AutoZone, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 115 (N.L.R.B. 1994)

115
315 NLRB No. 21
AUTOZONE, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We note that no exceptions have been filed to the decision of
the judge dismissing certain 8(a)(1) complaint allegations nor to his
decision overruling Objections 2, 3, 6, 8, and 14.
1 All dates are for 1993 unless otherwise indicated.
AutoZone, Inc. and General Drivers, Warehouse-
men and Helpers, Local Union No. 28, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 11–CA–l5357, 11–CA–l5559, 11–CA–
l5665, and 11–RC–5894
September 30, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On March 28, 1994, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, AutoZone, Inc., Greenville,
South Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election held in
Case 11–RC–5894 is set aside and that Case 11–RC–
5894 is remanded to the Regional Director for Region
11 to conduct a new election when he deems the cir-
cumstances permit the free choice of a bargaining rep-
resentative.
[Direction of Second Election omitted from publica-
tion.]
Michael W. Jeannette, Esq., for the General Counsel.
James F. Wallington, Esq. (Baptiste & Wilder), of Washing-
ton, D.C., for Teamsters Local 28.
Cornelius G. Heusel, Esq. and Tracy K. Hildago, Esq., and,
only on brief, Robert F. Spencer Jr., Esq. (Kullman,
Inman, Bee, Downing & Banta), of New Orleans, Louisi-
ana, for AutoZone.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. Although
discrimination allegations here are important, especially to
the individuals, the principal issue probably is whether
AutoZone unlawfully announced to employees that, under the
law, it could not reach a final decision on a pay raise at
Greenville, South Carolina, because the Union had filed an
election petition to represent the Greenville employees. Find-
ing that announcement unlawful, and AutoZone’s freezing of
its decision process likewise illegal, I order AutoZone to
make that decision and to implement the wage increase retro-
active to January 3, 1993, with interest. Based on these and
related findings, I recommend that the Board sustain several
of the Union’s objections, set aside the March 5, 1993 elec-
tion (which the Union lost by a substantial margin), and di-
rect that a second election be conducted. I dismiss several al-
legations, including those of discrimination against named in-
dividuals.
I presided at this 5-day trial in Greenville, South Carolina,
opening December 6, 1993, and closing December 16, 1993,
pursuant to the November 9, 1993 third order consolidating
cases, consolidated complaint and notice of hearing (com-
plaint) issued by the General Counsel of the National Labor
Relations Board through the Regional Director of Region 11
of the Board.1 The complaint is based on a charge filed and
served, in the first case, on March 15, 1993, by General
Drivers, Warehousemen and Helpers, Local Union No. 28,
International Brotherhood of Teamsters, AFL–CIO (Union or
Teamsters Local 28). That charge was amended later, and
charges were filed later in the other cases. The charges were
filed against AutoZone, Inc. (AutoZone, Company, or Re-
spondent).
Issues from the representation case are embodied in the
Regional Director’s April 29, 1993 report on objections,
order directing hearing, and order consolidating cases (report
on objections or report). On March 5, 1993, a secret-ballot
election was held in Case 11–RC–5894 under the supervision
of the Regional Director. The Union lost by a vote of 135
to 57. Although the two challenged ballots were insufficient
in number to affect the outcome, Teamsters Local 28 filed
13 specific objections with Objection 14 protesting ‘‘other
conduct’’ by AutoZone. As the Regional Director’s April 29
reflects, the Union withdrew Objections 4, 9, 10, 12, and 13,
and the Regional Director consolidated the remaining objec-
tions (1–3, 5–8, 11, and 14) with the complaint for hearing.
Most of the objections to be heard parallel allegations of the
complaint.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 References to the five-volume transcript of testimony are by vol-
ume and page. Apparently because the transcript for December 15,
1993 (the fourth day of the hearing), is a bit large at 309 pages, the
court reporting service divided the day into 2 volumes. I have re-
strung the day as a single volume, volume 4 of the transcript.
In the Government’s complaint the General Counsel al-
leges that AutoZone violated Section 8(a)(1) of the Act, 29
U.S.C. 158(a)(1), by various economic threats, promises, in-
terrogation, and other conduct between about November 18,
1992, and about March 16, and that AutoZone violated Sec-
tion 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), by withholding
a scheduled wage increase since about January 22, by failing
about March 18 to offer a cutter position to Jacqueline
McGinnis, by issuing a (written) warning to James Andrews
about July 9, and by firing Stanley Phillip Wilson about Sep-
tember 13, 1993.
By its answer AutoZone admits certain facts but denies
violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel (who attached a proposed order
and notice to the Government’s brief), Teamsters Local 28
(the Union adopts the Government’s brief respecting the un-
fair labor practice portion of the case), and AutoZone, I
make the following
FINDINGS OF FACT
I. JURISDICTION
A Nevada corporation, AutoZone has an automotive parts
warehouse at Greenville, South Carolina. During the past 12
months, AutoZone purchased and received at its Greenville
facility goods and materials, valued at $50,000 or more, di-
rect from points outside South Carolina. At all material
times, I find, AutoZone has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. LABOR ORGANIZATION INVOLVED
Complaint paragraph 6 alleges that Teamsters Local 28 is
a labor organization within the meaning of Section 2(5) of
the Act. In its answer to complaint paragraph 6, AutoZone
asserts that the allegation ‘‘is a legal conclusion which the
Respondent is not required to admit or deny.’’ The General
Counsel did not move to deem this response as an admission.
At trial neither the General Counsel nor the Union adduced
direct evidence on this allegation. Thus, when the Union
called the organizer, David M. Barry, the examination (al-
though adducing evidence about employees participating in
the organizing) was not expressly directed toward establish-
ing labor organization status. (2:265.)2 On brief the parties
advance opposing arguments, with AutoZone going beyond
the position in its answer to argue that the parties were on
notice by that answer that the Union’s status as a labor orga-
nization was in dispute.
Under Section 2(5) of the Act, only three simple require-
ments have to be met to establish labor organization status.
First, an organization or group of any kind. Second, that em-
ployees participate in the organization. And third, that the or-
ganization exists, at least in part, for dealing with employers
concerning such matters as wages, hours, or working condi-
tions. These requirements are interpreted liberally. NLRB v.
Cabot Carbon Co., 360 U.S. 203 (1959); South Nassau Com-
munities Hospital, 247 NLRB 527, 529–530 (1980). The
three prerequisites are purely factual matters, and the conclu-
sion of labor organization status which flows from these
three basic facts is likewise a factual conclusion—even
though the factual conclusion also coincides with the defini-
tion set forth in Section 2(5) of the Act and may be ex-
pressed as a legal conclusion. Thus, AutoZone was required
by 29 CFR 102.20 to admit, deny, explain, or state that it
lacked knowledge.
Ample evidence in the record shows that the Union meets
the first and third requirements. Only as to the second condi-
tion is there any question, and even then only if participation
‘‘in the organization’’ means membership rather than such
activities as signing union authorization cards or serving on
an organizing committee. As the Board has found that the
mere act of signing authorization cards constitutes the re-
quired participation, it is clear that membership is not re-
quired. Electrical Construction & Maintenance, 307 NLRB
1247 fn. 1 (1992). Serving, as employees did here, on the
Union’s organizing committee, also constitutes, I find, the
participation required by the statute. Thus, I find that the
Union satisfies the three prerequisites. Moreover, AutoZone
was well aware of the three basic facts as of the time it filed
its answer. Common sense dictated that it form the factual
conclusion and admit complaint paragraph 6—in the same
manner that it admitted to the 2(11) status of the supervisors
alleged in complaint paragraph 7.
In this case we do not have some employee committee
whose status as a labor organization might, in good faith, be
questioned. We have here the Teamsters. In addition to its
own status, the Teamsters is affiliated with the AFL–CIO.
C.D. Gifford, Directory of U.S. Labor Organizations 3, 53,
57–59 (1992–1993 ed., BNA). No doubt there are thousands
of Board cases in which Teamsters locals, and the Inter-
national, have been found to be statutory labor organizations.
These include cases where I have presided, such as Brown-
ing-Ferris Industries, 306 NLRB 682, 683 (1992). Finally,
the Board has held that a local of the International Teamsters
is a statutory labor organization by virtue of its status as a
local. Story Oldsmobile, 244 NLRB 835, 836 fn. 1 (1979)
(with representation documents there similar to those here).
I find that Teamsters Local Union No. 29 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
In light of the foregoing, and AutoZone’s refusal to an-
swer the allegation of labor organization status, AutoZone’s
continued litigation of the matter appears akin to requiring
NLRB Region 11 to prove that it is part of the Agency.
AutoZone’s continued resistance to admitting what it obvi-
ously knows amounts to nothing more than an effort to be
argumentative—at the expense of the taxpayers who are
funding this proceeding. (A stipulation in the briefs would
have served nicely.) In a similar context, respecting resist-
ance to a subpena duces tecum, the Supreme Court wrote,
‘‘A subpoena has never been treated as an invitation to a
game of hare and hounds, in which the witness must testify
only if cornered at the end of the chase.’’ U.S. v. Bryan, 339
U.S. 323 (1950). That, plus additional language, the Sixth
Circuit described as ‘‘this guiding philosophy of the Supreme
Court.’’ NLRB v. Strickland, 321 F.2d 811, 813 (6th Cir.
117AUTOZONE, INC.
3 Exhibits are designated GCX for the General Counsel’s, CPX for
the Charging Party Union’s, and RX for those of the Respondent,
AutoZone.
1963). Lawyers appearing in Board proceedings should fol-
low that ‘‘guiding philosophy of the Supreme Court.’’
The General Counsel now requests (Br. at 4 fn. 3) that I
assess the facts here under Graham-Windham Services, 312
NLRB 1199 fn. 2 (1993) (sanctions of strong disapproval
and warning under 29 CFR 102.21). Lawyers must pay atten-
tion to the topic of possible sanctions in Board proceedings,
for it is clear that the Board is serious about sanctioning law-
yers who act in bad faith in Board proceedings, such as fil-
ing frivolous pleadings which consume Agency time and the
taxpayers’ money without legitimate cause. Thus, in addition
to Graham-Windham Services, see National Football League,
309 NLRB 78, 86 (1992) (104.44 sanctions hearing directed
over possible trial misconduct); Worldwide Detective Bureau,
296 NLRB 148 fn. 2 (1989) (102.21 sanctions of strong dis-
approval and warning); and M. J. Santulli Mail Service, 281
NLRB 1288 fn. 1, 1289–1290 (1986) (102.21 sanctions of
strong disapproval and warning).
The General Counsel does not affirmatively move for any
specific sanctions. AutoZone does not address the matter,
perhaps because it may not have read the General Counsel’s
brief. That is one reason a request for sanctions should be
by separate document, a motion, served on the opponent, re-
questing a specific order. I also consider the fact that neither
the General Counsel nor the Union expressly covered the
matter at trial. Although I therefore decline to address the
issue of possible sanctions, I express confidence that
AutoZone’s attorneys will give due attention to this area in
future cases before the Board.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. AutoZone’s Business
AutoZone sells automotive parts in its retail stores across
the country. To supply these stores, AutoZone (as of early
1993) operates a distribution center in each of five cities:
Phoenix, Arizona; San Antonio, Texas; Lafayette, Louisiana;
Memphis, Tennessee; and Greenville, South Carolina. The
Greenville DC (distribution center), the facility involved
here, serves AutoZone’s retail stores in Georgia, North Caro-
lina, and South Carolina. (4:683, 812–813.) There is some
reference in the record to warehouses at other locations.
(4:603; GCX 3 at 6; CPX 8.)3 It is unclear whether a ware-
house may be something different from a DC.
For some years AutoZone was a division of Malone &
Hyde, but since 1989 AutoZone has been an independent
company. AutoZone’s corporate headquarters is located at
Memphis. J. R. Hyde (apparently J. R. Hyde III) is
AutoZone’s chairman and CEO, Peter Formanek is president
and COO, and Tom Hanemann is executive vice president of
stores and distribution. (A news item in the March 17, 1994
Wall Street Journal, at B8, reports that Formanek is resign-
ing effective April 30, with Hanemann succeeding to his
post.) Each has his office at the Memphis corporate office.
Within the corporation the retail stores are a separate division
from the distribution centers until they reach Hanemann’s
level. Thus, Dennis Edward Roberts is vice president of dis-
tribution, and he reports to Hanemann. Reporting to Roberts
are regional operation managers (ROMs), who are not named
in the record. The individual DC managers report to the
ROMs who, as noted, report to Roberts. (4:810–812, 883.)
Rick Ferguson has been manager of the Greenville DC
since October 1991. (2:96; 3:520), and during the relevant
time Ferguson had a number of supervisors reporting to him.
Although Ferguson normally reports to a ROM rather than
to Roberts, it is clear that during the Union’s organizing
campaign here that Ferguson frequently worked directly with
Dennis Roberts. (3:506, 516–517; 4:813, 854; 5:938.) As we
shall see, for example, they made joint speeches to the
Greenville employees. (GCX 2; RX 17; CPXs 7, 10.)
B. Overview of the Organizing Campaign
The Union’s organizing campaign at AutoZone’s Green-
ville DC began around October–November 1992, and some
employees openly began wearing union pins by November
and early December 1991. (1:31, 35; 3:350, 453–454, 467.)
DC Manager Rick Ferguson acknowledges learning of the
activity about early December. (2:98.) By mid-December or
so Ferguson began a training program for his supervisors as
to what they were not to do in a campaign. (4:660.) Ferguson
instructed supervisors (‘‘advisors’’ at AutoZone) that, re-
specting employees’ union activities, they were not to threat-
en, interrogate, promise, or spy. The first letters of the four
forbidden activities give rise to the acronym by which the in-
structions are called: TIPS. The TIPS training occurred al-
most daily. (4:610–611, 665–666, 689, 775, 862, 888; 5:908;
CPX 11 at 4.)
By January 6 the Union’s campaign reached the point
where the Union sent a telegram (RX 13) demanding rec-
ognition and offering to demonstrate its majority status. (Al-
though no party objected to the offer of RX 13 (4:850), I
failed to receive it in evidence. I do so now.) The following
day, January 7, the Union filed its petition (CPX 4) for a
representation election in a unit of warehouse employees. By
letter dated January 8 (RX 14), Ferguson declined the
Union’s demand for recognition. On January 11, Ferguson
posted a notice (RX 15) to all personnel advising them of
the petition and AutoZone’s opposition. By letter of January
19, the Union encouraged AutoZone to give employees pay
raises ‘‘currently due’’ to ‘‘some’’ employees, and warned
that charges would be filed for numerous violations of the
Act. (GCX 5.) AutoZone did not respond to the Union’s let-
ter. (4:858–859.)
During the campaign AutoZone’s management delivered
prepared-text speeches to groups of employees as one means
of communicating AutoZone’s position on the issues. Vice
President Dennis Roberts describes the purpose of the meet-
ings as ‘‘educational,’’ to present the facts concerning union
representation. (4:863, 881.) DC Manager Ferguson testified
that six speeches were given, with each speech delivered, on
average, to 15 small groups of employees in order to cover
all employees. (5:924–925, 979-980.) Each meeting lasted
about an hour. (5:926.)
On January 22, AutoZone gave the first (so far as the
record shows) of its speeches by management to groups of
employees. Ferguson and Roberts divided this relatively short
speech (GCX 2) of eight double-spaced pages. This was fol-
lowed by a lengthy question-and-answer session. As with the
other speeches in evidence, employees tape recorded the
question-and-answer session, a transcript of which (pp. 6–33)
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is in evidence as CPX 1. (2:336–340.) Ferguson and Roberts
delivered a second speech on January 25. (RX 17; 4:873.)
On January 27, in Case 11–RC–5894, the Regional Direc-
tor for NLRB Region 11 approved a stipulation (CPX 5) by
the parties to conduct an election on March 5 in the follow-
ing bargaining unit:
All full-time and regular part-time warehouse, mainte-
nance, and housekeeping employees, and all full-time
and regular part-time truckdrivers employed by the Em-
ployer at its Greenville, South Carolina location; ex-
cluding all office clerical employees, line leaders,
guards, and supervisors as defined in the Act.
