Aratex Services

National Labor Relations Board - Board Decisions

Sep 30, 1990

300 N.L.R.B. 115 (N.L.R.B. 1990)

115
300 NLRB No. 18
ARATEX SERVICES
1 On November 3 and 16, 1989, the judge issued errata.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and adopt the judge’s credibility findings that are germane
to our analysis. It is irrelevant to our analysis whether employee Allen’s or
Bailey’s version of their September 12, 1988 telephone conversations is cred-
ited. Because we find it unnecessary to adopt the judge’s findings and infer-
ences concerning those conversations as well as other findings discussed
below, we set forth the analysis on which we rely to adopt the judge’s conclu-
sions.
In sec. II, D, 1, par. 3, L. 7 of his decision, the judge inadvertently refers
to a discussion as being held on April 11, rather than on April 6. The first
word in the second paragraph of the judge’s fn. 26 should be Bailey. We cor-
rect these errors.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
4 The conduct evidencing the Respondent’s animus was resolved in a settle-
ment agreement. The conduct includes a statement directed at Bailey that he
would lose his job if the union campaign failed. Although this allegation was
settled, the parties agreed that the Board could rely on evidence supporting
the 8(a)(1) allegations in evaluating the lawfulness of Bailey’s discharge.
5 In finding that the Respondent’s investigation evidences an intent to target
union supporters, we do not rely on the advance preparation of the discharge
letters.
6 By the time management became aware of the drinking and began its in-
vestigation, the practice of lunchtime drinking had stopped.
7 Wells’ discharge was part of a settlement arrived at during the hearing and
is not before the Board for consideration.
8 We note that Allen performed no work after lunchtime. Thus, the Re-
spondent’s rule against drinking may not have been applicable or reasonably
enforced against him. Accordingly, we have not relied on the Respondent’s
different treatment of Bailey and Allen in determining whether the Respondent
engaged in disparate treatment in discharging Bailey.
9 No longer does the Respondent rely on the failure to produce a medical
excuse. This may be explained by the fact that the record contains no evidence
that the Respondent before the union campaign disciplined any employee for
failing to produce a medical excuse. The Respondent’s shifting reasons for the
discharge, in addition to its inconsistent hearing statements regarding the actual
cause of discharge being the lunchtime drinking (Kelley) or the lying about
it (Mabrey and Kelley), suggest that the Respondent is offering reasons it be-
Continued
Aratex Services, Inc. and Chauffeurs and Sales
Drivers, Teamsters Local Union No. 402, affili-
ated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO. Cases 10–CA–
23659 and 10–CA–23862–1
September 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 18, 1989, Administrative Law Judge
Howard I. Grossman issued the attached decision.1 The
Respondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings as modi-
fied,2 and conclusions and to adopt the recommended
Order.
I. THE DISCHARGE OF BAILEY
The judge found the General Counsel established a
prima facie case under Wright Line3 that employee
J. L. ‘‘Sonny’’ Bailey’s protected activity was a moti-
vating factor in the Respondent’s decision to fire Bai-
ley. The judge further found that the Respondent failed
to establish it would have discharged Bailey even in
the absence of his protected activity. Accordingly, the
judge found that the Respondent’s discharge of Bailey
violated Section 8(a)(3) of the Act. We agree with the
judge’s finding for the reasons that follow.
The record establishes the Respondent’s antiunion
animus.4 The record also establishes that the Respond-
ent knew of Bailey’s principal role in the union cam-
paign. We find that the General Counsel established a
prima facie case that Bailey’s protected activity was a
motivating factor behind his discharge. Accordingly,
under Wright Line, supra, the burden shifts to the Re-
spondent to show that it would have discharged Bailey
even in the absence of his protected activity.
The Respondent contends that the weight of the evi-
dence shows it would have discharged Bailey regard-
less of his protected activity because of his drinking
during lunchtime, dishonesty about his drinking, and
poor work performance. We disagree.
The Respondent’s investigation into lunchtime
drinking implicated four employees. After learning
about the drinking, General Manager Mabrey and Plant
Manager Kelley questioned two of the employees, Jor-
dan and Allen. The statements the Respondent pre-
pared for Jordan and Allen were worded to implicate
only union supporters Bailey and Wells in drinking ac-
tivities. After taking Jordan’s and Allen’s statements,
the Respondent did not question Bailey or Wells in the
investigation, but continued the investigation through
other sources. Rather than questioning Bailey and
Wells before making a decision, the Respondent pre-
pared discharge letters only for the two union sup-
porters.5 Despite finding that all four employees en-
gaged in lunchtime drinking,6 the Respondent dis-
charged only Bailey and Wells.7 The two employees
who engaged in lunchtime drinking and were not dis-
charged, Jordan and Allen, opposed the Union.8 We
find that the evidence pertaining to the investigation
indicates the Respondent targeted the two union sup-
porters for disciplinary action.
The discharge letter prepared by the Respondent and
given to Bailey states several grounds for dismissal:
drinking on the job, inaccurate linen counts, dishonesty
to customers, and failing to provide a medical excuse.
In its exceptions to the judge’s decision, the Respond-
ent now argues that Bailey was discharged because of
repeatedly violating a company rule against drinking
during lunchtime, his dishonesty about drinking during
working hours, and poor work performance.9
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lieves will sustain its position rather than the actual reasons for the discharge.
The shifting and apparently false reasons for its actions lend further support
to our finding that the discharge was unlawfully motivated. See Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
10 Bailey was at no time informed that he was discharged for lying about
the drinking, nor that he would not have been discharged had he told the truth.
The discharge letter makes a passing reference to the Company’s expectation
that Bailey will deny the drinking charge. But, the letter was prepared before
any interview with Bailey and does not allege lying about the drinking as one
of the grounds for discharge.
The Respondent’s self-serving testimony that Bailey would have been treat-
ed the same as Jordan had Bailey not lied is weakened by the Respondent’s
failure to explain to Bailey at the time of his discharge the now-purported rea-
son for his dismissal.
11 The Respondent asserts that other employees have been discharged for
drinking. The other employees discharged for reasons relating to alcohol, how-
ever, all were intoxicated while performing their jobs. Bailey was never known
to be intoxicated at work and there is no showing that his beer consumption
affected his job performance. We reject the Respondent’s contention that Bai-
ley and these employees were similarly situated.
In considering the Respondent’s alcohol policy, we do not rely on Christmas
party drinking as evidence of the policy.
12 For purposes of analysis, we assume Robinson was discharged and later
reinstated. We observe that there is some dispute over whether Robinson was
discharged or merely suspended. Even assuming that Robinson was discharged
for a first-time offense, we would not find it conclusive evidence sustaining
the Respondent’s Wright Line burden because Robinson’s discharge occurred
after the charge in this case was filed. The record contains no showing of the
Respondent discharging any employee similarly situated to Bailey before the
controversy in this case arose.
13 All subsequent dates refer to 1988 unless specified otherwise.
14 We adopt, infra, the judge’s finding that Bailey’s May 31 oral warning,
which occurred after management learned of his role in the union campaign,
violated Sec. 8(a)(3). Thus, this warning cannot serve as an explanation for
singling out Bailey.
15 The Respondent’s employee handbook prohibits, inter alia, ‘‘Drunkenness,
drinking alcoholic beverages during working hours (including meal periods) or
being under the influence of alcoholic beverages during working hours.’’
16 The same section of the employee handbook that deals with drinking
makes gambling an offense punishable by discharge. Evidence of the Respond-
ent’s managers participating in and running gambling activities on the Re-
spondent’s premises makes clear that not all the prohibitions in the handbook
are enforced.
17 We observe that on November 28 an Alabama Department of Industrial
Relations Appeals Referee, considering Bailey’s contested unemployment
The Respondent, recognizing the appearance of dis-
parate treatment of Bailey and Jordan, explains that the
‘‘crucial distinction . . . lies in their reaction to man-
agement’s investigation of the drinking.’’ Significantly,
this ground for discharge—what the Respondent now
asserts is the critical basis for understanding the Com-
pany’s different treatment of Bailey and Jordan—was
never explained to Bailey.10 The Respondent’s offering
shifting reasons for the discharge is grounds for find-
ing that the discharge was for an unlawful reason.
There is further evidence of disparate treatment in
the way the Respondent treated Bailey, as opposed to
Jordan. The judge found that Jordan had quit his job
on July 27 while intoxicated due to lunchtime alcohol
consumption. The judge discredited Kelley’s testimony
that Jordan never spoke to him after lunchtime, and
credited employee testimony that Jordan was notice-
ably intoxicated following lunch. Given the credited
evidence that Jordan was visibly intoxicated after
lunch and that Jordan spoke with Kelley at that time,
we conclude Kelley knew that Jordan had been drink-
ing. The Respondent allowed Jordan to return to work
at his request a few days later. We find no credible,
lawful explanation to explain the contrary actions the
Respondent took with respect to Bailey and Jordan.11
The Respondent also points to Robinson’s discharge
in September 1988 for the possession of alcohol on his
truck as evidence of enforcement of its alcohol policy.
Robinson, however, previously had been warned about
(not discharged for) having beer on his company-
owned truck and had promised not to do it again. Rob-
inson was allowed to return to work about 3 weeks
after his discharge. Robinson was a repeat offender
who had not honored a prior promise to the Respond-
ent regarding alcohol, whereas Bailey was a first-time
offender. Thus, Robinson was given a second chance
after his first offense; Bailey was not.12
Nor do we find that the record supports the Re-
spondent’s assertion that Bailey was discharged for
poor work performance. Bailey received a plaque
praising his production in 1987. Jordan, who was also
eligible for such an honor, did not receive an award.
In 1988, when Kelley began receiving complaints
about inaccurate linen counts, the Respondent issued
oral warnings to both Bailey and Jordan. The com-
plaints escalated in summer 198813 and, on August 23,
both Bailey and Jordan received written warning no-
tices. The August 24 petition from drivers complaining
about inaccurate linen counts, which the Respondent
referred to in Bailey’s discharge letter, mentions no
particular linen counter. The Respondent failed to ex-
plain how it ascertained that Bailey should be held re-
sponsible for the inaccurate counts. In fact, Jordan,
who was not disciplined as a result of the petition, was
as likely to be responsible as Bailey. Thus, the record
contains no lawful explanation for singling out Bailey
after receiving the August 24 petition.14
In sum, we find the General Counsel has established
that one of the reasons for the Respondent’s decision
to terminate Bailey was his protected activity. The Re-
spondent has attempted to show that it would have dis-
charged Bailey even in the absence of his protected ac-
tivity. We find the Respondent’s arguments on this
point unpersuasive, however. Rather, we find evidence
of disparate treatment in the handling of Bailey’s case,
as compared to those of Jordan and Robinson. Further,
the Respondent offered no evidence of a similarly situ-
ated employee who received the same treatment as
Bailey.
