Austell Box Board Corp.

National Labor Relations Board - Board Decisions

May 7, 1980

249 N.L.R.B. 345 (N.L.R.B. 1980)

AUSTELL BOX BOARD CORPORATION 345
Austell Box Board Corporation and Truckdrivers
and Helpers Local Union No. 728. Case 10-
CA-14131-2
May 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On August 3, 1979, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
We find that the Administrative Law Judge cor-
rectly concluded that Respondent violated Section
8(a)(4) of the Act by discharging employee Albert
Wayne Dillard because he threatened to complain
to the National Labor Relations Board about alleg-
edly discriminatory treatment. Thus, for the rea-
sons set forth below, we agree with the Adminis-
trative Law Judge that the explanation advanced
by Respondent for Dillard's suspension and dis-
charge was pretextual.
Dillard was employed as a truckdriver by Re-
spondent from June 1976 until his discharge on Oc-
tober 27, 1978. Wayne Cohran, Respondent's vice
president and administrative officer, stated that Dil-
lard was a very good truckdriver, but said that he
fired Dillard on the basis of various "work defi-
ciencies" that had occurred since November 1977,
with the deciding factor being Dillard's "harass-
ment and intimidation" of Respondent's dispatch-
er, 3 Mark Baxter, 3 days before the discharge.
The events triggering Dillard's discharge oc-
curred on October 24, 1978. 4 Late in the afternoon
of that day, after Dillard discovered that he had
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative lass judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc.. 91 NLRB 544 (195()). enfd. 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for resersing his findings
2 No exceptions were taken to the Administrative Law Judge's finding
that Dillard was not engaged in any protected actisil) with respect to
any complaints voiced to Baxter and we need not decide that issue
3 N exceptions were filed to the Administrative law Judge's finding
that Baxter was at all times material a supervisor within he meaning of
Sec 2(l I) of the Act
4 All dates hereinafter are 178 unless otlhervisc indicalted
249 NLRB No. 44
drawn a particularly undesirable driving assign-
ment to Griffin, Georgia, for the next day, he
phoned dispatcher Baxter and told him he would
be unable to drive on October 25, because his wife
had made an appointment for him to see a doctor
about a lingering leg injury. Although remarking
that the notice was short, Baxter told Dillard to go
to the doctor as planned.
Cohran, who had come into Baxter's office
during the dispatcher's phone conversation with
Dillard, instructed Baxter to call Dillard back and
remind him that his failure to take the Griffin load
the next day would result in his dropping for I day
to the bottom of the seniority board for dispatch
purposes, pursuant to a policy instituted that same
day.
When Baxter complied and so advised Dillard,
the truckdriver protested vehemently, shouting into
the phone sufficiently loud to cause Baxter to hold
it away from his ear, thus allowing Cohran to hear.
Dillard asserted that his leg was bothering him and
charged that he was being discriminated against.
Dillard stated that there was no "damn way" he
was going to the bottom of the seniority board, and
told Baxter that he was going to take the matter to
the Labor Board. After the conversation ended,
Baxter informed Cohran as to the nature of Dil-
lard's comments and then left for the day.
Several minutes later, as Baxter was driving off
Respondent's premises, Dillard flagged him down
and again accused Respondent of discriminating
against him and reiterated his intention to go to the
Labor Board. Nevertheless, Dillard said that he
would perform the Griffin trip since he probably
would have to take it the following day anyway.
On the next morning, October 25, Baxter related
the details of his parking lot encounter with Dillard
to Cohran, including Dillard's threat to go to the
Labor Board.
During this conversation, Baxter also told
Cohran that he did not believe that Dillard actually
had a doctor's appointment for October 25, but
rather that Dillard was seeking a way to avoid the
Griffin run. Cohran subsequently checked and as-
certained that Dillard had an appointment on Octo-
ber 23 which he had not kept, but that he had no
doctor's appointment for October 25.
Later on October 25, after Dillard had returned
from the Griffin trip, Cohran notified him that he
was suspended, pending a review of his file.
Cohran fired Dillard on October 27. The separa-
tion notice given to Dillard stated: "Employee was
indefinitely suspended 10-25-78 pending review of
his file. Review of his file indicated his overall
work performance was unsatisfactory. Employee
was dismissed 10-27-78 and the deciding factor
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was his harassment and intimidation of the dis-
patcher which occurred on 10-24-78." Cohran in
his testimony cited the following "work deficien-
cies" as contributing to his decision to fire Dillard:
(1) one of Respondent's major customers com-
plained to Cohran in November 1977 that Dillard
refused to accept a load of waste to be returned to
Respondent; (2) Dillard made a late delivery to a
customer in early November 1977; (3) Dillard
failed to submit driver's logs on several occasions
in late November and early December 1977; (4) in
early 1978, Dillard allegedly threatened to burn up
the engine of his truck by saying he would put gas
in it instead of diesel fuel, unless the truck was re-
paired; and (5) an anonymous telephone caller
complained to Cohran in July or August 1978 that
one of Respondent's trucks-later determined to
have been driven by Dillard-had been following
the caller too closely as he was driving on Atlan-
ta's perimeter highway.
Thus, according to Respondent, in the context of
Dillard's employment background, his harassment
of Baxter on October 24 warranted Dillard's termi-
nation. Accordingly, we examine first the October
24 episode in determining whether Dillard's threat
to seek redress from the Board was the actual
reason for his discharge. We believe there is ample
support for the Administrative Law Judge's con-
clusion that there was no evidence that Dillard
had, in fact, harassed or intimidated Baxter. The
only statement made by Dillard to Baxter which
could be construed as a threat was Dillard's ex-
pressed intention to go to the Board with his griev-
ance. While Dillard talked loudly over the tele-
phone, he did not do so when he met with Baxter
outside a few minutes later." As to whether the
telephone conversation constituted "harassment
and intimidation" it is significant that Cohran, al-
though aware of the details of Baxter's telephone
conversations, said nothing to Dillard about them
or about any attendant "harassment and intimida-
tion" when Cohran saw Dillard in Respondent's
garage shortly after the telephone conversations.
