s lack of opportunity in this
regard is significant given the closeness of the direct-
dealing issue on the merits. To establish a direct-dealing
violation, the General Counsel must show that the Re-
spondent communicated directly with union-represented
employees for the purpose of establishing or changing
wages, hours, or other terms and conditions of employ-
ment to the exclusion of the Union. Southern California
Gas Co., 316 NLRB 979, 982 (1995). According to
Ball’s testimony, Ball met with employees on three occa-
sions “[t]o get them involved” in the decision regarding
the HP account schedules, and he admitted to soliciting
employees’ suggestions during these meetings. But
whether meeting with employees “to get them involved”
establishes that the purpose of the meetings was to
change employment terms presents a close question, and
Ball also testified that there were no particular proposals
from employees that he incorporated into the final
changes. In these circumstances, we affirm the judge’s
denial of the motion to amend the complaint to add the
direct-dealing allegation.39

39 Contrary to his colleagues, Member Pearce would grant the Gen-
eral Counsel’s motion to amend the complaint and find that the Re-
spondent unlawfully bypassed the union and directly approached em-
ployees on the HP account about its proposed change to their scheduled
work hours. See Permanente Medical Group , 332 NLRB 1143, 1144
(2000) (a respondent engages in unlawful direct dealing by communi-
cating directly with union-represented employees to the exclusion of
the union for the purpose of establishing or changing wages, hours, or
terms and conditions of employment). First, as the majority acknowl-
edges, the Respondent introduced the relevant evidence, and the Gen-
eral Counsel moved to amend the complaint at the first opportunity.
See Pincus Elevator and Electric Co., above. However, contrary to the
majority, the substantive issue is not close. Ball admitted to soliciting
employees’ opinions about the proposed schedule change: he testified
that “[w]e . . . asked several employees about it with the guys, see what
they thought about it. . . . And so that’s kind of where it all generated
from.” The Respondent’s admission that it bypassed the Union to
solicit employee opinions before it changed their schedules (unlawful-
ly, as we have unanimously found above) itself establishes the direct-
dealing violation regardless how employees understood or responded to
the solicitation and whether or not the Respondent acted upon their
opinions. This is because it is the solicitation itself that erodes the
Union’s position as exclusive representative. See, e.g., Allied-Signal,
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act.
We will order the Respondent to make its employees
whole for losses resulting from its unlawful unilateral
changes in employees’ terms and conditions of employ-
ment. With the exception of employee Lauren Keele,
backpay for losses resulting from the unlawful unilateral
changes shall be computed in accordance with Ogle Pro-
tection Service, Inc., 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). We will also order the Re-
spondent to offer reinstatement to Jerry Smith Sr., Nan-
nette French, Shawn Wade, Stacey Williams, and Lauren
Keele and to make them whole for any loss of earnings
and other benefits suffered as a result of their unlawful
discharges. Backpay for these five individuals shall be
computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra. In accordance with
our decision in King Soopers, Inc., 364 NLRB No. 93
(2016), enfd. in rel. part 859 F.3d 23 (D.C. Cir. 2017),
we shall order the Respondent to compensate Wade,
French, Williams, Smith Sr., and Keele for their search-
for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-

Inc., 307 NLRB 752, 753–754 (1992) (“Direct dealing need not take
the form of actual bargaining. . . . Going behind the back of the exclu-
sive bargaining representative to seek the input of employees on a
proposed change in working conditions [such as a workplace smoking
policy] plainly erodes the position of the designated representative.”).
Because the Respondent admitted the necessary factual basis of the
violation alleged, the issue has been fully litigated. See, e.g., Conagra
Foods, Inc., 361 NLRB 944, 946 fn. 10, 960 (2014) (judge properly
granted General Counsel’s motion to amend the complaint at the close
of the hearing where “no additional evidence could have bearing on the
merits of the additional allegation”), enfd. in relevant part 813 F.3d
1079, 1092 (8th Cir. 2016). In any case, the General Counsel moved to
amend the complaint at the beginning of the eighth day of the 10-day
hearing. The judge deferred ruling on the motion (which he found
“much tougher” than the literature-removal allegation) but requested
that the parties address it in posthearing briefs. Thus, the Respondent
had ample time to respond, but it proffered no evidence to counteract or
mitigate its admission. Under these circumstances, the timing of the
General Counsel’s motion clearly did not prejudice the Respondent.
Member Pearce would accordingly find that Ball’s direct dealing with
employees in the HP account violated Sec. 8(a)(5) and (1).
OZBURN-HESSEY LOGISTICS, LLC 13
pounded daily as prescribed in Kentucky River Medical
Center, supra. We will also modify the judge’s Social-
Security-reporting remedy to conform to our decision in
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
We shall order the Respondent, on request by the Un-
ion, to rescind each of the unilateral changes to unit em-
ployees’ terms and conditions of employment. We shall
further order the Respondent to provide the Union with
the information it initially requested on June 3, 2013,
without further delay. We need not pass on the judge’s
recommended remedy pursuant to Mar-Jac Poultry, 136
NLRB 785, 786 (1962), because the Board issued an
affirmative bargaining order in the Section 8(a)(5) test-
of-certification case on June 15, 2015. See Ozburn-
Hessey Logistics, LLC, 362 NLRB No. 118 (2015).
There, the Board stated that “[t]o ensure that the employ-
ees are accorded the services of their selected bargaining
agent for the period provided by law, we shall construe
the initial period of the certification as beginning the date
the Respondent begins to bargain in good faith with the
Union.” Id. (citing Mar-Jac Poultry, supra). The D.C.
Circuit’s decision enforcing that order issued August 19,
2016. See Ozburn-Hessey Logistics, LLC v. NLRB, 833
F.3d 210 (D.C. Cir. 2016).
The judge ordered notice reading by a Board agent or a
responsible management official in the presence of a
Board agent, and the judge further ordered that an agent
of the Union may attend the notice reading and make an
audio-visual recording of it. We adopt these enhanced
remedies. Moreover, because of the Respondent’s record
of repeatedly violating the Act, we will order further
remedies as set forth below in order to ensure the effec-
tiveness of our Order.
With this decision, the Board has now issued six deci-
sions finding that the Respondent has engaged in serious
and widespread violations of the Act since 2009, when
the Union’s initial organizing drive began. In the instant
decision, we have found, among other violations, that the
Respondent unlawfully discharged Smith Sr., the primary
union organizer, for a second time, after a court ordered
his reinstatement. Also, with today’s decision, the Board
has found that Director of Operations Phil Smith has
unlawfully removed union literature from employee
break rooms three times, including one instance in which
he removed a copy of a judge’s order that commanded
the Respondent to cease and desist from removing union
literature from break rooms. Moreover, our finding that
Manager Ken Ball also removed union literature from a
break room indicates that the Respondent either has not
instructed its managers to comply with our orders or has
not sufficiently impressed upon them the importance of
compliance.
In prior decisions, we have found that the Respondent
unlawfully discharged four employees (two of them
twice), unlawfully disciplined employees for supporting
the Union, coercively interrogated employees about their
union support and that of other employees, denied em-
ployees overtime work because of their union activity,
threatened employees for engaging in activity protected
by Section 7, threatened employees with loss of benefits
if they selected the Union as their representative, confis-
cated union literature, threatened employees with job loss
if they participated in a strike, threatened employees that
selecting a union representative would be futile, ordered
off-duty employees engaged in the distribution of union
literature to leave its parking lots, engaged in unlawful
surveillance of employees’ union activities, created the
impression that employees’ union activities were under
surveillance, told employees who support the Union to
resign, and refused to bargain with the certified repre-
sentative of its employees. Here, we have found numer-
ous additional instances in which the Respondent has
violated the Act, including by multiple employee dis-
charges, recurrent 8(a)(1) coercive conduct, and repeated
actions that undermine the Union by—among other
things—unlawfully unilaterally changing terms and con-
ditions of employment. By any measure, this is an ex-
traordinary record of law breaking, and it merits an ex-
traordinary response.
We have twice previously imposed broad cease-and-
desist orders on the Respondent. See Ozburn-Hessey
Logistics, LLC, 361 NLRB at 922; Ozburn-Hessey Logis-
tics, LLC, 362 NLRB No. 180, slip op. at 4–5. We do so
again here, for the reasons stated in those decisions and
based on the Respondent’s continuing widespread viola-
tions in the instant case. Although no party urges us to
adopt additional remedies, we have broad discretion to
exercise our remedial authority under Section 10(c) of
the Act, even when no party has taken issue with the
judge’s recommended remedies. See, e.g., Teamsters
Local 122, 334 NLRB 1190, 1195 (2001), enfd. mem.
No. 01–1513, 2003 WL 880990 (D.C. Cir. Feb. 14,
2003) (consent judgment); WestPac Electric, 321 NLRB
1322, 1322 (1996); Indian Hills Care Center, 321 NLRB
144, 144 fn. 3 (1996).
In order to dispel the lingering effect of the Respond-
ent’s unfair labor practices, we shall order the Respond-
ent to post the remedial notice for an extended period of
3 years. See HTH Corp. d/b/a Pacific Beach Hotel, 361
NLRB 709, 714 (2014), enfd. in relevant part sub nom.
HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016). We
will further order the Respondent to publish the remedial
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice in two publications of broad circulation and local
appeal twice a week for a period of 8 weeks.40 The Re-
gional Director for Region 15 will choose the publica-
tions. In this way, the notice may be seen by former em-
ployees who have been affected by the Respondent’s
unfair labor practices, as well as by future employees.
See id. at 715.41 In addition, the persistent repetition of
the same unfair labor practices by different supervisors
and managers shows that the Respondent has not suffi-
ciently trained its managers and supervisors in their duty
to abide by the Act’s requirements. Consequently, we
find it necessary to ensure that each of the Respondent’s
supervisors and managers is made aware of the Board’s
findings herein. To do so, we order the Respondent to
give each of its supervisors and managers a copy of the
remedial notice, to provide sign-in sheets for supervisors
and managers at each reading of the notice, and, on re-
quest, to furnish those sign-in sheets to one or more au-
thorized representatives of the Regional Director for Re-
gion 15. Managers and supervisors need not attend every
reading of the notice, but every supervisor and manager
must attend at least one reading.
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC,
Memphis, Tennessee, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Confiscating union materials from employee break
areas.
(b) Ordering offsite employees distributing union lit-
erature for organizational purposes in an outside, non-
working area to leave the premises.
(c) Telling employees to resign if they do not like
their working conditions.
(d) Telling bargaining-unit employees that they are
not represented by the Union.
(e) Discharging employees for supporting the United
Steelworkers Union (the Union) or for other protected
concerted activities.
(f) Refusing to bargain collectively with the Union by
unilaterally changing terms and conditions of employ-
ment of its unit employees, including by the following
such unilateral changes: implementing a mandatory ex-
ercise and stretching program; implementing an advance
notice requirement for employees requesting time off;

40 Chairman Ring does not join in those paragraphs of the Order that
require the Respondent to post the remedial notice for 3 years or to
publish the notice in two publications of broad circulation and local
appeal twice a week for a period of 8 weeks.
41 For the reasons given in his partial dissent, Chairman Ring would
not extend the notice-posting beyond the usual 60 days or order the
Respondent to publish the remedial notice.
changing its policy to disallow employees from using
paid time off to make up their hours when they are sent
home early; changing the shipping department hours
from 8 hours per day, 5 days per week to 11 hours per
day, 3 days per week; changing the inventory department
start time from 4 a.m. to 8 a.m.; increasing enforcement
of its policy prohibiting employees from leaving the
building after clocking in; increasing contributions to
employee 401(k) plans; implementing new timekeeping
and leave-request systems; and changing certain employ-
ees’ start times.
(g) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the unit employees’ collec-
tive-bargaining representative.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Shawn Wade, Nannette French, Stacey Williams, Jerry
Smith, Sr., and Lauren Keele full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Shawn Wade, Nannette French, Stacey Wil-
liams, Jerry Smith, Sr., and Lauren Keele whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the amended remedy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of Shawn Wade, Nannette French, Stacey Wil-
liams, Jerry Smith, Sr., and Lauren Keele, and within 3
days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(d) On request by the Union, rescind the unilateral
changes in terms and conditions of employment imple-
mented in April through September 2013.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full time custodians, customer service representa-
tives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, mainte-
OZBURN-HESSEY LOGISTICS, LLC 15
nance techs, material handlers, operators 1, operators 2,
operators 3, quality assurance coordinators, returns
clerks, and team leads employed by the Employer at
the Memphis, Tennessee facilities located at 5510 East
Holmes Road, 5540 East Holmes Road, 6265 Hickory
Hill Road, 6225 Global Drive, 4221 Pilot Drive, and
5050 East Holmes Road. Excluded: All other employ-
ees, including office clerical and professional employ-
ees, guards, and supervisors as defined in the Act.
(f) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral changes in the manner set forth in the
amended remedy section of this decision.
(g) Compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
15, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(h) Furnish to the Union in a timely manner the in-
formation the Union requested on June 17, 2013.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Memphis, Tennessee facilities copies of the attached
notice marked “Appendix.”42 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 3 consecutive years in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-

42 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.”
ered by any other material. If the Respondent has gone
out of business or closed one or more of the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 22, 2013.
(k) Within 14 days after service by the Region, con-
vene meetings at its Memphis, Tennessee facilities dur-
ing working time, scheduled to ensure the widest possi-
ble attendance, at which the attached notice is to be read
to employees, supervisors, and managers by either Senior
Vice President Randall Coleman or Senior Employee
Relations Manager Shannon Miles (or one of their suc-
cessors) in the presence of a Board agent if the Region so
desires, or, at the Respondent’s option, by a Board agent
in the presence of Coleman or Miles (or one of their suc-
cessors). The Respondent shall allow a representative of
the Union’s choice to attend and video record each such
meeting in the manner set forth in the amended remedy
section of this decision. The Respondent shall give each
supervisor and manager a copy of the remedial notice,
shall provide sign-in sheets for supervisors and managers
at the readings of the notice, and shall maintain the sign-
in sheets for inspection by the Regional Director in the
manner set forth in the amended remedy section of this
decision. The Respondent shall allow all employees to
attend these meetings without penalty or adverse em-
ployment consequences, financial or otherwise.
(l) Within 14 days after service by the Region, publish
in two publications of general circulation and local inter-
est copies of the remedial notice, signed by the Respond-
ent’s authorized representative, and continue to do so
twice weekly for a period of 8 weeks. The publications
will be chosen by the Regional Director for Region 15,
and they need not be limited to newspapers so long as
they will achieve broad coverage of the area.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CHAIRMAN RING, dissenting in part.
I agree with the majority on most of the issues in this
case. As to four specific issues, however, my colleagues
and I disagree. On three of these, my colleagues reverse
the judge’s decision and find the unfair labor practice.
For the reasons explained below, I would affirm the
judge’s decision and dismiss each of these allegations.
Additionally, as discussed below, I would reverse the
judge’s finding that the Respondent’s discharge of em-
ployee Stacey Williams violated the Act. Otherwise, I
agree with my colleagues’ violation findings,1 but I disa-
gree that additional extraordinary remedies are warranted
beyond those ordered by the judge, for reasons explained
below.

1 I also join my colleagues in adopting the judge’s credibility deter-
minations. For the reasons stated in the majority opinion, I join Mem-
ber McFerran (i) in dismissing the allegation that Operations Manager
Antonio Goodloe surveilled two employees’ union activity on May 14,
2013, in violation of Sec. 8(a)(1) of the Act, and (ii) in affirming the
judge’s denial of the General Counsel’s motion to amend the complaint
to add a direct-dealing allegation. In adopting the judge’s finding that
Manager Margaret Bonner unlawfully ordered offsite employees to
leave the parking lot at the Yazaki warehouse, I note that no party has
challenged the application of Hillhaven Highland House, 336 NLRB
646 (2001), enf. sub nom. First Healthcare Corp. v. NLRB, 344 F.3d
523 (6th Cir. 2003), notwithstanding that the Respondent does not own
the parking lot in question.
In finding that the Respondent violated Sec. 8(a)(5) of the Act by
making a variety of unilateral changes in employees’ terms and condi-
tions of employment, my colleagues rely on the “peril” doctrine reaf-
firmed by the Board in Mike O’Connor Chevrolet, 209 NLRB 701, 703
(1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975).
Under this doctrine, when an employer makes unilateral changes in
employment terms after a representation election in which the tally of
ballots shows a union victory, but before the election results are made
final and the union is certified as bargaining representative, the em-
ployer makes those changes at its peril, and the changes will be unlaw-
ful under Sec. 8(a)(5) if the Board ultimately issues a certification of
representative. My colleagues also rely on the Mike O’Connor “peril”
doctrine by analogy in holding that the right afforded represented em-
ployees under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)—the
right to a union representative at an investigatory interview the employ-
ee reasonably believes may result in discipline—attaches when the tally
of ballots shows that the union has won the election, not when the
certification of representative issues. Although I concur with my col-
leagues that the Respondent violated Sec. 8(a)(5) by making various
unilateral changes and Sec. 8(a)(1) when it told employee Smith Sr.
that he had no Weingarten rights, I note my reservation regarding the
Mike O’Connor “peril” rule. Specifically, I reiterate concern over the
“Hobson’s Choice” created by this rule, which requires employers to
choose between refraining from implementing changes that may be
necessary for the business or giving the union notice and the opportuni-
ty to bargain that may subsequently be deemed unlawful if the union is
not certified. Ardit Co., 364 NLRB No. 130, slip op. at 11 fn. 5 (2016)
(Member Miscimarra, dissenting in part). In an appropriate future case,
I believe the Board should consider modifying this aspect of Mike
O’Connor to provide parties with greater certainty and stability during
the postelection period.
1. Discharge of Nannette French
I would affirm the judge’s finding that the Respond-
ent’s discharge of employee Nannette French did not
violate the Act. French was not an open union supporter.
After the ballot count on May 14, 2013,2 French passed
out union cards to other employees in the Yazaki parking
lot. There is no credited evidence that any manager or
supervisor saw her doing so. The judge credited manag-
er Margaret Bonner’s testimony that Bonner did not see
French distributing cards, and the judge also found that
Supervisor Antonio Goodloe did not observe any such
activity. Although Bonner testified that Goodloe saw
two “union people” in the parking lot, her testimony does
not establish that Goodloe saw French, whom Goodloe
would recognize because Goodloe supervised French.
On May 17, French was 1 minute late clocking in after
returning from lunch. The Respondent’s attendance pol-
icy required the assessment of one attendance point any
time an employee was late, and it provided that employ-
ees would be discharged when they had accumulated 13
or more attendance points. French’s late clock-in caused
her to reach 13 attendance points, and accordingly, the
Respondent discharged French on May 23. No party
alleges that any of French’s other 12 attendance points
were discriminatorily assessed.
My colleagues infer that the Respondent knew of
French’s union activity based on certain circumstantial
evidence. The record belies this inference. French was
not openly supportive of the Union prior to May 14, the
judge found that neither Bonner nor Goodloe witnessed
French’s union activity on May 14, and the record re-
veals that the Respondent had no other potential source
of knowledge about French’s union activity. Moreover, I
disagree with my colleagues that knowledge of French’s
union activity may be inferred from timing or from evi-
dence of disparate treatment. Timing is inconclusive:
although French was discharged not long after engaging
in union activity, her discharge was closer in time to the
day she accrued a thirteenth attendance point, and the
discharge decision is fully and legitimately accounted for
by the accrual of that thirteenth point.3 As to disparate

2 All dates are in 2013 unless otherwise stated.
3 I agree with my colleagues that timing is probative of employer
knowledge in Shawn Wade’s case. Wade was discharged the day after
he signed a union authorization card in full view of the Respondent’s
vice president, purportedly for clocking in and then briefly leaving the
facility to move his car. But in Wade’s case, the Respondent routinely
treated briefly leaving the facility after clocking in as grounds for as-
sessing an attendance point, at most. Thus, between the time Wade
engaged in union activity and was discharged, he did nothing that could
legitimately account for his discharge. In contrast, between the time
French engaged in union activity and was discharged, she accrued a
thirteenth attendance point, which was grounds for discharge. And as
OZBURN-HESSEY LOGISTICS, LLC 17
treatment, although at one time the Respondent had al-
lowed some employees to accrue more than 13 attend-
ance points before it discharged them, most of the com-
parators my colleagues rely on were discharged in 2011
or earlier. On the other hand, 1 week before the Re-
spondent discharged French, it discharged employee
Lauren Keele when she accrued her thirteenth attendance
point—and the Respondent knew that Keele did not sup-
port the Union.4 The record therefore supports the Re-
spondent’s contention that it started enforcing its attend-
ance policy more strictly when Shannon Miles took over
the human resources function in late 2011. As the con-
temporaneous discharge of Keele demonstrates, the dis-
charge of French was not due to her union activity (of
which the Respondent had no knowledge), but to stricter
enforcement of the Respondent’s attendance policy by
the manager who oversaw human resources at the time
French was discharged.5 Accordingly, I would affirm the
judge’s dismissal of the allegation that French’s dis-
charge violated the Act.
2. Discharge of Stacey Williams
Contrary to the majority, the record does not support a
finding that the Respondent discharged employee Stacey
Williams because he requested union representation at a

explained below, I am not persuaded by my colleagues’ argument that
French was treated disparately.
4 Keele accrued her thirteenth attendance point as a result of a mis-
take she made clocking in with the Respondent’s Kronos timekeeping
system. My colleagues find that the Respondent’s unilateral implemen-
tation of the Kronos system was a material, substantial, and significant
change in employees’ terms and conditions of employment and violated
Sec. 8(a)(5). They further find that because Keele’s discharge resulted
from an unlawful unilateral change, the Respondent must be ordered to
reinstate Keele with backpay. As explained below, I disagree that the
implementation of the Kronos system constituted a material, substan-
tial, and significant change in employment terms and conditions, and
therefore I disagree that the Respondent violated Sec. 8(a)(5) when it
unilaterally implemented the Kronos timekeeping system. According-
ly, I cannot join my colleagues in ordering the Respondent to reinstate
Keele with backpay.
5 My colleagues decline to rely on the Respondent’s stricter en-
forcement of its attendance policy as a nondiscriminatory basis for
French’s discharge because that stricter enforcement constituted an
unlawful unilateral change in violation of Sec. 8(a)(5). I disagree, for
two reasons. First, the General Counsel has not alleged that the Re-
spondent’s stricter enforcement of its attendance policy violated the
Act, and such an allegation falls within the sole purview of the General
Counsel under Sec. 3(d). Second, even if the Respondent violated Sec.
8(a)(5) when it began enforcing its attendance policy more strictly
without giving the Union notice and opportunity to bargain, there is
neither allegation nor evidence that the Respondent’s stricter enforce-
ment was motivated by antiunion discrimination. Thus, even if it vio-
lated Sec. 8(a)(5), the Respondent’s stricter enforcement of its attend-
ance policy constituted a nondiscriminatory reason for French’s dis-
charge, and the Respondent may rely on that nondiscriminatory reason
as an affirmative defense to the allegation that French’s discharge vio-
lated Sec. 8(a)(3).
disciplinary meeting. Instead, as discussed below, I
would find that the Respondent discharged Williams for
his insubordinate conduct after the Respondent lawfully
denied his Weingarten request. I would therefore dis-
miss the allegation.
On June 17, Managers David Maxey and Sara Wright
held a meeting with Williams, during which Maxey ac-
cused Williams of engaging in inappropriate workplace
behavior by kissing a coworker. Williams strenuously
denied doing so. Although there are several different
accounts of exactly what happened on June 17, it is un-
disputed that Williams’ actions that day resulted in the
Respondent issuing Williams a written warning 3 days
later, on June 20. That day, Maxey and Wright called
Williams to a meeting in a conference room. Wright
attempted to give Williams a copy of the written warn-
ing, which the Respondent had already prepared. Wil-
liams refused to look at the warning and requested union
representation. The purpose of the meeting was to issue
discipline that had already been decided upon, and
Wright correctly informed Williams that he did not have
a right to a representative at the meeting.6 Williams then
requested representation a second time, and when Wright
denied the second request, Williams stormed out of the
conference room. Neither Maxey nor Wright had given
Williams permission to leave the meeting, and both of
them testified that, in their view, the meeting was not
over yet.
After waiting a few minutes for Williams to return,
Maxey and Wright followed Williams to his workstation.
There, as the judge found, one or both of them asked
Williams “at least twice” to return to the conference
room. Williams did not do so, but instead reiterated his
requests for union representation two more times. Both
requests were denied. Maxey then told Williams to clock
out. The Respondent subsequently discharged Williams
for insubordination.
The judge found that Williams was discharged for en-
gaging in the protected concerted activity of requesting
union representation. Applying the factors articulated in
Atlantic Steel Co., 245 NLRB 814, 816 (1979), the judge
determined that Williams’ behavior was not so disruptive
as to lose the protection of the Act. My colleagues agree
with the judge that Atlantic Steel is the applicable stand-
ard here and that Williams’ discharge was unlawful. I
disagree on both counts.

6 See, e.g., Baton Rouge Water Works Co., 246 NLRB 995, 997
(1979) (holding that “an employee has no Section 7 right to the pres-
ence of his union representative at a meeting with his employer held
solely for the purpose of informing the employee of, and acting upon, a
previously made disciplinary decision”).
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
First, Atlantic Steel does not apply here. Atlantic Steel
applies where it is clear that an employee was disciplined
or discharged for protected activity, and the only issue is
whether the employee’s misconduct in the course of that
otherwise-protected activity lost the employee the protec-
tion of the Act. In such a situation, there is no dispute
regarding the employer’s motive. Here, however, the
motivation for Williams’ discharge is disputed: the Gen-
eral Counsel alleges that Williams was discharged for
requesting a union representative, and the Respondent
contends that Williams was discharged for insubordina-
tion. Where the employer’s motive for taking a chal-
lenged adverse employment action is disputed, the Board
applies the burden-shifting framework articulated in
Wright Line.7 Second, I do not agree that Williams’ dis-
charge was unlawful applying Wright Line. I would find
that even if the General Counsel proved that Williams’
request for a union representative was a motivating factor
in the Respondent’s decision to discharge Williams, the
Respondent met its burden to prove that it would have
discharged Williams for insubordination regardless of his
request.
Contrary to the judge’s finding, Williams was clearly
insubordinate. He stormed out of a meeting with two
managers without receiving permission to leave the
meeting. The managers followed Williams to his work-
station and asked him, at least twice, to come back to the
conference room. It is undisputed that Williams did not
comply. Thus, managers repeatedly asked Williams to
do something, and Williams did not do it. This is insub-
ordination, plain and simple. Contrary to the judge’s
analysis, it does not matter if Williams was calm when
he insubordinately refused to comply with two direct
orders. The essence of insubordination is the refusal to
comply with a superior’s order, not the manner in which
the refusal is conveyed.8
The Respondent clearly carried its burden of showing
that it typically disciplined employees for insubordina-
tion. Wright testified that a first offense of insubordina-
tion generally results in a final warning, and the record
contains at least two exhibits showing that employees
were disciplined for insubordination. Williams had al-
ready been issued a final warning before his insubordina-
tion on June 20. With a final warning already in Wil-
liams’ file, the only disciplinary options available to the

7 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981).
8 The majority notes that the judge discredited testimony that Wil-
liams refused to go home when asked to. It is undisputed, however,
that Williams refused to return to the conference room when asked to
by management. Thus, Williams was insubordinate regardless of
whether he refused to obey an order to go home.
Respondent were to do nothing or to discharge him. I
would find that the Respondent has shown it would have
discharged Williams for insubordination on June 20 re-
gardless of whether he engaged in any protected activity
on that day. I would therefore dismiss the allegation that
Williams was unlawfully discharged.
3. Discharge of Jerry Smith, Sr.
I would adopt the judge’s finding that the Respond-
ent’s discharge of Jerry Smith, Sr. did not violate Section
8(a)(3). Like Williams, Smith Sr. committed clear mis-
conduct (lying on a questionnaire) after he had already
received a final warning. As discussed below, the Re-
spondent showed that it would have discharged Smith Sr.
regardless of his union activity.
As noted above, at the time Shawn Wade was dis-
charged purportedly for leaving the workplace after
clocking in, which occurred in May, employees regularly
did likewise and were issued an attendance point, at
most. In September, this lenient practice changed, and
the Respondent put employees on notice that leaving the
building without permission after clocking in would be
grounds for discharge. That same month, Manager
Wright reviewed video-camera footage to determine
whether employees were complying with the policy, and
she identified nine employees who had recently left the
building during working time. Wright distributed to each
of them at least one questionnaire asking if they had left
the building after clocking in, and, if so, if they had per-
mission to do so. Smith Sr.’s questionnaires asked
whether he had left the building after clocking in on Sep-
tember 11 and 18. Smith Sr. answered “no” on both
questionnaires. He reaffirmed those answers by answer-
ing “N/A” to the question whether he had permission to
leave the building. At the hearing, Smith Sr. admitted
that he had left the building after clocking in on both
days. It is undisputed that the Respondent discharged
Smith Sr. on October 2 for lying on the questionnaires.
One other employee who answered a September ques-
tionnaire also stated that he had not left the building, but
he came forward voluntarily to express uncertainty and
concern about his answer and was permitted to amend it.
The Respondent met its Wright Line burden of proving
that it would have discharged Smith Sr. regardless of his
union activity.9 Smith Sr. was on a final warning, which
was lawfully imposed, and he gave demonstrably false
answers during the Respondent’s investigation. The ma-
jority states that the Respondent had no need to rely on
Smith Sr.’s questionnaire because it had indisputable
video evidence of his transgression. But the video obvi-

9 As my colleagues note, there are no exceptions to the judge’s find-
ing that the General Counsel met his initial burden under Wright Line.
OZBURN-HESSEY LOGISTICS, LLC 19
ously did not reveal whether Smith Sr. had permission to
leave the building—and more importantly, a lie is a lie
regardless of the Respondent’s need, or lack of need, to
rely on the questionnaire. The majority also states that
Smith Sr. was treated disparately. Not so. Smith Sr. was
the only one of the nine employees who received ques-
tionnaires who lied about leaving the building during
worktime. One other employee also answered untruth-
fully, but he came forward voluntarily and expressed
uncertainty about his answer. Smith Sr. did not express
uncertainty and did not recant his lies. My colleagues’
comparison of Smith Sr.’s treatment to the Respondent’s
treatment of Jennifer Smith fails. The Respondent be-
lieved Jennifer Smith lied on a questionnaire, but Smith
Sr. indisputably lied on his questionnaires. The Re-
spondent had video evidence proving as much. It did not
have such evidence as to Jennifer Smith.10 I would af-
firm the judge’s dismissal of this allegation.
4. Implementation of the Kronos timekeeping and
leave system
I agree with the judge, for the reasons he stated, that
neither the Respondent’s implementation of a new time-
keeping system nor the attendant change in how employ-
ees request leave violated the Act. A unionized employ-
er violates Section 8(a)(5) of the Act by making a mate-
rial, substantial, and significant change to employees’
terms and conditions of employment without giving the
union reasonable advance notice and an opportunity to
request bargaining. See, e.g., Ead Motors Eastern Air
Devices, 346 NLRB 1060, 1065 (2006). Here, the
8(a)(5) allegation fails because the challenged unilateral
change was not material, substantial, and significant.11
On April 22, the Respondent replaced its former time-
keeping system with a Kronos touchscreen system, and it
did so without giving the Union notice and opportunity
to bargain. The Kronos time clock had more options,
including options for requesting time off. The judge
found that although workers took some time to get used
to the new system and there were “individual mistakes or
misunderstandings” in using it, there was no evidence
that Kronos “caused any lasting change in the employ-
ees’ work.”

10 My colleagues also find that Smith Sr.’s discharge violated Sec.
8(a)(4). I disagree. I have found that the Respondent met its burden of
proving that it would have discharged Smith Sr. for lying even absent
his protected activity. That finding applies equally regardless of
whether the protected activity was his testimony in Board proceedings
or his union activity.
11 I join my colleagues in adopting the judge’s finding that the Re-
spondent’s unilateral implementation of a new advance-notice require-
ment for requesting paid time off violated Sec. 8(a)(5).
In Rust Craft Broadcasting of New York, Inc., 225
NLRB 327, 327 (1976), the Board found that replacing
handwritten timecards with a time clock was not a mate-
rial, substantial, and significant change to employees’
terms and conditions of employment. Here, the judge
analogized the Respondent’s adoption of the Kronos sys-
tem to an employer buying a new forklift with unfamiliar
controls. Employees might take some time to get used to
the new controls, but they would not experience any last-
ing change to their terms and conditions of employment.
I agree with the judge. If anything, replacing a time
clock that had manual buttons with a time clock that has
a touchscreen is less of a change than the change in Rust
Craft Broadcasting, in which the employer changed from
handwritten cards to a time clock. Similarly, switching
from paper to electronic leave-request forms did not rise
to the level of a material, substantial and significant
change. I would therefore affirm the judge’s finding that
the change to Kronos and the related change from paper
to electronic leave requests did not constitute material,
substantial, and significant changes to employees’ terms
and conditions of employment. I would therefore dis-
miss the 8(a)(5) unilateral-change allegation.
5. Remedial issues
I agree with my colleagues that, due to the Respond-
ent’s repeated, serious violations of the Act, the remedy
properly should include a broad order to cease and desist
from violating the Act “in any other manner,” along with
the extraordinary remedy of notice reading.12 However,
these remedies are sufficient, and I would not additional-
ly order the Respondent to publish the remedial notice in
two publications of broad circulation, and I would not
extend the notice-posting period from the usual 60 days
to 3 years.
In support of these expanded remedies, my colleagues
cite Pacific Beach Hotel, 361 NLRB 709, 714 (2014),
enfd. in relevant part sub nom. HTH Corp. v. NLRB, 823
F.3d 668 (D.C. Cir. 2016). In my view, the history of
violations committed by the respondent in that case was
so outrageous as to render it all but sui generis. The Re-
spondent’s misconduct, although serious and pervasive,
does not approach the level of the misconduct in that
case. In Pacific Beach Hotel, the employer had previous-
ly engaged in egregious conduct for over a decade, and it
was found to have (i) unlawfully interfered in two union
elections, (ii) threatened and coerced employees, (iii)
unlawfully granted wage increases and promotions to
interfere with a union election, (iv) unlawfully dis-
charged members of the union bargaining committee, (v)

12 I also join my colleagues in requiring all the Respondent’s manag-
ers and supervisors to attend a meeting at which the notice is read.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
promulgated numerous unlawful rules that restricted em-
ployees’ Section 7 rights, (vi) repeatedly bargained in
bad faith, (vii) unlawfully withdrew recognition from the
union, (viii) unlawfully imposed discipline, and (ix)
made numerous changes to employees’ terms and condi-
tions of employment without bargaining with the union.13
Id. at 709–710. In addition to multiple Board decisions,
the violations committed by the respondent in Pacific
Beach Hotel resulted in a civil contempt order and three
Section 10(j) injunctions issued by a federal court. Id. at
709 fn. 3. Moreover, when a union representative noti-
fied Pacific Beach’s regional vice president of operations
that certain unilateral changes the hotel had made violat-
ed an order issued by a federal judge under Section 10(j),
the vice president replied, “Fuck the judge. He’s wrong
. . . [the changes are] not illegal unless I go to jail.” Id. at
710 fn. 10. Pacific Beach’s clear and overt contempt for
the Board, the federal courts, and the Act prompted the
Board to impose certain extraordinary remedies warrant-
ed in only the most extreme cases.
Without minimizing the Respondent’s conduct, this is
not such an extreme case. The Respondent’s initial un-
fair labor practices were committed in June 2009, see
Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011),
enfd. 609 Fed. Appx. 656 (D.C. Cir. 2015), and the un-
fair labor practices at issue in this case occurred in 2012
and 2013. This is far less than the decade-long record of
defiance in Pacific Beach Hotel. Moreover, while my
colleagues point out that the Board has issued five previ-
ous decisions against the Respondent, one of those deci-
sions involved a purely technical refusal-to-bargain vio-
lation committed to obtain appellate review of an under-
lying representation case,14 and two of those decisions
issued after the events at issue in this case. Mindful that
the Board lacks statutory authority to impose punitive
remedies,15 I would reserve the 3-year notice-posting
remedy and the notice-publication remedy for once-in-a-
generation cases like Pacific Beach Hotel.
Accordingly, to the extent and for the reasons set forth
above, I respectfully dissent.