Finally, the Respondent’s employee handbook prohi-
bition15 on drinking stating that violation of the rule
will result in termination does not justify Bailey’s dis-
charge. Given the overall circumstances discussed
above, the rule alone is insufficient to satisfy the Re-
spondent’s burden to show that it would have dis-
charged Bailey for his drinking in the absence of his
protected activity.16 Accordingly, we find the Re-
spondent discharged Bailey in violation of Section
8(a)(3).17
117ARATEX SERVICES
claim, found that Bailey was discharged for union activity rather than the mis-
conduct alleged by the Respondent.
18 In the absence of exceptions to the judge’s discussion of the merits, we
adopt the judge’s findings that the May 31 and August 23 disciplinary warn-
ings to Bailey violated Sec. 8(a)(3).
1 All dates are in 1988 unless otherwise specified.
II. THE OTHER 8(A)(3) FINDINGS
During the hearing the parties entered into a settle-
ment agreement resolving most of the issues in the
consolidated complaint. The agreement provided, inter
alia:
7. The parties will litigate only the discharge of
Sonny Bailey before the National Labor Relations
Board. The Board may rely upon the evidence of
violation of Section 8(a)(1) of the Act in deciding
the propriety of Mr. Bailey’s discharge but will
not issue any independent findings as to violations
of this Section.
. . . .
9. All other allegations in this complaint are
deemed fully and finally resolved.
. . . .
11. The parties agree to provide a copy of this
agreement to the General Counsel for the sole
purpose of policing compliance with its provi-
sions, and not for any approval of its substantive
provisions. Respondent will provide the General
Counsel with evidence of compliance with its pro-
visions when such is fully achieved.
The judge found that the settlement agreement did
not exclude the Respondent’s May 31 oral warning and
August 23 written warning of Bailey from adjudica-
tion. He further found that these disciplinary actions
violated Section 8(a)(3). The Respondent claims that
these allegations are part of the settlement agreement.
We agree, for the reasons that follow, that the 8(a)(3)
allegations regarding the May 31 and August 23 dis-
cipline are properly before the Board.
First, this is a non-Board settlement agreement,
which, according to its specific terms, was not sub-
mitted to the General Counsel for approval. The settle-
ment bar doctrine of Hollywood Roosevelt Hotel, 235
NLRB 1397 (1978), and related cases does not apply
to non-Board settlements. See Auto Bus, 293 NLRB
855 (1989) (a Regional Director’s approval of the
withdrawal of charges does not estop him from issuing
a complaint on subsequent charges alleging the same
conduct even when a Board agent was involved in ne-
gotiations leading to non-Board settlement agreement).
Thus, the Respondent’s reliance on all-party settlement
agreement cases is misplaced.
Under certain circumstances the Board may honor a
non-Board settlement agreement. See Independent
Stave Co., 287 NLRB 740 (1987). But, before the
Board will decide to honor a non-Board settlement
agreement, it is axiomatic that the Board must be sure
what issues the parties have settled. We find in this
case that the scope of the settlement agreement is am-
biguous. Paragraph 7 states that the parties will litigate
Bailey’s discharge and may rely on evidence regarding
8(a)(1) allegations as background, but the Board will
not make any independent findings concerning possible
8(a)(1) violations. Paragraph 9 states that all other alle-
gations in the complaint are deemed resolved. The dis-
ciplinary actions at issue are alleged in the complaint
as violations of Section 8(a)(3), and they are the
underpinnings of Bailey’s discharge. Because para-
graph 7 preserves the right to introduce, as back-
ground, evidence relevant to the discharge and specifi-
cally precludes independent findings of Section 8(a)(1)
only, we are uncertain whether the Respondent and the
Union intended to bar litigation of what the complaint
alleged as 8(a)(3) conduct related to Bailey’s dis-
charge. Therefore, we conclude that it would be inap-
propriate to find that the non-Board settlement agree-
ment encompassed Bailey’s disciplinary warnings.18
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Aratex Services, Inc., De-
catur, Alabama, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Gaye Nell Hymon, Esq., for the General Counsel.
Curtis L. Mack, Esq. and Adam J. Conti, Esq. (Mack &
Bernstein), of Atlanta, Georgia, for the Respondent.
Hubert Coker, Coordinator, of Fulton, Mississippi, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge in Case 10–CA–23659 was filed on Sep-
tember 14, 1988,1 by Chauffeurs and Sales Drivers, Team-
sters Local Union No. 402, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO (the Union), a first amended
charge on September 22, and a second amended charge on
October 25. The Union filed the original charge in Case 10–
CA–23862–1 on December 20, and an amended charge on
February 3, 1989. After issuance of a complaint and an
amended consolidated complaint, a second amended consoli-
dated complaint issued on February 3, 1989, involving the
aforesaid cases and Case 10–CA–23701, in which an indi-
vidual was the Charging Party.
A hearing was held before me on these matters in Decatur,
Alabama, on May 15 through 18, 1989. At the hearing on
May 16, the parties with my concurrence, entered into a set-
tlement agreement with respect to Case 10-CA-23701, which
was thereupon severed from the instant proceeding. The re-
maining allegations of the second amended consolidated
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Bd. Exh. 1.
3 G.C. Br. 14.
4 Tate McLean, Kevin Linderman, John Wells, and J. L. Bailey.
5 The pleadings establish that Ledlow was an agent of Respondent and a su-
pervisor within the meaning of the Act.
6 Bonnie Reeves, Tammy Murphy, and J. L. Bailey.
7 The pleadings establish that Stone was an agent of Respondent and a su-
pervisor within the meaning of the Act.
8 The pleadings establish that Kelley was an agent of Respondent and a su-
pervisor within the meaning of the Act.
complaint averred that Aratex Services, Inc. (Respondent or
the Company) had violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act) in various re-
spects. Included in these contentions were allegations that
Respondent unlawfully issued written warnings to employee
J. L. Bailey on about July 18, August 24, and September 15,
and unlawfully discharged him on the latter date, in violation
of Section 8(a)(3) and (1).
Respondent and the Union on May 16 entered into a par-
tial settlement agreement of these remaining allegations. As
read into the record by Respondent’s representative, the par-
ties agreed to litigate ‘‘only the discharge of Bailey.’’ The
Company agreed to expunge from its records all references
to disciplinary action against employees ‘‘with the exception
of those related to Bailey.’’ The parties agreed that the Board
could rely on evidence of violations of Section 8(a)(1) in
order to determine the ‘‘propriety of Bailey’s discharge,’’ but
could not find any ‘‘independent’’ violations of this section
of the Act.
Respondent’s representative stated at the hearing that the
actual written partial settlement agreement in Cases 10–CA–
23659 and 10–CA–23862–1 would prevail over Respondent’s
characterization of it at the hearing. Respondent also volun-
teered to provide a copy of said settlement agreement to the
General Counsel ‘‘for the sole purpose of policing compli-
ance with its provisions and not for any approval.’’ At the
hearing, the General Counsel’s representative nonetheless
stated that she ‘‘agreed’’ with the settlement agreement. I
thereupon accepted it.
Upon receipt of the record, I noted that the partial settle-
ment agreement was not included therein, and requested Re-
spondent to supply a copy. In response, Respondent supplied
to all parties copies of the settlement agreement in Case 10–
CA–23569, and the partial settlement agreement in Cases
10–CA–23569 and 10–CA–23862–1. In the first agreement,
the parties signatory thereto are the individual charging party
and Respondent. In the partial settlement agreement, the par-
ties signatory thereto are the charging Union and Respond-
ent. The General Counsel is not a signatory to either agree-
ment and Bailey did not sign the second one. I have sua
sponte entered both agreements into the record.2
Subsequent to the hearing, the General Counsel and Re-
spondent filed briefs. In counsel for the General Counsel’s
brief, she argues, inter alia, that Respondent ‘‘issued warn-
ings, suspended and discharged’’ Bailey in violation of the
Act, and requests a remedy, including expunction of such
matters from Respondent’s files.3 Thereafter, Respondent
filed a ‘‘Motion to File Reply Brief and Reply Brief,’’ in
which it argues that the General Counsel had requested a
remedy pertaining to matters already settled by the parties.
On the entire record, including briefs filed by the General
Counsel and Respondent, and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with an office and
place of business located at Decatur, Alabama, where it is
engaged in the rental of textiles and work uniforms. During
the calendar year preceding issuance of the complaint, a rep-
resentative period, Respondent received at its Decatur, Ala-
bama facility goods valued in excess of $50,000 directly
from suppliers located outside the State of Alabama. Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The pleadings
establish that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNION CAMPAIGN AND RESPONDENT’S REACTION
A. Bailey’s Participation in the Union Campaign, and
Respondent’s Reaction to the Campaign
The Union began an organizational campaign at Respond-
ent’s facility in the spring of 1988. Bailey testified that it
began in ‘‘April and May,’’ and that he was ‘‘an active
union man.’’ He received union authorization cards from the
Union’s representatives, distributed some to other employees,
and obtained signatures on such cards. Bailey wore a union
shirt at work, spoke to employees about the Union, and acted
as a union observer at a Board election on July 22. Later,
at a hearing on September 7, on Respondent’s objections to
the election, Bailey was a witness for the Union. Respond-
ent’s witness Ronnie Jordan stated that Bailey was very ac-
tive for the Union, and General Manager Mabrey testified
that he knew that Bailey supported it.
Two Board elections, in different units, were conducted on
July 22. The Union won the election among plant employees,
but lost the one conducted among the Company’s route sales
persons or drivers.
Various witnesses4 testified to statements and questions
made to employees in May and June by Washroom Manager
Wayne Ledlow.5 Thus, Ledlow assertedly asked employees
whether they had signed union cards, and said that he knew
that Bailey was heading the union campaign. Ledlow di-
rected employees not to talk to Bailey. Ledlow also told em-
ployees that they would lose all benefits, that overtime would
be cut, that they would be discharged for coming in late, and
that they would be worse off if the Union came in. Ledlow
further told employees that anyone signing a union card
would be discharged, but that employees would get a 50-cent
raise if they voted the Union out. This evidence is
uncontradicted and is credited.
Various other witnesses6 testified about statements made
to employees by Maintenance Superintendent Ray Stone7
about the same time. Thus, Stone said that union supporters
would lose their jobs, but that employees would get a 50-
cent raise and would not have to pay for their insurance if
they voted against the Union. This evidence is uncontradicted
and is credited.
Two of the General Counsel’s witnesses, employees of Re-
spondent at the time of the hearing, testified that Plant Man-
ager John Kelley8 promised employees a wage increase on
119ARATEX SERVICES
9 Testimonies of Bobbie Reeves and Georgia Harris.
10 The parties stipulated that Pardue was an agent of Respondent and a su-
pervisor within the meaning of the Act.
