Alexandria NE LLC

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 217 (N.L.R.B. 2004)

ALEXANDRIA NE LLC
342 NLRB No. 23
217
Alexandria NE LLC, and Teamsters Local 401 a/w
International Brotherhood of Teamsters, AFL–
CIO. Case 4–CA–32368
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On February 18, 2004, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and the
complaint is dismissed.

Donna Brown, Esq. (Anne Ritterspach, Esq., on brief), for the
General Counsel.
Joseph P. Hofmann, Esq., for the Respondent.

DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 6, 2004.
The complaint alleges that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging employee David Stavetski
because of his union and other protected activity. Respondent
filed an answer denying the essential allegations in the com-
plaint. After the trial closed, the parties filed briefs, which I
have read and considered.
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, is engaged in the
fabrication and distribution of wood moldings and banisters at

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 admin-
istrative 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.
its Wilkes-Barre, Pennsylvania plant. During a representative 1-
year period, Respondent purchased and received, from its
Wilkes-Barre plant, goods valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania. Ac-
cordingly, I find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Charging Party Union (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
The Respondent’s headquarters (Alexandria West) is located
in Yakima, Washington, where Respondent also operates a
plant that manufactures and distributes product. Another plant
is located in Canada. In November 2002, Respondent opened
its Wilkes-Barre plant, which is primarily a distribution center.
In April 2003, while the Wilkes-Barre plant was still in a
startup mode, Curtis Mattingly was appointed general manager
of the plant. He was assisted by, among other officials, Ware-
house Manager Mark McGlaughlin and Operations Manager
Mike Lajoie. Mattingly dealt closely with Human Resources
Manager Bob Rines, who was stationed at Alexandria West.
Mattingly served as general manager of the Wilkes-Barre plant
until the end of August 2003. The alleged discriminatee, David
Stavetski, worked in the Wilkes-Barre warehouse, under the
general supervision of McGlaughlin, from February 4, 2003,
until his discharge on August 14, 2003.
Sometime toward the end of June, the Union filed an election
petition seeking to represent Respondent’s Wilkes-Barre em-
ployees. Pursuant to a Stipulated Election Agreement, a Board
election was scheduled for July 23, 2003, in an appropriate
bargaining unit. In the campaign that followed, Respondent
opposed the Union, but committed no unfair labor practices.
Mattingly met with the employees on one occasion. He read a
letter from Respondent’s management stating that it opposed
the election of the Union. He also told the employees of his
own unfavorable experiences with a union. The election was
held as scheduled on July 23. The Union won the election by a
vote of 13 to 12, but Respondent filed an objection to the elec-
tion alleging that employee David Stavetski, who was the Un-
ion’s observer during the election, threatened and harassed
employees in order to get them to vote for the Union. After an
investigation, the Regional Director, on September 2, 2003,
issued a decision overruling the objection, finding that the al-
leged misconduct was either not attributable to Stavetski or the
Union or was insufficient as a matter of law to adversely affect
the election. Thus, the Regional Director upheld the election
results and recommended that the Union be certified. No excep-
tions were filed to that decision, and, on October 3, 2003, the
Board issued its final certification of the Union. As of the date
of the hearing, the Respondent and the Union were engaged in
negotiations for a first collective-bargaining agreement.
Beginning at the end of June and continuing into late July
and early August, General Manager Mattingly made several
changes in employee work hours and conditions. For example,
when Mattingly took over, the plant operated only one shift,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
from 8 a.m to 4:30 p.m. Later, a second shift was added, thus
creating an overlap between the end of one shift and the begin-
ning of the other. Thereafter, at the request of the employees,
including Stavetski, the start of the first shift was changed to
6:30 a.m., with a corresponding change in the end of the shift,
to 3 p.m. At some point, Respondent also granted the second-
shift a flexible work-hour schedule that permitted the second-
shift employees to work 9 hours on each of 4 days and only 4
hours on Friday. Stavetski, on behalf of other employees, ap-
parently asked for the same flexible schedule for the first-shift
employees. But Respondent declined because the flexible
schedule was viewed unique to the second shift (Tr. 24-25, 26).