13 This list is not exhaustive.
14 Only Board orders in unfair labor practice cases are appealable to
the courts of appeals. See NLRA Sec. 10(e) and 10(f). An employer
may obtain appellate review of a Board decision in a representation
case, but only by petitioning for review of a Board order in an unfair
labor practice case. See NLRA Sec. 9(d). Thus, to exercise its right to
secure appellate review of disputed issues in a representation case, an
employer must commit an unfair labor practice in order to obtain an
appealable Board order.
15 See Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235–236
(1938) (Sec. 10(c) “does not go so far as to confer a punitive jurisdic-
tion enabling the Board to inflict upon the employer any penalty it may
choose . . . even though the Board be of the opinion that the policies of
the Act might be effectuated by such an order.”).
Dated, Washington, D.C. August 27, 2018
______________________________________
John F. Ring, Chairman
NATIONAL LABOR RELATIONS BOARD
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 confiscate union materials from employ-
ee break areas.
WE WILL NOT order offsite employees distributing un-
ion literature in an outside, nonworking area to leave the
premises.
WE WILL NOT tell you to resign if you do not like your
working conditions.
WE WILL NOT tell bargaining-unit employees that you
are not represented by the Union.
WE WILL NOT discharge any of you for supporting the
United Steelworkers Union (the Union) or for other pro-
tected concerted activities.
WE WILL NOT refuse to bargain with the Union by uni-
laterally changing terms and conditions of employment
of our bargaining-unit employees including by the fol-
lowing such unilateral changes: implementing a manda-
tory exercise and stretching program; implementing an
advance notice requirement for employees requesting
time off; changing our policy to disallow employees
from using paid time off to make up your hours when
you are sent home early; changing the shipping depart-
ment hours from 8 hours per day, 5 days per week to 11
hours per day, 3 days per week; changing the inventory
department start time from 4 a.m. to 8 a.m.; increasing
enforcement of our policy prohibiting employees from
OZBURN-HESSEY LOGISTICS, LLC 21
leaving the building after clocking in; increasing contri-
butions to employee 401(k) plans; implementing new
timekeeping and leave-request systems; and changing
certain employees’ start times.
WE WILL NOT refuse to bargain with the Union by fail-
ing and refusing to furnish it with requested information
that is relevant and necessary to the Union’s performance
of its functions as your collective-bargaining representa-
tive.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Shawn Wade, Nannette French, Stacey Wil-
liams, Jerry Smith, Sr., and Lauren Keele full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Shawn Wade, Nannette French, Stacey
Williams, Jerry Smith, Sr., and Lauren Keele whole for
any loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Shawn Wade, Nannette French, Stacey
Williams, Jerry Smith, Sr., and Lauren Keele, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the discharges will not be
used against them in any way.
WE WILL, on request by the Union, rescind the unilat-
eral changes in terms and conditions of employment im-
plemented in April through September 2013.
WE WILL make our unit employees whole for any loss
of earnings and other benefits suffered as a result of the
unilateral changes, with interest.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
All full time custodians, customer service representa-
tives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, mainte-
nance techs, material handlers, operators 1, operators 2,
operators 3, quality assurance coordinators, returns
clerks, and team leads employed by the Employer at
the Memphis, Tennessee facilities located at 5510 East
Holmes Road, 5540 East Holmes Road, 6265 Hickory
Hill Road, 6225 Global Drive, 4221 Pilot Drive, and
5050 East Holmes Road. Excluded: All other employ-
ees, including office clerical and professional employ-
ees, guards, and supervisors as defined in the Act.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 15 a report allocating the backpay
awards to the appropriate calendar years for each em-
ployee.
WE WILL furnish to the Union in a timely manner the
information the Union requested on June 17, 2013.
WE WILL, within 14 days after this notice is served on
us by Region 15, convene meetings at our Memphis,
Tennessee facilities during working time, scheduled to
ensure the widest possible attendance, at which this no-
tice will be read to employees, supervisors, and managers
by either Senior Vice President Randall Coleman or Sen-
ior Employee Relations Manager Shannon Miles (or one
of their successors) in the presence of a Board agent if
the Region so desires, or, at our option, by a Board agent
in the presence of Coleman or Miles (or one of their suc-
cessors). WE WILL allow a representative of the Union’s
choice to attend and record each meeting. WE WILL give
each supervisor and manager a copy of this notice, WE
WILL provide sign-in sheets for supervisors and managers
at the readings of this notice, and WE WILL maintain the
sign-in sheets for inspection by the Board. WE WILL
allow you to attend one of the meetings without penalty
or adverse employment consequences, financial or oth-
erwise.
WE WILL, within 14 days after this notice is served on
us by Region 15, publish copies of this notice in two
publications of general circulation and local interest, and
WE WILL continue to do so twice weekly for a period of 8
weeks.
OZBURN-HESSEY LOGISTICS, LLC
The Board’s decision can be found at
https://www.nlrb.gov/case/26-CA-092192 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
William T. Hearne, Esq. and Linda M. Mohns Esq., for the
General Counsel.
Ben H. Bodzy Esq. and Stephen D. Goodwin, Esq. (Baker, Do-
nelson, Bearman, Caldwell & Berkowitz, PC), of Nashville
and Memphis, Tennessee, for the Respondent.
Richard P. Rouco, Esq. (Quinn, Connor, Weaver, Davies &
Rouco, LLP), of Birmingham, Alabama, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Respondent
violated the Act by discharging an employee because of his
Union and protected concerted activities, by making unilateral
changes in terms and conditions of employment without afford-
ing the Union notice and an opportunity to bargain over the
decisions and their effects, by failing and refusing to furnish the
Union with requested information relevant to and necessary for
the performance of the Union’s duties as exclusive bargaining
representative, by removing union literature from a break room
table, and by making certain statements which reasonably
would chill employees in the exercise of Section 7 rights.
Procedural History
This case began October 26, 2012, when the Union, United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union,
AFL–CIO, CLC a/k/a United Steelworkers Union, filed an
unfair labor practice charge against the Respondent, Ozburn-
Hessey Logistics, LLC, in Case 26–CA–092192. The Union
amended this charge on November 2, December 3 and, 18,
2012, and January 25, 2013. Also on January 25, 2013, the
Union filed a charge against Respondent in Case 15–CA–
097046, and amended that charge on July 31, 2013.
On May 20, 2013, the Union filed a charge against Respond-
ent in Case 15–CA–105527. The Union amended this charge
on July 15, 2013, and September 27, 2013.
On May 23, 2013, the Acting Regional Director for Region
26 issued a complaint and notice of hearing in 26–CA–092192.
The Respondent filed a timely answer.
On May 30, 2013, Lauren Keele, an individual, filed a
charge against the Respondent in Case 15–CA–106180, and
amended this charge on July 26, 2013.
On June 3, 2013, the Union filed a charge against the Re-
spondent in Case 15–CA–106387. Also on June 3, 2013, the
Union filed a charge against the Respondent in Case 15–CA–
106511. The Union filed amendments to these charges on July
15, 2013, and September 27, 2013.
On July 9, 2013, the Union filed a charge against the Re-
spondent in Case 15–CA–108749.
On July 16, 2013, the Union filed a charge against the Re-
spondent in Case 15–CA–109235.
On August 19, 2013, the Union filed charges against the Re-
spondent in Cases 15–CA–111520, 15–CA–111523, and 15–
CA–111581. The Union amended the charge in Case 15–CA–
111520 on September 18, December 9 and 31, 2013. It amend-
ed the charge in Case 15–CA–111581 on December 31, 2013.
The Union amended the charge in Case 15–CA–111523 on
February 27, 2014.
On August 22, 2013, the Regional Director for Region 15 of
the Board issued an order consolidating cases, consolidated
complaint, and notice of hearing in cases 26–CA–092192, 15–
CA–097046, and 15–CA–109235. Respondent filed a timely
answer and thereafter amended its answer.
On September 30, 2013, the Regional Director for Region 15
issued a second order consolidating cases, consolidated com-
plaint, and notice of hearing, which consolidated Case 15–CA–
108749 with 26–CA–092192, 15–CA–097046, and 15–CA–
109235. The Respondent filed a timely answer.
On October 31, 2013, the Regional Director for Region 15
issued a third order consolidating cases, consolidated com-
plaint, and notice of hearing which added Cases 15–CA–
105527, 15–CA–106180, 15–CA–106387, and 15–CA–106511
to the previously-consolidated 15–CA–108749, 26–CA–
092192, 15–CA–097046 and 15–CA–109235. The Respondent
filed a timely answer and amended answer.
On November 18, 2013, the Union filed a charge against Re-
spondent in Case 15–CA–117208. The Union amended this
charge on February 27, 2014.
On December 30, 2013, the Union filed a charge against the
Respondent in Case 15–CA–199826.
On January 2, 2014, the Union filed a charge against Re-
spondent in Case 15–CA–119925. It amended this charge on
February 28, 2014.
On January 30, 2014, the Regional Director issued a fourth
order consolidating cases, fourth consolidated complaint, and
notice of hearing. It added Cases 15–CA–111520 and 15–CA–
111581. Respondent filed a timely answer.
On February 27, 2014, the Union filed a charge against the
Respondent in Case 15–CA–123315.
On March 26, 2014, the Regional Director issued a fifth or-
der consolidating cases, fifth consolidated complaint, and no-
tice of hearing. It added Cases 15–CA–111523 and 15–CA–
119925. Respondent filed a timely answer.
On April 30, 2014, the Regional Director issued a sixth order
consolidating cases, sixth consolidated complaint, and notice of
hearing. (Hereafter, for brevity, I will refer to this pleading
simply as the “Complaint.”) This pleading added Cases 15–
CA–117208, 15–CA–119826, and 15–CA–123315. The Re-
spondent filed a timely answer.
A hearing opened before me in Memphis, Tennessee, on
June 9, 2014. The parties presented evidence on that day and
on the following days: June 10, 11, 12, and 13, 2014, and July
21, 22, 23, 24, and 25, 2014. On July 25, 2014, the hearing
closed. Thereafter, the parties submitted briefs, which I have
considered.
Admitted Allegations
Respondent admitted a number of allegations in its answer to
the complaint. Based on those admissions, I make the findings
discussed in this section of the decision.
Respondent admitted the filing and service of the various
charges, as alleged in complaint paragraph 1 and its subpara-
graphs. Therefore, I find that the General Counsel has proven
these allegations.
OZBURN-HESSEY LOGISTICS, LLC 23
Respondent has admitted the allegations raised in complaint
paragraphs 2(a), (b), (c), and 3. Based on those admissions, I
find that, at all material times, the Respondent has been a lim-
ited liability company with an office and places of business in
Memphis, Tennessee (Respondent’s facility), and has been
engaged in providing transportation, warehousing, and logistics
services.
Further, I find that Respondent annually performs services
valued in excess of $50,000 in states other than the State of
Tennessee, and annually purchases and receives at its Mem-
phis, Tennessee facility, directly from points outside the State
of Tennessee, goods valued in excess of $50,000. Accordingly,
I conclude that the Respondent meets the statutory and discre-
tionary standards for the exercise of the Board’s jurisdiction,
and is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor Relations
Act.
Respondent also has admitted, and I find, that the following
individuals, named in complaint paragraph 5, are its supervisors
and agents within the meaning of Section 2(11) and (13) of the
Act, respectively: Director of Operations Ken Ball, Operations
Manager Margaret Bonner, Senior Vice-President Randall
Coleman, Operations Supervisor Stacy Deal, Human Resources
Coordinator Megan Ferrone, Operations Supervisor Chris Fin-
ley, Operations Supervisor Antonio Goodloe, Human Resource
Manager Lisa Johnson, Operations Supervisor Mark Kuhl,
Operations Manager David Maxey, Operations Supervisor Ter-
rence McDowell, Senior Employee Relations Manager Shan-
non Miles, Operations Supervisor Kyle Perkins, Operations
Supervisor Chiquita Saulsberry, Operations Manager Billy
Smith, Director of Operations Phil Smith, Regional Vice Presi-
dent Karen White, Operations Manager Jim Windisch, and
Human Resources Manager Sara Wright.
Further, Respondent has admitted, and I find, that at all times
material to this case, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
Respondent also has admitted the allegation raised in com-
plaint paragraph 14(b), that on May 24, 2013, the Board certi-
fied the Union as the exclusive collective-bargaining repre-
sentative of employees in the following unit:
Included: All full time custodians, customer service repre-
sentatives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, maintenance
techs, material handlers, operators 1, operators 2, operators 3,
quality assurance coordinators, returns clerks, and team leads
employed by the Employer at the Memphis, Tennessee facili-
ties located at: 5510 East Holmes Road; 5540 East Holmes
Road, 6265 Hickory Hill Road, 6225 Global Drive, 4221 Pilot
Drive, and 5050 East Holmes Road.
Excluded: All other employers, including, office clerical and
professional employees, guards, and supervisors as defined in
the Act.
Based on the Respondent’s admission, and taking adminis-
trative notice of the Board’s decisions, I find that the Union is
the certified exclusive representative of this unit. However,
because of an unusual procedural complexity, it is not accurate
to state that the Union’s status as certified representative flows
from the May 24, 2013 certification.
On June 26, 2014, the United States Supreme Court issued
its decision in NLRB v. Noel Canning, ___ U.S. ___, 134 S.Ct.
2550, ___ U.S. ___ (2014), which invalidated the appointments
of certain Board members. The next day, the Board issued an
order setting aside the certification but retaining the case for
further action in the future. On November 17, 2014, the Board
issued a new certification in Ozburn-Hessey Logistics, LLC,
361 NLRB 921 (2014).
Respondent’s answer also admits that it took certain discipli-
nary actions against specific employees, although it denies that
it violated the Act by doing so. These admissions will be dis-
cussed below in connection with the specific unfair labor prac-
tice allegations.
Disputed Allegations
Complaint Paragraph 6
Complaint paragraph 6 pertains to alleged conduct at Re-
spondent’s Memphis, Tennessee facility on about May 14,
2013. Complaint paragraph 6(a) alleges that Operations Man-
ager Antonio Goodloe engaged in surveillance of employees
engaged in union activity “by watching and monitoring Union
organizer solicitation activity.” Complaint paragraph 6(b) al-
leges that Goodloe ordered employees engaged in lawful union
solicitation and distribution activities to leave the premises.”
Respondent denies these allegations. It also denies that it
thereby violated Section 8(a)(1) of the Act, as alleged in com-
plaint paragraph 19.
Respondent’s Memphis facilities include a number of differ-
ent warehouses. The Board conducted an election in the bar-
gaining unit described above, which consisted of employees at
the warehouses specified in the unit description. The location
of two of these warehouses, close to each other on East Holmes
Road, will be referred to below as Respondent’s “main cam-
pus.”
In addition to operating the warehouses where bargaining
unit employees worked, the Respondent also had a contract to
provide employees to work at a warehouse owned by another
company, Yazaki. The Respondent’s employees who worked
at this location were not part of the bargaining unit.
On May 14, 2013, the Board counted the ballots cast by bar-
gaining unit employees in an election to determine whether the
Union would represent them. Among those watching the ballot
count were employees Jerry Smith III and Glenora Rayford
Whitley. (To avoid confusion which could arise because a
number of witnesses were named Smith, I will refer to Jerry
Smith III as “Smith III.”) Following the count, they went to the
main campus to tell other employees about the outcome.
After speaking with bargaining unit employees who worked
in the buildings on the “main campus,” Smith III and Whitley
went to the parking lot of the nearby Yazaki warehouse. As
noted above, Respondent did not own this warehouse, but some
of its employees worked there pursuant to Respondent’s con-
tract with Yazaki. Smith III and Whitley did not enter the Ya-
zaki building but rather stood on the sidewalk near the employ-
ee entrance and also in the parking lot.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Smith III testified that while he was standing there, he saw a
man, whose name he did not know, in a vehicle in the parking
lot. He further testified:
Q. What kind of vehicle was it?
A. I believe it was a type of a green SUV.
Q. When you saw that person in the green SUV, did
they get out of the SUV or were they still sitting in the
SUV?
A. They were still sitting in the SUV.
Q. Could you see what that person was doing in the
SUV?
A. He was watching us while he was on the telephone.
Q. And when you say he was watching you, did you
see him looking directly at you?
A. Yes, I did.
Q. And you say he was on the telephone. What kind
of phone are you talking about?
A. A cell phone.
Q. How was he holding that cell phone?
A. He was holding it to his ear.
Q. Was he talking while looking at you?
A. Yes.
Q. And were you--and did you look at him and see
him looking at you?
A. Yes, I did.
Q. How long did he sit there?
A. I would say roughly about 5, 10 minutes; 10
minutes tops.
Whitley’s testimony was similar, except that she testified
that the man was in a red or burgundy vehicle. Moreover, sev-
eral times during her testimony, she referred to the vehicle as a
truck. However, at one point, in response to a question by the
General Counsel, she changed her testimony and called the
vehicle an SUV.
The obvious difference between the green SUV described by
Smith III and a red truck raises some concerns about the relia-
bility of Whitley’s testimony. Other parts of her testimony
increase those doubts.
Specifically, there is a difference between the answer Whit-
ley gave in response to a somewhat leading question and later
portions of her testimony on direct examination. Whitley testi-
fied that the man she saw talking on the telephone while in a
red or burgundy truck then approached her and told her she
would have to leave where she was standing and go “to the
curb,” meaning the edge of Holmes Road. The problem con-
cerns her identification of this person.
At the beginning of the testimony quoted below, the General
Counsel asked Whitley if she had a conversation “with an indi-
vidual who identified himself as Antonio” and she answered
“Yes.” However, slightly later in this same testimony, she
stated that she learned the man’s name from a “young lady” not
otherwise identified:
Q. While you were out in the parking lot--or while
you were out at the Yazaki warehouse, did you have a
conversation with an individual who identified himself as
Antonio?
A. Yes.
Q. Did you approach Antonio or did he approach you?
A. He came to me.
Q. Before Antonio approached you, had you seen him
in or around the parking lot?
A. Yes.
Q. Where had he been?
A. He was sitting in his truck. The employee was
coming--well, Nannette had went in the building to get the
employees, to send them out to me to sign the union card.
They was coming out. And they were signing cards as
they was coming out. And I saw a truck sitting up there
on the hill like. I thought he was a regular employee I
didn’t know. And a young lady said there go the supervi-
sor, you know, that was our supervisor. And I looked
around and asked her who was that. She said Antonio. . .
Was this “young lady” Annette French, an employee who
worked at this particular warehouse and under the supervision
of Antonio Goodloe? French certainly would be competent to
identify Goodloe, because he was her supervisor. However, for
the following reasons, I conclude that the “young lady” was not
French.
Whitley referred to French as “Nannette,” so it would appear
likely that if the “young lady” were the same person, Whitley
simply would have called her “Nannette.”
Moreover, the sequence of events raises doubt that French
and the “young lady” were the same person. Whitley’s testimo-
ny indicates that she spoke with French, who then went inside
the warehouse to let other employees know that Whitley was
outside with information about the ballot count. Then, accord-
ing to Whitley, seven or eight employees came out of the build-
ing, spoke with her, and signed union cards. Whitley’s testi-
mony on cross-examination makes clear that the man the
“young lady” identified as “Antonio” did not arrive on the sce-
ne until after French had left:
Q. Okay. When did you first see Antonio? Was it
when you were talking to Nannette French, or was it when
you were talking to the seven or eight employees?
A. When I was talking to all the employees A young
lady came to me, told me that the supervisor--she said
that’s a supervisor up there.
Q. And, actually, Mr. Goodloe drove up while you
were talking to the seven or eight employees or drove into
the parking lot, right?
A. You say he drove up. No, he walked up to me.
Q. Did you see Mr. Goodloe park his car?
A. Yeah, he parked. Yeah, I saw him park.
Q. And he parked his car while you were talking to
the seven to eight employees, correct?
A. Yep. He parked his car. He drove in the parking
lot and parked his car up there on the top at the hill.
Q. And that was while you were talking to the seven
or eight--
A. While I was talking to the employees.
Q. To the seven or eight employees.
A. Yeah, when I was talking to the employees.
Q. And that was after Ms. French had already gone
back in the building?
OZBURN-HESSEY LOGISTICS, LLC 25
A. Yeah, she was in the building.
Because the man did not enter the parking lot until after
French had gone inside, it could not have been French who told
Whitley that the man’s name was “Antonio.” Accordingly, that
remark not only is hearsay but hearsay from someone whose
identity is unknown. Absent some assurance of reliability not
present here, it merits little, if any, weight.
More than one inconsistency in the testimony raises doubt.
As discussed above, the first difference concerns the timing and
sequence of events. French testified that her supervisor, Good-
loe, drove into the parking lot while she and Whitney were
talking. Whitley, however, as quoted above, described a man
driving into the parking lot after French went inside the ware-
house.
Another difference concerns location. Whitley volunteered
that this man “parked his car up there on the top at the hill” but
French testified that her supervisor, Goodloe, “pulled up on the
parking lot and he parked like two cars from me.”
As discussed above, the testimony of Whitley conflicted with
that of another witness, Smith III, concerning the color of the
vehicle. All of these inconsistencies, considered together, sug-
gest the possibility that the witnesses were referring to two
different men. If that is the case, it is necessary to determine
which of them, if either, was “Antonio.” The record does not
afford a sufficient basis for such a determination.
As already noted, Whitley answered “yes” to the General
Counsel’s question, “did you have a conversation with an indi-
vidual who identified himself as Antonio?” However, in light
of Whitley’s further testimony, I do not believe her one word
answer to the General Counsel’s leading question establishes
that the man “identified himself as Antonio.” At most, Whit-
ley’s testimony supports a conclusion that the man said he had
some relationship with “OHL,” presumably meaning Ozburn-
Hessey Logistics. Thus, Whitley testified:
Q. When he said you had to leave or go out to the
curb, did you say anything in response?
A. Yes.
Q. What did you tell him?
A. I asked him was he an hourly employee. He said he
was OHL.
Q. Now, while this part of the conversation was going
on, was Jerry Smith standing there?
A. Not at that time, when he asked them that question.
Q. So after he said--you asked if he’s hourly and he
said he’s OHL, what happened next?
A. I asked him again. He said he were OHL. He said
it to me again. And that’s when Jerry walked towards me
and asked me is there a problem.
Q. When Jerry walked up, what happened?
A. I asked Jerry can he make us leave the lot And Jer-
ry told him, no, that we was OHL employees.
Q. And what happened then?
A. And then when Jerry said that, he walked towards,
you know, up towards the entranceway, I guess the en-
trance for the CSR. He didn’t go into the doors where the
employees go. He walked up towards the entranceway.
The man’s statement that he “was OHL” does not suffice to
establish that he was a supervisor or agent of the Respondent.
An employee might well have said the same thing, particularly
at this warehouse, which Respondent did not own. In this con-
text, the remark, “I’m OHL,” might simply indicate that he
worked for OHL rather than directly for the warehouse owner,
Yazaki.
Goodloe did not testify, but his absence from the witness
stand does not warrant any inference that his testimony would
have been favorable to the government. Because the General
Counsel has not established that the man in question was Good-
loe, no statements may be attributed to him and, therefore, he
had nothing to deny. Considering that Smith III, Whitley, and
French testified on the 1st and 2nd days of the 10-day hearing,
the General Counsel had ample time to present further evidence
to identify the man who spoke to Whitley. Indeed, the govern-
ment even could have subpoenaed Goodloe and asked him. I
conclude that credible evidence does not establish that the man
was Antonio Goodloe, as alleged in the complaint.
Apart from that problem of identification, the inconsistencies
in the testimony raise doubts about its reliability. The difficulty
cannot be resolved simply by crediting one witness over anoth-
er because the doubts extend to the testimony of all three wit-
nesses, Smith III, Whitley, and French.
For example, other parts of French’s testimony, not related to
the allegations considered here, also bear on the weight it
should be accorded. For example, at one point, French testified
that the drivers’ entrance to the warehouse was always locked,
but then admitted she had never tried to use that entrance.
French also testified that Operations Manager Bonner never
stated, at an employee meeting, that “one minute late is one
minute late.” However, on cross-examination, French admitted
giving sworn testimony that Bonner made a statement to this
effect.
Considering these problems and the other inconsistencies de-
scribed above, I do not have confidence in the accounts given
by French, Whitley, and Smith III. Even applying the relatively
undemanding preponderance-of-the-evidence standard, I con-
clude that the government has not proven the allegations raised
in complaint paragraphs 6(a) and (b). Therefore, I recommend
that the Board dismiss these allegations.
Complaint Paragraphs 9(a) and (b)
Complaint paragraphs 9(a) and (b) also pertain to unfair la-
bor practices alleged to have occurred on about May 14, 2013.
Because the events related to paragraphs 9(a) and (b) took place
immediately after those discussed above, it is appropriate to
discuss them at this point in the decision. Paragraph 9(a) alleg-
es that on May 14, 2013, the Respondent, by Manager Margaret
Bonner, engaged in surveillance of employees engaged in union
activities. Paragraph 9(b) alleges that Bonner ordered employ-
ees engaged in lawful union solicitation and distribution activi-
ties to leave the premises. The Respondent denies these allega-
tions.
Although it is not entirely clear, it appears from the record
that the events related to complaint paragraph 9(b) came before
those related to paragraph 9(a). Therefore, I will begin with the
paragraph 9(b) allegations.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Whitley’s testimony, quoted above, she described her en-
counter with the man who described himself as “OHL” and
who said that she and Smith III had to leave or go out to the
curb, that is, to the street. According to Whitley, this man then
went into the warehouse building. She and Smith III remained
in the parking lot, but walked out towards the center of the lot.
While standing in the parking lot, Whitley and Smith III saw
Operations Manager Margaret Bonner drive into the lot in a car
which Whitley described as a black SUV. (However, Smith III
testified that it was a white SUV.) Whitley testified that Bon-
ner stopped the vehicle near where she, Whitley, was standing:
Q. When she stopped her SUV, did she say anything
to you?
A. Yes.
Q. What did she say?
A. She told me I had to leave the property.
Q. When she said you had to leave the property, did
you respond?
A. Yes.
Q. What did you say?
A. I asked her was she a supervisor or was she a man-
ager.
Q. What did she say?
A. She said that I had to leave the property. She said
that again, I had to leave the property.
Q. And what happened next?
A. Then I asked her again. I said was you a supervi-
sor or was you a manager. And she told me she didn’t
work for OHL.
Q. Did she say who she worked for?
A. She just said she didn’t work for OHL. She said it
was private property.
Whitley testified that she asked the woman’s name and that
the woman “said her name was Margaret. I didn’t get the last
name, but she said Margaret something.” She stated that she
told the woman that she, Whitley, was an OHL employee,
Smith III also witnessed this conversation but his account
differs somewhat from Whitley’s. Smith III said that he saw
the woman drive up in a white SUV. Contrary to Whitney,
Smith III testified that the woman did not give her name:
Q. During the conversation, did this woman--was it a
man or a woman?
A. A woman.
Q. Did she identify herself?
A. She just said she was the owner.
Q. Did she say her name?
A. No, she didn’t.
Q. You don’t remember her saying her name. Can you
describe her?
A. All I know is she said she was the owner.
Whitley’s testimony does not indicate that the woman called
herself the “owner” and, in fact, makes no reference to owner.
Conversely, the testimony of Smith III does not corroborate
Whitley’s assertion that the woman said her name was “Marga-
ret.”
Nannette French, who worked at this warehouse and who
knew Margaret Bonner, was not present when Whitley and
Smith III spoke with the woman in the parking lot. Although
French had spoken with Whitley a few minutes earlier, she had
gone back into the warehouse. Therefore, her testimony sheds
no light on the woman’s identity.
When the General Counsel asked Smith III what the woman
in the parking lot had said, the Respondent objected that such
testimony would be hearsay because no evidence established
that the woman was Operations Manager Bonner or, indeed,
that she held any position which would make her a supervisor
or agent of Respondent. In view of the hearsay objection, the
General Counsel elicited the following testimony from Smith
III not as evidence but as an offer of proof:
Q.. . .When she pulled up, what did she say to you?
A. She said that she was the owner and we were on
private property and we have to move.
Q. Did you say anything?
A. I said that we were employees here and we’ve got a
right to be here.
Q. Did she respond?
A. Yes. She responded by saying that she don’t have
OHL employees at this facility.
Q. And did you say anything after that?
A. I think Glenora mentioned something. We got our
badges and we showed her our badges that we are OHL
employees and she said that no OHL employees are here
so you might as well get off my property.
Q. Okay. And after she said that, what did you and
Glenora do?
A. Well, she drove off and we got in Glenora’s car
and went back to the 5510 building where my car was
parked at.
Bonner testified later in the hearing. This testimony supports
a finding that she was the person with whom Whitley and
Smith III spoke on this occasion. Respondent has admitted that
Bonner is its supervisor and agent, so what she said to them
would not fall within the definition of hearsay. Therefore, I
have decided to receive the testimony of Smith III, quoted
above, as evidence rather than merely as an offer of proof.
Having received this testimony into evidence, I must decide
whether to credit it or to credit Bonner’s conflicting testimony.
Bonner was on her way to lunch when she received a telephone
call from a supervisor at the Yazaki warehouse informing her
that two people were in the parking lot, apparently in connec-
tion with the union organizing drive. She drove over to that
parking lot, where she saw two individuals. Based on the total
context, I conclude that they were Whitley and Smith III.
Contrary to Whitley and Smith III, Bonner testified that the
two individuals were not wearing OHL badges and did not tell
her that they worked for OHL. Bonner also denied saying that
there were no OHL employees at the facility and similarly de-
nied telling either of them that she was the “owner.”
According to Bonner, she had contacted the Respondent’s
human resources department before speaking with the two in-
dividuals, and human resources representative Lisa Johnson
told her to instruct the two to “move up from the lot.” Bonner
explained “we have trucks coming in and out on our lot, so I
OZBURN-HESSEY LOGISTICS, LLC 27
told them they can do whatever they wanted to; they just need
to go to the entrance of the lot to do it.” Bonner testified that
after she gave this instruction, the two “just got in their cars and
pulled off the lot.”
As discussed above, the testimony of Whitley differs from
that of Smith III in a number of details, such as the color of
Bonner’s vehicle, and these inconsistencies affect the credibil-
ity of these witnesses. Bonner testified that she drove a black
Yukon, a sport utility vehicle, or SUV, and I credit this testi-
mony. Clearly, Bonner would know the color of the vehicle
she drove, and she would have no obvious reason to testify
falsely about it.
Therefore, I conclude that Smith III was mistaken when he
testified that Bonner was driving a white vehicle. Additionally,
I do not credit his testimony that Bonner referred to herself as
the “owner,” which Bonner denied. The record suggests no
reason why Bonner would make such a statement and she had
nothing to gain by doing so. Moreover, the words Smith III
attributed to her, that she was “the owner,” do not indicate what
Bonner claimed to own. It seems unlikely that Bonner would
make a statement so laconic as to be cryptic. However, were
we to assume the remark to mean that she owned the ware-
house, it would be implausibly grandiose. Crediting Bonner’s
denial, I find that she did not say that she was the “owner.”
According to Smith III, Bonner also said that no OHL em-
ployees worked at this warehouse, but Whitley’s testimony is
silent on this point and does not constitute corroboration. Bon-
ner denied making such a statement. Because Smith’s testimo-
ny did not prove reliable in the matters discussed above, I doubt
it here.
My observations of the witnesses lead me to conclude that
Bonner’s testimony is more trustworthy. Based on that testi-
mony, I find that Bonner did not say that no OHL employees
were working at that location. Additionally, I rely on the fol-
lowing credited testimony which Bonner gave on cross-
examination by the General Counsel:
Q. Okay. So then when you returned to the parking
lot, tell me what happened.
A. I saw two people on the parking lot, and I asked
them to go to the edge of the parking lot, and that they
could do whatever they wanted to do at the entrance to our
parking lot.
Q. And what did they say?
A. Who are you? And I said, Margaret Bonner, the
ops manager. And they got in their car and they left.
Q. So, but you didn’t ask them, are you OHL employ-
ees?
A. No, I didn’t.
Although I find, based on Bonner’s credited testimony, that
Whitley and Smith III did not identify themselves as Respond-
ent’s employees, that fact does not change their right to distrib-
ute union materials in the Respondent’s parking lot during their
off-duty time. In Hillhaven Highland House, 336 NLRB 646
(2001), enf. sub nom. First Healthcare Corp. v. NLRB, 344
F.3d 523 (6th Cir. 2003), the Board held that under Section 7 of
the Act, offsite employees have a freestanding, nonderivative
access right, for organizational purposes, to their employer’s
facilities.
Moreover, in Ozburn-Hessey Logistics, LLC, 357 NLRB
1632 (2011), the Board found that the Respondent in this pre-
sent case violated the Act by ordering offsite employees en-
gaged in distribution of union literature to leave premises, since
offsite employees were seeking to organize fellow employees
and thus had a Section 7 right to be present on Respondent’s
property. The Board noted that Respondent had offered no
credible business justification for excluding the offsite employ-
ees. See also ITT Industries, 341 NLRB 937, 940–941 (2004)
(respondent did not meet its burden “of demonstrating that its
security needs warranted the absolute prohibition of handbilling
on its property by offsite employees”).
Likewise, the Respondent here has not met its burden of es-
tablishing a sufficient justification for denying its own employ-
ees access to the parking lot. It is true that Bonner referred to
truck traffic on the parking lot, but the evidence does not show
that Whitley and Smith III posed any impediment to such truck
traffic or that their presence either created or increased any risk.
Moreover, Bonner admittedly drove to this location because she
had received telephone reports of union activity in the parking
lot. Any asserted business justification rings hollow.
In sum, I conclude that Respondent violated Section 8(a)(1)
of the Act by the conduct alleged in complaint paragraph 9(b)
and recommend that the Board so find.
Now, I turn to the allegation, in complaint paragraph 9(a),
that on May 14, 2013, the Respondent, by Manager Margaret
Bonner, engaged in surveillance of employees engaged in union
activities. The General Counsel’s brief argues that Goodloe
first came to the parking lot, where he saw Whitley and Smith
III engaged in union activity. (As discussed above, I have con-
cluded that the General Counsel did not prove the allegations
related to Goodloe because I did not credit the testimony of the
government’s witnesses.) The General Counsel’s brief contin-
ues as follows:
Bonner later drove her vehicle directly to the location where
the organizers were standing and, after a brief discussion, sat
there watching them until they left the parking lot. (Tr. 383–
384). Bonner later stood in the window of the conference
room, which directly overlooks the employee parking lot, and
watched [employee Nannette] French speak with employees
and distribute Union cards to employees for about 10 minutes.
(Tr. 301–5; GC Exh. 28).
From this passage of the General Counsel’s brief, it appears
that the government argues that Bonner engaged in surveillance
of employees’ union activities in two different ways, first, by
sitting in her car “watching them until they left the parking lot”
and, second, by standing in the conference room inside the
building and watching French through the window. With re-
spect to the first allegation, based on Bonner’s credited testi-
mony, I find that Whitley and Smith III left the parking lot
immediately after Bonner spoke with them. Therefore, I do not
find that Bonner sat in her car watching them.
To prove the second allegation, that Bonner stood in the con-
ference room and watched through the window, the General
Counsel relies on the testimony of employee Nannette French.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As discussed above, at one point French had been in the park-
ing lot, talking with Whitley, but had returned to the building.
When she got off work at 2:45 p.m., French went to her car,
where she had some union cards.
Other employees came to French’s car to receive and sign
the union cards. French testified that as she passed out the
cards, “I noticed that my manager, Margaret Bonner, was in the
conference room and she was watching me.” According to
French, the conference room window had vertical blinds which
were open at the time, and she saw Bonner clearly enough to
make eye contact with her.
French testified that she “pulled off the lot” about 2:57 p.m.,
which was 12 minutes after she got off work. However, French
did not estimate when, during that 12 minutes, she noticed
Bonner watching her. Although French did not estimate the
distance between the conference room window and where she
was standing, she did mark the location of her car on a satellite
photograph of the building. From that photograph, it would
appear that her car was close to the building, perhaps only one
or two car lengths from it. However, the distance to the build-
ing is not necessarily the same as the distance from French to
the conference room window and the location of the window is
not apparent from the picture.
Bonner unequivocally denied watching French through the
window. She testified that the conference room blinds were
closed. Therefore, I must determine which witness to credit.
For reasons discussed above, I have some doubts about the
reliability of French’s testimony. In the absence of a witness
corroborating French’s account, I credit Bonner. Therefore, I
find that Bonner did not stand at the conference room window
and watch French as she passed out union cards.
It may be noted that even if I had credited French’s testimo-
ny and found that Bonner had watched from the window, that
finding would merely begin the analysis of whether such an act
were unlawful in this particular instance. As will be discussed
further below, and as the General Counsel’s brief acknowledg-
es, an employer lawfully may watch employees’ engaged open-
ly in protected activities on the employer’s premises, except
when that surveillance is out of the ordinary or done in an over-
ly obtrusive or conspicuous manner. Whether a manager look-
ing through a window is “out of the ordinary” depends on what
is “ordinary,” a norm which may vary from employer to em-
ployer and circumstance to circumstance.
Because, crediting Bonner’s testimony, I find that she did not
stand at the window and watch, I do not reach the issue of
whether such conduct would have violated the Act had it oc-
curred. Rather, I recommend that the Board dismiss the 8(a)(1)
allegations based on Paragraph 9(a) of the complaint.
Complaint Paragraph 7(a)
Complaint Paragraph 7(a) alleges that on about May 15,
2013, the Respondent, by Director of Operations Phil Smith,
confiscated and removed prounion materials from the employee
break room prior to the end of breaks. Respondent denied this
allegation, as well as the further allegation, in complaint Para-
graph 19, that such conduct violated Section 8(a)(1) of the Act.
The complaint, when issued, also included subparagraphs
7(c) and (d), raising additional allegations. However, at hear-
ing, the General Counsel withdrew these allegations. There-
fore, I consider here only the allegations raised in subpara-
graphs 7(a) and (b).
On May 15, 2013, the day after the counting of ballots de-
scribed above, Helen Herron, an employee at Respondent’s
facility at 5265 Hickory Hill Road, brought with her to work
copies of a judge’s decision, which she left in the break room
for other employees to read. Later that day, she saw Respond-
ent’s director of operations, Phil Smith, pick up the material
and remove it from the break room.
In previous proceedings, administrative law judges and the
Board have issued decisions finding the Respondent guilty of
committing unfair labor practices, and the Honorable Samuel
H. Mays, Jr., of the United States District Court for the Western
District of Tennessee, Western Division issued an April 5, 2011
order granting petition for temporary injunction. Based on the
present record, it is not clear which of these documents Herron
left in the break room. However, the record leaves little doubt
that the document concerned allegations related to the Union’s
organizing campaign.
Respondent’s posthearing brief acknowledges that “Mr.
Smith admitted that he disposed of union literature.” Smith
testified, in relevant part, as follows:
Q. Okay. Did you see any union materials on the ta-
bles in the Waterpik break room?
A. I saw materials on the break room table.
Q. Okay. There were things other than union materi-
al?
A. Yes.
Q. Okay. Did you pick up the materials off the table?
A. I did.
Q. Okay. Did you pick up everything that was on the
table?
A. Yes, I did.
Q. Were there things other than union flyers?
A. There was.
Q. Okay. And why did you do that?
A. That’s OCD, that’s my habit. When I go through a
break room area, because it’s an area that’s, you know, for
the employees to eat their meals at and take their breaks at,
I make sure that if they’re not on break at that time, if they
left a mess behind them after they left out the last break,
it’s ready for them to be on their next break.
Q. Were there any hourly employees in the break
room at the time?
A. No.
Although Smith attributed his action to his “OCD”—
presumably meaning obsessive-compulsive disorder—his men-
tal state is irrelevant because the alleged violation does not
entail proof of motivation. It does not matter whether Smith
removed the literature because of a psychological compulsion
or because of antiunion animus.
The General Counsel’s brief states that an “employer may
maintain and enforce housekeeping rules that result in the con-
fiscation of pro-union literature from nonworking areas left
behind following break periods, provided it does so in a non-
discriminatory manner. See North American Refractories Co.,
OZBURN-HESSEY LOGISTICS, LLC 29
331 NLRB 1640 (2000). For clarity, it may be helpful to note
that determining whether Respondent treated the Union-related
literature in “a non-discriminatory manner” involves a different
analysis than used to determine whether an adverse employ-
ment action constitutes unlawful discrimination.
Sections 8(a)(4) and (3) of the Act prohibit certain kinds of
employment discrimination. Because such discrimination is
intentional, proof requires evidence of unlawful motivation.
However, the complaint does not allege that Respondent violat-
ed Section 8(a)(4) or (3) by removing the union material. Ra-
ther, it alleges that such conduct interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights, in
violation of Section 8(a)(1) of the Act, which focuses on the
harm caused by an action. As a general principle, establishing
a violation of Section 8(a)(1) of the Act does not require proof
of unlawful intent.
Therefore, I do not understand the words in the General
Counsel’s brief—”in a discriminatory manner”—to suggest that
the government must prove that Director of Operations Smith
acted from animus. Regardless of Smith’s intent, if Respondent
treated union-related literature less favorably than other reading
material, such disparate treatment interfered with employees’
exercise of Section 7 rights.
Smith claimed that he believed he was permitted to remove
union-related materials from the break room if no employees
were present at the time. Thus, he testified:
It’s my understanding that I can’t go into a break room and
remove union materials while employees are on a break.
If that break ends, and all the employees have returned to
work, then, yes, I’m allowed to go in there and clean up
the break room, police the break room in any manner that I
want, and then when the next break stops--starts, once
again I’m not allowed to do that. . .
Smith’s understanding–that he could remove union-related
materials from the break room after the break ended, may have
been based on a previous Board order. In Ozburn-Hessey Lo-
gistics, LLC, 357 NLRB 1632 (2011), the Board found that
Smith had committed an 8(a)(1) violation by conduct similar to
that considered here but with one difference: In that instance,
there had been employees in the break room at the time Smith
removed the union-related materials. The Board ordered Re-
spondent to cease and desist from confiscating “prounion litera-
ture from breakrooms prior to the ending of breaks.” 357
NLRB 1632, 1633.
Notwithstanding that order, Smith continued to confiscate
union-related materials. In Ozburn-Hessey Logistics, LLC, 359
NLRB 1025 (2013),1 the Board that Smith again had unlawful-

1 In view of the Supreme Court’s decision in an unrelated matter,
NLRB v. Noel Canning, ___ U.S. ___, 134 S.Ct. 2550 (2014), which
found unconstitutional the President’s appointment of certain Board
members, the Board issued a June 27, 2014 order setting aside its deci-
sion in Ozburn–Hessey Logistics, LLC, 359 NLRB 1025. On Novem-
ber 17, 2014, a Board panel issued a Decision, Order and Certification
which affirmed the judge’s rulings, findings, and conclusions and
adopted the judge’s recommended order “to the extent and for the rea-
sons stated in the Decision Order and Direction reported at 359 NLRB
ly removed union-related literature from a break room. Smith’s
conduct in that instance closely resembled his actions here,
removing copies of a judge’s decision which an employee had
left for other employees to read.
In this earlier instance, the judicial document was an injunc-
tion against Respondent which the Board had sought from the
United States District Court. In finding that Smith’s confisca-
tion of it violated the Act, the Board’s administrative law judge
dryly noted that “Phil Smith, ironically, confiscated the very
same injunctions that ordered him to stop ‘confiscating pro-
union literature from break areas.’” 359 NLRB 1025, 1030 fn.
4.
The Board affirmed the judge in a decision it issued on May
2, 2013, almost 2 weeks before Smith’s similar conduct in the
present case. Unlike the Board’s 2011 order, which prohibited
the confiscation of union-related materials “prior to the ending
of breaks,” the Board’s 2013 included no such limitation. The
Board ordered the Respondent to cease and desist from “confis-
cating union materials and related documents from employee
break areas.” The Board further ordered Respondent to post a
notice stating, without qualification, “WE WILL NOT confis-
cate union materials and related documents from employee
break areas.”
In the present case, Respondent’s brief argues that Smith’s
removal of the union-related materials, after the break had end-
ed, was lawful: “[I]t is undisputed that he did so after the last
break of the day, and the literature had been sitting on the break
room tables since early in the morning. Nothing in the NLRA
requires a company to leave union materials, or any other types
of materials, sitting on its break room tables during non-break
times.”
To the extent this argument assumes that the Act must ex-
pressly prohibit specific conduct to make it illegal, Respondent
underestimates the scope of the Act’s protection. The law
could not, and need not, anticipate and describe every possible
way an employer might interfere with employees’ rights to
prohibit such interference.
In determining whether a particular action interferes with, re-
strains, or coerces employees in violation of Section 8(a)(1), the
Board focuses on the effect such conduct reasonably would
have on employees’ exercise of their Section 7 rights. Employ-
ees reasonably would not view a particular action in isolation
but rather would interpret its significance based on the total
context. Likewise, the Board takes into account all the circum-
stances in determining whether an action interfered with, re-
strained, or coerced employees in the exercise of their Section 7
rights.
The Respondent’s argument—that nothing in the Act re-
quires an employer to leave union-related or other materials in
the break room—invites me to consider Smith’s removal of the

No. 109, which is incorporated herein by reference.” Ozburn–Hessey
Logistics, LLC, 361 NLRB 921 (2014) (footnote omitted).
On November 20, 2014, the Respondent filed in the United States
Court of Appeals for the District of Columbia Circuit a petition for
review of this Decision, Order and Certification and thereafter the`
Board cross-petitioned for enforcement. The case is pending in the
Court of Appeals. Pleadings and related documents may be found at
http://www.nlrb.gov/case/26–CA–024057.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
literature in isolation rather than in context. However, I decline
the invitation.
In the present context, Smith’s act interferes with employee
rights in two different ways. Obviously, it deprives employees
visiting the break room of the opportunity to read the materials.
Beyond that, in the context of other unfair labor practices, the
conduct sends a powerful signal that the Respondent persists in
its hostility to employees exercising their right to form or join a
labor organization.
The present case is the latest in a series of cases involving
the Respondent and its Memphis facilities. Over an extended
period, and notwithstanding Board and court orders, the Re-
spondent has persisting in committing unfair labor practices in
response to the Union’s organizing efforts. In this environ-
ment, Smith’s confiscation of the union-related materials com-
municates a powerful message regarding the Respondent’s
continued hostility towards the Union.
In Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011),
the Board affirmed the judge’s findings “that the Respondent
committed numerous violations of the Act.” As discussed
above, the Respondent’s official who confiscated the union-
related literature in the present case, Phil Smith, also violated
the Act by confiscating prounion literature on this earlier occa-
sion. The judge stated, in part:
Smith removed prounion literature from nonworking areas
during break time in the presence of employees. His “[n]ot in
my warehouse” reaction to the prounion literature. . . confirms
that his purpose was confiscating, not cleaning.
357 NLRB 1632, 1638.
Additionally, as noted above, the Board later found that
Smith had unlawfully confiscated union-related literature in
Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 (2013). That
he would do so a third time, notwithstanding the previous
Board orders, communicates a powerful message that Respond-
ent persists in violating the Act, to the detriment of employees’
Section 7 rights.
Accordingly, I recommend that the Board find that Respond-
ent violated Section 8(a)(1) of the Act by the conduct alleged in
complaint paragraph 7(a).
Complaint Paragraph 7(b)
Complaint 7(b) alleges that about August 30, 2013, Re-
spondent, by Director of Operations Phil Smith, threatened
employees with unspecified reprisals for engaging in union
activities. Respondent denies this allegation.
The events in question took place in Respondent’s ware-
house at 5540 East Holmes Road in Memphis, on August 30,
2013. At this location, each workday morning, management
has the employees gather for a meeting at the start of their shift.
The operations manager for this warehouse, David Maxey,
addresses the employees. However, this meeting on August 30,
2013, was somewhat unusual because a higher management
official, Director of Operations Phil Smith, also was present.
So was a representative of Respondent’s human relations de-
partment.
One of the employees attending this meeting, Jerry H. Smith
III, credibly testified that Operations Manager Maxey “said he
had a union update and he proceeded by saying things like the
Union just want your money, they’re losing money, they just
want you, so be careful about the cards you sign because you
could be called to go out on strike, stuff of that nature.”
An employee asked Maxey if it were against the law for him
to talk about strikes and Maxey replied that it was not illegal.
According to Smith III, Operations Director Phil Smith, rather
than Maxey, answered the question and told the employee
“you’re not an attorney and you don’t know what you’re talk-
ing about.” Smith III then raised his hand and asked Opera-
tions Director Smith if he were an attorney, and the operations
director replied that he was not.
After the meeting, Smith III went to his locker and withdrew
some union-related materials, which he then placed on a table
in the break room. Also in the break room were Operations
Director Smith, Operations Manager Maxey, and an employee,
Nathaniel Jones, doing janitorial work. When Smith III put the
union-related materials on the table, Operations Director Phil
Smith asked Smith III if he were “on the clock” and Smith III
answered that he was.
Although the witnesses agree that Smith III was in the break-
room only briefly, perhaps a minute, their accounts conflict in a
number of details. Smith III gave the following testimony:
Q. What did [Operations Director Phil Smith] say?
A. He asked me was I on the clock.
Q. When he made that statement, what was your re-
sponse?
A. My response was, yes, I’m just dropping these off,
headed to work.
Q. After you made that response, did Phil Smith make
any other comments?
A. Well, he continued to watch me as I put the books
on the tables, and then as I was walking out the door, he
was behind me and he said, there’s going to be some re-
percussions behind this.
Q. Do you remember him saying anything else?
A. No.
When Director of Operations Phil Smith took the witness
stand, he denied telling Smith III that there would be “repercus-
sions.” On the other hand, Phil Smith attributed to Smith III
certain statements which Smith III denied. In the following
testimony of Director of Operations Phil Smith, I have itali-
cized portions which significantly conflict with Smith III’s
testimony:
Q. Okay. Did you say anything to Mr. Smith as he
was placing the union flyers on the table?
A. I did. I asked him, was he on the clock?
Q. What did he say?
A. He said yes.
Q. Okay. And then did you say anything in return?
A. I did. I told him, I said you can’t be placing union
pamphlets out while you’re on the clock. That’s a viola-
tion of OHL’s solicitation policy and a violation of federal
law.
Q. Okay. And what did he say?
A. He said he didn’t care. The employees needed
more current information.
OZBURN-HESSEY LOGISTICS, LLC 31
Q. All right. Did you say anything further?
A. I told him I’d get back with him later.
Q. Okay. How many times did you tell him—well,
what--how many times did you tell him that he could not
be putting flyers on the tables?
A. A total of twice.
Q. And he continued to do so?
A. He did. He placed them on all the six tables in the
break room.
Q. Okay. And then as he, as he left, did you say any-
thing to him?
A. Nothing other than I would get back with him later.
Q. Did you tell him that there would be repercussions
for this?
A. No. [Italics added.]
However, Smith III specifically denied saying that he “didn’t
care.” Smith III also denied saying that he wanted employees to
have updated information.
Respondent’s Operations Manager, David Maxey corrobo-
rated Operations Director Smith’s testimony which denied
making the “repercussions” remark. Additionally, Respondent
introduced into evidence a note which Maxey had made on the
day of the incident. This note corroborated Operation Director
Smith’s testimony concerning Smith III’s “didn’t care com-
ment.”
The testimony of employee Nathaniel Jones, who was per-
forming janitorial duties in the break room, supports Smith III’s
version of events. Jones stated that Smith III did not try to
hand him any literature or talk with him but simply put the
reading material on the table:
Q. Okay. Once you saw Jerry in there placing the
items on the tables, did you hear anyone say anything to
Jerry Smith?
A. Phil was very irate about him placing the papers on
the tables, saying he was supposed to be at the jobsite and
that he wanted to report Jerry for it. He was irate and he
was loud, and I was kind of surprised.
Q. You said that you recall Phil saying to Jerry that he
was going to report this?
A. Yeah, that he was supposed to be on the floor
working.
Q. Now, when--do you recall hearing Jerry say any-
thing to Phil Smith?
A. No, I do not.
Q. Did you hear Jerry tell Phil Smith, I don’t care?
A. No, I did not.
Q. Did Jerry tell Phil Smith he wanted to get infor-
mation out?
A. No, he didn’t. I don’t recall him saying anything.
He went back to work. He left out of there.
In considering which testimony to credit, I note that all of the
witnesses had some interest in the outcome of the proceeding.
Respondent has admitted that both Phil Smith and David Max-
ey are its supervisors and the evidence establishes that they are
rather high-ranking managers. The complaint names both
Smith III and Jones as discriminatees seeking reinstatement
after being discharged.
If accurate, Jones’ testimony that Operations Director Smith
was “loud and irate” provides some insight into what happened,
and that testimony stands uncontradicted. Jones testified before
Operations Director Smith. When Smith took the stand, he
acknowledged that, as the Respondent’s representative, he had
been in the courtroom during the proceeding and had heard all
the testimony. Thus, he heard Jones describe him as irate and
loud during the break room encounter, but did not dispute this
description.
Operations Manager Maxey also testified after Jones but did
not contradict Jones’ description of Operations Director
Smith’s demeanor. Based on Jones’ uncontested testimony, I
conclude that Operations Director Smith was, in fact, loud and
“very irate” about Smith III’s placing the material on the table.
Operations Manager Smith’s irate reaction is consistent with
his behavior during an earlier, similar situation.
In this previous instance, described above in connection with
complaint paragraph 7(a), an employee had placed union-
related materials on a break room table and then left. Accord-
ing to the credited testimony, Operations Director Smith called
the employee’s name, held the prounion material up, tore it,
loudly said “not in my warehouse” and then threw the material
in a garbage can. See Ozburn-Hessey Logistics, LLC, 357
NLRB 1632, 1638.
Smith’s use of the words “my warehouse” suggests that he
considered it his personal territory and regarded the presence of
the unwelcome literature as a kind of trespass. In other words,
he took it personally. Such a strong reaction sheds light on why
Smith would persist in confiscating union-related materials
notwithstanding the Board’s cease-and-desist orders and the
District Court’s injunction. Additionally, if Smith considered
his personal space defiled by the presence of the union material,
his claim of “OCD”—a cleaning compulsion—is believable.
In any event, it is clear that, in the past, Director of Opera-
tions Smith had become angry when he saw union literature
lying around in the warehouse and credible evidence establish-
es that he was angry at Smith III for leaving such material in
the break room. I conclude that this anger led him to attribute
to Smith III words that Smith III did not say. The manager
likely believed that Smith III did not care about the rule he was
flouting, but that does not mean that Smith III actually ex-
pressed that sentiment.
Based on the credited testimony, I find that Smith III did not
say that he did not care (about the Respondent’s rules) and, in
fact, did not say anything beyond explaining that he was just
dropping the materials off. Moreover, based on the credited
testimony of Jones and Smith III, I find that Operations Direc-
tor Smith did tell Smith III that there would be “repercussions.”
All of the witnesses agree that Smith III was in the break
room only briefly. Smith III estimated that he was in the room
a minute, or at most 2 minutes, and I so find.
The director of operations’ statement that there would be
“repercussions” would violate the Act if Smith III’s conduct
actually were protected. In that circumstance, employees rea-
sonably would understand the “repercussions” statement as a
threat of reprisal for protected activity. However, in the discus-
sion below concerning complaint paragraph 13(k), I conclude
that the “repercussion” actually taken, the issuance of a final
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
warning to Smith III, was lawful. Smith III had violated a law-
ful no-distribution policy by distributing literature during work-
ing time.
In theory, the director of operations’ “repercussions” state-
ment still might violate Section 8(a)(1) if it reasonably commu-
nicated to employees that Respondent might discipline them for
engaging in protected activity. However, I conclude that em-
ployees reasonably would understand the “repercussions” re-
mark to be a threat of reprisal for unprotected activity, the vio-
lation of Respondent’s lawful no-solicitation policy.
Therefore, I conclude that the repercussions remark did not
violate Section 8(a)(1) of the Act. Therefore, I recommend that
the Board dismiss the allegations related to complaint para-
graph 7(b).
Complaint Paragraphs 7(c) and (d)
As noted above, the General Counsel has withdrawn com-
plaint paragraphs 7(c) and (d). Therefore, I need not and do not
make any findings regarding these matters.
Complaint Paragraphs 8(a) and (b)
Complaint paragraphs 8(a) and (b) allege that on about May
15, 2013, the Respondent, by Operations Supervisor Kyle Per-
kins, engaged in surveillance and created the impression of
surveillance by “watching and monitoring Union organizer
solicitation activities and appearing to take photographs or
video recordings” of those activities. The Respondent denies
these allegations as well as the conclusion that it thereby violat-
ed Section 8(a)(1) of the Act.
On May 15, 2013, employee Dwayne Nelson stood in the
parking lot outside the Respondent’s warehouse which stored
goods for its customer, Hewlett Packard and solicited other
employees to sign union cards. While employee Teresa Press-
man was signing a card, Nelson saw Kyle Perkins, whom Re-
spondent has admitted to be its supervisor and agent. Nelson
testified, in part, as follows:
Q. And did anything unusual happen while you were
out there soliciting your co-workers?
A. Yeah, while we were soliciting co-workers, as I
came out to greet my co-workers, it was break time So my
supervisor, Kyle Perkins, normally, he’s smoking during
the break time. But this particular day, rather than being
in the smoking area, he came out on the parking lot, talk-
ing on his telephone.
Q. What did you observe?
A. I observed that he was looking at us. . .
Arguably, because Perkins was engaged in a cellphone con-
versation, he might have sought privacy by leaving the area
where he and others stood to smoke during their breaks. On
cross-examination, Nelson acknowledged that from where he
was standing, he could not see whether there were such other
smokers in that area.
The employee who signed the union card, Teressa Pressman,
confirmed that from where she and Nelson were standing, they
did not have a clear view of the smoking area. Pressman testi-
fied that at one point, Operations Supervisor Perkins held his
cellphone out in front of him, as someone might do to take a
photograph with it. However, she could not say with certainty
that Perkins actually was taking a picture rather than merely
trying to read a message displayed on the cellphone. Addition-
ally, Pressman admitted on cross-examination that she had not
mentioned in her pretrial affidavit that she saw Perkins holding
his cellphone up and photographing them:
Q. In your affidavit, you don’t say anything about see-
ing Kyle Perkins holding his phone up and photographing
you, do you?
A. No. Actually, Dwayne told me he was taking a pic-
ture of us. And I did look over to see him.
Q. But you didn’t mention that in your affidavit, cor-
rect?
A. No.
Q. Now, how far away were you standing from where
Mr. Perkins was standing?
A. A good, probably 25 or 50 foot maybe—no, 25
foot. I’m going to say 25 foot.
Perkins’ testimony is consistent with that of Nelson and
Pressman, but only up to a point. He admitted that on this oc-
casion he was standing outside, smoking a cigarette and talking
on his cellphone, but denied holding it out with extended arm.
He further testified that when he noticed Nelson and Pressman
in the parking lot, he suspected that they were engaged in union
activity, so he went back inside the building:
Q. And so why did you remove yourself?
A. We’ve been trained to not engage in that type of
activity.
Q. And so you didn’t want to be seen out there look-
ing at anything?
A. Yes, sir. I was afraid I’d be in the position I am
now.
The testimony thus conflicts concerning whether Perkins
held his cellphone out as a person would do to take a photo-
graph and, more generally, as to whether he acted in a way
which reasonably would create the impression that he was en-
gaging in surveillance of employees’ union activities. There-
fore, I must decide which testimony should be credited.
What weight should be accorded the fact that Pressman’s
pretrial affidavit does not mention Perkins holding his cell-
phone up and appearing to take a photograph with it? Should
this omission be chalked up to inadvertence or should it be
considered a reflection on the reliability of Pressman’s testimo-
ny. In this particular instance, I conclude that it detracts from
Pressman’s credibility as a witness.
On July 15, 2013, the Union filed its first amended charge in
Case 15–CA–105527. It specifically alleged, in part, as fol-
lows:
On or about May 15, 2013, the Employer, by supervisor Cal
Perkins, engaged in unlawful surveillance of employee union
organizing activities and was observed taking photographs or
video footage of employees engaging in lawful solicitation
and distribution of union materials. . .
In some instances, an allegation not mentioned in an unfair
labor practice charge will surface during the investigation, and
when that happens, some witnesses interviewed earlier may not
OZBURN-HESSEY LOGISTICS, LLC 33
have been asked about it when the Board agent took their
statements. However, in this case, the charge which triggered
the investigation itself alleged that Perkins was “observed tak-
ing photographs or video footage of employees.” Because the
charge itself raised the photography allegation, it would not be
overlooked by an investigator following standard procedure.
Over time, human memory tends to “fill in the blanks” with
information acquired from secondary sources, sometimes mix-
ing it with first-hand information so thoroughly that it becomes
difficult, even for the witness, to separate observation from
hearsay. Pressman’s failure to mention the photography in her
pretrial affidavit raises a possibility that between the date of the
affidavit and the hearing, her memory became richer in detail
than what she actually had seen.
Based on this doubt about Pressman’s testimony, and on my
observations of the witnesses, I resolve conflicts in the testimo-
ny by crediting Perkins. Crediting his denial, I find that Perkins
did not take a photograph or video and did not raise the cell-
phone as he would if taking a photograph or video. To the
contrary, I find that he merely was talking on his cellphone.
Does this conduct amount to surveillance or create the impres-
sion of surveillance of employees engaged in union activity,
when such activity is taking place out in the open, in the Re-
spondent’s parking lot?
The General Counsel’s brief acknowledges “that an employ-
er may lawfully surveil employees engaged in protected activi-
ties in the open, and on or near the employer’s premises.”
However, it continues, “conspicuous surveillance, even if on
the employer’s premises, may interfere with protected activity
if the supervisors or company officials do something out of the
ordinary or surveil in an overly obtrusive or conspicuous man-
ner. Alle-Kiski Medical Center, [339 NLRB 361, 365 (2003)]
(where the Board upheld the Judge’s finding of surveillance
when security guards were stationed near employees handbill-
ing on company property); Metal Industries, Inc., 251 NLRB
1523 (1980) (where the Board found no violation as manage-
ment officials regularly stationed themselves in parking lots at
the end of the day to converse with employees).”
Although Supervisor Perkins customarily went outside the
building to smoke during a break, the government argues that in
this particular instance, Perkins did “something out of the ordi-
nary” because he “observed activities in the HP account park-
ing lot, Perkins left the designated smoking area and positioned
himself close to the parking lot where he could monitor the
activities of the Union organizers and the employees who they
were soliciting.”
The argument that Perkins “left the designated smoking area
and positioned himself . . . where he could monitor” union ac-
tivities assumes facts not in evidence. First, the term “desig-
nated smoking area” implies that Respondent prohibited smok-
ing outside the building except at this particular spot. If so,
then leaving that specific location might suggest that Perkins
intended to do something other than smoke. However, the
record does not establish that Respondent prohibited outside
smoking except in the smoking area. The government’s argu-
ment also imputes an intent to Perkins which credible evidence
does not establish.
The General Counsel thus contends that Perkins’ conduct is
“out of the ordinary” because of the supervisor’s supposed
intent. However, even leaving aside the dearth of evidence to
support a finding of intent, such intent would not be relevant to
this 8(a)(1) allegation. In analyzing whether a supervisor’s
action creates an unlawful impression of surveillance, that per-
son’s intent does not determine whether the action is ordinary
or “out of the ordinary.” To prove that an action is “out of the
ordinary,” the proponent must first establish what constitutes
the norm, and then must show that the action in question was an
atypical deviation from that standard.
Here, the government concedes that it was “ordinary” for
Perkins, during his break, to go outside the building to an area
where smokers congregate. However, the credible evidence
fails to establish that Perkins typically did not walk a little fur-
ther for privacy while talking on his cellphone. In the absence
of evidence that the Respondent confined smokers to this one
single spot, I would hesitate to assume that the smokers never
left this area while having a cellphone conversation.
Moreover, the record does not establish that the General
Counsel’s witnesses had observed Perkins sufficiently to testify
credibly about his usual practice, and there is nothing inherent-
ly suspicious about someone walking around while talking on
his cellphone. To the contrary, the sight of people meandering
while talking has become commonplace.
A discussion about whether behavior was “out of the ordi-
nary” assists in analyzing a key question: What message does
the behavior reasonably communicate to an average or typical
employee, considering all the circumstances. These circum-
stances include the Respondent’s history of unfair labor prac-
tices and the recent counting of ballots in the Board-conducted
election. Such context certainly would sensitize employees and
affect whether they reasonably would interpret Perkins’ actions
as surveillance of union activities.
However, the credited evidence establishes only that Perkins
was talking on his cellphone and smoking a cigarette, actions
which were ordinary, not out of the ordinary. Even considering
the context—the Respondent’s past unfair labor practices and
the recent counting of ballots—neither smoking a cigarette nor
talking on a cellphone reasonably would be interpreted as sur-
veillance of union activity.
Moreover, the union activity took place openly, on the Re-
spondent’s parking lot, and Perkins was not overly obtrusive or
conspicuous. According to Pressman’s testimony, Perkins was
25 feet away, perhaps further. Perkins’ own testimony, which I
have credited, establishes that when he saw the employees and
suspected they were engaged in union activities, he left.
In these circumstances, I conclude that Perkins did not en-
gage in surveillance of union activity and that his actions did
not create the impression of such surveillance. Therefore, I
recommend that the Board dismiss the allegations raised in
complaint paragraphs 8(a) and (b).
Complaint Paragraphs 9(c) and (d)
Complaint paragraphs 9(c) and (d) concern events which the
General Counsel alleges took place on about May 17, 2013. On
that date, the complaint alleges, the Respondent (paragraph
9(c)) told its employees that they should quit their employment
with Respondent and find different jobs if they had complaints
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about Respondent or otherwise engaged in protected concerted
activities, and (paragraph 9(d)) told its employees that they
were not members of the certified bargaining unit. The Re-
spondent denies these allegations and also denies the conclu-
sion that it thereby violated Section 8(a)(1) of the Act.
On about May 17, 2013, Operations Manager Bonner con-
ducted a meeting of second and third shift employees at the
Yazaki warehouse. At one point during the meeting, Bonner
invited employees to ask questions, and some expressed con-
cerns that some newly hired employees were making a higher
wage rate. Bonner testified that she explained that the new
employees received a different wage rate because they had
different skills. She further testified:
Q. And then what did you say about employees if they
weren’t happy?
A. No. They talked about the pay, and I told them that
I was unhappy about a job that I’d had before I got the job
at OHL. I told them how I hated the job, and that I felt
like I had a skill set that I could utilize somewhere else
and that I wanted to be happy. And I—so I chose to leave
the company that I was and started working at OHL. And
I said, if you all feel like you have the skill set to go out
and find anything different, I said, we all have that right.
That’s our personal right to go out and get whatever we’re
looking for that makes us happy. I said, but personally, if
that was me, I mean, I did it for me. And that was how I
said it.
Bonner’s account differs from that of an employee witness,
DeAngelo Walker, who testified as follows:
Q. Tell me what you recall was the topic of this meet-
ing and what was discussed in this meeting Who conduct-
ed it?
A. Margaret, Ms. Bonner. She conducted the meet-
ing. She came in and basically talked about employees
who—how can I word this? Employees who had a prob-
lem with their pay and their job, you know, she started off
like, well, anybody has a problem with what they’re mak-
ing or the wages that they are getting, if it’s a problem, we
can handle this tonight. If you don’t like your job, we can
find you another job.
The General Counsel’s brief argues that although “the word-
ing differs, the import of the statement as admitted by Bonner
conveys the same message” as the words which Walker at-
tributed to her, namely, “If you have complaints and are not
happy, then find another job.” Contrary to the General Coun-
sel, I do not conclude that employees would reasonably under-
stand the words, as reported by Walker, in the same way as the
words admitted by Bonner.
Telling an employee that if he is dissatisfied he should quit,
like the similar expression, “if you don’t like it here, find an-
other job,” communicates to the employee that the burden rests
on him to locate other employment. It is a not-so-veiled re-
minder of the effort and uncertainty which accompany looking
for work.
However, Walker quoted Bonner as telling the employees
that “we can handle this tonight. If you don’t like your job, we
can find you another job.” (Italics added.) Those words, “we
can find you another job,” suggest that the Respondent would
relieve the employee of the unpleasant burden. Moreover, the
words “another job” could well refer to another position in the
warehouse, or in one of the other nearby warehouses which
Respondent operated.
In any event, I need not reach the issue of what message such
language reasonably would communicate because I credit Bon-
ner’s testimony rather than Walker’s concerning what Bonner
said. Bonner certainly should have the better recollection of
what she said because she not only heard the words but also
spoke them. Moreover, Bonner is one of Respondent’s manag-
ers and her interests closely align with those of Respondent. It
seems unlikely that she would admit making a statement which
potentially violated the Act unless she did, in fact, say the
words.
Accordingly, crediting Bonner, I find that she made the
statement to employees which she described in her testimony,
as quoted above. The statement she admitted is more convolut-
ed that saying “If you don’t like it here, then quit,” but does it
communicate that latter message to employees?
The Board has consistently found violative employer state-
ments that a union supporter who is unhappy should seek work
elsewhere. Such statements suggest that union support or dis-
satisfaction is incompatible with continued employment. See,
El Paso Electric Co., 350 NLRB 151, 152 (2007), Paper Mart,
319 NLRB 9 (1995) (finding unlawful an employer’s statement
that if employee was not happy, the employee could seek em-
ployment elsewhere); see also Tualatin Electric, 312 NLRB
129, 134 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996); Rolligon
Corp., 254 NLRB 22 (1981); Stoody Co., 312 NLRB 1175,
1181 (1993).
For reasons discussed below, I do not find that Bonner dis-
cussed the Union during this meeting. However, to violate
Section 8(a)(1), telling an employee “to just quit” can be an
unfair labor practice even without an explicit reference to a
labor organization or protected activity. A statement which
implies that dissatisfied employees have no recourse except to
seek work elsewhere can chill the exercise of Section 7 rights
by communicating that doing so is futile.
The message which employees reasonably would receive de-
pends not only on the words but the context. In my view, that
context tips the balance here. Employees would be well aware
of the previous unfair labor practice proceedings, the prior
Board orders and the federal court injunction and reasonably
would interpret Bonner’s words in the context of those events.
Considering that the Respondent had not abandoned its course
of conduct, employees reasonably would see through Bonner’s
circumlocutions and conclude that she neither was waxing
philosophical nor rambling nostalgically about her own experi-
ences. They would not have to run her words through Google
Translate to get the message: “Things aren’t going to change,
guys, so do yourself a favor and quit.”
OZBURN-HESSEY LOGISTICS, LLC 35
Accordingly, I conclude that Bonner’s admitted statement
violated Section 8(a)(1) of the Act, and recommend that the
Board so find.2
Complaint paragraph 9(d) also concerns a statement which
Bonner allegedly made at a meeting on about May 17, 2013.
However, this was not the same meeting, of second and third-
shift employees, which Walker attended. Rather, the General
Counsel presented evidence that Bonner also spoke at a meet-
ing of first-shift employees.
The government relies on the testimony of employee Nan-
nette French to prove that Respondent, by Bonner, told its em-
ployees that they were not members of the certified bargaining
unit. French’s testimony does not establish that this meeting
took place on May 17, but said “I think it was in that same
week.”
At one point in her testimony, French said that Bonner
“called a meeting for all OHL employees” but later clarified
that she meant all “department” employees on the first shift.
From context, I conclude that French was referring to Respond-
ent’s first-shift employees at the Yazaki warehouse.
According to French, Bonner “just said that the Union—we
is Yazaki, we didn’t have anything to worry about, that Yazaki
was not a part of the Union because we weren’t considered
Memphis OHL. . .” French further testified that Bonner took
questions from employees and that she, French, asked a ques-
tion:
I asked her why are we not a part of Memphis OHL. We all
live in Memphis. We’re just right down the street. But she
said we was Western District. It wasn’t going to affect us on
no terms. That we was not part of it at all.
Bonner denied ever conducting a meeting at which she said
“that we are Yazaki, we didn’t have anything to worry about
the Union, and Yazaki was not part of the Union because it
wasn’t considered Memphis OHL.” She further denied making
such a comment to anyone. Likewise, Bonner specifically con-
tradicted the portion of French’s testimony quoted above:
Q. Okay. Did you ever say we’re the Western Dis-
trict?
A. No, I didn’t.
Q. Okay. Did Nannette French ask you why we
weren’t—you weren’t part of Memphis OHL?
A. No, she didn’t.
Q. Okay. Were you part of Memphis OHL?
A. Yes, we were.
This stark conflict in the testimony presents a credibility is-
sue which must be resolved. For reasons discussed above, I

