Aldworth Co.

National Labor Relations Board - Board Decisions

Dec 8, 2004

343 N.L.R.B. 881 (N.L.R.B. 2004)

ALDWORTH CO.
343 NLRB No. 97
881
Aldworth Company, Inc. and Dunkin’ Donuts Mid-
Atlantic Distribution Center, Inc., Joint Em-
ployers and United Food and Commercial
Workers Union Local 1360 a/w United Food and
Commercial Workers International Union,
AFL–CIO and William A. McCorry. Cases 4–
CA–27274, 4–CA–27289, 4–CA–27603, 4–CA–
27629, 4–CA–27725, 4–CA–27866, and 4–RC–
19492
December 8, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On February 26, 2003, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief and both Respondent Aldworth Company, Inc. and
Respondent Dunkin’ Donuts Mid-Atlantic Distribution
Center, Inc. filed answering briefs to the General Coun-
sel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 and
to adopt his recommended Order.3

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the final paragraph of the section of his supplemental decision
headed “Whether the Old SAP was Enforced Less Rigorously Than the
New SAP,” the judge mischaracterizes the Board’s finding set forth in
fn. 40 of its Decision and Order. He states that the Board “already
concluded that the new SAP was less harshly enforced in reality than as
written when employees were not required to undergo additional train-
ing.” Contrary to the judge’s statement, the Board did not find that the
new SAP was less harshly enforced. See Aldworth Co., 338 NLRB 137
145 fn. 40 (2002).
3 In adopting the dismissal of allegations that the discharges of Carl
Nelson, James Everidge, Stanley Wallace, and Martin Cramer violate
the Act, we focus particularly on the manner in which the issue was
litigated. The judge determined that the General Counsel failed to
produce evidence showing enforcement disparities sufficient to estab-
lish that the four employees would not have been discharged under the
old SAP production standard. The record makes clear that the judge
and all the parties construed the Board’s remand as requiring this ap-
proach. The General Counsel did not except to the judge’s alternative
analysis under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), but instead chal-
lenged the judge’s credibility findings and asserted that she had pre-
sented sufficient evidence to meet the judge’s standard. As the issue
ORDER
The complaint allegations of Section 8(a)(5), (3), and
(1) relating to the discharges of Carl Nelson, James
Everidge, Stanley Wallace, and Martin Cramer are dis-
missed.
Margarita Navarro-Rivera and Deena E. Kobell, Esqs., for the
General Counsel.
Mark Peters and Allison J. Little, Esqs. (Rubin & Rudman,
LLP), of Boston Massachusetts, for Respondent Dunkin
Donuts.
Ronald I. Tisch and Douglas C. Adams, Esqs. (Littler Mendel-
son, P.C.,), of Washington, D.C., for Respondent Aldworth.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. In Aldworth
Co., 338 NLRB 137 (2002), the Board concluded that Aldworth
unlawfully implemented new performance standards, called the
selection accuracy policy (SAP), for its warehouse employees
in violation of Section 8(a)(3), (5), and (1). The Board sus-
tained my findings that a number of employees were unlawfully
terminated as a result of the implementation of the new policy
but reversed my findings that employees Carl Nelson, James
Everidge, Stanley Wallace, and Martin Cramer were not unlaw-
fully terminated and remanded the case to me for further hear-
ing. “The sole purpose of the hearing is to take evidence on
whether the old SAP had been enforced less rigorously than the
revised SAP.” (Footnote omitted.) Id. at 148. The remanded
portion of this case was tried in Philadelphia, Pennsylvania, on
December 11, 2002.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent Aldworth, and Respondent
Dunkin Donuts, I make the following
FINDINGS OF FACT
Subpoena Issue
In anticipation of the remand hearing the General Counsel
subpoenaed the overage, shortage, and damage reports and
weekly selector performance reports for warehouse employees
working from January 1, 1997, to June 30, 1999, from Respon-
dents. Some of these documents, from the period October 16,
1998, to May 21, 1999, were provided to the General Counsel
by Aldworth at the earlier hearing. At the remand hearing Re-
spondents failed to produce the subpoenaed documents, ex-
plaining that they no longer were available. The General Coun-
sel asks that I draw an adverse inference from the lack of pro-
duction.
On December 31, 2000, Aldworth lost its contract to perform
services for Dunkin Donuts at the Swedesboro, New Jersey
facility. Aldworth employs Scott Webster as an operations