On February 1, Ferguson and Roberts delivered the third
speech (CPX 7). By letter (GCX 4) of the same date, the
Union sent AutoZone a list of 32-named employees serving
as the Union’s organizing committee. The letter warns
AutoZone not to violate Federal law respecting the statutory
rights of employees to organize. Beginning with the February
1 speech, AutoZone excluded employees wearing union in-
signia on the basis their minds were closed to AutoZone’s
educational training. (2:112–113; 4:881; 5:925, 974, 979.)
Ferguson and Roberts delivered their fourth speech (CPX 10)
on February 8.
By two-page letter (CPX 8) dated February 16 Roberts
wrote employees describing past strikes by the Teamsters at
other warehouse locations and urging employees to vote
‘‘No’’ on March 5. (3:534.) On February 19, J. R. Hyde III,
AutoZone’s chair and CEO, delivered a speech (GCX 3) to
employees in which, on the last of 12 double-spaced pages,
he urges them to vote ‘‘No’’ on March 5. (2:292, 325.) The
Hyde speech is the fifth one so far as the record shows. If
a speech was given the preceding week (the week of Feb-
ruary 11), it is not identified and no text is in evidence.
Moreover, if a speech was given the week of February 22,
or the following week on March 1, 2, or 3, its text is not
in evidence. The text of a sixth speech (GCX 14), a short
address by Ferguson on March 16, is in evidence. That
speech came after the election, but during the objections pe-
riod.
The March 5 election was held in two sessions, 8:30: a.m.
to 11 a.m. and 1 p.m. to 2:30 p.m. (CPX 5; 3:400.) Of ap-
proximately 203 eligible voters, 135 employees voted ‘‘No,’’
57 voted ‘‘Yes,’’ and only 2 ballots were challenged. The
Union had lost. Thereafter the Union filed objections, and on
April 29 the Regional Director for NLRB Region 11 issued
his Report On Objections (GCX 1i) approving the Union’s
withdrawal of several objections and directing a hearing on
Objections 1–3, 5–8, 11, and 14. (GCX 1i at 8.) For the most
part these nine objections parallel allegations in the com-
plaint.
C. Overview of the Allegations and Objections
Complaint paragraph 8 contains the allegations of inde-
pendent violations of Section 8(a)(1) of the Act (the other
8(a)(1) alleged derives from alleged violations of Section
8(a)(3) of the Act). The alleged independent violations begin
with an alleged threat by Eloise Ruth about November 19,
1992, and continue with other economic threats, interroga-
tions, promises, and other conduct through about March 16
when DC Manager Ferguson allegedly threatened to withhold
pay raises due employees because of their support of the
Union. The 8(a)(3) paragraphs allege that since January 22
AutoZone has withheld scheduled pay increases due unit em-
ployees because the Union filed a representation petition, that
since about March 18 AutoZone has failed to offer a cutter
position to Jacqueline McGinnis, that about July 9 AutoZone
issued a written warning to James Andrews, and that about
September 13 AutoZone fired Stanley Phillip Wilson.
AutoZone denies all the 8(a)(1) allegations and the first of
the 8(a)(3) allegations (withholding a scheduled pay in-
crease), but admits that it did not offer McGinnis a cutter’s
job, that it warned James Andrews on July 9, and that it fired
Stanley Phillip Wilson on September 13. AutoZone denies
any unlawful motivation. As noted, most of the Unions’ ob-
jections parallel allegations of the complaint and, in some in-
stances, expand on them.
At trial the General Counsel withdrew one of the inde-
pendent allegations, paragraph 8(p), as unsupported by any
evidence. I granted the motion. (3:550–552.) On brief (at 6
fn. 5) the General Counsel also moves to withdraw a related
allegation, paragraph 8(q), apparently for the same reason as
AutoZone observes in its brief (at 9 fn. 5). I grant that mo-
tion also.
D. AutoZone Waives Motion to Dismiss
After the General Counsel (3:500) and the Union (3:536)
had rested their cases in chief, AutoZone made a lengthy
motion to dismiss the complaint. (3:536–553.) When I denied
its motion to dismiss, AutoZone proceeded with its defense.
(3:553.) A respondent tests the sufficiency of a prima facie
case by resting on its motion to dismiss the complaint. It
must elect whether to rest or to proceed, for if it proceeds
it waives the motion. By proceeding with its own case in
chief rather than resting on its motion to dismiss, AutoZone
waived the motion to dismiss. Peter Vitalie Co., 313 NLRB
971 (1994). I therefore shall consider all the evidence in the
entire record in reaching my decision. Peter Vitalie, id.
E. The 8(a)(1) Allegations
1. Eloise Ruth—November 18, 1992
a. Facts
Complaint paragraph 8(a) alleges that on November 18,
1992, Eloise Ruth threatened employees with more onerous
working conditions if they selected the Union as their collec-
tive-bargaining representative. Reuben Rice testified in sup-
port of the allegation, with Ruth supporting AutoZone’s de-
nial.
Rice, who left AutoZone in June 1993, worked as an order
selector pulling parts such as starters and alternators. (3:452,
475.) About October 1992, Rice had his first contact with
union representatives or supporters, and in November he
began wearing, occasionally, a union pin. Eventually Rice
served as an observer for the Union at the March 5 election.
(3:453–454, 467–468.)
Rice apparently worked in the section where Eloise Ruth
is the line leader. Although line leaders later were excluded
from the stipulated bargaining unit (CPX 5), line leaders are
hourly paid and, as Rice concedes, serve as the lowest level
supervisors. (3:454, 470; 4:690.) The complaint lists Ruth
119AUTOZONE, INC.
among the statutory supervisors, and in its answer AutoZone
admits that allegation of supervisor status.
Rice testified that, apparently in November 1992, he
would tell Ruth why he was supporting the Union. (3:469.)
At that time he considered Ruth a friend and he confided in
her on occasion. They voluntarily discussed union matters.
(3:471.) In mid-November, Rice testified, Ruth, in the same
sentence, told Rice that if he continued his support of the
Union and his dating of a specific (unnamed in the record)
white woman that Ruth would make Rice’s job harder on
him. (3:454, 471–472.) Both Rice and Ruth are black.
(3:471, 474.) Rice initially admitted that he, in one or more
conversations, had told Ruth that she should support the
Union rather than siding with whites (3:472), but, reversing
position and denying that statement, testified he told Ruth
that if the employees voted in the Union it would produce
an equal opportunity for everyone. (3:473–474.)
Line Leader Ruth asserts that Rice would initiate con-
versations with her about the Union, promising that the
Union could get better benefits for her on insurance, uni-
forms, and the like. Ruth denies telling Rice that she would
make his job harder if he ‘‘voted’’ for the Union, and she
denies threatening Rice in any way. (4:693–694.) Ruth does
not expressly address the matter of a conversation with Rice
about his dating of a white woman.
b. Discussion
Crediting Ruth rather than Rice, I find that Rice seized the
occasion of this case to retaliate against Ruth because she
disapproved of his interracial dating. To accomplish this,
Rice simply modified Ruth’s threat about dating to include
a reference to the Union. I shall dismiss complaint paragraph
8(a).
2. Barbara Cunningham—January 13, 1993
a. Facts
Complaint paragraph 8(b) alleges that on January 13 Su-
pervisor Barbara Cunningham threatened to withhold pay in-
creases due employees because of their support for the
Union. Robin Delk is the principal supporting witness, with
Cunningham supporting AutoZone’s denial.
Robin Delk worked for AutoZone from July 1991 to April
1993. (3:349.) Delk worked as an order selector under Bar-
bara Cunningham and was an early and open supporter of the
Union. (3:349-350.) Supervisor Cunningham held a sectional
meeting in the warehouse after lunch on January 13, Delk
testified, with some 100 employees attending. (3:350–351,
364.) Delk was standing in a group to one side which in-
cluded Janette Hanson, Paul Henry, Jackie McGinnis, Reu-
ben Rice, and others. (3:351, 370.) At one point during the
meeting Delk, as she testified, asked Cunningham when she
would receive her (regular progression) pay increase which
then was about due. Cunningham said that Delk would not
receive a raise because of the support of the Teamsters by
the warehouse employees. Delk responded that her raise
should depend on her evaluation, and her job performance,
not on the level of union support in the warehouse.
Cunningham replied that Delk needed to talk to her fellow
employees about the union support. (3:351, 369.)
Cunningham had turned to face Delk and Delk does not
know whether employees on the other side of the area could
hear the exchange, particularly since some of the employees
were talking among themselves. (3:365, 369-372.) Following
the exchange, and while she was still standing at the meet-
ing, Delk made some notes about the exchange, but she did
not bring those notes to the hearing. (3:363, 376–377.) With-
in 10 days Delk was evaluated by Cunningham and received
her progression increase. (3:351–352, 364, 367–368, 372.)
Cunningham recalls the evaluation review as being about
January 21, her birthday. (4:777–778.)
Jackie McGinnis recalls Delk’s question coming as the
meeting (in late January) ended and as employees were leav-
ing the area, with Cunningham telling Delk to ask the Union
where her raise was. Delk just turned and laughed. McGinnis
asserts that the only ones then present were Delk, McGinnis,
Hanson, and Cunningham. The three employees, open sup-
porter of the Union, were wearing their union insignia.
(2:233–235, 256–259.) Disagreeing with McGinnis, Delk
firmly states that the meeting had not ended. (3:364.) Janette
M. Hanson describes a reference to a question, by someone,
of when employees were going to receive their raise, with
Cunningham replying that the raise was frozen until after
‘‘all this was over.’’ (1:16–17.) Hanson does not describe
any specific exchange between Delk and Cunningham, nor
does Reuben Rice. Paul Henry, also named by Delk, did not
testify. McGinnis asserts that it was employee Joe Smith
who, during the meeting, asked Cunningham whether she
had heard anything on their raises, with Cunningham answer-
ing ‘‘No.’’ (2:257.)
Hired as the first employee when the facility opened in
October 1986, Barbara Cunningham began as the center’s re-
ceptionist. She progressed through a series of positions, in-
cluding personnel manager (1988–1989), then to order selec-
tor advisor, and finally, about March 1, 1993, to assistant DC
manager. (4:771, 796–797.) Cunningham recalls no question
at a group meeting by Delk about a pay raise, denies telling
her at a meeting that Delk should ask the Union about her
pay raise, asserts that she would not have said, ‘‘Go ask the
Union,’’ and denies discussing, immediately following a
group meeting, a pay raise with Delk, Hanson, and
McGinnis. (4:773–776, 779.)
b. Discussion
Differences by corroborating witnesses on details are not
unusual, but the differences here are substantial. The General
Counsel does not suggest how the differences are to be rec-
onciled. In view of the TIPS training Cunningham had re-
ceived, the fact that some 100 employees were present, with
several, perhaps many, wearing insignia of the Union, the
Hanson version certainly seems to support Cunningham. Un-
able to credit Delk or McGinnis, I shall dismiss complaint
paragraph 8(b).
3. Eddie Massey, Timothy Schlichting, and Jim
Wartinger—January 20, 1993
a. Facts
Complaint paragraph 8(d) alleges that on January 20 Eddie
Massey, Timothy Schlichting, and Jim Wartinger removed
prounion literature from canteen bulletin boards while leav-
ing antiunion literature posted. Reuben Rice testified in sup-
port of the allegation, with Massey and Schlichting support-
ing AutoZone’s denial. Massey is AutoZone’s transportation
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
advisor (4:695) and Schlichting was then an advisor (super-
visor) over three departments, Returns, Maintenance, and
Housekeeping. Schlichting left AutoZone for another com-
pany about August 1, 1993. (4:608–610.)
According to the distance estimate by Reuben Rice, the
beginning of his first floor work area is some 30 feet from
the canteen, or employee breakroom, which is situated at the
second floor level. A large clear glass window forms the top
portion of the canteen wall and faces out onto the warehouse
floor. The bottom portion of the canteen wall is concrete and
reaches up to a point above waist level. (3:456–457, 475–
482, 638.) There are several company bulletin boards inside
the canteen, and on one of them employees may post classi-
fied sales and other personal notes. (4:636, 696, 866, 892.)
From the glass wall to the employee bulletin board is about
20 feet. (3:481.)
As he was standing at the front of his work area on Janu-
ary 20, Rice testified (3:456, 475), and looking up through
the second floor glass portion of the canteen wall and across
the canteen to the bulletin board, he observed Massey,
Schlichting, and Wartinger standing at the employee bulletin
board. As Rice watched, he saw Schlichting remove three or
four letter-size union flyers which, previously posted by
Rice, addressed such matters as management salaries. Al-
though antiunion matter also was posted on the board,
Schlichting left the antiunion matter posted. (3:455–457,
484–486.) When Vice President Dennis Roberts came by
about 30 minutes later, Rice complained to him about the re-
moval. Roberts said he would take care of it. By the end of
the shift, about 3 hours later, Rice observed that the flyers
had been reposted. Roberts apologized to Rice for the re-
moval. (3:486–487.)
Schlichting denies removing any union flyers, or seeing
anyone do such. (4:637.) Massey denies that any of the three
removed any union items. (4:697.) Schlichting (4:637) and
Massey (4:697) claim they saw a cardboard poster fall to the
floor (blown down by wind from a fan) while they stood
there. In his testimony Roberts does not address the report
by Rice that Roberts said he would take care of the matter,
that the flyers were reposted within 3 hours, and that Roberts
apologized.
Ferguson testified that following Rice’s testimony he
measured the distance required to view the canteen bulletin
board from the warehouse floor. At 6 feet 2 inches, Ferguson
had to stand 132 feet from the bulletin board in order to see
the posted items. As Ferguson’s measurement apparently was
made on the floors of the warehouse and the canteen, rather
than measuring the line of sight, the measurement does not
include whatever extra distance would be added to the ware-
house floor distance in order to raise it up and link it to a
line-of-sight straight line. (5:909-910.) No witness was called
in rebuttal to contradict Ferguson’s measurements. Ferguson
concedes that he and Roberts did not question Rice’s line of
vision, or that he observed what he protested, on the day in
question. (5:972.) I estimate that Rice stands about 5 feet 11
inches, or slightly under 6 feet, in work shoes.
No expert in mathematics testified concerning whether,
calculating the math of distance and angles, a person in
Rice’s position could have looked over the second floor con-
crete wainscot (apparently anywhere from 42 to 48 inches
high), through the glass portion of the wall, across the 20 to
24 foot canteen, and have seen the level at which items were
posted on the bulletin board. Moreover, there is no estimate
for the height of the first floor wall. Whether the wall meas-
ures 9 feet, 10 feet, or something different, is not shown in
the record.
b. Discussion
I need not resolve this question of geometry (there are not
enough measurements in any event), for Vice President Rob-
erts, in effect, admits Rice’s version. Indeed, after Roberts
reassured Rice the matter would be taken care of, the items
were reposted that afternoon. Moreover, Ferguson admits that
Roberts told him about Rice’s protest, and they did not ques-
tion Rice’s version on the day of the event. Accordingly,
whether Rice actually saw the removal, or someone in the
canteen reported it to him, is immaterial. Crediting Rice’s ac-
count, as admitted by AutoZone, I find that AutoZone vio-
lated Section 8(a)(1) of the Act as alleged. I further find that
the reposting did not effectively disavow the effects of the
discriminatory removal under Passavant Memorial Area Hos-
pital, 237 NLRB 138 (1978).
4. Barbara Cunningham—January 21, 1993
a. Facts
Complaint paragraph 8(e) alleges that on January 21 Bar-
bara Cunningham interrogated employees regarding their
union sympathies and desires. Robin Delk testified in support
of the allegation, with Cunningham supporting AutoZone’s
denial.
As earlier noted, Robin Delk testified that a week to a
week and a half after Cunningham’s January 13 sectional
meeting, during which Delk asked about her progression
wage increase, Cunningham conducted her evaluation inter-
view. (3:351–352, 367–368, 372.) Cunningham recalls that it
occurred about her birthday, January 21. (4:778, 782.) Delk
considered the evaluation good, and she was told that she
was getting a pay raise and the amount of her pay increase.
(3:352, 372–373; 4:777.) There is no dispute that before the
January 21 evaluation interview Cunningham knew of Delk’s
open and outspoken (wearing union pin, union jacket, and
handbilling) support of the Union, and Delk was wearing her
union pin during the January 21 interview. (3:368, 372.)