2 The General Counsel’s brief raises one other matter pertaining to
the May 17, 2013 meeting. It states that “Bonner also admitted that she
told the employees in the meeting that she did not believe that it was
appropriate for them to discuss employee pay rates with each other.
(Tr. 2129–2130.)” Bonner did testify that she told the employees “that
I had never discussed my pay with anybody, and I didn’t think anybody
should discuss their pay.” Although I would credit this admission and
find that Bonner made this statement, the complaint does not allege that
Bonner’s statement about discussing pay rates violated the Act. There-
fore, I do not reach this issue.
have some doubt about the reliability of French’s testimony. It
also concerns me that here, French’s version is not corroborat-
ed.
French’s testimony indicates that all employees working in
the Yazaki warehouse on first shift attended the meeting, and
French referred to it as a “big meeting about the Union.” If
Bonner had made the statements French attributed to her at the
large meeting French described, other employees would have
heard it. Because of the absence of such corroboration, togeth-
er with the doubts about French’s testimony discussed above, I
do not credit French’s testimony but instead credit Bonner’s
denial. Accordingly, I find that Bonner did not make the state-
ments which French attributed to her.
Because credited evidence does not support the allegations
raised in complaint paragraph 9(d), I conclude that the Re-
spondent did not commit the unfair labor practice alleged.
Therefore, I recommend that the Board dismiss the unfair labor
practice allegations arising from the conduct described in com-
plaint paragraph 9(d). However, for the reasons discussed
above, I recommend that the Board find that Respondent vio-
lated Section 8(a)(1) of the Act by the conduct alleged in com-
plaint paragraph 9(c).
Complaint Paragraphs 10(a), (b), 12(a), (b), and (c)
Complaint paragraphs 10(a) and (b) allege that on two occa-
sions the Respondent, by Human Resources Manager Sara
Wright, informed employees that they were not represented by
the Union. Complaint paragraph 10(a) alleges that Wright
engaged in this conduct on September 5, 2013, and complaint
paragraph 10(b) alleges a similar violation on September 6,
2013. The Respondent, although admitting that Wright is its
supervisor and agent, has denied these allegations and also the
allegation that it thereby violated Section 8(a)(1) of the Act.
Complaint paragraphs 12(a), (b) and (c) pertain to the same
situation which is the subject of paragraph 10(a), an interview
Wright conducted with Jerry Smith III on September 5, 2013.
Complaint paragraph 12(a) alleges that Respondent, by Wright,
denied the request of Smith III to be represented by the Union
during this interview. Complaint paragraph 12(b) alleges that
Smith III had reasonable cause to believe that this interview
would result in disciplinary action being taken against him.
Complaint paragraph 12(c) alleges that Respondent, by Wright,
conducted this interview even though Respondent denied the
employee’s request for union representation. Respondent has
denied these allegations, and also the conclusion that it thereby
violated Section 8(a)(1) of the Act.
Complaint Paragraph 10(a)
As discussed above in connection with complaint paragraph
7(b), on August 30, 2013, Respondent’s management discussed
the Union at an employee meeting in its warehouse at 5540
East Holmes Road. Following the meeting, employee Jerry
Smith III obtained some union-related reading matter at his
locker and left it in the breakroom. Director of Operations Phil
Smith was present in the breakroom. Crediting the testimony
of Smith III, I have found that Operations Director Smith said
that there would be repercussions.
Those repercussions began September 5, 2013, when man-
agement called Smith III to a meeting in Operations Manager
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Maxey’s office. Maxey and Human Resources Manager
Wright were present, but Wright did most of the talking. The
testimony of Smith III differs markedly from that of Maxey and
Wright. Smith III testified, in part, as follows:
Q. When the--when you got to the location of the
meeting, did anyone explain why you were there?
A. Yeah, Sara Wright did.
Q. What did she say?
A. She said, good morning, Mr. Smith. Explain to me
what happened down in the break room area with Phil.
Q. When she said that, what did you say?
A. I said, what incident?
Q. Did she respond?
A. She said, he told you not to put those books on the
break room tables. And I said, he didn’t tell me not to put
the books on the table; he asked me was I on the clock.
And she said, no, he told you not to do it, and you were in-
subordinate.
Q. And what happened then?
A. I said, wait a minute. I said, if you’re going to dis-
cipline me, I need to have some representation up here to
represent me in this matter.
Q. And when you said that, what was Ms. Wright’s
response?
A. She denied and say you don’t have no representa-
tion and you don’t have rights up here with that and, you
know, we’re not concerned with the Union.
Q. What happened then?
A. Well, then she asked me just fill out this question-
naire and bring it back because you really don’t need no
rights for this; just fill out the questionnaire.
Q. And did you accept the questionnaire?
A. No, I did not because I said you’re going to deny
me my representation for something like this. So I refused
to take the questionnaire.
Q. And when you--did you tell her you weren’t going
to take the questionnaire?
A. I said I wasn’t going to take it.
Q. And when you told her you weren’t going to take
it, did she or Mr. Maxey respond?
A. She said, fine, we’ve got enough information; we’ll
go on what we’ve got.
Q. After she made that comment, do you remember
anything else happening in the meeting?
A. No, I proceeded on back to work.
The General Counsel alleges that Respondent violated the
Act when Wright said “you don’t have no representation and
you don’t have rights up here with that and, you know, we’re
not concerned with the Union.” However, Wright specifically
denied making this statement.
The testimony of the third witness to this conversation, Op-
erations Manager Maxey, does not resolve the conflict. Maxey
testified, in part, as follows:
Q. Okay. Did he—I guess that you testified at that
meeting he also asked to have a union representative
A. Correct.
Q. —available? And was he given the opportunity to
go find somebody to
A. No.
Q. —a representative to come back into the meeting
with him?
A. No. We ended the conversation, and she told him
he could go back to work.
Q. All right. Why not give him the opportunity to
bring somebody into the meeting and interview him?
A. Sara was leading that discussion so, you know.
Q. You just went along with Sara?
A. I guess she’ll have to answer that.
Maxey’s testimony that “we ended the conversation” does
not specify the words used to conclude it. Maxey’s testimony
that “we ended the conversation” would be truthful regardless
of whether Wright told Smith III that he had no rights and no
(union) representation. Therefore, I look to other factors in
deciding which witness to credit.
If Wright made the statement which Smith III attributed to
her, its lawfulness would not depend on her motive or intent.
Rather, its lawfulness depends upon the effect the statement
reasonably would have on employees’ exercise of Section 7
rights. However, the presence of antiunion animus does affect
the likelihood of whether Wright made the statement at all. In
other words, someone with an antiunion agenda would be more
likely to make an antiunion statement than would someone who
did not have such an objective.
Considering Operations Director Smith’s almost anaphylac-
tic reaction to the presence of prounion literature in his ware-
house and his threat that there would be “repercussions,” con-
sidering the Respondent’s previous unfair labor practices both
extensive and still awaiting a full remedy, and considering, too,
the Respondent’s other unfair labor practices in this case, I
conclude that Respondent was quite mindful of Smith III’s
protected union activities. Therefore, it is highly likely that
Wright did make the statement which Smith III attributed to
her. I so find.
Having found that Wright did tell Smith III that he had no
representation and “no rights up here,” I now consider whether
this statement interfered with, restrained, or coerced employees
in the exercise of the rights provided in Section 7 of the Act.
The General Counsel’s brief argues that “when Wright told
Smith in the investigative interview on September 5 that the
employees of Respondent are not represented by a Union, she
engaged in conduct which would undermine the Union’s repre-
sentative role, especially as the statement was made in the con-
text of other unfair labor practices. See Windsor Convalescent
Center of North Long Beach, 351 NLRB 975, 987 [(2007)].”
The cited case involved a statement made by a successor
employer that there was no union at the facility. The Board
found that when the manager made that statement, the succes-
sor already had hired a majority of the predecessor’s employees
and therefore had an obligation to recognize and bargain with
the union which had represented them. It did not matter wheth-
er or not the manager believed the statement to be true because
motive was not an element of the 8(a)(1) violation.
OZBURN-HESSEY LOGISTICS, LLC 37
In the present case, the Board certified the Union as the ex-
clusive collective-bargaining representative on May 24, 2013.
Wright’s September 5, 2013 statement to Smith III, that he had
no representation, fell within the certification year, when the
Union enjoyed a conclusive presumption of majority status.
Thus, there can be no doubt that the statement tended to un-
dermine the status of the existing exclusive bargaining repre-
sentative. Windsor Convalescent Center, above.
In reaching this conclusion, I note one procedural complexi-
ty. As discussed above, on June 26, 2014, the United States
Supreme Court ruled invalid the recess appointments of two of
the three Board members on the panel which issued the May
24, 2013 certification. NLRB v. Noel Canning, above. The
Board then set aside the May 24, 2013 certification but issued a
new certification on November 17, 2014, in Ozburn-Hessey
Logistics, LLC, 361 NLRB 921.
The Union’s status as exclusive bargaining representative
flows from its majority support, as manifested in the election
which resulted in the certification. Setting aside the original
certification for extrinsic unrelated reasons did not change this
underlying fact which the certification proclaimed.
Accordingly, Wright’s statement falsely informed an em-
ployee that he had no union representation and thereby inter-
fered with, restrained, or coerced him in the exercise of Section
7 rights. Therefore, I recommend that the Board find that this
statement violated Section 8(a)(1) of the Act.
Complaint Paragraphs 12(a), 12(b) and 12(c)
Complaint paragraphs 12(a), (b), and (c) concern essentially
the same facts as complaint paragraph 10(a), and therefore will
be discussed here, but they present a different theory of viola-
tion, a theory discussed and approved by the Supreme Court in
NLRB v. J. Weingarten, 420 U.S. 251 (1975). When a union is
the exclusive representative of a bargaining unit, an employee
in that unit has a right to union representation, upon request, at
an interview which the employee reasonably believes may re-
sult in disciplinary action. Applicable Board case law applies
this principle only in such a unionized setting, and not to em-
ployees unrepresented by a labor organization. See IBM Corp.,
341 NLRB 1288 (2004), overruling Epilepsy Foundation of
Northeast Ohio, 331 NLRB 676 (2000).
Here, the credited evidence discussed above establishes that,
on September 5, 2013, Smith III requested such representation
and that Human Resources Manager Wright denied the request.
Therefore, I find that the government has proven the allegations
raised in complaint paragraph 12(a).
Complaint paragraph 12(b) alleges that Smith had reasonable
cause to believe that the interview would result in disciplinary
action being taken against him. As discussed below, the Re-
spondent did issue Smith a final warning the day after this in-
terview. This warning concerned the same matters which
Wright raised during the interview. Therefore, concluding that
Smith reasonably believed that disciplinary action would result
from the interview, I find that the General Counsel has proven
the allegations raised in complaint paragraph 12(b).
Complaint paragraph 12(c) alleges that the Respondent, by
Wright, conducted the interview even though the Respondent
had denied Smith’s request for union representation. Smith’s
credited testimony, quoted above, establishes that after Wright
denied his request for a representative to be present, she asked
him to fill out a questionnaire “and bring it back because you
really don’t need no rights for this; just fill out the question-
naire.”
Smith testified that he told Wright he was not going to take
the questionnaire and Wright replied “fine, we’ve got enough
information; we’ll go on what we’ve got.” Smith then “pro-
ceeded on back to work.”
Based on this testimony, I conclude that the General Counsel
has not proven, as alleged in complaint paragraph 12(c), that
Wright conducted the interview after denying Smith’s request
for representation. It is true that she asked him to fill out a
questionnaire and bring it back to her. In other words, he
would be completing the questionnaire outside Maxey’s office,
where the interview was taking place, and outside the presence
of Maxey and Wright. Thus, presumably, Smith could have
sought the advice and assistance of a union representative in
completing the questionnaire.
Moreover, when Smith refused to take the questionnaire,
Wright did not insist that he accept it or complete it, but instead
told Smith that they had enough information and “we’ll go on
what we’ve got.” Smith then left the office and went back to
work. In these circumstances, I do not conclude that Respond-
ent proceeded to conduct the interview after denying Smith’s
request for Union representation.
For reasons discussed above, the Union clearly was the ex-
clusive bargaining representative at this time and thus the
Weingarten principle applies to Smith’s request for representa-
tion. However, under the Board’s case law, the Respondent did
not violate the Act here. When an employee asserts his
Weingarten right by requesting representation, an employer
lawfully may choose not to proceed with the interview and
instead make the disciplinary decision without it. See YRC
Freight, 360 NLRB 744 (2014).
Therefore, I recommend that the Board dismiss the allega-
tions raised by complaint paragraphs 12(a), (b), and (c).
Complaint Paragraph 10(b)
Complaint paragraph 10(b) alleges, and Respondent has de-
nied, that about September 6, 2013, Respondent, by Wright,
informed employees that they were not represented by the Un-
ion. To prove this allegation, the General Counsel relies on the
testimony of Smith III.
After leaving the meeting on September 5, 2013, Smith III
had second thoughts about the questionnaire which Wright had
asked him to fill out. He decided to obtain the questionnaire,
which he then filled out and returned.
On September 6, 2013, Human Resources Director Wright
again met with Smith III. This time, Operations Director Phil
Smith, rather than Maxey, was present along with Wright.
Based on the testimony of Smith III, which I credit, Wright told
him that he was “being disciplined for the incident in the break
room” and gave him a written “final warning,” which Smith III
refused to sign. According to Smith III, Wright replied “that’s
fine, you didn’t have to sign it. They were going to go on the
basis of what they had, that I was receiving a final warning, and
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that this would be placed in my file, but I was still denied my
rights for representation.”
On the basis of this credited testimony, I find that manage-
ment had decided to issue Smith III this disciplinary notice, and
indeed had prepared it, before it called him to the meeting.
Therefore, I conclude that this September 6, 2013 meeting was
not an investigative interview which might lead to discipline
and, accordingly, did not give rise to a Weingarten right to
representation. See Micelle & Oldfield, Inc., 357 NLRB 505
(2011).
To be sure, the allegation raised in complaint 10(b) does not
invoke a Weingarten theory. Rather, it alleges that Wright told
an employee he was not represented by the Union. However,
Smith’s credited testimony simply states, in Smith’s words, that
the warning “would be placed in my file, but I was still denied
my rights for representation.” Those words are not tantamount
to saying that the Union did not represent Smith or other em-
ployees at all. The statement does not deny the Union’s status
as bargaining representative. Rather, the words reasonably
would be understood to mean simply that Smith would not be
allowed union representation in this particular meeting.
Considering that Smith did not have the right to a union rep-
resentative at this particular meeting, telling him that he was
denied the right to representation does not communicate that
the Respondent would not allow the Union to perform its statu-
tory role as exclusive representative. However, this issue cer-
tainly is a close one because it turns on what a typical employee
reasonably would understand the words to mean. The myopic
way lawyers parse words and nitpick is no more natural to the
human condition than the posture for swinging a golf club, and
more difficult to unlearn. So it is possible that a normal person,
rather than a lawyer or judge, would understand “I was still
denied my rights for representation” to mean that Smith was
being denied his right to representation under all circumstances,
not just in this interview to announce discipline.
The difficulty is that the witness did not quote the speaker’s
statement word for word but instead appears to have para-
phrased or summarized it. When Smith III testified that Wright
said “that’s fine, you didn’t have to sign it,” it appears to be a
direct quote, or close to it, with Wright addressing Smith III in
the third person. However, when Smith III testified that Wright
said “I was still denied my rights for representation,” his use of
the first person “I” suggests something less than a direct quote.
Because there is some uncertainty about Wright’s exact
words, and considering that the General Counsel bears the bur-
den of proving a violation, I give the benefit of the doubt to
Wright. Therefore, I do not conclude that the statement inter-
fered with, restrained, or coerced employees in the exercise of
Section 7 rights and recommend that the Board dismiss the
allegations related to complaint paragraph 10(b).
Complaint Paragraphs 11(a), (b), and (c)
Complaint paragraphs 11(a), (b), and (c) allege that on about
May 23, 2013, the Respondent, by Human Resources Manager
Lisa Johnson, committed a Weingarten violation. More specif-
ically, they allege that on this date Johnson (a) denied employee
Nannette French’s request to be represented by the Union dur-
ing an interview, that (b) French had reasonable cause to be-
lieve that the interview would result in disciplinary action being
taken against her, and that (c) Respondent, by Johnson, con-
ducted the interview even though she had denied French’s re-
quest for union representation.
Respondent denied these allegations. It argues that man-
agement did not conduct the interview to investigate French’s
conduct but rather to notify her that she was being discharged.
See Micelle & Oldfield, Inc., above.
The General Counsel’s evidence supports the Respondent’s
argument. French’s own testimony establishes that Respondent
had decided to terminate her employment before the interview
began:
When I walked into her office, I saw my separation notice on
her desk. So, me, I like to ask, I’m like what’s going on, what
have I done now. Because I know I’m usually—I don’t get in
trouble at work, you know, I know to go there, do my job, and
go home. And she said, well, Nannette, we have to let you
go.
The General Counsel’s brief, arguing that French’s discharge
was unlawful, states that “French was never given the oppor-
tunity to provide a defense until the decision to discharge had
been made and, when she attempted to provide such evidence,
Respondent refused to consider it.”
Respondent’s refusal to consider French’s side certainly in-
dicates that the purpose of the May 23, 2013 meeting was not
investigative. If the managers had summoned French to obtain
information relevant to a decision yet to be made, they would
have allowed her to present it. Instead, they prepared her dis-
charge notice before she entered the room, another indication
that they already had made up their minds.
The lawfulness of the decision to discharge French will be
considered below, but here, I focus on whether the Respondent
denied French her Weingarten rights during the discharge in-
terview. Because this interview was simply to inform French
of the decision already made, she had no Weingarten right to
union representation and it was not unlawful for the Respond-
ent to deny her such representation.
Therefore, I recommend that the Board dismiss the allega-
tions raised in complaint paragraphs 11(a), (b), and (c).
Complaint Paragraphs 13(a) and (b)
Complaint paragraph 13(a) alleges that about October 10,
2012, Respondent suspended employee Renal Dotson. Com-
plaint paragraph 13(b) alleges that about October 18, 2012,
Respondent discharged Dotson.
The Respondent admits both allegations, but it denies that it
suspended and discharged Dotson because he assisted the Un-
ion and engaged in concerted activities, as alleged in complaint
paragraph 13(o). The Respondent also denies that it suspended
and discharged Dotson because he was named in an unfair la-
bor practice charge against Respondent, because he cooperated
with the Board investigation, gave affidavits, and testified at
previous Board hearings, as alleged in complaint paragraph
13(p).
The Respondent also denies the allegations, in complaint
paragraphs 20 and 21, that its suspension and discharge of Dot-
son violated Section 8(a)(1) of the Act, which prohibits actions
OZBURN-HESSEY LOGISTICS, LLC 39
which interfere with, restrain, or coerce employees in the exer-
cise of Section 7 rights. 29 U.S.C. § 158(a)(1).
It further denies the allegations, in complaint paragraph 20,
that the suspension and discharge of Dotson violated Section
8(a)(3) of the Act, which prohibits an employer from encourag-
ing or discouraging membership in any labor organization by
discrimination in regard to hire or tenure of employment or any
term or condition of employment. 29 U.S.C. § 158(a)(3).
Additionally, it denies the allegations, in complaint para-
graph 21, that its suspension and discharge of Dotson violated
Section 8(a)(4) of the Act, which makes it unlawful for an em-
ployer “to discharge or otherwise discriminate against an em-
ployee because he has filed charges or given testimony under
this Act.” 29 U.S.C. § 158(a)(4).
For reasons discussed below, I conclude that Dotson’s testi-
mony cannot be trusted. Many parts of it conflict with other
witnesses and with documentary evidence. Also, portions of
the testimony are inherently implausible. Moreover, the certi-
tude with which Dotson delivered the dubious testimony also
has some relevance to credibility. If he indeed believed what he
expected me to believe, then whatever made his workplace
behavior so erratic may also have affected his ability to recall it
reliably.
Dotson’s job duties involved operating a forklift type vehicle
in the Respondent’s warehouse at 5510 East Holmes Road in
Memphis. He had participated in the Union’s organizing effort,
cooperated in the Board’s investigation of unfair labor practice
charges against the Respondent, and testified at several Board
hearings.
Respondent discharged Dotson in 2009. The Board sought
and obtained an injunction against Respondent, pursuant to
Section 10(j) of the Act and, complying with the Order of the
United States District Court, the Respondent reinstated Dotson
to his job in the warehouse. Dotson returned to work in April
2011.
In November 2011, Respondent suspended Dotson for 2
days, on the basis that he had been insubordinate by refusing to
pay attention and by disrupting a preshift meeting and, after
being sent to the human resources department, by continuing to
talk on his cellphone after being told to shut it off. More spe-
cifically, the Respondent asserted that when Director of Opera-
tions Phil Smith addressed the preshift meeting, Dotson had
turned his back on Smith and continued to look away from
Smith even after Smith had asked him to turn around. Dotson
did not dispute that he was facing away from Smith, but
claimed that he had to do so because he was taking notes.
The discipline became the subject of an unfair labor practice
charge which was litigated before the Honorable Margaret G.
Brakebusch, who concluded that the government had carried its
burden of presenting sufficient evidence to support an inference
that protected activity was a motivating factor in the Respond-
ent’s decision to discipline Dotson. Judge Brakebusch further
concluded that the Respondent had not carried its rebuttal bur-
den of showing that it would have taken the same action against
Dotson even if he had not engaged in protected activity:
. . . Dotson has demonstrated an attitude of invincibility based
on his prior reinstatement. I have no doubt that the working
relationship between Dotson and Smith is less than amiable
and that Dotson has openly displayed his disdain for Smith.
Nevertheless, while Dotson’s body language may have
demonstrated a lack of deference for Smith and his demeanor
may have been surly, the evidence does not support that Re-
spondent would have suspended him in the absence of his
prior protected activity.
Ozburn-Hessey Logistics, JD(ATL)-9-13, JD slip op. at 10
(April 26, 2013).
In the present case, the credited evidence establishes that on
October 10, 2012, inside the warehouse, there was an incident
in which Operations Manager Jim Windisch came into contact
with a moving forklift type vehicle being operated by Dotson.3
The record does not establish whether or not Dotson intend-
ed to hit Windisch with the vehicle. However, the credited
testimony indicates Dotson harbored hostility towards
Windisch and also suggests that Dotson was not behaving in an
entirely rational manner.
Windisch was not Dotson’s immediate supervisor but occu-
pied a higher position in the chain of command. Dotson’s im-
mediate supervisor, Chiquita Saulsberry, became concerned
that Dotson was failing to follow her instructions, resulting in a
pallet being placed in the wrong location. Saulsberry asked her
boss, Windisch, to become involved. Windisch located Dotson
and found that Dotson had ignored Saulsberry’s instruction to
move the pallet. Instead, Dotson was doing an unassigned task,
helping some other employees loading a truck trailer.
At the hearing, Respondent asked Dotson about this matter
during cross-examination. Dotson’s inconsistent answers raise
doubts about the reliability of his testimony. Dotson first de-
nied that he was doing something other than instructed:
Q. Okay. And while you were on the truck trying to
help them let me back up. I think you said that Ms. Salis-
bury had asked you to move some pallets Is that right?
A. Yes, sir.
Q. Okay. And so instead of moving the pallets, you
were trying to help the people that were on the truck,
right?
A. No, sir.
However, upon further questioning, Dotson admitted that he
had not done his assigned task:
Q. Okay. What is it you remember Ms. Salisbury
[Saulsberry] asking you to do?
A. She asked me, she asked me could I move a pallet
to right there in the aisle so the pickers can pick from it.
Q. Okay. And that was before or after you got on the
truck to help Mr. Smith and Mr. Hughlett?
A. Before.
Q. Before. Okay. And did you complete that task be-
fore you got on the truck to help Mr. Smith and Mr.
Hughlett?
A. No, sir.

3 The record suggests that the vehicle, called a “lift truck,” serves
the same purpose as a forklift but that the operator stands rather than
sits. Windisch did not suffer any injury requiring treatment.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Credible evidence, consisting of Windisch’s own testimony
corroborated by an employee on the truck (Smith), establishes
that Windisch came to the truck where Dotson was working
and tried to get his attention. However, Dotson denied seeing
him:
Q. Okay. So do I understand you correctly that Mr.
Windisch never came onto the trailer that you were load-
ing?
A. I didn’t see him, no, sir.
Q. Okay. And you would have seen him if he had
been there, right?
A. Yes, sir.
One of the workers in the truck, Jerry Smith, Jr., testified that
Windisch was “trying to give [Dotson] some orders. I don’t
think he [Dotson] hear[d] Jim [Windisch] at the time. . .” In
contrast, Dotson’s own admission that he would have seen
Windisch had Windisch been present, combined with Dotson’s
claim that he did not see Windisch, is tantamount to a denial
that Windisch was present. If Windisch really had been pre-
sent, as I find based on the credited testimony of Windisch and
Smith, how can Dotson’s failure to see him be explained?
There are several possible explanations. First, Dotson might
have been impaired by some kind of substance abuse. His sub-
sequent strange behavior, described below, would be consistent
with such an impairment.
A second possibility seems somewhat less likely. Dotson
may simply have chosen not to notice or acknowledge
Windisch’s presence. In a sense, ignoring Windisch would
echo how Dotson had turned away when Operations Director
Phil Smith spoke at a preshift meeting, as described in Judge
Brakebusch’s decision.
Third, Dotson might have been well aware of Windisch’s
presence but lied about it on the witness stand. There are other
instances, discussed below, where it appears that Dotson re-
wrote the facts for his own convenience.
Based on my observations of the witnesses, I conclude that
Windisch’s testimony is reliable. Although Dotson denied even
seeing Windisch in the trailer, I credit the following testimony
of Windisch which establishes that Dotson did see and speak
with him:
Q. Where were you standing at that point?
A. I was inside the container, too.
Q. How far away were you from Mr. Dotson?
A. About five feet at the most, yeah.
Q. Did Mr. Dotson respond to you?
A. He didn’t respond.
Q. What happened next?
A. Then I called for him again, saying, Renal, we have
to go talk about this pallet that was put up in the wrong lo-
cation. And then he just started yelling at me.
Q. What did he say?
A. He was saying that I don’t need to talk to you
about anything. There is nothing that I need to talk to you
about. I don’t have to talk to you. And then he started to
walk away.
Dotson denied even seeing Windisch, and in his version, this
confrontation with Winidisch at the truck trailer did not occur.
Instead, Dotson stated that he left the trailer and got on his lift
truck. On cross-examination, Dotson testified, in part, as fol-
lows:
Q. And after you finished helping Mr. Smith and Mr.
Hughlett in the trailer, what did you do next?
A. I just jumped on my lift and rode out.
Q. And did you go to do what Ms. Salisbury [Sauls-
berry] had asked you to do at that point?
A. No, sir. I went and did another replen.4
The accounts provided by Dotson and Windisch differ so
greatly there is a kind of fork in reality which cannot be mend-
ed by reconciling minor differences. Rather, deciding what
actually happened requires a stark choice between two remark-
ably different stories.
If the narratives offered by Dotson and Windisch played out
on separate television screens, side by side, the next quarter
hour on Dotson’s screen would be boring. In Dotson’s version,
he did not see Windisch either while helping unload the truck
trailer or when he walked to the reach truck and then “rode out”
on it. Dotson insists that he did not encounter Windisch until
15 to 20 minutes after he left the trailer.
In contrast, during this time period there would be plenty of
action on the screen showing Windisch’s version. Dotson’s “I
don’t have to talk to you” statement to Windisch was just the
beginning. Dotson then left the truck trailer and walked to-
wards his reach truck. Windisch followed.
Windisch testified that he decided to document Dotson’s be-
havior by making a video recording with his smartphone but a
problem with the settings resulted in the phone taking still pho-
tographs. According to Windisch, Dotson was walking towards
his reach truck when he noticed Windisch following him and
taking photographs with his phone. Windisch testified:
Q. So after you pull out your phone and you try and
engage the function unsuccessfully, what happens next?
A. Renal had turned around and he saw that I had the
phone. And he said to me what are you going to do when
I knock that phone out of your hands. And then it was at
that time we got a bigger situation than what originally
was set for, so I said let’s go up to HR and we’ve got to
talk about this.
Dotson was walking and Windisch following when Windisch
said “let’s go up to HR.” Then, Dotson got up on a reach truck.
Windisch’s testimony continues as follows:
Q. What happened after he stood on the reach truck?
A. So the next comment he made to me was are you
going to move? And I said no, we’ve got to go up to HR
and talk about this. And he backed up and he bumped me
with the lift.

4 The term “replen,” short for replenishment, refers to a task involv-
ing the movement of stored goods from one location to another. How-
ever, it was not the work which the supervisor had instructed Dotson to
do. Thus, even in Dotson’s own version of the incident he continued to
ignore his supervisor’s instructions.
OZBURN-HESSEY LOGISTICS, LLC 41
According to Windisch, after striking him with the truck,
Dotson said, “I bet you move next time.”
Employee Jerry Smith saw this event from a distance. Alt-
hough too far away to hear what Dotson had said, Smith did see
Dotson get on the reach truck and did see the truck bump
Windisch. However, it differs in some details. Windisch stated
that the back of the reach truck struck him but Smith’s testimo-
ny suggests that Windisch was in the reach truck’s forward
path:
Q. What happened after Mr. Dotson got on his reach
truck?
A. I remember him getting ready to pull off to leave
and Jim trying to get him not leave, trying to prevent him
from leaving.
Q. When you say trying to prevent him from leaving,
what was Mr. Windisch doing?
A. He kind of like jumped in the way, like walked in
the way of leaving.
Q. You mean it looked like it stepped in front? Did it
look like Mr. Windisch was trying to block him?
A. Yes, it did. Yes, sir.
Q. So as Mr. Dotson started to move, Mr. Windisch
moved away from, or did he move towards the reach truck
or away from the reach truck?
A. I remember him moving towards the reach truck.
Q. Okay. Did you see Mr. Windisch actually come
into contact with the reach truck?
A. Yes, sir, I did.
Q. Okay. When he came into contact with the reach
truck, did he fall down?
A. No, I don’t think he fell. He didn’t fall.
Q. Did he go -- did he like bounce back a few feet?
A. Yeah, he was bumped. He did.
Notwithstanding this difference in detail, Smith’s testimony
corroborates Windisch’s version in important respects, notably,
that the encounter between Windisch and Dotson began when
Dotson was helping unload the trailer truck, that Dotson got in
a reach truck and struck Windisch with it, and that this incident
took place immediately after Dotson left the trailer, not 15 to 20
minutes later.
Windisch suffered a small scratch but did not require medi-
cal attention. He told Dotson to go to the human resources
(HR) department. Before focusing on what happened in the
human resources department, I now consider Dotson’s version
of what happened on the warehouse floor.
According to Dotson, he had left the trailer, gotten on his lift
and was working when he saw Windisch some distance away,
at the end of the aisle, waving at him. Dotson said that he
drove the lift close to where Windisch was standing, came “to a
complete stop and leaned over to the left to see what he want
know what’s going on with the lift.” Dotson further testified as
follows:
Q. Did you have your hands on the controls?
A. No, sir.
Q. So after you stopped the reach truck, before you
got to Mr. Windisch, what happened next?
A. He jumped into my lift.
Dotson described Windisch’s “jump” into the lift as “like a
chest bump, you know, like somebody done scored a touch-
down and they give each other chest-bumps.” Dotson further
testified:
Q. When he bumped into your lift, did you see him do
that?
A. Yes, sir.
Q. What was your reaction?
A. I asked him what he’s trying to do, he trying to hurt
himself, kill himself; this is a lift, you know, this ain’t
nothing to play with.
Q. Did he say anything to you in response?
A. Yes, sir.
Q. What did he say?
A. Go to HR.
The event described by Dotson departs from everyday expe-
rience. As a rule, managers do not flag down a forklift and then
“chest bump” it. Even if such “chest bumps” are common on a
football field after a touchdown, it would be inexplicable and
bizarre, not to mention risky, for such conduct to take place in a
warehouse, particularly when the object bumped is not another
person but heavy industrial equipment. To believe that it hap-
pened as Dotson described, I would want to know why. How-
ever, the record reveals no plausible motivation and Windisch
emphatically denied doing any such thing.
Indeed, Dotson’s testimony became more cryptic, and even
less believable, when it touched on Windisch’s supposed moti-
vation for chest bumping the lift truck. On direct examination,
Dotson claimed to discern such a motivation when he saw
Windisch holding an iPhone:
Q. Was his arm straight up in the air or was it bent?
A. It was kind of like, you know, well, like enough
room for him to do a chest bump and come right back to it
because I didn’t hardly see this, you know, I didn’t see
nothing. I’m just wondering why he bumping into my lift,
and then all of a sudden I look up and seen the phone, and
I was like, oh, okay, I see what you’re doing now.
At that point, Dotson did not elaborate. On cross-
examination, the Respondent asked Dotson to explain:
Q. Okay. I think, if I got my notes right on your direct
testimony, you said I knew what he was doing, right?
A. Yes, sir, after he did it, with his phone, yes, sir.
Q. And what did you mean by I knew he was doing?
A. After I seen him with the phone, I knew he was try-
ing to, you know, set me up to do something.
* * *
Q. Okay. You just said that you think he was trying to
set you up. How do you think he was trying to set you up?
A. After he did it, that’s when I noticed the phone in
his hand.
Q. But what was he doing with the phone that had to
do with setting you up?
A. He might have been recording himself jump into
my lift.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dotson does not explain how Windisch recording himself
jumping into a lift truck possibly could be a “set up” for some
disciplinary action. Even when given another opportunity to
make this connection, Dotson did not:
Q. And, Mr. Dotson, do you think he was filming you,
or do you think he was filming himself?
A. No clue, but I know he was up to something with
chest-bumping my lift with his phone out.
Q. And you said he was setting you up. In what way
do you think he was setting you up?
A. Because he chest-bumped my lift, and I see his
phone out.
Dotson’s explanation that he believed Windisch was trying
to set him up because Windisch “might have been recording
himself jump into my lift” doesn’t make sense. However, even
without this opaque testimony, I would reject Dotson’s version
both because Smith’s testimony corroborated Windisch, and
because there is no plausible reason why Windisch would
“chest bump” the lift truck or try to jump into it.5 No other
evidence supports Dotson’s claim that others kept telling him
that a forklift had the right of way. To the contrary, the record
establishes that rule 9 of Respondent’s operator daily safety
rules states that “Forklift operators must yield the right of way
to pedestrians.” However, Dotson’s comment about Windisch
recording himself jumping into the lift truck does raise a further
concern.
Dotson would have an obvious motive to invent an alterna-
tive scenario to explain Windisch’s collision with the forklift,
an alternative that did not involve Dotson running into the
manager. Such a fabrication would be an unremarkable excul-
patory falsehood, certainly not an exotic or endangered species
of prevarication. However, Dotson’s suspicion that Windisch
was trying to set him up by recording himself jumping into the
lift seems more indicative of disordered thought than intent to
deceive.
Moreover, Dotson’s aggressive question to Windisch—
”what are you going to do when I knock that phone out of your
hands”—and his hostile remark after hitting Windisch with the
lift truck—”I bet you move next time”—raise the possibility of
an impaired mental process. Dotson’s persistent disregard of