has been framed before us, we find no merit in the General Counsel’s
exceptions and, thus, do not disturb the judge’s disposition.
Chairman Battista notes that there were no exceptions to the judge’s
application of Great Western Produce, 299 NLRB 1004 (1990). See
Essex Valley Nurses Assn., 342 NLRB 924, 926, 927 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD882
manager. Among other things, Webster is Aldworth’s custo-
dian of certain records. Webster credibly testified that Ald-
worth does not keep the subpoenaed documents but instead the
client keeps them, in this case Dunkin Donuts. Nonetheless,
Webster visited Aldworth’s storage facility where documents
are kept; Webster spent about 7 hours searching for the docu-
ments but, as expected, he did not find them. Webster was
unaware of what happened to the documents that Aldworth had
provided to the General Counsel at the earlier hearing in this
case.
Dunkin Donuts currently employs Warren Engard as an op-
erations manager. Engard testified about the SAP at the earlier
hearing. Certain records were kept under Engard’s custody.
Concerning the subpoenaed records covering 1997, Engard
testified without contradiction that this information was kept in
computer files on Lotus spread sheets. When Dunkin Donuts
moved it facility to Swedesboro, New Jersey, in 1998, the com-
puters at the new facility were equipped with the Excel spread-
sheet program and not with the Lotus program. Dunkin Donuts
was unable to convert the information on the Lotus program to
the Excel program, so it disposed of the Lotus files. Engard
also testified that hard copies of the 1997 documents were dis-
posed of in early 1998. This occurred before any charges were
filed in this proceeding. Engard had custody of the remaining
subpoenaed documents until they were taken in 1999 for use at
the earlier trial. Engard has not seen the documents since then.
After the subpoena was served in this proceeding Engard
searched for the documents but did not find them. Two former
Aldworth managers, David Mann and Tim Kennedy, also had
access to the records. Engard asked them if they knew where
the documents were and each answered that he did not.
The General Counsel argues that I should discredit Engard’s
testimony concerning his inability to locate the documents
based on the following. Engard testified that he did not know
the details of the earlier decision in this case, including the fact
that the Board found that several employees had been unlaw-
fully terminated. Engard explained that the decision went to
the general manager. Engard also testified that he was unaware
of the fact that Respondent supposedly made offer of reinstate-
ment to certain of the discriminatees.1 Engard explained that he
was aware that a notice had been posted and the notice indi-
cated that the employees were to be returned to work, but that
was the extent of his knowledge of the matter. Engard also
testified that he was not aware of the details concerning why
the employees were originally terminated. The General Coun-
sel argues that foregoing testimony is so inherently implausible
that Engard’s overall testimony should be discredited. How-
ever, I find nothing in foregoing testimony to be so incredible
so as to warrant such a conclusion.
I conclude that Respondents failure to produce the subpoe-
naed documents was not because the documents would not
have supported their positions but was instead due to the fact