Cunningham suggests that Delk had expressed her union sup-
port to Cunningham in earlier conversations (4:776, 778),
and (on a leading question) that the position was unsolicited
by Cunningham (4:779.) Denying any prior conversations
with Cunningham about the Union (3:375), Delk observes
that her father, a 25-year member of the Union, makes regu-
lar stops at the Greenville warehouse, she visits with him on
some of those occasions, and that his union membership in
the Teamsters is common knowledge. (3:375.)
Delk testified that after the evaluation portion of the inter-
view, Cunningham, changing the subject, asked Delk how
she felt about the Union and why she supported the Union.
(3:352–353, 374.) (Although Delk later testified, 3:373, that
she did not recall at what point the union topic arose, her
initial description, 3:352, puts it after at least some, perhaps
all, of the evaluation portion.) Although Delk was wearing
a union pin, Cunningham did not explain why she was ask-
ing how Delk felt about the Union. (3:374–375.)
To Cunningham’s questions, Delk replied that she was
raised with the Union, that it was strong in her family, and
121AUTOZONE, INC.
that she believed in the Union. Her father has been a mem-
ber of the Union for over 25 years, and Delk values the
union benefits her father has received. Cunningham re-
sponded that she grew up in the North, that she remembered
the Teamsters and Jimmy Hoffa, and that she remembered
the Teamsters as being violent people who would overturn
cars and set fire to property. (3:352, 374, 393–394.)
Cunningham’s initial description of the interview was in
terms of what the customary sequence was rather than what
actually occurred. (4:778.) Cunningham denies there was any
discussion between them about their opinions on the Union.
In answer to a leading question (‘‘Did she [Delk] volunteer
. . .’’), Cunningham testified Delk volunteered how she felt
about the Union, that her father was part of the Union, that
she had grown up with it, and that is why she felt that way.
To another leading question of whether this was in response
to Cunningham’s asking a question, Cunningham testified
‘‘No.’’ (4:782–783.)
b. Discussion
Without hesitation I credit Delk rather than Cunningham.
Indeed, Cunningham’s answers to the leading questions tend
to corroborate Delk’s version. Although asking an open sup-
porter of the Union how she feels about the Union seems
silly and strange, and therefore not credible, oral statements
in conversation generally are not prepared in advance and
not as precise and logical as are expressions reduced to writ-
ing. In any event it is not the first time such a question has
been asked of an open union supporter. See Pilliod of Mis-
sissippi, 275 NLRB 799 fn. 2 (1985).
AutoZone relies on Pilliod to argue that even if Delk is
credited the allegation must be dismissed. I agree. Had
Cunningham asked the questions before the evaluation, I
would find a violation. Even an open union supporter might
well be coerced by such questions occurring at the beginning
of a performance evaluation. And whether Delk in fact was,
or would be, is immaterial, for actual impact is not the test.
Here, however, the questions came after Delk was informed
of her good evaluation and of the amount of her pay in-
crease. The questions which followed merely launched brief
position statements by two persons with opposing views.
The General Counsel also argues that Cunningham’s ref-
erence to violence by the Teamsters under Jimmy Hoffa ‘‘is
naturally coercive and would cause a reasonable person to re-
consider supporting the Union. Thus, Cunningham’s remarks
to Delk amounted to unlawful interrogation and are violative
of the Act.’’ The General Counsel does not assert that
Cunningham’s description of her experience with the violent
acts in the North, such as the overturning of cars and setting
fire to property, is untrue. It therefore is no surprise that such
violence ‘‘would cause a reasonable person to reconsider
supporting the Union.’’ But such fact does not make
Cunningham’s description of her experience in the North un-
lawfully coercive. By contrast, Delk’s experience with the
Union, its representatives, as well as her father, has been just
the opposite—everything she has seen has been good. And
she expressed her view very well to Cunningham, supporting
it with the specific benefits she has observed. Robin Delk’s
father can be justly proud of his daughter’s articulate defense
of the Union. For the reasons stated, I shall dismiss com-
plaint paragraph 8(e).
5. Dennis Roberts—January 22, 1993
a. Introduction
Complaint paragraph 8(f) alleges that on January 22 Vice
President Dennis Roberts told employees ‘‘that a pay raise
was being withheld because the Union had filed a representa-
tion petition.’’
The question here is whether the final paragraph of the
text of the January 22 joint speech (GCX 2) by Roberts and
DC Manager Rick Ferguson (they alternated in delivering
portions) rises to the violation alleged in paragraph 8(f).
(2:325.) The final text paragraph of the speech, delivered by
Roberts, reads (GCX 2 at 7–8):
The other issue I want to discuss has to do with the sta-
tus of pay increases at this D.C. A number of you have
asked when or if the 4% to 5% increase we had men-
tioned back in December would be going through. You
need to understand that the numbers we mentioned in
December were a tentative forecast only. After that
time, we decided to re-evaluate the pay situation in this
market. Before we were able to gather all the data we
needed and reach a final decision, however, the Team-
sters’ petition came in. Our understanding of the law is
that we cannot make changes in the pay or benefits
once a petition comes in, unless the decision had been
finalized beforehand. We very much regret that the
union’s poor timing has now tied our hands, but we do
not intend to violate the law. The thing to keep in
mind, though, is that once the union is beaten in the
election—and we feel confident that that is exactly
what is going to happen here—then we will be able to
move forward, free of the restrictions that we now live
under. We’re sorry we cannot be more specific than
that now, but we wanted you to understand the legal
status of your pay increase at this time.
In this speech, and others, AutoZone vigorously opposes
the unionization of its Greenville facility. Clearly and ex-
pressly AutoZone (Ferguson speaking), as is its right, told
the employees that AutoZone does not want ‘‘the Teamsters
or any other union in our operation. We are completely and
entirely against this union getting in here and we will take
every legal step available to us to keep it out!!’’ (GCX 2 at
2–3.)
Complaint paragraph 9 alleges that AutoZone has violated
Section 8(a)(3) of the Act since January 22 by withholding
‘‘scheduled pay increases due to its unit employees because
the Union filed a representation petition.’’ AutoZone denies
the allegation.
The pay increase allegations constitute a principal part of
the case. I do not treat the paragraph 9 allegation until later.
Paragraph 9 is relevant here, however, because it provides
context for the paragraph 8(f) allegation about Roberts’ re-
marks of January 22.
b. Facts
Vice President Dennis Roberts testimonially described
AutoZone’s pay increase procedure and its background. First,
AutoZone has two types of pay increases for its DCs (dis-
tribution centers). One is a wage progression advance for an
employee’s initial 2 years: evaluations and increases at (90
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days at Greenville), 6 months, 12 months, 18 months, and 24
months. (4:815, 826.) The second is an annual adjustment,
inaccurately called a cost of living (COL) increase. (4:815.)
It is not a true COL because (1) not everyone gets the same
increase, and (2) the annual adjustment is based on the re-
sults of a market analysis, or area wage survey rather than
some COL index. The wage survey is conducted by the local
management. The data collected is passed to the ROM (Re-
gional Operations Manager), and thence to Roberts who,
with accounting support, assembles the analysis, forms, and
recommendation for AutoZone’s president who typically
makes a decision based on the data and recommendation sub-
mitted. (4:815–816, 839.) Because the wage surveys are
based on the DCs’ geographic areas, the DCs have different
pay scales. (4:824.) An annual adjustment is a bit of a mis-
nomer, for the adjustments are not guaranteed if the wage
survey shows that a DC’s payscale is competitive for its
area. (4:831.)
For several years AutoZone performed its wage surveys,
or market analyses, in November with any adjustments im-
plemented in December. AutoZone changed its procedure in
late 1991, shifting the survey to December with adjustments
made in the following January, the first being January 1992.
(4:820–821; GCX 6.)
On a routine visit to the Greenville DC in late November
1992, Roberts testified, several employees approached him
and asked whether there would be an annual increase and if
so how much. Roberts answered that to the best of his
knowledge he expected that there would be an increase in the
range of 4 percent to 5 percent. He told them that this was
not yet confirmed. (4:835–836, 885.) To be fair to other em-
ployees, Roberts testified, he returned some 2 weeks later,
around December 8, 1992, and management held meetings
with small groups of employees sharing that same informa-
tion (there ‘‘might’’ be an annual increase in range of 4 per-
cent to 5 percent) with all employees. The employees also
were told that AutoZone was awaiting the results of a market
analysis being done in the Phoenix area by the Hay Group.
(4:836–837, 885–886.) The day he left Greenville, Roberts
received, by overnight mail, an advance copy of the Hay
Group’s survey, dated December 15, for his review on his
return flight to, presumably, Memphis. (4:837–838.)
The Hay Group’s report indicated to Roberts that
AutoZone was no longer competitive in the Phoenix area.
That led him to instruct Ferguson, the Greenville manager,
to begin a wage survey for the Greenville area. This was
done by Ferguson and Personnel Manager Jim Wartinger.
They contacted such firms as Wal-Mart which has a ware-
house some 20 miles from AutoZone’s Greenville DC.
(4:839-841.) By Friday, January 8, or Saturday, January 9,
1993, Roberts testified, Roberts had received all of the wage
survey data. He did not have it before Ferguson met with
Wal-Mart on January 6. He made his analysis, with account-
ing staff support, and gave his recommendation on all DCs,
except Greenville on Monday, January 11, to AutoZone’s
president, who approved it that afternoon with some modi-
fication. (4:844–845, 847–848.) Although Roberts had all the
wage survey data for Greenville, he did not perform his anal-
ysis nor finalize a recommendation respecting a pay adjust-
ment at Greenville. (4:845, 848, 862, 884–885, 887, 898.)
According to Roberts, he did not learn of the Union’s or-
ganizing activities at Greenville until Ferguson called him on
receiving the Union’s telegram (RX 13) after 5 p.m. on
Wednesday, January 6, in which the Union demanded rec-
ognition. (4:842, 854.) After consulting its attorneys,
AutoZone concluded that it would be unlawful to implement
a pay increase at Greenville. He therefore put the Greenville
data aside, did not complete the analysis for Greenville, and
has not done so. (4:846, 848, 862, 885.) The analysis was
stopped because of concern over legality, and not for the
lack of any data. (4:846.) Extrapolating from the wage sur-
veys for the other DCs, Roberts testified that the adjustment
for Greenville, had it been made, would have been greater
than 5 percent. (4:841, 885.) Had the analysis been made and
an adjustment implemented at Greenville, as it was else-
where, it would have been effective for the pay period begin-
ning Sunday, January 3, 1993, with the increase reflected in
the paychecks issued January 22. (4:842–843.)
g. Discussion
The law is settled on this issue. ‘‘It is well established that
an employer is required to proceed with an expected wage
or benefit adjustment as if the union were not on the scene.’’
Atlantic Forest Products, 282 NLRB 855, 858 (1987). In At-
lantic Forest the Board, continuing, observes that an excep-
tion to the rule allows the employer to postpone the wage
or benefit adjustment so long as it makes clear to employees
that the adjustment would occur whether or not they select
a union, and that the ‘‘sole purpose’’ of the postponement
is to avoid the appearance of influencing the election’s out-
come. In making such announcements, however, the em-
ployer must avoid attributing to the union the onus for post-
ponement of adjustments in wages or benefits, or disparaging
and undermining the union by creating the impression that it
stood in the way of their getting planned wage increases and
benefits. Atlantic Forest, id.
In Atlantic the Board found that the employer’s announce-
ment unlawfully attributed to the union the withholding of a
regularly scheduled semiannual wage increase. The statement
in issue here is very similar to the employer’s announcement
in Atlantic. Thus, although Roberts tells employees that the
4 percent to 5 percent was a tentative forecast, it is based
on employees’ knowledge of an annual adjustment decision.
The December forecast by Roberts, as he asserts, was 4 per-
cent to 5 percent. Thus, an adjustment of some kind, forecast
to be in the range of 4 percent to 5 percent, would be made.
After the December ‘‘tentative forecast,’’ Roberts states,
AutoZone decided to reevaluate wage rates in the Greenville
market. Before that could be completed and a final decision
reached, the Union filed its petition.
Now as we know from Atlantic Forest Products, the
Union’s petition is irrelevant—but for one exception. Other
than the one exception, an employer, election petition or no,
is to proceed as if there is no union on the scene. That is,
AutoZone was required to complete its wage survey, to make
a final decision, and to implement that final decision—all as
if the Union were not there. By one permitted exception, the
employer may announce a postponement provided it makes
clear to employees, (1) the adjustment eventually will occur
regardless of the election results; (2) the sole purpose of the
postponement is to avoid the appearance of influencing the
election’s outcome; and (3) in making the announcement, the
employer must avoid attributing to the union the onus for the
postponement, or disparaging or undermining the union by
123AUTOZONE, INC.
creating the impression that the union stands in the way of
the employees getting the planned adjustment. So stated, At-
lantic Forest establishes (reiterates, actually) the three tests
to be applied.
How does AutoZone fare on the three tests? The answer
is easy. AutoZone, after a fashion, passes test one, but it fails
tests two and three. First, the understanding it expressed
about the law is wrong, for, as I have noted, filing of the
petition is an irrelevant event, save for one exception. Sec-
ond, there is no requirement that a decision have been final-
ized. (Not misstating the law perhaps is an implied fourth
test of Atlantic.)
Consideration of tests two and three show very clearly that
the sole purpose of Roberts’ announcement was just the op-
posite of the Atlantic test two, for the purpose was to encour-
age a vote ‘‘No.’’ A negative vote would be encouraged be-
cause Roberts blamed the Union’s ‘‘poor timing’’ for the
postponement. Incited anger needs an outlet, and voting
against the Union in the election would provide that outlet.
Not only would Roberts’ words incite anger against the
Union, and remind employees how to take revenge (beat the
Union in the election), but they promise the thrill of victory,
after the Union is beaten, in the form of AutoZone’s being
able ‘‘to move forward, free of the restrictions that we now
live under.’’ That is, AutoZone would be able to proceed
with its pay adjustment process when the Union loses the
election. (The subliminal message is that a ‘‘Yes’’ vote will
doom any pay adjustment.) His overt message is the same
as that found unlawful in Atlantic Forest Products. It is the
‘‘carrot or the stick’’ approach condemned in DTR Indus-
tries, 311 NLRB 833, 836 (1993). I find that AutoZone, by
Vice President Roberts’ speech, violated Section 8(a)(1) as
alleged by complaint paragraph 8(f).
6. Martin Nelson—February 2, 1993
a. Facts
Complaint paragraph 8(h) alleges that on different dates
two supervisors, Marty Nelson (on February 4) and Tim
Schlichting (mid-February), threatened employees with un-
specified reprisals if they selected the Union as their bargain-
ing representative. Respecting Nelson, James Andrews is the
General Counsel’s supporting witness, with Nelson opposing.
I address the Schlichting allegation under separate heading.
James Andrews began working for AutoZone in August
1992. He works in housekeeping. He became a member of
the Union’s organizing committee, and in late January 1993
he began wearing a Teamsters pin on his collar. (2:273.)
Martin Nelson also joined AutoZone in August 1992, as as-
sistant manager of the San Antonio DC. (4:602.) As were
some managers from other locations, Nelson arrived at the
Greenville DC in late January or early February for some
training. (4:598, 602.)
Andrews testified that in the latter part of February, in the
rear of the warehouse, Nelson approached him and, seeing
the union pin on Andrews’ collar, asked, ‘‘What are you
going to do when you lose this election?’’ Andrews replied
that he would just continue doing his job. Nelson did not re-
spond specifically to that, but they did have some general
conversation following the initial exchange. (2:278–279,
297–298.) At some point Nelson introduced himself. (2:299.)
Andrews concedes (no objection registered) that Nelson did
not say Andrews would lose his job nor was he threatened
in any other way. (2:298–299.) However, Andrews asserts,
Nelson used a ‘‘threatening tone’’ when he asked what An-
drews was going to do after losing the election. (2:299.)
Nelson places the conversation as occurring about Feb-
ruary 2, the very morning he arrived at the facility. (4:598,
602, 604.) Before leaving San Antonio, Nelson was informed
of the union campaign at Greenville. (4:602–603.) On his ar-
rival at Greenville Nelson was told by Bob Flynn, the assist-
ant manager from the Lafayette DC also there for training,
not to engage in any ‘‘prolonged’’ conversations with em-
ployees about the Union; just do not talk with them about
the union campaign. (4:601, 602.) Some days later, after his
conversation with Andrews, Nelson, as all members of man-
agement, received ‘‘guidance’’ from Ferguson and Roberts
not to engage in ‘‘prolonged’’ conversations (4:603–604), or
in ‘‘any’’ conversations (4:605) with employees about the
Union. This guidance was imparted in an unscheduled meet-
ing with some other managers on the warehouse floor.