5 It may also be noted that Dotson, on cross–examination, admitted
that he had heard someone say that people on equipment had to yield to
pedestrians, but then, almost immediately, gave testimony to precisely
the opposite effect:
Q. Okay. Have you ever heard anyone at OHL say that peo-
ple on equipment had to yield to pedestrians?
A. Yes, sir.
Q. Okay. And you knew that that was one of OHL’s safety
rules, right?
A. No, sir.
Q. You just thought they were saying it?
A. They kept, they kept telling me the machine, how I al-
ways got the right of way.
Q. They told you the machine’s always got the right of way?
A. Yes, sir.
Q. Is that what they said?
A. Yes, sir.
his supervisor’s instructions, for no apparent reason, also is not
the most rational of conduct.
So, it is not surprising that Respondent’s human resources
department would want Dotson to undergo a drug test. Howev-
er, the decision to require such a test did not depend on an ob-
servation of erratic behavior or impaired thought. Rather, Re-
spondent had an established policy that after an accident in-
volving equipment such as a lift truck, the operator involved
would not be allowed to resume his duty until passing a drug
screen.
Dotson’s version of the events in human resources and at a
drug testing center conflicts with the accounts of other witness-
es. For the reasons stated above and supplemented below, I
have little confidence in Dotson’s testimony and reject those
portions which conflict with other witnesses. Based on my
observations of the witnesses, I consider the testimony of Lisa
Johnson and Jacquelyn Porter trustworthy and particularly rely
on it in summarizing the facts below.
When Dotson arrived at the human resources department,
Manager Lisa Johnson administered a saliva drug test which
was called, informally, a “lollipop.” It consisted of a specially-
treated sponge on a stick. The person being tested held the
sponge in his mouth until it was thoroughly wet. This test
yields a reading within a few minutes, but the test is not reliable
if the person had been chewing gum.
Human Resources Manager Johnson credibly testified that
she became aware that Dotson had been chewing gum when
she looked in the wastebasket. Therefore, she discarded the
“lollipop” and arranged for Dotson to undergo a urine drug
screen at Concentra, a medical facility the Respondent used for
such tests.
Dotson testified that the human resources staff actually had
given him two separate “lollipop” tests and that they did not tell
him that a test was invalid because he had been chewing gum.
Crediting the testimony of Johnson and Operations Director
Phil Smith, who also was present, I find that Dotson underwent
only one “lollipop” test.
Respondent’s standard procedure was to administer a “lolli-
pop” test first, and if that test indicated the presence of drugs, to
refer the employee to Concentra for a follow-up urine test. In
other words, Respondent’s policy was not to rely on the saliva
test alone but rather to seek confirmation of positive results
through a urine test administered by health care professionals in
a clinical setting.
Dotson came to the human resources department late in the
afternoon and the Concentra clinic closed at 6 p.m. If the staff
had given him a second saliva test, and if the result had been
positive, there would not have been time enough to send Dot-
son to Concentra before the clinic closed. Johnson consulted
with Phil Smith; they decided to forego another saliva test and
instead send Dotson immediately to Concentra.
Johnson arranged for a taxi to take Dotson to the clinic. In
summarizing what occurred there, I rely on the testimony of
Concentra representative Jacquelyn Porter, who conducted
Dotson’s drug test. Although Porter worked for a company,
Concentra, which had a contractual relationship with Respond-
ent, she had far less interest in the outcome of this proceeding
than either Dotson or Respondent’s managers. Because Por-
OZBURN-HESSEY LOGISTICS, LLC 43
ter’s relationship with Respondent was so highly attenuated,
she was essentially a neutral witness.
Additionally, Porter’s description of the drug testing proce-
dure comports with logic and common sense. Also, I observed
nothing in her demeanor on the witness stand which would
raise any question about the reliability of her testimony. There-
fore, I credit that testimony.
Concentra has established rather rigorous procedures to as-
sure the integrity of the urine specimen. The person to be test-
ed stores his personal belongings, receives a specimen cup, and
is taken to a restroom with a toilet but no sink. The toilet tank
is locked to prevent someone from diluting the specimen with
water from the tank and the water in the toilet bowl is dyed
blue.
Concentra allows the person to spend only 4 minutes in the
restroom. Failure to leave the restroom within that time invali-
dates the test. Additionally, the specimen must be warm and
free of any foreign matter which would suggest contamination.
If the specimen does not meet these standards, the person being
tested must give another specimen, this time in the presence of
an observer of the same sex.
Based on Porter’s credited testimony, I find that Dotson’s
failure to comply with the requirements invalidated the test.
Dotson’s testimony did contradict Porter’s on a number of de-
tails. For example, he claimed that no one told him about the 4
minute time limit and that no one knocked on the restroom door
to let him know that time was almost up. However, for reasons
discussed above, I have concluded that Dotson’s testimony is
not trustworthy. Therefore, I reject it and credit Porter’s testi-
mony, which includes the following:
. . . I was the only one doing the drug screens there at that
time, all the other employees had left, so I asked him, you
know, I called him back and he said that he was ready to be
tested and went through the normal procedures of having him
lock up his belongings. And I informed him, long story short,
that he only had four minutes in the restroom and to give me
at least half a cup or at least four to five milliliters. He said
okay.
He went into the restroom. And at the approximately three
and a half minute mark, I began asking him to wrap it up and
to come on out of the restroom. He said I can’t go yet. I said,
well, if you can’t go, you still have to come out. We’ll get
you some water and let me know when you’re ready to pro-
ceed with your test
He stayed in. After four minutes, I knocked on the door. I
said your time is up. You have to come out now. He said I’m
jumping up and down to see if I can use the restroom. I said,
well, either way, I’m not going to be able to take it because
you stayed in past your time. So he said, okay, I think I’m do-
ing something I said, Mr. Dotson, you need to come out of the
restroom and we’ll get you some water, and we’ll start the
process over. And then he didn’t respond. But he said, oops,
I dropped my cup. And, again, I asked Mr. Dotson if he
would please come out of the restroom.
So when he finally emerged from the restroom, he came out
with maybe 15 milliliters of urine of 30, and it was discolored,
did not have a temperature.
And it was trashy. It had a lot of debris in the bottom. I in-
formed him that I could not take it and that next time he goes
into the restroom, there would have to be a male observer go-
ing into the restroom with him because that is standard.
Porter completed Concentra’s “unusual collection form,”
checking the box “Specimen Out of Range And/Or Signs of
Tampering,” signed the form, and had Dotson initial it. Alt-
hough Dotson testified that the initials were not his, I credit
Porter’s testimony that she watched him as he initialed it.
Dotson testified that no one advised him that he would have
to provide another urine sample. However, the form Dotson
initialed itself makes that requirement clear. Both Porter’s
credited testimony and Dotson’s initials on the form contradict
his denial, which I discredit as another instance of his departure
from fact.
Because it was after 6 p.m., when the clinic closes, no male
staff member was present to observe Dotson give another urine
specimen. Therefore, Concentra did not retest him at that time.
Dotson’s version of events at Concentra is remarkably dif-
ferent. According to Dotson, while he was in the restroom he
dropped the cup with the urine specimen, spilling half of it, but
the woman conducting the test did not indicate that there was a
problem. Dotson testified, in part, as follows:
Q. How much was in the cup when you picked it up
after some splashing out of it?
A. It was still over half.
Q. Over half? Although
A. Yeah, because, you know, it was close, and when I
dropped it, you know, the waves and some splashed.
Q. So after you picked the cup up, had you been given
a cap to put on it?
A. No, sir.
Q. After you left the bathroom, what did you do with
the cup?
A. I put my cup right beside somebody else’s up. She
told me have a nice day. We’ll call your job.
Dotson’s initials on the “unusual collection form” belie his
testimony. To believe his denial that the initials on the form
were his, I would have to conclude that Porter forged them.
However, she would have no reason to do so. In contrast, Dot-
son had a compelling reason to deny signing the form because
his job might well depend on the outcome of the drug test. I
conclude that he did sign the form.
Dotson claims that he telephoned Human Resources Manag-
er Lisa Johnson the next day. According to Dotson, he told
Johnson that the woman at Concentra had rushed him and that
he “didn’t like how things went at that drug place.” Dotson
testified that he suggested to Johnson that he get another drug
test and that “she was like, oh, yeah, that would be a good
idea.”
Johnson emphatically and unequivocally denied making the
statements which Dotson attributed to her. She testified as
follows:
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Okay. Did you tell him to go get his own drug test
at another provider?
A. Absolutely not.
Q. Okay. Did you tell him that would be a good idea
to go to another provider?
A. No, I did not.
Q. Okay. Did you tell him that during any telephone
conversation between October 10th and when his em-
ployment was terminated?
A. No.
Q. Why wouldn’t you tell Mr. Dotson that?
A. Because it was not an approved vendor.
Q. And when you say an approved vendor, what do
you mean by that?
A. We have an approved vendor that has our protocol
on it, and we just use those, our panel.
Q. Okay. And do you accept drug tests performed by
other companies?
A. No.
I credit Johnson’s denial not only because of her credible
demeanor on the witness stand but also because her testimony
is fully consistent with Respondent’s corporate culture, as re-
flected in the record. Clearly, Respondent’s management at-
tached importance to following proper procedure. Respondent
likely chose Concentra to perform its drug testing because Con-
centra also went “by the book.” Concentra rigorously adhered
to procedure and Respondent therefore had confidence in the
reliability of its testing.
In any event, the Respondent certainly would not place much
stock in a drug test performed by some other company it had
not vetted, particularly one selected by the person to be tested.
For one of its managers to endorse such a test would come
close to apostasy. Moreover, Dotson’s claim that Johnson
made such a statement does not stand by itself but among the
ranks of implausible claims advanced by Dotson and denied by
other witnesses. Therefore, I credit Johnson’s denial that she
ever made such a statement to Dotson.
Dotson did go to another drug testing company, where he ob-
tained a certificate showing negative results. However, this
certificate did not persuade Respondent and it does not per-
suade me.
In accordance with its procedure for accidents involving the
operation of equipment, the Respondent would not allow Dot-
son to return to work until he had passed a drug test. Thus, he
was on suspension as of October 10, 2012, as Respondent ad-
mits.
During this suspension, Respondent investigated the circum-
stances of the October 10 incident when Dotson’s lift truck hit
Windisch. This investigation was thorough and aptly could be
termed exhaustive.
Management also looked into Dotson’s claims that he had
been treated poorly at Concentra and that Concentra, in effect,
had used a sloppy procedure which could have resulted in
someone else’s urine specimen being confused with Dotson’s.
Specifically, Dotson had told Concentra that he had been told to
put his specimen cup on a counter where another person’s spec-
imen already was sitting.
Manager Lisa Johnson went to Concentra and spoke with
Porter, who said essentially the same thing to Johnson as her
testimony at the hearing. Porter testified that Dotson was the
only person being tested, which is quite plausible considering
that Dotson had come in shortly before the clinic’s closing
time. Porter also testified that there was no other specimen on
the counter and that it was strictly against Concentra procedure
to perform a drug test on more than one person at a time.
Porter was quite credible as a witness, so it is not surprising
that Johnson also would trust the information that Porter had
provided and reach the conclusion that Concentra had per-
formed the drug test properly. Dotson’s claims about Concen-
tra had been proven specious, so there was no valid reason not
to send him back to that clinic for another drug test.
Respondent has a policy that when an employee has an acci-
dent while operating equipment such as a lift truck, the em-
ployee must pass a drug test before being permitted to run the
equipment again. Management decided to notify Dotson to
report back to work on October 18, 2012, and then to send him
to Concentra for a drug test before allowing him to resume his
duties.
As noted, Respondent did not accept the drug test results
proffered by Dotson but instead, decided to recall Dotson to
work and then, before allowing him to operate equipment, send
him back to Concentra for another drug screen. This procedure
comported with Respondent’s policy that an equipment opera-
tor involved in an accident must pass a drug test before return-
ing to that work.
Johnson prepared the paperwork authorizing and requesting
Concentra to give Dotson the drug test but she did not tell Dot-
son about the test until he arrived at work on October 18. Dot-
son’s testimony about what happened upon his arrival conflicts
markedly with that of Operations Director Phil Smith and Hu-
man Resources Manager Johnson. Based upon the testimony of
Smith and Johnson, which I credit, I find that they informed
Dotson that he must go to Concentra to take another drug test,
and that if he did not do so he would be discharged.
Dotson testified to the contrary:
Q. Okay. You told Ms. Johnson and Mr. Smith that
you weren’t going to go to the place that they were trying
to send you to, correct?
A. No, sir.
Q. Okay. You never said that?
A. No, sir.
Q. Okay. Mr. Smith told you that refusal to go to
Concentra right then would be a refusal to take a drug
screen under OHL’s policies, didn’t he?
A. I don’t recall.
In this instance, there is incontrovertible evidence that Dot-
son’s testimony does not reflect what happened. Operations
Director Smith used his cellphone to make a video recording,
which documents that Dotson repeatedly said that he did not
want to return to Concentra and that he refused to do so. The
video also establishes that Smith warned Dotson that if he did
not go to Concentra right then, it would be considered a refusal
to take a drug test.
Later that same day, Dotson showed up at Concentra for the
OZBURN-HESSEY LOGISTICS, LLC 45
drug test. A Concentra employee contacted the Respondent
concerning authorization to perform the test. However, Re-
spondent informed Concentra that it had discharged Dotson
already, so no test was necessary.
Additionally, an October 18, 2012 letter from Senior Em-
ployee Relations Manager Shannon Miles informed Dotson:
“Effective immediately, your employment with OHL is termi-
nated based on your conduct in violation of OHL’s Drug Free
Workplace policy by refusing to take a drug test.” Respondent
has consistently maintained that it discharged Dotson because
he refused to take the drug test when directed to do so.
Because the Respondent has admitted that it suspended Dot-
son on October 10, 2012, and discharged him 8 days later, the
only undecided issues concern the lawfulness of those adverse
employment actions. To resolve those issues, I will use the
framework which the Board established in Wright Line, 251
NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under the Wright Line test, the General Counsel has the ini-
tial burden of establishing that employees’ union activity was a
substantial or motivating factor in the Respondent’s taking
action against them. The General Counsel meets that burden by
proving union activity on the part of employees, employer
knowledge of that activity, and antiunion animus on the part of
the employer. See Willamette Industries, 341 NLRB 560, 562
(2004) (citations omitted). If the General Counsel makes this
initial showing, the burden then shifts to the Respondent to
prove as an affirmative defense that it would have taken the
same action even if the employees had not engaged in protected
activity. Id. at 563; Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). See El Paso Electric Co., 350 NLRB 151 (2007)
Clearly, the General Counsel has met the government’s ini-
tial burden. Dotson testified against the Respondent in previ-
ous Board cases. Moreover, the Board had sought and obtained
an injunction from the United States District Court requiring
the Respondent to reinstate Dotson after an earlier discharge.
The Respondent, a participant in these cases, thus well knew
about Dotson’s protected activities. Previous Board cases also
establish that Respondent harbored antiunion animus before
October 2012, when it committed the acts at issue here.
Because the General Counsel has made the required initial
showing, the Respondent bears the burden of proving that the
presence of an unlawful motivation during the decision-making
process did not change its outcome. See North Fork Services
Joint Venture, 346 NLRB 1025 (2006), citing Manno Electric,
321 NLRB 278, 280 fn. 12 (1996). To establish this affirmative
defense, “[a]n employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place even
in the absence of the protected activity.” W. F. Bolin Co., 311
NLRB 1118, 1119 (1993), petition for review denied 70 F.3d
863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
In Lampi LLC, 327 NLRB 222 (1998), the Board stated that
in assessing whether a respondent has established this defense,
“we do not rely on our views of what conduct should merit
discharge. Rather we look to the Respondent’s own documenta-
tion regarding [the alleged discriminatee’s] conduct, to its “Per-
sonnel Policy” handbook, and to the evidence of how it treated
other employees with recorded incidents of discipline.” 327
NLRB at 222–223.
The record establishes that Respondent suspended and dis-
charged Dotson in accordance with its established policies spe-
cifically, its policy to drug test an employee who has an acci-
dent while operating a lift truck and its policy to discharge an
employee who refuses the drug test. Credited evidence estab-
lishes that Respondent has discharged other employees for
refusing to take a drug test.
Evidence that an employer similarly has discharged other
workers, who had not engaged in protected activities, for like
violations, typically carries an employer’s rebuttal burden.
However, the General Counsel contends that the Respondent
did not apply its policies in an even-handed manner.
The General Counsel’s brief argues, in effect, that the Octo-
ber 10 incident in which Dotson’s reach truck struck Windisch
did not properly trigger (or should not have triggered) the Re-
spondent’s drug testing policy because “Respondent admits that
it did not have proof that Dotson was the cause of any accident
on October 10. . .” However, this argument is unpersuasive.
It is true that when management investigated the October 10
incident it received conflicting reports from different witnesses,
just as the witnesses at the hearing in this case gave conflicting
testimony. From these conflicting reports, Respondent did not
reach a conclusion regarding what happened during the October
10 incident. Failing to reach a definitive conclusion about what
happened is not the same as an admission “that it did not have
proof that Dotson was the cause” of the collision, but this is not
the only flaw in the General Counsel’s argument.
The argument also rests on an unwarranted assumption,
namely, that the Respondent’s postaccident drug testing policy
does not require the equipment operator to be tested unless
there is proof that this employee caused the accident. The rec-
ord does not establish that Respondent’s policy required that
there be proof of causation as a precondition of drug testing.
Rather, the drug test itself is part of the process to determine
causation.
The General Counsel’s brief also argues that the Respondent
did not apply its policy fairly because Respondent did not re-
quire its supervisor, Windisch, to be drug tested. However,
Windisch was the pedestrian struck by the lift truck, not the
vehicle’s operator. A policy requiring an equipment operator to
be tested after an accident obviously does not require someone
who was not operating the equipment to be tested.
Additionally, the General Counsel’s brief cites Dotson’s tes-
timony that he returned to Concentra on October 17, 2012, the
day before his discharge, and sought unsuccessfully to be drug
tested. Dotson certainly gave such testimony, but such a
claimed visit would be wholly inconsistent with his behavior
the next day when he adamantly refused to return to Concentra.
The video taken by Operations Director Smith documents Dot-
son’s vexation at being told to return to Concentra, and if he
balked on October 18, why would he have been willing to go
there the previous day?
The record reveals so many instances in which Dotson’s tes-
timony departs from fact that I begin to wonder whether any
correlation between that testimony and reality could be statisti-
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cally significant. However, there is a strong correlation with
his self interest.
For the present purpose of deciding which testimony to cred-
it, it is not necessary to determine whether Dotson “knowingly
and willfully” made false statements in violation of 18 U.S.C. §
1001, or whether any of his testimony constitutes perjury with-
in the meaning of 18 U.S.C. § 1621. Should the Board refer
Dotson’s testimony to the Department of Justice for criminal
investigation those issues would be relevant, but I need not
reach them here. It suffices to note that Dotson’s testimony
includes serial, material misstatements of fact that make this
litigation more complex and expensive for all parties, and
which utterly destroy his credibility as a witness.
In sum, I do not credit Dotson’s claim.
The General Counsel’s brief also argues that Respondent
“intended to provoke Dotson into refusing” a drug test by tell-
ing him that he had to go back to Concentra. In that regard, the
General Counsel contends that Respondent could have com-
plied with its own drug testing policy by administering another
saliva test and even if it saw a need for a urine test, there were
other acceptable laboratories in the Memphis area. Therefore,
the General Counsel implies that the Respondent’s decision to
use Concentra was suspicious.
For several reasons, I reject the General Counsel’s argument.
First, the General Counsel does not claim that the saliva test,
performed by someone who was not a health care professional,
was as accurate as a urine test done in a clinical setting. Sec-
ond, the record does not establish that Respondent deviated
from its established practice by using Concentra. To the con-
trary, it had a working relationship with Concentra.
Third, the credited evidence establishes that Respondent took
Dotson’s statements about Concentra seriously. One of Re-
spondent’s managers went to Concentra and interviewed Porter,
who had performed the test. Before telling Dotson he had to go
back to Concentra, the Respondent satisfied itself that Dotson’s
complaints about Concentra lacked merit.
The General Counsel argues that Respondent revealed an un-
lawful motive by sending Dotson back to Concentra after he
had complained about it, but Respondent also knew that Dot-
son’s complaint was false. If I should fault the Respondent for
failing to give credence to falsehood after it had been de-
bunked, I would be rewarding dishonesty and encouraging its
repetition.
Fourth, the General Counsel’s argument underestimates the
seriousness of the situation. Based on the credited evidence, I
conclude that Dotson drove his vehicle into Windisch, causing
at least a minor injury. Possibly, drug use had impaired his
perception and reaction time. Dotson’s conduct at the drug
testing center, resulting in an apparently adulterated specimen,
both raises that possibility and prevents a definite answer.
If drugs had, in fact, impaired Dotson’s mental functioning,
that would be bad enough, but it would be even worse if Dotson
had been unimpaired and had driven the vehicle into Windisch
out of the anger manifested in his remark to Windisch, “I bet
you move next time.” That would be the crime of assault.
Either way, whether the action resulted from drug impair-
ment or unrestrained malice, it demonstrated that Dotson could
not or would not control his behavior and therefore presented a
danger to other people in the warehouse. Respondent had a
duty to protect its employees from this now foreseeable risk.
Sending Dotson to be drug tested at a clinic Respondent had
vetted and trusted reveals no improper motive.
Credited evidence does not indicate that the Respondent act-
ed pretextually and I find that it did not. To the contrary, I
conclude that Respondent’s discharge of Dotson was for cause,
as that term is used in Section 10(c) of the Act.
Having concluded that Respondent met its rebuttal burden
under the Wright Line framework, I further conclude that the
suspension and discharge of Dotson, as alleged in Complaint
paragraphs 13(a) and (b), did not violate the Act. Therefore, I
recommend that the Board dismiss these allegations.
Complaint Paragraph 13(c)
Complaint paragraph 13(c) alleges that about October 31,
2012, Respondent discharged its employee Jerry Smith Jr.
Respondent has admitted this allegation. However, the Re-
spondent denies that it discharged Smith because he assisted the
Union and engaged in concerted activities, and to discourage
employees from engaging in these activities, as alleged in com-
plaint paragraph 13(o). Likewise, it denies the allegation that
its discharge of Smith violated Section 8(a)(3) and (1) of the
Act, as alleged in complaint paragraph 20.
A number of different witnesses are named Smith. For brev-
ity, and to minimize confusion, I will refer to Jerry Smith Jr. as
“Smith Jr.”
Respondent employed Smith Jr. as a forklift driver. His fa-
ther, Jerry Smith Sr., was active in the Union’s organizing ef-
fort. Although the record does not indicate that Smith Jr. en-
gaged in quite as much union activity as his father, he did ad-
vocate the Union when talking with other employees and also
wore clothing which bore the Union’s insignia. Smith Jr. esti-
mated that he wore a union shirt perhaps once a week and a
union hat even more often. Because Smith Jr. wore clothing
with the union emblem at work, I find both that he engaged in
protected activity and that the Respondent was aware of this
activity.
On May 29, 2012, Respondent issued a final warning to
Smith Jr. for operating his forklift without wearing a seatbelt.
The complaint does not allege that Respondent violated the Act
by issuing this warning, but it is relevant here because, under
the Respondent’s progressive discipline system, the next viola-
tion would result in discharge.
On October 31, 2012, Respondent discharged Smith Jr. for a
second violation. According to Operations Manager Windisch,
he saw Smith Jr. operating his forklift without first fastening his
seatbelt. There is no doubt that Smith was not wearing his
seatbelt when Windisch saw him, but there is some conflict in
the testimony as to whether his forklift actually was moving.
On direct examination, Smith Jr. testified that he had just gotten
back on the vehicle when Windisch saw him:
Q. Okay. So you were getting on your lift.
A. Yes, sir.
Q. And you saw Mr. Windisch walking towards you?
A. Yes.
Q. And you said you were getting ready to move.
A. Yes.
OZBURN-HESSEY LOGISTICS, LLC 47
Q. Had you actually started to move when Mr.
Windisch told you, I know you’re going to put that seat-
belt on for me?
A. I don’t think I did, no. I wasn’t moving at the time.
However, on cross-examination, Smith Jr. admitted that he
had stated in his pretrial affidavit that the forklift was rolling
forward when Windisch approached. Accordingly, I credit
Windisch’s testimony and, based on it, find that Smith Jr. was
not wearing a seatbelt even though the forklift was in motion.
Windisch took Smith Jr. to Human Resources Manager Lisa
Johnson, who checked personnel records, discovered that Smith
Jr. had previously received a final warning for a like infraction,
and informed him that his employment was being terminated.
According to Johnson, Smith Jr. acknowledged that he had
been driving without his seatbelt fastened:
I just had him take a seat. I said, what’s going on, and Jim
said, Lisa, I saw Jerry operating a piece of equipment without
his seatbelt on, and I turned to Jerry, and I said, Jerry, is that
right? And he said, yes, ma’am. [Emphasis added.]
Under the Wright Line framework the Board now applies,
the General Counsel does not specifically have to show a con-
nection between an employee’s protected activities and the
adverse employment action, in this case, discharge. Were proof
of such a nexus necessary, I would conclude that the govern-
ment had failed to carry its initial burden.
Carrying this initial burden does require proof of antiunion
animus, but the evidence need only establish what might be
termed a generalized hostility to the Union. The General Coun-
sel need not show that a respondent focused this hostility on the
person who suffered the adverse employment action.
Here, I conclude that the government has carried its initial
burden. As already noted, credited evidence establishes that
Smith Jr. frequently wore to work clothing which displayed the
Union name or logo, and that suffices to establish both the pro-
tected activity and Respondent’s knowledge of it.
Recent prior cases involving the Respondent establish that it
harbored antiunion animus. Therefore, I conclude that the
General Counsel has carried the government’s initial burden
and that the burden shifts to Respondent to establish that it
would have taken the same action even in the absence of pro-
tected activities.
To meet its rebuttal burden, Respondent introduced written
warnings issued to 3 different employees, and to one manager,
for similar infractions. It is true that these disciplinary actions
are warnings and not discharges, but I conclude that they suf-
fice to establish that the Respondent would have taken the same
action against Smith Jr. even in the absence of protected activi-
ty.
The record does not establish that there was any employee
other than Smith Jr. who, after receiving a final warning for
failing to have seatbelt fastened, later was caught committing
the same infraction again. The absence of such an instance is
hardly surprising because the knowledge that another infraction
would result in discharge would potently motivate an employee
to fasten the seatbelt.
Moreover, the fact that Respondent issued a final warning to
one of its supervisors, David Maxey, indicates that it took its
seatbelt policy quite seriously. Because Maxey was a member
of management, issuing a final warning to him would not ad-
vance any antiunion objective. Further, Respondent issued the
final warning to Maxey on January 16, 2012, well before the
May 29, 2012 final warning to Smith Jr. and Smith’s October
31, 2012 discharge.
Respondent’s seatbelt policy serves an important safety in-
terest. Failing to discharge Smith Jr. in accordance with that
policy would have undermined its credibility by showing that
his earlier “final warning” had not been final after all. For this
reason, and considering the discipline Respondent imposed on
other employees and a supervisor, I conclude that it would have
discharged Smith Jr. in any event, even in the absence of pro-
tected activity.
Accordingly, having concluded that the Respondent carried
its rebuttal burden, I find that the Respondent did not violate
the Act by the conduct alleged in complaint paragraph 13(c)
and recommend that the Board dismiss these allegations.
Complaint Paragraph 13(d)
Complaint paragraph 13(d) alleges that about May 15, 2013,
Respondent discharged its employee Shawn Wade. Respond-
ent admits this allegation. However, it denies that it discharged
Wade because he assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities, as alleged in complaint paragraph 13(o). It also de-
nies that the discharge of Wade violated Section 8(a)(3) and
Section 8(a)(1) of the Act, as alleged in complaint paragraph
20.
Wade was a shipping dock worker assigned to the Respond-
ent’s warehouse at 5510 East Holmes Road. He began work
there in April 2011. The record does not establish that he was
active in the union organizing campaign, and he testified that he
did not wear union-related attire at work. To establish both
protected activity and employer knowledge, the General Coun-
sel relies on one event, Wade signing a union membership card
while he stood in the picketing lot and at a time when Respond-
ent’s senior vice president drove by.
More specifically, on May 14, 2013, Wade heard that there
had been a final tally of ballots which showed that the Union
had won the representation election. After his shift ended, he
met with another employee, Anita Wells, in the warehouse
parking lot.
Wells gave Wade a union card, which Wade placed on the
hood of his car and signed. On direct examination, Wade testi-
fied, in part, as follows:
As I was signing my card, I signed my card on the hood of my
car. And as I was signing, Randall Coleman, I think is his
name, he was riding by, going out the guard shack, and I saw
him. And we had eye contact. He was looking through his
rearview mirror from the inside.
Wade testified that Coleman did not work in the warehouse
and he did not know what position Coleman held, although
Wade believed it was in upper management. Because of the
tentativeness with which Wade identified the man as Coleman,
and Wade’s uncertainty as to Coleman’s exact job title, I con-
sider the identification somewhat uncertain. However, Wells
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also testified that Coleman passed her and Coleman himself
testified that he has an office in the building served by this
parking lot. So, I believe it likely they did see Coleman pass by
in his car.
Coleman likely saw Wade and Wells because any driver,
even a computer operating an experimental autonomous vehi-
cle, would or should take notice of nearby pedestrians. How-
ever, I do not credit Wade’s testimony that he made eye contact
with Coleman by way of the rear view mirror in Coleman’s car.
Considering the distances involved and that Coleman’s car
was moving, it seems unlikely that Wade would have had op-
portunity to see into Coleman’s car sufficiently to discern the
driver’s eyes in the rear view mirror. The General Counsel
introduced into evidence aerial photographs of the warehouse
and parking lot and Wells marked where she and Wade were
standing and the path of Coleman’s car. The exhibits and tes-
timony do not absolutely rule out the possibility that Wade
made eye contact with Coleman, but they do not make a con-
vincing case that it actually happened.
Considering the testimony and the aerial photographs, and
notwithstanding the relatively slow speed of Coleman’s car as it
drove out of the parking lot, I do not credit Wade’s testimony
that he could see Coleman’s eyes in Coleman’s rear view mir-
ror. Rather, crediting Coleman’s testimony, I conclude that he
did not make eye contact with Wade.
However, even assuming such eye contact, the record would
not establish that Coleman, a senior vice president, would rec-
ognize Wade. Moreover, even assuming for the sake of analy-
sis that Coleman had recognized Wade, the record does not
establish that Coleman would know that the paper Wade was
signing was a union card.
Wade testified that the next day, he was “scheduled to come
in at eight o’clock” and “was running a little late.” So, Wade
did not park in his usual parking area but instead parked closer
to the building, in an area where “the bigwigs or whatever”
would park while visiting the warehouse. Wade then hurried
inside, clocked in and went to the daily preshift meeting which
begins the workday.
After the preshift meeting, Wade left the building without
clocking out, and without seeking a supervisor’s permission.
He moved his car to his regular parking area and then returned
to work. At the end of his shift, Wade received word that he
should go to the human resources department. There, he met
with Operations Supervisor Stacey Deal and Human Resources
Manager Lisa Johnson.
Johnson informed Wade that he was being discharged be-
cause he had left the warehouse and moved his car without
clocking out. An “Employee Warning Notice” stated, in rele-
vant part, as follows:
Employee was observed parking his vehicle in a no parking
zone and entering building to clock in at 8:00am on 5/15/13.
Employee then attend morning pre-shift meeting and at the
conclusion of the meeting, employee exited the facility
(8:06am), returned to his vehicle, then moved his vehicle to a
parking spot. Employee then re-entered to warehouse at
8:09am. This is a violation of OHL’s Time and Attendance
Policy. [Punctuation and grammar unchanged from origi-
nal.]
Wade’s signature does not appear on this document and
Wade testified that he had not seen it before the hearing. He
denied that he parked in a no parking zone and some evidence
suggests that he actually had left his vehicle in the visitor’s
parking lot. However, the exact location does not make a dif-
ference because Respondent has not claimed it discharged
Wade for parking in a no parking zone. Rather, it asserts that it
terminated Wade’s employment because, as Wade admits, he
left the building without permission and without clocking out
and moved his car during time he was being paid to work.
In analyzing the lawfulness of Wade’s discharge using the
Wright Line framework, I first must determine whether the
government has made an initial showing sufficient to shift the
burden of proceeding to Respondent. If the General Counsel
has not established that protected activity was a substantial or
motivating factor in the decision to discharge Wade, then the
Respondent does not bear the rebuttal burden of proving that it
would have taken the same action even in the absence of pro-
tected activity.
The evidence establishes that the Respondent bore animus
against the Union. The government also has proven that Wade
engaged in protected activity when he signed a union card. The
difficult issue concerns whether the General Counsel has satis-
fied the remaining requirement, proving that the Respondent
knew about Wade’s protected activity.
To establish such knowledge, the General Counsel relies on
evidence that Respondent’s senior vice president, Coleman saw
Wade signing the union card as Coleman drove by on his way
out of the parking lot. The General Counsel’s brief states, in
part, as follows:
While Coleman denies seeing Wade, Wade and Wells testi-
fied specifically that Coleman drove immediately next to where
they were standing and looked directly at them while Wade was
filling out the Union card (Tr. 867, 1072; GCX 42, 51). Gen-
eral Counsel asserts that this testimony, along with Coleman’s
established animus and history of unfair labor practices, (See
GCX 4(a)), provides sufficient evidence of Respondent’s
knowledge of Wade’s Union activities.
For the reasons discussed above, I credit Coleman rather
than Wells and Wade. Therefore, I find that Coleman did not
look directly at them while Wade was filling out the union card.
However, even if Coleman had looked directly at them, from
his vantage point within his car, he could not easily had dis-
cerned that Wade was filling out a union card.
The portion of the General Counsel’s brief quoted above
seems to argue that “Coleman’s established animus and history
of unfair labor practices” can be considered as evidence having
probative value on the issue of Respondent’s knowledge. The
brief does not explain how antiunion animus and past unfair
labor practices could make Coleman’s vision more acute. Per-
haps the General Counsel is arguing that Respondent knew
Wells supported the Union and therefore Coleman would be
suspicious of any conversation an employee had with Wells,
particularly if the employee had a pen in hand. Speculation,
however, is not evidence.
OZBURN-HESSEY LOGISTICS, LLC 49
The General Counsel also argues that other employees had
gone to their cars without first clocking out but had suffered no
disciplinary action. Presumably, from such disparate treatment
the government would infer that Respondent had a motive to
discriminate against Wade. The thrust of such an argument is
that if the Respondent singled out Wade for disparate treatment
and if it targeted him then it must have known Wade had en-
gaged in union activity.
Such a circuitous argument would encounter a major obsta-
cle. Many reasons exist why an employer might want to dis-
criminate against an employee. Some of those reasons might
violate no law at all. Others might violate a statute proscribing
employment discrimination on the basis of race, national origin,
gender, or other specifically prohibited reason but such discrim-
ination, even if unlawful under some other statute, would not
violate the National Labor Relations Act. Thus, even if credi-
ble evidence established disparate treatment, such treatment
would not establish that Respondent knew that Wade had
signed a union card.
Moreover, even were(?) I to make the troubling assumption
that proof of disparate treatment could have some probative
value on the issue of employer knowledge, which I don’t, there
would have to be sufficient credible evidence that Respondent
actually decided to treat Wade more harshly than other employ-
ees. Evidence that other employees had gone to their cars
without clocking out, but suffered no disciplinary action, would
not alone suffice. The record would also need to include credi-
ble evidence that Respondent knew of these infractions but
decided to overlook them.
The General Counsel’s brief also argues that although “Re-
spondent may have had such a [strict attendance] policy at
some point in the past, the evidence clearly shows that it was
never consistently enforced.” To support this argument, the
General Counsel cites Respondent’s efforts to remind employ-
ees of the attendance policy:
Furthermore, immediately after Wade’s discharge, Manager
Gray and Supervisor Deal made an announcement in the pre-
shift meeting that employees were not permitted to be outside
the warehouse without permission. (Tr. 549-51, 597). Later,
in the 5540 building, Manager Maxey and Sara Wright, from
Human Resources, informed employees in that building that
they were not allowed to be outside the warehouse during
working time without permission. (Tr. 111, 1228, 1299).
Then, in November 2013, Respondent had employees in the
5540 building sign a policy reminder that they were not al-
lowed to leave the warehouse during working time without
permission. (GCX 59, 75). Finally, in February 2014, em-
ployee Brandon Smith was observed on more than one occa-
sion by manager Bonner parking his car near the entrance to
the Remington warehouse, going in to clock in and then leav-
ing to park his car. (GCX 95)
In considering the General Counsel’s argument, I have some
difficulty understanding how evidence of Respondent’s contin-
uing efforts to inform employees of its attendance policy proves
that the policy was “never consistently enforced.” Moreover, I
have particular difficulty understanding the General Counsel’s
reasoning with respect to Brandon Smith. Stating that Smith
“was observed on more than one occasion . . . going in to clock
in and then leaving to park his car,” the brief cites General
Counsel’s Exhibit 95. However, that exhibit is a termination
notice showing that Respondent discharged Brandon Smith for
violating the policy. It states, in part:
Brandon admits to knowing that he could not illegally park,
clock in and then move his car while on company time.
Brandon chose to ignore the instructions given to him by his
manager and also ignored the rules of the company. This is
grounds for immediate termination.
Contrary to the General Counsel’s argument, credible evi-
dence shows that Respondent took its attendance policy seri-
ously, expected employees to take the policy seriously, and
enforced the policy by investigating suspected violations and
taking disciplinary action.
More fundamentally, even should I assume the opposite, that
the evidence suggested erratic enforcement of Respondent’s
policy, it would not establish that the Respondent knew about
Wade’s union activity at the time it discharged him. Indeed,
even totally random application of an attendance policy would
not satisfy the requirement that the government prove
knowledge of union activity. Evidence of irregular enforce-
ment could indeed be relevant to the issue of pretextual motiva-
tion, but the analytical process does not reach that issue unless
employer knowledge has been proven.
In sum, credited evidence does not establish that the Re-
spondent knew about Wade’s union activity at the time it de-
cided to discharge him. Therefore, the General Counsel has not
satisfied the requirements for an initial showing that Wade’s
union activity was a substantial or motivating factor in the deci-
sion to discharge him. Accordingly, the Respondent does not
have a rebuttal burden and does not have to prove it would have
taken the same action against Wade even in the absence of
protected activity.
Accordingly, I recommend that the Board dismiss the unfair
labor practice allegations concerning Respondent’s discharge of
Wade described in complaint paragraph 13(d).
Complaint Paragraph 13(e)
Complaint paragraph 13(e) alleges that about May 17, 2013,
Respondent discharged its employee Reginald Ishmon. Re-
spondent admits this allegation but denies that it did so because
Ishmon assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these activities,
as alleged in complaint paragraph 13(o). It also denies that
Ishmon’s discharge violated Section 8(a)(3) and (1) of the Act,
as alleged in complaint paragraph 20.
Reginald Ishmon began work, as a direct employee of Re-
spondent, on about December 17, 2012, after working for a
temporary service, Staffmark. He operated vehicles such as
reach trucks in the Yazaki warehouse.
Ishmon testified that on May 16, 2013, he was in the ware-
house parking lot while on break and spoke with a man and a
woman he did not know, but who wore Respondent’s identifi-
cation badges. Presumably, they were employed at one of Re-
spondent’s other warehouses.
The woman gave him a union card. However, Ishmon did
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not sign the card but rather took it with him and went back into
the building. He testified that as he was leaving, he saw Opera-
tions Supervisor Goodloe approach:
Q. And did you see Mr. Goodloe before or after you
had gotten the card?
A. Before.
Q. You saw Mr. Goodloe before you had gotten the
card?
A. No, no, no, ma’am. It was like when they gave me
the card, that’s when I seen Mr. Goodloe, when they gave
me the card.
Q. And did you—were you present—you said Mr.
Goodloe approached while you were standing with the
other two people.
A. Yes, ma’am.
Q. And what did you overhear?
A. No, ma’am. I walked off because my break was
almost over, so I went into the building.
Q. Did you hear any part of the conversation?
A. No, ma’am.
Q. I thought you just testified that you heard Mr.
Goodloe saying something.
A. Well, yeah, just as far as anything after that, I
didn’t, you know.
Q. But tell me what you did hear.
A. He just asked you all got to leave the premises or
you all are not allowed up here. And like I said, at that
time, I was just walking off and I didn’t really try to hear
anything else because I was going back on lunch break or
going back on my break.
Ishmon gave this testimony on June 10, 2014, the second day
of the hearing, which did not close until July 25, 2014. Thus,
Respondent had ample time to call Goodloe as a witness, but
did not. Crediting Ishmon’s testimony, which is uncontradict-
ed, I find that Goodloe did walk up as Ishmon was leaving and
saw, or at least had the opportunity to see, Ishmon accepting a
union card.
Ishmon further testified that after going back into the ware-
house, he saw Operations Manager Bonner “standing in the
break room, just staring at me. And at that time, I just went on
back to my workstation, went to work.” Bonner denied that she
was in the breakroom and also denied that she stared at Ishmon.
The record does not establish that Ishmon engaged in any
union or protected activity other than accepting the union card
in the parking lot on May 16, 2013.
The next day, May 17, 2013, Ishmon was operating his reach
truck in the warehouse when the events occurred which lead to
his discharge. Here, I begin with Ishmon’s testimony concern-
ing what happened and then will turn to Respondent’s evi-
dence, which indicates that management did not believe Ish-
mon.
In the part of the warehouse where Ishmon was working,
goods on pallets are stacked high, rising above what would be
the ceiling height of a typical room. Ishmon’s testimony does
not suggest that any accident happened when he removed a
pallet from the top of the stack:
Q. Did anything unusual happen at work that day
[May 16, 2013] or the following day?
A. I think maybe the following, when I got to work. I
usually go through my daily routine, start pulling down
pallets. So as I pulled down a pallet off the top rack, I
pulled the first pallet down, which they have double rack,
so I pulled it down and—
Q. Let me stop you. What’s a double rack?
A. A rack here and a rack behind it.
Q. So the product is stacked and it’s basically two
deep?
A. Yes, ma’am. So I pulled the first pallet down and I
scanned it. As I scanned the pallet, my battery went dead.
Q. A battery on what?
A. My scan gun, my scan gun, it went dead.
From the record, I infer that a “scan gun,” also called an “rf
gun,” reads a label or tag attached to the goods being moved so
that a computer can keep track of the location of the goods. In
Ishmon’s version, he went on his reach truck to the office to get
another battery. When he returned to the aisle he discovered
that a pallet had “flipped over.”
Thus, according to Ishmon, whatever happened took place
during the time he was away from the aisle, getting another
battery. If an accident occurred he didn’t see it because he was
not there. The implicit thrust of Ishmon’s account is that he
could not have been responsible for whatever happened be-
cause he was not present.
Ishmon’s testimony leaves doubt as to what happened and
does not acknowledge that there had been an accident resulting
in damaged goods. He testified, in part, as follows:
Q. Okay. And what did you observe?
A. It was a pallet flipped over on the top rack.
Q. When you say flip—that was in the area where you
had just—
A. Yes, ma’am.
Q. —taken off the front pallet?
A. Yes, ma’am.
Q. And you say this pallet was flipped over. Was it
completely upside down or was it—
A. No, ma’am.
Q. —tipped on its side?
A. On its side.
Q. And what did you do when you saw that?
A. The first thing I did is went and got my lead, which
is Dedrick Looney. And I came to him and I told him, I
said, look, this pallet here is flipped over, but I did not flip
this pallet over. He was like, well, okay, then, you’re go-
ing to go through the chain of command. He went to get
Margaret, which is the warehouse manager. And so they
came around and they were discussing it. . .
Ishmon’s exculpatory account—”I did not flip this pallet
over”—differs from the conclusion managers reached when
they saw the damage and investigated. That view will be dis-
cussed below, after summarizing Ishmon’s narrative.
Goodloe directed Ishmon to go to the office of Operations
Manager Bonner, where he took and passed a drug screen.
Bonner also asked Ishmon to write out a statement of what
OZBURN-HESSEY LOGISTICS, LLC 51
happened. His statement consisted of the following two sen-
tences:
The pallet was flipped over on the C level in G1 racks. I had
get the Order Picker and go up and straighten the pallets out.
Bonner sent Ishmon home. He testified that later that same
day he received a telephone call from a woman in the human
resources department informing him that he had been dis-
charged because he had failed to report the accident.
On direct examination, Ishmon denied receiving any disci-
plinary action before his discharge. He stated: “No, ma’am. I
was actually a good worker.” However, on cross examination,
he admitted that his signature appeared on a previous discipli-
nary warning which he did not remember receiving:
Q. You don’t remember this at all. But you signed
this, correct? A written warning dated August 29, 2012,
describing a safety violation where you failed to secure the
chocks applied to both sides of a trailer that’s being un-
loaded. That’s what the description of the offense is. Did
that happen?
A. No, I don’t know anything about that.
Q. I’m sorry?
A. No, I don’t know. I can’t recall. I don’t know any-
thing about that.
Q. Well, are you denying that’s your signature?
A. No, I’m not denying.
Q. Well, the plan for improvement says that you were
retrained on August 29, ‘12. Do you remember that?
A. No.
Ishmon’s failure to remember the warning notice he had
signed raises some doubts about the reliability of his testimony.
However, in this instance, the record does not present a testi-
monial conflict requiring resolution. Uncontradicted testimony
establishes that managers decided to discharge Ishmon because
they doubted his candor and concluded that he really had
caused the accident.
Respondent had a contract with Yazaki to operate this par-
ticular warehouse, where automobile parts were stored. These
goods included the Toyota parts which sustained damage in the
event preceding Ishmon’s discharge.
Operations Manager Bonner testified that on May 17, 2013,
she received a telephone call from a Yazaki representative in-
forming her that “there was some damage out in the warehouse
and I needed to come out and see it.” Bonner also quoted the
representative as saying “that she caught Reginald speeding
away from the scene of an accident and that she knew that he
had done it.”
Bonner went to the scene of the accident, where she photo-
graphed the damage and spoke with Ishmon. In the recent past,
other accidents involving other workers had resulted in consid-
erable expenses for Respondent. Bonner undertook a thorough
investigation.
In addition to drug testing Ishmon and having him write a
statement, Bonner mined the computer data, including that
collected by the “rf gun” Ishmon had been using. Each of these
devices has a unique number, so it was possible to ascertain
which employees had come in recent contact with the goods,
Toyota parts which had been damaged. The data revealed only
one such person, Ishmon. Bonner testified, in part, as follows:
Q. Were there—was there a second or third shift?
A. Well, the second and third shift only did Nissan.
So we did have a second and third, but they didn’t pick
any Toyota. They only did Nissan.
Q. All right. So you concluded that it would not have
been—it could not have been done on another shift?
A. It could not have been done on another shift.
Q. Because they don’t do the kind of work he was do-
ing that day?
A. No. They do not.
Q. Any other factors you took into account, in con-
cluding that he had caused this damage?
A. Well, the system pretty much told us everything we
needed to know. We went back in to see if there had been
any recent activity in the location, and he was the only
person that had had any activity in that location.
By email, Bonner advised the human resources department
of the results of her investigation. The May 17, 2013 email
stated, in part:
The sheet that indicates the locations that Reginald was pull-
ing from is a clear indicator that he is the person that caused
the damages. Per my conversation with the customer the
damages to this product will cost $7,000; OHL will have to
reimburse that amount of money back to the customer. So far
this year, we are currently @ $12,000 in damages & this
doesn’t include the $22,000 worth of damages that was done
last week by the temp. We haven’t reached ½ of the year yet.
Please let us know what action can be taken.
Human Resources Manager Lisa Johnson then contacted
Bonner. Johnson credibly testified that she and Bonner dis-
cussed the investigation step by step:
Q. What did she describe to you?
A. She described that she had gotten a call from Ara
who is our—who was the customer rep at Yazaki, and Ara
had witnessed Reginald Ishmon coming out of a location.
He was coming fast. He did not honk his horn or slow
down. It had alerted her because that is not proper proce-
dure, and so she went down, Ara herself went down that
aisle. She found some pallets that were turned over, and
that Ara had contacted Margaret and Margaret had gone to
investigate out on the floor, and when she, Margaret, ar-
rived, where Ara was standing at the location, Dietrick
Looney, the lead was also there, and that Ara had told her
that that was the product that she had found and Margaret
had checked the, checked the pick ticket. There was a
pick ticket on his reach lift, and his RF gun was on the
reach lift, and she said that the location was the—the last
person to touch it was Reginald Ishmon. She had an elec-
tronic trail that he had scanned product there and moved
product there, and he had been the only one in that whole
location.
Johnson decided to seek authorization to discharge Ishmon.
Based on her credited testimony, I find that she did not know
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about Ishmon’s protected activity at the time she made this
decision. Johnson sent an email to Senior Human Resources
Manager Shannon Miles. It stated:
Margaret [Bonner] had an employee fail to admit/report an
overturned pallet today. She did drug screen him and we sent
him home pending the investigation. The customer was near
the location and saw the employee coming out of the location
where the pallet was located. They did run reports that show
he was the last one to move said pallet. $7k in damages add-
ed to their already high amount.
Based on him not admitting or telling the accident occurred,
may we proceed with termination?
Miles wrote back that “if the employee failed to report the
accident/damage, etc., then proceed with termination.” Johnson
then telephoned Ishmon and told him he was discharged.
Ishmon maintains that he did report the accident to his lead-
man. However, Ishmon’s own testimony does not establish that
he reported that an accident had occurred. Rather, he told the
leadman that “this pallet here is flipped over, but I did not flip
this pallet over.” Likewise, the brief statement he wrote at
Bonner’s request makes no reference to an accident. It merely
stated that the “pallet was flipped over. . .”
The customer’s representative had told Bonner she saw Ish-
mon speeding away. That observation adds significance to
Ishmon’s avoidance of the term “accident” and his insistence
that he had not flipped the pallet over. In these circumstances,
management would have reason to suspect Ishmon had caused
the damage and was trying to distance himself from the scene
and from responsibility.
Ishmon’s claim that the pallet must have “flipped” after he
left the area to get a battery naturally would raise the question
of who else might have been responsible. Bonner’s investiga-
tion, including her check of the computer records, indicated that
no one else was around.
It is quite plausible that Bonner and Johnson, considering
this information, concluded that Ishmon had caused the damage
but would not acknowledge it. Although they explained the
discharge decision as based on Ishmon’s failure to report an
accident, their reason more aptly could be described as failing
to admit the accident. Johnson said as much during cross-
examination:
Q. So really this is about the fact that Margaret came
to the conclusion and you apparently came to the same
conclusion that he did it and he won’t admit it. That’s
what this is about. It’s not that he failed to report. It’s that
he wouldn’t admit that he did it, correct?
A. Yes.
Cross-examining Johnson, the General Counsel also asked
questions challenging the thoroughness or sufficiency of the
investigation. Here is an example:
Q. So it took you 11 minutes, 11 minutes total, to de-
termine that this guy is responsible for damaging the prod-
uct?
A. I don’t think you understand how thorough Marga-
ret Bonner is and how responsible she is. . .
Bonner’s investigation, as described in her testimony and re-
flected in exhibits, did not appear to lack in thoroughness. It
may be stressed, however, that the Act does not require an em-
ployer to conduct any particular sort of investigation before
taking disciplinary action. Certainly, the quality or extent of a
predischarge investigation has relevance because a perfunctory
investigation may suggest that the employer is merely going
through the motions to create a pretext. See, e.g., Socied Es-
paiiola de Auxillio, 342 NLRB 458 (2004). However, the
Board does not sit in judgment of the “fairness” of the investi-
gation in some abstract sense.
Bonner’s investigation was sufficiently thorough that it does
not suggest pretext. Further, nothing about the investigation
indicates that the decision makers considered Ishmon’s protect-
ed activities. To the contrary, the record persuades me that
Respondent’s decision-making process was uncontaminated by
any consideration of Ishmon’s protected activity. Moreover,
based on the credited testimony of Johnson and Bonner, I find
that they were unaware of Ishmon’s protected activity at the
time they decided to discharge him.
Notwithstanding those factual findings, at this point I will
stop short of reaching the legal conclusion that protected activi-
ty was not a substantial or motivating factor in the decision to
discharge him. Even if an employer did not consider a particu-
lar employee’s protected activities, there are still ways, alt-
hough uncommon, in which antiunion animus could motivate a
decision to discharge an employee who had not engaged in
protected activity. For example, an employer might attempt to
make the discharge of a union activist appear legitimate by also
discharging other employees as well.
The General Counsel does not argue that Respondent en-
gaged in such conduct here and the record would not support
such a finding. However, the General Counsel certainly is
entitled to attempt to establish unlawful motivation in the man-
ner the Board contemplated in Wright Line, above. The ele-
ments commonly required to support a showing that protected
activity was a “substantial or motivating factor” are union or
protected activity by the employee, employer knowledge of that
activity, and union animus on the part of the employer. Desert
Toyota, 345 NLRB 1335 (2005)
First, I will examine the issue of protected activity. As I un-
derstand the Wright Line analytical framework, it does not
permit the judge to weigh the magnitude of the employee’s
protected activity but rather presents a binary question: Either
the employee engaged in protected activity or he did not.
It certainly may be argued that the amount of an employee’s
protected activity—more precisely, the amount of the employ-
ee’s protected activity known to management—would be rele-
vant to the issue of whether such activity was a motivating
factor in the employer’s decision to discharge him. In other
words, an employer harboring antiunion animus arguably
would be more likely to take into account the protected activity
of an employee who wore union attire and campaigned tireless-
ly for the union than that of an employee whose only known
protected activity consisted of accepting a union card from
someone in the parking lot. However, I do not believe the
Wright Line framework allows me to consider the extent of
OZBURN-HESSEY LOGISTICS, LLC 53
Ishmon’s protected activity in determining whether the gov-
ernment has carried its initial burden, so I will not.
Certainly, Ishmon’s accepting a union card constituted pro-
tected activity. Therefore, I find that the General Counsel has
carried this part of the government’s initial burden.
Next, I focus on whether the Respondent knew about this
protected activity. Ishmon’s uncontradicted and credited testi-
mony that, as he left, he saw Operations Supervisor Goodloe
approach, constitutes some evidence that Respondent knew
about the protected activity. Goodloe did not testify and thus
Ishmon’s testimony is uncontradicted. The record indicates
that Ishmon’s work brought him into contact with Supervisor
Goodloe, so I will presume that Goodloe recognized that the
person accepting the union card was Ishmon.
There is another problem. Even assuming that Goodloe rec-
ognized Ishmon and saw him accept a union card, the record
does not establish that this knowledge ever reached the manag-
ers who actually made the decision to discharge Ishmon. Based
on the credited testimony of Johnson and Bonner, I have found
that they were unaware of this protected activity.
However, Board precedent does not require direct evidence
that the manager who took an adverse employment action per-
sonally knew about the employee’s protected activity. See,
e.g., Vision of Elk River, Inc., 359 NLRB 69 (2012). Moreover
the Board has held that a lower level manager’s knowledge of
an employee’s union activities can be imputed to those higher
in the chain of command. See, e.g., Flex-N-Gate Texas, 358
NLRB 622 (2012).
In view of this precedent, and notwithstanding my finding
that Johnson and Bonner did not, in fact, know about Ishmon’s
accepting the union card, I will assume for the purposes of the
Wright Line analysis that the General Counsel has established
the second initial requirement.
In making this finding, I rely only on Goodloe’s presence in
the area where Ishmon received the union card. I do not con-
sider whether or not Manager Bonner was inside the building,
in the breakroom, and saw Ishmon on his way back to work.
Even if she were there and had seen him, it would only estab-
lish that he had been outside during the break, not that he had
accepted a union card.
Based on the Board’s prior recent cases involving this Re-
spondent, I also conclude that the General Counsel has estab-
lished the third initial requirement, antiunion animus. Because
the General Counsel has satisfied all three initial requirements,
the burden of proceeding shifts to the Respondent to show that
it would have discharged Ishmon even in the absence of pro-
tected activity. Further, I conclude that Respondent has carried
this burden.
Less than two months before Ishmon’s discharge, Respond-
ent had terminated the employment of another operator, Wanda
Dillard, for similar reasons. The notice documenting her dis-
charge indicated that she had been involved in an accident
while operating a forklift but had not admitted her involvement.
The notice states, in part, as follows:
Wanda did not report the damage to her forklift as an acci-
dent. However, the investigation by Steve Holman, supervi-
sor for MHR, determined that the only way the damage could
have been caused was through direct impact with an overhead
beam. [Italics added]
The Respondent discharged Dillard not merely for the acci-
dent but, more fundamentally, for failing to report that an acci-
dent had occurred and failure to admit involvement in it. Thus,
Respondent discharged both Willard and Ishmon for the same
reason, lack of candor.
The General Counsel argues that Ishmon’s case is different
because Respondent had no direct evidence that Ishmon had
caused the accident and did not, in the General Counsel’s opin-
ion, conduct sufficient investigation to reach that conclusion.
Thus, the government contends that the investigation was so
perfunctory that it reveals a pretextual motive.
However, even though Bonner performed the investigation
quickly, that fact alone does not establish that it was a ruse to
conceal an ulterior motive. Notwithstanding the speed of the
investigation, it appears to have been thorough enough to sup-
port a conclusion that Ishmon had caused the accident but was
refusing to admit it. It bears repeating that the Board does not
sit in judgment concerning the quality of a predischarge inves-
tigation except to determine whether the investigation was a
bonafide effort to obtain facts rather than a charade to mask an
unlawful motive. The present record does not suggest that
Bonner’s investigation of the Ishmon matter was merely a pre-
text and I conclude that it was not.
As to the General Counsel’s argument that the Ishmon matter
is distinguishable because there was no direct evidence that
Ishmon had been involved in the accident, I note that in the
Dillard discharge, the Respondent also based its conclusion on
an investigation. The discharge notice states that the investiga-
tor “determined that the only way the damage could have been
caused” was through a direct impact which would be character-
istic of a collision which Dillard would not admit. Thus, in the
Dillard case, the Respondent rested its decision not on video
recording or eyewitness report but on the opinion reached by
the investigator.
The Respondent also presented evidence that it had treated
other employees in a manner similar to its treatment of Ishmon,
but I believe that the Dillard case is especially probative both
because of the similarity of facts and also because it occurred
not long before the Respondent discharged Ishmon. In sum, I
find that the Respondent has carried its burden of showing that
it would have discharged Ishmon even if he had not engaged in
protected activity.
Therefore, I recommend that the Board dismiss the unfair la-
bor practice allegations related to complaint paragraph 13(e).
Complaint Paragraph 13(f)
Complaint paragraph 13(f) alleges that about May 22, 2013,
Respondent discharged its employee Deangelo Walker. Re-
spondent admits this allegation, but it denies that it discharged
Walker because he assisted the Union and engaged in concerted
activities and to discourage other employees from engaging in
such activities, as alleged in complaint paragraph 13(o). Re-
spondent also denies that the discharge of Walker violated Sec-
tion 8(a)(1) and (3) of the Act, as alleged in complaint para-
graph 20.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Walker, employed by a temporary service, performed work
for Respondent for 8 or 9 months. Then, in April 2013, Re-
spondent hired him. Respondent requires all new employees to
complete successfully a 90-day probationary period. However,
Respondent terminated Walker’s employment on May 21,
2013.
The General Counsel contends that Walker engaged in activ-
ity protected by the Act on two occasions. According to Walk-
er, about a week before his discharge, while he was in the park-
ing lot outside the warehouse, he signed a union authorization
card given to him by Nannette French. Walker further testified
that Operations Manager Margaret Bonner saw him as he
signed the card:
Q. BY Ms. MOHNS:
So you tell me you received the card from her?
A. Yeah. I got the card from Ms. French. And as I
got it from her, I started to sign it And while I was signing
it, Ms. Bonner, she was on her way out the building, head-
ed to her truck, I believe on lunch break. She saw me get-
ting the card from Ms. French and signing it And I didn’t
pay it any mind or anything.
Q. How did you sign the card? Were you sitting in a
car, when you were signing that?
A. We were standing outside the car.
Bonner denied both seeing and making eye contact with
Walker. Moreover, although French testified, she did not men-
tion either giving a union card to Walker or the incident he
described. The differences in testimony raise a credibility issue
which will be addressed later, after discussing the second in-
stance of protected activity alleged by the General Counsel.
Walker testified that on about May 17, 2013, he attended an
employee meeting at which Bonner spoke. At that meeting,
another employee asked Bonner why some new employees
were receiving a higher wage rate for performing similar work.
Walker did not speak at this meeting, but, he testified, voiced
his concerns to Bonner afterwards:
Q. What happened after the meeting?
A. After the meeting, I pulled Ms. Bonner to the side,
myself, and I spoke with her, myself.
Q. Where was this conversation?
A. It was in the hallway, outside of the conference
room.
Q. Were there other employees still in the area?
A. No.
Q. It was you and Ms. Bonner?
A. Yes, ma’am. I wanted to speak with her one-on-
one, basically. And I asked, you know, I told Ms. Bonner,
I was like, well, you know, basically I’m referring back to
what was said in the meeting, it’s not fair to us as employ-
ees who have been working here to be getting paid these
wages, you know, and these people that’s just coming do-
ing the same job. You know, I just told her, you know, it’s
really not fair. And she looked at me and she said, so,
well, what do you—you’re not going to do your job now?
I told her, no, I’m going to continue to do my job. And I
looked at her and I told her this is really one of the reasons
why we need the Union. After I said that, you know, she
kind of looked at me strange. And she didn’t say any-
thing. She looked at me and walked off.
Q. You say she looked at you strange Could you de-
scribe?
A. I would say she looked pretty upset about it, about
my comment that I made. She looked pretty upset about
it.
Bonner’s testimony contradicts Walker’s. She stated that
Walker did approach her after the meeting, but she did not have
time to meet with him then and said they would have to talk the
next day:
Q. All right. After this meeting with the group, did
DeAngelo Walker speak to you privately?
A. He wanted to talk, but I actually came back to
work that night. I had a meeting that night, and I had
brought my son with me, and I told him that we would
have to talk tomorrow.
Q. Okay. Well, in that—so that—after that meeting
that night, did he pull you aside and say that it’s not fair
that the new people were making more money? And
you—and did he say that he told you this is really one of
the reasons why they needed a union?
A. No, he did not.
Q. Did he ever make that comment to you at any time
A. He did not.
Q. —that this is why we need a union?
A. No, he did not.
Q. In any conversation you had with Mr. Walker, did
you ask him if he was going to not do his job?
A. No, I didn’t.
During cross-examination, Bonner further testified that the
day after the meeting, Walker did come to her office. Walker
raised the same issue—the pay rate of the newly hired employ-
ees—which the other employee had brought up at the meeting.
Bonner testified that Walker told her he had gone online to the
Respondent’s website and saw “what the job paid.”
Bonner asked Walker to come over to her laptop computer
and show her where on the Respondent’s website Walker had
seen the pay rate information. On the computer, she called up
the Respondent’s website and asked Walker where he had gone
from there. According to Bonner, Walker replied that he could
not remember.
She clicked on the “Careers” page and asked Walker “where
did you go from here.” Bonner testified that Walker said he
really did not remember, but added that he would go home and
look for it and then get back to her. However, according to
Bonner, Walker never did.
Thus, the testimony of Bonner and Walker conflicts. For
reasons discussed above in connection with complaint para-
graphs 9(c) and (d), I credited Bonner rather than Walker to
resolve another testimonial conflict. In that instance, I con-
cluded that Bonner likely had a more accurate recollection of
her own words but that conclusion was specific to the specific
facts which are not present here. Therefore, the fact that I con-
sidered Bonner’s testimony more reliable at one point is not
dispositive of whether it should be credited here.
OZBURN-HESSEY LOGISTICS, LLC 55
No other witnesses were present in either Walker’s version
or Bonner’s of their private conversation so neither account is
corroborated. Accordingly, I return to the evidence regarding
what happened earlier, in the parking lot, and first note this
further testimony of Walker describing Bonner’s appearance
while Walker was talking with French:
She was leaving, headed to her car on lunch break. She nor-
mally leaves for the lunch break and she’s headed to her car.
She seen me over there talking to Nannette. I looked at her
and she looked at me. She got in her car and, you know, like I
said, Nannette was on her break and I was just getting to
work, so we was sort of like in the parking lot, mingling, you
know. She got in her truck and she drove off. We caught
eyes, looked at each other.
The fact that Walker said that Bonner “normally” leaves for
the lunch break suggests that he had noticed her leaving for
lunch on more than one occasion, but his testimony referred to
Bonner’s vehicle as both a car and a truck. Although this dis-
crepancy might call into question his observations, I give it
little weight because Bonner testified that she drove a Yukon, a
sports utility vehicle which does bear some resemblance to a
truck.
However, I give more weight to the fact that Nannette
French’s testimony did not mention Walker or the incident he
described in the parking lot. This absence of corroboration,
when it should be expected, does decrease my confidence in
Walker’s version of the facts.
Moreover, Bonner testified in considerable detail. It seems
unlikely that she would simply make up a story that she had her
son with her and therefore did not have time to meet with
Walker right then, after the employee meeting. Although it is
conceivable that a witness might fabricate such a nonessential
detail, it seems particularly unlikely in the case of Bonner, who
appeared to be too meticulous to be comfortable telling an un-
necessary and untidy lie.
My conclusion that Bonner accurately testified about the
date and circumstances of her one-on-one meeting with Walker
raises serious doubts about the reliability of Walker’s testimo-
ny. When and where a meeting took place are not incidental
matters likely to be overlooked or remembered incorrectly. To
these doubts must be added French’s failure to corroborate
Walker’s testimony about what happened in the parking lot.
Therefore, I conclude that Walker’s testimony is not as reliable
as Bonner’s and resolve testimonial conflicts by crediting the
latter.
Respondent has a rule stating that the “usage and/or presence
of cell phones on the warehouse floor are strictly
PROHIBITED.” (Capitalization as in original.) Walker signed
a copy of this rule on April 24, 2013.
On May 21, 2013, after the start of the 2 o’clock shift which
Walker worked, Bonner saw him on the warehouse floor talk-
ing on a cell phone. For the reasons discussed above, I credit
her testimony, which includes the following, about this occur-
rence:
Q. Okay. All right. Then tell us what you saw.
A. I had walked out on the floor, and I observed
DeAngelo on a cell phone when I walked out. And as I
walked around to the—we had a yellow barrier that—from
the floor to the warehouse. And I was standing on the rail
and I watched him talking on the phone. He was pacing
back and forth on his cell phone.
Q. Okay. And where was he when he was pacing
back and forth?
A. On the barrier, just walking back and forth, pacing
on the floor.
Q. Okay. And was anyone with you at the time?
A. Steve Hogan, the MHR technician.
Q. All right. Could you tell if Mr. Walker was—saw
you, or was looking at you while he was walking back and
forth, talking on the phone?
A. I’m sure he saw me.
Q. Okay. Did you make eye contact with him?
A. We did, at one point.
Q. Okay. Did he hang up after he saw you looking at
him?
A. No, he did not.
Walker does not deny that he was talking on the cellphone,
but his testimony conflicts with Bonner’s concerning where he
was standing. Both Walker and Bonner placed marks on a
diagram of the warehouse to show Walker’s location as he
spoke on his cellphone.
Bonner’s testimony refers to a Steve “Hogan” in the portion
quoted above but the name “Holman” appears at other places in
the transcript and I conclude that both “Holman” and “Hogan”
refer to this same person, Stephen Holman, who testified as a
witness for Respondent. Rather than helping to resolve the
issue of which witness to credit, however, Holman’s testimony
adds another complication.
Holman testified that he saw someone, later identified as
Walker, talking on a cellphone, but it was not after the 2
o’clock shift started. Holman testified that this event took place
in the morning, and he seemed quite certain about it:
Q. You saw him at the clock?
A. Yeah, I saw him when he clocked in.
Q. Was this around 2 o’clock in the afternoon or
thereabout?
A. No, it was a lot earlier. It was 8 o’clock, some-
where like that. It was early in the morning.
Q. You don’t recall it being in the afternoon?
A. No, no. It was early in the morning. It was early in
the morning, because I started at 7. And it was early, it’s
an early stop. That was usually my first stop in the day-
time. And that’s where he did that.
This testimony, that he saw the person later identified as
Walker around 8 a.m., conflicts with other evidence. Walker
testified that he clocked in shortly before the beginning of the 2
o’clock shift. An email from Bonner to human resources man-
agers indicates that Walker clocked in at 1:54 p.m., which es-
sentially is in agreement with Walker’s testimony.
Notwithstanding some similarities in the testimony of Hol-
man and Walker, I conclude that Holman’s should receive little
weight. In addition to the matter of when Holman witnessed
the event, it also concerns me that he did not learn until later
that the man with the cellphone was Walker. Because of the
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
chance that Holman misidentified the man he saw as Walker, I
will not rely on his testimony to establish what happened.
Instead, crediting Bonner’s testimony for the reasons dis-
cussed earlier, I find that Walker was not standing in the break
area but the work area of the warehouse. Additionally, based
on Bonner’s testimony, I find that she saw Walker talking on
his cellphone after the 2 p.m. starting time.
Walker’s testimony indicates that his telephone call ended
approximately at the 2 p.m. starting time rather than extending
into work time. However, Walker did not deny that he already
had clocked in before the call began:
Q. Do you recall approximately when you clocked in
that morning or that afternoon, excuse me?
A. About five minutes till.
Q. And what did you do after you clocked in?
A. After I clocked in, I headed back towards the break
area to put away my personal items, my food and stuff,
you know, after sitting there drinking a pop, throw away
my trash, clean up after myself. On the way out the door,
I received a phone call from my mother. I took the phone
call. I probably was on the phone maybe five minutes.
Bonner had a supervisor check the timekeeping system to de-
termine at what time Walker had clocked in, and then sent an
email to Human Resources Managers Lisa Johnson and Sara
Wright. That email stated:
Deangelo Walker is on 2nd shift in Receiving. His shift starts
@ 2 pm. He clocked in @ 1:54 pm today, but I walked out
on the floor @ 2:04pm & noticed Deangelo walking on his
cell phone. He saw me, but continued to talk on his phone out
of his assigned work area. I proceeded to talk to Steve Hol-
man (maintenance man) & I asked did he see what I saw.
Steve stated that he was on the phone a few minutes before I
even walked out on the floor. I then called Mark Kuhl so that
he could look in Kronos for me to see what time he clocked in
or was he even on the clock. Deangelo was not on break & he
is currently on his 90 day probation. Please advise as to what
action can be taken.
After receiving the email, Human Resources Manager John-
son checked with her superior, Senior Employee Relations
Manager Miles, and they decided to discharge Walker. Both
Johnson and Miles testified that they had not been told that
Walker signed a union card and did not know that he had en-
gaged in any union activities.
Johnson informed Walker of his discharge at a meeting also
attended by Bonner and two supervisors, Mark Kuhl and Anto-
nio Goodloe. Johnson described Walker’s reaction when told
he was being discharged:
Q. So during the meeting, tell me what you recall?
A. He got angry and he said he couldn’t believe this
shit, and he said isn’t there something else we can do, and
I said no, the decision had already been made to terminate
you. I’m sorry. You violated our policy. We’ll need your
badge. He stood up and started yanking stuff off and
throwing it.
Q. When you say yanking stuff off and throwing it,
what are you referring to?
A. Well, he had an ID badge which had his ID badge
and his time card and his forklift license. He yanked that
off and threw that towards Margaret, went across her desk,
and then Yazaki had to wear an orange reflective vest.
Our associates wear those out on the floor, and he took
that off and threw that at us. So I asked Mr. Kuhl and Mr.
Goodloe to escort him out the door.
Walker admitted that he “grew upset. I told her, hey, this is
a bunch of bullshit. I really did. I got real upset. And I told
her this is a bunch of bullshit.” Walker also volunteered that as
Supervisor Kuhl escorted him out the door, Kuhl made a com-
ment which prompted Walker to tell him “to shut the hell up
talking to me.”
In analyzing whether Walker’s discharge violated the Act, I
will follow the Wright Line framework. As discussed above,
the General Counsel must first establish that union or protected
activity was a substantial or motivating factor in the decision to
discharge Walker. The government may carry this burden by
proving union or other protected activity on the part of employ-
ees, employer knowledge of that activity and antiunion animus.
If the General Counsel establishes all of these elements, then
the burden of proceeding shifts to Respondent to establish that
it would have taken the same action even in the absence of
protected activity.
Because I do not credit Walker’s testimony, I conclude that
the General Counsel has not proven either that he received a
union card from employee French or that he signed one. Fur-
ther, I find that Bonner did not see Walker signing a union card.
Additionally, I do not credit Walker’s testimony concerning
his meeting with Bonner. Therefore, I find that he did not
make any statement to Bonner about employees needing a Un-
ion.
However, according to Bonner, whose testimony I credit,
Walker did come to her office and tell her that he saw on the
Respondent’s website what Respondent paid employees. She
asked him to show her where on the website he found that in-
formation and he could not recall. Arguably, Walker may have
been engaged in protected activity even though he was by him-
self when he made the statements and even though he did not
mention the Union.
The Board has consistently defined concerted activity as en-
compassing the lone employee who is acting for or on behalf of
other workers, or one who has discussed the matter with fellow
workers, or one who is acting alone to initiate group action,
such as bringing group complaints to management’s attention.
Kvaerner Philadelphia Shipyard, 346 NLRB No. 36 (2006)
(not reported in Board volumes), citing NLRB v. City Disposal
Systems, 465 U.S. 822 (1984); Meyers Industries (II), 281
NLRB 882 (1986); Globe Security Systems, 301 NLRB 1219
(1991); Alaska Pulp Corp., 296 NLRB 1260 (1989), enfd. 944
F.2d 909 (9th Cir. 1991).
When Walker made the statement to Bonner that he found
“what the job paid” on Respondent’s website, was he “acting
for or on behalf of other workers” such that his statement con-
stituted protected activity? The words that he “knew what the
job paid” do not, in themselves, suggest that he was speaking
on behalf of other employees. However, the statement can only
OZBURN-HESSEY LOGISTICS, LLC 57
be understood as a continuation of the discussion during the
meeting, at which other employees brought up the subject of a
new employee’s pay.
In the discussion above concerning complaint paragraph
9(c), I concluded that at this meeting, Bonner violated Section
8(a)(1) of the Act by telling employees, in effect, that if they
were unhappy they could quit and find other work. Clearly, she
made this remark in response to an employee-initiated discus-
sion about wages which clearly constituted protected activity.
Bonner’s statement reasonably could be understood as being
dismissive of employees’ concerns, so Walker’s appearance at
her office the next day, raising the same matter, signaled that
the employees’ wage concerns could not be dismissed so easily.
Additionally, at this same meeting, Bonner signaled her dis-
approval of employees discussing their wages with each other.
As noted above, the complaint did not allege this statement as
violative. However, her words have relevance here in deter-
mining whether Walker was engaged in protected activity.
When Walker told Bonner that he found “what the job paid”
on Respondent’s website, it reasonably communicated that it
wasn’t even necessary for employees to discuss their wage rates
because such information was available online. In other words,
Walker clearly was trying to continue the discussion which
employees began at the meeting the previous day. Therefore, I
conclude that Walker was engaged in protected activity.
The General Counsel therefore has established the first of the
initial Wright Line elements and the second as well because
Walker engaged in the protected activity in the presence of
Bonner, one of Respondent’s managers.
The General Counsel also has satisfied the third initial re-
quirement. Bonner’s suggestion to employees that they could
quit if unhappy, a violation of Section 8(a)(1), precedes Walk-
er’s discharge by less than a week. Additionally, the Board has
found animus in previous recent cases.
Because the government has carried its initial burden of
showing that protected activity was a significant or motivating
factor, the burden of proceeding shifts to the Respondent to
prove, as an affirmative defense, that the presence of an unlaw-
ful motivation during the decision-making process did not
change its outcome. See North Fork Services Joint Venture,
346 NLRB 1025 (2006), citing Manno Electric, 321 NLRB
278, 280 fn. 12 (1996). To establish this affirmative defense,
“[a]n employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected activity.” W. F. Bolin Co., 311 NLRB
1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th
Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
In Lampi LLC, 327 NLRB 222 (1998), the Board stated that
in assessing whether a respondent has established this defense,
“we do not rely on our views of what conduct should merit
discharge. Rather we look to the Respondent’s own documenta-
tion regarding [the alleged discriminatee’s] conduct, to its “Per-
sonnel Policy” handbook, and to the evidence of how it treated
other employees with recorded incidents of discipline.” 327
NLRB at 222–223.
For reasons discussed above, I have found that Walker did,
in fact, violate the Respondent’s written cellphone policy,
which stated that “usage and/or presence of cell phones on the
warehouse floor are strictly PROHIBITED.” Respondent’s
capitalization of “prohibited” suggests that it intended to make
clear to employees their duty to obey the policy. There is no
doubt that Walker received a copy of this policy because his
signature appears on a copy dated April 24, 2013, less than a
month before he was discharged for violating it.
As a new employee, Walker was about one-third of the way
through a 90-day probationary period, normally a time of
heightened scrutiny of an employee’s work. All of these fac-
tors—Walker’s violation of a policy the Respondent considered
important, after he had received a copy of it and during his
probationary period—suggest that the Respondent would have
taken the same action in any event.
Walker testified that he had seen two other employees, Law-
rence Leland and Rodney Davis, using cellphones without ap-
parent consequences. Bonner testified that she had not seen
either Leland or Davis violate the Respondent’s cellphone poli-
cy. Crediting Bonner, I do not find that Respondent treated
either Leland or Davis disparately. To establish disparate
treatment requires proof that management knew about a viola-
tion but failed to impose the same degree of discipline.
Walker testified that “she’s caught Rodney [Davis] on his
cellphone before,” presumably referring to Bonner. However,
he then added “Rodney, you know, he was in the office. And
he had his phone out, using his phone.” However Respondent
discharged Walker for violating a policy prohibiting use of a
cellphone on the warehouse floor, not in the office.
Additionally, although Walker claimed that Bonner saw an-
other employee, Leland, using a cellphone, it is not entirely
clear from his testimony that Leland was on the warehouse
floor at the time. In any event, crediting Bonner’s testimony
rather than Walker’s, I find that she did not see either Davis or
Leland violating the cellphone policy which Walker violated.
Walker also claimed that a leadman, Dedrick Looney, used a
cellphone on the warehouse floor. Bonner credibly testified
that Respondent had authorized the leadman to do so because
he needed it to perform his job duties.
In sum, the credited evidence does not support a finding of
disparate application of the cellphone policy.
In evaluating rebuttal evidence, the Board also looks to in-
stances when other employees have been disciplined for similar
violations. The record does not disclose instances of similar
violations. However, the Respondent not only provides em-
ployees with copies of this policy but also has posted a sign
prohibiting cellphones at the warehouse entrance. Considering
how much attention Respondent calls to this policy, I conclude
that violations of it are rather infrequent.
Particularly in view of Walker’s status as a probationary em-
ployee, and considering that he violated a policy Respondent
emphasizes, I conclude that Respondent has carried its burden
of proving that it would have discharged him even in the ab-
sence of protected activity. Therefore, I recommend that the
Board dismiss the allegations arising from complaint paragraph
13(f).
Complaint Paragraph 13(g)
Complaint paragraph 13(g) alleges that about May 23, 2013,
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent discharged its employee Nannette French. Re-
spondent admits this allegation but denies that it terminated
French’s employment because she assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities, as alleged in complaint para-
graph 13(o). It also denies that the discharge of French violated
Section 8(a)(3) and (1) of the Act, as alleged in complaint para-
graph 20.
French began work from Respondent as a fulltime employee
on July 12, 2010, and worked at the Yazaki warehouse at 5050
Holmes Road in Memphis until her discharge on May 23, 2013.
The General Counsel’s brief stated, in part, that “French did not
get involved in the Union organizing campaign at Respondent’s
facilities until about May 14, 2013, immediately after the ballot
count.” After that ballot count, French began passing out union
cards to other employees.
Additionally, the General Counsel’s brief states that on May
14, 2013, Operations Supervisor Antonio Goodloe saw French
in the Yazaki warehouse parking lot speaking with employee
Whitley, saw her signing a union card, and taking union mate-
rials from Whitley to distribute to other employees. On that
same day, the General Counsel argues, Operations Manager
Bonner saw French distributing union cards, which Bonner
denied.
For reasons discussed above, I have concluded that Bonner’s
testimony was more reliable than French’s and have credited
Bonner’s denial that she saw French distributing union cards.
Further, for the reasons discussed above, and especially be-
cause of my concerns about French’s testimony, I have con-
cluded that credible evidence did not establish that Goodloe
saw French when she was passing out union cards.
On May 17, 2013, the Respondent discharged French after
she returned from lunch a minute late, thereby accumulating a
13th point under the Respondent’s written attendance policy,
which provides that “Thirteen combined points, or two no
call/no show occurrences within a 52-week rolling period, will
result in termination.”6 French had received a copy of this
policy, and had signed a receipt for it, on November 2, 2012.
The General Counsel does not contest that French had accu-
mulated the 13 attendance points and I find that she had. Ra-
ther, French’s testimony largely focused on a malfunction in
the door French tried to use to enter the warehouse after lunch
on May 17. To unlock the door, an employee would an identi-
fication badge or card in front of a sensor, but the door had a
history of malfunctioning. French claimed that the door was
not working properly which resulted in her being a minute late.
Manager Bonner credibly testified that she had posted a sign
instructing employees to use another door in case this one mal-
functioned. French denied that there was such a sign but, for
reasons discussed above, I do not believe French’s testimony to
be as reliable as Bonner’s and, crediting Bonner, I find that a
sign had been posted.
However, it should be stressed that a number of factors affect