1 Although Respondents did not challenge the General Counsel’s as-
sertion that offers of reinstatement were made, there is no evidence in
the record to support any specific findings concerning the offers. Sig-
nificantly, the record does not show whether any of these former em-
ployees actually returned to work.
that the documents could not be located after a reasonable ef-
fort was made to do so. The case for drawing a negative infer-
ence is further belied by the fact that Respondents previously
provided the General Counsel with a portion of the documents.
This is hardly consistent with someone who is trying to with-
hold disclosure of those documents. Under these circumstances
I make no negative inference from Respondents failure to pro-
duce the documents.2
Probationary employees
The Board remanded the issue of whether Martin Cramer
was unlawfully fired pursuant to the implementation of the new
SAP. The record in the prior proceeding clearly showed that
Cramer was a probationary employee and probationary em-
ployees were not covered by either the new or old SAP.3 Thus
the conclusion inevitably follows that Cramer was not dis-
charged pursuant to any SAP; rather he was fired during his
probationary period before the SAPs became applicable to him.
When the General Counsel did not pursue Cramer’s discharge
in his earlier brief I concluded, erroneously as it turns out, that
the General Counsel was attempting to avoid an obvious dis-
missal on the merits. I found:
The General Counsel also alleged that Martin Cramer was
unlawfully discharged under the new policy. However, the
General Counsel does not make that contention in his brief.
At the trial it appeared that Cramer was discharged during his
probationary period. I conclude that the General Counsel is
no longer contending that Cramer was unlawfully terminated.
The Board reversed this conclusion and found that the General
Counsel had not abandoned his assertion that Cramer was
unlawfully terminated under the new SAP. I find it necessary
to assess the nature of the Board’s remand. If the Board’s re-
versal was merely procedural, then the Board had before it all
the evidence necessary to resolve the merits. Indeed, Respon-
dents argued, and the General Counsel agreed, that the facts
were as set forth above.4 Moreover, the matter of whether
Cramer was discharged pursuant to the new SAP or whether,
instead, he was a probationary employee not subject to that
policy was fully litigated in the earlier hearing and there is no
contention that I am aware of that I erroneously excluded evi-
dence on this matter at the earlier hearing. Thus, if the Board’s
ruling is merely procedural a remand would have been unnec-
essary; the Board could have reached the merits based on the
undisputed evidence before it. Yet if the Board’s ruling was

2 I am not at all certain that I should proceed beyond this point. As
indicated, the Board instructed that the sole purpose of the remand
hearing was to take evidence on whether the old SAP was enforced less
rigorously than the new policy. No additional evidence was adduced,
so there is nothing new to consider. However, because all parties again
make arguments based on the prior record I will again address those
arguments in the event that it might be helpful.
3 As indicated above, the General Counsel has adduced no new evi-
dence on this matter. Indeed, at the remand hearing the parties stipu-
lated that warehouse employees were subjected to a probationary pe-
riod of 40 worked days during which they were not subject the SAP.
4 Even now the General Counsel continues to concede that Cramer
“was a probationary employee, and not subject to the SAP when the
policy changed” and that Cramer “was not subject to the Old SAP . . . .
ALDWORTH CO. 883
meant to indicate that I should reconsider the substance of
whether Cramer was unlawfully fired, it must follow that the
Board was unpersuaded by the evidence before it. The Board
noted:
Irrespective of Cramer’s entering the new system while under
probationary status, the General Counsel argues that his ter-
mination under the harsher and more strictly enforce[d] re-
vised system violated the Act.
Id. at 10. This is a further indication that the Board was not
persuaded by the evidence before was sufficient to resolve the
matter. Yet the undisputed evidence, then as well as now, is
that probationary employees were not covered by either SAP
and Cramer was a probationary. It must follow that Cramer
was not discharged as a result of the implementation of the new
SAP.
Whether the Old SAP was Enforced Less Rigorously
than the New SAP
In the earlier decision I concluded that Aldworth violated
Section 8(a)(3) by implementing the new SAP. The Board
affirmed that conclusion. I concluded that the new SAP was
harsher in some respects and more lenient in other respects
compared to the old SAP. I further concluded that the new
SAP was unlawful because it was an attempt to fulfill earlier
unlawful solicitations of grievances and promises to rectify
them.5 The Board disagreed and concluded that the new SAP
was implemented to punish employees for engaging in union
activities.
In my earlier decision I applied a two-part analysis in deter-
mining whether employees were unlawfully discharged as a
result of the implementation of the new SAP. First, I deter-
mined whether the new SAP itself was instituted for an unlaw-
ful reason. Then, citing Great Western Produce, 299 NLRB
1004 (1990), I determined whether the evidence showed that
the employees would have been fired in any event under the old
SAP.6 The Board did not dispute the application of this analy-