Therefore, we agree with the Administrative Law
Judge's finding that Dillard's purported "harass-
ment and intimidation" of Baxter was nonexistent
and that Respondent's reliance upon such as a "de-
ciding factor" in his suspension and discharge dem-
onstrates the pretextual nature of those actions.
Further, the pretextual nature of the discharge is
shown by the fact that, except for the anonymous
caller's complaint in July or August 1978, all of the
deficiencies in Dillard's work record cited by Re-
spondent occurred at least 10 months before his
I Respondent does not contend, nor is there any evidence, that Dillard
in any way ever threatened Baxter or anyone else with physical force.
discharge. Even the anonymous complaint was
made 3 to 4 months before the discharge. None of
these work deficiencies was repeated, none had any
relationship to events at the time of Dillard's firing,
and Dillard was not disciplined for any of them
when they occurred.
What did occur, however, in close proximity to
Dillard's discharge were his threats to Baxter to go
to the Labor Board; and Baxter's credited testimo-
ny establishes that he specifically advised Cohran
of these threats. In this connection, we find uncon-
vincing Cohran's testimony that he could not recall
whether Baxter had so informed him prior to the
suspension and discharge; that, even if Baxter did
tell him of Dillard's threats, Cohran "didn't attach
any significance to it"; and that the first time he re-
members hearing of Dillard's "Labor Board"
threats was during the General Counsel's investiga-
tion of this case about a month after Dillard's dis-
charge.
Baxter's testimony shows that Cohran was made
aware of Dillard's threats not once but twice
within a day of their utterance. Cohran did not
deny that Baxter so informed him but stated only
that he did not recall that happening and that, if it
did, he attached no significance to the threats.
Thus, Cohran's disclaimer of knowledge, hedged as
it was by his concession that Baxter might have in-
formed him of the threats, must be viewed in the
light of that concession and all that such a conces-
sion implies.
Further, in considering Cohran's disclaimer, we
have taken into account that he-as other testimo-
ny of his described below shows-was aware of
the possible consequences which might befall Re-
spondent from someone going "to the Labor
Board," as in 1977 a charge against Respondent led
to a Board settlement. We believe that Cohran,
having undergone the experience of that earlier
proceeding, would remember a threat of the kind
made by Dillard-thereby indicating that his lack
of recollection of Baxter's apprising him of Dil-
lard's threats may be attributable more to his rec-
ognizing the importance which knowledge of such
threats have in determining the nature behind a dis-
charge, rather than to any lapse of, or hazy,
memory on his part.
Indeed, Baxter's testimony and Cohran's ambigu-
ous and uncertain recollection of how and when he
acquired knowledge of Dillard's threats indicate
that Cohran was dissembling when he testified that
the threats played no part in the discharge of Dil-
lard and that therefore the contrary is true, i.e., the
threats in fact motivated Cohran to suspend and
then terminate Dillard.
AUSTELL BOX BOARD CORPORATION 347
Respondent, however, in its effort to show that
Dillard's threats did not motivate any of Cohran's
actions, presented other testimony of Cohran in
which he stated that a different employee who
filed charges with the Board against Respondent in
1977 was retained. Those charges, however, result-
ed in a settlement agreement under which Re-
spondent was required to post notices in its plant
stating that it would refrain from interrogating em-
ployees about their union activities and would not
threaten or coerce employees for engaging in union
activities. Thus, viewed in that context, this testi-
mony of Cohran falls far short of proving its in-
tended purpose. To the contrary, from these cir-
cumstances, we, like the Administrative Law
Judge, infer that Respondent's prior experience
with that other employee's charges may well have
served, in Dillard's case, to arouse Respondent's
opposition to further Board interference through
new invoking of the Board's processes.
Our dissenting colleague makes much of Re-
spondent's stated belief that Dillard had lied about
the doctor's appointment in order to avoid the
Griffin run, contending that such a belief legiti-
mately could lead Respondent to conclude that
Dillard should be discharged. However, Respond-
ent's assertion that Dillard's fabrication of the Oc-
tober 25 appointment was a cause of the discharge
was made for the first time at the hearing in this
case, and was not mentioned at the time of Dil-
lard's suspension or discharge. Respondent's at-
tempt to offer an additional reason for the termina-
tion is another indication that there was an ulterior
motive for Dillard's discharge. No other driver
ever had been disciplined by Respondent for ac-
tions taken to avoid undesirable trips, even though
other drivers had repeatedly done so to the point
that the problem had reached such a magnitude
that Respondent found it necessary to institute a
new dispatch rule intended to discourage such ac-
tions; the new policy having been implemented on
the very day Dillard was suspended. Further, Re-
spondent, knowing Dillard had missed the October
23 appointment made for him by his wife, had
reason to believe Dillard had made a mistake as to
the date his appointment was scheduled, but in-
stead presumed without further investigation his
bad faith in the matter. Such a presumption by
Cohran suggests that he was looking for an excuse
to get rid of Dillard in retaliation for the employ-
ee's threat to complain to the Board.
In asserting that Dillard had a "spotty record,"
our dissenting colleague states that Dillard had
"run ins" with several customers. Although it is
unclear what our colleague means by "run ins," ap-
parently he is referring to Dillard's late delivery to
a customer in early November 1977, and Dillard's
refusal later that same month to return a load of
waste to Respondent's facility for a different cus-
tomer. At most, these incidents were regarded by
Respondent as minor transgressions at the time, as
evidenced by the fact that Dillard was not repri-
manded or disciplined about them then. In any
event, we already have noted how remote in time
they were to Dillard's October 1978 suspension and
discharge.
Our dissenting colleague's characterization of
Dillard's work record demonstrates that he has ac-
cepted at face value Respondent's self-serving ex-
planation for Dillard's discharge. Contrary to his
assertion, the Administrative Law Judge has not at-
tempted to substitute his judgment for that of Re-
spondent. Nor have we.