(4:605–606.)
On this morning, Nelson testified, he decided to take an
inspection walk around the facility while the local manage-
ment was in a meeting. (4:598.) Nelson was wearing an
AutoZone jacket, giving San Antonio as the facility, but not
bearing his name. Nelson was aware that AutoZone had cer-
tain pins that employees wore, although he was not familiar
with all of them at that time. (4:599-600.) As Nelson walked
by a maintenance area, James Andrews stopped him and
asked his identity. Nelson introduced himself. Observing An-
drews’ pin, he thought it was an AutoZone pin, although he
did not recognize it. He could not read the inscriptions be-
cause he was not wearing his reading glasses. (4:599-600,
601.) (Nelson appears to be in his fifties, or well past the
age when many persons require corrective glasses to read.)
‘‘In the course of the conversation,’’ Nelson testified, he told
Andrews that he had ‘‘never seen [that type] pin before.’’ He
therefore asked Andrews, ‘‘What is that?’’ Andrews said it
was a Teamsters pin. Realizing that Andrews was one of the
prounion employees, Nelson decided it was best to move
along and he began to walk. Andrews asked what Nelson
thought about the ‘‘whole business,’’ or the ‘‘proceedings.’’
Turning to answer as he was walking, Nelson replied, ‘‘I
hope it all comes out well.’’ Nelson denies threatening An-
drews in any way, denies telling Andrews he would lose his
job once the election was over (adding that he had no reason
to say that), and asserts that this was the only conversation
he ever had with Andrews. (4:600.)
b. Discussion
The versions of Andrews and Nelson are consistent up to
a point. Where they differ, I credit Andrews. Although the
General Counsel views Nelson’s inquiry as threatening
(‘‘What are you going to do when you lose this election?’’),
I see it as ambiguous, subject to different interpretations. Ac-
cordingly, I shall dismiss complaint paragraph 8(h) as to
Martin Nelson.
7. Rick Ferguson—February 11, 1993
a. Facts
Complaint paragraph 8(n) alleges that on February 11
AutoZone, by DC Manager Rick Ferguson, ‘‘promulgated a
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rule which prohibited employees from discussing the Union
during working time.’’ Several employees, including Reuben
Rice, testified in support. Dennis Roberts and Rick Ferguson
testified for AutoZone’s denial of a violation.
Several of the central facts are not in dispute. All agree
that the morning of Thursday, February 11, several members
of the Union’s organizing committee, including Reuben Rice,
approached Ferguson and Roberts in the upstairs conference
room. Rice read (2:122, 235, 274; 3:461, 495; 5:936) a short
handwritten note (CPX 3) which, in essence, protests a dis-
criminatory practice by AutoZone of allowing antiunion em-
ployees, such as Debra Phillips, to walk around during
worktime talking antiunion, and interrupting others at work
(2:255), while prohibiting union supporters from campaign-
ing for the Union during worktime. Ferguson said he was un-
aware that was occurring and that he would put a stop to em-
ployees talking either for or against the Union during work-
ing time. (3:462, 496; 4:864.) Ferguson recalls that he simply
said he would handle the situation. (5:936.)
After lunch that same day all employees were assembled
and Ferguson told them that henceforth there would be no
talking for or against the Union during working time, that it
was hampering production, and that violators would be sub-
ject to discipline up to and including discharge. (2:122–123,
256; 3:462.) Stanley Phillip Wilson testified that Ferguson
made it clear that employees could discuss union or anything
else during their personal time at breaks, lunch, and before
or after work. Wilson testified that this satisfied the union
supporters because it stopped the antiunion supporters from
walking around talking against the Union. (2:158.) Rice, too,
testified that he was satisfied with Ferguson’s presentation to
the assembled employees. (3:497.) Although the accounts by
Roberts (4:864–865) and Ferguson (5:936–937) do not in-
clude the warning of discipline for any violation, I find that
such warning was given.
Company policy, as Vice President Roberts acknowledges,
has been to permit employees to carry on conversations dur-
ing work so long as their talking does not interfere with the
work to be done. (4:865.) Robin Delk so confirms. (3:354.)
The promulgation by Ferguson to the assembled warehouse,
therefore, was not a change in policy, for AutoZone’s policy
has always been to restrict talking once it reaches the point
of interfering with production. (4:865.) There was no evi-
dence here that merely talking about issues in the organizing
campaign, during the critical period, interfered with produc-
tion or did so any more than talking about the weather,
sports, politics, or a variety of other topics all of which are
permitted until the point production is interrupted.
b. Discussion
Citing Visador Co., 303 NLRB 1039, 1041–1042 (1991),
the General Counsel argues that an employer may not pro-
hibit only union discussion, even by forbidding both for and
against, while allowing employees to talk about anything
else. Visador stands for the proposition that the Section 7
right to discuss union topics in an organizing campaign may
not be prohibited while permitting employees to discuss, dur-
ing working time, virtually all other topics. The complaint
does not allege against AutoZone’s concern about employees
leaving their work stations without authorization during
working time. Instead, the General Counsel attacks only the
prohibition which amounts to a gag rule on discussion of the
Union (pro or con) while permitting employees, during work-
ing time, to discuss practically any other topic.
Unlike Adco Electric, 307 NLRB 1113, 1117–1118 (1992),
cited by AutoZone, there is no showing here that talking
about the Union (as distinguished from antiunion employees
leaving their work stations and going to employees at other
work stations), ever reached the point of interfering with pro-
duction. Indeed, Ferguson’s account of his February 11 pro-
nouncement conveniently omits the gag rule, while prohibit-
ing roaming during worktime or stopping ‘‘to put informa-
tion together’’ rather than working. (5:937.) Roberts con-
cedes that Ferguson was to prohibit any discussion of the
Union during worktime. (4:865.)
AutoZone defends on the basis that, in effect, any cases
outlawing gag rules are misapplied here because AutoZone
ordered only what the Union (that is, the Union’s organizing
committee) requested, citing Manchester Health Center v.
NLRB, 861 F.2d 50 (2d Cir. 1988). Manchester is inapposite.
There is no statutory representative here with bargaining au-
thority to restrict employees’ Section 7 rights, nor was there
here, as there, a bitter and divisive strike. Nor was there
here, as already noted, any evidence that mere talking about
the Union during work interfered with work at all and cer-
tainly not any more than talking about fishing, football, the
weather, or any other nonwork topic. Finally, the employees
here asked for equal time, and complained about the
antiunion roamers. That Reuben Rice and other employees
may have acquiesced in a pronouncement which barred all
talk, pro or con, about the Union during worktime does not
override the statute.
Finding DC Manager Ferguson’s February 11 promulga-
tion to be a gag rule unnecessarily restrictive, and therefore
unlawful under Section 8(a)(1) of the Act, I shall order
AutoZone to rescind it. Willamette Industries, 306 NLRB
1010 fn. 2, 1017 (1992); Emergency One, 306 NLRB 800,
806 (1992).
8. Timothy Schlichting—February 15, 18, 1993
a. Facts
Complaint paragraph 8(l) alleges that on February 5
AutoZone, by Supervisor Tim Schlichting, ‘‘threatened em-
ployees with transfer if they selected the Union as their col-
lective-bargaining representative.’’ Paragraph 8(m) alleges
that 10 days later, on February 15, Schlichting threatened
employees ‘‘with discharge if they utilized Board proc-
esses.’’ Stanley Phillip Wilson testified in support of the alle-
gations, with Schlichting opposing.
As noted earlier, Stanley Phillip Wilson was fired Septem-
ber 13, 1993. Later I discuss the allegation respecting his dis-
charge. During the Union’s organizing campaign Wilson
worked in the returns department, under Supervisor Timothy
Schlichting, performing such duties as reboxing repaired
merchandise for resale. (2:117; 4:611–612.) He also assisted
in various other duties, such as separating salvageable anti-
freeze, brake fluid, liquid cleaners, and other chemicals
(2:117–118, 137; 4:612–613) and scanning (2:167; 4:614–
615). Jeananne Cole was the line leader (admitted statutory
supervisor) who was Wilson’s immediate superior. (2:148–
149; 4:619-620, 740.) Wilson openly and vigorously sup-
ported the Union. He began wearing a union pin on January
6. (2:118–119.) His name appears at number 11 on the list
125AUTOZONE, INC.
of 32 members of the organizing committee, the list being
attached to the Union’s transmittal letter of February 1 to
AutoZone. (GCX 4.) He was one of the committee persons
present when Reuben Rice protested to Ferguson and Roberts
on February 11, in the conference room, that the union sup-
porters could not campaign on worktime but antiunion em-
ployees could. (2:122, 156.) Schlichting acknowledges his
awareness of Wilson’s open position of union support.
(4:613–614, 670.)
The scanning computer is similar in appearance to a super-
market cash register and hand-held infrared scanning gun.
Operation of the scanning gun electronically records, on the
computer, the product number of damaged merchandise
which AutoZone’s retail stores have returned to the ware-
house. When the gun scans the product number, the com-
puter electronically credits the retail store for the returned
product. (2:158; 4:616–617.) About 5 feet from Wilson’s
(primary) work station, and separated by a conveyor belt, is
a scanning machine which normally was operated by Missy
Riley. (2:159; 4:615.) Wilson was cross-trained to operate
this scanning equipment, and at various times did operate it
and others. (2:167; 4:615, 623–624.)
On February 5 (2:164), a Friday, Missy Riley was not at
work, having quit AutoZone for other employment. (2:124;
4:614.) Wilson testified that on this day Schlichting told him
that he would have to do Riley’s scanning, as well as his
regular reboxing work, for about 2 weeks while AutoZone
found a replacement. (2:124, 160, 163, 164, 170.) Schlichting
testified that he discussed the matter with Wilson and that
Wilson willingly agreed to help out. (4:615.) Schlichting as-
serts that, because the winter season has fewer returns of
damaged merchandise, Wilson’s regular work was slow at
the time. (4:614, 639-642.) Schlichting and Jeananne Cole
figured that there would be only a 2-week need for Wilson
to cover the extra work. (4:619-620.) Wilson acknowledges
that at the time of the additional assignment, both Schlichting
and Cole told him that in their opinion Wilson could do both
jobs because the work stations were next to each other.
(2:162.) Wilson testified that, at the temporary assignment,
he told Schlichting he did not want the assignment, but
Schlichting assigned him the extra duty anyway. Wilson said
he would try to do both jobs. He concedes that the additional
assignment upset him. (2:170.) According to Wilson (on
cross-examination), he expressed the view that Schlichting
was making the assignment because Wilson was supporting
the Union. (2:170.)
Also according to Wilson, in making the assignment,
Schlichting told him that if he did not perform both jobs he
would be permanently replaced. (2:124, 172.) However, in
answers to questions which I asked in order to clarify the sit-
uation, it is clear that the permanent replacement threat was
not made on February 5, but on February 18 in a different,
and unalleged, incident. (2:172–173.)
There is no complaint allegation of a discriminatory trans-
fer, and the General Counsel announced that he was not
seeking to amend the complaint in pursuing complaint para-
graph 8(1). (2:127, 166–167.) I note that complaint paragraph
8(l) does not allege ‘‘on or about’’ February 5; it alleges the
specific date of February 5. AutoZone did not object to any
reference to the unpleaded date of February 1. (Recall that
the testimony, in answer to my questions, served to clarify
Wilson’s initial, 2:124, reference to the attributed threat.)
Even though I, rather than one of the parties asked the ques-
tions, AutoZone should have objected to evidence of any in-
cident on February 18 as not being material because outside
the pleadings. I therefore shall summarize the incident.
Inspecting his notes, Wilson testified (when AutoZone
asked about the replacement threat attributed to Schlichting
at the February assignment) that the threat occurred in these
circumstances. Supervisor Ralph Lozipone (who, Wilson
thinks, possibly was an Assistant DC Manager) came by and
instructed Wilson to clean up his (regular) area. Wilson told
Lozipone that he would clean as much as he could but he
had to do the scanning job, too. After Lozipone then con-
ferred with Schlichting, Schlichting told Wilson that if he did
not do both jobs he would be permanently replaced. (2:172–
174.)
Schlichting testified that toward the end of the 2 weeks
(Thursday, February 18, would be the last day of the 2
weeks), he went to see Wilson because Wilson’s regular
work was falling behind. After he told Wilson that he
thought Wilson could handle both jobs, Wilson said it was
too much work. Schlichting then offered Wilson the option
of working (transferring, presumably) in another area of the
warehouse. Taking offense at that, apparently because he was
comfortable with his regular job, Wilson said he did not
want to change, that he would stay. The following Monday
Schlichting assigned Elaine Whitlock for training on the
scanner. Whitlock, who had been on light duty from a back
injury, had just received a medical release to return to full
duty. (4:622–623.)
Turn now to the second allegation. Wilson testified that on
February 12, a Friday, he asked Schlichting why he was not
being permitted to attend the ‘‘antiunion’’ meetings
AutoZone was conducting. Schlichting said he would check
with Ferguson. On Monday, February 15, Schlichting told
Wilson that Ferguson said Wilson could not attend the meet-
ings because his mind was made up in view of his open sup-
port of the Union. Wilson said the exclusion left him feeling
like an outcast and he felt like filing a charge of discrimina-
tion. ‘‘Go ahead,’’ Schlichting replied, ‘‘it won’t do no good
here in Greenville. It did not do any good in Phoenix and
by the way, after this election you will be out of a job per-
manently.’’ (Rather than the run-on sentence reflected in the
transcript, I would record the ‘‘And by the way . . .’’ as the
ending sentence.) (2:125–126, 151–152, 168–169.)
Schlichting’s account is generally consistent with Wil-
son’s, although Schlichting asserts, after saying the Phoenix
charge had not been substantiated, and doubted that it would
be successful in Greenville, that Wilson said he would file
one anyway. To this Schlichting told him to do what he had
to do. Schlichting denies saying that after the election Wilson
would be out of a job permanently. (4:624–627, 643–644.)
b. Discussion
Although I credit Wilson in one or two instances where
he supports the testimony of others, I generally do not be-
lieve him. Similarly I generally have not credited
Schlichting. Even though Wilson’s testimonial trip to the
February 18 attributed threat is both tortuous and torturous,
I credit his description of Schlichting’s return to tell him that
he would have to do both jobs (meaning his regular job as
well as the scanning job) or he would be permanently re-
placed. His version is more natural than Schlichting’s, whose
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
account seems disconnected. That is, Schlichting began the
conversation on the issue of Wilson’ falling behind on his
regular job of reboxing damaged/repaired merchandise. Noth-
ing was resolved about that when Wilson said he would stay
rather than transfer. I credit Wilson’s version.
Having credited Wilson’s version, I shall dismiss com-
plaint paragraph 8(l). The credited version describes a Feb-
ruary 18 threat that Wilson had better do his regular job, as
well as the temporary one, or else. First, there is no com-
plaint allegation covering the incident. Second, in the context
of events, there is nothing unlawful with that statement.
Third, the statement is not directly related to a job transfer
(the February 5 allegation) in any event. Actually, complaint
paragraph 8(l), the February 5 allegation, appears to be
based, somehow, on Schlichting’s trial version of the (Feb-
ruary 18) incident, a version I have not credited, rather than
on any version described by Wilson.
Respecting the second allegation, the supposed February
15 threat, I do not credit Wilson. I find that he, admittedly
upset over the scanning work which he did not want, gratu-
itously added to Schlichting’s response about a charge in
Phoenix being unsuccessful. Aside from being all too con-
venient, the addition has an unnatural fit to Schlichting’s
statement. By contrast, Schlichting’s threat some 3 days later,
as I detailed above, had a natural ring (and Supervisor
Lozipone did not take the stand to dispute Wilson’s version),
and I credited it (although I shall dismiss the allegation.) I
shall dismiss complaint paragraph 8(m).