5 Warehouse employees had complained about how difficult it was
to work under the old SAP. Aldworth Executive Vice President Kevin
Roy promised to look into those complaints and asked the employees to
trust him to keep his word and give him a chance to deal with those
complaints. The Board affirmed the conclusion that these statements
violated Sec. 8(a)(1). Also, Aldworth Regional Operations Manager
Timothy Kennedy told an employee that the warehouse employees
would like the new SAP because it would be harder for them to lose
their jobs under it. Furthermore, while I did not credit Aldworth’s
Assistant to Executive Vice President Wayne Kundrat’s testimony that
the new SAP was implemented for lawful reasons unrelated to the
Union, I specifically credited a portion of Kundrat’s testimony that
corroborated Kennedy’s view of the new SAP. While the Board did
not disturb my credibility resolutions on this issue, it cited my treatment
of Kundrat’s testimony as an example of “apparent inconsistencies” in
my reasoning on this issue.
6 Under the circumstances of this case application of the standards
set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), produce the same
results. That is, the issue becomes whether Respondent would have
terminated the employees anyway pursuant to the old, but lawful, SAP.
sis.7 Under this analysis, I concluded that seven employees
were unlawfully fired but four employees were not. The Board
sustained my conclusions as to the seven but reversed as to the
four.
At the hearing, the General Counsel presented no new evi-
dence. Instead, it relied upon its assertion, rejected above, that
it was entitled to a negative inference based on Respondent’s
failure to produce subpoenaed documents and on evidence
already in the record. Based on this evidence the General
Counsel argues that the new SAP was enforced more strictly
that the old SAP.
The General Counsel points to findings that the Board has al-
ready made on this matter. The Board concluded that under the
old SAP discipline was flexibly carried out to accommodate
both Respondent’s fluctuating manpower needs as well as em-
ployees’ desire for time off.” Id. at 148 fn. 40. It appears that
the Board made these findings to show that the new SAP was
harsher than the old SAP to support its conclusion that the new
SAP was instituted as a reprisal and not as an implementation
of promises to remedy grievances. However, the evidence in
the record does not show that employees were able to avoid
discipline altogether due to Respondent’s manpower needs and
employees’ desire for time off. Rather, it was only the timing
of the discipline that was affected by those considerations.
Under these circumstances it is difficult to understand how this
is a factor to be considered in deciding whether the discipline
imposed under the new SAP as applied was harsher than under
the old SAP as applied. In any event, in my first decision I
concluded that under the new SAP unlawfully terminated em-
ployees Nelson, Allen, Rosenberger, and Bostic were allowed
to work short periods of time after their last misconduct before
they were actually fired. This was done for the same reasons
Respondents delayed imposing discipline under the old SAP.
The Board did not overturn those conclusions. I therefore con-
clude that both the new and the old SAPs were laxly enforced
in terms of when the discipline was actually carried out.
The Board also concluded that the training opportunities
provided under the new SAP existed more in theory than in
reality. Id.8 Thus, it concluded that by depriving employees of