As part of his changes, Mattingly installed a timeclock at the
Wilkes-Barre plant, which became operational in late July or
early August. Before its installation, the Wilkes-Barre plant
used weekly time or sign in sheets to record the hours of em-
ployees and employees freely filled in each other’s names and
hours. Mattingly went to the time clock system at least in part
because he thought that the existing sign in practice was
flawed. Alexandria West itself operated a timeclock system and
the applicable employee handbook had rules on the use of
timecards. Copies of the handbook, which was dated January
2003 and applied also, in relevant respects, to Alexandria West,
were distributed to all employees upon their hire. According to
the handbook, employees were not to “alter a time card for any
reason whatsoever” or “fill out another employee’s time card.”
Violation of these rules subjected an employee to discipline “up
to and including termination.” (Jt. Exh. 2(c), pp. 5-6.) The
Wilkes-Barre employees were required to punch in and out
when they arrived for and left work and left for and returned
from lunch. They did not have to punch in and out for their
morning and afternoon breaks. The employees’ timecards were
kept in a rack next to the timeclock and the times were elec-
tronically entered by computer. In deciding to use a rack to
store the timecards and to dispense with punching in and out for
breaks, Mattingly considered the views of the employees, in-
cluding Stavetski. When the timeclock was installed, Mattingly
and an office clerical employee instructed the employees on its
proper use.
Mattingly also made a change in the lunch period, from
11:30 a.m. to 12 noon to 11 to 11:30 a.m., which was an-
nounced to employees on August 13, 2003. The change was
apparently the result of earlier changes, which had compressed
the workday without a corresponding change in the lunch pe-
riod, and Mattingly’s view that production was dropping off
late in the workday (Tr. 135-136, 180). A number of employees
objected to this change, including Stavetski, who spoke to
Mattingly separately about the matter, because many of the
restaurants in the area were not open at that time and because,
according to the employees, 11 a.m. was just too early for lunch
(Tr. 140, 34). Mattingly also changed both the time and length
of the breaks, but it is unclear from the record whether either of
those changes or both were made at the same time as the
change in the lunch period or at some earlier time (Tr. 32, 34-
36, 78-82, 178-182). Mattingly reduced the length of the breaks
from 15 to 10 minutes, after consulting Human Resources
Manager Rines, to comport with the Respondent’s handbook,
which provided for only 10-minute breaks (Tr. 131-132). As a
result of the employees’ objections, Mattingly immediately
reversed his decision and reinstituted the lunch period, and
perhaps the breaks, as before, except that the length of the
breaks was kept at 15 minutes. The change lasted only 1 day,
August 14, and the change back to the old lunch period was not
effectuated on that day because the computer could not make
the change immediately.
On August 14, shortly before 11:30 a.m., Mattingly was
watching employees returning from lunch because he thought
some of them were not actually returning to work after punch-
ing in. He stationed himself in a direct line and with an open
view to the timeclock area from about 20 to 25 feet away and
observed employees punching in after their return from lunch.
He observed Stavetski taking several timecards from the rack
and swiping them through the timeclock slot. Mattingly then
called Stavetski toward him and asked Stavetski what he was
doing. According to Mattingly, Stavetski said he was “swiping
people as they come back from lunch.” Mattingly told Stavetski
that he was not to touch anyone else’s timecard. Stavetski then
apologized and said it would not happen again. Mattingly told
Stavetski that he would have to “get back to you.” (Tr. 152.)
Stavetski did not deny swiping the timecards of other em-
ployees or being called over to Mattingly at the time. He testi-
fied, however, that he was coming back from lunch with a
group of five other employees, who authorized him to swipe
their cards. Those other employees corroborated Stavetski on
this point, but none of their testimony, nor that of Stavetski, is
clear on when they actually returned from lunch or where ex-
actly they were located when they authorized Stavetski to swipe
their cards or when he actually swiped their cards. Indeed, it is
not clear whether these other employees went to work immedi-
ately after coming in from lunch; some testified they went off
to the lunchroom to finish their lunch or to store the remains
from their lunch. In any event, the timecards indicate that all
were swiped at 11:27 a.m., although some had also been swiped
minutes before. Mattingly credibly testified that he saw only
one employee, Asa Emel, near Stavetski when Stavetski was
swiping the cards of other employees.
According to Stavetski, after Mattingly called him over and
asked him what he was doing, Stavetski replied, “We just go[t]
back from lunch. I was punching everyone in. Okay. Not a
problem. And I proceeded to go to eat my lunch.” (Tr. 73.)