9. Timothy Schlichting—Mid-February 1993
a. Facts
Marvin Holmes testified for the General Counsel in sup-
port of the paragraph 8(h) allegation that Timothy
Schlichting, at mid-February 1993, threatened employees
with unspecified reprisals if they voted in the Union.
After a 10-year employment with AutoZone, Marvin
Holmes left AutoZone in September 1993. (3:437.) He had
worked in the maintenance department, the name of which
was changed to housekeeping in August 1993. (3:438, 450–
451.) Holmes was active in the 1993 campaign on behalf of
the Union, being a member of the organizing committee and
wearing a union pin on his shirt at work. He began wearing
the union pin in January. Timothy Schlichting was his super-
visor. (3:438–439.) In a departmental meeting, about Feb-
ruary, with Holmes and some 15 other employees present,
Schlichting told the group that it would be the wrong thing
to bring in the Union, and that if the employees voted for
the Union they would regret it. He did not say in what way
they would regret it. (3:339-340, 343–344.) None of the
other 15 employees present testified in corroboration.
Acknowledging he made a reference in a departmental
meeting during the campaign to employees being sorry,
Schlichting testified that he said this as part of a statement
that the employees would be sorry because of all the ‘‘things
they would have to go through in order to get this process
through.’’ (4:628, 662–663.) Schlichting’s account, which is
rather disjointed, appears to be that he told the group some-
thing on the order that they would be sorry they had given
the Union enough support to file a petition, for before the
matter was over they would have to attend meetings about
the union campaign and listen to speeches on the subject. In
short, the campaign process would be a big hassle, and they
would be sorry because of the stress the campaign would
create.
b. Discussion
Crediting Holmes’ version rather than the strained and dis-
jointed version of Schlichting, I find that the ‘‘regret’’
Schlichting predicted related to voting for the Union, not to
any campaign stress. Equating a vote for the Union to regret,
however, is ambiguous. Employees could regret the dues
they would have to pay, or a strike they would have to sup-
port or endure. The statement does not necessarily threaten
job discrimination if the employees select the Union as their
bargaining representative. I shall dismiss complaint 8(h) in
its entirety.
10. J. R. Hyde III—February 19, 1993
a. Facts
Complaint paragraph 8(j) alleges that in mid-February
AutoZone by its chairman, J. R. Hyde, ‘‘threatened employ-
ees with closure’’ of the Greenville facility if they voted in
the Union.
Complaint paragraph 8(k) alleges that in mid-February
AutoZone, by Chairman J. R. Hyde, ‘‘threatened employees
with loss of jobs’’ if they vote in the Union.
The subjects of the Government’s attack here are portions
of a speech (GCX 3) which AutoZone’s chairman, J. R.
Hyde III, gave to the Greenville employees on Friday, Feb-
ruary 19. The General Counsel designates the last paragraph
on page 8 as the target of complaint paragraph 8(j), and the
middle paragraph on page 7 as the focus of complaint para-
graph 8(k). (2:325–326.) Before quoting the paragraphs, a
brief summary of the speech is in order. The double-spaced,
and moderately large type, covers about 11 letter-size pages
(a short first page and less than 3 lines on p. 12). Hyde
quickly emphasizes that the election is a serious matter and
that AutoZone is ‘‘totally opposed to the Teamsters getting
in here.’’ Hyde reports that although AutoZone is completely
nonunion, Hyde has had much experience with the Teamsters
in his many years with Malone & Hyde. (Recall from my
earlier description of AutoZone’s business history that
AutoZone formerly was a division of Malone & Hyde.) The
experience was bad, and in every instance where the Team-
sters made the company lock horns with them, it was ‘‘the
employees who suffered the most.’’ (GCX 3 at 2.)
This is why, Hyde explains, AutoZone has spent so much
time in meetings with the employees during the last few
weeks. Hyde soon begins talking about the Union and
strikes, and that the record of the Teamsters is enough to
scare anyone. Based on his personal experience, Hyde asserts
that the Teamsters strike ‘‘100% of the time.’’ (GCX 3 at 6.)
Considering that record, Hyde states he would be very con-
cerned about what would happen at Greenville after March
5 if the Union were to win. ‘‘I do not want any of you or
any of us to run the risk of the Teamsters making this DC
number 4 [Hyde had described strikes at three other DCs,
Sikeston (Missouri), Memphis, and Nashville] on their strike
list against us. That’s one of the biggest reasons we are op-
posed to their getting in.’’ (GCX 3 at 7.)
Hyde then reached the middle paragraph on page 7, the
subject of complaint paragraph 8(k). The text reads:
127AUTOZONE, INC.
Nobody wins a strike. At each of the cases I men-
tioned, both the company and the Teamsters survived
the strike and are still around. Nashville is still operat-
ing today full bore. So is Sikeston and so is Memphis.
The only part of the equation not still there are the em-
ployees who allowed the Teamsters to call them out on
strike. As Rick and Dennis told you, the 185 strikers
at our Nashville warehouse who walked out on an ille-
gal wildcat strike were all fired. Those 185 employees
did not get to vote. Not one of them has ever gotten
his job back. The strikers in Memphis and Sikeston
were all replaced, and none of them have gotten their
jobs back to this day. In fact, there is no union today
in the Nashville DC, the Sikeston DC, or the Memphis
DC.
From there through the last paragraph on page 8 (‘‘I know
. . .’’—the focus of complaint paragraph 8j), the text reads:
The Teamsters’ record with me and your manage-
ment team is just about as bad as you can get. Maybe
it’s because I take a no-nonsense business approach to
dealing with them, and I never suck up to them or try
to become pals with the Teamster bosses. I’ve always
dealt fairly and legally with them, but neither do I
quake and shake when the word ‘‘union’’ is mentioned.
I don’t make many bets but I will bet you this—Mr.
Barry, Mr. Wood and Local 28 have never dealt with
anyone like us. If the Teamsters want to play hardball,
we can do the same. I doubt very seriously that they
have ever tried to change a uniform policy with a com-
pany whose Chairman and CEO wears the same uni-
form.
Don’t misunderstand: AutoZone and I don’t want a
strike; we don’t want trouble. But, if the Teamsters
make demands on us which I am unwilling to accept,
I will say, ‘‘NO.’’ I guarantee you and Mr. Barry that
if I say, ‘‘NO,’’ I will mean it and I am ready. If you
or he believe for one second that a picket line or a
strike at the DC will make me give in one inch—you’re
dead wrong. And if the organizers think a strike or
picket, anywhere else—including the stores—will make
me give in one inch—then they are dead wrong.
I know, as sure as I’m standing here, that if I let
anyone—here or anywhere else in this company—think
the Teamsters union is in charge, I might as well close
the doors, put a lock on the gate, and throw away the
key. I will not let the Teamsters, with their record and
their own agenda, destroy what you and I have built.
b. Discussion
When an employer conveys a message that in strikes em-
ployees may lose their jobs, the employer must explain. As
the Board wrote in Baddour, Inc., 303 NLRB 275 (1991):
The Board in Larson Tool & Stamping Co., 296
NLRB 895 (1989), made it clear that employers cannot
tell employees without explanation that they would
close their jobs as a consequence of a strike or perma-
nent replacement.3 The phrase ‘‘lose your job’’ conveys
to the ordinary employee the clear message that em-
ployment will be terminated.
3 For example, the Respondent could have explained that the names
of replaced employees would be placed on a preferential hiring list and
that they would be recalled if a permanent replacement left the employ
of the Respondent.
Applying that principle here, I conclude that AutoZone has
failed the test. In the ‘‘Nobody wins a strike’’ paragraph, the
penultimate sentence refers to strikers at Memphis and
Sikeston who ‘‘were all replaced,’’ with none getting their
‘‘jobs back to this day.’’ The vice with the statement is that
it equates striker replacement with loss of jobs. This thought
is reinforced by two of the three sentences which precede it,
referring to the ‘‘fired’’ 185 wildcat strikers and the fact that
not one ‘‘has ever gotten his job back.’’ Thus, juxtaposing
a statement about strikers being ‘‘fired’’ in an illegal strike,
combined with the sentence that not one has ever gotten his
job back, creates a liquefied fire which spills over to the suc-
ceeding sentence (‘‘The strikers in Memphis . . . to this
day.’’), drenching it.
The statement, by itself, about fired illegal strikers never
getting their jobs back is lawful. But splashing that verbal
napalm onto the succeeding sentence forms an incendiary
mixture which, even if (contrary to fact) the succeeding sen-
tence were lawful standing alone, unlawfully threatens loss
of jobs for strikers who participate in lawful strikes. With
Hyde’s earlier reference to his personal experience being that
the Teamsters strike ‘‘100% of the time,’’ the overall mes-
sage is clear—a successful vote for the Union means that
there will be a strike, that the strikers will be replaced, and
that the replaced strikers will lose their jobs at AutoZone. I
find that the message threatens loss of jobs in violation of
Section 8(a)(1) of the Act, as alleged by complaint paragraph
8(k).
Respecting the remaining portion in issue, the General
Counsel attacks the final paragraph, ‘‘I know . . . destroy
what you and I have built.’’ Citing Almet, 305 NLRB 626
(1991), enfd. 987 F.2d 445 (7th Cir. 1993), the General
Counsel argues that the paragraph fails to define the ref-
erence to the Union’s being in charge, and fails to explain
why AutoZone would close the doors, lock the gate, and
throw away the key rather than simply reject the Union’s
contract demands. Thus, the Government argues, AutoZone’s
message unlawfully threatens to retaliate by closing the plant
if the Union is selected.
Arguing that it is free to express its views so long as there
is no threat of reprisal, AutoZone relies on, for example,
Emory Nursing Home, 260 NLRB 540, 554 (1982), that a
mere reference by the CEO to closure is protected speech be-
cause not a threat to close. There the CEO also told the em-
ployees, before and after reading his speech, that he did not
intend to threaten or coerce anyone. Emory, id. Hyde gave
no such assurance in his speech.
Almet involved a statement in which the employer’s chair-
man, Richard Greim, stated:
You all know what kind of man I am and what I
stand for. You also know how I feel about the unions.
I have never lied to you before, and I’m not going to
start now. As I stand here before you I’m here to tell
you that I will never agree to any demands that I be-
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lieve are not in the best interest of this company—and
if I have to shut down this plant to maintain those prin-
ciples—I will shut it down and go out of business.
The Almet statement is a direct threat of shutting down
and going out of business. Greim made no effort to describe
the objective facts which would cause that drastic event.
Although CEO Hyde does not flatly state he will close the
doors, his statement conveys that message. His message is
that if the Union gets in, and secures such favorable contract
terms [to which, of course, AutoZone would have to agree],
so that someone at AutoZone could ‘‘think’’ that the Union
was in charge, then Hyde ‘‘might as well’’ close the Green-
ville plant. And he would do so because ‘‘I will not let the
Teamsters, with their record and their own agenda, destroy
what you and I have built.’’ That is, Hyde would close the
plant before he sees it destroy the nonunion operation ‘‘that
you and I have built.’’ That, I find, is the message. The mes-
sage threatens to retaliate for a union victory by closing the
plant. The retaliation threat violates Section 8(a)(1) of the
Act as alleged by complaint paragraph 8(j).
11. Barbara Cunningham; Marshall Hurley—mid-
February 1993
a. Facts
Complaint paragraph 8(o) alleges that sometime from Jan-
uary 7 through March 5 Supervisors Barbara Cunningham
and Marshall Hurley instructed employees to refrain from
discussing the Union. I describe this as a mid-February alle-
gation because the incidents appear to have followed Fer-
guson’s February 11 pronouncement.
Reuben Rice testified that during a sectional meeting
Cunningham stated that if anyone was caught talking about
the Union, either for or against, he would be terminated, and
for the employees to keep their ‘‘mouths closed and just
keep working;’’ (3:459) ‘‘just nobody talk about it and, you
know, get your job done and stay busy and, you know, do
your job.’’ (3:492.) Cunningham testified that she never said
that to ‘‘Ms. Delk’’ or ‘‘Ms. McGinnis.’’ (4:783.) (In fair-
ness to witness Cunningham, I note that the questions speci-
fied Delk and McGinnis, and did not focus on a sectional
meeting.) I credit Reuben Rice.
Robin Delk testified that as she was standing in the rest-
room line and talking to those in line, Supervisor Marshall
Hurley walked by and told them they did not need to be talk-
ing about the Union. Delk does not recall what she and the
employees were talking about, but does recall it was not
about the Union. (3:353, 378.) Supervisor Marshall Hurley
did not testify. I credit Delk.
b. Discussion
Because Rice and Delk and Delk can do no better than to
place the incidents as being between the petition and the
election, and because the statements conform to the gag rule
which DC Manager Ferguson imposed on February 11, I find
that the incidents occurred at mid-February, after Ferguson’s
February 11 pronouncement.
The two incidents here are merely evidence that super-
vision implemented DC Manager Ferguson’s February 11
pronouncement. As such, the conduct violates Section 8(a)(1)
of the Act, as alleged.
12. Timothy Schlichting—mid-February 1993
a. Facts
Complaint paragraph 8(g) alleges that AutoZone, through
Supervisor Timothy Schlichting, on two occasions from late
January to early February, ‘‘promulgated a discriminatory
rule prohibiting pro-union employees from conversing about
the Union.’’
The parties brief an incident in which Andrews, while
cleaning lavatories in a women’s restroom, stopped two fe-
male employees who came in to use the facility, and began
discussing the Union’s health benefits, an issue in the union
campaign. Andrews concedes that he prevented (delayed) the
two women from returning to their jobs. Schlichting there-
after told Andrews he was not to discuss union issues on
company time. (2:276–277, 2:293–297.)
Denying that he mentioned the Union to Andrews,
Schlichting asserts that he told Andrews he was there to do
a job, that while he could mention, for example, a football
game, Andrews was not to detain employees from returning
to work. Schlichting did not issue Andrews a written warning
or even memorialize the event for Andrews’ personnel file.
Schlichting never spoke with the two female employees,
hearing about the incident from another employee, Debra
Shue. (4:630–635, 671–673.)
b. Discussion
Crediting Andrews, I find that Schlichting’s focus was not
on production, or on the awkwardness of AutoZone’s proce-
dure of not requiring a male housekeeping employee to block
the entrance door when he is cleaning a women’s restroom,
or even on detaining the women for discussion, but it was
the topic of discussion—the Union—which caused
Schlichting to counsel Andrews.
Complaint paragraph 8(g) actually alleges that there were
‘‘two occasions’’ when Schlichting engaged in this conduct.
The General Counsel briefs only the foregoing incident, in-
volving James Andrews. AutoZone also briefs as to testi-
mony by Stanley Phillip Wilson. Wilson testified that, a cou-
ple of days before the February 11 meeting with Ferguson,
Schlichting told him that he would be discharged if he were
caught discussing union on the job. (2:156.) Schlichting does
not address this. I credit Wilson because his version is con-
sistent with the committee’s purpose in going to Ferguson on
February 11.
I find that the conduct of Schlichting violates Section
8(a)(1), as alleged.
13. Jerome Flowers—February 24, 1993
a. Facts
Complaint paragraph 8(i) alleges that of February 24
AutoZone, through Supervisor Jerome Flowers, ‘‘threatened
employees with discharge because’’ they supported the
Union. Karen Holcombe testified in support of the allegation,
with Jerome Flowers denying.
Karen Holcombe worked for AutoZone a year, leaving the
Friday before she testified. (3:401, 407.) Beginning as an
order selector, Holcombe later moved to a checker position.
Jerome Flowers was her supervisor. A cousin of Robin Delk
(an open supporter of the Union), Holcombe began wearing
129AUTOZONE, INC.
a union pin on her clothing about mid-January. Her open
support of the Union was common knowledge in the ware-
house during late January 1993. (3:401–402, 407–408.)
Holcombe testified that one day in late February, as
Holcombe and Flowers met in the warehouse, Flowers initi-
ated a conversation. Other than the fact Flowers spoke first,
Holcombe recalls very little of what was said. She does re-
call that Flowers said AutoZone was bringing in 52 replace-
ment workers from Memphis, and if Holcombe voted
‘‘Yes,’’ one of the 52 would replace her. (3:403.) On cross-
examination Holcombe recalls Flowers’ statement as being
that if she voted ‘‘Yes’’ for the Teamsters she would lose
her job. (3:409-410.) Either that day or later that week, she
testified, Holcombe removed her union pin and went to Per-
sonnel Manager Jim Wartinger and told him that she no
longer was a supporter of the Union. He asked her why not.