Instead, we have taken the usual and proper ap-
proach of looking at all of the facts and circum-
stances surrounding Dillard's termination to decide
whether there was any connection between it and
Dillard's threats to go to the Labor Board and
have concluded that there was. We are puzzled by
our colleague's suggestion that it is somehow inap-
propriate for the Board to examine closely the al-
legedly legitimate reasons for a discharge advanced
by a respondent in order to ascertain whether,
absent the discharged employee's expressed inten-
tion to seek Board redress, it is likely that the re-
spondent would have discharged the employee for
those reasons. Not only is it proper for the Board
to make such an independent evaluation, it is obli-
gated by the Act to draw its own inferences from
all of the evidence to determine the presence or ab-
sence of discriminatory motivation.6
In view of the shifting reasons proffered by Re-
spondent for Dillard's discharge, the weakness of
the work deficiencies cited against him, and the
fact that Respondent's decision to suspend Dillard
came immediately after he threatened to go to the
Labor Board, we conclude that the General Coun-
sel has satisfied his burden of proving that Re-
spondent terminated Dillard because of his stated
intention to complain to the Board.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Austell Box
Board Corporation, Austell, Georgia, its officers,
I See Shattuck Denn Mining Corporation (Iron King Branch) v
.VL.R.B. 362 F.2d 466. 470 (9th Cir. 1966); .L.R.B. v. Pacific Grinding
Wheel Co., 572 F2d 1343 (9th Cir 1978): Industry General Corporation.
225 NLRB 1230 (1976)
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
MEMBER TRUESDALE, dissenting:
I dissent from the Administrative Law Judge's
conclusion, adopted by the majority, that Respond-
ent violated Section 8(a)(4) by discharging employ-
ee Dillard.
The complaint alleged a violation of Section
8(a)(l), (3), and (4) predicated on Dillard's dis-
charge. The Administrative Law Judge found, and
correctly so, that no independent violation of Sec-
tion 8(a)(l) had been made out since the record did
not establish that Dillard, during his several con-
versations with dispatcher Baxter or with Respond-
ent's vice president, Cohran, was voicing a specific
complaint about working conditions in furtherance
of a concerted interest. The Administrative Law
Judge also concluded, and the record demonstrates,
that the General Counsel failed to sustain his
burden of showing a connection between the dis-
charge and Dillard's union activity. Accordingly,
the Administrative Law Judge recommended dis-
missal of the complaint's 8(a)(1) and (3) allegations.
Despite these findings and recommendations, the
Administrative Law Judge concluded, and my col-
leagues agree, that Respondent violated Section
8(a)(4) of the Act by discharging Dillard. I dis-
agree.
As found by the Administrative Law Judge, Dil-
lard was scheduled to make a delivery to a custom-
er in Griffin, Georgia, on October 25, 1978, a trip
which Respondent's drivers considered undesirable
because it might well consume a whole day. Late
in the afternoon of October 24, Dillard phoned dis-
patcher Baxter and stated that he had a sore leg
and that his wife had scheduled an appointment for
him with a doctor on October 25. Baxter com-
plained it was "a little late" to be so advised but
told Dillard to go ahead. Later, at Cohran's re-
quest, Baxter telephoned Dillard and reminded him
that failure to make the delivery would cause Dil-
lard to be dropped to the bottom of the seniority
list for purposes of the next dispatch. In turn, this
caused an angry outburst on the telephone from
Dillard, loud enough to be overheard by Cohran,
that Respondent was "discriminating" against him,
a charge Dillard repeated later, during a second ex-
change with Baxter just before the latter left Re-
spondent's premises for the day. Also during the
subsequent conversation, Dillard said he would go
ahead and take the Griffin run on October 25 since
he would probably have to take it on October 26
anyway and that would "ruin" his whole week.
Cohran, upset by the angry exchange between
Dillard and Baxter which he had overheard, and
warned by Baxter on the morning of October 25
that he suspected Dillard's claim about the doctor's
appointment was a fabrication, decided to review
Dillard's file. He also checked with Dillard's
doctor and learned that Dillard had an appoint-
ment scheduled on October 23 which he missed,
but in fact had no appointment scheduled on Octo-
ber 25. Cohran promptly suspended Dillard 7 and,
after discussing Dillard with Respondent's mill su-
pervisor, discharged him on October 27. Cohran
advised Dillard that Respondent had concluded he
was not "a suitable employee to be in contact with
customers." Consistent with this explanation, Dil-
lard's separation notice read that his file had been
reviewed and "his overall work performance was
unsatisfactory . . . and the deciding factor was his
harassment and intimidation of the dispatcher
which occurred on 10-24-78."
As indicated previously, the Administrative Law
Judge found no violation either of Section 8(a)(l)
or of Section 8(a)(3) in Dillard's discharge. Never-
theless, he concluded that the discharge violated
Section 8(a)(4) because during the second exchange
between Dillard and Baxter on the afternoon of
October 24 Dillard repeated his charge that he was
being "discriminated" against and, in passing, men-
tioned he would "go to the Labor Board." In find-
ing that Dillard's threat to go to the Labor Board
was Respondent's "real motive" for terminating
him, the Administrative Law Judge reasoned as
follows: Respondent's asserted reasons for the ter-
mination were "pretextual" because "harassment
and intimidation" of Baxter was "non-existent."
Furthermore, Respondent's stated reliance on Dil-
lard's work deficiencies as detailed in Dillard's file
was pretextual since these had occurred several
months before, were not repeated, had no relation-
ship to events at the time of Dillard's suspension,
and Dillard was not specifically disciplined for
them when they occurred. As for Respondent's
concern over Dillard's unsuccessful effort to avoid
the October 25 trip, the Administrative Law Judge
reasoned this could not have been the real motive
for discharging Dillard since Respondent merely
"presumed" Dillard's bad faith in the matter.
Hence, Respondent must have had an "ulterior mo-
tivation in the suspension and discharge." The Ad-
ministrative Law Judge found that "ulterior moti-
vation" in Respondent's supposed resentment over
Dillard's chance remark to Baxter that he would
go to the Board, notwithstanding that previously
other employees had threatened to go to the Board
without suffering reprisal by Respondent and that,
in fact, one employee who had done so was still in
Respondent's employ. The Administrative Law
' In fact, Dillard reported to work on the morning of October 25 and
made he trip to Griffin; he was suspended by Cohran on his return.
AUSTELL BOX BOARD CORPORATION 349
Judge, in discrediting Cohran, simply discounted
the significance of such evidence with the observa-
tion that Dillard's threat "may well have constitut-
ed the straw that broke the proverbial camel's
back."