I do not credit Stavetski’s testimony on this point. Not only
is Stavetski’s testimony conclusory and truncated, in contrast to
Mattingly’s clearer, more detailed account, some of it makes no
sense. For example, Stavetski does not identify who said,
“Okay” and “Not a problem,” but he implied that it was
Mattingly. In view of what happened later and in the circum-
stances, I find it highly unlikely that Mattingly would have
dismissed the matter so cavalierly. Moreover, Stavetski did not,
according to his own testimony, tell Mattingly what, from his
point of view, would have been the most exonerating fact in his
story, that is, that other employees specifically asked him to
swipe their cards. Had this been true, it would have been natu-
ral for Stavetski to tell Mattingly this up front. Even later that
day, when Stavetski was told he had been fired, he did not vol-
unteer, even in his own testimony about the termination, that he
had been authorized by others to swipe their timecards or that
ALEXANDRIA NE LLC 219
the other employees had in fact returned to work at the time
indicated. That Stavetski did not mention these matters to his
superiors on these two occasions leads me to doubt not only the
testimony of Stavetski, but also that of the other employees
who supported Stavetski that they specifically authorized him
to do so or that they did so while all returned together from
lunch in the timecard area. Indeed, it appears from their testi-
mony that they did not immediately return to work after they
were swiped in. Stavetski certainly did not, because he admits
that, after punching in, he proceeded to go eat his lunch. Thus,
Mattingly’s testimony about his concerns in observing the em-
ployees on their return from lunch also rings true.
My inability to credit Stavetski’s account of his conversation
with Mattingly leads me to conclude that Mattingly’s account is
more reliable. Also significant in my assessment of Mattingly’s
credibility is that, when he testified, he was no longer employed
by Respondent and, unlike Stavetski, had no significant interest
in the outcome of the case. Accordingly, I find that Stavetski
essentially admitted he had done wrong in swiping the cards of
other employees, as Mattingly credibly testified.
After Mattingly’s conversation with Stavetski about the time-
card swiping, he consulted Human Resources Manager Bob Ri-
nes in Arlington West by telephone. In fact they spoke at least
twice by telephone about the matter. It was not unusual for
Mattingly to consult with Rines on personnel matters; he had
done so before. In the circumstances, it was Rines who made the
actual decision to discharge Stavetski, after consulting the hand-
book rule on alteration of timecards and also consulting the gen-
eral manager of Arlington West, who advised Rines that termina-
tion was the appropriate penalty for Stavetski’s offense. Rines
directed Mattingly to summarize what happened in an e-mail, and
Mattingly did so later in the day; the e-mail was sent about 3
hours after the discharge. The relatively contemporaneous e-mail
supports Mattingly’s testimony about the incident. After receiv-
ing notification of Rines’ decision, Mattingly met with Stavetski
and Stavetski’s supervisor, Warehouse Manager McGlaughlin.
Stavetski was told that he was discharged. He punched out, ac-
cording to his testimony, at 1:19 p.m.
After Stavetski’s discharge, Mattingly met with the employ-
ees to inform them that Stavetski had been discharged for swip-
ing the timecards of other employees, contrary to Respondent’s
policy.
B. Discussion and Analysis
Discriminatory motive cases, such as this one, are decided
under the framework of the Board’s decision in Wright Line.1
The General Counsel must establish by a preponderance of the
evidence that the employee’s protected or union activity was a
substantial or motivating factor in the challenged employer
decision. Once the General Counsel makes an initial showing
that the employer’s decision was motivated by unlawful con-
siderations, the burden of persuasion shifts to the employer to
show that the same decision would have been made even in the
absence of protected or union activity. In making his initial
showing of discrimination, the General Counsel may rely on a

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
showing that a respondent’s reasons for the decision are pretex-
tual. See National Steel & Shipbuilding Co., 324 NLRB 1114,
1119 fn. 11 (1997).
I find that the General Counsel has failed to make an initial
showing that the discharge of Stavetski was motivated by
unlawful considerations. Although it is clear that Stavetski was
a known union adherent—he was, after all, the Union’s ob-
server in the July 23 election and he complained, along with
other employees, about certain of Mattingly’s postelection
changes in hours and conditions—there is scant evidence that
Respondent harbored any animus toward Stavetski for his pro-
tected conduct or that such animus was a motivating factor in
his discharge. Nor, contrary to the General Counsel, can I find
that the reason for the discharge was a pretext. Stavetski did, in
fact, swipe the timecards of other employees, in apparent viola-
tion of a known rule against alteration of timecards. Although I
agree with the General Counsel that the decision to discharge
Stavetski, rather than give him a lesser discipline, was harsh, in
the absence of stronger evidence than exists on this record that
the decision was causally connected to his union or other pro-
tected activity, I cannot conclude that such harsh treatment was
itself evidence of unlawful motivation.