She answered that it was because she wanted to keep her
job. She did not think about Flowers’ remark and so did not
mention that to Wartinger. Wartinger said he would try to
get her back into the antiunion meetings that AutoZone was
conducting. She did attended two of AutoZone’s ‘‘edu-
cational’’ or ‘‘antiunion’’ meetings after that and she never
again wore the union pin before the election. At some point
the 52 employees showed up and began working alongside
the other employees. (3:403–404, 419, 422, 429, 434.)
On cross-examination Holcombe confirmed the earlier im-
plication by saying that the 52 replacements had not yet ar-
rived when she and Flowers spoke. (3:410.) However, in her
pretrial affidavit Holcombe reported that the 52 employees
had arrived and that when she asked Flowers about their
presence Flowers said that the 52 were replacement workers
from the Memphis headquarters and that one would replace
her if she voted ‘‘Yes.’’ (3:411, 413.) Holcombe, who had
difficulty remembering details, then again answered that the
52 replacements were not present in the warehouse. (3:413.)
To show that Holcombe’s testimony flowed from a bias
against Flowers, AutoZone introduced a February 8, 1993
‘‘second written warning’’ (RX 9) for pulling wrong parts.
The warning states that continued errors could lead to termi-
nation. Holcombe verifies the warning (after first not recall-
ing any prior discipline), and does not recall any previous
warning. She denies that the warning made her angry toward
Flowers because, as she describes, she is ‘‘easy going’’ and
because she in fact made the mistakes. She was not con-
cerned about losing her job, but she was concerned, she testi-
fied, about being replaced. (3:414–419.)
To offset any bias effect of the February 8 warning, the
Union offered Flowers’ performance review (CPX 2) of
Holcombe. (3:426.) Although the form shows a typed review
date of December 22, 1992, with an effective date for her
new rate (from $6.25 to $6.50, 3:423) of January 3, 1993,
Holcombe testified that the review occurred in late January,
identifying her dated signature of January 28 and Flowers’
dated signature of January 25. (3:425.) In the review Flowers
records that Holcombe does an excellent job in her assigned
tasks. For improvement, Flowers encourages Holcombe to
initiate action on her own. Overall he rated Holcombe as
‘‘Achieves Requirement.’’ (CPX 2.)
In very brief testimony, Supervisor Flowers asserts that he
had received daily training on what not to say (TIPS). He
denies ever threatening Holcombe in any way, and denies
telling Holcombe that she would be replaced by an outside
employee. (4:689.)
b. Discussion
Karen Holcombe testified with such vagueness and con-
tradiction that I have insufficient confidence in what she as-
serts to find merit in the complaint allegation. The denials
by Flowers are brief, but direct. Not crediting Holcombe, I
shall dismiss complaint paragraph 8(i).
14. Barbara Cunningham—March 5, 1993
a. Facts
Complaint paragraph 8(c) alleges that AutoZone violated
Section 8(a)(1) of the Act on March 5 when Barbara
Cunningham, who became assistant DC manager about
March 1, promised employees a ‘‘pay raise’’ if they ‘‘voted
against’’ representation by the Union. Complaint paragraph
8(r) is a duplicate allegation, phrased as a promise of a
‘‘wage increase’’ if employees ‘‘rejected the Union as their
bargaining representative.’’ Both allegations cover the same
incident, with Robin Delk testifying for the General Counsel,
and Barbara Cunningham opposing. I shall dismiss paragraph
8(r) as an unnecessary duplicate of paragraph 8(c).
Robin Delk testified that she voted during the afternoon
session (1 p.m. to 2:30 p.m., recall) at the March 5 election.
(3:391.) As summarized earlier, Delk worked much of her
nearly 2-year employment under the supervision of Barbara
Cunningham. (3:349, 352.) She could recognize
Cunningham’s voice. (3:388.) During the voting period, but
before she voted, Delk was working in an aisle next to the
oil aisle. Although stacked merchandise blocked her full
view of the oil aisle, Delk heard Cunningham speak. (3:356,
379, 386–388, 391–393.) Presumably Cunningham was
speaking to one or more employees, although Delk, who
could see only the top of Cunningham’s head, could not see
the employees. (3:387.) Delk does not recall hearing any of
the employees speak. (3:388.)
On this occasion, Delk testified, Delk heard Cunningham
say that when the ‘‘No’’ vote was brought through, the ware-
house would receive a (pay) raise to $9. (3:356, 389.)
Shortly before election day Vice President Dennis Roberts
(4:862, 888) and DC Manager Rick Ferguson (5:907–908)
instructed supervisors that on election day they were not to
speak to more than one employee in a conversation, and if
a second employee came over to join, the supervisor was to
walk away. Assistant DC Manager Cunningham testified that
she was so instructed. (4:780.) Cunningham denies that she
had such a conversation as Delk attributes, that she made
such a statement, or that she even had a basis for making
such a statement. (4:780–782.)
Reference to no ‘‘basis’’ for making the statement ushered
in evidence about the pay range for the progression pay
scale. A chart (GCX 6) in evidence reflects that the top rate
of the 2-year pay progression at Greenville remains at $7.75
per hour. (4:820.) Cunningham testified, in effect, that she
was outside the loop of any discussion of wage increases for
1993 (4:799, 804), and that she did not know what the other
DCs were paying (4:806–807.)
Vice President Roberts testified that the weighted pay in-
crease percentages implemented in January 1993 were 3.30
at Memphis, 7.64 at Lafayette, 9.67 at Phoenix, and 10.24
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at San Antonio. (4:825–826; RX 12.) Even assuming that
had the pay increase been implemented at Greenville, and
that it would have been 10 percent, the top rate for the pro-
gression categories would have increased by some 78 cents
to $8.53 per hour. A raise to $9 per hour would have been
an increase exceeding 16 percent. Although Roberts testified
that the wage survey at Phoenix indicated that the increase
at Greenville would have to exceed 5 percent (4:841, 885),
no figure has been finalized. (4:885.) Of course, this does not
mean that Cunningham never heard any rumors. Indeed, in-
stead of rumors, the words of Vice President Roberts himself
show a basis for Cunningham to have referred to $9 an hour.
Thus, in the tape-recorded question-and-answer session fol-
lowing the January 22 speech by Ferguson/Roberts, it is
Roberts, responding to a question, who states that the raises
implemented just days earlier at the other locations ‘‘aver-
aged between 12 to 15 percent.’’ (CPX 1 at 8.) Had a 15-
percent increase been implemented at Greenville, the $7.75
top rate would have been raised to $8.91. Thus, any state-
ment by Cunningham about a raise to $9 would have been
only slightly more, in percentage, than the percentage Rob-
erts himself said had already been implemented at an unspec-
ified distribution center.
b. Discussion
The fact that no one in Cunningham’s assumed audience
spoke is puzzling. Surely the topic was of interest to who-
ever was there. For that matter, there is no evidence of the
identity of the person or persons who normally would have
been working in the area and who might have been there
with Cunningham. In view of all the questions about the in-
cident, I am not persuaded that Delk heard Cunningham
speak on this occasion. Accordingly, I shall dismiss com-
plaint paragraph 8(c).
15. Rick Ferguson—March 16, 1993
a. Facts
Complaint paragraph 8(b) alleges that on March 16
AutoZone, by DC Manager Rick Ferguson, threatened to
withhold pay raises due its employees because of the em-
ployees’ support for the Union. AutoZone denies. (The other
date, January 13, in this paragraph, specifying Barbara
Cunningham, is summarized earlier.) For support the General
Counsel relies (2:326; Br. at 8–9) on the prepared text (GCX
14) of a speech delivered March 16 by DC Manager Fer-
guson to small groups of assembled employees. (1:19; 5:904,
924–925, 979–980.)
Ferguson’s March 16 prepared text is short, about 1-1/2
pages of double-spaced text, of moderately large type. It
reads (GCX 14):
Good afternoon. I don’t know whether the union
committee people have told you by now, but the Team-
sters union has filed objections to our election with the
Labor Board in Winston-Salem. Unfortunately, this
means that the results of your election victory will not
be officially certified until these objections are resolved.
I want to repeat how proud I am of you and how
appreciative I am of what you did when you voted this
union down. It’s a crying shame that even though you
voted overwhelmingly against the Teamsters, Mr.
Barry, Mr. Wood and a few other people seem deter-
mined to try to ignore your wishes.
The filing of objections by a union after an election
defeat is a common tactic. The did it to us in Phoenix
after that election, but we were able to get them dis-
missed there. We strongly believe that these objections
are groundless, and we will do everything in our power
to contest them, and to uphold your vote. We believe
we did nothing wrong in the course of the campaign,
and that—contrary to what the union may think—the
only reason you voted down the Teamsters by such a
wide margin was that we simply shared the truth with
you about them.
In the meantime, however, the Labor Board will con-
duct an investigation of the union’s objections. The
union may try to get statements from you to back up
their claims. There is even the possibility that a hearing
may be held to discuss the issues. All of this may take
some time, and unfortunately, while these legal pro-
ceedings are pending, we still have many of the same
legal restrictions upon us as to what we can say or do
with respect to any changes in the pay, benefits, or
other terms of employment that we had before the vote.
As we have said before, we do not want to create the
impression we are trying to unlawfully interfere with
the outcome of this issue before it’s officially over. We
are sorry we can’t say more, but we intend to obey the
law.
We hope to have all of this behind us as soon as
possible. In the meantime, we will keep you posted.
Janette M. Hanson worked for AutoZone from May 1992
until her July 8, 1993 resignation. (1:13, 32.) During 1993
she worked as an order selector. She was an early supporter
of the Union, and her support soon was open, including
wearing a union pin and assisting in handbilling. (1:14, 33–
35, 46.) Of the 32 employees named on the list of the em-
ployee organizing committee mailed to AutoZone with the
Union’s letter (GCX 4) of February 1, Hanson’s name heads
the list.
According to Hanson, as Ferguson completed reading from
the prepared text on March 16, in which he told the employ-
ees AutoZone ‘‘could not give us a raise,’’ he looked out at
the group and ‘‘he told everybody if they wanted to know
what happened to their raises to ask the people on the Com-
mittee.’’ (1:19–20.)
Testifying that he was aware employees were recording
the speeches management officials gave to employees, Fer-
guson denies ever telling employees that if they want to
know about their raises to ask the union committee. (5:905–
906.) Although he does not believe there were questions and
answers following the March 16 speech, Ferguson concedes
there could have been a conversation with him after the
meeting. (5:973–974.) Ferguson names several of the Gov-
ernment’s witnesses, such as Robin Delk, Reuben Rice, Jack-
ie McGinnis, and other as employees who would have been
present for the speech. (5:982–983.) None of these other wit-
nesses addressed the statement which Hanson attributes to
Ferguson.
As I noted much earlier, following the Ferguson/Roberts
speech of January 22 (GCX 2), a question-and-answer ses-
sion followed. That session, also tape-recorded by employ-
131AUTOZONE, INC.
ees, is transcribed on some 28 pages of an exhibit in evi-
dence (CPX 1). Although Roberts did most of the speaking
during that lengthy informal session, there were several ques-
tions about the pay raise (CPX 1 at 7–8, 16–20), and at no
point did either Roberts or Ferguson refer employees to the
Union’s organizing committee.
b. Discussion
I do not credit Hanson’s account that DC Manager Fer-
guson, following his prepared text speech on March 16,
looked out at the employees and told them (presumably with-
out benefit of a question) that if the employees wanted to
know what happened to their raises, to ask the people on the
union committee. First, I note that Hanson quotes Ferguson
as stating, in the prepared text, that AutoZone could not give
employees a raise, yet in the stipulated text the pay-raise
topic is not mentioned. Second, none of the employees, in-
cluding none of the Government’s witnesses, support Han-
son’s account. Thus, from all of the small group meetings
held (and there were 15 per speech), not one employee sup-
ports Hanson. Third, Hanson’s account is inconsistent with
management’s responses to questions at a lengthy, informal
session on January 22.
Turn now to the prepared text read by Ferguson. The Gen-
eral Counsel attacks the penultimate paragraph, which begins
‘‘In the meantime’’ (2:326) and, specifically, the clause read-
ing ‘‘while these legal proceedings are pending, we still have
many of the same legal restrictions upon us as to what we
can say or do with respect to any changes in the pay, bene-
fits, or other terms of employment that we had before the
vote.’’ (Br. at 8–9.) The General Counsel argues that inform-
ing employees that ‘‘a pay raise cannot be distributed be-
cause of the employees’ support for the Union and because
the Union filed objections to conduct during the election is
violative inasmuch as it places the onus upon the Union
when the Union merely sought to protect the rights of em-
ployees.’’ The General Counsel relies on Atlantic Forest
Products, 282 NLRB 855, 857–859 (1987.)
Unlike Vice President Roberts’ remarks in the January 22
speech, where the pay raise was mentioned expressly, the
Union’s ‘‘poor timing’’ cited, and hope voice once the Union
‘‘is beaten’’ in the election (and I found a violation as al-
leged by complaint par. 8f), the statement here never men-
tions, expressly, the pay raise. Although Ferguson reports
that the Union has filed objections, and that it is a ‘‘crying
shame’’ in view of the overwhelming vote, AutoZone be-
lieves the objections are groundless and will be dismissed as
at Phoenix, and advises that the Board’s processes may take
time, the emphasis is on the legal proceedings. In that con-
nection, the sentence in focus here about time, legal proceed-
ings, same legal restrictions respecting any changes in pay,
benefits, or other terms, does not expressly refer to the pay
raise issue and says nothing about the Union.
The Government’s position seeks to piggyback on the Jan-
uary 22 remarks in order to argue that the March 16 remarks
should produce the same legal conclusion of unlawfulness. I
shall dismiss this allegation. Having earlier dismissed the
Barbara Cunningham portion, I now shall dismiss complaint
paragraph 8(b) in its entirety.
F. The 8(a)(3) Allegations
1. Withholding pay increase—January 22, 1993
a. Introduction
Complaint paragraph 9 alleges that AutoZone, ‘‘since on
or about January 22, 1993, has withheld and continues to
withhold scheduled pay increases due to its unit employees
because the Union filed a representation petition.’’ Paragraph
15 alleges that the paragraph 9 conduct violates Section
8(a)(3) of the Act. In its answer, AutoZone denies both alle-
gations. I summarized most of the essential facts earlier
when covering the Ferguson/Roberts speech of January 22.
AutoZone’s position here is that there is no violation be-
cause the alleged pay increase was never scheduled; it had
not been finalized before the Union filed its petition in the
representation case and, indeed, has never been finalized.
The General Counsel argues that the question is not whether
AutoZone had decided to grant an annual pay adjustment, for
it had decided to do that. The only question not answered,
not finalized, was the percentage, and then only in the sense
that Roberts knew it would be greater than the 5-percent esti-
mate which Roberts gave to employees in November and De-
cember 1992.
The record contains evidence about the history of
AutoZone’s annual adjustments at Greenville. Greenville did
not open until October 1986. The first annual adjustment for
Greenville was in late 1989, and made effective for late
1989. (4:818–820.) The 3.5-percent adjustment is a total for
all the pay scales, for an individual pay category could have
a different percentage. (4:821.) The adjustment made in late
1990 was less than 1 percent. (.9 percent; GCX 6; 4:820.)
In late 1991 AutoZone changed its adjustment policy from
facility anniversary to January in order to put all DCs on the
same annual timetable. Thus, the late 1991 adjustment at
Greenville was postponed and made the 4.3 percent adjust-
ment was made effective the first Sunday in January 1992.
(4:820–821.)
I need not dwell on the history. Roberts testified that there
is no guarantee that a facility will receive an annual adjust-
ment. (4:831.) It is not an annual cost of living raise. (4:815.)