I submit that to state the Administrative Law
Judge's analysis of this case, an analysis which my
colleagues apparently are willing to adopt, is to de-
molish it. Put another way, the Administrative
Law Judge has attempted to substitute his judg-
ment for Respondent's and, because his assessment
of the events that occurred differs from Respond-
ent's, has concluded that Respondent's motive must
have been unlawful. However, a fair reading of this
record is that Respondent was faced with an em-
ployee with a spotty record, a record that included
specific complaints that Dillard had problems get-
ting along with others and had "run ins" with sev-
eral customers. s Given Dillard's "run in" with
Baxter, Respondent's reaction was entirely predict-
able and understandable, particularly when coupled
with Respondent's belief that Dillard had lied
about a doctor's appointment to avoid the unwel-
come Griffin run, a fabrication which, in Respond-
ent's view, triggered the entire episode.
It is not enough to suggest that Respondent's
concern about Dillard's apparent fabrication of the
October 25 appointment was not legitimate because
"there existed a real possibility of genuine error on
Dillard's part as to the date of the appointment." I
know of no duty on an employer's part to launch a
full scale investigation into such a matter. Here Re-
spondent checked with Dillard's doctor and
learned Dillard did not have an appointment on
October 25. Whether or not Respondent's conclu-
sion that Dillard had lied was correct is totally ir-
relevant; the fact is Respondent believed Dillard
lied to avoid taking the trip. In any event, contrary
to the Administrative Law Judge, Respondent's
belief does not and cannot "clearly demonstrate an
ulterior motivat;n in the suspension and dis-
charge."
Nor is the Administrative Law Judge's pretext
finding better s ported by his rejection of Re-
spondent's characterization of the Dillard-Baxter
exchange as one X which Dillard sought to harass
and intimidate Baxter. There is no dispute that
there was an angry exchange between the two
over the phone, loud enough to cause Baxter to
hold the receiver away from his ear and for
Cohran to hear, and a subsequent face-to-face con-
frontation between them. Moreover, Respondent
s Contrary to the Administrative l.aw Judge. I think this histor of
employee deficiencies was relevant to the October 25 incident and that it
might well have led Cohran to tell Dillard, as he did, that Respondent
did not think he was "a suitable employee o be in contact with culstom-
ers.
notes that Dillard was once a professional wrestler
and asserts that Baxter found his physical presence
intimidating. On this record, it simply will not do
to gloss over the possibility that Baxter, in fact,
was intimidated or that Respondent might reason-
ably have concluded this was Dillard's purpose in
confronting Baxter. In any event, the Administra-
tive Law Judge's observation that there were no
direct threats hence ". . . Dillard's alleged 'harass-
ment and intimidation,' of Baxter was non-existent
and . . . Respondent's reliance upon this . . . is de-
monstrative of the pretextual nature of such action
[the suspension and discharge]" provides no basis
for concluding Respondent's asserted reasons for
the discharge were false.
At bottom then, the Administrative Law Judge
has rejected a plausible and lawful explanation for
Respondent's action.9 Since I find his reason for
doing so unacceptable, I dissent. O
' It is manifest that this is not a case in which the eidence has eslab
lished that the Employer has seized upon a trivial incident to rid itself f
an employee for an unlawful motive, when in fact no other employe
would have been disciplined for the same asserted reason Nor is there
here any evidence of disparate treatment. indeed, quite to the contrary
the only record evidence idicales that another employee who filed
charges with the Board was retained
"' It passing, I note that my colleagues profess they are "puzzled by
[Member ruesdalc's] suggestion that it is somehow inappropriate fr the
Board to examine closely the allegedly legitimate reasons for a discharge
advanced by a respondent ." I can share in my colleagues' puzzle-
ment since nowhere have I made such a "suggestion " Howeser I do
suggest to my colleagues that just as the piling of inference upon infer-
erice is no suhstitute for proper analysis of the record as a whole, st too
the setting up and demolishing of strawmen is n substitute for reasonled
discussiion of the issues
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard in Atlanta, Georgia, on May 8,
1979. The charge was filed by Truckdrivers and Helpers
Local Union No. 728, herein called the Union, on No-
vember 2, 1978' (amended December 14), and the com-
plaint was issued on December 15, alleging violations of
Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act, as amended, herein called the Act, by Austell
Box Board Corporation, herein called Respondent or the
Company. The primary issue in the case is whether Re-
spondent suspended and discharged its employee Albert
Wayne Dillard because of' his activity on behalf of the
Union and/or because he threatened to file a charge with
the National Labor Relations Board, herein called the
Board.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
I All liates re 1978, unless other ise stlated
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Georgia corporation with an office
and place of business in Austell, Georgia, where it is en-
gaged in the business of recycling paper. During the cal-
endar year preceding issuance of the complaint, Re-
spondent sold and shipped finished products valued in
excess of $50,000 directly to customers located outside
the State of Georgia. Respondent admits, and I find, that
it is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION STATUS OF THE
UNION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Material Facts
This case was presented by the General Counsel
through two witnesses, Respondent's vice president and
administrative officer, Wayne Cohran, and Respondent's
dispatcher, Mark 0. Baxter. 2 These two established that
Wayne Dillard began working for Respondent on a
casual basis as a truckdriver in 1975. Because his work
was sufficiently good, he became a regular truckdriver in
June 1976. Dillard was active in an organizational cam-
paign by the Union among Respondent's truckdrivers in
early or mid 1977. That campaign culminated in a Board-
conducted election in the summer of 1977 which election
was won by the Union. Thereafter, in the fall of 1977,
Dillard was one of two employees on the Union's negoti-
ating committee and met with Respondent's representa-
tives on contract negotiations. His last such meeting was
in late December 1977. Because of a leg injury sustained
in January 1978, which left him incapacitated for a
period, Dillard was replaced on the Union's negotiating
committee.
Cohran admitted that Dillard was a very good truck-
driver, but he testified that he had received complaints
from a South Carolina customer, Star Baby Tube, Inc.,
in November 1977, regarding Dillard's refusal to accept
a load of waste to be returned to Respondent. According
to Cohran, he discussed the matter with Dillard who ex-
pressed a different version of the facts surrounding the
incident. In any event, Cohran put the customer's com-
plaints which were in letter form in a file retained by
Cohran, consistent with his practice of keeping "files" on
individual drivers.