11 Testimonies of Donna Dunn, Bonnie Reeves, Bobbie Reeves, Tammy
Murphy, and Georgia Harris.
12 Bobbie Reeves and Georgia Harris.
13 Respondent’s witness Judy Hill gave still another version of Pardue’s
statements.
14 Bohemia, Inc., 266 NLRB 761, 764 fn. 13 (1983); Southern Paint & Wa-
terproofing Co., 230 429, 431 fn. 11 (1977).
15 The complaint alleges other independent violations of Sec. 8(a)(1). As in-
dicated, these allegations were resolved in a settlement agreement, and my
consideration of the evidence is limited to the issue of whether Respondent
manifested union animus. In light of my findings above, it is unnecessary for
me to consider the remainder of the evidence pertaining to alleged violations
of Sec. 8(a)(1).
16 R. Exh. 31; testimony of Respondent’s general manager, Mabrey.
17 R. Exh. 4, p. 5; testimony of Respondent’s general manager Mabrey.
18 Testimony of Ronnie Jordan.
July 1,9 while others affirmed that Company Group Manager
Noah Pardue10 told employees that the raise scheduled for
July 1 would be withheld until the union activity had
ended.11 Two of these witnesses were employees at the time
of their testimonies.12
Kelley denied that he made the promise attributed to him,
and said that he had no authority to grant a wage increase.
General Manager Gene R. Mabrey averred that, to his
knowledge, Pardue did not make the statement attributed to
him. Rather, Pardue told employees that the Company could
not make any promises at that time; Plant Manager Kelley
gave similar testimony.13 However, on cross-examination by
Respondent, Georgia Harris denied the version of Pardue’s
statements advanced by Mabrey and Kelley. Pardue himself
did not testify.
The General Counsel’s witnesses appeared to be truthful
and corroborated each other. Two of them were current em-
ployees at the time of their testimonies. The Board has con-
cluded in similar circumstances that such testimony is enti-
tled to considerable weight since it is unlikely to be false
when it is adverse to an employee’s pecuniary interest, such
as preservation of a job.14 For these reasons I credit the Gen-
eral Counsel’s version of the statements made by Kelley and
Pardue.
Bailey testified that, in the latter part of June, Plant Man-
ager Kelley approached him, laughed, and asked Bailey
whether he, Kelley, would lose his job if the Union ‘‘came
in.’’ Bailey gave a negative answer, and then himself asked
Kelley whether he, Bailey, would lose his job if the Union
did not ‘‘come in.’’ According to Bailey, Kelley ‘‘shook his
head and said, ‘Yes.’’’ Bailey testified that Kelley’s state-
ment ‘‘scared’’ him. John Wells corroborated Bailey’s testi-
mony, giving almost exactly the same details of the con-
versation with Kelley.
On direct examination, Plant Manager Kelley was asked
whether he ever ‘‘threaten[ed]’’ employees with discharge or
loss of benefits if they joined or assisted the Union, and
whether he made certain statements to employees McLean or
Linderman. Kelley denied that he made any such statements
or threats.
As indicated, Bailey was corroborated by another witness
in precise detail. The statement attributed to Kelley was not
inconsistent with similar threats made by Supervisors Ledlow
and Stone, including specific references to Bailey. Kelley’s
denials—although directed to other matters and two other
employees—do not specifically deny the alleged statement to
Bailey. Although I do not credit all of Bailey’s testimony in
this proceeding, as appears hereinafter, I credit him in this
instance, for the foregoing reasons.15
B. Bailey’s and Wells’ Drinking During Lunch Hours,
and Their Discipline
1. Employee drinking during the lunch period
Respondent had posted the following rule since 1977:
Possession on the job of alcoholic beverage(s) of any
kind or drinking of such on the job, or at work under
the influence of alcoholic beverages or stealing, are
cause for immediate discharge.16
In 1985, Respondent issued an employee handbook prohib-
iting, inter alia, the following:
Drunkenness, drinking alcoholic beverages during
working hours (including meal periods) or being under
the influence of alcoholic beverages during working
hours.17
There is evidence that Bailey and three other employees,
Ronnie Jordan, John Wells, and Ricky Allen, drank beer dur-
ing the lunch periods, while away from the plant. Wells, like
Bailey, was a linen counter, and was also active in the union
campaign. He wore a union shirt, talked to employees about
the Union, and handed out leaflets before and after work.
Jordan also counted linen or towels. However, unlike Bai-
ley and Wells, he did not support the Union, and was a wit-
ness for Respondent on September 7 at a hearing on objec-
tions to the election. Jordan testified that the Company knew,
prior to that hearing, that he was against the Union.
Allen was a route driver with stops that were concentrated
in a limited area. His work for the day ended when his route
was finished, and Allen affirmed that this took place any
time from 11 a.m. to 1 p.m. General Manager Mabrey testi-
fied that Allen was a union supporter in 1984, and that
Mabrey had no reason to believe Allen’s union sympathies
had changed in 1988. Allen, however, testified that although
he had previously been a union supporter, he was ‘‘for the
Company’’ at the time of the election in 1988.
The evidence is consistent that the drinking took place
during the lunch period, which ended at 12:45 p.m.,18 but it
is conflicting on the number of times that it took place. Re-
spondent’s witnesses Allen and Jordan, with some dif-
ferences in their testimonies, affirmed that the practice had
lasted for a year or more, and that the employees did so
about twice weekly. The drinking ceased about July 27. One
of the General Counsel’s witnesses, John Wells, admitted to
one such occasion in November 1986 when he began work-
ing for Respondent, but then agreed that he had done so
twice. Bailey contended that this practice had been engaged
in only two or three times. However, a clerk at a nearby con-
venience store testified that Bailey purchased beer for 3 years
almost every day during the 3 days of the week that the clerk
was on duty. Another employee gave similar testimony.
Crediting Allen and Jordan, corroborated by the clerk, I con-
clude that this practice had been regularly engaged in for at
least a year. I also find that it ended on about July 27 and,
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 As described hereinafter, the subject of Jordan’s drinking had come up
previously in a different context.
20 R. Exh. 29. Jordan’s statement adds the name of employee Kevin
Linderman as an alleged participant. There is no other evidence to support this
assertion.
21 R. Exh. 30.
22 Supra, fns. 20 and 21.
23 Testimony of Kelley.
24 R. Exhs. 25 and 26.
25 Fed.R.Evid., Rule 609.
26 In Bailey’s employment application, filed in April 1986, he stated that he
had been convicted of a crime (R. Exh. 32). Plant Manager Kelley, who inter-
viewed Bailey prior to employment, testified that Bailey told him that he had
crediting Wells and Jordan, that only the latter two employ-
ees participated in drinking that day.
2. Respondent’s investigation of employee drinking
a. Summary of the evidence
During his appearance at the hearing on objections on Sep-
tember 7, Jordan testified about the foregoing matters. Re-
spondent’s general manager Mabrey testified that he called
Jordan into his office the following Monday, September 12,
and asked him whether drinking had taken place during his
lunch period or on plant premises. Jordan responded that he
and three other employees—Bailey, Allen, and Wells—pur-
chased beer at a convenience store during their lunch peri-
ods, bought gum to ‘‘cover their breath,’’ and then returned
to work. Mabrey was corroborated by Plant Manager Kelley,
who added that Jordan claimed to have stopped drinking in
July. Jordan gave a different version of this aspect of the in-
vestigation. It took place 2 or 3 weeks after the hearing on
objections, in ‘‘late September,’’ and the company super-
visors simply asked him ‘‘who all was drinking.’’19
According to the company supervisors, Ricky Allen was
called in for questioning at 12:45 p.m. on the same day that
Jordan was interviewed. General Manager Mabrey testified
that Allen named Bailey, Wells, Jordan, and himself as par-
ticipants in the drinking. Allen agreed that Mabrey asked him
the identities of the participants, but testified that he named
only Bailey, Wells, and himself, despite his testimony that
Jordan in fact was also a participant. Allen was uncertain
about the date of this interview, and originally said that it
took place about August 17. He later changed the date to
September 17. Allen contended that he had finished his work
for the day on each occasion that he participated in drinking,
and that the company supervisors took his word for it. Gen-
eral Manager Mabrey, on the other hand, testified that he
told Allen he would have to check his story to see whether
it was true.
Respondent took statements on September 12 from Jordan
and Allen. The statement from Jordan omits Allen’s name as
a participant in the drinking,20 and the statement from Allen
omits Jordan’s name.21 Both statements include the names of
Bailey and Wells as participants in the drinking and neither
explicitly includes the affiant as a participant. Rather, the
statements allege, the affiant was present when ‘‘they would
drink beer and return to work.’’22
About 4 p.m. on September 12, General Manager Mabrey
and Plant Manager Kelley decided to suspend Bailey pending
investigation of the drinking and of allegedly inaccurate linen
counts.23
At least one telephone conversation took place about this
time between Allen and Bailey. According to Allen, Bailey
called him the same day that the Company questioned Allen,
said that he knew about the visit, and asked the reason. Allen
replied that the Company had found out about the drinking.
Bailey assertedly told Allen that the latter had to go back to
the Company and change his story. Allen replied to Bailey
that he had ‘‘three kids to feed,’’ and would not lie about
the matter. According to Allen, Bailey did not like this re-
sponse, but said nothing. In later testimony, Allen averred
that Bailey called him twice. On the first occasion, when the
drinking investigation was discussed, Bailey called him a
‘‘SOB.’’ About an hour later, however, Bailey called again
and merely talked about baseball.
Bailey acknowledged on cross-examination that he and
Allen conversed regularly on the telephone, mostly about
baseball. On one occasion, Allen called him and said that
General Manager Mabrey had called Allen to the office and
knew about the drinking. According to Bailey, Allen said
that it was either ‘‘my [Bailey’s] job or his [Allen’s] job,’’
and Allen had five kids to support and would do anything
to protect his job. Allen wanted to know whether Bailey
would still be his friend. Bailey denied telling Allen to lie
about the matter. ‘‘I told him’’ Bailey testified, ‘‘you’d better
tell the truth, whatever.’’ Later, Bailey averred that he
‘‘didn’t tell Rick to do anything. Rick said he had already
told Mr. Mabrey.’’
As described hereinafter, Allen later gave his version of a
telephone conversation with Bailey to General Manager
Mabrey and Plant Manager Kelley.
b. Factual analysis
Crediting the Company’s supervisors, I find that they
questioned Jordan and Allen on September 12, the Monday
following the objections hearing. Jordan’s and Allen’s selec-
tions of different dates are erroneous. Although Jordan failed
to corroborate the supervisors’ averments that they specifi-
cally asked about drinking during the lunch period, Allen did
supply this corroboration, and I conclude that this was part
of the supervisors’ questions.