6 Complaint paras. 11(a), (b), and (c) alleged that Respondent had
committed a Weingarten violation in connection with French’s dis-
charge interview, but, for the reasons discussed above, I concluded that
the credited evidence failed to establish such a violation.
observation and memory, and therefore the reliability of testi-
mony, so my decision not to credit French’s testimony does not
reflect at all on her efforts to be truthful. Moreover, a decision
not to credit one portion of a witness’s testimony neither com-
pels a conclusion that the remainder is unreliable nor relieves
the judge from the need to keep checking.
Another part of French’s testimony warrants discussion. Af-
ter clocking in a minute late on May 17, 2013, French did not
tell any supervisor that the door had malfunctioned but instead
went to her work area. She gave the following explanation:
Q. And why didn’t you go tell Antonio or another su-
pervisor what had happened?
A. Because the door had been broke. Everybody
know that. So I never had to tell anybody that we clocked
in a minute late or a minute early. And then with me, I’m
never late. I’m never late. I’m on the—I’m on the park-
ing lot 30 minutes before time, in the morning. I’m never
late.
Later in her testimony, French made a similar statement:
Q. Do you remember what the separation said?
A. I think what they said what they fired me for, but
they put on there, I think, regulation, or rules, or some-
thing. She had told me it was a minute late for lunch, for
clocking in a minute late from my lunch break and I had
pointed out. But we never got points for lunch, being late
on lunch. And I’d never been late before, so I just didn’t
understand.
At first glance, French’s “never been late” claim might seem
improbable in view of her 12 previous attendance points, but
Respondent’s records actually support it. The Respondent’s
attendance policy assesses a 1 point penalty for being late, 2
points for an unexcused absence, 3 points for leaving early, and
4 points for no call/no show. French’s termination notice indi-
cates she received points as follows:
Date Points Date Points
8-15-12 2 2-5-13 2
9-10-12 2 3-2-13 4
10-9-12 2 5-17-13 1
Thus, the termination notice indicates that French had four
unexcused absences, one no call/no show and only once, on her
last day of employment, was she assessed a point for being late.
Her statement that she had never been late before therefore is
consistent with the documentary evidence.
However, I still hesitate to accord significant weight to
French’s testimony that the employees never got points for
returning late from lunch. The record does not establish that
French had, or was in a position to have had personal
knowledge of how Respondent generally enforced its attend-
ance policy.
The General Counsel argues that disparate enforcement of
Respondent’s attendance policy supports a finding of animus.
In principle, a comparison of the computerized time records
with disciplinary records could reveal Respondent’s consisten-
cy or inconsistency in assessing points for tardiness. Such rec-
OZBURN-HESSEY LOGISTICS, LLC 59
ords should allow the government to prove any pattern of em-
ployees clocking in late but receiving no points, if such a pat-
tern existed. However, the documents in evidence do not re-
veal such a pattern and I must conclude that the evidence pre-
sented does not establish disparate enforcement.
In any event, the record includes enough other evidence of
animus to carry the government’s initial burden on this element
of the Wright Line analysis. However, no credited evidence
establishes that Respondent knew that French had engaged in
protected activities. Therefore, I conclude that the General
Counsel has not proven that protected activity was a substantial
or motivating factor in the decision to discharge French.
Accordingly, Respondent has no rebuttal burden. I recom-
mend that the Board dismiss the allegations related to com-
plaint paragraph 13(g).
Complaint Paragraph 13(h)
Complaint paragraph 13(h) alleges that about June 25, 2013,
Respondent discharged its employee Stacey Williams. Re-
spondent admits this allegation. However, Respondent denies
that it discharged Williams because he assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in these activities, as alleged in complaint para-
graph 13(o). Respondent also denies the legal conclusion that
its discharge of Williams violated Section 8(a)(3) and (1) of the
Act.
On June 17, 2013, Operations Manager David Maxey saw
Stacey Williams, an operations lead employee, kissing another
employee, Luz Balderrama. From his position, about 100 feet
away, Maxey thought that Williams had kissed Balderrama on
the lips, but later learned from Balderrama that it had only been
on the cheek.
At Maxey’s request, Human Resources Manager Sara
Wright came to Maxey’s office for an interview with Williams.
Maxey first discussed some matters related to Williams’ job
duties and then brought up the kiss.
From this point on, two starkly different and irreconcilable
accounts emerge from conflicting testimony. Both versions
cannot be correct, and crediting the wrong one would work an
injustice by attributing improper conduct to a person or persons
innocent of it. However, in this instance, the various credibility
factors do not point in one direction, leaving room to doubt
whichever choice prevails.
The accounts differ not only on points of obvious relevance,
but also on incidental matters, that is, on points which would
have no obvious effect on the outcome and about which a wit-
ness would have little motivation to stretch the truth. For ex-
ample, the testimony of both Maxey and Wright suggests that
Maxey felt somewhat uncomfortable bringing up the issue of
the kiss and therefore Wright, sensing Maxey’s hesitation, be-
came more active in the conversation. In contrast, William’s
testimony indicates that Wright said little:
Q. Okay. So tell me what happened in that meeting.
Was there anybody else present?
A. Just those two.
Q. Okay.
A. David said, I saw you kiss Luz in the mouth. And I
said no—I said, no, that’s a lie. I said, that’s not true. And
I said, let me go—I said, let me—I said, hold on, let me go
get her.
Q. Did Ms. Wright say anything? Tell me everything
you recall about that conversation.
A. No, she was—actually, she was listening to what
David was saying, I think, at that particular time. I don’t
remember her saying anything.
Williams’ own testimony thus reveals that he was angry, but
the Respondent’s witnesses depict him as more agitated than
his own testimony suggests. Wright and Maxey testified that
Williams left the office without asking permission or receiving
permission. Williams’ testimony, quoted above, indicates a
kind of implied request when he said “hold on, let me go get
her.” Considering the testimony of all three witnesses, I be-
lieve it likely that Williams did say “let me go get her” and,
hearing no response countermanding that statement, left the
office to do it.
Maxey’s office is on a kind of mezzanine above the ware-
house floor. Williams stood at the top of the steps and called to
Balderrama, asking her to come up. According to Williams, as
she came up the stairs he went down them and returned to his
work station. However, Maxey and Wright contradict him.
The two managers testified that Williams returned to the of-
fice along with Balderrama and that Wright asked Balderrama
to wait outside while they finished their discussion with Wil-
liams. In their version, Williams came back into Maxey’s of-
fice and Wright shut the door, leaving Balderrama on the out-
side.
Balderrama’s testimony does not resolve this conflict. She
did not mention Williams calling to her but instead testified that
Manager Maxey came to her and asked her to come into his
office. Her testimony does not resolve whether Wright asked
her to stay outside because Balderrama did not remember
Wright being there:
Q. Was anybody else there?
A. I can’t remember.
Q. You don’t remember whether there was Sara
Wright there or somebody else?
A. I don’t want to tell you because I can’t remember. I
can’t remember who in there.
If events unfolded as described by Maxey and Wright, they
would have been dramatic enough to make a lasting impres-
sion. Wright testified that after she closed the office door, Wil-
liams asked her, “Are you blocking me in? Are you blocking
that door? Kind of in a threatening manner. . .”
Maxey’s testimony generally corroborates Wright’s. In their
version, Balderrama—whom Wright called “Cici”—was stand-
ing outside Maxey’s office door while Maxey, Wright and Wil-
liams were inside. Wright’s further testimony depicts Williams
as uncharacteristically angry and, in fact, nearly out of control:
Q. Okay. All right. So he was asking you if you were
blocking the door, and then what did, what did you do?
A. I was nervous. I was scared because he’s normally
a pretty soft-spoken guy and he was raising his voice at
me, he was looking down on me, and I just got out of the
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
way. I’m like--I felt physically threatened, and I was like,
I’m just going to back up.
Q. All right. You mentioned he was normally a
soft-spoken guy. So you had had conversations with him
before?
A. Yes.
Q. Okay. And this was not his normal speaking voice?
A. I don’t think so, no.
Q. Okay. So what happened after you stepped, after
you stepped aside? Was there any further conversation at
that time?
A. He again stormed out.
Q. Okay. He left the office again?
A. Yes.
Q. All right. Did he ask to leave?
A. No.
Q. Did you give him permission to leave?
A. No.
Q. Okay. Then did you talk to Cici?
A. Yes.
Q. All right. And she came into the office?
A. Yes.
If events took place as Wright testified, Balderrama would
have been standing outside the office door and therefore would
have seen Williams when he “stormed out.” It seems unlikely
that she would forget an event this dramatic. That Balderrama
recalled no such occurrence raises doubts about the reliability
of the narrative offered by Wright and Maxey.
Yet her testimony does not support Williams’ version, either,
because Williams testified that he called to Balderrama and
asked her to come to the office. By comparison, Balderrama
testified that Maxey came to get her. Rather than providing a
basis for resolving the conflicting stories, Balderrama’s testi-
mony adds still another version.
According to Wright and Maxey, they learned from Balder-
rama that Williams had not kissed her on the mouth but on the
cheek. They further testified that after Balderrama left, they
went to Williams’ work station and brought him back to Max-
ey’s office. Williams’ testimony makes no mention of such a
meeting.
The testimony of Wright and Maxey depicts Williams as be-
ing hostile and uncooperative at this second meeting. Accord-
ing to both Wright and Maxey, at one point during this meeting
Williams held up his hand in a gesture which Maxey described
as “talk to the hand.” Maxey testified that Wright “said, please
don’t address me in that manner. And, well, of course, he im-
mediately lowered his hand.”
Wright’s testimony generally corroborates Maxey’s. Alt-
hough Wright did not use the phrase “talk to the hand,” she did
testify that when Williams held up his hand she told him not to
act that way and he put his hand down.
Thus, both Maxey and Wright attribute to Williams a hand
gesture they considered offensive. According to the online
Urban Dictionary, “talk to the hand” is a phrase used to ignore
and disregard a comment: “When this phrase is used, it is cus-
tomary to raise your hand, palm facing out, and place it almost
touching your adversary’s face. This can make even the most
civil person raging mad.”7
Wright decided that Williams should receive a written warn-
ing. However, this “final warning,” dated June 20, 2013, does
not mention this “talk to the hand” gesture. The warning makes
no specific reference to this meeting which, according to Wil-
liams’ testimony, did not occur. The stated basis for the disci-
pline is the way in which, according to Wright and Maxey,
Williams acted in the previous meetings:
While being addressed, Stacey stormed out of the office
twice. He was unprofessional, responded in a hostile and ag-
gressive manner and repeatedly interrupted and spoke over both
David and Sara. At one point, while Sara was standing in the
office doorway, Stacey repeatedly, loudly and in a hostile man-
ner asked, “Are you blocking me in?” When Sara told him
“No, we just want to talk to you. Due to his aggressive nature
and fear of what he might do given his demeanor at the time,
Sara stepped out of the way and Stacey stormed out. This type
of behavior is unacceptable and will not be tolerated.
If Wright and Maxey had, in fact, met with Williams later in
the day, and if he had, in fact, made the offensive hand gesture,
the written warning likely would have mentioned it. The hand
gesture would have offended not merely in an abstract way but
also because it would have signaled Williams’ continuing and
persistent refusal to accept the instruction the managers were
giving him, that he should not kiss other employees. Wright’s
testimony indicates that Williams continued to refuse to accept
the message:
Q. Okay. Did you ask him if he understood what you
were telling him about the hugging and kissing?
A. Yes.
Q. What did he say?
A. He said, he said no.
Q. He said no. So did you ask him again if he under-
stood?
A. I asked him what do I need to clarify? Do you un-
derstand that we’re telling you from this point forward this
is what we expect? He said no. I said what don’t you un-
derstand? He said I heard you.
The June 20, 2013 “final warning” also does not mention this
expression of recalcitrance. Yet Wright, as a human resources
manager, would have been particularly concerned about com-
pliance with the Respondent’s sexual harassment policy. Both
the “talk to my hand” gesture and the responses attributed to
Williams by Wright, quoted above, would signify Williams’
continuing unwillingness to take the policy seriously. The
failure of the “final warning” to mention these matters is con-
sistent with the conclusion to be drawn from Williams’ testi-
mony, that such a meeting did not take place.8
On June 20, 2013, Maxey and Wright met with Williams to

7 The Urban Dictionary, http://www.urbandictionary.com/define
.php?term=talk+to+the+hand.
8 Wright did testify that she included the reference to hugging and
kissing in the “final warning” because, when she asked Williams if he
understood, “he said no but he said he heard me, just to make sure that
he understood that this was the expectation.”
OZBURN-HESSEY LOGISTICS, LLC 61
give him this “final warning.”9 According to Wright, they told
Williams that based on his conduct on June 17, that they were
going to issue a final warning for unprofessional conduct.”
Wright testified that Williams “got up, said he needed to get his
union rep, and stormed out.” Maxey’s testimony corroborates
Wright’s, including that Williams said that he “needed to go get
his union rep” and then left.
Williams’ description of the conversation differs slightly but
significantly. Rather than saying that he “needed to go get his
union rep.,” Williams testified that he requested to have Union
representation:
Q. All right.
A. And Sara said, sit down. She said, initially, we
called you in here for something minor. And I said, no,
ma’am, it’s never minor when somebody lies on you. And
she said to me, because of those—because of your actions
prior to this, we going to put you on final written. And
that’s when I asked for representation. I said, well,
that’s—I thought that was a bit—I thought that was a bit
steep for something that never occurred.
Q. Okay. Tell me what you said.
A. I said, I want—I said, can I have representation?
And she responded, she said, you don’t qualify for repre-
sentation. And I didn’t understand that happened—I was
like, well you—you know.
Q. Did you say anything?
A. I didn’t say—I just repeated the same thing.
Q. What did you repeat?
A. I, you know, I needed representation.
Q. And what happened next?
A. What happened next, she said, no. I got up. I went
back to my work.
Thus, in Williams’ account, he did not leave the room until
after his request for union representation had been denied
twice. After Williams left, Wright and Maxey waited for a few
minutes. To explain this delay, Wright stated that she and
Maxey were expecting Williams to return with someone to
represent him. However, Maxey testified that Wright immedi-
ately got up to bring Williams back but Maxey, concerned
about creating a disturbance in the warehouse, suggested that
they wait.
Maxey and Wright went looking for Williams and found him
at his work station. When they asked him to return to the con-
ference room, Williams said that he wanted union representa-
tion, but Wright denied his request. On cross-examination,
Wright testified, in part, as follows:
Q. And you asked him to come back to the office?
A. Both David and I asked him to come back to the
office.
Q. Okay.

9 This meeting likely took place in a first floor conference room.
One witness, Jennifer Smith, who was not present during the meeting,
testified that it took place in Maxey’s office. However, based on the
testimony of other witnesses, I believe it more likely that Wright, Max-
ey, and Williams met in the conference room.
A. To the conference room because that’s where we
had been.
Q. And that’s when he said he wanted a union rep.
A. He did at some point state he wanted a union rep.
Q. Okay. And you said he’s not entitled to one, he
doesn’t need a witness for disciplinary action.
A. Correct.
Based upon Wright’s testimony that “at some point” Wil-
liams requested a union representative and that she replied he
was not entitled to one, and based on Williams’ testimony that
he made this request when first informed of the disciplinary
action, before he left the conference room, I conclude that Wil-
liams requested and Wright denied his request for union repre-
sentation before he left the conference room.
Wright and Maxey asked Williams at least twice to return to
the conference room. Each time, he requested union represen-
tation, which was denied. Wright then told Williams to clock
out, presumably meaning to clock out and leave the warehouse.
From Wright’s testimony, the sequence of events is not en-
tirely clear. However, it appears that before Wright told him to
clock out, Williams returned to his computer to perform one of
his work duties, sending emails. Maxey became impatient. He
testified that he was “fixing to unplug his computer” but that
before he could do it, Williams shut the computer down.
Wright’s testimony also indicates that Maxey did not actually
pull the plug. However, Williams testified that Maxey did
carry through:
Q. Okay. What else were you doing after Ms. Wright
told you that you needed to clock out for the day?
A. I was gathering my goods, and I had one e-mail
that I had up that I needed to send a customer referring to
their shipment, letting them know when their shipment
was going to be on time and how it was going to move and
what the pro number was, et cetera. And I noticed that, af-
ter I’d told him I was collecting my goods. So I went over
to get ready to send this. I said, let me go ahead and send
this. And Mr. Maxey pulled the plug on the computer.
So—
Q. Pulled the plug out of the wall?
A. He pulled the plug out of the—
Q. Out of the outlet?
A. —the terminal block. It’s a little block right there
with about six plugs on it. The computer was in one of
them.
At some point, Williams beckoned to another employee, Jer-
ry Smith III, who was in the warehouse operating a vehicle
called a “cherry picker.” Smith III was active in the Union and
came over to act as Williams’ union representative. Smith III
testified as follows about what happened next:
Q. When you approached, could you hear what was
happening?
A. As I drove up, I heard some things going, and they
were saying something about Stacey to log off the com-
puter and come on back in the office.
Q. Who did you hear say that?
A. Sara Wright.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Did you hear what Mr. Williams’s response was?
A. At the time I drove up, Mr. Williams was saying
that, Jerry, they won’t allow me to have no representation.
And I later said, what’s going on, and Sara told me, it’s
none of your business; go back to work. And I later asked,
well, he’s asking for representation; is he being terminated
or something? And she said, it’s none of your business. He
don’t have no representation. Go back to work.
Q. What happened--who was telling you that it was
none of your business and go back to work?
A. Sara Wright.
Notwithstanding this rebuff, Smith III persisted in trying to
represent Williams. He further testified:
Q. After she told you a second time to go back to
work, what did you do?
A. I continued to ask what was going on, and she
told--because Stacey said you all are denying me my
rights, and she told Stacey, how about you just log off the
computer and go home for the rest of the day and take
your badge. And I said, well, he’s asked for representation,
Sara. And she said he don’t have no rights and it’s none of
your business. And I said, well, you know, that could be
charges against the Company for that. And she said she
don’t care; go back to work. So I went back to work.
Respondent previously had discharged Smith III unlawfully
but then had reinstated him to comply with a federal court or-
der. Moreover, Respondent later discharged Smith III again,
and he is one of the alleged discriminatees named in the com-
plaint. Therefore, he has an interest in the outcome of this pro-
ceeding, which I consider in assessing his credibility.
However, an email which Wright sent to her superior shortly
after the incident substantially corroborates the testimony of
Smith III. Wright’s June 20, 2013 email to Senior Employee
Relations Manager Shannon Miles states, in part, as follows:
At one point Jerry Smith approached me and asked if it was
a termination. I told him it was none of his business. He said
he was his union rep. I told him that for disciplinary actions,
Stacey is not entitled to a union rep. Jerry told me that he was
going to file a grievance. I told him to do whatever he wanted,
I don’t care what you do. I told him to walk away. Sheila at
one point walked up and was right near me, I told her to walk
away or something like that.
To the extent that this email, or Wright’s testimony, conflicts
with that of Smith III, I credit the latter. Thus, I find that Smith
III referred to charges against Respondent rather than a griev-
ance. There could not be a grievance because Respondent has
refused to recognize and bargain with the Union and there is no
collective-bargaining agreement.
Wright’s email stated that “Sheila at one point walked up
. . .” From the record, it is clear that Wright was referring to
Sheila Childress, an employee who did walk up during this
incident. She testified, in part, as follows:
Q. BY Ms. MOHNS:
Do you recall anything else that Mr. Williams was say-
ing at that time to Ms. Wright or Mr. Maxey?
A. Okay. He asked for, he asked for representation,
and he said I need representation, he said, because I didn’t
do anything wrong, you know.
Wright’s June 20, 2013 email to Shannon Miles also con-
firms that Williams repeatedly requested union representation:
We told him we needed him to come with us to the confer-
ence room. He said that he needed his union rep. I stated that
he was not entitled to a witness for disciplinary actions.
Notwithstanding conflicts in other parts of the record, on this
one point the testimony and documentary evidence cohere to
form a consistent and convincing picture: The dispute at Wil-
liams’ workstation centered on Williams’ insistence on the
presence of a union representative.
The Board had certified the Union as the employees’ exclu-
sive bargaining representative on May 24, 2013, less than a
month before Williams’ repeated requests for union representa-
tion. Wright’s repeated statements that Williams was not enti-
tled to union representation suggests a hostility to the Union
consistent with the animus manifested by the Respondent, and
found by the Board, in previous cases.
Other evidence indicates that Wright demonstrated hostility
in connection with Williams’ request for union representation.
Employee Jennifer Smith credibly testified as follows:
Q. Okay. Now, let’s go back. We’re back at the work
area, at Mr. Williams’ workstation. Were their voices
raised?
A. Well, Sara, she was kind of yelling at Stacey and
Stacey was just—kept saying that he didn’t do anything,
and they denied him union representation, and he couldn’t
understand why, and that’s all I really heard.
Smith’s testimony that Wright was “kind of” yelling must be
weighed along with that of another witness, Sheila Childress,
indicating that Maxey, Wright, and Williams were just talking.
The qualifier “kind of” leads me to conclude that Wright was
speaking in a raised tone indicating displeasure but which fell
short of actual yelling.
Additionally, the tenor of Wright’s June 20, 2013 email to
Miles suggests an effort to depict Williams in a bad light un-
warranted by the facts. This email stated that “David [Maxey]
asked why Stacey wanted to make a disturbance in the ware-
house.” However, credible evidence does not establish that
Williams was making a disturbance. To the contrary, Williams
was sitting at the computer trying to complete a job duty. Wil-
liams’ repeated requests for union representation do not consti-
tute a “disturbance.”
In sum, the animus Respondent displayed in previous cases
continued to brood over the workplace like an electrically
charged thundercloud. At one time, Williams had worn an
antiunion shirt provided by Respondent but his views had
changed. His requests for a union representative became the
lightning rod which attracted the bolt.
The hostility which Wright and Maxey focused on Williams
makes me doubt the objectivity and accuracy of their testimo-
ny. Although Williams also has an interest in the outcome of
this proceeding, it does not appear to have affected his testimo-
ny to the same degree. Therefore, whenever the testimony of
OZBURN-HESSEY LOGISTICS, LLC 63
Wright or Maxey conflicts with Williams, I credit that of Wil-
liams.
On June 20, 2013, after Williams had made persistent re-
quests for union representation, Wright and Maxey escorted
him from the building. Respondent then discharged him. The
June 25, 2013 discharge letter, signed by Senior Employee
Relations Manager Shannon Miles, stated as follows:
On Thursday, June 20, 2013, David Maxey and Sara Wright
tried to administer a write-up to you for prior unprofessional
conduct. You left the office, went to the warehouse floor and
refused to return. When repeatedly told to go home for the
day, you refused.
Based on your violation of OHL’s Conduct Guidelines—
Unprofessional, inappropriate conduct/insubordination, your
employment with OHL is terminated, effective June 25, 2013.
All benefits will be terminated at midnight. COBRA infor-
mation will be sent directly to you from the benefits center.
Enclosed is a document explaining what will happen to your
OHL benefits. Your last paycheck stub will be mailed to the
home address we have on file.
Before determining what analytical framework should be
used to evaluate the lawfulness of the discharge, I will consider
Respondent’s argument that Williams’ requests for union repre-
sentation do not constitute activity protected by the Act. Re-
spondent’s brief states, in part:
The allegation relating to Mr. Williams is premised on OHL
terminating Mr. Williams’ employment in retaliation for his
request for a Weingarten representative. One threshold issue
is whether any employees at OHL are entitled to a
Weingarten representative.
The brief goes on to argue that there has not been a valid cer-
tification of the Union and therefore no employees are entitled
to a union representative. However, Respondent’s argument
conflates two very different legal principles. One principle
concerns whether Section 7 of the Act protects an employee
who requests a representative’s presence. A separate issue is
whether an employer has a legal duty to honor the employee’s
request.
The Weingarten principle relates to the second issue and de-
fines the circumstances under which an employer must allow a
representative to be present. However, contrary to the Re-
spondent’s argument, this second issue is not a threshold to the
first. The protected nature of an employee’s request for a union
representative does not depend on whether the employer is
obliged to grant the request.
The principle advocated by Respondent would constrict em-
ployees’ right to request representation and, just as bad if not
worse, would introduce uncertainty into whether any particular
request enjoyed the Act’s protection. Consider this hypothet-
ical situation: An employee reasonably believes, at the start of
an interview with a supervisor, that the interview could lead to
disciplinary action. At this point, however, the supervisor
knows a fact which the employee does not; the supervisor al-
ready has decided to impose discipline and has only summoned
the employee to impose it.
In such a situation, the employer would have no legal duty to
allow a representative to be present. Under the principle ad-
vanced by Respondent, the Act would not protect the employ-
ee’s request for a representative even though the employee
acted reasonably in making it. Such a principle is not the law
and would be a very pernicious innovation if ever adopted.
Section 7 of the Act protects a number of rights, including
the right to “engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection. . .”
29 U.S.C. § 157 (italics added). An employee’s request for
another employee to be present is an effort to initiate concerted
activity for mutual aid or protection and clearly falls within the
Act’s protection.
Indeed, the present facts clearly demonstrate an attempt to
initiate such concerted activity. Williams beckoned to Smith
III, who came over to serve as Williams’ union representative.
Wright thwarted this concerted activity by telling Smith III to
leave, but that does not make Williams’ request and Smith’s
response any less concerted or any less protected.
Williams’ repeated requests for union representation also
constitute protected activity for another reason. These requests
furthered the Union’s efforts to defend its representative status
from the Respondent’s continuing unfair labor practices. The
violations, found in three previous cases and continuing in the
present one, pose a significant danger which the Union is trying
to counter.
The Board’s 8 decades of decisions describe and document
various techniques employers have used to cause employees to
become disaffected with and to reject union representation.
One common stratagem involves stalling tactics, delaying
recognition of a union until the union itself gives up or the em-
ployees abandon it. Such tactics involve making the union
appear ineffectual by refusing to deal with it. To counter such a
strategy, a union looks for ways to remind employees of its
continued involvement and to demonstrate that the employer,
not the union, bears responsibility for lack of change in work-
ing conditions.
Here, the Union provided employees with “Weingarten
cards” describing their right to have a union representative
present at certain times. Employees affixed these cards to the
back of their identification badges. By encouraging employees
to request union representation, the Union reminded the Re-
spondent that employees had indeed selected a labor organiza-
tion to represent them. Each time the Respondent refused a
request for union representation, even though the Union had
won the election, the denial demonstrated to employees which
side bore responsibility for frustrating the collective-bargaining
process.
Thus, Williams’ request for representation did more than ex-
press a desire for a steward’s presence. It also constituted ac-
tion in furtherance of the Union’s effort to assert its continuing
presence in the workplace, an effort the Union initiated by giv-
ing employees the “Weingarten cards.” Therefore, making a
request for representation clearly constituted protected union
activity. Likewise, Williams’ persistent requests for union
representation, even though management had consistently de-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nied them, conveyed both a protest of Respondent’s past unfair
labor practices and a firmness of resolve to make the Respond-
ent’s tactics unavailing.
The strength of Williams’ firmness of resolve, and therefore
its significance to Respondent, becomes obvious when consid-
ered along with the persistence of Respondent’s efforts to de-
feat the Union. The Board had first conducted a representation
election more than 3 years earlier, on March 16, 2010, and,
after the parties agreed to set that election aside, held a second
vote on July 27, 2011. In a May 2, 2013 decision, the Board
noted that the “Respondent’s antiunion campaign yielded two
[previous] Board decisions finding that the Respondent com-
mitted numerous violations of Section 8(a)(3) and (1) of the
Act from late 2009 to early 2010.” Ozburn-Hessey Logistics,
LLC, 359 NLRB 1025, 1025 (2013). In its May 2, 2013 deci-
sion, the Board resolved the challenged ballot issues, instructed
its Regional Director to open and count four of those chal-
lenged ballots and to issue an appropriate certification. Re-
gional Office staff issued a revised tally of ballots on May 14,
2013, and, 10 days later, the Union received certification as the
employees’ exclusive bargaining representative.
At this point, after more than 3 years of unfair labor practic-
es, three Board decisions and ancillary litigation in federal
court, Respondent was still treating the Union as if it did not
exist. Williams’ insistence that he wanted a union representa-
tive communicated more than simply a request for someone to
be present in an interview which might lead to discipline. By
persisting in asking for union representation, Williams was
taking a stand, communicating that “enough is enough.” It was
time for the Respondent to cease its campaign against the Un-
ion; it was time for the Respondent to recognize and deal with
the Union as the employees’ exclusive representative.
In Williams’ case, the Respondent’s long campaign had pro-
duced an effect opposite to that intended. At one point, Wil-
liams had worn the antiunion shirt the Respondent gave him,
but no longer. Now, he held fast with a convert’s zeal. His
repeated requests for a union representative expressed the sen-
timents of the other employees whose votes had resulted in the
Union’s certification. They would no longer be bullied.
Before considering the lawfulness of Williams’ discharge, I
must first decide which analytical framework is appropriate.
When the determinative factor concerns whether an employee’s
protected activities were considered during the decision to dis-
charge and affected that decision, the Wright Line framework
puts motivation under the microscope. However, when an em-
ployee is discharged for something he supposedly did while
engaged in protected activity, the Board examines the facts
under a different standard. See NLRB v. Burnup & Sims, 379
U.S. 21, 23 (1964); Keco Industries, 306 NLRB 15, 17 (1992);
cf. Primo Electric, 345 NLRB 1187 (2005). Sometimes, the
Board evaluates the discharge using both frameworks. See,
e.g., Waste Management of Arizona, 345 NLRB 1339 (2005).
Here, I believe it is appropriate to follow the Burnup & Sims
framework because Respondent discharged Williams for con-
duct during the course of protected activities, his repeated re-
quests for a union representative. This analytical process re-
quires that I determine whether the employee, while engaged in
the protected activity, also has engaged in misconduct suffi-
ciently serious as to forfeit the protection of the Act.
As the Board stated in Beverly Health & Rehabilitation Ser-
vices, 346 NLRB 1319 (2006), to determine whether an em-
ployee who is otherwise engaged in protected activity loses the
protection of the Act due to opprobrious conduct, the Board
considers the following factors:
(1) the place of the discussion;
(2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an
employer’s unfair labor practice.
Of course, before performing this analysis, the assertedly
“opprobrious conduct” must be identified. To identify the
claimed misconduct, I look to the reasons which Respondent
gave for the discharge and do not speculate about other possible
reasons which the Respondent might have asserted but did not.
For example, in the present case, Managers Wright and
Maxey described Williams as being loud and disruptive. Based
on the credited testimony of other witnesses, I find that he was
neither loud nor disruptive.10 However, regardless of my
findings on that point, I would not evaluate Williams’ supposed
loudness by applying the four-factor test because the Respond-
ent did not claim that it discharged Williams for that reason.
Rather, the June 25, 2013 discharge letter to Williams identified
the following as the unprofessional, inappropriate and insubor-
dinate conduct which resulted in the termination of Williams’
employment:
You left the office, went to the warehouse floor and refused to
return. When repeatedly told to go home for the day, you re-
fused.
The credited evidence does not support the letter’s claim
that, when told to go home, Williams refused. To the contrary,
Williams gathered his things and was in the process of turning
off his computer when Maxey pulled the plug.
However, the record does establish that Williams refused to
return to the conference room where he, Wright, and Maxey
had been talking. Williams refused because Wright and Maxey
denied his request for union representation. Indeed, Wright’s
June 20, 2013 email describing what happened to Miles includ-
ed the following:
We told him we needed him to come with us to the confer-
ence room. He said that he needed his union rep. I stated that
he was not entitled to a witness for disciplinary actions. Da-
vid asked him twice to come to the office and Stacey refused.