Dillard's file also reflected a letter from Cohran to
Dillard dated December 8, 1977, complaining about a
2 While Respondent stipulated that Cohran was a supervisor within the
meaning of Sec. 2(11) of the Act, there was no such stipulation with re-
spect to Baxter. Respondent did stipulate, however, that Baxter, as dis-
patcher, did reasonably direct the work force. Moreover, Baxter testified,
without contradiction, that he had authority to grant employees time off.
Based on the stipulation as well as the admitted authority to grant time
off, I find that Baxter was at all times material a supervisor within the
meaning of Sec. 2(11) of the Act.
late delivery by Dillard to a customer in early Novem-
ber. The letter also complained of Dillard's failure to
submit driver's logs on occasions in late November and
early December. The letter concluded that in view of
the late delivery and because of "previous difficulty in
communicating with another one of our major ac-
counts" 3 further violations would prompt disciplinary
action.
Cohran testified that in early 1978 he was advised by
Jim Webster, Respondent's cost accountant, that Dillard
had complained that his truck was not pulling well and
had threatened to put gas in the truck rather than diesel
fuel unless the truck was fixed.4 While the truck was ap-
parently repaired, and although the alleged threat was
never carried out, Cohran put Webster's note on the
matter in Dillard's file. However, it does not appear that
Cohran ever discussed the matter with Dillard or ascer-
tained Dillard's version of the alleged threat.
There was one remaining criticism of Dillard voiced
by Cohran. In July or August, Cohran received a tele-
phone call from a man who complained that one of Re-
spondent's trucks had been following him too closely as
the man was driving his automobile around Atlanta's pe-
rimeter highway. The man, who stated that he had
gotten Respondent's name and the unit number from the
truck, refused to identify himself or to get further in-
volved. Cohran shortly thereafter ascertained that the
truck involved could only have been that of Dillard. He
discussed the matter with Dillard who refused to con-
cede that he had followed anyone too closely. No disci-
plinary action was taken by Cohran.
Cohran's testimony regarding the foregoing employ-
ment history of Dillard was not contradicted by Dillard
who was present at the hearing but was not called as a
witness by the General Counsel. I infer from Dillard's
failure to testify that Cohran's version of this history was
accurate, including Cohran's version, where given, of
Dillard's reponses when confronted on these matters.
The events which more directly relate to the suspen-
sion and discharge of Dillard occurred on October 24.
Both Baxter and Cohran testified regarding these events.
As between the two, I found Baxter to be more persua-
sive and credit his version of the facts surrounding the
suspension and discharge of Wayne Dillard wherever
that version contradicts that of Chran. Baxter's recall
was obviously clearer than Cohrai. s and his relation of
the sequence of events surrounding telephone conversa-
tions with Dillard was more logical and probable. Ac-
cordingly, in setting forth the facts of Dillard's suspen-
sion, Baxter's version will be relied .!pon. Baxter testified
that on October 24, around 4:30 p.m., Dillard phoned
Baxter from some place on Respondent's premises and
told Baxter that his leg had been bothering him, and that
his wife had made a doctor's appointment for him the
following day. Baxter told Dillard that it was a little late
to be so advised and Dillard indicated he had simply for-
gotten to tell Baxter. Nevertheless, Baxter told Dillard to
3 While not clear in either the letter itself (Resp. Exh. 2) or the testi-
mony, I conclude that the reference to the major account was the Star
Baby Tube complaint.
4 According to Cohran, use of gas rather than diesel fuel would have
ruined the engine.
AUSTELL BOX BOARD CORPORATION 351
go ahead and go to the doctor. Following Dillard's call
Baxter attempted to call the customer in Griffin, Geor-
gia, whose load would have been delivered by Dillard
the following day, but Baxter could not reach the cus-
tomer. Cohran, who had come into Baxter's office
during Baxter's phone conversation with Dillard, told
Baxter to call Dillard and remind him that his failure to
take the load the next day would result in his dropping
to the bottom of the seniority board for dispatch pur-
poses.5 Baxter did as directed and encountered a vigor-
ous protest from Dillard. Dillard's response was suffi-
ciently loud enough to cause Baxter to hold the tele-
phone away from his ear, and, also, to allow Cohran to
hear." Baxter testified that Dillard protested that his leg
was bothering him and complained that he was being
discriminated against. The latter remark he made three
or four times according to Baxter. Moreover, Dillard
stated that there was no "damn way" he was going to
the bottom of the board. While perhaps unnecessary in
view of Dillard's loud remarks which Cohran admittedly
heard emanating from Baxter's telephone, Baxter advised
Cohran of "the nature" of Dillard's comments and there-
after proceeded to go home for the day.
As Baxter was driving off Respondent's premises Dil-
lard "flagged" him down and accused Baxter again of
discriminating against him and stated his intention to take
the matter to the Labor Board. Nevertheless, Dillard
stated that he would go ahead and take the Griffin trip
since he probably would have to take it the following
day anyway and that would "ruin" his whole week. 7
Baxter testified that the following morning he advised
Cohran about his conversation with Dillard as he was
leaving the preceding evening. 8 Baxter added that he
also told Cohran, in effect, that he did not believe Dil-
lard's claim regarding a doctor's appointment and re-
garded it as an effort to avoid the undesirable Griffin
trip, the only trip available. Cohran, sometime during the
i Beginning in the summer, Respondent had begun paying its drivers
on a mileage basis rather than by salary as it had previously done. Selec-
tion of trips therefore became more critical. The initial trips each week
were assigned on the basis of driver bids and seniority. Subsequent availa-
ble trips within the same week were picked by the drivers in the order of
their return to the plant, but if there was only one trip available when the
first driver returned, that driver, under Respondent's system, was re-
quired to either take that trip or drop to the bottom of the seniority
board for bid purposes for any other available trips in the week. On Oc-
tober 24, Respondent modified its system to require a driver who had
been dropped to the "bottom of the board" to pull at least one trip from
that position. That modification was designed to prevent drivers who re-
turned to the plant late in the week and rejected a trip from being able to
exercise their regular seniority for initial trips the following week. In
short, the drivers could not take Friday off and still get their regular
choice of runs on the following Monday. While the October 24 modifica-
tion coincided with Dillard's problem herein it does not appear to be re-
lated.