As to animus, it is obvious that Respondent opposed the Un-
ion, but it is also clear that it kept its hands clean in the cam-
paign leading to the election. It commited no unfair labor prac-
tices and Mattingly’s single-preelection meeting with employ-
ees about the Union was unremarkable. Despite an aggressive
examination of Warehouse Manager Mark McGlaughlin after
calling him as an adverse witness at the outset of the hearing,
counsel for the General Counsel was unable to establish that he
or any other management official harbored any animus against
Stavetski for his union or other protected activity. McGlaughlin
credibly testified, for example, that he refrained from talking to
any employees about the Union prior to the election. Although
the General Counsel elicited, from McGlaughlin, testimony that
Stavetski and several other employees met with him after the
election, the meeting itself was insignificant. According to the
testimony, which was not developed further through the Gen-
eral Counsel’s employee witnesses, including Stavetski, the
employees simply expressed the hope that “things would stay
the same.” (Tr. 30.) Indeed, McGlaughlin had little or nothing
to do with either Stavetski’s discharge, the work-hour changes
instituted by Mattingly, or the responses by Mattingly to em-
ployee complaints about his changes.2
As for Mattingly, it has not been shown that he exhibited
any animus towards Stavetski, either for his prounion position
or for his complaints about Mattingly’s changes in hours, which

2 Because of McGlaughlin’s limited authority over the matters in-
volved in this case, much of his testimony was not particularly relevant.
At times, however, he provided the General Counsel with a better and
more candid description of events than that provided by the General
Counsel’s main witness, David Stavetski. I am nevertheless puzzled as
to why counsel for the General Counsel chose to call McGlaughlin as
her first witness and to question him so much about decisions and poli-
cies that he had little or no knowledge of or control over. In any event,
his calmness and candor under fire enhanced his credibility. I found
him a totally reliable and credible witness.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
are alleged to constitute concerted, protected activities.
Mattingly’s changes were not alleged to be unlawful and they
appeared to be based on legimate business concerns. Moreover,
Mattingly quite willingly reversed or made adjustments to
many of his changes in response to employee objections. The
change to which Stavetski most strongly objected, the change
in the lunch period, was immediately reversed, in great part due
to the persuasiveness of Stavetski’s arguments against it. In-
deed, Stavetski was not the only employee to complain; nor
was he specifically identified as a leader or a spokesman for the
employees in making his objections to some of Mattingly’s
moves. Stavetski’s own testimony seems to play down his lead-
ership role. Although he apparently made some individual ap-
peals to Mattingly, and perhaps McGlaughlin, he describes the
complaints, if they can be called complaints, as coming from a
number of employees, not just him. At one point, he testified as
follows about the employees’ views on the original lunch pe-
riod change: “It wasn’t a complaint. It was a topic of conversa-
tion, you know, we weren’t happy . . . .” (Tr. 80.) Nor is there
any evidence that the complaints or objections by Stavetski and
the other employees were anything but civil and reasonable
disagreements, which were met with the same civility and rea-
sonableness on the part of Respondent. There appears to have
been no acrimony on either side. Finally, there is absolutely no
evidence that Mattingly resented Stavetski for having objected
to some of his changes to such an extent that he would have
punished Stavetski for his objections or sought a pretext to get
rid of him.
The General Counsel does point to some evidence from
which an inference of discriminatory motivation arguably could
be made. For example, the Respondent did fashion an objection
to the election from employee complaints that Stavetski had
coerced and harassed them to support the Union. Human Re-
sources Manager Rines, who apparently spent some time at the
Wilkes-Barre plant during the period before and after the elec-
tion, mentioned such reports to Stavetski. Apparently, Stavetski
refused to talk to Rines about these reports. But there is no
evidence that Rines persisted or coerced Stavetski on the mat-
ter. Although the reports of harassment were not found to have
been sufficient to overturn the election results, the Respondent
had every right to act on them and bring them to the attention of
the Board in considering the validity of the election. There was
no finding that the employee reports about Stavetski were bo-
gus or induced or encouraged by Respondent. I cannot infer
unlawful motive simply from Respondent’s consideration of
those employee reports by seeking Stavetski’s response to them
or filing an election objection based on them.