7 The Board ordered that I compare the old SAP with the new SAP
to determine if it was less strictly enforced. This instruction appears to
be inconsistent with the legal analysis that I applied, because the rela-
tive strictness of the enforcement of the two policies goes only to the
issue of whether the new SAP was instituted in retaliation for the em-
ployees’ union activities. But this issue was already resolved by the
Board itself in its decision. And a comparison of the relative strictness
in the application of the two policies does nothing to assist in resolving
the issue of whether the employees would have been terminated any-
way under the old system. That is, if the old SAP was less rigorously
enforced than the new one is beside the point of whether the employees
would have been terminated in any event under the old system. More-
over, although the issue at hand is only whether the employees were
unlawfully terminated the Board did not limit its remand to that issue
but instead appears to seek an analysis of whether the competing SAPs
were in other ways more or less rigorously enforced. I shall, of course,
comply with the Board’s instruction and make the comparison.
8 Under the new SAP employees who received four written warnings
in a 12-week period would receive additional training and evaluation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD884
required additional training Respondents applied the new SAP
more harshly in reality than under the written version.
Finally, the General Counsel points to the Board’s findings
concerning the number of employees terminated under each
SAP. Specifically, the Board pointed out that stringency of the
new SAP was shown by the fact:
Within only 3 weeks, an employee’s failure to meet the new
performance standards could mean discharge. This resulted
in the termination of 10 employees within the first four weeks
under the new SAP, and another employee three months later.
By contrast, a total of only seven warehouse employees had
been discharged for performance errors in the approximately
22 months just prior to the implementation.
Id. at 148. Aldworth argues that Wallace, Everidge, and Nel-
son were terminated as a result of performance errors. How-
ever, the language cited above clearly indicates that the Board
has ruled out the possibility that the employees terminated un-
der the new SAP could have actually merited the discipline as a
result of performance errors rather than the stringency of the
new SAP and even though none of the three employees were
fired after having failed to meet the performance goals for 3
consecutive weeks.
Next, the General Counsel referred me to the evidence in the
existing record that he asserted supports the conclusion that the
old SAP was less rigorously enforced than the new one. Dur-
ing the meetings that Respondent Aldworth conducted as part
of its antiunion campaign Executive Vice President Kevin Roy
said that he knew that some of the warehouse did not “work in
the warehouse very well” and that he had “tolerated a lot” from
them. However, I conclude that these comments are too vague
to support a conclusion that Respondents enforced the old SAP
less rigorously than the new one. Respondent Aldworth’s As-
sistant to Executive Vice President Wayne Kundrat also admit-
ted that Regional Operations Manager Tom Kennedy had dis-
cretion to reduce points assessed against an employee and ad-
just the discipline imposed under the old SAP and that Kennedy
did so in order to make the discipline reasonable with the of-
fense. However, as Dunkin Donut points out, the evidence
shows that Respondents continued to exercise this same discre-
tion under the new SAP. For example, in December 1998,
under the new SAP Aldworth did not assess any points against
employee Douglas King for the first week that he returned to
work after his daughter was born and after he had been in a car
accident. Moreover, as I found in my earlier decision that
thenew SAP was also applied in a less harsh manner in actual-
ity as opposed to how it was written. For example, Allen was
assessed six points and should have been fired under the new
SAP. Instead, however, he received only a third level written
warning. Rosenberger and Walker likewise should have been
fired under the new SAP as written, but they instead received
written warnings. The General Counsel has not pointed to a
single instance under the old SAP that an employee deserved