6 One other individual, Greg Bartlett, a salesman for Respondent, was
in the room at the time but did not testify herein.
7 The Griffin trip was considered undesirable by the drivers because it
was paid on a flat rate basis, and although it involved driving a relatively
short distance it required a considerable amount of time since the custom-
er took 5 or 6 hours to unload the truck manually. Such a trip might
consume the whole day and preclude the driver from returning to Re-
spondent's plant and bidding on other trips that became available during
the day.
^ While Baxter testified that he specifically told Cohran about Dillard's
threat to go to the Labor Board, Cohran in his testimony stated he could
not recall Baxter telling him that. I credit Baxter on the point.
day on October 25, told Baxter that if Dillard came in he
should not pick a trip because he was suspended. How-
ever, it was Cohran himself who saw Dillard upon his
return from the Griffin trip and informed him that be-
cause of "recent events" Cohran was going to have to
suspend Dillard and review his file.
It appears from Cohran's testimony that, even before
advising Dillard of the suspension, he had already re-
viewed Dillard's "file" including Dillard's other trans-
gressions noted above. Cohran also telephoned Dillard's
doctor's office where a nurse had advised him that Dil-
lard had had an appointment on October 23 which he
had failed to keep but did not have one for October 25.
Cohran telephoned Dillard on October 26 and told
him he was still reviewing his file. Cohran related in his
testimony that after discussing the Dillard situation with
Lyn Puckett, Respondent's mill superintendent, and Bob
Prillman, another official of Respondent, it was conclud-
ed that Dillard would be terminated. On October 27
Cohran again called Dillard and advised him that in
view of the infractions in his file Cohran and the "other
people" involved felt that he was just not going to make
a suitable employee to be in contact with customers and
Dillard was being dismissed. Dillard was given an oppor-
tunity by Cohran to resign but declined to do so.
On October 30 Dillard was given a separation notice
which, if not prepared by Cohran, was admittedly re-
viewed by him. The statement on the notice in explana-
tion of the separation reads as follows:
Employee was indefinitely suspended 10-25-78
pending review of his file. Review of his file indi-
cated his overall work performance was unsatisfac-
tory.
Employee was dismissed 10-27-78 and the deciding
factor was his harassment and intimidation of the
dispatcher which occurred on 10-24-78.
Cohran gave Dillard a letter signed by him and dated
November I reflecting the fact that Dillard had had no
chargeable accidents while employed by Respondent and
recommending Dillard's driving ability. The letter noted
that any further inquiry regarding Dillard (by a prospec-
tive employer) should be directed to Cohran.
B. Contentions
The General Counsel argues in his brief, in effect, that
Dillard had not done anything to warrant his discharge.
Dillard's "harassment and intimidation" of dispatcher
Baxter referred to in Dillard's separation notice consisted
only of his complaints about discrimination and his threat
to go to the Labor Board. The General Counsel con-
tends that Dillard was engaged in protected activity
under the Act when he voiced his complaint to Baxter
and expressed his intention to go to the Board.
With respect to the voicing of complaints by Dillard,
the General Counsel contends that the Griffin trip was
the subject of "numerous driver complaints" and that
"all the drivers," including Dillard, protested the Griffin
trip and the method of payment therefor. Such protests,
it is urged, constitute protected activity and a discharge
for such activity violates Section 8(a)(l) of the Act.
--
-
-
4
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also argued by the General Counsel that to the
extent that the discharge was related to Dillard's threat
to go to the Labor Board it violated Section 8(a)(4) and
(1) of the Act.
The reasons advanced by Respondent for Dillard's dis-
charge are said to be pretextual, and designed to cloak
Respondent's unlawful reasons. The pretext is shown, ac-
cording to the General Counsel, by Respondent's ad-
vancement of additional reasons for the discharge at the
hearing which were not referred to in Dillard's separa-
tion notice, specifically Dillard's alleged effort to avoid
an undesirable trip. A pretext is further reflected in Re-
spondent's reliance upon old or stale transgressions in
Dillard's "file" to effectuate the discharge. Finally, the
weakness of Respondent's primary basis for the dis-
charge, the General Counsel argues, also clearly indi-
cates the pretextual nature of the discharge.
The General Counsel's argument with respect to the
alleged 8(a)(3) violation is not clear. While it is pointed
out that Dillard was a known and vocal adherent of the
Union, Respondent's basis for animosity toward him for
his union support is not clearly shown in the record.
In this regard, the General Counsel's brief implies that
since most of the deficiencies in Dillard's "file" consid-
ered by Respondent in the discharge had occurred
during the height of Dillard's union activities it must be
presumed that they were pretextual and therefore could
not support a legitimate discharge of Dillard several
months later.
Respondent, relying upon Cohran's denial that Dil-
lard's threat to go to the Board had anything to do with
the discharge decision, argues that Dillard was dis-
charged for cause, and that no violation of the Act oc-
curred. In Respondent's view, in its brief, simply stated,
Dillard was discharged because he sought under guise of
a doctor's appointment to avoid an undesirable trip and
this act when considered in the context of his employ-
ment background with Respondent and his harassment of
the dispatcher warranted his separation.
C. Conclusion
At the outset I do not believe the record establishes, as
urged by the General Counsel, that Dillard was voicing
any specific complaint about the Griffin run when he in-
sisted that he was not going to be dropped to the bottom
of the bid board in refusing to take the trip. The record
shows no complaint by Dillard about the Griffin run
itself, and the implication is only that Dillard believed it
unfair to penalize him for failing to take a run because he
had a doctor's appointment. In any event there was no
evidence that Dillard, even if he voiced a complaint
about the Griffin run, was speaking for other employees
in doing so. The fact that one employee on his own
behalf expresses to a supervisor a dissatisfaction with a
working condition does not constitute protected concert-
ed activity simply because other employees have a simi-
lar view. Omni International Hotel, 242 NLRB No. 45
(1979). Moreover, "communication among employees
with no purpose of advancing their common interest, is
not concerted activity." Diagnostic Center Hospital Corp.
of Texas, 228 NLRB 1215, 1217 (1977). In the instant
case there was no showing that any complaint voiced by
Dillard to Baxter on October 24 regarding either the
"Griffin run" or the dropping to the "bottom of the
board" was made with the purpose of advancing any
common interest of the employees. Accordingly, I find
that Dillard was not engaged in any protected activity
with respect to any complaints voiced to Baxter regard-
ing the Griffin run or being dropped to the bottom of
the board. It follows that there was no independent vio-
lation of Section 8(a)(1) of the Act, even if the discharge
were based on any complaints voiced by Dillard.