I further conclude, crediting Mabrey and Kelley, that Jor-
dan and Allen told them that all four employees participated
in the drinking, despite Allen’s testimony omitting Jordan’s
name, and the fact that both Allen and Jordan, in their state-
ments at the time, omitted the other’s name and, tacitly,
themselves, as participants in the drinking.
Allen’s account of his conversation or conversations with
Bailey is improbable. Allen was called into Mabrey’s office
about the end of Bailey’s lunch period, and there is nothing
in the record to show how Bailey learned of this visit—as
Allen asserted. Allen’s contention that Bailey advised him to
go back and ‘‘change his story’’ is unlikely. As Bailey him-
self testified, Allen had ‘‘already told’’ Mabrey. It is improb-
able that Bailey would have called Allen a ‘‘SOB’’ in the
first call, and then would have called again a short time later
for an amicable discussion of baseball, as Allen contended.
In assessing the relative credibility of Bailey and Allen, I
have carefully considered the fact that Bailey was found
guilty by the State of Alabama of issuing bad checks within
10 years from the date of his testimony.24 I conclude that
this offense involved dishonesty or false statement within the
meaning of the Federal Rules,25 and must be considered in
determining Bailey’s credibility.26
121ARATEX SERVICES
served time for receiving stolen property, had been in a work release program,
and was on probation. According to Kelley, none of this affected the decision
to hire Bailey because applicants with criminal records qualified under a job
Tax Credit program. Under this program, Respondent at one time hired appli-
cants convicted of murder and burglary. Respondent has since discontinued
participation in the program.
Jordan’s employment application (R. Exh. 17) was not entirely complete in
that he omitted at least one prior employer. However, he filled out the applica-
tion at the end of the day. Although it was incomplete, Plant Manager Kelley
was ‘‘in a hurry’’ and told Bailey that he wanted to show Bailey the work
he would be doing. The application was not returned to Bailey for completion.
He started working for Respondent at that time.
27 Testimonies of General Manager Mabrey and Ricky Allen.
28 R. Exh. 28.
29 R. Exh. 29.
30 R. Exh. 24. There are records alleging similar 1-day absences on a total
of three occasions in July and August (R. Exhs. 21–23).
31 See discussion of medical absences, infra, sec. E.
32 Mabrey testified that Bailey’s letter was prepared on September 13 or 14,
and that the letter for Wells had been prepared before the Company’s meeting
with him on September 15. G.C. Exhs. 10 and 11.
33 Supra, fn. 17.
34 G.C. Exh. 11.
35 G.C. Exh. 10.
On the other hand, there are problems with Allen’s credi-
bility. As indicated, he was contradicted by General Manager
Mabrey on at least two issues. Further, his statement given
to the Company is contradicted by his testimony in that the
statement excludes Jordan and, tacitly, himself as a partici-
pant in the drinking. After two attempts, he could not name
the date of his interview. Finally, Allen testified that he did
not care whether the other employees were fired—‘‘that was
their chance they was taking, not mine.’’ I conclude that a
motivating factor in Allen’s testimony was his desire to
please the Company and thus preserve his job. Accordingly,
I find he was a biased witness.
I further conclude that the factors tending to discredit Bai-
ley have less weight than those tending to discredit Allen.
Further, as indicated, Bailey’s testimony is inherently more
probable than Allen’s. Accordingly, I credit Bailey’s version
of the telephone conversation between him and Allen on
September 12.
3. The suspensions of Wells and Bailey, and
preparation of the discharge letters
Plant Manager Kelley testified that on the evening of the
same day that the Company interviewed Allen, the latter
called Kelley at home and said that Bailey had told Allen
that he would deny drinking ‘‘to the end.’’ Early the fol-
lowing morning, September 13, Allen went to Mabrey’s of-
fice and told the general manager that Bailey had called him
the prior afternoon. Allen informed Mabrey that Bailey ad-
vised Allen to ‘‘change his story,’’ and that he, Bailey,
would deny drinking beer ‘‘to the end.’’27 There is nothing
in Allen’s testimony about his telephone conversation with
Bailey which attributes to the latter a statement of intention
to deny drinking.
Thereafter, on the same day, September 13, the Company
obtained statements of two employees who asserted that a
clerk in a nearby convenience store confirmed the statements
which Jordan and Allen had given to the Company.28 This
is similar to the clerk’s testimony at the hearing. Jordan’s
statement to the Company contains the averment that
‘‘they,’’ i.e., Bailey, Wells, and Linderman—according to
Jordan—discontinued buying beer at the convenience store
when ‘‘Sonny [Bailey] found out that the lady in charge of
the store had a sister that worked for Aratex . . . in the sales
and service office.’’29
Bailey had been absent for a medical reason on September
12. On the following day, September 13, Plant Manager
Kelley suspended him without pay. According to Bailey,
Kelley said that it was for ‘‘those four days’’ (of absences).
Bailey asked Kelley to specify the days, and Kelley replied
that he did not have to. One of Respondent’s attendance re-
ports, dated September 15, states that Bailey was told to
bring in a doctor’s excuse and failed to do so.30 Although
Mabrey ‘‘approved’’ the report, the supervisor who reported
is not named, and Bailey testified without contradiction that
he was not asked to bring in a doctor’s excuse.31 Kelley
agreed at the hearing that he did not tell Bailey the specific
reason for the suspension. The Company had completed a
‘‘full-scale investigation of the drinking,’’ and Kelley was
compiling data on assertedly deficient linen counts by Bailey.
The suspension was for both this reason and the drinking.
Kelley asserted that he told Bailey he was suspended for
‘‘some wrongdoings,’’ and that Kelley would get back with
him.
Wells was also absent on September 12 for a medical rea-
son. He testified that he brought in a medical excuse the fol-
lowing day, but that ‘‘John’’ (Kelley) told him that he had
been ‘‘seen out the day before,’’ and that the excuse was not
valid. A few days later, when he was discharged for drink-
ing, Wells was told by Kelley that his excuse was valid, ac-
cording to Wells’ uncontradicted testimony.
On September 13 or 14, Respondent prepared discharge
letters for Bailey and Wells, dated September 15.32 The letter
to Bailey asserts that he had been suspended on September
13 for absences without providing a medical excuse. The let-
ter states that the Company had evidence of ‘‘drinking . . .
on the job,’’ and of a telephone conversation on September
12 in which Bailey said he would ‘‘deny it to the end.’’ Ac-
cording to the Company, ‘‘[t]his further confirms your guilt
in this matter.’’ The letter also alleges evidence of improper
linen counts by Bailey, ‘‘dishonesty’’ to the customers, and
resulting loss of business. Finally, the letter refers to the em-
ployee handbook prohibition against drinking ‘‘during work-
ing hours (including meal periods),’’33 and discharges Bai-
ley.34
Plant Manager Kelley was asked why absences without a
medical excuse were asserted as a reason, when the company
managers had decided to suspend Bailey on the drinking and
linen count issues. Kelley replied that they decided to put in
‘‘any other problems’’ that they had with Bailey.
The letter to Wells contends that, although he reported for
work September 13 with a doctor’s excuse, he had been seen
in the company of Bailey the prior day. Wells’ suspension,
the letter alleges, was because of an investigation of drink-
ing, as to which the evidence was ‘‘overwhelming.’’ After a
reference to the handbook prohibition against drinking during
meal periods, the letter discharges Wells.35
General Manager Mabrey testified that he prepared the
discharge letters before meeting with Bailey and Wells be-
cause he anticipated that they would deny the allegation, and
on Mabrey’s asserted opinion that Bailey lied ‘‘[j]ust about
every day.’’ However, Bailey had never been disciplined for
lying. The letters, according to Mabrey, were ‘‘waiting in
case they denied the charge,’’ but could have been ‘‘torn
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 As indicated above, although the employee handbook, distributed in 1985,
prohibited drinking during lunch periods, the prior rule posted since 1977
merely barred drinking ‘‘on the job’’ or working under the influence of an
alcoholic beverage (R. Exhs. 4, p. 5; 31).
37 R. Exh. 32.
up.’’ No letters were prepared prior to the interviews on Sep-
tember 12 with Jordan and Allen, because this was the ‘‘be-
ginning of the investigation.’’ However, Mabrey acknowl-
edged that when Allen, following Jordan, was interviewed,
Mabrey had reason to believe that Allen had been drinking.
4. The discharges of Wells and Bailey
The evidence is consistent that Wells was called into
Mabrey’s office about noon on September 15, with Plant
Manager Kelley present, and was asked whether he had been
drinking beer during his lunch periods. Wells denied it, and
was given the discharge letter.
Bailey was called into the office a few minutes later. Ac-
cording to the company managers, Bailey was asked whether
he had been drinking beer during his lunch periods, and de-
nied it. According to Bailey, Mabrey said that Bailey had
been drinking ‘‘on the job,’’ and Bailey denied this. On
cross-examination, Bailey repeated this assertion, and
claimed that lunch time was ‘‘free time.’’36 However, Bailey
acknowledged that Mabrey ‘‘could have’’ told him that the
Company had evidence that employees had purchased and
drunk beer during lunch periods. It is unlikely that the com-
pany managers would have failed to specify lunch periods
with Bailey after having done so previously with the other
employees, and I conclude that they did so on this occasion.
After Bailey’s denial, he was given the previously prepared
discharge letter.
General Manager Mabrey testified that Wells and Bailey
were fired because they were ‘‘guilty of drinking during
lunch periods but would not admit it.’’ Respondent provided
a list of employees allegedly terminated for violating com-
pany policy. In this list Bailey is said to have been termi-
nated for ‘‘misuse of alcoholic bev.,’’ and Wells for ‘‘viola-
tion of rules and misuse of alcoholic beverages.’’37 Mabrey
testified that the reasons given on this list were the ‘‘accu-
rate’’ reasons for termination. He also testified that Jordan
and Allen were not fired because they ‘‘told the truth.’’ If
Wells and Bailey had done the same, Mabrey contended, he
would have treated them as he did Jordan and Allen. Plant
Manager Kelley stated that Bailey was discharged because of
deficient linen counts, drinking during lunch periods, and
‘‘coming back to work [late].’’ If Bailey had ‘‘come clean
and admitted the while situation,’’ Kelley might have given
him ‘‘another chance.’’
C. Other Employee Drinking and the Company’s
Reaction
1. Ronnie Jordan
a. Summary of the evidence
Jordan was a linen or towel counter, and worked alongside
Bailey, i.e., on the 6 a.m. to 4 p.m. shift. As indicated, the
last day of lunchtime drinking took place on July 27, when
Jordan and Wells participated. The latter testified that Jordan
had two or three beers on this occasion. Jordan was a little
‘‘smaller’’ than Wells, and became ‘‘intoxicated.’’ Donna
Dunn testified that she smelled alcohol on Jordan’s breath
about 12:45 p.m. on July 27. Jordan agreed that he had two
beers, but denied that he was intoxicated.