10 When asked whether Williams was “yelling or making a scene”
Jennifer Smith testified that he was not. Because she is an alleged
discriminatee in this case, Smith has some interest in the outcome
which arguably might affect her testimony. However, another witness,
Sheila Childress, did not. She remained employed by Respondent,
albeit on sick leave, at the time she gave testimony and she properly
may be considered a neutral witness. She testified that Wright, Maxey,
and Williams were “just talking” and not screaming. Based on the
credited testimony of Childress, corroborated by that of Jennifer Smith,
I find that Williams was not talking in a loud voice.
OZBURN-HESSEY LOGISTICS, LLC 65
In applying the four-factor test, I first consider the place of
the discussion, which was the warehouse floor. Some other
employees were witnesses. Accordingly, this faction militates
in favor of finding the conduct forfeited the Act’s protection.
The second factor concerns the subject matter of the discus-
sion. Williams’ request for a union representative constituted
part of that subject matter, as did the managers’ instruction that
Williams should return to the conference room. This factor
does not tilt the scales in either direction.
Although the third factor concerns “the nature of the out-
burst” there was no outburst. Williams simply persisted, firm-
ly, in asking for a union representative.
The fourth factor asks whether the employee’s “outburst”
was provoked in any way by the Respondent’s unfair labor
practices. It should be stressed that I do not consider the denial
of representation, in this instance, to be an unfair labor practice.
The managers were instructing Williams to attend a meeting
which did not involve the investigation of facts possibly leading
to discipline but rather the imposition of discipline already
decided.
However, the Respondent has a long history of unfair labor
practices involving employees in the bargaining unit, as found
in previous Board decisions. These unfair labor practices had
delayed the certification of the Union and now, notwithstanding
the recent certification, the Respondent still refused to recog-
nize the Union as the employees’ representative. This factor
heavily weighs in favor of finding that Williams’ actions were
not so opprobrious as to forfeit the protection of the Act, and I
so find.
In sum, I conclude that Respondent’s discharge of Williams
violated the Act.
Although I believe that the Burnup & Sims framework pro-
vides the more appropriate way to evaluate this allegation, in
case the Board should disagree, I will now analyze the facts
under the Wright Line framework.
Clearly, for reasons discussed above, Williams’ repeated re-
quests for a union representative constitute activity protected by
the Act. Since he made these requests to an admitted supervi-
sor and agent of Respondent, the record also establishes Re-
spondent’s knowledge.
Moreover, the management official who made the discharge
decision clearly knew about Williams’ protected activity. This
official, Senior Employee Relations Manager Miles, worked at
the Respondent’s headquarters in Brentwood, Tennessee, near
Nashville, and not at the Respondent’s facilities in Memphis.
Her knowledge of the relevant events came from Wright. One
of Wright’s emails to Miles, quoted above, informed her of
Williams’ request for a union representative.
Moreover, Miles also reviewed statements which Wright had
taken from witnesses to the relevant events. A number of these
statements refer to Williams requesting union representation.
Additionally, when Mills took the witness standard she ad-
mitted and, in fact, volunteered that Williams had requested
union representation. Miles gave the following testimony about
what happened on June 20, 2013, after Williams left the meet-
ing with Wright and Maxey and returned to his workstation:
Q. Do you know what happened after that?
A. They went, told him you need to come back up,
we’re not finished; we need to talk to you.
Q. Not finished with what?
A. With talking to him, giving him the disciplinary ac-
tion.
Q. Do you know how Mr. Williams reacted or how
was it reported to you that Mr. Williams reacted?
A. That he said that he wanted a union representative.
And he was told that he couldn’t have one.
The Respondent’s history of unfair labor practices directed
against the Charging Party Union amply establishes antiunion
animus. Therefore, I conclude that the General Counsel has
made an initial showing sufficient to prove that Williams’ pro-
tected activities were a substantial or motivating factor in the
decision to discharge him.
Respondent has not carried its rebuttal burden. The record
does not establish that other employees have been discharged
for similar conduct. In other respects, credible evidence does
not persuade me that Respondent would have taken the same
action in the absence of protected activity. Therefore, a Wright
Line analysis would also lead me to conclude that Respondent’s
discharge of Williams, alleged in complaint paragraph 13(h),
violated the Act, and I recommend that the Board so find.
Complaint Paragraph 13(i)
Complaint Paragraph 13(i) alleges that since about June
2013, Respondent has imposed onerous and rigorous terms and
conditions of employment on its employee Jennifer Smith by
assigning her to more arduous and less agreeable job assign-
ments. Respondent denies this allegation. It also denies that it
took this alleged action because Smith assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in these activities, as alleged in complaint para-
graph 13(o). Further, it denies that it took the alleged action
because Smith was named in an unfair labor practice charge
against the Respondent, because she gave affidavits and coop-
erated in Board investigations, or because she testified in prior
Board hearings, as alleged in complaint paragraph 13(a). Re-
spondent also denies that it thereby violated Sections 8(a)(4),
(3), and (1) of the Act.
As already noted, a number of individuals named Smith gave
testimony in this case. In this section of the decision, related to
complaint paragraph 13(i), I will refer to Jennifer Smith simply
as “Smith” but will give a more complete reference, if needed,
to others with that last name.
Smith began working for Respondent in 2008 and was active
for the Union from the outset of the organizing campaign which
began in 2009. She advocated the Union to other employees,
solicited employees to sign authorization cards, and wore at
work attire with the union name or insignia.
In Ozburn-Hessey Logistics, LLC, JD(ATL)-12-12 (May 15,
2012), the Honorable Robert A. Ringler found that the Re-
spondent violated the Act when it gave Smith a final warning.
Judge Ringler further found that Respondent’s asserted defense
was a pretext and that antiunion animus motivated its action.
The Board affirmed Judge Ringler’s determination for the rea-
sons given in his decision and then discussed additional cir-
cumstances which supported both the conclusion that the disci-
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pline was unlawful and the conclusion that Respondent’s as-
serted reason for the discipline was pretextual. In this regard,
the Board observed that it “appears that the Respondent was
using its antiharassment policy to target union supporters.”
Ozburn Hessey Logistics, 359 NLRB 1025, 1026. The Board
adopted Judge Ringler’s order that Respondent rescind and
expunge the discipline.
Smith also testified in an earlier case involving the Respond-
ent, but the judge dismissed allegations that Respondent had
violated Section 8(a)(3) and (4) of the Act by disciplining her.
The Board noted that no exceptions were taken to this determi-
nation. Ozburn-Hessey Logistics, 357 NLRB 1456, 1456, fn. 1.
In June 2013, Smith’s assigned duties involved checking
shipments before they left the warehouse to be sure the goods
being shipped matched the customer’s request. According to
Smith, this work as an “auditor” did not involve as much physi-
cal exertion as that of two other assignments, as “picker” and
“packer.” Those tasks involve retrieving goods for a shipment
and preparing the shipment. Before June 2013, Smith did have
to do such work about 4 or 5 days a month, but otherwise she
performed “auditor” duties.
According to Smith, after Respondent discharged Stacey
Williams, Operations Manager Maxey announced that he was
going to cross-train employees and assigned her to picker du-
ties. She further testified that she has not returned to auditor
duties since June 2013.
At the outset I must consider whether the change in job du-
ties, which did not affect Smith’s pay rate or working hours,
amounted to an “adverse employment action.” The General
Counsel argues that the auditor duties were lighter and that the
picker and packer work were more onerous. However, Opera-
tions Manager Maxey testified that he actually assigned Smith
to less strenuous work. Maxey explained that the prospect of
losing a customer spurred him to study how efficiency might be
improved, and this study took him to the warehouse floor to
observe employees at work:
I noticed Jennifer [Smith] was calling order pickers over there
to help her stack her pallets. So I called the team, I called the
group together. Well, actually, it was just Gladys and Jennifer
at that time because I’d already moved Sheila to doing small
part audits. And so I called them over there and I said, the
expectation is that you guys do—this is your job. This is what
you got to do. And Jennifer made a comment, well, some of
them boxes is too heavy. She couldn’t stack her pallets. And
I said, well, that’s a part of the job. I said, that’s the auditor’s
responsibility so you’re going to have to do that. I said, these
guys are supposed to be picking orders. They don’t have time
to stop and come over and help you do your job.
On persistent cross-examination by Respondent, Smith ulti-
mately admitted she had received help from other employees,
but appeared reluctant to admit that she had asked them for
help:
Q. When you were auditing, did you request the help
of pickers to help you stack pallets?
A. I’m going to be very honest. I did not restack those
pallets. I would get on those guys and tell them, look,
stack the stuff right so I don’t have to lift this stuff and
move it, and most of the time, they would bring that stuff
up stacked right so I wouldn’t have to move anything off
the pallet.
Q. Okay. But if there’s a large pallet, to audit it—let
me back up. In the Browne Halco account, there’s 100
percent audit, right? Every box that goes out gets audited,
right?
A. Correct.
Q. Okay. And so if you have a large pallet—
A. Uh-huh.
Q. —to get to the boxes that are stacked in the center
of the pallet, the boxes on the outside have to be taken off
and put on the floor, right?
A. I don’t audit like that. Ms. Dawson audits that
way. She takes all her stuff off the pallets I don’t.
Q. She does that herself.
A. She does that herself.
Q. Okay. And you would have pickers assist you with
that, right?
A. Well, we sometimes assist each other So maybe
every so often a picker will come up, but I was just like I
can’t stop them from working to come up here unless it’s
something wrong with the pallet. I will call them back up
and, you know, say, well, I don’t have this or I’m short on
this. Can you come up here.
Q. And sometimes you would say I need help unpack-
ing the pallet for lack of a better word, right?
A. Moving something off the pallet.
Q. Moving something off the pallet.
A. Okay.
Q. Okay. And then you would need the picker’s help
to stack it back up on the pallet, right?
A. Yeah. Yes, sir.
Thus, although Smith did not quite admit a practice of asking
other employees for help she did ultimately admit that she
needed their help to perform the auditor’s duties. Whether or
not she asked, the result was the same. Employees interrupted
their assigned duties to help her.
Smith’s responses on cross-examination lead me to believe
that on this particular issue, her testimony is not as reliable as
Maxey’s. Although previously, I did not credit Maxey’s testi-
mony concerning a different matter, I do credit his testimony
concerning the reassignment of Smith to other job duties. As
already noted, Smith’s admission on cross-examination does
support Maxey’s explanation as to why he reassigned her: She
could not perform all the auditor’s job duties by herself.
Although the government argues that Smith’s reassignment
resulted in more onerous duties, based on the following credit-
ed testimony of Maxey, I find that, if anything, the opposite
was true:
A. And then I moved Jennifer, because since she was
struggling with picking up heavy boxes, I moved her to
small part picking, which basically now instead of picking
a 40-pound case of silverware, now you’re picking a cou-
ple of dozen, because you’re picking small part orders that
are going to go FedEx Ground. So the orders are a lot
lighter and a lot smaller and easier to handle.
OZBURN-HESSEY LOGISTICS, LLC 67
Q. Is small items picking more or less strenuous than
auditing?
A. It should be less, to me.
The General Counsel’s brief, citing various testimony, ar-
gues that an auditor’s work is easier than a picker’s, but this
testimony does not, in my view, sufficiently reflect that differ-
ent pickers perform different tasks. Maxey credibly testified
that he assigned Smith to small parts picking. Based on his
testimony, I conclude that the job of small parts picker is not
appreciably more arduous than that of auditor.
In sum, the government bears the burden of establishing that
the alleged discriminatee has suffered an adverse employment
action, but has not carried that burden here. Finding no adverse
employment action, I cannot conclude that there has been an act
of discrimination.
Most certainly, when credited evidence establishes that an
employee has been assigned demonstrably more arduous tasks,
that change can constitute an adverse employment action and, if
unlawfully motivated, can constitute an unfair labor practice.
See, e.g., Chinese Daily News, 346 NLRB 906 (2006), in which
the Board found some changes lawful but others violative. In
the present instance, however, credited evidence only establish-
es that the duties were different, not more arduous.
Therefore, I recommend that the Board dismiss the unfair la-
bor practices relating to complaint paragraph 13(i).
Complaint Paragraph 13(j)
Complaint paragraph 13(j) alleges that about September
2013, Respondent required employees Glenora Whitley and Jill
McNeal to submit to drug and alcohol testing. Respondent
denies this allegation. It also denies the related allegations that
it did so for unlawful reasons and thereby violated the Act.
This allegation is perhaps the most puzzling in the com-
plaint. Employee Whitley testified that Operations Manager
Quinn Farmer sent her to another building for a random drug
test sometime in September 2013, that she took the drug test
and passed it, and then went back to work. The Respondent
denies that it performed any random drug testing at that time
and specifically denies that it tested Whitley. It called Farmer
to the witness stand and he denied ever sending Whitley for
such a drug test.
Respondent’s brief states, in part, that the claimed “test is
apparently a fiction of Ms. Whitley’s imagination. No record
of it exists. Moreover, Ms. Whitley’s story is not even logical.
She claims that she was instructed to go to HR. However, she
claims that rather than go to the HR office in the Hickory Hill
building where she worked, she went to a different HR office in
a different building down the road.”
The General Counsel’s brief argues that the Respondent
should have called to the witness stand the human resources
coordinator, Megan Ferrone, who supposedly did the drug test
and that its failure to call Ferrone gives rises to an inference
that she would have confirmed doing the drug test. However,
the brief fails to explain why the drug test would have consti-
tuted an adverse employment action even if it had occurred.
Other evidence establishes that when the Respondent per-
forms a drug test, the employee is “on the clock” and being
paid for the time. Moreover, Whitley testified that the drug test
proved negative and that she returned to work. Where is the
harm?
Certainly, there can be circumstances in which singling out
union supporters for drug tests could constitute discriminatory
treatment which violated the Act, but there is no evidence that
Whitley was treated any differently from any other employee.
Whitley testified that she was given a random drug test. The
word random itself indicates that there was no discrimination
based on any factor other than chance. The General Counsel
bears the burden of proving that an assertedly random selection
system had been rigged to single out union supporters but did
not carry that burden here.
Moreover, based on my observations of the witnesses, I do
not credit Whitley’s version but instead credit Farmer’s testi-
mony that he never sent Whitley for a drug test. Because I do
not credit her testimony, I do not find that she ever was sent for
a drug test. Therefore, I will not draw an adverse inference
from the fact that Ferrone did not take the witness stand.
Complaint paragraph 13(j) also alleges that about September
2013, Respondent required employee Jill McNeal to submit to
drug and alcohol testing. No evidence supports this allegation
and I find it without merit.
In sum, I recommend that the Board dismiss all of the allega-
tions related to complaint paragraph 13(j).
Complaint Paragraph 13(k)
Complaint paragraph 13(k) alleges that about September 6,
2013, Respondent issued a final warning to employee Jerry
Smith. Respondent admits this allegation. However, it denies
that it did so because Smith assisted the Union and engaged in
concerted activities, and to discourage employees from engag-
ing in these activities, as alleged in complaint paragraph 13(o).
It also denies that it took this action because Smith cooperated
and gave affidavits in Board investigations, was named in an
unfair labor practice charge and testified in previous Board
hearings, as alleged in complaint paragraph 13(p). It further
denies that its issuance of the final warning to Smith violated
the Act.
The warning concerned Smith’s conduct on August 30,
2013, when he placed union-related material on a table in a
break room following an employee meeting. My findings
about what took place on that occasion are set forth above, in
detail, in connection with complaint paragraph 7(b). This warn-
ing states, in part:
On August 30, 2013, following a pre-shift meeting in the
break room, Jerry Smith distributed literature while on the
clock during working time. When the Director of Operations
confirmed that he was on working time and informed him that
he was not permitted by OHL policy to distribute literature on
working time, Mr. Smith responded that he did not care and
continued to distribute the literature. Mr. Smith’s actions
were both insubordinate and a violation of OHL’s solicita-
tion/distribution policy.
Thus, the warning states two grounds for the discipline: (1)
Smith III was insubordinate and (2) violated the Respondent’s
no solicitation/no distribution policy. From the warning’s lan-
guage, I conclude that the putative insubordination consisted of
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two parts: (1) Smith III saying he did not care in response to the
director of operations’ statement that OHL policy did not per-
mit the distribution of literature on working time and (2) Smith
continuing to distribute literature after the director of operations
made this statement.
Contrary to the language on the warning, for the reasons dis-
cussed above, I have found that Smith III did not say that he did
not care, but just explained that he was only dropping the mate-
rials off. However, although the analysis of evidence related to
complaint paragraph 7(b) resulted in a finding that Smith III did
not make the “did not care” statement attributed to him, addi-
tional factual findings are necessary now.
The warning’s claim that Smith III “continued to distribute
the literature” after the director of operations stated that OHL
policy did not permit him to distribute literature on working
time presents one and possibly two unresolved factual ques-
tions. First, I must determine whether the director of operations
made such a statement about OHL policy. Second, if the cred-
ited evidence establishes that he did, I must determine whether
Smith III continued to “distribute literature” after that point.
As to the first question, Smith III quite clearly testified that
Director of Operations Smith did not make such a statement.
Smith III testified, in part, as follows:
Q. And there was no--your testimony is there was no
discussion of the solicitation rules between you and Mr.
Smith and Mr. Maxey--
A. No.
* * *
Q. Okay. I think this is my last question about August
30th. This is in the break room with Phil Smith. And you
say he did not remind you or tell you anything about how
you were violating the no solicitation policy. Was that
your testimony?
A. Yes.
Q. Then what did you then--why was there any dis-
cussion about repercussions?
A. That’s a good question. Because that’s what he
told me when I left.
Equally forceful was the contrary testimony of Director of
Operations Smith, quoted above in connection with complaint
paragraph 7(b). Moreover, on the day of the incident, August
30, 2013, Director of Operations Smith made a note about what
had happened in the break room. His note included the follow-
ing:
Jerry Smith came back into the breakroom with several USW
“Our Union” pamphlets and placed them on 1 breakroom ta-
ble. As he did this I asked Jerry if he was on the clock. Jerry
stated “Yes”. I then told Jerry he could not do this (place
pamphlets) while on the clock as it was a violation of the
OHL “No Solicitation Policy” and a violation of Federal Law.
Jerry continued to place some of the pamphlets on the other 3
breakroom tables and I again told him he could not do this.
Jerry stated “I don’t care I want the employees to have more
current information”.
This nearly contemporaneous note is consistent with and
supports Director of Operations Smith’s testimony. Operations
Manager Maxey also wrote an August 30, 2013 note about
what had happened that day. Maxey’s note did not indicate that
Director of Operations Smith specifically mentioned the OHL
Solicitation Policy or Federal Law. It simply stated that “Phil
told him that he could not do this while on the clock.” Maxey
gave testimony to the same effect.
A witness, Nathaniel Jones recalled that Director of Opera-
tions Phil Smith was angry but could shed no light on exactly
what Smith had said. Nonetheless, Jones’ credited testimony
that the director of operations was angry provides an important
clue. In the analysis related to complaint paragraph 7(b),
above, Jones’ testimony about Phil Smith’s anger had weighed
in favor of the conclusion that Phil Smith indeed had made the
“repercussions” remark attributed to him by Smith III. Now,
Jones’ testimony about Phil Smith’s anger again becomes im-
portant to resolving a conflict in the testimony, but this time it
leads me to credit the testimony of Phil Smith rather than Smith
III.
Anger prompts words and becomes apparent through them.
If the director of operations did not express his anger by telling
Smith III that distributing the literature was prohibited, it is
difficult to imagine what he would have said in this context.
Unless the anger were so great it resulted in cyclical sputtering,
Phil Smith would not simply ask Smith III, over and over, if he
were on the clock. Instead, it would prompt words of prohibi-
tion.
Moreover, as Respondent’s counsel asked Smith III on cross-
examination, if Phil Smith had not stated that the distribution of
literature was prohibited, why would he have said there would
be repercussions? I find that the director of operations did in-
form Smith III that the distribution of literature was prohibited
during working time. Whether Phil Smith specifically said that
it was against federal law is another, more difficult question.
The extent of his anger may have affected his recollection.
However, it is highly likely that the director of operations
said something consistent with what Maxey stated: “Phil told
him that he could not do this while on the clock.” I so find.11
Having found that the director of operations did make a
statement about distribution being prohibited at that time, I
must determine whether Smith III continued to “distribute liter-
ature” after being informed or reminded of the prohibition. The
word “distribution” might suggest the handing out of literature
to other employees but that did not happen. Rather, the “distri-
bution” consisted of putting the materials on tables.
Placing the materials on the tables did not take long, but it
did require some time. Although Smith III denied that the di-
rector of operations said anything about OHL policy, it does
indicate that he continued to set out the materials after he
acknowledged that he was on the clock:

11 Thus, I have credited Smith III’s testimony that he did not make
the “I don’t care” remark but I have not credited his denial that the
director of operations told him that distributing literature during work-
ing time was prohibited. The Board has long held that a fact finder’s
failure to credit part of a witness’ testimony does not preclude crediting
other parts of his testimony. Service Employees Local 1877 (American
Building Maintenance), 345 NLRB 161 fn. 1 (2005), citing TNT
Skypak, Inc., 312 NLRB 1009 fn. 1 (1993); NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950).
OZBURN-HESSEY LOGISTICS, LLC 69
Q. After you made that response, did Phil Smith make
any other comments?
A. Well, he continued to watch me as I put the books
on the tables, and then as I was walking out the door, he
was behind me and he said, there’s going to be some re-
percussions behind this. (Italics added.)
Smith III’s testimony that the director of operations contin-
ued to watch him as he placed the books on the tables is con-
sistent with Phil Smith’s account. His nearly contemporaneous
August 30, 2013 note stated that Smith III had placed material
on one table before being told that it was against policy and
then put literature on the other three tables after receiving the
information.
Although I found that Smith III did not make the “I don’t
care” remark which Phil Smith attributed to him, he did disobey
the latter’s instructions. Knowingly failing to follow supervi-
sor’s order constitutes insubordination whether accompanied by
defiant words or not. Therefore, I conclude that Smith III was,
in fact, insubordinate. Whether it was lawful to discipline
Smith III for this insubordination—ignoring the supervisor’s
order to follow the Respondent’s no-distribution policy—
depends on the lawfulness of the policy itself.
Before examining this issue, it may be noted for clarity that
the September 6, 2013 final warning disciplined Smith III both
for failing to follow the Respondent’s no-distribution policy
and for the insubordinate act of failing to obey the manager’s
instruction to follow that policy. Smith III violated the policy
itself the first time he placed the literature on a table, but that
first “distribution” did not constitute insubordination because
Smith III had not yet been ordered to follow the policy. When
Smith III went ahead and placed literature on the remaining
tables after the director of operations told him not to do so, he
violated the no-distribution policy itself and also committed
insubordination.
It may also be noted that, for reasons discussed above, a
Wright Line analysis would not be appropriate. Here, Re-
spondent admitted disciplined Smith III for activity which the
Act may protect. Its motivation is not in issue. Rather, the
issue concerns whether Smith III’s distribution of union-related
materials really was protected. If so, then the next question is
whether Smith III engaged in any misconduct sufficient to for-
feit the protection of the Act.
In the absence of egregious of opprobrious misconduct suffi-
cient to forfeit the Act’s protection, a determination that the Act
protected Smith III’s distribution of union literature on this
occasion would result in the conclusion that Respondent unlaw-
fully disciplined him. If the Act indeed protected the conduct
under the specific circumstances which existed, a policy pro-
hibiting that conduct under those circumstances would be inva-
lid. Similarly, the lawfulness of a penalty for disobeying an
order to follow the policy depends on the lawfulness of the
policy under the specific circumstances.
In general, an employer lawfully may prohibit employees
from distributing materials during working time. Thus, the
Respondent’s policy is lawful on its face. However, it would
not be lawful for the Respondent to apply this facially lawful
policy in a manner which treated union-related literature less
favorably. For example, if an employer did not discipline an
employee who, during his working time, distributed flyers for a
veteran group’s fish fry, but did discipline an employee for
distributing a union-related leaflet during his working time, the
policy would be invalid as applied and the discipline would be
unlawful.
Although the Respondent’s no distribution policy is facially
lawful, the government argues that Respondent disparately
enforced it. The General Counsel’s brief states, in part, as fol-
lows:
Smith credibly testified that the long-standing practice in the
Browne-Halco account has been that employees are permitted
to go to their lockers to put away items, retrieve items from
their lockers, get coffee or water to drink on the work floor or
get items from the vending machines. (Tr. 89-93). Smith tes-
tified that this practice pre-dated Maxey’s assignment to
Browne-Halco as manager and continued after August 30,
2013. (Tr. 208-209). While Maxey first claimed that em-
ployees were required to go directly to their work area after
the pre-shift meeting and he had never witnessed employees
engaged in other activities, he later admitted that he did not
prevent employees from going to their lockers or performing
other non-work tasks in the few minutes after the pre-shift
meetings. (Tr. 2237-2238). Thus, while the employees were
on the clock, they were permitted for a short period of time to
engage in non-work activities. Respondent nonetheless
sought to prohibit Jerry Smith from taking less than one mi-
nute to place some Union materials on table in the break room
during this period when non-work tasks are permitted. By al-
lowing certain non-work tasks but excluding others, specifi-
cally Union organizing activities, Respondent is discriminato-
rily enforcing its rules concerning what activities are permit-
ted in the minutes following the pre-shift meeting. Employer
may not lawfully permit non-work activities during working
time while prohibiting only union activities. See The Register
Guard, 351 NLRB 1110 (2007) (Disparate treatment of activ-
ities of a similar character are prohibited where certain activi-
ties are prohibited because of their Section 7 protected status).
The General Counsel’s argument rests on a subtle but conse-
quential enlargement of the “disparately applied” principle. As
usually understood, a disparate application of the “no distribu-
tion during working time” rule would involve allowing em-
ployees to distribute certain times of literature during working
time but prohibiting them from distributing Union-related liter-
ature during working time. The General Counsel’s brief does
not cite any instance in which the Respondent has allowed the
distribution of materials and my reading of the record found
none. Thus, applying the customary analysis, I conclude that
the government has not established any disparate application of
the no-distribution rule.
However, the government argues for a somewhat different
approach. Its brief cites testimony that Respondent allowed
employees to retrieve items from their lockers and to get coffee
or water on the way to their work stations, and argues that such
instances are proof of disparate application. But the Respond-
ent’s no distribution rule does not prohibit such activities,
which do not involve distribution of anything. Perhaps allow-
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing employees to make a quick stop at their lockers would bend
or even break some other work rule not at issue here, but it does
not affect the application of the no distribution rule.
In effect, the General Counsel is equating a prohibition on
distribution of literature during working time with any other
rule forbidding employees from straying from their assigned
tasks while on the clock. The government’s argument assumes
that getting a cup of coffee or a bottle of water is “activity of a
similar character” to distribution of literature because both
activities take time away from work duties. Certainly, it is true
that labor lawyers and human resources professionals some-
times explain the reason for a no-solicitation rule by repeating
an old aphorism: “Working time is for work.” However, there
are other considerations.
When an employee is on the clock and the employer is pay-
ing for the employee’s time, the employer doubtlessly has the
right to decide which activities it will allow to further produc-
tivity. Letting an employee stop to get a bottle of water certain-
ly contributes at least indirectly to efficiency. Indeed, the pre-
sent record suggests that some work areas are hot, making the
availability of water important to workplace safety and health.
Therefore, allowing employees to be paid for the time spent
obtaining water reasonably would be in the employer’s interest,
as well as the employees’. However, no similar benefit in
workplace health, safety, and comfort derives from allowing
employees to distribute any kind of reading matter while being
paid to work.
Determining whether a no-distribution rule has been dispar-
ately applied has been a rather straightforward matter involving
an examination of what materials an employer has allowed to
be distributed and what materials it has not. The analysis thus
has entailed a comparison of apples to apples. The General
Counsel now argues, in effect, for a comparison of apples to
apples, oranges, bananas, and kiwi fruit. Expanding the analy-
sis in this way would invite continuing arguments over what
fruits are similar enough to apples to be included in the compar-
ison and which are not.
In sum, I conclude that the appropriate disparate application
test focuses on whether the Respondent has previously allowed
employees to distribute any kind of literature other than union-
related during their working time. The record does not estab-
lish that the Respondent has permitted the distribution of any
literature at all during working time, so I conclude that the rule
has not been disparately applied or enforced.
Because the no-distribution rule was lawful both facially and
as applied, the Act did not protect Smith III when he flouted it.
Therefore, Respondent acted lawfully when it issued a final
warning to Smith III for violating its no-distribution rule and
for disregarding an instruction to follow it.
Accordingly, I recommend that the Board dismiss the unfair
labor practice allegations related to complaint paragraph 13(k).
Complaint Paragraph 13(l)
Complaint paragraph 13(l) alleges that about September 18,
2013, Respondent issued a final warning to its employee Jen-
nifer Smith. Respondent’s answer admits this allegation, but
denies that it issued this warning because Smith assisted the
Union and engaged in concerted activities, and to discourage
employees from engaging in these activities, as alleged in com-
plaint paragraph 13(o). It also denies that it took this action
because Smith cooperated and gave affidavits in Board investi-
gations, was named in an unfair labor practice charge, and gave
testimony in Board proceedings, as alleged in complaint para-
graph 13(q). Further, Respondent denies that its action violated
the Act.
Notwithstanding that Respondent’s answer admits that it is-
sued a final warning to Jennifer Smith, the record indicates that
the warning was a “written warning,” one step below a “final
warning” and I so find. Human Resources Manager Wright
testified that Respondent didn’t issue a final warning because
there was no witness to the actual event. The warning itself
bears the designation “Written Warning,” and states, in perti-
nent part, as follows:
On Friday, August 30, Jennifer and Luz Balderrama were in
the restroom. Jennifer touched Luz with her pointed finger
three times.
Later the same day, Luz and Gladys Dawson were in the re-
stroom when Jennifer came in. Jennifer admitted to Gladys at
that time that she had touched Luz earlier that day and
touched Gladys’ shoulder with a pointed finger three times to
demonstrate how she had touched Luz.
Jennifer is not to make any unwanted physical contact with
any co-worker. Any further incidents or violations of policy
will lead to additional discipline, up to and including termina-
tion.
The discipline resulted from an encounter between employ-
ees Jennifer Smith and Luz Balderamma in a restroom during
working time. Respondent conducted an investigation after
Balderrama reported to management that Smith had solicited
her to sign a union card and, when she refused, pushed Balder-
rama three times. Balderrama, who speaks English as a second
language, testified as follows:
Q. Okay. And was there a time in September of 2013,
when Jennifer Smith came into the restroom, the bath-
room, when you were there?
A. Yes.
Q. Okay. And when she came into the bathroom, what
did she say to you?
A. She—every time she say I need sign the card for
union card because she say if you sign the card, this pro-
tect my job, right. She say you no lose your job and every-
body respect to you, but I don’t want it because I’m in
there for OHL, right.
Q. Okay.
A. And she start saying you need sign the card, and
you need sign the card. I said leave me alone, but she very
upset at me, and she push me right here hard. She push
three times.
Q. In the chest?
A. Uh-huh.
For several reasons, I believe Balderrama’s testimony is reli-
able. At the time she testified, she no longer was employed by
OZBURN-HESSEY LOGISTICS, LLC 71
Respondent and is not alleged to be a discriminatee. Thus, she
had nothing to gain through her testimony. Additionally, she
admitted without hesitation that she sometimes had been late to
work. This admission reinforced my impression that she was
trying to testify accurately to the best of her recollection.
Moreover, as will be discussed further below, the testimony of
another witness, Gladys Dawson, provides at least indirect
support for Balderrama’s version.
However, I do not have as much confidence in the reliability
of Jennifer Smith’s testimony. As part of its investigation, the
human resources department asked Smith to fill out a question-
naire describing what happened. Smith’s responses raise doubts
about her credibility.
The questionnaire asked Smith not only about the encounter
with Balderrama described above, but also about a later inci-
dent in the restroom that same day. Specifically, the question-
naire asked Smith if she had a second discussion with Balder-
rama in the restroom that day. Smith denied such an encounter
both in responding to the questionnaire and later in her testimo-
ny. However, both Dawson and Balderrama testified that there
was such an encounter.
Even more significant was Smith’s response to a final ques-
tion, which asked “Is there anything else we need to know
about this situation?” Smith, referring to Balderamma as
“C’C” (Ceci, Balderamma’s nickname), wrote the following:
Yes. C’C has previously lied on me just because she didn’t
like the way I said sumthing [sic] to her so she then go tell
everybody about it and they tell her well you shouldn’t let her
tell you anything, so I don’t know what the problem is. I’m
still not mad that she made up sumthing to try to get me wrote
up, cause I’m sure this won’t be the last time because she has
done this several times.
These words create the impression that Smith was referring
to a specific incident in which Balderrama made a false state-
ment about Smith to others. The victim of a lie, particularly a
lie told to more than one coworker, typically experiences strong
emotions, including hurt and anger. Such feelings create indel-
ible memories, making the incident quite difficult to forget.
The human resources department gave Smith a second ques-
tionnaire to obtain additional information. It asked: “In your
questionnaire, you stated that ‘Cici has previously lied on me.’
Please describe any such incidents that have occurred and pro-
vide as many details as possible. Attach additional paper if
necessary.” Smith’s one-sentence answer did not require addi-
tional pages:
I can’t recall the specific at this time, but there were false alle-
gations made.
Smith’s answer casts doubt on her credibility. Because ac-
cusing someone of lying is so serious, a responsible person
does not make such a charge without articulable reasons.
Moreover, as noted above, the target of a lie does not easily
forget the circumstances. Considering Smith’s claim that
Balderrama “has done this several times,” it particularly strains
credulity that Smith could provide no details.
Additionally, employee Gladys Dawson credibly testified
that Smith later admitted that she had touched Balderrama. In
making this admission, Smith touched Dawson to illustrate her
claim that she had only tapped Balderrama lightly. However,
on the questionnaires, Smith had unequivocally denied making
physical contact with Balderrama or anyone else. Believing
Dawson, I must conclude that Smith’s questionnaire responses
were less than forthright.
Because of these concerns about Smith’s testimony, and be-
cause I believe Balderrama was a reliable witness for reasons
discussed above, I credit Balderrama’s testimony rather than
Smith’s. Based on that credited testimony, I find that Smith did
push Balderrama three times in the restroom and further find
that this battery was unprovoked. Crediting Balderrama, I find
that it was sufficiently forceful to cause a bruise.
The credited testimony establishes that Smith pushed Balder-
rama after Balderamma refused to sign a union card. Because
Smith was disciplined for misconduct during the course of ar-
guably protected activity, an analysis under the Burnup & Sims
framework rather than the Wright Line appears to be more ap-
propriate. I conclude not only that the Respondent had an hon-
est belief that Smith had engaged in misconduct, but also that
Smith had, in fact, done so.
Under the circumstances, I conclude that this misconduct
was sufficiently opprobrious to forfeit the protection of the Act.
In reaching that conclusion, I note an employer’s responsibility
to take steps to prevent workplace violence and its potential
liability for failing to do so. Because Smith had asked Balder-
rama to sign a union card and pushed her after she refused, it
may also be noted that the Act protects an employee’s right to
refrain from union activity.
Were to evaluate the facts under a Wright Line framework, I
would conclude that the government had made the initial show-
ing necessary to shift the burden of proceeding to the Respond-
ent. Smith had engaged in extensive protected activity, includ-
ing giving testimony in previous Board cases, an activity obvi-
ously known to Respondent. Moreover, Senior Employee Re-
lations Manager Miles admitted knowing about Smith’s pro-
tected activities. Previous Board decisions also establish the
presence of antiunion animus.
However, I would conclude that Respondent had met its bur-
den of showing that it would have imposed the same discipline
in any event. In reaching that conclusion, I note that the Re-
spondent did not discharge Smith or even give her a final warn-
ing, but only issued a written warning. The record does not
indicate that Respondent treated Smith more harshly than it
would have treated any other employee who had pushed anoth-
er hard enough to raise a bruise. Moreover, legitimate business
concerns, its potential liability if it failed to maintain a work-
place free of violence, created a strong reason to take discipli-
nary action.
For all these reasons, I recommend that the Board dismiss
the allegations related to complaint paragraph 13(l).
Complaint Paragraph 13(m)
Complaint paragraph 13(m) alleges that about October 2,
2013, Respondent discharged its employee Jerry Smith. Re-
spondent’s answer admits this allegation. However, Respond-
ent denies that it discharged Smith because he assisted the Un-
ion and engaged in concerted activities, and to discourage em-
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees from engaging in these activities, as alleged in com-
plaint paragraph 13(o). It also denies that it terminated Smith’s
employment because he cooperated and gave affidavits in pre-
vious Board investigations, was named in an unfair labor prac-
tice charge against Respondent, and testified in previous Board
hearings, as alleged in complaint paragraph 13(r). Respondent
also denies that its discharge of Smith violated the Act.
These allegations pertain to events at Respondent’s ware-
house at 5540 East Holmes Road, in Memphis, sometimes
called the “5540 building.” The warehouse manager, Jim
Steele, reported to the human resources department that he had
seen employees leaving the building during working time.
Also, the human resources department received a report from
Operations Manager Billy Smith about employees coming to
work late.
The record suggests that Respondent had a policy that em-
ployees could not leave the building after clocking in unless
they were on break time or had a supervisor’s permission, but
that some employees were not following it. During a preshift
meeting sometime during the first part of September 2013,
Operations Manager David Maxey reminded employees of this
policy. Human Resources Manager Sara Wright attended this
meeting.
Although the record leaves some uncertainty about the exact
date of this meeting, Jerry Smith III described a meeting on
September 13, 2013 at which both Wright and Operations
Manager Maxey spoke. The testimony of Smith III differs
from that of Maxey and Wright in two respects. Both Maxey
and Wright testified that Maxey was not announcing a new
policy but, according to Smith III, Maxey said that “nobody’s
no longer to come in and punch the time clock and go out and
park their cars.” However, even if Maxey did say “no longer,”
those words could simply mean that Respondent had previously
not enforced its existing policy but was going to do so in the
future.
Additionally, although Smith III quoted Maxey as saying
that employees who had clocked in would not be allowed to go
out and “park their cars,” both Maxey and Wright testified that
the prohibition was not limited to employees going to their cars.
Considering the length of time between the employee meeting
and Smith III’s testimony, I do not believe Smith III was trying
to quote Maxey exactly but was summarizing the gist of what
Maxey had said. Smith III further testified as follows:
Q. Okay. And when he made that statement, what
happened?
A. Employees was asking questions about how they
done it in previous times, and she said that from now
on--that’s when Sara came in and said from now on, you
can receive disciplinary actions for doing that.
Q. What happened then?
A. And that was the end of it.
From context, I conclude that Smith III was referring to Hu-
man Resources Manager Sara Wright, whose testimony sug-
gests that Maxey did more of the talking. However, Wright’s
testimony does indicate that at one point during the meeting,
she stressed the discipline which could result from a failure to
follow the policy:
Q. Okay. Did you say anything in that meeting about,
about discipline?
A. We talked about that it was theft of time and was
grounds for immediate termination.
Wright also quoted Maxey as telling employees that “if you
clock in and leave the building after work time has started, that
it’s theft of time. It’s grounds for termination.” Based on the
testimony of Smith III, Wright, and Maxey, I find that employ-
ees received clear notice that discipline could result from fail-
ure to follow the policy.
Later in September 2013, Wright reviewed video recordings
made by a security camera outside the warehouse to determine
whether employees were following the policy. She saw that a
number of employees had left after the shift starting time and
then had returned. However, the video recordings did not re-
veal whether any particular employee had received a supervi-
sor’s permission before leaving the warehouse. Wright asked
employees identified in the video to complete questionnaires.
At least 9 employees12 received such questionnaires, each
drafted to refer to a specific date or dates when, according to
the video recording, the employee had left the warehouse after
the shift began. A questionnaire completed by Jerry Smith
included the following questions, with his handwritten answers
shown below in italics:
1. Did you leave the building after you clocked in on
Wednesday, September 18?
No!
a. If so, how long were you outside the building?
I did not
b. If so, why did you leave the building?
I did not
c. Did you have permission to leave the building? If
so, from whom?
N/A
However, on the witness stand, Smith III admitted that he
had, in fact, left the building after clocking in on September 18,
2013. Smith III testified, in part, as follows:
Q. BY MR. HEARNE: Wednesday, September 18th is
what the question says. Do you remember leaving the
building at some time in the morning on Wednesday, Sep-
tember 18th?
A. Yes.
Q. Do you remember about when it was that you went
out of the building?
A. It was after the pre-shift meeting.
Q. Why did you leave the building?
A. To turn in a questionnaire that I had received.
The question had asked “Did you leave the building after
you clocked in on Wednesday, September 18?” Smith III’s
“no” answer clearly was incorrect. He attributed his incorrect

12 The record includes questionnaires completed by the following
employees: Jerry Smith (2 questionnaires), Mike Murrell, Tammy
Wade, Scott Watkins (2 questionnaires), Kenneth Wright, Alexis Ray,
Dennis McLarty, Jennifer Smith, and Tammy Wade.
OZBURN-HESSEY LOGISTICS, LLC 73
answer to his understanding of the question: “It was asking did
I come in and clock in and go move my car and park it.”
Considering the clear wording of the question, Smith’s ex-
planation is not particularly convincing. It becomes even less
convincing considering that both Wright and Maxey denied
telling employees, at the preshift meeting, that the rule only
prohibited an employee, after clocking in, from going back to
his or her car. In crediting their testimony, I note that there
would be no reason for Respondent to have limited its rule to
that situation. Any unexcused absence similarly would amount
to what Wright called a “theft of time.”
Moreover, Smith III’s credibility suffers from another prob-
lem. Smith testified that he had been granted permission to
leave the building on September 18, 2013:
Q. When you left the building that day, did you let
anyone know where you were going?
A. Yes, I did.
Q. Who did you talk to?
A. David Maxey.
However, Maxey testified that he was not in Memphis on
September 18, 2013. Respondent introduced a hotel receipt
supporting Maxey’s testimony that for most of that week, in-
cluding on September 18, he was in Brentwood, Tennessee, the
location of Respondent’s corporate headquarters.
The General Counsel’s brief argues that Smith III testified
“that he had the permission of either Maxey or lead Scott Wat-
kins to leave the building that day.” However, the testimony
quoted above makes no mention of Scott Watkins. The General
Counsel’s brief does cite another portion of Smith III’s testi-
mony, but that testimony itself falls short of the General Coun-
sel’s claim:
Q. On the 18th, did you--when you left the building,
after the morning meeting, did you have permission?
A. Yes, I did.
Q. Now, had you ever, prior to this time, had to leave
the building but informed the lead what you were doing?
A. I can’t recall.
Q. Okay. If you had to leave the building and Mr.
Maxey wasn’t there, who would you talk to?
A. The lead.
Q. That’s because there was no supervisor? Mr. Max-
ey was the only--he was the only supervisor. He was a
manager, but he was the only supervisor for Browne Hal-
co?
A. Correct.
In this testimony, Smith III makes a vague claim that he had
permission to leave the building on September 18, but he cer-
tainly does not identify who gave him permission. Smith’s
further testimony that if he had to leave when Maxey wasn’t
there he would ask the lead hardly establishes that on this par-
ticular day he did ask a lead. Moreover, Smith III’s testimony
that he would go to the lead in Maxey’s absence cannot be
interpreted to mean that he obtained permission from the lead
on September 18 because Smith III already had testified, a little
earlier in the same direct examination, that he had obtained
Maxey’s permission on this date.
Perhaps I have overlooked some portion of Smith III’s testi-
mony on which the General Counsel relies, but I have found
nothing in the transcript that would support the assertion in
General Counsel’s brief that Smith III “stated . . .that he had the
permission of either Maxey or lead Scott Watkins to leave the
building that day.” Rather, I conclude that Smith III testified
unequivocally that he had Maxey’s permission and that testi-
mony is incorrect because Maxey wasn’t even in Memphis that
day.
Another questionnaire asked Smith whether he left the build-
ing after clocking in on September 11, 2013. He replied “No.”
The video recordings established that Smith III had, in fact, left
the building after the start of shift on September 11 and 18,
2013, resulting in Wright’s conclusion that Smith had made
false statements on both questionnaires. Wright discussed the
matter with Senior Employee Relations Manager Shannon
Miles, who decided to discharge Smith III.
Respondent discharged Smith III on October 2, 2013, in a
meeting attended by Smith III, Wright, and Director of Opera-
tions Phil Smith. Smith III testified that when Wright told him
that he was being discharged for making false statements, he
tried to explain:
Q. When she explained the reason, did you say any-
thing in response to what Ms. Wright had said?
A. I said that’s not true. I didn’t falsify any records.
Q. Did she say what you falsified?
A. She explained that I falsified something on the
questionnaire about the answers that I had given, and she
said like on September 6th. And I told her that you asked
the question, did I clock in and leave the building, and I
proceeded to tell her I didn’t, but she cut me off and said,
we’re not going to get into all of that; we’ve made our de-
cision and you’re no longer employed here at OHL.
Q. And did you--were you trying to explain?
A. Yes, I was.
Q. Did she let you explain?
A. I told her it was a misunderstanding, and she cut
me off and said we’re not going to get into that.
Wright testified that Smith III was not offering an explana-
tion concerning the incorrect statements in response to the
questions about leaving the building on September 11 and 18,
2013, but was trying to discuss his leaving the building on Sep-
tember 6, 2013, which was not an issue. Respondent was not
discharging Smith III for any statement related to his absence
from the building on September 6, 2013. Smith’s own testimo-
ny, indicates that he was trying to discuss events on September
6, 2013.
Wright’s testimony is also consistent with Smith’s termina-
tion notice. It stated, in part, as follows:
While conducting an investigation into employees leaving the
building after being clocked in and prior to scheduled break
times, Jerry was given a questionnaire regarding leaving the
building after clocking in. He lied on the questionnaire by
claiming that he did not leave the building after clocking in,
even though he was seen on video doing so on more than one
occasion. He also lied about whether he had left the building,
after clocking in, prior to September 18, 2013. Jerry’s em-
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment is being terminated for violation of the Code of
Conduct #29, which states “Failure to cooperate with an in-
ternal investigation, including failure to be forthright, open or
truthful; withholding information or evidence concerning mat-
ters under review or investigation; fabricating information or
evidence or conspiring with another to do so.
Wright also testified that Respondent discharged Smith III
not because he violated the rule about leaving the warehouse
after clocking in, but because he lied in answering the ques-
tionnaires. This stated reason is consistent with the discharge
notice.
Respondent contends that it could not have discharged all the
employees who had violated the rule which prohibited leaving
the building after clocking in because should it do so, there
would not be enough workers to operate the warehouse. Con-
sidering that Respondent was trying to improve service to ad-
dress its customer’s complaints, it presumably would not wish
to harm the quality of that service further by discharging em-
ployees it needed.
Additionally, Respondent had an important reason to protect
the integrity of its internal investigations. Just as the Board
depends on truthful testimony in making decisions, so does the
Respondent’s human resources department. Respondent must
take actions in a number of situations which have serious con-
sequences for the affected employees as well as the potential
for legal liability. Should Respondent discipline or discharge
an employee because it received false information, great harm
results.
The General Counsel argues that Respondent’s stated reason
for discharging Smith III is pretextual and argues that Wright’s
not allowing him to say more during the discharge interview
demonstrates that Respondent was just going through the mo-
tions of an investigation to conceal an unlawful motive. As
discussed above, I conclude that Smith III was trying to discuss
what happened on September 6 rather than September 18, and
that this was not relevant to the discharge decision.
Similarly, the government argues that Respondent did not
conduct a thorough investigation and thereby demonstrated that
the stated reason for discharging Smith III was pretextual.
Thus, the General Counsel’s brief states that Wright “made no
attempt to speak with Smith or seek any clarification of his
answers” and argues that the “evidence demonstrates that Re-
spondent did not attempt to perform even a rudimentary inves-
tigation concerning the answers Smith provided. . .”
Contrary to the General Counsel’s argument, I conclude that
Respondent’s investigation was not so perfunctory as to justify
an inference of pretext. Smith III had been informed, by Max-
ey and Wright at the preshift meeting, that leaving the building
without permission without clocking in could lead to his dis-
charge. He thus had some incentive to deny doing so when he
completed the questionnaires.
Moreover, when asked a clear and unequivocal question—
did he leave the building after clocking in on September 18—
he gave an answer which was equally clear and unequivocal.
And false.
Smith III gave false answers to subsequent questions asking
how long he was gone from the building and why he had left.
The questionnaire then asked whether he had permission to be
gone and Smith wrote “N/A.”
The evidence before Wright, which included the video re-
cording showing Smith III outside after clocking in and his
denials on the questionnaires, demonstrated that his answers
were not true. Wright also knew that Smith III was aware that
violating the rule could result in discharge, so he had some
reason to answer untruthfully. In these circumstances, I con-
clude that Wright’s decision not to investigate further does not
suggest the telltale haste of pretext.
In reaching this conclusion, I consider the evidence before
Wright when she and Miles made the discharge decision. It
may be noted, however, that it would not have helped Smith III
if he had told Wright the same thing he said on the witness
stand, that Maxey had given him permission to go outside.
Wright either would know, or could easily have ascertained,
that Maxey wasn’t even in Memphis on that day.
The General Counsel also argues that Respondent treated
another employee more favorably, by allowing him to complete
a second questionnaire, and that such disparate treatment re-
veals pretext. However, the employee, Scott Watkins, had
become concerned that he answered the questionnaire incor-
rectly and approached management. Wright testified as follows
on cross-examination:
Q. It’s a questionnaire for Scott Watkins to be returned to HR
no later than 9 a.m. on Monday, September 30th, the same as
page 18. Did you leave the building after you clocked in on
Friday, September 6th? The exact same question that was
asked on page 18 to which he answered no. Now, there’s a
second questionnaire that says I can’t remember what hap-
pened on that day. So Mr. Watkins was given a chance to fill
out a second questionnaire to explain his answers, wasn’t he?
A. He was and let me tell you why. Because before he turned
it in, he repeated told both Mr. Phil Smith and Lisa Johnson
that he couldn’t remember, he couldn’t remember, he couldn’t
remember, and so he was upset about that certainly and he
approached them and said, look, I don’t remember that day.
By voluntarily coming to management to express concern
about the accuracy of his answers, Watkins had demonstrated
candor. Moreover, Respondent did not penalize employees
who answered questions by saying “I do not remember.” Re-
spondent assumed that might well be true in any given case. In
these circumstances, I conclude that Watkins’ situation was not
similar to that of Smith III and will draw no inference from the
disparate treatment.
Evaluating the evidence using the Wright Line framework, I
conclude that the General Counsel has proven the three ele-
ments necessary to make an initial showing. Smith III engaged
in extensive protected activity, including testifying in previous
Board proceedings. The Respondent, a party to those proceed-
ings, clearly had knowledge of his protected activities. There-
fore, I conclude that the General Counsel has satisfied the re-
quirements necessary to raise an inference that Smith III’s pro-
tected activity was a substantial or motivating factor.
Board precedent holds that if the General Counsel carries
that initial burden, the burden then shifts to the employer to
prove, as an affirmative defense, that it would have taken the
OZBURN-HESSEY LOGISTICS, LLC 75
same action even in the absence of the protected activity.
Willamette Industries, 341 NLRB 560, 562 (2004).
This explanation might suggest that by carrying its initial
burden, the government has established a conclusive presump-
tion that protected activity is a substantial or motivating factor.
Stated another way, the language might imply that once the
initial burden has been carried, a respondent is not allowed to
challenge or disprove the conclusion that protected activity
entered into the decision, but may only argue that the protected
activity did not affect the outcome. However, I do not believe
Wright Line requires a respondent to choke down such a “moti-
vating factor” conclusion without having the chance to chew it
and, if possible, spit it out.
For one thing, the word “initial” in the phrases “General
Counsel’s initial burden” and “General Counsel’s initial show-
ing” suggests that the “motivating factor” conclusion is prelim-
inary and tentative and that the issue remains in play. Moreo-
ver, to carry its initial burden, the government does not have to
show a causal connection between the antiunion animus and the
decision to discipline or discharge.
To the contrary, the Board has expressly stated that meeting
the initial burden “does not require the General Counsel to
make some additional showing of particularized motivating
animus towards the employee’s own protected activity or to
further demonstrate some additional, undefined “nexus” be-
tween the employee’s protected activity and the adverse ac-
tion.” Libertyville Toyota, 360 NLRB 1298 (2014), citing En-
cino Hospital Medical Center, 360 NLRB 335, 336 fn. 6
(2014); Mesker Door, Inc., 357 NLRB 591, 592 fn. 5 (2011).
When causation is the issue to be decided, the absence of ev-
idence of a connection between the animus and the discipline
decision carries significant probative weight. It would be odd if
a respondent had no opportunity to argue that regardless of
whatever animus had been found elsewhere in the company,
such animus did not enter into or affect this particular employ-
ment decision. In other words, it seems reasonable that at some
stage of the analysis an employer may be heard to argue that
any existing animus was not a motivating factor here. Such an
argument is qualitatively different from the type of argument
described in the Wright Line explanation, an argument which
assumes that animus was indeed present and active in the deci-
sion making but was too feeble to do harm.
Because this issue of connection is not considered in deter-
mining whether the General Counsel has satisfied the initial
three elements, if the resulting inference or presumption that
protected activity was a substantial or motivating factor were
conclusive, and not subject to rebuttal, then a respondent would
have no opportunity to argue the nexus issue. Therefore, I con-
clude that the inference or presumption is rebuttable.
Here, a number of different factors, considered together,
convince me that the protected activities of Smith III were not,
in fact, a substantial or motivating factor in Respondent’s deci-
sion to discharge him. First, no evidence suggests that the un-
ion or protected concerted activities of any employee motivated
Respondent’s decision to tighten enforcement of its existing
policy that after an employee clocked in, the employee was not
allowed to go outside without a supervisor’s permission. Ra-
ther, customer dissatisfaction caused the Respondent to take
action.
Second, no evidence suggests that Smith III’s Union and
other protected activity played any part in Respondent’s deci-
sion to have him complete questionnaires. Rather, when Hu-
man Resources Manager Wright reviewed video recordings to
determine which employees had left the building after start of
shift, the recording showed that Smith III was one of those
employees.
Third, based on the video recordings, Respondent asked at
least 8 other employees to fill out similar questionnaires.
Fourth, in determining that Smith III had given false answers
on his questionnaire, the Respondent relied on objective evi-
dence, the video recordings. At hearing, Smith admitted he
had, in fact, left the building after clocking in on September 11
and 18, 2013, even though he had given a “no” answer on the
questionnaires.
Fifth, Respondent discharged Smith III pursuant to an estab-
lished written policy which it cited in the discharge notice. The
government has not questioned the bonafides of this policy or
argued that Respondent acted inconsistently with it when Re-
spondent discharged him.
Sixth, Respondent had not only a legitimate but also a com-
pelling interest in assuring that employees gave truthful an-
swers during any internal investigation because actions based
on those answers could harm innocent employees if the answers
were untrue. Likewise, because Respondent’s employment
actions potentially could result in legal liability, it had a strong
business interest in assuring that employees responded truthful-
ly. Moreover, had Respondent failed to take action, it poten-
tially would undermine the effectiveness of the policy in the
future.
Seventh, for the reasons discussed above, I have concluded
that Respondent did not enforce its policy disparately.
Eighth, there is no evidence, other than the inference arising
from the General Counsel’s initial showing, that Respondent’s
managers considered Smith III’s protected activities either in
selecting him to receive questionnaires or in deciding to dis-
charge him. Similarly, there is no evidence, apart from that
inference, which would link either the protected activities of
other employees or Respondent’s antiunion animus with the
decisions to investigate and discharge him.
For all these reasons, I conclude, notwithstanding the infer-
ence or presumption resulting from the General Counsel’s ini-
tial showing, that protected activity was not a substantial or
motivating factor in Respondent’s decision to discharge Smith.
Stated another way, I conclude that the record rebuts the pre-
sumption.
This finding, that Respondent did make the decision to dis-
charge Smith III in the absence of knowledge of any protected
activity, necessarily answers the question of whether Respond-
ent would have made the same decision even in the absence of
protected activity. However, were I to reach this issue under
the more typical Wright Line analysis, the same factors would
led me to conclude that Respondent had carried its rebuttal
burden.
Accordingly, I recommend that the Board dismiss the allega-
tions related to complaint paragraph 13(m).
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Complaint Paragraph 13(n)
Complaint paragraph 13(n) alleges that about November 1,
2013, Respondent discharged its employee Nathaniel Jones.
The Respondent admits this allegation but denies that it did so
because Jones had assisted the Union and engaged in concerted
activities and to discourage employees from engaging in such
activities, as alleged in complaint paragraph 13(o). It also de-
nies that the discharge violated the Act.
Jones had minimal protected activities and the record does
not establish that he ever signed a union card. He discussed the
Union with some other employees and at an employee meeting
sometime in the Spring of 2013, asked Director of Operations
Phil Smith a question about the Union. Jones mentioned that
when he worked for another company, when a union began an
organizing drive the employer granted a raise. According to
Jones, Smith replied that it was too late for that. Jones also
remarked that Respondent was paying its lawyers a lot of mon-
ey but not giving anything to the employees, to which Smith
replied it was too late for that.
On June 14, 2013, Jones received a final warning for failing
to wear a seatbelt while operating a forklift. The evidence
clearly establishes that Jones did fail to wear a seatbelt on this
occasion and the government does not allege the discipline to
be violative.13
As discussed above in connection with complaint paragraph
13(c), Respondent has a policy requiring employees to wear
seatbelts while operating equipment such as forklifts, and even
has disciplined a supervisor for violating the policy. The final
warning issued to Jones on June 14, 2013, stated, in part, “Na-
thaniel acknowledged this and immediately put his belt on.
This is a very serious violation of OHL Safety Policy.”
On October 16, 2013, Jones left his forklift unattended while
it was running. The Respondent conducted a thorough investi-
gation, including asking Jones to write out a statement concern-
ing what had happened. The one paragraph statement, signed
by Jones and dated October 17, 2013, reads in its entirety as
follows:
On Wed. 10-16 after 4 pm I parked in the main aisle between
door 18 & 19. I was talking at row 18 about cardboard issues
with some of the pickers. I saw Phil and Tammy walk past
the lift. After I walked back to the lift I was told after asking
several people that Phil had taken the key because the lift was
idling and not turned off.
From the record, I conclude that “Phil and Tammy” refer to
Director of Operations Phil Smith and to Lead Tammy Wade.
Additionally, Wade’s testimony indicates that she, rather than
Smith, actually had removed the key from the forklift.
Jones’ statement makes clear that he did not dispute the core
fact, that he had left the forklift running rather than shutting it
down. There is some conflict in the testimony concerning how
far Jones went when he walked away from the forklift, but even