In deciding whether Respondent violated Section
8(a)(3), (4), and, by derivation, (1) of the Act, it must be
determined whether the reasons asserted for the dis-
charge were pretextual. As stated by the Court in Shat-
tuck Denn Mining Corporation (Iron King Branch) v.
N.L.R.B., 362 F.2d 466 at 470 (9th Cir. 1966):
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available
that is not also self-serving .... If [the trier of
fact] finds that the stated motive for a discharge is
false, he certainly can infer that there is another
motive. More than that, he can infer that the motive
is one that the employer desires to conceal ....
The reasons asserted for Dillard's suspension and dis-
charge here must be carefully considered.
A pretext is indicated when the reasons asserted for
the discharge are equivocal or ill founded. In considering
Respondent's contentions regarding the basis for Dil-
lard's suspension and discharge, I see no cause to depart
from those reasons stated in the separation notice given
Dillard. There Respondent had asserted that the deciding
factor for its actions with respect to Dillard was "harass-
ment and intimidation" of Baxter. Using the normal
meaning of those words, the record does not substantiate
any finding that Dillard harassed or intimidated Baxter.
It is true that Dillard vigorously expressed his satisfac-
tion with having to "drop to the bottom of the board,"
and even stated that there was "no damn way" he was
going to do it. But instead of persisting in this position,
Dillard only a few minutes later advised Baxter that he
was going to take the Griffin trip. That as well as the
fact that Dillard had actually driven the trip was known
to Cohran before Dillard was suspended. How Dillard's
action can be regarded as harassment was not adequately
explained on the record by either Cohran or Baxter.
With respect to the claimed intimidation of Baxter the
record shows that Dillard talked loudly through the tele-
phone to Baxter. There was not even loud talking, how-
ever, when Dillard met Baxter outside a few minutes
later as Baxter was leaving. There is no contention that
Dillard sought to fight Baxter or otherwise threatened
him with physical harm. Respondent makes much of the
fact that Dillard was allegedly a one-time professional
wrestler, and that his physical bulk was intimidating. Yet
there was no testimony that Dillard in any way threat-
ened to use that bulk or past experience to harm Baxter
or anyone else. Moreover, aside from his stated intention
of going to the Board, Dillard made no statements which
could be regarded as a threat to Baxter. It is also signifi-
cant that Cohran, although knowing of the details of Dil-
AUSTELL BOX BOARD CORPORATION 353
lard's telephone conversations with Baxter, said nothing
to Dillard about them and any attendant "harassment
and intimidation" of Baxter when Cohran admittedly saw
Dillard in Respondent's garage a short time after the
telephone conversations. Accordingly, I conclude that
Dillard's alleged "harassment and intimidation" of Baxter
was nonexistent and that Respondent's reliance upon this
as a "deciding factor" in his suspension and discharge is
demonstrative of the pretextual nature of such action.
A finding of a pretext is also supported by Respond-
ent's further reliance upon Dillard's work deficiencies
occurring several months earlier. These deficiencies were
not repeated and had no relationship to events at the
time of Dillard's suspension. Further, Dillard was not
specifically disciplined for them at the time they oc-
curred. Reference to them by Respondent in the separa-
tion notice only substantiates Resposndent's recognition
of the weakness of the alleged basis for Dillard's suspen-
sion and separation.
Even if one goes beyond the reasons asserted in the
separation notice to consider Respondent's contention at
the hearing that the discharge of Dillard was related to
his alleged excuse of a doctor's appointment to avoid the
Griffin trip, a pretext is still indicated. This is because
there was no evidence that Respondent had ever disci-
plined any other drivers for actions taken in avoiding un-
desirable trips. That Respondent had encountered such a
problem was revealed by the necessity for its institution
of the new dispatch rule on October 24, which was ad-
mittedly designed to keep drivers from refusing trips on
Fridays and yet exercising their regular seniority for bid-
ding trips the following Monday. Finally in this regard,
it is noted that Dillard was suspended without ever
having ascertained his position regarding the doctor's ap-
pointment.
Moreover, Cohran failed to explain why he did not
accept Dillard's explanation of the claimed doctor's ap-
pointment when Cohran finally inquired of Dillard about
it around the time of his discharge. Cohran, testified that
he "believed" Dillard had responded that his wife had
made the appointment. Since Cohran's inquiry of the
doctor's office showed Dillard had an appointment on
October 23, which Dillard had failed to keep, there exist-
ed a real possibility of a genuine error on Dillard's part
as to the date of the appointment. Under these circum-
stances Cohran's unsubstantiated presumption of Dil-
lard's bad faith in the matter clearly demonstrates an ul-
terior motivation in the suspension and discharge.
Based on the foregoing, I conclude that the reasons as-
serted by Cohran for his actions with respect to Dillard
were in fact pretextual and I infer therefrom that Re-
spondent's motive was one that Respondent desired to
conceal.
Considering the alleged 8(a)(3) violation in light of the
pretext found herein, there appears to be little evidence
to establish that Dillard's past union activity was a factor
in Respondent's motivation to discharge him. Dillard's
union support was well known to Respondent and had
been for some time. But from a timing standpoint his
union activity was remote to his discharge. And al-
though Cohran conceded that Dillard was involved in
driver disputes, the record does not establish that such
disputes involved union activity, or were otherwise relat-
ed to union matters around the time of his discharge.
The absence of current union activity by Dillard would
not preclude the existence of lingering animosity on the
part of Respondent to a degree sufficient to motivate a
discharge at the first good opportunity. However, such
animosity must be shown to have existed initially or must
be inferred from the circumstances of the discharge.