Jordan was married, was a father, and acknowledged that
he had marital problems because of his drinking. According
to Jordan, he returned from lunch on July 27 at 12:45 p.m.
and, about 2 p.m., asked Plant Manager Kelley for a half day
off because of marital problems. Kelley refused, and Jordan
‘‘quit.’’ Jordan was corroborated by Wells, who testified
that, after the July 27 lunch period, Jordan ‘‘come back and
quit his job.’’ Joel McLean affirmed that he was on a break
when Jordan ran out of his work department and told
‘‘John’’ (Wells) that he had ‘‘quit.’’ According to McLean,
Jordan’s ‘‘words were slurred,’’ and he was ‘‘dizzy or dingy
or something.’’
Plant Manager Kelley provided a different version of these
events. Jordan asked for time off about 7 or 8 a.m., saying
that he wanted to see his baby. Kelley denied this request.
Later, after lunch, a supervisor informed Kelley that Jordan
was gone.
Wells testified that Jordan returned to the plant on July 27
after quitting. According to Wells, Jordan was ‘‘drunker than
he was when he left,’’ and drove through the parking lot
holding up a beer. McLean averred that Jordan was driving
by on the road holding up a beer and ‘‘beeping’’ his horn
about 2:30 p.m. Later Jordan ‘‘pulled right up to the door’’
to pick up Wells, ‘‘still drinking, still apparently drunk,’’ ac-
cording to McLean. Jordan testified that he had six beers on
the afternoon of July 27, in addition to the two he had con-
sumed at lunch—he was on his ‘‘own time,’’ according to
Jordan. He did not remember driving through the parking lot.
The testimonies of Jordan and Kelley affirm that the
former asked for his job back a few days later, saying that
he had ‘‘a bad drinking problem,’’ and that his wife had left
him. He promised to ‘‘straighten up’’ and quit drinking. Ac-
cording to Kelley, he had not discharged Jordan for walking
out because he wanted to hear Jordan’s explanation. After
hearing it, Kelley allowed Jordan to return to work after a
2-day suspension. Both Kelley and Jordan contended that
there was no discussion at that time of drinking during work
or lunch periods. According to Kelley, corroborated by Jor-
dan, the plant manager first learned of this at the September
12 interview following Jordan’s testimony at the objections
hearing on September 7. Kelley stated that he was surprised
to learn this, because he had ‘‘monitored’’ Jordan following
the July incident. Kelley did not take disciplinary action
against Jordan in September because he ‘‘confessed entirely
on his own,’’ and related the problems he was having with
his wife and his ‘‘commitment’’ to stop drinking.
b. Factual Analysis
Wells, McLean, and Donna Dunn were reliable witnesses
on this issue. Crediting them, I conclude that Jordan became
intoxicated after consuming two beers during the lunch pe-
riod on July 27, had alcohol on his breath about 12:45 p.m.,
and that his words were slurred.
With respect to the time that Jordan requested a half day
off, Jordan, a witness for Respondent, was corroborated by
Wells and McLean, witnesses for the General Counsel. I re-
ject Kelley’s testimony that Jordan asked for time off early
in the morning, and credit Jordan’s averment that this request
123ARATEX SERVICES
38 R. Exh. 32.
39 R. Exh. 32.
was made to Kelley about 2 p.m. After its rejection, Jordan
walked out and consumed six more beers before 4 p.m. I
credit Wells’ and McLean’s testimonies that Jordan returned
more intoxicated than before, holding up a beer and honking
his horn.
There is no direct evidence that Kelley knew of the lunch-
time drinking in July, other than whatever inference may be
drawn from Jordan’s appearance before Kelley at 2 p.m. on
July 27. Considering Jordan’s condition at the time, it is
probable that Kelley knew he had been drinking.
Donna Dunn, corroborated by Bailey, testified that em-
ployees came back from lunch intoxicated, but that ‘‘they
never did do nothing about it.’’
2. Ricky Allen
As set forth above, General Manager Mabrey contended,
and Allen denied, that Mabrey told Allen he would check the
latter’s statement that all his drinking had been done after he
had finished working. Plant Manager Kelley, on the other
hand, testified that he did not check the accuracy of Allen’s
contention, although he agreed that Allen’s work sometimes
ended at 1 p.m. ‘‘or later,’’ i.e., after the end of the lunch
period at 12:45 p.m. Kelley said that he did not know the
precise days that Allen was drinking with the other employ-
ees, but did not investigate the matter.
3. Boyce Robinson
Boyce Robinson was a route salesperson. He did not sup-
port the Union. A few days before the union elections (in
two units) on July 22, Robinson was attending a mandatory
sales meeting on company property in the evening, after his
workday had ended. He had beer on his truck and consumed
some of it. The Company acquired knowledge of the fact
that he had beer on his truck while on company property, but
the evidence is unclear as to whether it also learned that he
drank beer on company property. The transcript in relevant
part reads as follows:
Q. And on that occasion did anybody in supervision
observe you drinking this beer on company property?
A. Yes.
Q. Who saw you drinking it?
A. Well, I’m not sure the supervision that saw me
drinking it.
Q. Okay, let me back up to make sure I understand
you. Did anyone in management see you drinking beer
on the company property at that mandatory meeting in
July of ’88?
A. It was told that I had some beer on my truck at
that time.
Q. Who told you?
A. Someone in supervision; . . . I don’t know.
. . . .
Q. Again, during that meeting in July of ’88 when
you were on company property and you drank beer,
who in supervision talked to you about drinking beer
on the company property?
A. No one would talk to me at that time.
General Manager Mabrey’s attention was directed at the
hearing to Robinson’s testimony about ‘‘a drinking incident
in July.’’ Mabrey testified that he was unaware of it until a
few days later. Robinson was called to Mabrey’s office and
was asked whether he had beer on his truck. The employee
acknowledged that this was so, but contended that he thought
it was acceptable as long as he was to ‘‘on the job.’’ Mabrey
replied to the contrary, and Robinson promised not to do it
again. Mabrey gave him a verbal warning. The general man-
ager distinguished this discipline from the discharges of
Wells and Bailey on the ground that Robinson admitted the
truth and promised not to do it again.
Robinson attended a sales promotional meeting one
evening in September at a restaurant a few miles from the
plant. His truck was parked nearby, and had beer in it. When
Robinson acknowledged it, he was suspended for 3 days.
Robinson met with Mabrey at the end of the suspension, and
admitted having beer on his truck. Mabrey then discharged
him, according to Mabrey and Robinson. This asserted dis-
charge does not appear on Respondent’s list of employees
terminated for violating company policy.38 Robinson sup-
posedly told Mabrey at the time that he would ‘‘never touch
another drop.’’
About 3 weeks later, Mabrey rehired Robinson. According
to the general manager, several of his supervisors asked him
to reinstate the driver. Mabrey decided to do so, provided
that Robinson would agree to relinquish all seniority rights
and pass a drug and alcohol test. Robinson was employed on
these conditions.
4. Christmas party drinking
John Wells described drinking which took place during a
Christmas party. According to Wells, the employees were al-
lowed to leave early, but were still ‘‘on the clock.’’ Wells
testified that Jordan informed him that Clarence White,
whom Wells identified as a supervisor, had some beer on his
truck. Wells and Jordan obtained some beer on this occasion,
and drank it. Wells’ testimony was corroborated by Bailey,
is uncontradicted, and is credited.
5. Other discipline of employees
Respondent’s list of terminated employees includes three
assertedly discharged for being ‘‘under the influence on com-
pany property’’—Don (Skip) Alsop in 1966, Milton Robin-
son in 1969, and Charles Roberts in 1978.39 Mabrey testified
that Alsop had been late returning from a lunch period, could
‘‘barely stand up,’’ and needed someone to drive him home.
Mabrey investigated and found that this was the employee’s
practice. Robinson was ‘‘under the influence on company
property,’’ and fired a pistol into the air. Roberts returned
from a route ‘‘intoxicated’’ [and] out of control.’’ All were
discharged.
D. Bailey’s Work Performance, Alleged ‘‘Talking’’ to
Other Employees, and the Issue of Defective
Linen Counts
1. Summary of the evidence
As indicated, Bailey began working for Respondent in
April 1986. He was a linen counter, and worked on the 6
a.m. to 4 p.m. shift. Under Respondent’s procedure, the route
drivers picked up soiled linen from customers and bagged it
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 Respondent elicited testimony tending to minimize the significance of the
plaque. Thus, Plant Manager Kelley testified that seven employees in the plant
received plaques among seven ‘‘work areas.’’ Seven persons worked in Bai-
ley’s area, but 4 of these were in a group,’’ leaving Bailey as the highest pro-
ducer of only three employees. The other two employees were Wells and Jor-
dan. The latter was designated as ‘‘shop towel counter.’’
Respondent’s witness Judy Hill, who opposed the Union, also minimized the
significance of the plaque. Unlike Plant Manager Kelley, Hill had nothing fa-
vorable to say about Bailey’s work—he ‘‘goofed off’’ in 1987 and was the
‘‘worst’’ rather than the best employee.
41 L. 24, p. 877 of the transcript indicates that the ‘‘problems’’ began in late
1977. This is either an inadvertent misstatement by Kelley, or an error in the
transcript, since the witness obviously was referring to 1987.
42 R. Exh. 19, G.C. Exh. 13. These documents consist of photostatic copies
of notes in Kelley’s handwriting. They are not written on one of Respondent’s
‘‘Warning Notice’’ forms (R. Exhs. 5, 6, 9, 10, 13–15).
43 R. Exh. 11.
44 Respondent submitted a copy of a ‘‘verbal warning’’ to Bailey, on May
31 for ‘‘stopping at other employee’s [sic] stations to talk, disturbing the em-
ployee.’’ (R. Exh. 20).
45 R. Exhs. 15, 36, and 37; G.C. Exh. 12.
46 R. Exh. 38. As indicated, the route salespersons voted against the Union.
47 Allen’s signature on R. Exh. 38 is partially eliminated by the copying ma-
chine. However, enough of it remains so that, compared with Allen’s signature
on the statement he submitted to Respondent (R. Exh. 30), it is clear that
Allen signed the ‘‘petition.’’
48 G.C. Exh. 11.
49 Testimony of Plant Manager Kelley.
50 I reject Hill’s contrary opinion, since it was contradicted by Plant Man-
ager Kelley.