In addition, employees who were assessed four points also were to be
assigned additional training.
discipline but was not given it.9 I therefore conclude that in this
regard the new SAP was enforced in a less rigorous fashion
than the old SAP.
Next, the General Counsel points to documents that show
that under the old SAP employees often received two or more
disciplinary letters on the same day. These documents clearly
show that Respondent sometimes delayed the imposition of
discipline under the old SAP. But here again these document
do not show that employees avoided discipline altogether.
Moreover, as indicated above, the evidence shows that under
the new SAP Respondents also delayed imposing discipline.
The General Counsel also points out that under the old SAP
some employees received numerous disciplinary letters and
were not terminated. For example, the General Counsel points
out that employee Jesse Sellers received 19 disciplinary letters.
From this the General Counsel concludes that the old SAP was
laxly enforced. I disagree. As the evidence shows, under the
old SAP employees were able to reduce the number of points
they had accrued and thus were able proceed again up the lad-
der of discipline without being terminated. Thus, the number
of letters received by employees shows nothing concerning
whether the old SAP was laxly enforced. In fact, in my earlier
decision I found:
Under the old selection accuracy program Sellers received a
wide range of discipline from cautionary warnings to a 3-day
suspension. However, he was always able to reduce his
points to zero and avoid the final step—termination. Sellers
converted to the new system with one point assessed against
him.
Id. at 91. The Board did not reverse these findings. It follows
that this argument must be rejected.
Finally, the General Counsel argues the Nelson and Everidge
had a history of selection accuracy problems since the begin-
ning of his employment. Despite these problems Engard, then
Respondent Dunkin Donuts’ warehouse supervisor, told Nelson
that Nelson has selection accuracy problems but that Engard
would make an exception and give Nelson a chance as a regular
full-time employee. But again, I fail to see how this is evidence
that the old SAP was enforced in a more lax fashion than writ-
ten. Engard’s decision to take a chance and allow Nelson to
convert to a regular employee shows only that Engard took a
chance in expecting that Nelson would be able to meet the
standards. And, as pointed out above, the number of discipli-
nary letters alone shows nothing concerning the laxity of the
enforcement of the SAPs.
To summarize, the Board has already concluded that new
SAP was less harshly enforced in reality than as written when
employees were not required to undergo additional training. It
has also concluded that the new SAP was more stringently
enforced based upon the relative numbers of employees who
were fired under each SAP. I have not found any other exam-
ples of where the old SAP was enforced less rigorously than the
new SAP. The difficulty, however, is that none of these find-

9 Respondent Dunkin Donuts concedes that Everidge was given two
consecutive final warning on July 25 and August 1, 1998. It argues that
this was nothing more than an administrative mistake.
ALDWORTH CO. 885
ings are useful in resolving the issue of whether the employees
would have been terminated anyway under the old SAP.
General Counsel’s Remaining Arguments
As noted, the General Counsel has argued that the old SAP
was less rigorously enforced than the new. But it is significant
that the General Counsel does not argue that the four employ-
ees would not have been terminated as a consequence of the
laxity. In other words, the General Counsel does not connect
the laxity with the terminations. Instead, the General Counsel
makes two additional arguments.
The General Counsel argues that under the old SAP Nelson,
Everidge, and Wallace would have lowered the number of
points assessed to them because they worked for periods of
time with no selection accuracy problems. By doing so the
General Counsel is arguing that under the old SAP as written
these employees would not have been terminated.10 Yet the
Board did not disturb my findings that under the old SAP as
written these employees would have been fired. Indeed, if it
felt the existing record showed, as the General Counsel argues,
that the employees would not have been fired under the old

10 As Respondent Dunkin Donuts points out, in its earlier brief the
General Counsel conceded that Everidge and Wallace would have been
terminated under the old SAP. I noted this fact in my earlier decision
and relied upon it in dismissing those allegations. The Board did not
disturb my finding that the General Counsel made those concessions.
SAP even as written a remand would have been unnecessary. I
therefore decline to consider this argument.
The General Counsel makes a similar, but slightly different
argument. It will be recalled that as part of the transition from
the old to the new SAP employees were assigned a certain
number of points that they would carry with them into the new
SAP. The General Counsel argues that Nelson, Everidge, and
Wallace were incorrectly assigned points because in the period
immediately before the assignment they worked for periods of
time without any selection accuracy problems and therefore
were entitled to a lower number of points. But here again I
specifically addressed that matter in my earlier decision and the
Board did not disturb those findings. In fact, the Board cited,
with apparent approval, the specific number of points assigned
to the employees. I therefore also decline to consider this ar-
gument also.11
ORDER
Based on the foregoing, I affirm my previous ruling that Nel-
son, Everidge, Wallace, and Cramer were not unlawfully termi-
nated.

11 It should not escape notice that in both of these arguments the
General Counsel is pointing out how the old SAP was enforced more
rather than less rigorously when Respondents failed to assign employ-
ees the lower number of points that they otherwise would have been
entitled to under the program as written.