13 The General Counsel’s brief indicates that Jones received the final
warning on June 21, 2013. However, the warning itself is dated June
14, 2013. The record does not indicate that Jones received any further
discipline on June 21, 2013.
by Jones’ account, he was not close enough to it to have noticed
that someone had turned it off and taken the key.
Senior Employee Relations Manager Shannon Miles, whose
office is at corporate headquarters in Brentwood, Tennessee,
rather than in Memphis, made the decision to discharge Jones
after reviewing a number of documents pertaining to this inci-
dent, including Jones’ statement set forth above. The docu-
ments also included notes made by Human Resources Manager
Lisa Johnson of her interview with lead Tammy Wade. These
notes indicated that after Jones stepped off the forklift, it began
to roll, and only then did he set the brake.14 On the witness
stand, Miles explained the decision as follows:
Q. Now, after reviewing the documents that I just
showed you, did you come to a conclusion as to what had
occurred?
A. Yes.
Q. What was that conclusion?
A. That Nate Jones had acted in an unsafe manner by
leaving his vehicle unattended and running for several
minutes. And this was a safety violation. He had already
left it without the parking brake on and it started rolling
away. Then he—which is another safety violation. Then
he left it unattended running and wasn’t even looking at it
or trying to make sure that it was okay, because he didn’t
even notice when Tammy, the lead, came up and turned it
off and took the keys.
Q. Now, Ms. Miles, did you take into account previ-
ous discipline that had been issued to Nate Jones?
A. Yes. He had already been issued a final warning
for a seatbelt violation.
Q. Did you make a decision as to what would happen
to his employment?
A. Termination.
Miles also testified that she was not aware that Jones had en-
gaged in protected activity. Based on my observations of the
witnesses, I credit that testimony.
Analyzing the facts using the Wright Line framework, I first
consider whether the General Counsel has established Jones
engaged in protected activity. Jones discussed the Union with
other employees and also asked a manager questions about the
Union at an employee meeting. I conclude that the Act protects
both of these activities.
In arguing that Jones engaged in protected activity, the Gen-
eral Counsel’s brief also states that “during the investigation of
Jerry Smith’s actions in the break room on August 30, Jones
refused to corroborate Phil Smith when asked to do so.” This
statement refers to events discussed above in connection with
complaint paragraph 13(k).
Jones had been in the break room at the time of the encoun-
ter between Jerry Smith and Director of Operations Phil Smith,

14 The General Counsel did not object to the introduction of John-
son’s notes of her interview with Wade and that document was received
into evidence without restriction. The General Counsel did raise hear-
say objections to some other documents reviewed by Miles, and I re-
ceived those into evidence only to establish what information Miles
relied on in deciding to discharge Jones, not for the truth of the matters
asserted in them. I consider them here only for that limited purpose.
OZBURN-HESSEY LOGISTICS, LLC 77
who later asked Jones what he had witnessed. According to
Jones, Phil Smith “was asking me wasn’t I in the break room;
didn’t I hear all that was being said? I said, yeah, what you
said. And he was like, like he wanted me to say more but there
was nothing more that I could say other than what I heard him
say.”
Jones’ testimony does not suggest that he was refusing to
cooperate in the Respondent’s investigation of Jerry Smith.
Rather, it indicates that he did cooperate, recounting all that he
remembered. Even assuming that Jones did not say what Phil
Smith hoped he would say, the General Counsel does not ex-
plain why such a failure would constitute protected activity. I
conclude that it was not.
However, Jones’ discussion of the Union with other employ-
ees and asking questions about the union campaign at the em-
ployee meeting do constitute protected activity sufficient to
establish the first of the initial Wright Line elements. Because
Jones asked the questions in a meeting attended by manage-
ment, and indeed posed them to a manager, the Respondent
clearly had knowledge of this protected activity. Therefore, the
record also establishes the second initial Wright Line element.
Credible evidence does not establish any direct connection
between Jones’ protected activity and his discharge and I find
none. However, as discussed above, the General Counsel does
not have to prove such a nexus to carry the government’s initial
burden.
Unfair labor practice violations found by the Board in previ-
ous recent cases, and which I have found in this case, constitute
sufficient proof of animus to satisfy the last of the three initial
requirements. Therefore, I conclude that the government has
made an initial showing sufficient to create a presumption or
raise an inference that protected activity was a substantial or
motivating factor in Respondent’s decision to discharge Jones.
However, my observations of Senior Employee Relations
Director Miles as she testified have led me to believe and credit
her testimony. As discussed above, based on that testimony, I
have found that Miles made the decision to discharge Jones and
that, when she made this decision, she was not aware that Jones
had engaged in any protected activity.
Apart from demeanor, other factors lend plausibility to these
conclusions. Jones’ protected activity was rather minimal, and
the part of it known to anyone in management took place at an
employee meeting in the spring, thus 4 or more months before
Jones’ discharge. Although Jones advocated a pay raise for
employees, his remarks did not identify him as a mover and
shaker in the Union’s organizing campaign, which he was not.
In other words, Jones’ questions at this one meeting were not
the sort of protected activity most likely to be reported all the
way up to Miles, who worked at the corporate headquarters
rather than at the warehouses in Memphis.
Moreover, Miles had placed increased emphasis on safety,
resulting in greater enforcement of the rules for operating fork-
lifts and similar equipment. Jones admittedly had committed a
rather serious safety violation. These factors are consistent
with my decision to credit Miles’ testimony. However, there is
another factor which may reflect on her credibility.
As discussed below, the record establishes that on several
occasions, the Respondent imposed a lesser level of discipline
when other employees committed safety infractions which ap-
pear to be at least as serious as Jones’ violation. Here, I con-
sider whether that evidence reflects on the truthfulness or relia-
bility of Miles’ testimony.
From that testimony, I infer that Miles was trying to get
tougher on safety violations but that, from her office at corpo-
rate headquarters, it was difficult to assure that managers and
supervisors in Memphis followed her lead. From the record, it
would appear that she did not make all of the disciplinary deci-
sions and that she may not have been aware of some until well
after the fact. For example, when asked about warnings issued
to two employees, Cedric Williams and Chris Mason, she testi-
fied “I didn’t recommend these.”
Because of Miles’ lack of involvement in these instances of
discipline, I do not view them as inconsistent with my conclu-
sion that Miles testified truthfully and reliably. Therefore, I
credit her testimony. Based on that testimony, I find that Jones’
protected activity, of which Miles was unaware, was not, in
fact, a substantial or motivating factor in her decision to dis-
charge him.
The General Counsel’s brief argues that Respondent had
condoned similar incidents but singled out Jones for discipline.
It also argues that Respondent treated Jones more severely than
it has treated other employees who committed similar infrac-
tions of its safety rules. First, I will consider the condonation
issue.
The government’s argument that Respondent allowed other
employees to get away with conduct of equal seriousness to
what Jones did relies on Jones’ testimony. In the following
portion of the General Counsel’s brief, the acronym “PIT”
stands for “Power Industrial Trucks,” a general designation for
forklifts, reach lifts, and similar equipment:
While Jones admitted that some PIT training documents spec-
ify that forklifts should be turned of when they were unat-
tended, he testified that he observed other employees engage
in this same conduct and that it was condoned within the
warehouse. (Tr. 242–243, 257, 260–261). Jones further testi-
fied that, when employees have left their forklift unattended
and running to use the restroom, they were not able to observe
their forklift while inside the restroom whereas he was able to
see his forklift from where he was standing speaking with
employees. (Tr. 269–270)
Jones’ testimony that he saw others engaged in similar con-
duct might be more credible if he had not also testified that he
was able to see his forklift from where he was standing, a claim
undermined by other evidence, including other parts of Jones’
own testimony. As noted above, if Jones truly had been able to
see his forklift, he likely would have noticed when someone
walked up, turned it off, and took the key.
By claiming that he was able to see the forklift, Jones was
asserting, in effect, that he was in a position to take control of it
should it start to move. However, he was so oblivious to the
forklift that, after discovering that the key was missing, he had
to go around asking other people what had happened.
Additionally, I do not credit Jones’ self-serving testimony
about the Respondent condoning other, similar violations of its
policy. Jones claimed that employees would put the forklift in
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
park without turning it off and “run in the bathroom and come
back out and get on.” Certainly, it is possible that some em-
ployee, in a moment of particular urgency, took the chance that
an accident of vehicular nature would be less likely than a per-
sonal one. However, I greatly doubt that such instances were as
common as Jones suggests.
Jones testified that he saw an employee, Bobby Hill, fail to
turn off his forklift before going to the restroom but that testi-
mony does not establish that any supervisor saw or became
aware of it:
Q. Okay. So when you saw Bobby Hill leaving his lift
running when he went into the bathroom, did you ever re-
port that to anyone in OHL management?
A. No, I didn’t know it was a violation. I didn’t know
it was something to be reported.
Q. I’m sorry. Can you describe again the area where
Bobby Hill did this? Where in the warehouse is it?
A. We had a bathroom in the front of the warehouse in
the office area. We had one in the back of the warehouse.
Q. And where did Bobby Hill leave his forklift run-
ning while he went to the bathroom?
A. I would say in the back.
Q. The far end away from the office?
A. Yes.
Thus, Jones admitted that he did not inform any supervisor
of this incident and that it took place far from the office. No
evidence establishes that a manager or supervisor knew of this
incident.
In sum, the General Counsel’s condonation argument largely
rests on Jones’ testimony, which I do not consider very credible
or persuasive. However, the government bases its disparate
treatment argument on Respondent’s personnel records. Some
of these documents do describe instances in which employees
received lesser discipline for conduct as serious as that of Jones
when he left his forklift without turning it off.
For example, on March 20, 2013, two employees, Chris Ma-
son and Cedric Williams, received discipline for violations at
least as serious as leaving a forklift unattended, but only re-
ceived written warnings. The warning issued to Mason de-
scribed the reason for the discipline as follows:
On 3–20–13 Chris was operating a forklift and needed to pass
a reach truck that was parked in a drive aisle by Cedric Wil-
liams. Cedric wouldn’t move the reach truck so Chris got on
the reach truck and started driving it down aisle 52. Cedric
got on the fork lift and reversed it to block Chris from coming
up aisle 54. Cedric got off the forklift and proceeded to chase
Chris along the Walmart batch line on foot while trying to
unplug the battery from the connector on the reach truck.
Chris then dismounted the reach truck while it was still in mo-
tion.
The warning referred to this conduct as “horseplay,” but no
matter how characterized, it certainly would appear to pose as
much risk as Jones’ act of leaving an idling forklift unattended.
The warning did not indicate whether either Williams or Mason
had previously been disciplined for a safety violation, as Jones
had been. However, the first discipline received by Jones for a
safety violation—failing to wear a seatbelt while operating a
forklift—had been a final warning, which itself was a greater
level of discipline than the written warnings issued to Williams
and Mason.
Senior Employee Relations Miles did not explain how Re-
spondent determined the level of discipline given to Williams
and Mason. The manager who signed the warnings, Mike
Nichols, did not testify and the record otherwise does not ex-
plain why they did not receive discipline greater than written
warnings.
Disciplinary records also establish another instance when
Respondent punished an employee less severely than Jones for
conduct which appears to have been equally serious. On De-
cember 11, 2012, Marcus Crockett received a written warning
for the manner in which he was operating a stand-up reach
truck, or “SUR.” The warning stated:
On 12/10/12 Marcus Crockett was operating a SUR doing re-
plenishments. The lead Deborah Jones instructed Marcus in
regards to the safety guidelines of operating a SUR. I addi-
tionally instructed Marcus to follow all safety procedures
when operating the SUR which includes blocking off the
aisles with cones and ensuring he does not have a hood on his
head while operating the lift. On 3 separate occasions after
the initial conversation the employee was witnessed operating
the SUR with his hood on, once at 10:13 pm, 11:27 pm &
again at 12:05 am.
The discipline issued for these violations, fell below dis-
charge and below a final warning. Senior Employee Relations
Director Miles, when asked about these violations on cross-
examination, said “I would have taken a lot stronger action than
that.”
Documentary evidence suggests that the customary disci-
pline for operating machinery while wearing a hood was some-
thing less than a final warning before April 3, 2013, when Re-
spondent increased the penalty. However, the December 12,
2012 warning indicates that Crockett violated the rule three
times after being instructed not to do so. The record does not
establish why Respondent did not impose discipline greater
than a written warning.
On February 2, 2013, Crockett received a verbal warning for
insubordination. Handwritten changes on the warning notice
indicate that it had been prepared as a final warning but then
was revised to make it only a verbal warning. The record does
not establish the reason for this change.
On April 13, 2013, Crockett received a verbal warning for
failing to block an aisle so that pedestrians would not use it
while he performed a certain task which, presumably, entailed
such blocking. The warning notice stated “This is a direct safe-
ty violation.” Miles also confirmed that earlier, Crockett had
received a warning for a similar safety infraction. However,
the record does not explain why this further violation did not
result in greater discipline than a written warning.
On July 12, 2013, Crockett received discipline for driving his
reach truck down a pedestrian-only aisle. Markings on the
notice indicate that it began as a final warning but that someone
downgraded it to a “second written warning.” Handwritten
notation, at some points illegible, suggests that whoever down-
OZBURN-HESSEY LOGISTICS, LLC 79
graded the warning believed that Crockett did not fully under-
stand the rule.
Although the safety violations committed by Williams, Ma-
son, and Crockett were not identical to the violation for which
Jones was discharged, they appear to be of a comparable level
of seriousness, if not greater. However, the record does not
establish why Respondent imposed lesser discipline.
Under the typical Wright Line analysis, once the government
has made an initial showing sufficient to raise a presumption
that protected activity was a substantial or motivating factor in
the discharge decision, an employer attempting to rebut that
burden will introduce into evidence its established work rules
and will present evidence that it had discharged other employ-
ees for similar violations. Here, the Respondent has introduced
such work rules and the record leaves no doubt that it takes
safety violations seriously. However, documentary evidence
also establishes that discipline varied considerably for presum-
ably equivalent violations.
In addition to this documentary evidence, some testimony
suggests that Respondent’s management played favorites. For
example, during Jones’ cross-examination, Respondent asked
him about the final warning he had received in June 2013:
Q. BY MR. BODZY: How many more safety viola-
tions do you think you needed to incur before being termi-
nated from OHL?
A. Well, I believe it depended. Had I been part of the
in crowd, it never would have even been considered a vio-
lation.
The existence of an “in crowd” in the warehouse sheds light
on an otherwise inexplicable fact. Senior Employee Relations
Manager Miles, sitting in her office at corporate headquarters,
decreed a get tough policy on safety violations, but at the ware-
house, managers applied it unevenly. In view of this favorit-
ism, I conclude that Respondent has not carried its burden of
showing that it would have taken the same action even in the
absence of protected activity.
This conclusion appears to collide with the factual finding,
discussed above, that the person who made the discharge deci-
sion did not know about Jones’ protected activity and therefore
did not take such activity into account in deciding to discharge
him. However, I believe that the apparent conflict is illusory.
The Act does not make it unlawful for management to “play
favorites,” so long as that favoritism does not discriminate
against an employee because the employee engaged in activi-
ties protected by the statute or to discourage others from engag-
ing in such activities. So my conclusion that warehouse man-
agers played favorites does not amount to a finding that they
played favorites in violation of the Act.
However, regardless of the cause of the favoritism, any evi-
dence of playing favorites undermines an employer’s effort to
show that it would have imposed the same discipline in any
case, even in the absence of protected activity. The Wright
Line test requires a respondent to show that it would have, not
merely that it could have taken the same action.
To a great extent, an employer meets this significant rebuttal
burden by showing that in the past, similar infractions have led
to the same discipline. However, both unlawful discrimination
and lawful favoritism will produce the same kind of inconsist-
encies defeating the rebuttal effort.
In a Wright Line analysis, the government’s initial showing
shifts to a respondent the burden of proceeding, but the burden
of proof remains at all times on the government. In determin-
ing whether the General Counsel has carried this ultimate bur-
den, it is appropriate to consider whether the Wright Line test
produced a “false positive” for the reason discussed above.
Here, I give controlling weight to the factual finding that Re-
spondent’s decision maker neither knew about nor considered
Jones’ protected activities when she decided to discharge him.
That factual finding rested on Miles’ testimony, which I credit-
ed because she impressed me as being a truthful and reliable
witness. Moreover, no evidence contradicted her claim that she
was unaware of Jones’ protected activity.
This factual finding, that Respondent’s decision-maker did
not consider protected activity, necessarily answers the ques-
tion of whether it would have taken the same disciplinary ac-
tion in the absence of protected activity. Therefore, I conclude
that Respondent did not violate Section 8(a)(1) and (3) but
discharged Jones for cause, within the meaning of Section 10(c)
of the Act.
Accordingly, I recommend that the Board dismiss the allega-
tions related to complaint paragraph 13(n).
Complaint Paragraph 14
Complaint paragraph 14 begins a series of allegations relat-
ing to the Union’s status as exclusive bargaining representative.
On May 24, 2013, the Board certified the Union as exclusive
representative of the employees in the bargaining unit described
in complaint paragraph 14(a).15 As discussed above, events
unrelated to this case resulted in the Board setting aside that
certification and ultimately issuing a new certification of repre-
sentative in Ozburn-Hessey Logistics, LLC, 361 NLRB 921
(2014).
The Board based the new certification on the same election
which had resulted in the previous certification. Although the
Supreme Court’s Noel Canning decision, which invalidated the
appointments of some Board members, necessitated the new
certification, that decision did not change in any way the under-
lying fact evidenced by the certification, that a majority had
selected the Union to represent them. Therefore, I conclude
that at all times since May 24, 2013, the Union has been the
exclusive bargaining representative in the unit described below.
Complaint paragraph 14(a) alleges that the following em-
ployees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:
Included: All full time custodians, customer service repre-
sentatives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, maintenance
techs, material handlers, operators 1, operators 2, operators 3,