Another piece of evidence that might be thought to suggest
antiunion motivation is Rines’ candid testimony that, when he
was considering how to handle Stavetski’s timecard offense, he
was aware of, and took into account, the implications of Stavet-
ski’s known prounion position. He testified that he wanted
Mattingly’s e-mail report of what had happened to substantiate
the discharge decision because he was afraid that “the union or
somebody would question it.” (Tr. 210.) This proved prophetic
since an unfair labor practice charge was indeed filed on the
matter. I not only found Rines’ testimony on the point an indi-
cation of his candor, but his consideration of the need to sub-
stantiate the discharge quite reasonable in the circumstances. It
was not an indication that union animus motivated the dis-
charge. It was an attempt to document what Respondent viewed
as a legitimate personnel decision that might be challenged.
Finally, also militating against a finding of animus or discrimi-
natory motive is Respondent’s lawful election campaign, its
failure to pursue an appeal of the Regional Director’s rejection
of its objection based on Stavetski’s alleged misconduct, and its
decision to abide by the certification and begin negotiations
with the Union as bargaining representative.3
The General Counsel contends that the reason given for the
discharge of Stavetski, swiping the timecards of other employ-
ees, was a pretext. I reject that contention. Stavetski did indeed
swipe the timecards of other employees. He admitted to
Mattingly that he had done wrong. Indeed, even if he had been
authorized by other employees to swipe their cards, as he and
the others testified, that would not have excused what the Re-
spondent viewed as misconduct warranting discipline. Respon-
dent’s rule was clear that alteration of timecards or filling out
another employee’s timecard was a punishable offense; the rule
said nothing about mitigation of those offenses because such
alteration or filling out was authorized by another employee.
Stavetski and other employees knew of the handbook rule, or
reasonably should have known of the rule, because the hand-
book had been distributed to them when they were hired, in
Stavetski’s case, about 6 months before he was discharged. Nor
can it be argued that the handbook rule did not specifically
cover swiping other employees’ timecards. Although the hand-
book rule spoke of alteration of or filling out timecards, that
language clearly covered the swiping of timecards, which is the
electronic equivalent.
Much testimony was elicited about whether Mattingly spe-
cifically informed employees, including Stavetski, during the
timecard instructional meeting, that swiping the timecards of
other employees was wrong and could subject an employee to
discipline, including discharge. I believe that it is more likely
than not that Mattingly did so, although six employees contra-
dicted him on that point and the clerical employee who was
present at the meeting was not called to corroborate Mattingly.
It would have been natural for Mattingly to mention the rule
during the meeting because it was stated in the handbook and
Mattingly was a stickler for following the handbook. He had,
after all, cut the break periods from 15 minutes to 10 because
the prior policy had been in violation of the handbook. More-
over, installation of the timeclock was a response to the lax use
of employee sign-in sheets. In the last analysis, however, it
does not really matter whether Mattingly specifically reminded
employees of the handbook rule during the timecard instruc-
tional meeting. The existence of the timecard rule in a hand-

3 In her brief, counsel for the General Counsel points out that Stavet-
ski’s discharge occurred while the objection was pending decision by
the Board. If this is an attempt to show that the timing of the discharge
warranted an inference of animus or unlawful motivation, that attempt
must fail. It is obvious that the only significant timing that impacted the
discharge decision was the timing of the timecard incident that led to
Stavetski’s discharge. There is no evidence from which I can infer that
the pendency of the election objection had anything to do with the
discharge.