Whether one is given depends on the market in the area. All
that is beside the point. Several facts here are clear. Vice
President Roberts told some employees in late November
1992 that management ‘‘expected’’ that there would be an
annual adjustment in the range of 4 percent to 5 percent, al-
though that had not been confirmed. (4:835–836.) In early
December, Roberts testified, he returned to Greenville and
told all employees, in small groups, what he had told the oth-
ers 2 weeks earlier (4:836–837, 885–886), that ‘‘our assump-
tion was that there might be an annual increase’’ in the 4-
percent to 5-percent range. (4:837.) The question-and-answer
session on January 22 reveals Roberts telling employees,
when describing what he had told employees in December:
that ‘‘we expected a 4 to 5 percent increase’’ (CPX 1 at 7);
‘‘We told you then that we thought it was going to be 4 to
5 percent’’ (CPX 1 at 19); ‘‘That’s [answering question re-
garding 4 percent to 5 percent] what we told you in Decem-
ber, we thought it was going to be at that time.’’ (CPX 1
at 20.) As Roberts phrased it in the speech only minutes ear-
lier on January 22, ‘‘the numbers we mentioned in December
were a tentative forecast only.’’ (GCX 2 at 7.)
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In his December talk to the employees, Roberts also told
them that AutoZone was waiting for the result of a market
analysis being done for the Phoenix area. (4:837.) As I de-
scribed earlier, when Roberts left Greenville that week to re-
turn to Memphis, he had received, the day of his departure,
an advance copy of the Hay Group’s Phoenix survey, dated
December 15.
Roberts testified that the Hay Group’s survey indicted to
him that AutoZone was no longer competitive at Greenville,
so he instructed Ferguson to begin a wage survey for the
Greenville area. (4:838–839; 5:940.) As I summarized in
more detail earlier, the Hay Group’s report plus the followup
image survey at Greenville indicated to Roberts that the ear-
lier estimate of 4 percent to 5 percent was ‘‘too low,’’ and
that the ‘‘increase’’ at Greenville would be greater than 4
percent or 5 percent. (4:841, 845–846, 885.) According to
Roberts, he did not complete his analysis, not ‘‘because the
Union filed its petition (although that is the reason he gave
employees on January 22, CPX 1 at 20.),’’ but because, after
consulting with AutoZone’s attorneys, he ‘‘believed it would
have been unlawful to have implemented a pay increase at
that time.’’ (4:846, 884–885.) His concern was over the le-
gality, not because he lacked any market data to analyze.
(4:846.) As noted earlier, Greenville was not part of the rec-
ommendation package which he submitted to President
Formanek the afternoon of January 11, and Roberts, as of the
trial, still had not finalized his recommendation. The analysis
would determine a percentage, either in advance, and then al-
locating it across the pay categories, or assign percentages by
category first, with the result yielding an overall average per-
centage. (4:896–898.)
b. Discussion
To the extent it is necessary at all to resolve credibility
here, I do not credit Vice President Roberts. First, Roberts
puts his knowledge of union organizing as of the Union’s
January 6 telegram (RX 13) demanding recognition. (4:854.)
The record persuades that he learned earlier. Ferguson testi-
fied that he learned in early December (2:98), and, as I sum-
marized earlier, by mid-December he began a TIPS training
program. Eloise Ruth testified that Supervisor Barbara
Cunningham told her in late November or early December
that union organizing was occurring. (4:691.) When the
Union’s demand telegram came, Ferguson called, not his
ROM, his immediate superior, but Roberts ‘‘immediately.’’
(5:938.) This modification of the chain of command implies
that the alteration was prearranged to handle the union situa-
tion—an arrangement dating back, I find, to early December
after Ferguson first learned.
Second, Roberts asserts that he gave the TIPS training,
that it began after January 7 on an almost daily basis, and
that he recalls no earlier TIPS training by someone else.
(4:861–862, 88.) Yet former Supervisor Timothy Schlichting
testified that Ferguson began the TIPS training a few days
before Christmas. (4:610–611, 660, 665–666.) Although As-
sistant DC Manager Cunningham testified that it was both
Roberts and Ferguson (4:775), she gives no time frame. I
find that Roberts was aware that Ferguson began the TIPS
training in December. Indeed, Ferguson no doubt did so
after, I find, reporting to Roberts that there was union orga-
nizing at Greenville.
Third, when Roberts told employees, during the
taperecorded question-and-answer session of January 22, that
the pay increases effective that very day at the other DCs
averaged from 12 percent to 15 percent (CPX 1 at 7–8),
Roberts knew that was false because he prepared the package
which he gave to AutoZone’s president. It is true that some
of the individual wage categories below the top (2-year)
bracket enjoyed increases of that much and even up to 16
percent (mainly where classes 1, 2, and 3 were merged into
a single wage rate, the result being a big, but one-time, in-
crease for the employees in the lowest paid class.) But Rob-
erts also knew that the weighted averages were substantially
less than that. The fact that they are substantially less means
that most of the employees received substantially less than
the 12-percent to 15-percent increase which he told the
Greenville employees was what the pay increases at the other
DCs had averaged.
Moments earlier Roberts had referred to the ‘‘top bracket’’
when talking about the expected increase of 4 percent to 5
percent. Even if it could be said that Roberts was referring
only to the top bracket when he later said that the increases
at the other DCs varied across the board ‘‘but they averaged
between twelve and fifteen percent,’’ then his statement is
true only as to a single instance, and that being only because
the three classes of that bracket were merged into a single
wage rate for 1993. That was at Phoenix. There, in the 2-
year bracket, the old class 1 rate was $7.90, the class 2 rate
$8.15, and the class 3 rate $8.20. When AutoZone eliminated
classes, except for Memphis, that naturally means that those
in class 1 enjoyed a big increase when the new 2-year rate
became the rate for all in the 2-year, or top, bracket at $9.
For the person or persons in the former class 1 at Phoenix,
that meant a one-time increase of (rounded) 13.92 percent.
The same class 1 person at Lafayette received a $10.15-per-
cent increase ($6.90 to $7.60) and $10.07-percent ($7.45 to
$8.20) at San Antonio, but only $3.70-percent ($9.45 to
$9.80) at Memphis where classes 1, 2, and 3 were retained
and not merged. (RX 12.)
Roberts’ answer certainly was misleading if he was refer-
ring only to the top bracket increases for class 3, the highest
paid of the classes. Thus, when the class 3 groups are con-
sidered we see that their pay increases were only 6.29 per-
cent at Lafayette ($7.15 to $7.60), 3.43 percent at Memphis
($10.20 to $10.55) where the classes were retained, 9.76 per-
cent at Phoenix ($8.20 to $9), and 6.49 percent at San Anto-
nio ($7.70 to $8.20 for class 2; there was no class 3). (RX
12.) The discrepancy is far worse when we consider the
overall weighted increases for the facilities. Recall that Rob-
erts testified that the percentages are weighted by wage cat-
egory according to the number of employees in each cat-
egory. (4:825.) For example, at Memphis the tabulation was
based on ‘‘149 class 1 autozoners, 3 class 2 autozoners, and
25 class 2 autozoners.’’ (RX 12b.) (Weighting involves mul-
tiplying the number in each class by the percentage assigned
that class. That yields a number. The numbers are added and
divided by the total number of AutoZoners to yield a final
number, the weighted percentage. It is simply a method to
assign the proper ratio, or weight, to the total number that
each class represents in the final number. It is more rep-
resentative than taking the percentage for each of three class-
es and dividing by three to get an average number.) The
overall weighted percentages were 7.64 percent (my calcula-
133AUTOZONE, INC.
tion yields 7.66) at Lafayette, 3.30 percent at Memphis, 9.67
percent (I calculate 9.70) at Phoenix, and 10.24 percent (I
figure 10.26) at San Antonio. (RX 12.)
Well, so what that Roberts misstated the math. In my view
it was no accident, but a deliberate attempt to deceive. Rob-
erts was tantalizing his listeners at Greenville about averages
elsewhere of 12 to 15 percent, in conjunction with formal
and informal remarks reciting how the pay increase matter
had to be set aside because of the ‘‘poor timing’’ of the
Union’s petition. Yet all the while Roberts knew that, at best,
the 12-percent to 15-percent range was misleading. It is clear
that Roberts did this as part of AutoZone’s strategy of incit-
ing the anger of the Greenville employees toward the Union,
and the greater the percentage of the pay raise they were
missing out on the greater their anger and the greater the
chance they would vote ‘‘No’’ on March 5. (George Wash-
ington would not approve. ‘‘I hate deception,’’ he wrote to
Dr. John Cochran on August 16, 1779. J. F. Schroeder,
Maxims of George Washington 142 (1989, The Mount Ver-
non Ladies’ Association.))
Fourth, Roberts was not a persuasive witness, and I do not
credit him unless otherwise indicated.
In short, I find that Vice President Roberts put aside his
analysis of the Greenville DC pay raise matter, failed to fi-
nalize his recommendation to AutoZone’s president, and did
not include that recommendation in the recommendation
package which he submitted on January 11 to AutoZone’s
president, not because of any concern over the legality of im-
plementing a pay increase at Greenville, but because of a de-
sire to exploit the pay raise issue in the election which would
be scheduled on the Union’s petition.
As the facts I have summarized show, AutoZone did just
that, with words in the January 22 speech (GCX 2) cal-
culated to incite anger directed at the Union, and telling the
employees how, in effect, they could vent their anger and
frustration against the Union for causing their pay increase
to be frozen, by beating the Union in the election so that
AutoZone and the employees can move forward, ‘‘free of the
restrictions’’ triggered by the Union’s petition. As the Gen-
eral Counsel argues (Br. at 26), AutoZone chose to dangle
the prospect of a delayed pay raise as a carrot on the ‘‘Vote
No’’ stick. (Br. at 26.)
I therefore find that the General Counsel prima facie has
shown that a motivating factor in AutoZone’s failure to in-
clude Greenville in the analysis, recommendation, approval,
and implementation of its January 11, 1993 decision to make
wage adjustments at four of its five (Greenville excluded)
distribution centers was the fact that the employees had as-
sisted the Union and AutoZone wanted to postpone the
Greenville pay increase in order to help defeat the Union at
the election which would be held. I further find that
AutoZone has failed to show that it would have postponed
its analysis notwithstanding the fact of union activities and
solely over concern that to proceed in the face of an election
petition, when no pay raise decision had been finalized,
would have been unlawful. AutoZone, having failed to rebut
the Government’s prima facie case, I find that Respondent
AutoZone violated 29 U.S.C. 158(a)(3) and (1), as alleged,
when it failed to proceed with its analysis of the Greenville
market survey data, failed to make a decision on January 11,
1993, and failed to implement that decision effective January
3, 1993, with the results reflected in paychecks issued Janu-
ary 22, 1993. I shall order AutoZone to take that action, with
the effective date retroactive to January 3, 1993.
Recall that Vice President Roberts testified that had the
analysis been made and an adjustment implemented at
Greenville, as it was elsewhere, it would have been effective
for the pay period beginning Sunday, January 3, 1993, with
the increase reflected in the paychecks issued January 22,
1993. (4:842–843.)
AutoZone argues that no violation can be found because
of the uncertainty respecting the percentage increases, if any,
which Roberts would recommend, and AutoZone’s president
approve, for the various pay categories, or at least allocate
to those categories based on an overall percentage increase.
That argument fails. The process is certain. All the data had
been gathered. The Hay Group’s report on Phoenix and the
data gathered by Ferguson indicated that Greenville needed
a pay increase exceeding 5 percent. Although no formal deci-
sion had been made about a pay increase at Greenville, that
lack results from Roberts’ failure to analyze the market data
and to make his recommendation. He can do that now, and
AutoZone’s president can make a decision. Atlantic Forest
Products, 282 NLRB 855, 859 fn. 21 (1987); Otis Hospital,
222 NLRB 402, 405 (1976.) Of course, the analysis, rec-
ommendation, and decision must not be tainted by additional
unlawful motivation.
2. Jackie McGinnis denied cutter position March
18, 1993
a. Facts
Complaint paragraph 10 alleges that AutoZone violated
Section 8(a)(3) of the Act on March 18 when it failed to
offer Jackie McGinnis (and continues to fail to offer her) a
cutter position. Admitting the fact, AutoZone denies any vio-
lation.
Jackie McGinnis had been working at AutoZone for 3
years as of the trial. (2:227.) Currently she operates a com-
puter. (2:228.) She was one of the employees who called the
Union in November 1992. (2:242–243, 262.) Around the first
of January she began wearing a union pin. (2:228, 235.) Her
name is one of the 32 on the list of employees on the orga-
nizing committee, the list attached to the Union’s February
1 letter to DC Manager Ferguson. (GCX 4.) When
AutoZone, on February 1, began excluding the open support-
ers of the Union from AutoZone’s campaign speeches,
McGinnis was one of those excluded. (2:234–235.) During
the organizing campaign McGinnis worked as an order selec-
tor under Supervisor Barbara Cunningham. (2:228, 233, 245.)
When work was completed pulling orders, McGinnis would
do other work, including that of a cutter. (2:229–230.) As
DC Manager Ferguson explains, a cutter is a person who
uses a box cutter to open a box of merchandise. The person
then puts the box in a slot so that the merchandise can be
pulled on an individual basis rather than by case lot. (5:932–
933.) It is a service function for the order selector who then
is able to pull the merchandise. (2:229.)
About the first of February, McGinnis testified, Supervisor
Jerome Flowers (not McGinnis’s supervisor) told McGinnis
that a cutter’s position was open. She told him she wanted
the job, thereby (at least to her thinking) orally applying for
it. (2:229, 245–246.) McGinnis did not ask Cunningham
about the position. (2:246.) Although both jobs paid the same
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and had the same hours (2:246; 5:933–934.) McGinnis want-
ed to switch to a cutter position because she considered it
less stressful. (2:246, 250.) The cutter position did not have
a production rate but the order selector position did. (2:246;
5:933–934, 962.)
On March 18 McGinnis learned that AutoZone had award-
ed the cutter’s position to Carolyn Palmer (2:229, 246, 250),
an order selector (2:246) who, during the campaign, had
worn a ‘‘No Teamsters’’ pin and who had served as one of
AutoZone’s observers at the March 5 election. (2:229, 240;
5:961.) Although many, perhaps most, of the order selectors
performed some cutter work (2:229–230, 246), there is no di-
rect evidence that Palmer was one of the many having that
experience. McGinnis had seniority over Palmer (2:229,
240), and there is evidence that supervisors have told em-
ployees as late as December 1992 that seniority was the basis
for promotions or transfers. (2:120, 231, 277–278.) Indeed,
DC Manager Ferguson concedes that in the past there was
a job posting system, but asserts that it was dropped in late
December 1992. (5:929–930.)
On learning that Palmer had gotten the cutter position,
McGinnis asked Ferguson why Palmer rather than McGinnis
had gotten the job since she, McGinnis, had more seniority.
McGinnis testified that an opportunity had arisen for some-
one to leave the ‘‘Yellow Racks,’’ or H aisle, that it was
Palmer and, in addition, the DC no longer was using job ti-
tles and employees would receive assignments on coming to
work and would do those assignments. McGinnis admits that
Ferguson said nothing about the Union. (2:230–231, 248–
250.)
When McGinnis ‘‘applied’’ to Supervisor Flowers for the
cutter position she did not have any absentee problems.
(2:231.) She had received one warning when $750 worth of
sparkplugs did not reach the retail store, but Supervisor Bar-
bara Cunningham told her not to worry about it, that the in-
cident was a fluke, but to pay close attention. (2:232.) As an
order selector, McGinnis’ production rate was consistently
one of the highest. (2:247.)
At some later point McGinnis obtained a transfer to the
computer position she now holds. (2:260.) In early Septem-
ber she was offered a cutter position. (GCX 13; 2:251;
5:934.) She declined because she considered the computer
position more desirable (2:251) even though there was a pos-
sibility the computer position would not remain on the first
shift (2:260.) Unfortunately, at mid-November 1993, about a
month before she testified, McGinnis and her computer posi-
tion had to transfer to the third shift. Had she known the
transfer to the third shift would have happened, McGinnis
would have taken the cutter position offered in September.
(2:260.)
DC Manager Ferguson testified that about mid-March
1993, shortly after the election, he made a management deci-
sion to change the method of assigning jobs. Instead of order
selectors and others doing one task, such as puling orders,
in the morning, and another, such as stocking the area they
had pulled, the second half of the shift, he returned to an ear-
lier system of each employee being assigned to one job for
all of his or her shift. This is what he told McGinnis when
she asked why she did not get the cutter position. (Actually,
Ferguson testified, there had been more than one cutter va-
cancy to fill.) He had not used seniority in making the new
work assignments, but management had assigned workers
based on management’s perception of their abilities. (5:930–
932, 962.) According to Ferguson, before the new work as-
signments, Ferguson was not aware that McGinnis wanted to
be a cutter. His first notice was when she asked him why
she had not gotten the job. Thus, the decision not to place
McGinnis in the cutter position had nothing to do with her
support of the Union. (5:932, 934–935.)
b. Discussion
The first task is to determine whether the General Counsel
established a prima facie case. To make that determination,
I do not review the General Counsel’s evidence in isolation,
but I weigh all the record evidence bearing on the question.