15 The General Counsel’s brief, at footnote 3, argued for the sever-
ance of the complaint’s 8(a)(5) allegations because of the Board’s
setting aside of this certification. However, in view of the Board’s
subsequent action in Ozburn–Hessey Logistics, LLC, 361 NLRB 921, I
will consider those allegations.
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quality assurance coordinators, returns clerks, and team leads
employed by the Employer at the Memphis, Tennessee facili-
ties located at: 5510 East Holmes Road; 5540 East Holmes
Road, 6265 Hickory Hill Road, 6225 Global Drive, 4221 Pilot
Drive, and 5050 East Holmes Road.
Excluded: All other employers, including, office clerical and
professional employees, guards, and supervisors as defined in
the Act.
Although Respondent denied this allegation, the Board found
that it was appropriate when it certified the Union in Ozburn-
Hessey Logistics, LLC, 361 NLRB 921. I conclude that the
General Counsel has proven the allegations in complaint para-
graph 14(a).
The Respondent admitted that the Board certified the Union
as the exclusive representative of the employees in this unit.
Based upon that admission and on the Board’s decision in
Ozburn-Hessey Logistics, LLC, 361 NLRB 921, I find that the
General Counsel has proven the allegations raised by complaint
paragraph 14(b), except that the correct date of the certification
is November 17, 2014.
Complaint paragraph 14(c) alleges that at all times since
May 24, 2013, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of the
Unit. Respondent has denied this allegation. However, for the
reasons discussed above, I find that the government has proven
this allegation.
Motions Related to 8(a)(5) Allegations
As discussed above, the Board’s May 2, 2013 decision in
Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 resulted in the
May 24, 2013 certification of the Union as the employees’ ex-
clusive collective representative. More than a year later, the
Supreme Court, in Noel Canning, ruled that the President’s
appointments of certain Board members had not complied with
the Constitution. Because these appointments were invalid,
their actions as Board members presumably lacked the force of
law. The Board therefore withdrew the certification of repre-
sentative.
The Supreme Court issued its Noel Canning on June 26,
2014, and the Board set aside the certification the next day,
both events occurring after the hearing in the present case
opened but before it closed. Because the complaint’s 8(a)(5)
allegations rested on the floor created by the May 24, 2013
certification, the abrupt disappearance of that floor did not go
unnoticed, particularly by the parties standing on it.
The Respondent moved to dismiss the alleged violations of
Section 8(a)(5) of the Act because there was no certification of
representative. The General Counsel, opposing the motion to
dismiss these allegations, moved instead for the allegations to
be severed from the other complaint allegations pending the
issuance of a new decision by the Board.
At the time the hearing ended, and when counsel filed post-
hearing briefs, no certification of representative existed. On
November 17, 2014, the Board issued a new Decision, Order,
and Certification which expressly adopted and incorporated by
reference both its earlier May 2, 2013 decision and the subse-
quent May 24, 2013 certification of representation. The Board
stated, in part:
The [May 2, 2013] Decision, Order, and Direction
adopted, inter alia, the administrative law judge’s resolu-
tion of 10 challenged ballots. Having also adopted that
resolution herein, our normal practice would be to direct
the Regional Director to open and count the challenged
ballots, to prepare and serve on the parties a revised tally
of ballots, and to issue an appropriate certification. How-
ever, the Regional Director has already performed these
ministerial tasks in response to the Board’s original Deci-
sion, Order, and Direction, and we see no purpose to be
served by requiring the Regional Director to repeat them.
Thus, the revised tally of ballots that issued on May 14,
2013, accurately presents the results of the election, and
the Certification of Representative issued by the Acting
Regional Director on May 24, 2013, is based upon the val-
id votes cast. The revised tally shows 169 for and 166
against the Petitioner, with no challenged ballots. There is
no question that a majority of valid ballots was cast for the
Union, and there is no question that the certification issued
by the Acting Regional Director is substantively correct.
Nevertheless, in an abundance of caution and in an effort
to avoid further litigation that would only serve to further
delay this matter, we will issue a new Certification of Rep-
resentative.
361 NLRB 921, 921.
In view of this action, I will deny both Respondent’s motion
to dismiss the 8(a)(5) allegations and the General Counsel’s
motion to sever. In particular, I note the Board’s holding that
there “is no question a majority of valid ballots was cast for the
Union, and there is no question that the certification issued by
the Acting Regional Director is substantively correct.”
Additionally, it may be noted that a union’s authority to
serve as the employees’ exclusive representative flows from the
employees’ choice, as determined by the election. The subse-
quent certification essentially amounts to official confirmation
that employees had made this choice, that the election was fair
and the bargaining unit appropriate. The Board’s action, setting
aside the certification more than a year later for reasons having
nothing to do with the parties or their actions, does not change
the underlying facts.
Therefore, justice will be served by treating the May 24,
2013, as valid from that date until the Board set it aside.
Complaint Paragraph 15
The subparagraphs of complaint paragraph 15 allege a num-
ber of changes in various terms and conditions of employment.
Respondent’s answer admits some of these alleged changes but
denies others. However, in each instance, the Respondent de-
nies that the alleged change constituted a mandatory subject of
bargaining, as alleged in complaint paragraph 15(n).
The alleged changes all concern matters directly relating to
wages, hours, and other terms and conditions of employment.
In each instance, there can be little doubt that the change would
constitute a mandatory subject of bargaining if it effects are
material, substantial, and significant change in terms and condi-
OZBURN-HESSEY LOGISTICS, LLC 81
tions of employment. Ead Motors Eastern Air Devices, Inc.,
346 NLRB 1060 (2006); Millard Processing Services, 310
NLRB 421, 425 (1993); see also Peerless Food Products, 236
NLRB 161 (1978). Therefore, a conclusion below that a par-
ticular change is material, substantial and significant also con-
stitutes my conclusion that the General Counsel has proven that
the change in question constitutes a mandatory subject of col-
lective bargaining.
Complaint paragraph 15(o) pertains to each of the allegations
alleged in complaint paragraphs 15(a) through (m). It alleges
that in each of these instances, Respondent made the change
without prior notice to the Union and/or without affording the
Union an opportunity to bargain with Respondent with respect
to this conduct and/or the effects of this conduct, and without
first bargaining with the Union to a good-faith impasse. Re-
spondent answers this allegation as follows:
OHL admits the allegations in Paragraph 15(o) of the Sixth
Consolidated Complaint insofar as OHL has not given notice to
the USW of any changes or bargained to impasse, but OHL
denies that it is under any legal obligation to do so.
As discussed above, on November 17, 2014, the Board certi-
fied the Union as the employees’ exclusive bargaining repre-
sentative. Ozburn-Hessey Logistics, LLC, 361 NLRB 921.
Therefore, there is no doubt that Respondent does have a legal
obligation to recognize and bargain with the Union.
Board precedent has long established that an employer acts
at is peril by changing terms and conditions of employment
while its objections to an election are pending. Bloomfield
Health Care Center, 352 NLRB 252 (2008). Accordingly, in
each of the allegations discussed below, a finding that Re-
spondent made the alleged change and a conclusion that it was
material, substantial, and significant will lead to the further
conclusion that Respondent’s admitted failure to give notice to
the Union and bargaining to impasse will result in the further
conclusion that Respondent violated Section 8(a)(5) and 8(a)(1)
of the Act.
The following chronology may be helpful in considering the
allegations:
June 16, 2010 The first election. The parties later
agreed to set it aside and conduct a
second election.
July 27, 2011 Second election.
May 2, 2013 The Board orders the ballots counted.
May 14, 2013 A revised tally of ballots shows 169
votes for the Union and 166 for the
Respondent.
May 24, 2013 Board issues Certification of Repre-
sentative.
June 27, 2014 Board sets aside the May 24, 2013
Certification.
November 17, 2014 Board issues new Certification of
Representative.
Complaint Paragraph 15(a)
Complaint paragraph 15(a) alleges that about January 2012,
a more exact date being unknown to the General Counsel at this
time, Respondent increased its matching contribution to em-
ployee contributions to its employee 401k retirement plan.
Respondent’s answer admits this allegation, although it denies
that the change constituted a mandatory subject of collective
bargaining.
Complaint paragraph 15(o) alleges that Respondent engaged
in this conduct without prior notice to the Union and/or without
affording the Union an opportunity to bargain with Respondent
with respect to this conduct and/or the effects of this conduct,
and without bargaining with the Union to a good-faith impasse.
Respondent’s answer admits that it has not given notice to the
Union of any changes or bargained to impasse, but Respondent
“denies that it is under any legal obligation to do so.”
Clearly, contributions to employees’ retirement accounts fall
within the definition of “wages, hours and other terms and con-
ditions of employment.” These contributions comprise part of
each employee’s total compensation and certainly constitute a
mandatory subject of collective bargaining.
Respondent argues that it had no duty to notify and bargain
with the Union before implementing this change in the absence
of a certification that the Union was the employees’ exclusive
bargaining representative. Thus, the Respondent’s brief states:
It is axiomatic that OHL has no duty to bargain with
the USW, to provide it information, or to refrain from uni-
lateral changes in the absence of a valid certification. As
the Board noted in Drukker Communications, 258 NLRB
734 (1981), “[a] unilateral change is merely an inchoate
violation during the pendency of election objections, and
does not mature into an unfair labor practice until certifi-
cation.” Id. at 734. (emphasis added). [Italicized in Re-
spondent’s brief.]
The unilateral change described in complaint paragraph
15(a) took place in January 2012, well after a majority of eligi-
ble voters had selected the Union in the July 27, 2011 election,
but before the Board’s resolution of objections led to a revised
tally of ballot and certification of the Union. In other words,
the unilateral change took place while objections were pending.
As noted above, Board precedent has long established that an
employer acts at is peril by changing terms and conditions of
employment while its objections to an election are pending.
Bloomfield Health Care Center, above; Alwin Mfg. Co., Inc.,
326 NLRB 646 (1998) citing Mike O’Connor Chevrolet, 209
NLRB 701, 703 (1974), enf. denied on other grounds 512 F.2d
684 (8th Cir. 1975).
Citing Drukker Communications, the Respondent argues that
a unilateral change does not mature into an unfair labor practice
until the Union’s certification. However, any gestational period
ended with the Board’s November 17, 2014 Certification.
The Respondent also has raised the affirmative defense that
the charge is time barred by Section 10(b) of the Act because
the change took place in January 2012 but the initial charge in
this proceeding was not filed until October 26, 2012. Respond-
ent’s argument has merit. Although I would otherwise recom-
mend that the Board find a violation, I conclude that Section
10(b) constitutes a bar.
Therefore, I recommend that the Board dismiss the allega-
tions related to complaint paragraph 15(a).
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Complaint Paragraphs 15(b) and 15(e)
Complaint paragraph 15(b) alleges that about “January 2013,
a more exact date being unknown to the General Counsel at this
time, Respondent implemented a mandatory exercise and
stretching program for certain employees in the HP account.”
The Respondent denies this allegation.
The wording of complaint paragraph 15(e) mirrors that of
paragraph 15(b) except for the date. It alleges that about “May
2013, a more exact date being unknown to the General Counsel
at this time, Respondent implemented a mandatory exercise and
stretching program for all employees in the HP account.” The
Respondent also denies this allegation.
Notwithstanding that both paragraphs include the phrase “a
more exact date being unknown to the General Counsel at this
time,” the allegation of the same unilateral change at the same
location on two different dates, 4 months apart, poses some-
thing of a paradox. The complaint does not claim, the record
does not suggest, and the General Counsel’s brief does not
argue that the Respondent implemented an exercise program in
January 2013, rescinded it and then implemented it again in
May. Absent such an intervening event, the Respondent could
not have implemented the alleged change in January and then
done so again in May because the second time would not be a
change at all. Rather, it would be a continuation.
The General Counsel’s witnesses differ greatly on when the
change took place. That might explain why the complaint has
two separate allegations, but I conclude that there only could
have been one change. Therefore, these allegations will be
considered together.
The General Counsel presented a number of witnesses who
testified that management instituted a mandatory regimen of
stretching exercises. Some of them also testified that the exer-
cises including “jumping jacks.” The witnesses uniformly testi-
fied that initially, employees could choose whether or not to
participate but that at some point it became mandatory. Their
uncontradicted testimony on this point clearly establishes that
Respondent changed the program from voluntary to mandatory
at some point and I so find.
As noted above, it is difficult to pinpoint when this change
occurred. The witnesses did not provide consistent testimony
either on when the program began or when it became mandato-
ry. For example, employee Shawn Wade testified:
Q. During what period of time was it that employees
had the option whether to do these exercises or could
choose not to?
A. Let’s see, ‘13.
Q. Was that earlier than 2013 or was that at—
A. It was early.
Q. —an early point in 2013?
A. It was earlier in 2013.
Q. Prior to? So, during 2012?
A. Right, right.
Q. Do you recall if, at any point, that practice changed
with regard to the exercises?
A. It’s about like, I’ll say like January or February of
‘13.
Wade’s testimony contrasts with the following testimony of
employee Dwayne Nelson:
Q. When did that begin, to the best of your recollec-
tion?
A. Best of my recollection, it began in late ‘13, to the
best of my recollection.
Q. Late 2013?
A. It had to be late 2013.
Q. Why did it have to be late 2013?
A. Well, earlier, we wasn’t doing anything like that.
We changed about the same time we changed the time of
the shifts. I used to work 3:00 to 11:00. Then we start
working at 11:15 to 11:00 p.m and it was during that time
that we start, a little before that time, we started taking ex-
ercise.
Nelson thus expressed some degree of certainty regarding
the date (it “had to be late 2013”) and gave an explanation for
that certainty. However, it would increase my confidence in his
recollection if some other employee provided similar testimony
about the date. Wade did not, and neither did employee Anita
Wells, whose testimony agreed neither with Wade nor Nelson:
Q. Okay. And for how long had it been a voluntary
program?
A. Maybe a few months. Three or four months. But
they kept warning that eventually it’s going to be imple-
mented and everybody will have to do it. Because a lot of
people didn’t do it. They just stood there and watched eve-
rybody else stretch.
Q. And I’m sorry, what was the time frame that you
recall it becoming mandatory.
A. I’d say within three months of them first starting it.
Three to four months.
Q. Okay. Could you give me a month, approximate
time frame?
A. April—around April.
Another employee witness, Teresa Pressman, offered still
another date. She testified:
Q. And do you recall when that practice started?
A. I want to say like last July or August of 2013.
In sum, four different employee witnesses all agree that Re-
spondent instituted a mandatory exercise program, but each
gives a significantly different date. Rather than picking one of
those dates, the complaint alleges two different unilateral
changes, the first in January—which is consistent with Wade’s
testimony, and the second in May, which is closer to Well’s
April date than to Pressman’s August date, but still in between
them.
Although the supervisor supposedly responsible for the exer-
cise program, Stacy Deal, gave testimony, it does not refer to
the exercise program and therefore sheds no light on when the
program began. Not mentioning the program at all, Deal cer-
tainly did not contradict the testimony of the employee witness-
es concerning it.
As noted, the employee witnesses agree that Respondent be-
gan requiring employees to participate in exercises and that this
OZBURN-HESSEY LOGISTICS, LLC 83
requirement was new. Crediting that testimony, I find that
Respondent did make this change. Respondent has admitted
that it did not notify or afford the Union an opportunity to bar-
gain before making the changes alleged in complaint paragraph
15, so I further find that the Respondent acted unilaterally.
Although it approaches guesswork, I conclude that Respond-
ent most likely made the exercise program mandatory some-
time in the spring or summer 2013. Now, I turn to whether the
unilateral implementation of the mandatory exercise program
violated the Act.
The Respondent’s brief raises a number of arguments. It
cites authority for the principle that “there cannot be an unlaw-
ful unilateral change where the General Counsel fails to
demonstrate the existence of an established past practice or
understanding. See Exxon Shipping Co., 291 NLRB 489, 493
(1988); Allied Med. Transp., Inc. & Transp. Workers Union of
Am., AFL–CIO, 360 NLRB 1264 (July 2, 2014).” However,
the record does establish a past practice of not requiring em-
ployees to participate in an exercise program.
The Respondent also argues that a change “will not consti-
tute an unlawful unilateral change, when it narrowly addresses
a newly arising condition encompassed by a preexisting rule.”
However, the record does not establish that Respondent began
requiring employees to do exercises because of some newly
arising condition. It also does not establish that such a newly
arising condition was encompassed by an existing rule.
The Respondent also cites the well-established principle that,
to be unlawful, a unilateral change must be a material, substan-
tial, and significant one affecting the bargaining unit employ-
ees’ terms and conditions of employment. Thus, the Respond-
ent appears to argue that requiring employees to do some
stretching exercises and “jumping jacks” does not materially,
substantially or significantly alter the employees’ terms and
conditions of employment.
However, the General Counsel contends that the imposition
of this regimen increases the employees’ physical job duties
and that a change which results in an increase in job duties will
constitute an unlawful unilateral change. Bundy Corp., 292
NLRB 671, 678 (1989). It can hardly be disputed that requiring
employees to do exercises, including “jumping jacks,” does add
a rather onerous new task to existing job duties, and I conclude
that this change is material, substantial and significant.
Respondent effected this change after the election and while
objections to the election were pending. It acted at its peril. I
conclude that making this change without notifying the Union
or affording it meaningful opportunity to bargain about the
decision and its effects, Respondent violated Section 8(a)(5)
and (1) of the Act.
Complaint paragraph 15(e) alleges that the violation took
place in May 2013, which appears to be closer to the actual
time than the January 2013 date alleged in complaint paragraph
15(b). Therefore, I recommend that the Board dismiss com-
plaint paragraph 15(b) and find that the Respondent violated
Section 8(a)(5) and (1) of the Act by the conduct alleged in
complaint paragraph 15(e).
Complaint Paragraphs 15(c) and (p)
Complaint paragraph 15(c) alleges that about April 2013,
Respondent implemented the Kronos timekeeping system.
Respondent denies this allegation.
Complaint paragraph 15(p) alleges that as a result of Re-
spondent’s conduct described in paragraph 15(c), on May 13,
2013, Respondent discharged its employee Lauren Keele. Re-
spondent answered this allegation as follows: ““OHL admits
the allegations in Paragraph 15(p) of the Sixth Consolidated
Complaint insofar as it terminated employee Lauren Keele on
or about May 13, 2013; OHL denies that her discharge resulted
from the change to the Kronos timekeeping system.”
The lawfulness of Respondent’s admitted discharge of Keele
depends on the lawfulness of Respondent’s implementation of
the Kronos computerized time and attendance record keeping
system. If Respondent acted lawfully in implementing this
system, then the allegation that Keele’s discharge resulted from
the unlawful implementation of that system must fail as well.
Complaint Paragraph 15(c)
Notwithstanding the Respondent’s denial of the allegations
raised by complaint paragraph 15(c), the record clearly reflects
that Respondent did replace its previous timekeeping equip-
ment with a new system called Kronos, and the exhibits include
instructions on how to operate this system. An internal human
resources email indicates that the Kronos system replaced the
previous “Unitime” system on April 22, 2013.
The record includes extensive operating instructions for the
Kronos system and Respondent does not dispute its installation.
Rather, Respondent’s brief argues that the change does not rise
to the level of “material, substantial and significant.”
The General Counsel’s brief does not explain why the re-
placement of one timeclock with another would constitute such
a change in working conditions. Instead, the brief focuses on
difficulties experienced by employees as they learned the new
system. It states, in part:
Whitley testified to difficulty operating the Kronos
system and that she had to seek the assistance of supervi-
sor Chris Finley to provide her with instructions on how to
use the Kronos system, especially for Personal Time Off
(PTO) requests. (Tr. 391-393). Whitley says there was no
training in Waterpik on how to operate the Kronos time
clocks. (Tr. 393). The only materials provided was a
booklet placed near the time clock, which employees
could review if they were having trouble with the time
clock. (Tr. 393). Whitley and Herron testified they did
not see Sara Wright at the time clock used by the Waterpik
employees at any time during the week following the im-
plementation of the Kronos system. (Tr. 430, 1054).
Wright testified that materials on how to operate the
Kronos time clocks were placed by all the time clocks in
the buildings and employees were given a demonstration
on how to operate the time clocks. (Tr. 1448). Wright
admitted that the Unitime system in place previously did
not allow employees to request PTO or any other functions
beyond clocking in and out and registering a transfer to a
different account. (Tr. 1459-1460). Respondent witnesses
claim that training was conducted on the use of the Kronos
system in all the accounts but it failed to produce records
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
showing that training was actually conducted in any ac-
count other than the Yazaki account. (Tr. 1462-1463).
Quinn Farmer claims that the switch to the Kronos system
was discussed with employees in the pre-shift meeting for
the Waterpik account in the weeks leading up to the switch
and employees were told that there was a booklet posted
next to the Kronos time clocks if they had questions or
problems with the new time clocks. (Tr. 1542-1543).
Farmer said he also made himself available in the first
days after the implementation of the Kronos system to
employees who had questions or problems operating the
new time clocks. (Tr. 1543-1544).
Thus, the General Counsel appears to argue not that the new
timeclock itself constituted a significant change in working
conditions but rather that Respondent’s management did not
adequately train employees in the use of the new system. Cer-
tainly, the task of learning the new system would expand the
employees’ job duties briefly, but it doesn’t necessarily follow
that the new timeclock caused any lasting change in the em-
ployees’ work.
Theoretically, replacing an older technology with newer
might well have such an impact. For example, the teamsters
who once drove horses had different skills from those of Team-
sters who now drive tractor-trailers. The switch from 16
hooves to 18 wheels would indeed seem material, substantial
and significant.
To suspect that replacing one timeclock with another would
not amount to such a significant change does not ignore that it
could produce stress. Anyone who has experienced frustration
with new technology, which is to say almost anyone at all, will
be sympathetic to the frustrations experienced by employees
dealing with refractory smart devices. Yet a new piece of
equipment can be a source of frustration without constituting a
material, substantial and significant change.
Suppose, for example, that instead of a new timeclock sys-
tem, the new equipment were a forklift which performed the
same function as the old forklift but had unfamiliar controls
which had to be learned. It seems unlikely that the new forklift
would effect a material, substantial, and significant change.
However, in the case of the timeclock, the government argues
that the Kronos system did more than replace its predecessor.
The General Counsel’s brief states:
[T]he implementation of the Kronos timekeeping system on
April 22, 2013 went beyond the mere change to a different
type of time clock. The change to the Kronos system added
numerous functions which were not available under the old
Unitime timekeeping system, including making requests to
use PTO [paid time off] and checking messages to confirm
whether PTO requests were granted. With these increased
functions, the manner of operation also changed as certain
buttons common under the old timekeeping system were
eliminated and new buttons were added. The employee train-
ing materials for the Kronos system numbered 50 pages in to-
tal but employees were provided limited training on the op-
eration of the system. In addition, because the Kronos system
changed the manner in which supervisors reviewed and
communicated with employees about a request to use PTO,
employees have been denied the use of PTO in situations
where employees previously would have either been granted
use of PTO or would have been informed in advance that the
request to use PTO was being denied . . . In this case, the
change in timekeeping systems went beyond a change in the
mere method for employees to clock in and placed substantial
new demands on employees in the operation of the system
and the functions for which employees use the timekeeping
system.
The General Counsel thus identifies a number of specific as-
serted changes, some of which will be discussed further below
in connection with other allegations. For example, employees
formerly requested paid time off (PTO) by submitting a paper
form; using the Kronos system they do so electronically.
Likewise, instead of discussing a request for paid time off oral-
ly with a supervisor, the employee now receives notification
electronically. Such changes are taking place throughout socie-
ty and generally seem to impose little burden. Here, it appears,
employees do have to use the Kronos machine, which some
dislike, to communicate about the request for time off. Howev-
er, the record does not establish that such change is material,
substantial or significant.
The General Counsel also argues that under the Kronos sys-
tem “certain buttons common under the old timekeeping system
were eliminated and new buttons were added.” Learning the
new buttons requires considerable study and more training, the
government argues, than the employees have been given. The
Respondent contends that it has provided sufficient training, but
even assuming for the sake of analysis that it had not, the actual
complaint would relate more to the failure to provide training,
which has not been alleged to be violative, rather than to a
change in working conditions.
Although the General Counsel contends that the Kronos sys-
tem “placed substantial new demands on employees,” the evi-
dence does not prove the existence of any new substantial or
significant burden. There appear to have been some initial
problems, discussed below, but individual mistakes or misun-
derstandings do not prove that the change was material, sub-
stantial, or significant.
In sum, I find that the General Counsel has not established
that Respondent’s replacement of its old timekeeping equip-
ment with the Kronos system constituted a material, substantial,
and significant change in terms and conditions of employment.
Therefore, I recommend that the Board dismiss the allegations
related to complaint paragraph 15(c).
Complaint Paragraph 15(p)
Having concluded that Respondent did not violate the Act by
implementing the Kronos timekeeping system, I further con-
clude that its discharge of Lauren Keele did not violate the Act.
Nonetheless, for completeness, a brief discussion of this al-
legation may be warranted. The General Counsel argues that
the Kronos system was more complicated that the “Unitime”
system it replaced, and that Respondent did not provide ade-
quate training to employees on its use.
As described above in connection with complaint paragraph
13(g), Respondent assesses points for attendance infractions
such as tardiness and unexcused absences from work. The
OZBURN-HESSEY LOGISTICS, LLC 85
Respondent discharges an employee when that person’s total
exceeds 12.
Keele had already accumulated 12 points when, on April 30,
2013, she returned from lunch and tried to clock back in using
the Kronos system, which then had been in operation only
about 8 days. The General Counsel argues that, on this occa-
sion, Keele pushed the wrong part of the touch screen, resulting
in the appearance of another screen which was not the correct
one. Then, in trying to clear this screen, Keele again pushed
the wrong button or touched the screen at the wrong place. By
the time the Kronos machine logged her in, Keele was a minute
late. The additional point for being tardy increased her total
points to 13, resulting in her discharge.
Because I have concluded that the Respondent lawfully im-
plemented the Kronos system, it is not necessary to ponder to
what extent, if any, the machine contributed to Keele’s dis-
charge. Rather, I recommend that the Board dismiss the allega-
tions raised by complaint paragraph 15(p).
Complaint Paragraph 15(d)
Complaint paragraph 15(d) alleges that about April 2013, the
Respondent changed its method for employees to request the
use of personal time off. The Respondent denies this allega-
tion.
To prevent confusion, it may be noted that complaint para-
graph 15(f) presents a similar allegation. It alleges that about
June 2013, Respondent implemented a requirement that em-
ployees provide advance notice of 24 or 48 hours when request-
ing the use of personal time off. Confusion might arise because
the portion of the General Counsel’s brief which discusses the
paragraph 15(d) allegations also mentions the 24-hour advance
notice requirement which is the subject of paragraph 15(f). For
clarity, that portion of the General Counsel’s brief will be quot-
ed below.
To establish the allegations in complaint paragraph 15(d), the
General Counsel relies on the testimony of Nathaniel Jones.
However, Jones testimony leaves uncertainty as to when the
events he described took place. It is possible, perhaps likely,
that they took place after the change which complaint para-
graph 15(f) alleges occurred in June 2013. However, because
the government’s brief cites these events in connection with
complaint paragraph 15(d), they will be discussed here.
Previously, to request paid time off, an employee completed
a form (in government parlance, a “leave slip”) and gave it to
his or her supervisor. Under the new Kronos system, an em-
ployee swiped his or her timecard across a scanner and entered
the dates and times for the requested time off. The record does
not establish that swiping a time card and entering the infor-
mation would be any more onerous than filling out a paper
form.
Once the employee had entered the information, the Kronos
system transmitted it to the supervisor’s computer. After re-
viewing the request, the supervisor either granted it or denied it
by entering information into the computer. The employee as-
certained whether the requested had been granted by going to a
Kronos terminal to check for messages. Although this method
seems a bit more impersonal than speaking with the supervisor
face to face, it does not appear to place on the employee any
additional significant burden.
However, the government cites the experience of one em-
ployee, Jones, to support its argument that the Kronos system
imposed a substantial new burden on employees. The General
Counsel’s brief stated:
Nathaniel Jones testified that, following the implemen-
tation of the Kronos timekeeping system, he made a re-
quest to use PTO the following day to attend a function at
his child’s school. (Tr. 227-228). After Jones did not re-
ceive a response to his request later on the day he made
the request, he attempted to contact his manager, Maxey,
about his request to use PTO the following day. (Tr. 228).
Jones said he did not get a response from Maxey, but did
not report to work the next day and attended the program
at his child’s school. (Tr. 228).
Before proceeding further with the General Counsel’s argu-
ment, it may be noted that Jones decided not to report to work
even though he had not received approval for the absence.
Jones’ decision to be absent without approval may reflect an
expectation that his supervisor would grant approval or possi-
bly a belief that his supervisor really had granted approval but
that the Kronos system was malfunctioning and failing to in-
form him of that approval. If Jones had assumed that the ma-
chine was working properly, he would have concluded, reason-
ably, that the absence of any notice of approval meant that his
request had not been approved.
The General Counsel’s brief describes what then happened
to Jones to support the government’s argument that the Kronos
machine imposed a new material, substantial and significant
burden on employees. However, when Jones took off work
without having received any notice of approval, it is difficult to
understand how the timekeeping system could be faulted. The
General Counsel’s brief continues as follows:
Jones said that he spoke with manager Billy Smith a few days
later about his PTO request, and Smith informed Jones that
his request had been denied. (Tr. 228). Jones told Billy
Smith that he tried to call Maxey about his PTO request and
Smith responded that Maxey had been out of town for train-
ing. (Tr. 228). Jones testified that he had not been informed
that Maxey was not at work the day he made the request or
who would be reviewing the PTO requests in Maxey’s ab-
sence. (Tr. 228). Jones said he asked Smith why his request
was denied, and Smith said that the PTO request had not been
made 24 hours in advance. (Tr. 228). Jones said he was as-
sessed attendance points for the day he took off work. (Tr.
229).
Although the General Counsel further argues that Jones nev-
er received notification, through Kronos, that his request had
been denied, that does not overcome the fact that he also never
received notification that it had been granted. The government
has not contended that Respondent told employees that they
could take a day off unless they received word that the request
had been denied. In fact, the Respondent’s written policy, ef-
fective January 1, 2013, provided the opposite:
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employees must receive prior approval from their manager by
completing a PTO Request Form before taking PTO.
Similar language also appeared in an earlier version of the PTO
policy dated January 1, 2010. Although the Kronos system
substituted an electronic PTO Request Form for a paper ver-
sion, it did not change the requirement that the employee re-
ceive prior approval.
Therefore, I conclude that the change to the Kronos time sys-
tem did not cause Jones to take off work without first receiving
approval. His decision to take off work without receiving such
permission amounted to a gamble.
Certainly, based on Jones’ past experience, it may have ap-
peared a pretty safe bet. Jones testified that never before had
the Respondent denied his request for paid time off. However,
the change which resulted in the denial of his request was not
the requirement that he submit this request through the Kronos
system, rather than on paper. Rather, it was a new policy re-
quiring a request to be made 24 hours in advance.
To be sure, the 24-hour notice requirement does appear to be
related to the new Kronos system. Indeed, the document in-
forming employees of this policy explained that the new Kro-
nos system made it necessary. However, the complaint treats
the change in method for requesting leave and the 24-hour re-
porting requirement as two separate allegations and the General
Counsel’s brief does likewise. So will I.
If Jones’ attendance points for an unexcused absence can be
attributed to any unilateral change, it is not the requirement that
he request leave through the Kronos system rather than on pa-
per. Rather, it was the implementation of the 24-hour notice
requirement, which made his request untimely.
Therefore, I do not conclude that replacement of the old
timekeeping system with the Kronos system added any materi-
al, substantial, or significant burden to employees’ work duties
or resulted in any material, substantial, or significant change in
working conditions. I recommend that the Board dismiss the
allegations relating to complaint paragraph 15(d).
Complaint Paragraph 15(f)
Complaint paragraph 15(f) alleges that about June 2013, Re-
spondent implemented a requirement that employees provide
advance notice of 24 or 48 hours when requesting the use of
personal time off. Respondent denies this allegation.
At some point, the Respondent issued to employees a docu-
ment titled “Policies Reminders Acknowledgement” which
included, among other work rules, the following:
PTO
Request submitted 48 hours in advance; this is a must with
our new Kronos Time keeping system.
This document does not bear a date of issuance. However,
the copy in evidence includes the signature of an employee who
received it along with the date 4–25–13, which was only 3 days
after the April 22, 2013 change to the Kronos timekeeping sys-
tem. Based on this evidence, I find that the change took place
between April 22and 25, 2013, rather than in June.
Additionally, I find that this advance notice requirement did
constitute a change from the working conditions existing before
the announcement. This conclusion flows from the absence of
such a requirement in previous documents describing the Re-
spondent’s paid time off policy, and on the explanation that
“this is a must with our new Kronos Time keeping system.” In
other words, the new system required the new policy.
Jones’ testimony refers to a 24-hour advance notice require-
ment but the document announces a 48-hour rule. Human Re-
sources Manager Wright testified that individual warehouse
managers decided whether the required advance notice would
be 24 or 48 hours. Further, she claimed, at least by implication,
that Respondent’s written paid time off policy granted them this
discretion:
Q. Let me go back to the PTO policy, not in relation
to Kronos, but you were shown on direct examination
General Counsel Exhibit 66, which is the—which was
OHL’s PTO policy following January 1, 2013. And your
testimony was that that document, the policy document,
the policy itself does not mandate that PTO requests be
made within a specific amount of time prior to the actual
requested leave date or time.
A. The policy says it’s the discretion of the manager.
It should be noted that this testimony is inaccurate. The Re-
spondent’s written time off policy does not state that managers
have the discretion to impose any requirement that requests for
paid time off be submitted a certain number of hours in ad-
vance. Rather, it gives them discretion to grant or deny a re-
quest based on workload. Indeed, the written policy implies
that there is no time limit for filing such a request:
Managers have the discretion to approve the request based on
workload. If employees are not able to schedule PTO in ad-
vance due to unforeseen circumstances, employees should no-
tify their managers as soon as possible.
The second quoted sentence reasonably would be understood
to suggest that an employee did not have to file a request any
set time in advance and that a request filed at the last minute,
due to unforeseen circumstances, would still be considered.
Whether or not Wright’s testimony that the “policy says it’s
the discretion of the manager” is disingenuous, it is not clarify-
ing. Wright further testified as follows:
Q. Okay. If a manager wished to implement a policy
that mandated that employees must provide 48 hours ad-
vance notice to use PTO, is that a policy that should--that
would typically be reviewed by HR before it’s implement-
ed?
A. No, that’s a guideline within a certain account. If
that’s what the manager needs in order to do business, then
the manager has that discretion.
Wright repeatedly referred to the 48-hour rule as a “guide-
line” and denied that it was a “new policy.” However, whether
called a “guideline” or a “policy,” the record establishes that it
was new. Manager Maxey testified, in part, as follows:
Q. Did you tell the employees at a pre-shift meeting
about advanced notice of PTO?
A. I probably did, yes.
Q. What would you have—what did you tell them?
OZBURN-HESSEY LOGISTICS, LLC 87
A. Probably what I did in the other two accounts that I
was in before that one. I mean, but what brought this on
was there was habitual -- the shift ends at 4:45, and some-
body would come to me at 4:30 and say I need to be a
couple of hours late in the morning, I need to carry my
kids to this. And you can’t run a business like that, so I
just went back to what we were doing in the other ac-
counts. I mean, the PTO policy states, you know, at the
manager’s discretion on that, so I asked them to give me
48 hours’ notice on any PTO.
Although Maxey’s testimony suggests that at some point he
had implemented a similar rule in other accounts—that is, for
employees whose work involved serving other customers—the
record does not provide any specific information as to when
such changes took place. Maxey’s testimony does establish
that he announced—or “probably” announced—the rule to
employees who had not been subject to it.
Moreover, although Maxey testified that he “asked” employ-
ees to give him 48 hours’ notice, the written rule, quoted above,
indicates not a request but a command. The rule’s wording—
”this is a must with our new Kronos Time keeping system”—
does not indicate that employees were free to disregard it. Ad-
ditionally, Jones’ testimony that Operations Manager Billy
Smith explained that his request for paid time off had been
denied because it did not comply with a 24-hour rule further
indicates a rule rather than a request.
The Respondent argues that warehouse managers have al-
ways had discretion to determine how much advance notice
employees must give to take paid time off, so the announce-
ment of the 48-hour policy did not amount to a “change.”
Thus, the Respondent’s brief states:
The General Counsel has not shown that there was any
change in the advance notice requirement for employees to
request PTO. This has always been a matter of each man-
ager’s discretion. Mr. Maxey exercised that discretion
when he asked employees for 48 hours’ notice of PTO
which was his standard practice in the other OHL accounts
in which he has worked.
First, it may be noted that word choice sometimes reflects on
credibility. Neither the verb “asked,” used by Maxey, nor the
noun “guideline,” used by Wright, conveys the compulsory
nature of the action. When someone in authority unilaterally
imposes a policy and requires subordinates to comply, he is not
“asking” and the policy imposed is more than a “guideline.”
Second, the argument that something has “always been a
matter of each manager’s discretion” must be considered in
light of the fact that in a nonunionized workplace managers
have plenary discretion which they exercise without having to
bargain, but when employees choose a union as their repre-
sentative, the managers no longer can act unilaterally. Estab-
lished terms and conditions of employment stay in place when
the employees select a union but those terms and conditions do
not include a manager’s previous ability to make material, sub-
stantial, and significant changes in those conditions unilaterally.
A manager’s power to act unilaterally is not part of the status
quo.
Third, calling the promulgation of the 48-hour rule just an-
other exercise of the manager’s existing discretion requires a
contortion of language and a distortion of fact. In making this
argument, the Respondent relies on a sentence in its written
paid time office policy: “Managers have the discretion to ap-
prove the request based on workload.” That provision clearly
contemplates that a manager, upon receiving a request for paid
time off, will evaluate whether the employee’s services are
essential to performing the available work. If not, the manager
can reject the request.
In other words, this policy contemplates that the manager
will make a case-by-case determination, in each instance, as to
the effect granting the time off would have on getting the work
done. Such a policy is different from promulgating a new rule
that employees must request leave 48 hours in advance, and
then giving managers discretion to waive the rule when the
workload allows.
Moreover, the issue of waiving the 48 hour advance notice is
a separate question entirely from the effect of the employee’s
absence on the workload. Manager Maxey’s testimony includ-
ed a description of an instance in which he allowed an employ-
ee, Jerry Smith Sr., to take paid time off even though Smith had
not submitted his request 48 hours in advance:
Q. Did you once let Jerry Smith, Sr., take PTO with
less than 48 hours’ notice?
A. I did.
Q. And what was that situation?
A. He came to me with a day’s notice, came to me
with a day’s notice and said something about his mother
was having surgery or something like that, and he wanted
to know could he request off to be with his mother during
her surgery, and I approved it.
Q. Did you approve that within your own discretion?
A. I did, because I had no one else off on that day, you
know; we were good, in good shape, you know, volume-
wise.
This argument moves the shells too slowly to conceal the lo-
cation of the pea. Maxey’s conclusion that they were “in good
shape, you know, volume-wise,” has nothing at all to do with
the requirement that the employee submit the request 2 days in
advance. Indeed, a manager reasonably would be less able to
estimate the demands of the work accurately 2 days in advance
than would be possible closer to the requested day off.
In sum, I find that Respondent did impose a new procedural
requirement that requests for paid time off be submitted 48
hours in advance, which resulted in establishing a new basis
upon which such requests could be denied. A manager previ-
ously could deny a request because the employee was needed to
meet the workload. Now, for the first time, a manager could
deny a request as untimely without regard to the workload.
This new 48-hour advance notice requirement, or even a 24-
hour advance notice requirement which had not been present
before, created an additional burden which, I conclude, is mate-
rial, substantial, and significant. I recommend that the Board
find that the Respondent, by taking this action without afford-
ing the Union notice and an opportunity to bargain regarding
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the rule and its effects, violated Section 8(a)(5) and (1) of the
Act.
The record establishes that this unilaterally-imposed advance
notice requirement adversely affected at least one employee,
Nathaniel Jones, as discussed above in connection with com-
plaint paragraph 15(d). The unilateral change may also have
affected other employees. The identification of such employees
and the determination of losses suffered must be deferred to the
compliance stage.
Complaint Paragraph 15(g)
Complaint paragraph 15(g) alleges that about June 2013, the
Respondent changed its policies concerning employee use of
personal time off by informing employees that they would not
be allowed to use personal time off on days when the employ-
ees are sent home early. The Respondent denies this allegation.
Respondent pays its hourly workers by the hour, and some-
times sends them home if there remains no more work to be
done that day. In such instances, an employee’s weekly earn-
ings may be less than expected.
Respondent also has a paid time off policy which allows em-
ployees to receive pay when they take vacation days. When the
Respondent sends an employee home for lack of work, the
employee sometimes wishes to use some of this vacation time
so that his or her paycheck is not too low to pay his bills. The
General Counsel alleges that in the past, the Respondent al-
lowed employees to use accumulated paid time off (PTO) for
this purpose, but that it discontinued this policy in about June
2013.
In this instance, Respondent’s defense focuses on factual is-
sues and disputes the testimony of the General Counsel’s wit-
nesses, particularly Helen Herron and Glenora Whitley. The
Respondent’s brief states:
Helen Herron and Glenora Whitley offered muddled
testimony that they can no longer use PTO to fill out a day
if they leave early. However, [Operations Manager]
Quinn Farmer testified that during his entire tenure at
OHL, it has been OHL’s policy that if employees leave
early when there is work available then they cannot use
PTO. Moreover, Mr. Farmer testified that Ms. Herron was
actually offered a full day’s work on June 6, 2014, and
June 9, 2014, which is why she was ineligible for PTO.
Farmer’s tenure as an operations manager began in Septem-
ber 2011 and Respondent relies on his testimony that at all
times thereafter, “it has been OHL’s policy that if employees
leave early when there is work available then they cannot use
PTO.” However, even if that statement is true, it misses the
point. When work is available, an employee can earn pay by
doing it. Rather, the problem arises when work is not available
and an employee is sent home.
Additionally, I do not consider the testimony of Herron and
Whitley to be as muddled as the Respondent argues. Although
Herron appeared to be a nervous witness, she gave understand-
able testimony which often was uncontradicted. She credibly
testified that previously, when Respondent sent employees
home for lack of work, it allowed them to use their paid time
off, but that this practice changed:
Q. Do you remember sometime in 2013 finding out
that that was no longer going to be allowed?
A. Yes.
Q. Do you remember about when that was?
A. I think it was in May, I think, 17th, something like
that.
Q. Around May?
A. Um-hum.
Q. From whom did you find out about this?
A. From Chris Finley, because we was short of hours
that day.
Q. Okay.
A. But he said we couldn’t use it.
Q. Okay. So do you remember on that day if there
was work available in other accounts or if he was letting
people volunteer to go or you could opt to go home?
A. I didn’t know, because he didn’t mention it like he
did this, you know, lately. He didn’t mention that we had
work in other places, or you can go to another place. He
just said you can go home. So I wanted to use my PTO.
Q. Okay. Now, did you submit a request to use PTO?
A. Yes, I did.
Q. Did you make the request that day or was it later?
A. I can’t remember, but I told him I was going to use
PTO, and he said I couldn’t.
Q. When he told you you couldn’t, did you ask him
why?
A. He said they no longer allow it.
Respondent has admitted that Finley is its supervisor and
agent, but did not call him to testify. Herron’s testimony is
particularly significant not merely because uncontradicted but
also because it describes an incident which leaves no doubt
about Respondent’s change in its PTO practice. According to
Herron, after Finley announced the change, another employee
went to the human resources department.
Herron testified that after the other employee contacted hu-
man resources, Finley came back and “told us we going to be
allowed to use it this time, but after today, no more.” Although
Finley is a first-line supervisor, the involvement of the human
resources department adds further credence to his statement
that the policy had changed. I credit Herron’s uncontradicted
testimony.
Moreover, I do not regard the conflict between the testimony
of Manager Farmer and Herron regarding what happened in
June 2014 as raising any doubt about Herron’s testimony con-
cerning a change that occurred a year earlier. I credit that tes-
timony.
Additionally, Jerry Smith III credibly testified that before the
implementation of the Kronos system, the Respondent had
allowed employees to use their paid time off to make up for
hours not worked when they were sent home, but that Respond-
ent changed this policy. According to Smith, Operations Man-
ager David Maxey announced the change in policy at an em-
ployee meeting. Maxey denied making such an announcement:
Q. All right. Did you ever tell your employees that
they could no longer use PTO in order to fill up an eight-
hour day?
OZBURN-HESSEY LOGISTICS, LLC 89
A. No.
Maxey’s testimony did corroborate that of the General
Counsel’s witnesses on this point: When Respondent sent
employees home for lack of work, it had allowed them to
use paid time off:
Q. . . .While you’ve been at that Browne account,
have there been days where you’ve just run out of work?
A. Yes.
Q. Okay. And employees then are either asked if they
want to go work on another account, or if they can go
home—or they can go home if they want to, right?
A. Yes.
Q. Okay. Now, in those situations, do you know
whether there was a practice of allowing employees who
wanted to go home to still use PTO so that they can get
their full eight hours?
A. On my watch?
Q. Well, yes, start with your watch.
A. Okay. My watch, yes. If they had PTO available,
there was no work in any other account, and we had no
work in our account, they were allowed to go home, and if
they had PTO available, they could make up their hours
with it.
According to Maxey, for the Respondent to allow employees
to take time off, two conditions had to be met: First, that there
was no work for the employee to do in the account to which the
employee was assigned, and second, there was no available
work in other accounts. However, under those conditions, Re-
spondent allowed its employees to use paid time off to make up
for the lack of compensation from working.
Crediting Maxey’s testimony on this point, I find that Re-
spondent did allow employees to use paid time off when there
was no work available for them in any account. However, I do
not believe that a preponderance of credible evidence establish-
es that Respondent allowed employees to use paid time off
when there was work they could do, albeit in another account.
A considerable amount of consistent, credible evidence does
establish that sometime in late April or May 2013, the Re-
spondent changed this policy and I so find. Moreover, it can
hardly be doubted that the change is material, substantial, and
significant. The employees rely on their weekly earnings to
pay for food, clothing, housing, and related essential expenses
such as utility bills. When those earnings drop below the ex-
pected amount, it can cause very serious problems. Allowing
the employees to use paid time off as a buffer provided an im-
portant benefit.
Respondent has admitted it did not notify or bargain with the
Union about the change and its effects before making it. I rec-
ommend that the Board find that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
Complaint Paragraph 15(h)
Complaint paragraph 15(h) alleges that about the end of July
2013, Respondent changed the shift times of two employees in
the Receiving Department of the HP account from 7 a.m.—3:45
p.m. to 8 a.m.—4:45 p.m. Respondent denies this allegation.
The facts are not in dispute. Two employees, Anita Wells
and Chris Waller began deviating from the normal shift for
employees in their group. Wells testified that they discussed it
with management and obtained approval to start work at 7 a.m.
rather than 8 a.m. and to end work at 3:45 p.m. rather than 4:45
p.m. The arrangement actually was a little more complicated
and Wells described it as follows:
But what we would do is, he would come in, we would swap
alternate days. That’s so that somebody was always on the
floor in the receiving department that was able to do every-
thing. So we pretty much did that, from 7:00 to 3:45.
The “he” to whom Wells referred was Waller, who did not
testify. Wells’ further testimony indicates that the schedule
was even more complicated than described above:
He would do two days one week; I would do three days that
week. And then it would swap the next week. I would do
three; and he would do two. But we would always come in at
7:00 on those days that we were supposed to be there.
Although the complaint alleges that Respondent changed
their hours in late June, Wells testified that she thought the
change occurred in March, but was not entirely sure:
Q. You recall it was around March?
A. I think it was around March. I’m not a hundred
percent sure of when it was, but I think—
Q. Okay.
A. —it was around March or April, maybe in June. It
was March, I think.
Wells and Waller were working this schedule when Stacy
Deal became the operations manager in charge of their account.
Deal testified that after she learned of their work hours, she
ended their special schedule and required them to work the
same hours as the other employees on the shift:
Q. Let’s talk a little bit about Anita Wells. You said
she’s a receiving clerk; is that correct?
A. Correct.
Q. And what was the practice that was going on prior
to you ending that practice?
A. She and another individual were coming in just to
do some paperwork, get a jump on the paperwork. That
way they didn’t have to deal with trailers coming in.
There was no business need for that. Start time is 8
o’clock.
Whether or not this action violated the Act turns on whether
the change was material, substantial, and significant. I con-
clude that it was not. The record does not establish that the
change appreciably increased the burden on Wells or Waller.
Accordingly, I recommend that the Board dismiss the allega-
tions related to complaint paragraph 15(h).
Complaint Paragraphs 15(i), (j) and (k)
Complaint paragraphs 15(i), (j) and (k) all allege that Re-
spondent made unilateral changes on the same day, August 26,
2013. Respondent admits that it made one of the changes, but
denies the others.
Respondent denies that it “changed the shift times of the em-
ployees in the Shipping Department of the HP account from
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
four days a week to three days a week,” as alleged in complaint
paragraph 15(i).
Respondent admits that it “changed the work schedule of the
employees in the Shipping Department of the HP account so
that they are on separate teams,” as alleged in complaint para-
graph 15(j).
Respondent denies that it “changed the work schedule of the
employees in the Shipping Department of the RP account from
40 hours a week to 33 hours a week,” as alleged in complaint
paragraph 15(k).
Notwithstanding the denials in the Respondent’s answer, Re-
spondent’s witnesses admit the relevant facts. Respondent’s
director of operations, Ken Ball explained that the volume of
work for one customer, HP, dropped by at least 20 percent in
one year. Ball tentatively attributed the drop to the public’s
increasing use of the Internet for shopping. The workload also
became more sporadic because customers were buying goods
online at times when they would not be visiting brick and mor-
tar stores.
Bell met with other managers and decided to split the work-
force into two shifts, with employees on each time being as-
signed to come in 3 days a week and work 11-hour shifts. Alt-
hough the term “shift” typically refers to the hours worked by a
group of employees on a particular day, here, the term “shift”
denotes the specific days of the week when employees work.
Ball explained:
Q. The A shift and B shift, what was the A shift?
A. It’s 11 hours a day. Sunday, Monday, and Tuesday
is the A shift, and Wednesday, Thursday, and Friday is the
B shift.
Q. Same 11-hour days?
A. Yes.
Additionally, under the new system, the Respondent allows
each employee to sign a sheet indicating they wished to work
another day so that the employee has 40 hours of work per
week. Operations Supervisor Stacy Deal testified that she al-
ways has been able to provide the additional work hours to
employees who sign the sheet.
Based on the testimony of Respondent’s witnesses, which
generally is consistent with other evidence in the record, I find
that the government has proven the allegations raised in com-
plaint paragraphs 15(i), (j) and (k).
As noted above, Respondent admits that it did not notify the
Union or accord it the opportunity to bargaining regarding the
changes and their effects. Having found that the Respondent
made the changes, I now consider whether it thereby violated
the Act.
Respondent argues that because an employee can sign up to
work the additional time, the employees have suffered no loss
and, accordingly, the change is not material, substantial, or
significant. Respondent also argues that the change is not ma-
terial, substantial, or significant because if an employee does
not wish to work under this system, the Respondent will trans-
fer the employee to other work. Ball testified:
Q. Now, for employees who might not want to stay in
HP with those shifts, did you offer them the ability to go to
other accounts?
A. We did. We told them we had several openings
throughout the campus, and if anybody on the team felt
like that this was impeding on their lifestyle, their family,
we would definitely place them in other accounts, doing
similar pick/pack work, and be able to move them. And
several of them moved. The others wanted to stay on the
A/B shift.
However, even accepting as true the testimony that an em-
ployee who wished to work 40 hours a week would have that
opportunity by signing the sheet, and even accepting as true
that Respondent would transfer unhappy employees to other
accounts, I still conclude that the changes were material, sub-
stantial, and significant. In reaching that conclusion, I evaluate
the facts from the perspective of an employee affected by the
changes.
Additionally, in evaluating the materiality and significance
of a change, I do not consider whether it is arguably for the
better or the worse, because different employees will reach
different conclusions on the desirability of the change. That is
one reason why it is salutary, as well as legally required, for the
employer contemplating such a change to notify and bargain
with their representative. The Union is in a unique position to
ascertain the reactions of various bargaining unit employees, to
determine what course is favored by a majority of them, and
also to negotiate changes and accommodations benefiting em-
ployees who do not share the majority view.
It should hardly be surprising that, from the viewpoint of the
employee, changing his schedule from 40 hours spread over 5
days to 3 nonconsecutive days of working an 11-hour shift, plus
some other day, constitutes not merely a material, substantial,
and significant change but indeed, a major disruption of the
patterns of daily life.
The exclusive bargaining representative alone is in a position
to negotiate a change that minimizes the adverse impact and
maximizes the benefits. By failing to notify and bargain with
the Union about the change and its effects, the Respondent
harmed not only the employees’ interests but possibly its own
as well. Not incidentally, it also broke the law. Therefore, I
recommend that the Board find that Respondent violated Sec-
tion 8(a)(5) and (1) by the conduct alleged in complaint para-
graphs 15(i), (j) and (k).
Complaint Paragraph 15(l)
Complaint paragraph 15(l) alleges that about mid-August
2013, the Respondent changed the shift times of the employees
in the inventory department in the HIP account from 4 a.m.—
12:45 p.m. to 8 a.m.—4:45 p.m. Respondent admits this alle-
gation.
In view of Respondent’s admission, and its further admission
that it did not notify or afford the Union the opportunity to
bargain about the changes alleged in complaint paragraph 15
and their effects, the only remaining issue is whether the unilat-
eral change violated the Act. The Respondent made this
change at the same time as the changes, discussed above, af-
fecting shipping department employees. The changes adjusted
the work of the inventory employees to the new schedule.
However, this explanation does not affect the lawfulness or
unlawfulness of making the change unilaterally.
OZBURN-HESSEY LOGISTICS, LLC 91
Respondent raises no new argument with respect to these
employees which it did not also raise in connection with the
allegations discussed above, and I find such arguments unper-
suasive here, as well.
Although many employees might welcome a change in the
starting time from 4 to 8 a.m., I need not and will not speculate.
The issue here is not the arguable desirability of the change but
whether it was material, substantial, and significant enough that
the employees’ representative had to be notified and afforded
the chance to bargain. I conclude that it was.
Therefore, I recommend that the Board find that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by the
conduct alleged in complaint paragraph 15(l).
Complaint Paragraph 15(m)
Complaint paragraph 15(m) alleges that about September 9,
2013, Respondent announced and implemented changes in its
enforcement of rules prohibiting employees from leaving their
assigned warehouse during working time without permission
from a supervisor. Respondent denies this allegation.
The discussion above concerning complaint paragraph 13(m)
touches on many of the same facts relevant here, so it is not
necessary to do additional credibility analysis. The credited
evidence establishes that at a meeting of employees in early
September 2013, Operations Manager Maxey and Human Re-
sources Manager Wright announced that employees would
receive discipline if, after clocking in, they left the warehouse
without permission.
Notwithstanding Respondent’s denial of the allegation, Man-
ager Wright’s own testimony establishes the central facts. Re-
spondent has admitted that she is its supervisor and agent.
Therefore, the following testimony of Wright may be imputed
to Respondent as an admission:
Q. Okay. Let me clear off your desk a little bit so we
can go into something new. Just the GC exhibits. You
keep those. Okay. Sometime in September, we’re going to
a new topic now, did you attend a pre-shift meeting that
David Maxey held in the Browne Halco account?
A. Yes.
Q. And did he talk about people clocking in and then
leaving the building?
A. Yes.
Q. And what did he say?
A. Basically that if you clock in and leave the building
after work time has started, that it’s theft of time. It’s
grounds for termination.
Q. All right. Was this a new policy as far as you were
concerned?
A. No.
Q. Has that been the policy as long as you had been at
OHL?
A. Yes.
Q. Okay. Did Mr. Maxey say that you--only that you
can’t leave the building to park your car?
A. No.
Q. He said you can’t leave the building?
A. He said you can’t leave the building without per-
mission.
Q. Okay. Did you say anything in that meeting about,
about discipline?
A. We talked about that it was theft of time and was
grounds for immediate termination.
Q. Okay. But again was this anything new?
A. No.
Wright’s assertion that the policy was not new forms the ba-
sis for Respondent’s defense. The Respondent’s brief states as
follows:
There was no change in OHL’s rule about employees leaving
the warehouse without permission. There is no evidence that
OHL ever allowed employees to leave the warehouse during
non-break times without permission. Rather, OHL reiterated
its existing rule in September 2013.
However, complaint paragraph 15(m) does not allege that Re-
spondent implemented a new rule. Rather, it alleges that Re-
spondent announced and implemented changes in enforce-
ment of its existing rules.
Wright’s own testimony establishes that Respondent intend-
ed to tighten enforcement of its rule because of customer dissat-
isfaction with the service Respondent’s employees were provid-
ing:
The customer didn’t feel that our employees were engaged or
cared, and so we were really trying to work on building that
relationship and making sure that we were doing everything
we were supposed to do, that the account was being handled
properly. . .
The rule requiring employees to remain in the workplace
while on the clock obviously could improve service, but only if
enforced. I find that Respondent did announce and implement
a stricter enforcement of the existing rule.
The Board has held that a change from lax enforcement of a
policy to more stringent enforcement is a matter that must be
bargained over. See Vanguard Fire & Security Systems, 345
NLRB 1016 (2005), citing Hyatt Regency Memphis, 296 NLRB
259, 263–264 (1989), enfd. sub nom. in relevant part Hyatt
Corp. v. NLRB, 939 F.2d 361 (6th Cir. 1991).
Accordingly, I conclude that Respondent violated Section
8(a)(5) and (1) of the Act by failing to notify the Union and
afford it the opportunity to bargain over the changed enforce-
ment of the rule and the effects of that changed enforcement, as
alleged in complaint paragraph 15(m), and recommend that the
Board so find.
The identification of employees adversely affected by the
unilateral change in enforcement of the rule must be deferred to
the compliance stage.
Complaint Paragraphs 16, 17, and 18
Complaint paragraphs 16, 17, and 18 raise allegations that
the Union, as the employees’ exclusive representative, request-
ed that Respondent provide certain requested information, that
the requested information is relevant to the Union’s duties as
exclusive representative and necessary for that purpose, and
that Respondent has failed and refused to furnish it, thereby
violating Section 8(a)(5) and (1) of the Act.
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Complaint paragraphs 16(a) through (e) allege that since
about June 3, 2013, the Union has requested in writing that the
Respondent furnish the described information. The Respondent
admits each of these allegations.
Complaint paragraph 17 alleges that the requested infor-
mation is necessary for, and relevant to, the Union’s perfor-
mance of its duties as the exclusive collective-bargaining repre-
sentative of the Unit. Respondent denies this allegation.
Complaint paragraph 18 alleges that since “about June 17,
2013, Respondent, by Karen White, in writing, has failed and
refused to furnish the Union with the information requested by
it as described above in paragraph 16.”
Respondent answered this allegation by stating as follows:
“OHL admits that Karen White has not provided the requested
information. OHL denies that she is under any legal obligation
to do so.”
Respondent has admitted that Karen White, its regional vice
president, is its supervisor and agent. Therefore, and consider-
ing that the complaint alleged that “Respondent, by Karen
White” failed and refused to furnish the information, Respond-
ent’s admission that Karen White has not furnished the infor-
mation is tantamount to an admission that Respondent itself had
not.
Relevance of the Requested Information
Complaint paragraph 16(a) alleges, and the Respondent ad-
mits, that the Union requested full seniority lists with names of
bargaining unit employees at each location. Complaint para-
graph 16(b) alleges, and the Respondent admits, that the Union
requested the date of birth for each employee in the bargaining
unit at each location. Complaint paragraph 16(c) alleges, and
the Respondent admits, that the Union requested the date of
hire for each employee in the bargaining unit at each location.
Complaint paragraph 16(d) alleges, and the Respondent admits,
that the Union requested the classification and rates of pay for
each employee in the bargaining unit at each location. Com-
plaint paragraph 16(e) alleges, and the Respondent admits, that
the Union requested the total benefit package (i.e. pension,
insurance, vacation, etc.) for each employee in the bargaining
unit at each location.
All of this requested information pertains to bargaining unit
employees and is presumptively relevant. Disneyland Park &
Disney’s California Adventure, Divisions of Walt Disney World
Co., 350 NLRB 1256 (2007). Nothing rebuts that presumption
here. To the contrary, the information requested is precisely
the information a union needs to engage in negotiations with an
employer and to perform its function as exclusive bargaining
representative. I conclude that the General Counsel has proven
the relevance and necessity of the requested information.
Respondent’s Duty to Furnish
Respondent’s brief includes the following sentence to sup-
port its argument that it has no duty to furnish the requested
information:
OHL has declined the USW’s information request because
there is no valid certification, and to the extent that a certifica-
tion exists, OHL is testing that certification.
However, the Board certified the Union as the employees’
exclusive representative on November 17, 2014. Ozburn-
Hessey Logistics, LLC, 361 NLRB 921. Disneyland Park &
Disney’s California Adventure, Divisions of Walt Disney World
Co., 350 NLRB 1256 (2007).
Accordingly, I recommend that the Board find that, by fail-
ing and refusing to furnish the requested relevant information,
the Respondent violated Section 8(a)(5) and (1) of the Act.
General Counsel’s Motion to Amend Complaint
On the 8th day of hearing, the General Counsel made two
motions to amend the complaint based on the testimony of
Director of Operations Ken Ball, whom Respondent had called
as a witness the previous day. The first motion sought to add
the following language to the complaint:
About May 29, 2013, Respondent, by Director of Operations
Ken Ball, at Respondent’s facility, on two separate occasions,
confiscated and removed pro-Union materials from the em-
ployee break room prior to the end of breaks.
The Respondent opposed the motion. In denying the motion
on the record, I noted that the General Counsel already had
rested, and concluded that the possibility of prejudice to the
Respondent outweighed the interest of the prosecution. Upon
further consideration after making the unfair labor practice
findings discussed below, I believe there is a further reason to
deny the motion. Complaint paragraph 7(a) alleged, and the
record established, that another of Respondent’s managers had
engaged in conduct similar to that described in the proposed
amendment, and I am recommending that the Board order a
remedy for this violation. In these circumstances, adding alle-
gations of similar violations would not affect the remedy.
Therefore, I adhere to my decision to deny the motion to add
the allegations described above.
The General Counsel also moved to amend the complaint by
adding the following language:
About June, July and August 2013, on dates not more specifi-
cally known to the General Counsel, Respondent, by Ken
Ball, in the HP account, bypassed the Union and dealt directly
with its employees in the Unit by soliciting employee input
and proposals concerning work schedule restructuring in the
HP account.
During the hearing, I did not rule on this motion but invited
counsel to address it in their posthearing briefs, which they
have done. The Respondent opposed the motion both during
the hearing and in its brief.
Respondent raised an objection that the proposed amendment
was time-barred under Section 10(b) of the Act. Respondent
also argued that the General Counsel had sufficient information
from its witness Anita Wells to have moved to add this allega-
tion before the government rested its case. The General Coun-
sel disagreed with Respondent concerning how much infor-
mation the government possessed before Director of Operations
Ball’s testimony.
Respondent further argued that Ball’s testimony did not sup-
port a direct dealing allegation. At the hearing, Respondent’s
counsel stated, in part, as follows:
Further, I disagree with the characterization of what Ken Ball
OZBURN-HESSEY LOGISTICS, LLC 93
testified to yesterday. What Ken Ball testified to yesterday
was that there were three meetings with employees where this
change was discussed with employees, and they listened to
what employees had to say. That does not--there--he never
testified that they were asking employees whether or not to
implement an A shift or a B shift, which is what the General
Counsel just said. What he said was that there were meetings
with employees to discuss the upcoming change to the A shift
and B shift. And last time I checked, the National Labor Rela-
tions Act doesn’t prevent an employer from discussing with
its employees upcoming changes. So I don’t think that there’s
a violation there, even if they were within the 10(b) period,
and even if they were properly allowed to amend after they’d
closed their case in chief. So for those reasons, we request that
you deny the amendment.
The General Counsel disagrees with Respondent concerning
the import of Ball’s testimony. In a written motion which the
government placed in the record later in the hearing, and which
supplemented the oral motion, the government argued, in part,
as follows: “Ball testified that Respondent conducted meetings
with HP account employees for the purpose of soliciting input
and proposals from the employees prior to implementing the
shift and work schedule changes in the HP account. Thus, the
allegation of direct dealing is closely and specifically related to
the alleged unlawful unilateral change. . .” Ball’s testimony
itself included the following:
Q. Did you make some kind of determination that you
had to change the shifts for the people in I guess picking
and shipping?
A. That’s correct.
Q. Is that the correct term to use?
A. Yeah. It was quite evident that it was a real strug-
gle. We were trying to stabilize people’s hours to give
them enough hours to really be stable in the account, earn
40 hours’ worth of work. So because of the fluctuating
volume from day to day, it would run as high as 6-, 7,000
on a Sunday, and as high as 3,500 orders a day on a
Wednesday. So we beat around --
Q. That’s how many orders you can pick?
A. Yes.
Q. And ship out?
A. Yes. And so we ran different scenarios as to how
we could best come up with a more creative shift so that
everybody would get their 40 hours. We came up with the
A/B shift. And asked several employees about it with the
guys, see what they thought about it. We thought it was a
good fit for them so they’d get their 40 hours, and we’re
able to stabilize the business as well. And so that’s kind of
where it all generated from.
As the Board stated in Permanente Medical Group, Inc., 332
NLRB 1143 (2000), the criteria to be applied in determining
whether the Respondent has engaged in direct dealing under
Section 8(a)(5) are enumerated in Southern California Gas Co.,
316 NLRB 979 (1995). They are: (1) that the Respondent was
communicating directly with union-represented employees; (2)
the discussion was for the purpose of establishing or changing
wages, hours, and terms and conditions of employment or un-
dercutting the Union’s role in bargaining; and (3) such commu-
nication was made to the exclusion of the Union. Additionally,
the Board considers whether the employer’s direct solicitation
of employee sentiment over working conditions is likely to
erode the union’s position as exclusive representative. Ar-
mored Transport, Inc., 339 NLRB 374 (2003); Allied-Signal,
Inc., 307 NLRB 752, 753 (1992); U.S. Ecology Corp., 331
NLRB 223 (2000), enfd. 26 Fed.Appx. 435 (6th Cir. 2001).
The record clearly establishes that the Respondent was
communicating directly with union-represented employees.
With respect to the second criterion, even in the absence of
specific testimony concerning when and where the meetings
took place and who was present, it would surprise me greatly if
the Respondent had invited union representatives in and served
them donuts. However, from Ball’s testimony it is not even
clear that formal meetings, as such, took place and it is possible
that Ball merely was describing casual hallway conversation.
In any event, considering Respondent’s consistent refusal to
deal with the Union, it would seem very likely that the Union
was not present at such discussions.
As to the second criterion, it is not possible to reach a con-
clusion, based on Ball’s testimony, about the purpose of the
discussions. The record is insufficient to establish whether the
true purpose of the discussions was merely to obtain infor-
mation useful in planning the contemplated scheduling chang-
es, or whether the actual purpose was to establish the actual
schedule changes. Ball’s testimony suggests the former, but I
would wish a much fuller record before reaching any conclu-
sion.
The General Counsel’s motion notes three factors relevant to
determine whether the motion to amend should be granted: (1)
Whether there was surprise or lack of notice; (2) whether the
General Counsel offered a valid excuse for the delay in moving
to amend; and (3) whether the matter was fully litigated. Cab
Associates, 340 NLRB 1391, 1397 (2003). Here, the third fac-
tor is dispositive. The present record includes only the sketchi-
est outline of what may have happened during these discus-
sions. It does not include information establishing either when
and where the discussions took place or who was present.
Moreover, the present case includes a remarkable number of
conflicts in the testimony, far more, it seems, than usual. Wit-
nesses even disagreed about the color of the vehicle a manager
was driving, one witness testifying it was red and the other that
it was green. In such a context, “fully litigated” must certainly
require more evidence than Ball’s brief testimony.
Additionally, a direct dealing allegation raises an issue re-
garding the purpose or motive which a unilateral change allega-
tion does not. For all these reasons, I conclude that the issue
was not fully litigated. Therefore, I deny the General Counsel’s
motion to amend.
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Summary of Unfair Labor Practice Findings
Considering the length of the record, and of this decision, the following summary of my findings and conclusions concerning the
unfair labor practice allegations may be helpful.
Complaint
Para. No
Merit No Merit Section Violated
6(a) X
6(b) X
7(a) X 8(a)(1)
7(b) X
7(c) Withdrawn by General Counsel
7(d) Withdrawn by General Counsel
8(a) X
8(b) X
9(a) X
9(b) X 8(a)(1)
9(c) X 8(a)(1)
9(d) X
10(a) X 8(a)(1)
10(b) X
11(a)-11(c) X
12(a)-12-(c) X
13(a) X
13(b) X
13(c) X
13(d) X
13(e) X
13(f) X
13(g) X
13(h) X 8(a)(3); 8(a)(1)
13(i) X
13(j) X
13(k) X
13(l) X
13(m) X
13(n) X
14(a) Unit Is Appropriate
14(b) Board Certified Union
14(c) Union is 9(a) Rep.
15(a) X
15(b) X
15(c) X
15(d) X
15(e) X 8(a)(5), 8(a)(1)
15(f) X 8(a)(5), 8(a)(1)
15(g) X 8(a)(5), 8(a)(1)
15(h) X
15(i) X 8(a)(5), 8(a)(1)
OZBURN-HESSEY LOGISTICS, LLC 95
15(j) X 8(a)(5), 8(a)(1)
15(k) X 8(a)(5), 8(a)(1)
15(l) X 8(a)(5), 8(a)(1)
15(m) X 8(a)(5), 8(a)(1)
16(a)-16(e) Union’s Information Requests
17 Information Is Relevant /
Necessary
18 X 8(a)(5), 8(a)(1)
15(p) X
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the no-
tice to employees attached hereto as Appendix A.
The General Counsel also seeks an order requiring that the
Notice to Employees be read to employees by the Respond-
ent during working time. Such an order is consistent with
previous Board orders. In Ozburn-Hessey Logistics, LLC,
359 NLRB 1025, the Board stated, in part:
Given the multiple violations committed by the Respond-
ent in Ozburn I, Ozburn II, and this case, we agree with the
judge that a notice reading remedy is appropriate. A read-
ing of the notice will help to assure employees that they
may freely exercise their Section 7 rights in the future. We
will conform this requirement, however, to our established
practice of affording a respondent the option to have its
managers, here Coleman and Smith, read the notice aloud
to employees in the presence of a Board agent.
359 NLRB 1025, 1027 (footnotes omitted).
The Board similarly included a notice reading remedy in
Ozburn-Hessey Logistics, LLC, 361 NLRB 1, 1 fn. 4. Re-
spondent has not yet remedied its unfair labor practices
found in the previous cases and the need for a notice reading
remedy remains.
Additionally, the Respondent must allow the bargaining
unit employees’ certified exclusive representative, on re-
quest, to attend the notice reading and to audio-video record
it so that it may be viewed by employees not then present or
subsequently hired. Because the Respondent has persisted in
committing unfair labor practices over a period of years,
notwithstanding the Board’s orders to cease and desist, and
because the Respondent has failed to remedy its past unfair
labor practices notwithstanding the Board’s orders to do so,
the lingering toxic effect of these violations potentially could
discourage employees from joining the Union or engaging in
union activities well into the future. An audio-visual record-
ing of the reading of the notice would provide continuing
assurance to employees that they may form, join, or assist a
labor organization without fear of retaliation.
Further, to remedy the serious unfair labor practices found
herein, the Respondent must offer employee Stacey Wil-
liams’ immediate and full reinstatement to his former posi-
tion or, if that position is no longer available, to a substantial-
ly equivalent position. It must also make him whole, with
interest, for all losses he suffered as a result of Respondent’s
unlawful discrimination against him. Additionally, I recom-
mend that the Board order the Respondent to compensate the
discriminatee for the adverse tax consequences, if any, of
receiving a lump-sum backpay award and to file a report
with the Social Security Administration allocating the back-
pay award to the appropriate calendar quarters.
Further, Respondent must expunge from its files all refer-
ences to the unlawful discharge of Williams.
Respondent must also provide the Union, without further
delay, the information it has been requesting since June 3,
2013, as described in complaint paragraphs 16(a) through
(e).
Additionally, Respondent must rescind the unlawful uni-
lateral changes in working conditions, as found above, and
restore the status quo which existed before it made those
changes. It also must make employees whole, with interest,
for all losses suffered because of the unlawful changes and
take such other action as may be necessary to remedy all
adverse consequences. The identification of the employees
and determination of the specific remedy due each are ap-
propriate matters for the compliance stage.
The General Counsel also seeks an order requiring Re-
spondent to bargaining in good faith with the Union, on re-
quest, for the period required by Mar-Jac Poultry, 136
NLRB 785 (1962). The Respondent’s extensive history of
unfair labor practices warrants such an order. In reaching
this conclusion, I note that the election on which the Board
based its Certification of Representative took place on July
27, 2011, and that the revised tally of ballots issued on May
14, 2013.
Further, I note the previous recent Board decisions finding
that Respondent has committed numerous violations of the
Act in response to the Union’s organizing campaign.
Ozburn-Hessey Logistics, LLC, 357 NLRB 1456 (2011);
Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011);
Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 (2013); and
Ozburn-Hessey Logistics, LLC, 361 NLRB 921 (2014).
Therefore, I recommend that the Board construe the initial
period of the certification as beginning the date the Respond-
ent begins to bargain in good faith with the Union. Pac Tell
Group, Inc. d/b/a U.S. Fibers, 362 NLRB No. 4, slip op. at 2
(2015).
IV. CONCLUSIONS OF LAW
1. The Respondent, Ozburn-Hessey Logistics, LLC, is an
employer engaged in commerce within the meaning of Sec-
tions 2(2), (6), and (7) of the Act.
2. The Charging Party, United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Ser-
vice Workers International Union, AFL–CIO, CLC a/k/a
United Steelworkers Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
confiscating and removing prounion materials from the em-
ployee break room prior to the end of breaks; by ordering
employees engaged in lawful union solicitation and distribu-
tion activities to leave the premises; by telling employees
that they should quit their employment with the Respondent
and find different jobs if they had complaints about Re-
spondent or otherwise engaged in protected concerted activi-
ties; by informing employees that they are not represented by
the Union; by discharging its employee Stacey Williams
because he engaged in Union or other protected concerted
activities and to discourage other employees from engaging
in such activities; by implementing a mandatory exercise and
stretching program without first notifying the Union and
OZBURN-HESSEY LOGISTICS, LLC 97
affording it the opportunity to bargain about the decision and
its effects; by implementing a requirement that employees
provide advance notice of 24 or 48 hours when requesting
the use of personal time off without first notifying the Union
and affording it the opportunity to bargain about the decision
and its effects; by changing its policies concerning employee
use of personal time off by informing employees that they
would not be allowed to use personal time off on days when
the employees are sent home early without first notifying the
Union and affording it the opportunity to bargain about the
decision and its effects; by changing the shift times of the
employees in its shipping department from 4 days a week to
3 days a week and by changing their work schedule, resulting
in the employees being divided into separate teams with
employees being reduced from working 40 hours a week to
33 hours a week without first notifying the Union and afford-
ing it the opportunity to bargain about the decision and its
effects; by changing the shift times of inventory department
employees without first notifying the Union and affording it
the opportunity to bargain about the decision and its effects;
by announcing and implementing changes in its enforcement
of rules prohibiting employees from leaving their assigned
warehouse during working time without permission from a
supervisor without first notifying the Union and affording it
the opportunity to bargain about the decision and its effects;
and by refusing to furnish the Union with information it re-
quested which was relevant to the Union’s performance of its
duties as the employees’ exclusive bargaining representative
and necessary for that purpose.
4. The Respondent violated Section 8(a)(3) of the Act by
discharging its employee Stacey Williams because he en-
gaged in union or other protected concerted activities and to
discourage other employees from engaging in such activities.
5. The Respondent violated Section 8(a)(5) of the Act by
implementing a mandatory exercise and stretching program
without first notifying the Union and affording it the oppor-
tunity to bargain about the decision and its effects; by im-
plementing a requirement that employees provide advance
notice of 24 or 48 hours when requesting the use of personal
time off without first notifying the Union and affording it the
opportunity to bargain about the decision and its effects; by
changing its policies concerning employee use of personal
time off by informing employees that they would not be
allowed to use personal time off on days when the employees
are sent home early without first notifying the Union and
affording it the opportunity to bargain about the decision and
its effects; by changing the shift times of the employees in its
shipping department from 4 days a week to 3 days a week
and by changing their work schedule, resulting in the em-
ployees being divided into separate teams with employees
being reduced from working 40 hours a week to 33 hours a
week without first notifying the Union and affording it the
opportunity to bargain about the decision and its effects; by
changing the shift times of inventory department employees
without first notifying the Union and affording it the oppor-
tunity to bargain about the decision and its effects; by an-
nouncing and implementing changes in its enforcement of
rules prohibiting employees from leaving their assigned
warehouse during working time without permission from a
supervisor without first notifying the Union and affording it
the opportunity to bargain about the decision and its effects;
and by refusing to furnish the Union with information it re-
quested which was relevant to the Union’s performance of its
duties as the employees’ exclusive bargaining representative
and necessary for that purpose.
6. The Respondent did not violate the Act in any other
manner alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record in this case, I issue the following recom-
mended16
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC, Mem-
phis, Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Confiscating and removing prounion material from the
employee break room prior to the end of breaks;
(b) Ordering employees engaged in lawful union solicita-
tion and distribution activities to leave its premises;
(c) Telling employees that they should quit their employ-
ment with the Respondent and find different jobs if they had
complaints about Respondent or otherwise engaged in pro-
tected concerted activities;
(d) Informing employees that they are not represented by
the Union;
(e) Discharging employees because they engaged in union
or other protected concerted activities or to discourage other
employees from engaging in such activities;
(f) Making unilateral changes in terms and conditions of
employment which are mandatory subjects of bargaining
without first notifying the Union and affording it the oppor-
tunity to bargain over the decision and effects, including the
following such unilateral changes: implementing a mandato-
ry exercise and stretching program, implementing a require-
ment that employees provide advance notice of 24 or 48
hours when requesting the use of personal time off, changing
its policies concerning employee use of personal time off by
informing employees that they would not be allowed to use
personal time off on days when the employees are sent home
early, changing the shift times of the employees in its ship-
ping department from 4 days a week to 3 days a week and
changing their work schedule, resulting in the employees
being divided into separate teams with employees being
reduced from working 40 hours a week to 33 hours a week,
changing the shift times of inventory department employees,
and announcing and implementing changes in its enforce-
ment of rules prohibiting employees from leaving their as-
signed warehouse during working time.
(g) Refusing to furnish the Union with information it re-
quested which was relevant to the Union’s performance of its

16 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and
recommended Order shall, as provided in Section 102.48 of the
Rules, be adopted by the Board, and all objections to them shall be
deemed waived for all purposes.
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duties as the employees’ exclusive bargaining representative
and necessary for that purpose;
(h) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
to self organization, to form, join, or assist any labor organi-
zation, to bargain collectively through representatives of
their own choosing, or to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employee Stacey Williams immediate and full
reinstatement to his former position or to a substantially
equivalent position.
(b) Make Stacey Williams whole for any loss of earnings
and other benefited suffered as a result of the discrimination
against him. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus daily com-
pound interest as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010).
(c) Submit appropriate documentation to the Social Secu-
rity Administration so that when backpay is paid, it will be
allocated to the appropriate calendar quarters and/or reim-
burse Williams for any additional Federal and State income
taxes he may owe as a consequence of receiving a lump-sum
backpay award in a calendar year other than the year in
which the income would have been earned had the Act not
been violated. Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Stacey Williams and, within 3 days thereafter, notify in writ-
ing that this has been done and that the discharge will not be
used against him in any way.
(e) Within 14 days from the date of this Order, rescind the
unlawful unilateral changes found in this decision and de-
scribed in paragraph 1(f), above, restore the status quo exist-
ing before these unilateral changes, and fully remedy all
adverse effects these unilateral changes caused to employees,
including making them whole, with interest computed as
described above. In complying with this paragraph, Re-
spondent also shall take the steps described above in para-
graph 2(c).
(f) Within 14 days from the date of this Order, furnish the
Union with the information which the Union requested, as
described in this decision and referred to above in above in
paragraph 1(g).
(g) Within 14 days after service by the Region, post at its
facilities in Memphis, Tennessee, copies of the attached no-
tice marked “Appendix.”17 Copies of the notice, on form
provided by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative, shall

17 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
National Labor Relations board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including 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 addition to physical
posting of paper notices, noticed shall be distributed elec-
tronically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means.
J. Picini Flooring, 356 NLRB 11 (2010). 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 em-
ployees and former employees employed by the Respondent
at any time since May 15, 2013. Excel Container, Inc., 325
NLRB 17 (1997).
(h) Within 14 days after service by the Region, hold a
meeting or meetings at each of the facilities where bargain-
ing unit employees work, during working hours at times to
assure the widest possible attendance, at which the attached
notice marked “Appendix A” is to be read to the unit em-
ployees by either Senior Vice President Randall Coleman or
Senior Employee Relations Manager Shannon Miles in the
presence of a Board agent, or, at the Respondent’s option, by
a Board agent in such officials’ presence. Upon the request
of the Charging Party Union, in its capacity as the employ-
ees’ exclusive bargaining representative, the Respondent
shall allow officials designated by the Union to attend such
meetings and to make audio-video recordings of the reading
of the Notice.
(i) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Regional Director attesting
to the steps that the Respondent has taken to comply.
Dated Washington, D.C. April 28, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
OZBURN-HESSEY LOGISTICS, LLC 99
WE WILL NOT interfere with, restrain, or coerce our em-
ployees in the exercise of these rights, guaranteed to them by
Section 7 of the National Labor Relations Act.
WE WILL NOT confiscate or remove prounion literature
from the employee break room before the end of breaks.
WE WILL NOT order employees engaged in lawful union
solicitation and distribution activities to leave the premises.
WE WILL NOT tell employees that they should quit their
jobs or find other work if they have complaints about us or
are engaged in union or other protected concerted activities.
WE WILL NOT tell employees that they are not represented
by the Union.
WE WILL NOT discharge employees because they engaged
in union or other protected concerted activities or to discour-
age others from engaging in such activities.
WE WILL NOT make changes in terms and conditions of
employment which are mandatory subjects of bargaining
without first notifying the Union and affording it the oppor-
tunity to bargain over the decision and effects, including the
following such unilateral changes: implementing a mandato-
ry exercise and stretching program, implementing a re-
quirement that employees provide advance notice of 24 or 48
hours when requesting the use of personal time off, changing
its policies concerning employee use of personal time off by
informing employees that they would not be allowed to use
personal time off on days when the employees are sent home
early, changing the shift times of the employees in its ship-
ping department from 4 days a week to 3 days a week and
changing their work schedule, resulting in the employees
being divided into separate teams with employees being
reduced from working 40 hours a week to 33 hours a week,
changing the shift times of inventory department employees,
and announcing and implementing changes in its enforce-
ment of rules prohibiting employees from leaving their as-
signed warehouse during working time.
WE WILL NOT refuse to furnish the Union with information
it requested which was relevant to the Union’s performance
of its duties as the employees’ exclusive bargaining repre-
sentative and necessary for that purpose.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Stacey Williams immediate and full rein-
statement to his former position or to a substantially equiva-
lent position should his former position not be available.
WE WILL make Stacey Williams whole, with interest com-
pounded daily, for all losses he suffered because we unlaw-
fully discharged him.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discharge of
Stacey Williams.
WE WILL rescind the unilateral changes described above,
restore all affected terms and conditions of employment
which existed before we made the unlawful changes, and
make whole, with interest, all employees who suffered losses
because of these changes.
WE WILL furnish the Union with the information it re-
quested which is necessary and relevant to performing its
duties as our employees’ exclusive bargaining representative.
OZBURN-HESSEY LOGISTICS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15-CA-097046 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.