51 Fed.R.Evid., Rule 803(6); Advisory Committee’s Note, pp. 115–118;
Wigmore, Evidence, Sec. 1546 et seq., Chadbourn Ed. (1974).
with the customer’s name on a pickup card. The bags were
opened at the plant, where each linen counter counted the
items, placed the number on the customer’s pickup card, and
initialed or signed the card. The same number of items indi-
cated on the pickup card were later shipped back to the cus-
tomers, after cleaning, with billing for that number.
Plant Manager Kelley testified that he had no problems
with Bailey’s work for about a year. In the latter part of
1987, Bailey received a plaque from Respondent ‘‘in rec-
ognition of outstanding production performance in 1987 and
for overall contribution to the success of Aratex Services.’’
Bailey testified without contradiction that Kelley told him he
was ‘‘proud’’ of the work Bailey had done.40 Kelley testified
that he had very few complaints about Bailey in 1987, and
that there was no change in his work habits between 1987
and early 1988.
However, Kelley also asserted, he started having ‘‘prob-
lems’’ with the linen counts in late 1987,41 and began an
‘‘investigation’’ of Bailey, Wells, and Jordan in January
1988. Kelley testified that he spoke to Bailey and Jordan on
April 6 about inaccurate counts, and that he documented
these discussions.42 Kelley denied knowledge at that time of
Bailey’s union activities. Bailey did not recall the April 11
discussion, but Wells acknowledged that Kelley spoke to him
at that time about defective linen counts, a conversation
which is documented.43 Jordan contended that on a few oc-
casions he saw Bailey ‘‘pouring’’ bags of soiled linen with-
out counting them, but changed his testimony on the number
of times. Bailey testified that he counted ‘‘thousands’’ of
items, and Wells said that he did the best he could. Kelley
also asserted that he was ‘‘lenient’’ about the linen count
problem from February through August, when he began re-
ceiving ‘‘bad complaints from customers and route people.’’
Kelley also contended that he had ‘‘problems’’ with Bai-
ley going through the plant talking to other people’’ and
interfering with their work.44 Respondent’s witness Judy Hill
testified that Bailey ‘‘talked’’ to other employees, but denied
that he left his work station to do so.
Respondent submitted copies of purported warnings to
Bailey, Wells, and Jordan about improper linen counts, dated
August 23. These have the heading, ‘‘Warning Notice.’’45 It
also submitted a letter dated the next day, August 24, signed
by an assistant general manager, reciting alleged complaints
from customers about improper linen counts, and soliciting
employee signatures thereto. Under the assistant general
manager’s signature are various other signatures. Plant Man-
ager Kelley identified this document as a ‘‘petition’’ sent to
and signed by the ‘‘route people’’ and others allegedly com-
plaining of improper linen counts.46 One of the signatories
is Ricky Allen.47 Although Allen was a route sales person
and, although he was called as a witness for Respondent, he
was not asked to testify about customer complaints of inac-
curate linen counts.
The next documentary reference to improper linen counts
by Bailey is found in his discharge letter, dated September
15. The letter contends inter alia that Respondent had ‘‘docu-
mented proof to support [its] evidence [as to] soil counts
conducted by supervisory, management and route per-
sonnel.’’48 Respondent suspended Jordan for 2 days in Janu-
ary 1989 because of improper shop towel counts. Plant Man-
ager Kelley agreed that Jordan’s problem with shop towel
counts continued to that date.49
2. Factual analysis
There is no reason to doubt Kelley’s acknowledgement
that Bailey was a good employee, at least up to the begin-
ning of 1988.50 Respondent’s first documentary evidence of
any change is the discussion which Kelley had with the three
linen counters, including Bailey, on April 11. It should be
noted that these discussions were not recorded on one of Re-
spondent’s ‘‘Warning Notice’’ forms. After the verbal warn-
ing given to Bailey on May 31 for ‘‘talking,’’ the first for-
mal notices issued to the linen counters were one to Wells
on June 14 for alleged failure to bring a medical excuse, and
three on August 23 to the linen counters for assertedly defec-
tive counts. As Kelley stated, he was ‘‘lenient’’ with linen
counters until August, when he supposedly began receiving
‘‘bad’’ complaints from customers about allegedly inaccurate
counts. At that time, of course, Respondent was opposing the
Union, and had filed objections to the July 22 election.
There is no credible evidence of any change in Bailey’s
linen counts. The letter, or ‘‘petition,’’ which Respondent
sent to its route drivers reciting alleged customer complaints
about inaccurate counts and soliciting the drivers’ signatures
to the petition, is pure hearsay. It does not qualify as a busi-
ness record exception to the hearsay rule because there is no
evidence that such memoranda were prepared routinely in the
course of Respondent’s business. Rather, the ‘‘petition’’ was
prepared by Respondent after it became engaged in litigation
with the Union, and there is no reason to believe that it is
trustworthy.51 Although Respondent presumably had routine
business records which would have reflected errors in linen
counts—the ‘‘pickup cards’’ signed or initialed by the linen
counters, corrected billings to customers, etc.—no such docu-
ments were produced. No customer testified about inaccurate
counts and, indeed, no driver so testified, despite the fact that
125ARATEX SERVICES
52 R. Exh. 4.
53 R. Exh. 42.
54 R. Exhs. 21–23.
55 R. Exh. 34.
56 G.C. Exh. 11.
57 R. Exh. 39.
58 R. Exh. 12.
59 G.C. Exh. 9.
60 G.C. Exh. 9.
one of them (Allen) appeared as a witness for Respondent.
No particular linen counter is singled out in the ‘‘petition,’’
and there is therefore no way to distinguish Bailey, who was
discharged, from Jordan, who was retained despite the
latter’s continued improper linen counting into 1989. I con-
clude that the ‘‘petition’’ has no probative value, and that
Respondent has not explained why it delayed doing some-
thing about the asserted linen count problem until after it be-
came involved in litigation with the Union.
I also conclude that Respondent has not established that
Bailey wandered around the plant talking to and interfering
with other employees. Although he may have talked with
other employees, Respondent’s witness Hill contradicted
Plant Manager Kelley’s contention that this took place away
from Bailey’s work station. The May 31 verbal warning was
issued after the beginning of the Union campaign and Bai-
ley’s participation therein.
E. Bailey’s Alleged Failure to Provide Medical Excuses
1. Summary of the evidence
Respondent’s employee handbook provided that ‘‘employ-
ees may be requested to provide a doctor’s excuse and . . .
a medical explanation . . . when several days have been
missed due to illness or when derogatory attendance patterns
appear to be occurring.’’52 Respondent provided numerous
copies of medical excuses for various employees dating back
at least 10 years.53
Plant Manager Kelley testified that when an employee was
out for a ‘‘period of days’’ he was ‘‘required’’ to bring in
a doctor’s excuse. According to Kelley, this policy has been
‘‘uniformly’’ applied for some time. However, on cross-ex-
amination, Kelley acknowledged that one day’s absence for
a medical reason did not require an excuse ‘‘unless it became
a pattern.’’ Kelley gave extended testimony on what con-
stitutes a ‘‘pattern.’’ Thus, if an employee who seldom
missed work because of illness suddenly began doing so,
Kelley requires a doctor’s excuse. On the other hand, if the
Company has actual knowledge of an incapacitating condi-
tion, then it would be ‘‘silly’’ to demand a written excuse.
Kelley agreed that the Company exercises ‘‘discretion’’ on
when to require a medical excuse. In any event, he added,
‘‘after the third one [day of absence] it really doesn’t make
any difference whether they bring in a doctor’s excuse . . .
because they’re not gonna get paid’’—the employees have
only three paid days of medical leave.
As indicated, Respondent’s records, all ‘‘attendance re-
ports’’ rather than ‘‘warning notices,’’ show two instances in
July and one in August when Bailey was absent for one day
without bringing in a requested doctor’s excuse.54 He was
absent again for this reason on September 12. This absence
was reported on an ‘‘attendance report,’’ which relates that
Bailey had been asked to bring in a doctor’s excuse but had
not done so. Although Mabrey ‘‘approved’’ of the report, the
space for the name of the reporting supervisor is blank.55 As
indicated, Bailey testified without contradiction that he was
not asked to bring a medical excuse. Failure to bring in re-
quested medical excuses is listed in his discharge letter as
one of the reasons for his termination.56
Respondent also submitted copies of numerous ‘‘Warning
Notices’’ to various employees, dating back at least to 1980.
Failure to provide a requested medical excuse does not form
the basis for any of the warnings.57
Bailey testified that he had missed work because of illness
‘‘every once in awhile.’’ However, he denied that the Com-
pany had a ‘‘policy’’ requiring medical excuses, and af-
firmed that he did not bring an excuse on those instances
when he had been sick. According to Bailey, other employ-
ees, including specifically Jordan, missed work for illness
and did not bring in medical excuses.
Donna Dunn testified that she had to be absent ‘‘quite a
bit’’ because of the illness of her child, and that on such oc-
casions she brought a medical excuse despite the fact that the
Company did not ‘‘require’’ it. On some occasions when she
herself was sick, she did not bring a medical excuse, but was
not disciplined.
John Wells testified that he had been absent because of ill-
ness prior to the advent of the union campaign, and was not
required in every instance to bring in a medical excuse. In
those instances where he failed to do so, he was not dis-
ciplined. In May, Wells submitted a doctor’s request that he
be excused from work ‘‘this week’’ because of illness.58
Wells was ill again on June 14, did not bring in a medical
excuse, and received a ‘‘Warning Notice.’’59
2. Factual Analysis
The language of the employee handbook demonstrates that
a medical excuse was not required unless ‘‘requested,’’ and
suggests that this would be the case only when there had
been absences of ‘‘several days’’ or ‘‘derogatory attendance
patterns.’’ Kelley’s testimony about the circumstances in
which the Company requested a medical excuse fails to set
forth any precise rules, and acknowledges that the Company
utilized discretion in making this request.
Although the Company supplied documentary evidence of
medical excuses and warning notices prior to the advent of
the union campaign, it did not submit a warning notice for
failure to supply a medical excuse, dated before that cam-
paign. The first such notice for this reason is the one issued
to Wells on June 14,60 about a month before the election.
I credit the testimonies of Bailey, Wells, and Dunn on the
Company’s policy concerning medical excuses. Based on this
evidence, the timing of the warning notice issued to Wells,
and the vagueness of Kelley’s testimony about company pol-
icy, I conclude that its policy on medical excuses included
a large element of discretion, and that the Company applied
this policy more stringently in the case of Bailey (and Wells)
after the advent of the union campaign.
I credit Bailey’s testimony that he was not asked to bring
in a medical excuse for the September 12 absence. It is clear
that Bailey’s asserted failure to submit a medical excuse con-
stituted his fourth alleged unexcused absence. According to
Kelley, the failure to bring in this excuse ‘‘didn’t make any
difference,’’ since Bailey would not have been paid for Sep-
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 U. Exh. 1.