ALEXANDRIA NE LLC 221
book distributed to all employees was sufficient notification to
the employees of what was expected of them. Indeed, even
without the rule, it would be reasonable for an employer to
view seriously the swiping of other employees’ timecards and it
would be unreasonable for an employee not to know that this
was wrong. Significantly, here, Stavetski admitted that he had
wrongly swiped the timecards of other employees.4
The General Counsel also relies on the testimony of em-
ployee Asa Emel to show that the timecard swiping incident
was not the real reason for Stavetski’s discharge. I have doubts
about the reliability of that testimony. But, even if I accepted it
as credible, I do not agree with the General Counsel’s take on
it. According to Emel, he talked to Mattingly, McGlaughlin and
Lajoie after the Stavetski discharge to protest it, threatening to
quit out of loyalty to Stavetski. Emel was talked out of quitting,
but he allegedly told the three officials that, since he and the
other employees were present that day when Stavetski swiped
their cards and had asked him to swipe their cards, they were
just as guilty as Stavetski. This would have been the first time
Mattingly learned that other employees had authorized Stavet-
ski to swipe their cards. But, as I have indicated above, authori-
zation by others for him to swipe their cards did not provide an
excuse for Stavetski’s offense. In these circumstances, Respon-
dent’s failure to punish those who had authorized the swiping
of their cards, without more, does not establish that the dis-
charge of Stavetski for swiping them was a pretext or discrimi-
natorily motivated. In any event, by the time Emel spoke with
Mattingly, Stavetski had already been discharged, pursuant to a
decision by Respondent’s human resources manager, who was
not even located in Wilkes-Barre. Respondent’s refusal to re-
verse its discharge decision just because of Emel’s protest and
suggestion that he and others had authorized Stavetski to swipe
their cards does not establish pretext or discriminatory motive
for the discharge.
Perhaps more to the General Counsel’s point, Emel also tes-
tified that he was told by the management officials with whom
he spoke that the swiping offense was not the only reason for
Stavetski’s discharge. According to Emel, when he asked why
Respondent did not simply issue Stavetski a warning, the man-
agement officials told him there were “other things” they were
“firing [him] for,” apparently “stuff in [Stavetski’s] personnel
file,” which they would not reveal to Emel. Mattingly could not
recall whether any such statements were made, but McGlaugh-
lin credibly denied that they were. Emel, on the other hand, was
very close to Stavetski and was upset at the discharge. Al-
though he is still employed and therefore testifying somewhat

4 I put little stock in the employee testimony elicited by the General
Counsel that employees commonly swiped each others’ timecards. First
of all, the timecard system had only been in effect 2 or 3 weeks before
the Stavetski discharge. This is hardly enough time to establish a past
practice, much less a toleration of past practice, contrary to the hand-
book rule. Secondly, there is no evidence that management officials
knew of or tolerated such practice. Finally, the record shows that it was
common for other employees to fill out the names and hours of other
employees on the weekly sign in sheets used before the installation of
the time clock. In all the circumstances, I find it likely that the employ-
ees confused the past practice under the sign in sheet system with what
happened after the timeclock was installed.
against his employer’s interests, I find that Emel’s testimony
was more a product of his loyalty to Stavetski than a true and
accurate reflection of what was said at the time. I find it highly
unlikely that such statements were made. McGlaughlin and
Lajoie played no role in the discharge decision, and there was
no apparent reason for Mattingly, who was privy to the deci-
sion, to make such an arguably damaging admission to a friend
of Stavetski’s. Not only is there nothing else in the record that
suggests the file contained evidence of another, perhaps dis-
criminatory, motive, for the discharge, but the file itself con-
tains mostly technical employment and background informa-
tion. The only items in the file, as of the date of Stavetski’s
discharge, that would arguably have fit Emel’s description were
cryptic undated, hearsay statements, apparently from employ-
ees complaining about Stavetski. One related to a conversation
between employees about the Union in which the employee
said he was “confused and concerned” about a comment
Stavetski made that might affect the employee’s job. Those
documents in Stavetski’s file are too ambiguous and specula-
tive either to support a finding of animus or to give credence to
Emel’s testimony. Indeed, even if I accepted Emel’s account, it
offers no compelling reason to infer that the reference to
Stavetski’s file meant that Stavetski’s union or other concerted
protected activity was the real reason for his discharge.
The General Counsel further alleges that Respondent treated
Stavetski differently than another employee who was dis-
charged at about this time. For example, the General Counsel
points out that, in the discharge of employee Robert Swiatek
about a week before that of Stavetski, Respondent conducted an
investigation. It sought statements from other employees. Here,
according to the General Counsel, Respondent did not conduct
an investigation, neither talking to, nor seeking statements
from, the employees whose timecards were swiped by Stavet-
ski. The short answer to the General Counsel on this point is
that the circumstances of the two cases were different. Swiatek
was fired for using bad language toward, and being insubordi-
nate to, a supervisor. There was apparently a dispute as to what
had happened. In Stavetski’s case, however, there was no such
dispute. Stavetski not only admitted to Mattingly that he had
swiped the timecards of other employees, but admitted he was
wrong in doing so. In addition, Mattingly saw the swiping him-
self and Stavetski gave him no reason why the timecard swip-
ing was not actionable. There was thus no reason for an inves-
tigation. Mattingly did not, however, act precipitously. He con-
sulted Human Resources Manager Rines at Arlington West,
who made the ultimate decision to discharge Stavetski.