That Respondent found fault with Dillard's work
during the time of his union activity in 1977 does not
warrant an inference, without more, that such fault find-
ing indicated preparation for an unlawful discharge. This
is particularly so because no evidence was presented to
dispute Respondent's contentions regarding Dillard's
work problems in November and December 1977, relied
upon in part in effectuating his suspension and discharge
considered herein. Thus, the criticism of his work at that
time cannot be considered as unfounded, unjustified, or
pretextual. Accordingly, and because in my opinion the
circumstances of the suspension and discharge do not in-
dicate any connection between such action and Dillard's
union activities or sympathies I conclude, and find, that
the evidence does not establish that Respondent was mo-
tivated by unlawful union considerations in violation of
Section 8(a)(3) of the Act.
The absence of a finding of a violation of Section
8(a)(3) does not bar a finding that the basis of Dillard's
suspension and discharge was violative of Section 8(a)(4)
and (1). I am persuaded that, in view of the pretextual
nature of Respondent's actions with respect to Dillard's
discharge and because Respondent's decision on his sus-
pension came so quickly after Dillard threatened to go to
the Board, an inference is warranted that Respondent's
action was provoked by such threat. That Respondent
was so provoked is also revealed in Cohran's unconvinc-
ing attempt in his testimony to avoid any knowledge of
Dillard's threat, an attempt that was thwarted by
Baxter's admission that he had specifically advised
Cohran of Dillard's threat.
Cohran's attempt to show that Dillard's threat did not
motivate any of Cohran's actions was likewise unpersua-
sive. Cohran's self-serving testimony that half a dozen
other employees had threatened to go to the Board with-
out encountering reprisal by Respondent falls short of es-
tablishing the absence of unlawful motivation in Dillard's
case, Assuming other employees had made such threats,
Dillard's threat, vehemently stated, may well have con-
stituted the straw that broke the proverbial camel's back.
But examining Cohran's testimony closely it appears that
only one employee, Robert Harper, was still employed
by Respondent after he had threatened to file, and had
filed, charges with the Board. At least one such charge
had resulted in Respondent's entering into a settlement
agreement and posting a "Notice to Employees" in con-
nection therewith. Respondent's experience with
Harper's prior charges could serve to provoke Respond-
ent's opposition to further Board interference through
other employees invoking the processes of the Board.
Aside from Harper, Cohran's testimony shows that other
employees who threatened to go to the Board, or who
went to the Board, were already laid off or discharged
by Respondent at the time of their alleged threats.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, I do not credit Cohran's
denial that Dillard's threat to go to the Board was not a
factor in his suspension and discharge, and I find, to the
contrary, that it was. The timing of the suspension, as
well as the other evidence of pretext noted above, consti-
tutes that preponderance of evidence which destroys the
claimed lawful basis for Cohran's actions.9
It is clear from applicable case law that the discipline
of an employee for the expression of an intention of
taking a grievance with his employer to the National
Labor Relations Board violates Section 8(a)(4) and (1) of
the Act. First National Bank & Trust Co., 209 NLRB 95
(1974), enfd. 505 F.2d 729 (3d Cir. 1974); General Nutri-
tion Center, Inc., 221 NLRB 850 (1975); Mitsibushi Air-
craft International, Inc., 212 NLRB 856 (1974); Southwest
Janitorial and Maintenance Corporation, 209 NLRB 402
(1974); Ertel Manufacturing Corporation, 200 NLRB 525
(1972). Having concluded that Respondent's actions with
respect to Dillard were based on his threat to take his
claim of discrimination to the Board, I find that Re-
spondent thereby violated Section 8(a)(4) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By suspending and discharging Albert Wayne Dil-
lard because he threatened to take his claim of discrimi-
nation to the Board, Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce
within the meaning of Sections 8(a)(4) and (1) and 2(6)
and (7) of the Act.
4. Respondent did not violate Section 8(aX3) of the
Act in the suspension and discharge of Albert Wayne
Dillard.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act. Respondent having discriminatorily suspend-
ed and discharged Albert Wayne Dillard, I find it neces-
sary to order it to offer him immediate and full reinstate-
ment without prejudice to his seniority or other rights
previously enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
suspension and discharge. Backpay with interest thereon
is to be computed in the manner prescribed in F. W
I The move to suspend Dillard is only understandable in terms of his
threat to go to the Board, since there is no extrinsic evidence outside
Cohran's self-serving and discredited testimony that Cohran decided to
suspend Dillard before Baxter communicated Dillard's threat to Cohran
The delay between the suspension and the discharge was no more than
another attempt to give the appearance of deliberate consideration of the
situation in order to cloak the pretextual nature of Respondent's action.
After all. essentially all the conduct upon which Cohran relied in effectu-
ating the discharge was known by Cohran at the time of the suspension
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).'0
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '
The Respondent, Austell Box Board Corporation, Aus-
tell, Georgia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Suspending, discharging, or otherwise discriminat-
ing against any employee for expressing an intention of
taking a complaint to the National Labor Relations
Board.
(b) In any 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 which will ef-
fectuate the policies of the Act:
(a) Offer Albert Wayne Dillard immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
suspension and discharge by Respondent in the manner
set forth in the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Austell, Georgia, copies of the
attached notice marked "Appendix."' 2 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
10 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
The General Counsel in a supplemental brief urges reconsideration of the
Board's position with respect to the applicable interest rate as specified in
Florida Steel Corporation, supra. The interest rate is a policy matter for
the Board and not for the Administrative Law Judge. and I will not pass
upon the General Counsel's argument in this regard. In any event I note
that recent Board decisions adhere to the interest formula in Florida Steel.
See, e.g., Neely's Car Clinic, 242 NLRB No 69 (1979). See also Hansen
Cakes, Inc.. 242 NLRB No. 74 (1979).
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
l2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
AUSTELL BOX BOARD CORPORATION 355
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, it has been decided that we violated the Na-
tional Labor Relations Act, and we have been ordered to
post this notice.
WE WILL NOT suspend, discharge, or otherwise
discriminate against any employee for expressing an
intention of taking a complaint to the National
Labor Relations Board.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL offer Albert Wayne Dillard immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and
make him whole for any loss of earnings he may
have suffered by reason of his unlawful suspension
and discharge.
AUSTELL Box BOARD CORPORATION