62 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989, approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). The test set forth above applies regardless of
whether the case involves pretextual reasons or dual motivation. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984). ‘‘[A] finding of pretext
necessarily means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.’’ Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
63 As indicated, since Jordan was intoxicated at the end of his lunch hour
on July 27, with alcohol on his breath, it is probable that Kelley knew at 2
p.m. that he had been drinking.
tember 12 in any event. Nonetheless, the medical excuse
issue was included as a reason for discharge in Bailey’s ter-
mination letter.
F. Bailey’s Claim for Unemployment
Compensation Benefits
Bailey applied for unemployment compensation benefits,
and the claim was initially denied on the ground that he had
been discharged for misconduct. Bailey appealed, and a hear-
ing was conducted by the Alabama Department of Industrial
Relations in November 1988. The Appeals referee’s decision
issued the following month. In it he noted evidence that Bai-
ley had been disciplined for being absent without a medical
excuse, for improper linen counts, and for drinking beer dur-
ing lunch periods. With respect to these matters, the referee
commented (1) that Bailey had not been ‘‘excessively ab-
sent,’’ his most recent absences were due to personal illness
and an on-the-job injury, and that he testified that he was not
asked to bring a doctor’s excuse on the last occasion; (2) that
‘‘testimony revealed’’ the claimant did make erroneous linen
counts; and (3) that although the claimant may have had beer
on occasion, he was never inebriated. Calling the evidence
‘‘contradictory,’’ the referee concluded that, although the
claimant had committed acts of misconduct, he was not dis-
charged for those acts, but, rather, for legal union activity.61
G. Legal Analysis and Conclusions
1. Bailey’s discharge
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in Respondent’s
decision to discipline an employee. Once this is established,
the burden shifts to Respondent to demonstrate that the dis-
cipline would have been administered even in the absence of
the protected conduct.62
The evidence shows that Bailey was an active participant
in the union campaign, participated as an observer for the
Union at the election, and thereafter testified for the Union
at a hearing on Respondent’s objections to the election. The
Company’s knowledge of Bailey’s union activities is unques-
tioned.
The evidence also shows that Respondent, by its super-
visors, told employees that it knew that Bailey was heading
the union campaign and directed employees not to talk to
him. Employees were told that they would be worse off and
were threatened with loss of benefits, overtime, and with dis-
charge if they signed union cards or if the Union came in.
Bailey himself was told that he would lose his job if the
Union did not win the election. Employees were promised
raises if they voted against the Union, and a scheduled pay
raise was withheld until the union activity was over.
Although Bailey had been counseled about linen counts,
and verbally warned about ‘‘talking,’’ he had never been
warned about drinking. The absence of such warning is evi-
dence that this stated reason for the discharge was pretextual,
under well-established law. In addition, the decision to dis-
charge Bailey was made and the discharge letter prepared be-
fore he was interviewed on September 15. Respondent’s con-
tentions that it ‘‘knew’’ Bailey was going to lie, and that the
discharge letter could have been torn up if he had admitted
drinking, are specious. He was not asked to respond to the
charge until after the decision to discharge him had been
made. This constitutes evidence of discriminatory motivation.
Holiday Day Inn East, 281 NLRB 573, 575 (1986). I con-
clude that the General Counsel has established a strong prima
facie case that Bailey’s protected conduct was a motivating
factor in Respondent’s decision to discharge him.
Respondent has not established that it would have dis-
charged Bailey in the absence of his union activity. The
Company has advanced a number of reasons for the dis-
charge, but the principal reason relates to drinking during
lunch periods.
The Company attempted to distinguish its less stringent
discipline of other employees who drank on the ground that
they were ‘‘truthful’’ about the matter. This argument is not
persuasive. Jordan had engaged in lunchtime drinking for
some time with Bailey and others, and did so on July 27.
Although he admittedly discussed ‘‘a bad drinking problem’’
with Kelley a few days later when he was reinstated, Jordan
failed to disclose at that time that some of the drinking had
occurred during lunch periods.63 Respondent’s position that
Jordan was ‘‘truthful’’ because he admitted drinking when
questioned on September 12 overlooks his lack of candor on
July 27.
Although Allen admitted drinking, he contended that this
took place when he was off duty. Mabrey told Allen that he
would check this contention, but Respondent in fact failed to
investigate it.
The statements which Jordan and Allen submitted to the
Company are inconsistent with its purported belief that each
was truthful. Neither mentioned the other, and tacitly omitted
himself. The similar discrepancies between these statements
and what Jordan and Allen told the managers suggest that the
statements were fabricated for the purpose of implicating
Bailey and Wells, while exonerating Jordan and Allen.
Boyce Robinson admitted having beer on his truck, on two
occasions, only after its presence had been detected by a su-
pervisor. It would have been pointless for him to deny some-
thing as to which the Company had detected the physical
evidence. After having twice committed the same offense,
Robinson continued to be employed. On the first occasion he
received only a verbal warning and, on the second, a short
suspension followed by a supposed discharge. The latter dis-
cipline is questionable, since Respondent did not include it
in a list of employee discipline supplied at the hearing. In
any event, Robinson was back at work within 3 weeks, albeit
with loss of seniority benefits.
On the basis of the discipline or absence thereof imposed
in the cases of Jordan, Allen, and Robinson, the failure to
investigate Allen, the Christmas party drinking, and other
127ARATEX SERVICES
64 Respondent’s reliance on the examples of employees who were dis-
charged after being intoxicated while at work or on company property, or for
firing a pistol in the air, obviously cannot be equated with Bailey’s lunchtime
beer drinking without evidence of inebriation at any time.
65 This conclusion is buttressed by the similar conclusion of the Alabama
Department of Industrial Relations. Although it is well established that such
state agency determinations are not conclusive with respect to alleged viola-
tions of the Act, they have probative weight.
66 The warning dates in the complaint are alleged to be on or about July
18, August 24, and September 15. Although the date of May 31 was not spe-
cifically included, the documentary evidence of same was volunteered by Re-
spondent as part of its defense (R. Exh. 20), and I include that the May 31
warning, like the one on August 23, is appropriately within the ambit of the
complaint.
67 Clear Haven Nursing Home, 236 NLRB 853 (1978).
evidence, I conclude that Respondent was selective in its
treatment of employee drinking. Jordan, Allen and Robinson
opposed the Union. I conclude that they received more favor-
able treatment than that administered to Bailey (and Wells),
who supported the Union.64 It is well established that such
disparate treatment constitutes evidence of discriminatory
motivation.
I also note that Kelley and Mabrey themselves did not
agree on the exact part that the drinking played in the dis-
charge, the former stating that ‘‘drinking’’ was the reason,
and the latter averring that ‘‘lying’’ about it was the deter-
minative factor. These contradictions constitute additional
evidence that the Company’s reason was pretextual.
With respect to work performance, it is clear that Bailey
was a good emloyee at least until the beginning of 1988. Al-
though the Company counseled the linen counters, including
Bailey, in April, these were not recorded on official warning
notice forms and did not constitute warnings. There is no
probative evidence that the linen count problem, whatever its
extent, had become any worse during the Company’s admit-
tedly ‘‘lenient’’ treatment of the matter. Nonetheless, Bailey
and the other linen counters were given formal warning no-
tices concerning this matter on August 23, after the union
campaign and the election. Respondent’s delay in doing any-
thing more than counseling employees until it became in-
volved in litigation with the Union constitutes additional evi-
dence that this reason was pretextual. Moore Business
Forms, 288 NLRB 796 (1988).
Further, Bailey was not discharged until September 15,
about a week after he appeared as a witness for the Union
at the hearing on Respondent’s objections to the election.
The timing of this discipline constitutes further evidence of
its unlawful nature.
The Company’s assertion of the absences of medical ex-
cuses as a reason for Bailey’s discharge is no more valid
than the others. Kelley admitted that this reason was simply
added to the discharge letter. As indicated, the rule on med-
ical excuses was stated in nonmandatory language, and the
Company in many instances did not require medical excuses,
or failed to discipline employees who did not supply them.
The Company’s list of warning notices previously given to
employees does not include one for failure to provide a med-
ical excuse. The first such warning was issued (to Wells)
about a month before the election. Bailey himself was never
given such a warning, and his asserted fourth failure to do
so did not make ‘‘any difference,’’ in the Company’s own
language. I find that this reason, like the others, is pretextual.
Since Respondent has not rebutted the General Counsel’s
prima facie case, I conclude that Bailey’s discharge on Sep-
tember 15 was discriminatorily motivated, and constituted an
unfair labor practice within the meaning of Section 8(a)(3)
of the Act.65
2. Other violations of the Act—The settlement
agreement
As indicated, the complaint alleges that Respondent unlaw-
fully issued a warning to Bailey on various dates. I have
found that it verbally warned Bailey about talking to other
employees at their work stations on May 31, and issued a
written warning to him on August 23 for alleged inaccurate
linen counts. The complaint alleges that these warnings, to-
gether with Bailey’s discharge, violated Section 8(a)(3) and
(1) of the Act.66 The settlement agreemment limits the adju-
dication to Bailey’s ‘‘discharge,’’ and bars a finding of
‘‘independent’’ violations of Section 8(a)(1) of the Act.
I have already found that Bailey’s discharge violated Sec-
tion 8(a)(3), and it is well established that such discharges
derivatively violate Section 8(a)(1). Since the settlement
agreement bans Board consideration only of independent vio-
lations of Section 8(a)(1), it has no effect on derivative viola-
tions of that section. Accordingly, I additionally find, Bai-
ley’s discharge violated Section 8(a)(1). There remains for
consideration the complaint allegations concerning the warn-
ings.
Counsel for the General Counsel stated at the hearing that
she ‘‘agreed’’ with the settlement agreement in Cases 10–
CA–23659 and 10–CA–23862–1. However, Respondent’s
representative contended that he was submitting a copy to
her for ‘‘policing . . . and not for any approval.’’ The posi-
tion of the alleged discriminatee, Bailey, was not ascertained.
Respondent further affirmed at the hearing that the actual
written partial settlement agreement would prevail over char-
acterization of it at the hearing. Neither the General Coun-
sel’s representative nor Bailey signed the partial settlement
agreement. I conclude that that agreement was, as indicated
by the signatures thereon, a private non-Board settlement
agreement entered into between Respondent and the charging
Union.