The General Counsel also questions why Stavetski was not
given a warning for the timecard swiping incident rather than
being subject to discharge for a first offense. In this respect, the
General Counsel points to a warning that was issued to em-
ployee Swiatek some 3 weeks prior to his discharge. The warn-
ing was for Swiatek’s failure to report back to work at 11:30
a.m., as instructed, after being sent home from work because he
had gotten no sleep the night before. I find that Swiatek’s of-
fense was much less serious that Stavetski’s and, thus, the dif-
ferent treatment of Swiatek is not sufficient evidence of dispa-
rate treatment to show pretext in the discharge of Stavetski for
an entirely different offense. The General Counsel offers no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
other evidence of relevant disparate treatment.5 Indeed, on
Mattingly’s watch, a period of about 5 months, Respondent
fired three Wilkes-Barre employees (one other, in addition to
Swiatek and Stavetski). On each, Mattingly consulted Human
Resources Manager Bob Rines. Thus, neither the discharge of
Stavetski, nor the procedure used, was unusual.
It nevertheless disturbs me, as the trier-of-fact, that Respon-
dent reacted to Stavetski’s first-time offense of swiping other
employees’ timecards by discharging him rather than subjecting
him to lesser punishment, which was certainly permissible un-
der the Respondent’s handbook rule. The timeclock system was
new and the result here is clearly a harsh application of the rule.
Moreover, less than a week before, Stavetski had been given a
favorable appraisal. Respondent admits that Stavetski was a
good employee. In some cases, such evidence might lead to a
finding of pretext or discriminatory motive, at least where there
is other evidence that could help support such an inference. The
record in this case, however, does not contain such other evi-
dence. Compare Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966), a leading case on the use of pretext to
show discriminatory motive. In that case, the Court stated that
if a trier-of-fact “finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive. More
than that, he can infer that the motive is one that the employer
desires to conceal—an unlawful motive—at least where, as in
this case, the surrounding facts tend to reinforce that inference.”
Id. at 470. In Shattuck Denn, however, the surrounding facts
included the following: The employer’s manager, who effectu-
ated the discharge, asserted, in the course of discussing the
alleged discriminatee’s grievance, that the union was submit-

5 There was a brief reference in the record to an employee who was
warned rather than discharged for an accident that amounted to a safety
violation (Tr. 62), but that matter was so clearly different from Stavet-
ski’s timecard offense that it has little or no value for comparison pur-
poses, except to show that Respondent sometimes warned employees
rather than discharged them. The same applies to documentary evi-
dence reflecting warnings for tardiness and absenteeism. Significantly,
the Respondent’s handbook did not contain a progressive disciplinary
policy. Violations of certain listed work rules, including Stavetski’s
violation, were specifically identified as subjecting the employee to
“discipline up to and including termination.” Jt. Exh. 2(c), p. 5. In these
circumstances, I cannot agree with the General Counsel’s contention
that, in practice, Respondent had a progressive disciplinary policy.
ting too many small grievances. Id. at 468. Compare also
United Parcel Service, 340 NLRB, 776-777 fn. 10 (2003) (pre-
text finding enhanced by statements made by management
official who discharged alleged discriminatee, which indicated
animus specifically addressed to him).
I do not think that, in this case, the General Counsel has
proved a violation by a preponderance of the evidence. In the
absence of evidence from which it can be inferred that the dis-
charge was causally related to an animus specifically directed
toward Stavetski because of his union or other protected con-
certed activity, I cannot conclude that the discharge was unlaw-
fully motivated. Accordingly, I find that the General Counsel
has failed to prove that the discharge was motivated by unlaw-
ful considerations.
CONCLUSION OF LAW
The General Counsel has failed to show by a preponderance
of the evidence that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employee David Stavetski.
On these findings of fact and conclusion of law, and on the
entire record, I issue the following recommended6
ORDER
The complaint is dismissed in its entirety.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order herein shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.