The Board has recently reevaluated its position with re-
spect to non-Board settlements in Independent Stave Co., 287
NLRB 740 (1987). In that case three individuals filed
charges that the employer had discriminatorily failed to hire
them, and complaint issued thereon. Two weeks later, the in-
dividual charging parties signed settlement agreements with
the employer providing inter alia for reinstatement and back-
pay. The union pronounced the agreement to be ‘‘fair,’’ but
the General Counsel opposed it principally on the ground
that the backpay amount was insufficient. In rejecting the
General Counsel’s position, the Board stated that there are
‘‘risks inherent in litigation. For example, witnesses may be
unavailable or uncooperative; procedural delays may occur;
the issues may be complex or novel; supporting documenta-
tion may have been destroyed or lost and credibility resolu-
tions may have to be made by the administrative law judge’’
(id. at 742). The Board overruled prior precedent,67 and stat-
ed that it would determine whether non-Board settlements ef-
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
68 In another case, Energy Cooperative, 290 NLRB 635 (1988), the Board
approved of a strike settlement agreement which waived certain employee eco-
nomic rights. The Board based its position on other authority, but stated that
it was consistent with Independent Stave (id. at 932). 69 Jefferson Chemical Co., 200 NLRB 992 (1972).
fectuate the purposes and policies of the Act and should be
approved in the following manner (at 743):
[T]he Board will examine all the surrounding cir-
cumstances including, but not limited to, (1) whether
the charging party(ies), the respondent(s), and any of
the individual discriminatee(s) have agreed to be bound,
and the position taken by the General Counsel regard-
ing the settlement; (2) whether the settlement is reason-
able in light of the nature of the violations alleged, the
risks inherent in litigation, and the state of the litiga-
tion; (3) whether there has been any fraud, coercion, or
duress by any of the parties in reaching the settlement;
and (4) whether the respondent has engaged in a history
of violations of the Act or has breached previous settle-
ment agreements resolving unfair labor practice dis-
putes.
Citing the fact that the individual charging parties had re-
quested approval of the settlement which the Union had con-
sidered ‘‘fair,’’ and the risks in litigation, the Board granted
the employer’s motion for summary judgment (id.).
The Board has subsequently applied the principles of Inde-
pendent Stave. Thus, in American Pacific Concrete, 290
NLRB 623 (1988), the employer had already been deter-
mined to have committed an unfair labor practice, and the
issue was the amount of backpay. Prior to opening of the
backpay hearing, the employee, the union, and the employer
entered into a settlement agreement over the amount of back-
pay. The employee was aware that the employer intended to
challenge his evidence on interim earnings. The General
Counsel opposed the settlement, and it was rejected by the
administrative law judge. In accepting the settlement, the
Board noted that the employee and the union had agreed to
the amount. It also observed that the ‘‘outcome before the
judge was not necessarily final’’ and, considering evidence
of the employer’s troubled financial condition, a future award
was ‘‘problematic’’ (id.).68
In Cambridge Taxi Co., 260 NLRB 931 (1982), separate
charges against an employer were filed by an individual and
a union. Thereafter, the individual filed another charge. A
settlement agreement was entered into by the individual, the
union, and the employer regarding the initial charges, and
was approved by the Regional Director. Thereafter, com-
plaint issued on the last charge, and the employer filed a mo-
tion for summary judgment. In granting the motion, a panel
majority of the Board stated as follows:
We have consistently held that a settlement agreement
disposes of all issues involving presettlement conduct
of the parties, unless prior violations of the Act were
either unknown to the General Counsel and not readily
discoverable by investigation, or specifically reserved
from the settlement agreement by mutual understanding
of the parties (id.).
Member Jenkins, dissenting, reasoned that the fact that the
agreement did not specifically provide for withdrawal of the
last charge meant that it had been ‘‘specifically reserved’’
from the agreement (id. at 932).
In American Laundry Machinery, 263 NLRB 944 (1982),
an administrative law judge, relying on Cambridge Taxi Co.
and other authority,69 granted an employer’s motion for sum-
mary judgment, and the Charging Parties and the General
Counsel filed requests for review. In vacating the order, the
Board stated as follows:
The Administrative Law Judge’s reliance on Cam-
bridge Taxi Company is similarly misplaced. The settle-
ment agreement involved in Cambridge Taxi was a
Board settlement, which the General Counsel executed
and which the General Counsel was responsible for po-
licing. Effective administration and enforcement of the
Act requires that a high percentage of labor disputes be
settled, rather than litigated. Toward this end, the Board
has a longstanding policy of encouraging parties to re-
solve their differences themselves, just as long as the
resulting settlement agreement—either the Board or
non-Board variety—adequately effectuates the policies
of the Act. Settlement is not an end in itself, however,
and when, as here, there is sharp disagreement among
the parties as to what the non-Board settlement did or
did not purport to include, we believe that the instant
matter was not ripe for summary judgment . . . .
Applying the Independent Stave criteria to the facts in this
case, Bailey, the discriminatee, did not agree to elimination
of the allegation of unlawful warnings. Although the position
of the General Counsel was ambiguous because of her stated
agreement at the hearing, in essence this was a non-Board
settlement because of Respondent’s statement that the Gen-
eral Counsel had no right to approve the agreement, and be-
cause she did not sign it. Inasmuch as I have already deter-
mined that Bailey was unlawfully discharged and have made
credibility resolutions, this case does not present at this stage
the risks of litigation mentioned by the Board in Independent
Stave and American Pacific Concrete.
It is clear from the General Counsel’s brief that there is
disagreement between the parties as to the meaning of the
settlement agreement. Following the rationale of Member
Jenkins’ dissent in Cambridge Taxi, if the parties had meant
to exclude the alleged unlawful warnings from adjudication,
they would have so stated.
Finally, the warning to Bailey about talking to other em-
ployees at their work stations issued in the midst of the
union campaign, while the warning about linen counts took
place a few weeks before Bailey’s appearance as a Union
witness at a hearing on Respondent’s objections to the elec-
tion. In the discharge letter, Respondent purported to rely on
prior discipline of Bailey. The discharge and the warnings
were thus closely related. A full remedy in this case would
necessarily include an expunction order, in order to preclude
reliance on such warnings as the basis of future discipline.
For these reasons, and relying on the authority of American
Laundry Machinery and the foregoing application of the
Independent Stave criteria, I conclude that it would not effec-
tuate the purposes of the Act to exclude the alleged unlawful
warnings from this adjudication.
129ARATEX SERVICES
70 Maremont Corp., 294 NLRB 11 (1989).
71 I deny Respondent’s ‘‘Motion to File Reply Brief and Reply Brief.’’ Al-
though the Board’s Rules provide for an answering brief to a brief in support
of exceptions to an administrative law judge’s decision, there is no such provi-
sion when the matter is still before the administrative law judge. Board’s Rules
and Regulations, Secs. 102.42 and 102.46.
72 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendments to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date
of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB
651 (1977).
73 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
It is clear from the evidence recited above that both the
May 31 and the August 23 warnings were discriminatorily
motivated. The first warning took place in the midst of the
union campaign, in which Bailey was an active participant
with company knowledge thereof. The warning does not al-
lege that Bailey had violated any company rule or policy,
and its assertion that Bailey talked to other employees at
their work stations was false. In essence, Bailey was given
a warning for talking to other employees while at his work
station. I conclude that this warning was motivated by Re-
spondent’s desire to limit Bailey’s solicitation of union sup-
port among the employees, that it constituted an overly broad
restriction on such communication under established Board
law, and that it constituted an unfair labor practice within the
meaning of Section 8(a)(3) and (1) of the Act.70
It is also clear that the August 23 warning for alleged im-
proper linen counts was unlawfully motivated. As indicated,
Bailey was initially a good employee, and after tolerating as-
serted inadequacies in linen counts, Respondent has not pro-
vided any credible reason for the sudden imposition of a
written warning in the midst of its litigation with the Union.
Moreover, Jordan, who opposed the Union, was also warned
about linen counts on August 23, and repeated the offense
in January. Jordan was only suspended, whereas Bailey was
discharged.
I conclude that Respondent discriminatorily warned Bailey
on May 31 and August 23, thereby violating Section 8(a)(3)
and (1) of the Act.71 Although the General Counsel’s brief
mentions an unlawful suspension of Bailey, no such allega-
tion appears in the complaint.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. The Respondent, Aratex Services, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs and Sales Drivers, Teamsters Local Union
No. 402, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO is a labor organization with the meaning of
Section 2(5) of the Act.
3. By issuing warnings to J. L. Bailey on May 31 and Au-
gust 23, 1988, and by discharging him on September 15,
1988, because of his union activities and sympathies, Re-
spondent thereby committed unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action necessary to effectuate the purposes of the Act.
It having been found that Respondent unlawfully issued
warnings to J. L. Bailey on May 31 and on August 23, 1988,
and discharged him on September 15, 1988, it is rec-
ommended that Respondent be ordered to offer him imme-
diate reinstatement to his former position or, if such position
no longer exists, to a substantially equivalent position, dis-
missing if necessary any employee hired to fill said position,
and to make him whole for any loss of earnings he may have
suffered by reason of Respondent’s unlawful conduct, by
paying him a sum of money equal to the amount he would
have earned from the date of his unlawful discharge to the
date of an offer of reinstatement, less net earnings during
such period, to be computed on a quarterly basis in the man-
ner established by the Board in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).72
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended73
ORDER
The Respondent, Aratex Services, Inc., Decatur, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Chauffeurs and Sales
Drivers, Teamsters Local Union No. 402, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO, or any other
labor organization, by issuing warnings to or discharging em-
ployees because of their union activity, or by discriminating
against them in any other manner with regard to their hire,
tenure of employment, or terms and conditions of employ-
ment.
(b) In any other like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer J. L. Bailey full reinstatement to his former posi-
tion or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of earnings he may have suffered by reason of Respondent’s
unlawful discrimination against him, in the manner described
in the remedy section of this decision.
(b) Expunge from its personnel records or other files any
reference to its warnings to Bailey on May 31 and August
23, 1988, and its discharge of him on September 15, 1988,
and notify him in writing that this action has been taken and
that evidence of his unlawful warnings or discharge will not
be used as a basis for future personnel actions against him.
(c) Preserve and, on request, make available to the Board
or its agents, for copying, all payroll records, social security
payment records, timecards, and all other records necessary
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
74 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
to analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its Decatur, Alabama, plant copies of the at-
tached notice marked ‘‘Appendix.’’74 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in Chauffeurs and
Sales Drivers, Teamsters Local Union No. 402, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, AFL–CIO, or any
other labor organization, by issuing warnings to or dis-
charging employees because of their union activities, or by
other discrimination against them.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the Act.
WE WILL offer J. L. Bailey full reinstatement to his former
job, without loss of any rights or privileges, and WE WILL
make him whole for any loss of earnings he may have suf-
fered because of our unlawful discharge of him, with interest.
WE WILL expunge from our records all references to our
unlawful warnings to and discharge of J. L. Bailey, and no-
tify him in writing that this has been done, and that such dis-
cipline will not be used as the basis for future personnel ac-
tions against him.
ARATEX SERVICES, INC.