Peter Vitalie Co., 313 NLRB 971 (1994).
First, knowledge of McGinnis’s prounion support is well
established. Second, although the General Counsel argues
that AutoZone departed from an ‘‘unrebutted’’ past practice
of assigning controlling weight to seniority, DC Manager
Ferguson did offer rebutting testimony. The General Counsel
dismisses that by contending Ferguson’s new policy, assum-
ing a new one was implemented, was discriminatorily moti-
vated. The complaint contains no such allegation, and the
parties did not litigate that as an issue. I note that no evi-
dence was offered of anyone’s being told in 1993 that senior-
ity still controls. I find that Ferguson’s testimony neutralizes
the seniority factor.
There is a dispute whether Ferguson knew that McGinnis
desired the cutter position. It is unclear what role Supervisor
Flowers had in this other than his informing McGinnis of the
opening. That is, was the opening under the jurisdiction of
Flowers, under Cunningham, or someone else? Flowers was
an order selector supervisor in February 1993. (4:688.) But
so also, apparently, was Cunningham because she was
McGinnis’ supervisor. A reasonable inference would be that
the opening was in Flowers’ area, and that is why McGinnis
‘‘applied’’ to Flowers. That being so, it seems reasonable to
infer that Flowers informed DC Manager Ferguson. This is
all the more likely since Flowers, in testifying, did not deny
any of McGinnis’ testimony.
Respecting the question of whether Flowers knew that
McGinnis wanted the cutter position, the General Counsel ar-
gues that had Ferguson not known of her desire he would
have said so when, in mid-March, she asked why Palmer had
gotten the cutter position and she had not. Certainly it would
have been a natural response for Ferguson to have answered,
at least in part, ‘‘Why Jackie, I didn’t even know you wanted
it.’’ Instead, under the versions of both, he recited business
reasons (which differ per the version) why McGinnis did not
get the position. It could be argued that Ferguson’s answer
is consistent with ignorance of McGinnis’ desire in that his
answer explained why McGinnis was not selected. That is,
the answer shows that management reviewed everyone, in-
cluding McGinnis, and placed everyone according to their
abilities as perceived by management. Thus, his answer was
not keyed to knowledge that McGinnis had applied for the
job, but merely to why she, as others, had not been selected.
However, the natural answer, the one not given, is the more
credible possibility. Thus, I find that Flowers did report to
Ferguson that McGinnis wanted the cutter position, but that
Ferguson selected Palmer over McGinnis anyway.
When another cutter position opened in September,
AutoZone (through Cunningham) offered the position to
135AUTOZONE, INC.
McGinnis. This shows, AutoZone argues, that it bore no ani-
mus against McGinnis. Although the General Counsel men-
tions the September offer in relation to the proper remedy,
the General Counsel does not evaluate it in terms of its bear-
ing on credibility and whether the evidence shows a prima
facie case. Ordinarily, the fact that the offer came after one
of the Union’s charges listed the McGinnis situation, with
the original complaint making the allegation, would have to
be considered, the usual argument being that the offer was
made merely to terminate any backpay liability. But here
there would be no backpay liability because the positions
have the same hours and pay rate. I therefore find that the
September offer is a factor which weighs against a finding
of animus.
Summarizing, I find that AutoZone knew of McGinnis’
union activities, knew that she had cutter experience, and
knew that she wanted the cutter position. Despite this knowl-
edge, AutoZone awarded the position to one of its ‘‘No
Teamsters’’ election observers—Carolyn Palmer—an order
selector who, so far as the record shows, only probably had
cutter experience in that most order selectors did. But the
Government, to establish a prima facie case of unlawful dis-
crimination, must do more than show that an antiunion per-
son was selected over a union supporter. The evidence does
not show pretext or disparity. There is no direct evidence, or
inference, of animus having been directed toward McGinnis.
Indeed, the September offer of a cutter position weighs
against any finding of animus. In the absence of a finding
of animus, direct or inferred, I find that the Government has
failed to make a prima facie showing that a motivating factor
in AutoZone’s not transferring Jackie McGinnis to the cutter
position in March 1993 was her support of the Union. I
therefore shall dismiss complaint paragraph 10.
3. James Andrews warned July 9, 1993
a. Facts
Complaint paragraph 11 (with conclusory par. 15) alleges
that AutoZone violated Section 8(a)(3) of the Act on or
about July 9, 1993 by issuing a written warning to James
Andrews. Admitting the fact, AutoZone denies any violation.
James Andrews testified in support, with Timothy
Schlichting and others opposing.
Recall the earlier summaries of 8(a)(1) allegations against
Martin Nelson on February 2 and Timothy Schlichting at
mid-February. Although crediting Andrews respecting the
Nelson incident, I dismissed the allegation, complaint para-
graph 8(h), as to Andrews. Respecting complaint paragraph
8(g) and Schlichting, I credited Andrews (and Stanley Phillip
Wilson) and found that Schlichting unlawfully counseled An-
drews not to discuss union issues on company time. (This
was the incident where Andrews, while cleaning a lavatory
in the women’s restroom, delayed two female employees
from returning to work.)
Recall, also, that Andrews, who began work at AutoZone
in August 1992, who openly supported the Union, began
wearing a union pin on his collar beginning in late January.
He is one of the 32 named in the Union’s February 1 letter
(GCX 4) to DC Manager Ferguson as being on the Union’s
in-plant organizing committee, and he was one of the group
of committee members who went to Ferguson and Roberts
to protest that supervisors were restricting union supporters
from campaigning during working time but allowing
antiunion employees to roam the plant while campaigning
during working time. None of this prevented Andrews from
receiving a favorable performance review, and a pay increase
from $6.25 to $6.50 (GCX 7), from Schlichting and ap-
proved by Ferguson. Andrews, who signed the review on
February 26, testified that he was satisfied with it. (2:307.)
Andrews works in the housekeeping department at Green-
ville under Marshall Hurley, whom Andrews identifies as his
supervisor. (2:273.) Hurley is an admitted statutory super-
visor, but it appears that, at least in July 1993, he may have
been a line leader under Supervisor Timothy Schlichting.
Hurley’s wife, witness Hazel Ann Hurley, described her hus-
band’s job as the section leader over maintenance and house-
keeping. (4:709.) DC Manager Ferguson testified that Mar-
shall Hurley is a line leader. (2:106.) However, Schlichting
testified that in July 1993 he was Andrews’ ‘‘acting super-
visor.’’ (4:647.) Marshall Hurley did not testify. The only
relevance this has is to help understand references in the evi-
dence to Hurley and Schlichting respecting James Andrews.
Andrews’ job responsibility is to do general cleaning, in-
cluding emptying the trash, dusting, and mopping and buff-
ing floors (2:282) and, as we have seen, cleaning some of
the women’s restrooms. Generally Andrews worked during
the day, but his hours varied so that on some days he would
begin at 6:30 a.m. and on other days end at 6 p.m. (2:286.)
Andrews’ duties ordinarily required him to work throughout
the facility. (2:286–287.) For a week and a half during the
organizing campaign, however, AutoZone removed the gen-
eral office area from his cleaning duties and the offices of
DC Manager Ferguson and Personnel Manager Wartinger for
an additional period extending through the March 5 election.
(2:284–286, 304–306.) Ferguson testified that this had been
done because of reports that Andrews was looking at papers
on the desks. Based on the reports, Ferguson decided to ex-
clude Andrews from the areas where confidential information
would be available. Ferguson ‘‘thinks’’ that Supervisor
Schlichting orally counseled Andrews, at the time Andrews
was excluded from the office area, about looking at items on
desks. (5:963–965.) During his testimony Schlichting did not
describe the March exclusion or mention any oral counseling
of Andrews. During cross-examination Andrews testified that
the written warning he received in July 1993 is the only oc-
casion he was ever talked to about reading papers on any-
one’s desk. (2:299–300.)
The July warning came about after two receptionists, wit-
nesses Betty Beacham (3:555–556, 558–560, 563–564) and
Wendy Vaughn (3:568–573, 576) reported to Personnel Man-
ager Wartinger on July 7 that, on the morning of that day,
they had observed Andrews, while in Ferguson’s office to
clean and buff, touching and reading a paper on Ferguson’s
desk. Beacham places her report to Wartinger about 9 a.m.,
with her observation occurring some 30 minutes earlier.
(3:558, 563.) At Wartinger’s request, the following day they
wrote brief statements (GCX 8b,c) concerning what they had
observed.
When he arrived for work on June 28 at his usual 7 a.m.,
Accounting Manager Ricky Trammell testified, he observed
Andrews, with a wastebasket on the desk of one of the ac-
counting clerks, looking at a paper he was holding. Appear-
ing startled, Andrews put the paper in the trash can and then
proceeded to empty the trash into a bag as part of his clean-
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing duties. That morning Trammell reported the incident to
Wartinger who, later that day, asked Trammell to make a
written description of his observation. It was a week before
Trammell wrote his statement (GCX 8d.) (3:581–585, 588–
590.)
For his part, Andrews concedes that about July 7 he did
read a newspaper clipping that was lying on Ferguson’s desk.
The clipping described a Greenville company, Standard
Trucking, about to close, with employees losing their jobs
and not being able to vote in an election. Andrews denies
picking up the clipping or moving any items on Ferguson’s
desk, and he denies ever moving any papers on supervisors’
desks in order to read papers on the desks. (2:282–284.) Ad-
mitting that he previously had read material on other desks,
Andrews states simply that the papers he has read have been
lying open for anyone to see, and ‘‘I was curious.’’ (2:300–
301.) During the organizing campaign it was mostly news-
papers which he dug out of wastebaskets. (2:304.)
Supervisor Schlichting did not participate in Personnel
Manager Wartinger’s investigation of obtaining written state-
ments. (4:630, 647; 5:962.) On either July 8 or 9, Schlichting
testified, Wartinger informed him that a decision had been
made to issue a written warning to Andrews because he had
been observed touching documents on the desks of Ferguson
and others. (4:650–651.) Schlichting testified that he had ob-
served Andrews, while cleaning Ferguson’s office, ‘‘long-
necking everything.’’ (4:651.) Schlichting gives no time
frame of his observations or whether he said anything about
it either to Andrews or to Ferguson. Ferguson testified that
he did not confer with Schlichting about the July warning.
(5:962.)
Ferguson testified that he approved the issuance of a writ-
ten warning, and even considered firing Andrews, because
Andrews’ conduct violated AutoZone’s written policy [not in
evidence] that protects confidential information. Andrews’
‘‘going through trash cans, looking at that information—
going through and looking at information on my desk—I felt
it was a very serious violation that I would have someone
whose responsibility was to mop and wax the floors, going
through and looking at information that was on my desk.’’
(5:911.) Although AutoZone’s policy provides for progres-
sive discipline, the earlier warnings were skipped and a ‘‘se-
rious violation’’ approved because Andrews ‘‘had access to
look at confidential information—and it was very obvious
that if he was looking at information that was on my desk,
he had no reason to be looking at information that was on
my desk.’’ AutoZone’s policy handbook, Ferguson testified,
allows skipping the earlier steps when the infraction is
deemed serious. (5:913–914.)
Asked, on cross-examination, what confidential material it
was that Andrews had read, Ferguson testified that he had
no idea, but that it was the information ‘‘that was on my
desk.’’ (5:963.) Ferguson considers it a ‘‘very serious con-
cern,’’ particularly after Schlichting, as Ferguson recalls,
orally counseled Andrews on this topic during the organizing
campaign. (5:964–965.)
On Friday, July 9, Supervisor Schlichting escorted An-
drews to a meeting attended by Schlichting, Andrews, and
Personnel Manager Wartinger where Andrews was given a
written warning (GCX 8a). (2:279; 4:629–630, 650.) An-
drews asserts that Schlichting did most of the talking (2:279),
but Schlichting claims that Wartinger did (4:654.) Schlichting
testified that the written warning was prepared before the
meeting with Andrews. (4:650.) The warning, in evidence as
an AutoZone ‘‘Corrective Action Review’’ (GCX 8a), has
blank spaces beside the four categories of verbal warning,
first written warning, second written warning, and serious
violation. The latter was checked on this warning. For the
last category, the employee ‘‘may be separated without prior
warning.’’ The type of infraction is listed as ‘‘Unauthorized
possession/handling of confidential information.’’
‘‘Details Of Infraction’’ are stated on the written form as:
On several occasions you have been observed by man-
agement and fellow AutoZoners reading papers thrown
away in the trash and handling paperwork on the desks
of office personnel and the DC Manager. This type of
conduct is unacceptable.
‘‘Suggestions For Improvement’’ are stated in these
words:
Jim, when performing your housekeeping duties you
should pick up the bags of trash and throw them away,
not read through them. When cleaning the floors you
should mop, sweep or buff, not read or handle any pa-
perwork on desks.
Wartinger and Schlichting signed (2:85), noting on the
form that Andrews had refused to sign. Andrews testified
that he did not sign because he had done nothing wrong.
(2:282, 316.) The final block is a printed notice warning that
performance must improve or, should the same violation
recur, action will be taken. That action is described, in hand,
as: ‘‘Any further conduct of this kind will result in termi-
nation.’’
Ferguson acknowledges that this warning would permit
AutoZone to terminate Andrews for a repetition of this type
conduct, and that it does not matter to him whether Andrews
is prounion or procompany. (5:969.) On the other hand, Fer-
guson admits (5:975–976) that his following remarks in the
Ferguson/Roberts speech of February 1 about ‘‘button wear-
ers’’ refer to employees such as Andrews, Stanley Phillip
Wilson, Robin Delk, Jackie McGinnis, and others (CPX 7 at
14):
Speaking of button wearers, are these really the type
of people you want running the union’s show in here
if the Teamsters are somehow able to dupe enough
AutoZoners to vote for them and to get in here? Are
they the kind of leaders you want to entrust your jobs
and your futures to? Are they the people you want
speaking for you? You can keep yourselves free of their
control and the control of the International by voting
NO!
Ferguson disclaims any purpose by the words of trying to
convey any message other than the voters had a decision to
make. He was not trying to isolate anyone by referring to
‘‘type.’’ Beginning with the February 1 speech, those wear-
ing union buttons were excluded from AutoZone’s other
campaign speeches. (5:925, 974, 979.)
Andrews testified that during the July 9 interview
Schlichting said a warning was being issued to Andrews for
reading material out of wastebaskets, on top of desks, the DC
137AUTOZONE, INC.
manager’s office, and confidential matters on the desks of
others. Schlichting said they had a witness. (2:279–280, 282,
300.) Andrews claims not to know if the charge of reading
papers on desks referred to Ferguson’s desk because he has
read papers on other desks and he has no idea what they
were talking about on July 9. (2:300.)
During the warning interview, Andrews reminded
Schlichting of an incident some months earlier when
Schlichting had discarded a letter addressed to Andrews. In
late January Marshall Hurley asked Andrews about cleaning
the carpet in the upstairs conference room and to obtain the
cleaning chemicals. Andrews called several dealers in the
area, one being Garrison’s Cleaning Service which took An-
drews’ name and (company, apparently) address. In mid-to
late-March, dumping as Andrews was Schlichting’s trash,
Andrews discovered a letter addressed jointly to him and to
AutoZone inviting them to an open house at Garrison’s. An-
gered that Schlichting had discarded mail addressed to him,
Andrews waited a few days to see if Schlichting would say
anything. Hearing nothing from Schlichting, Andrews then
reported the matter to Ferguson. (2:280–282, 302–303.) The
end result was that Schlichting, at Ferguson’s suggestion,
apologized to Andrews, saying that it was not intentional.
(4:654–657; 5:914–915.) Andrews, Schlichting testified, re-
plied, ‘‘Well, you still threw it away.’’ (4:657.)
About a month after his August 1992 hire at AutoZone,
Andrews spied an envelope, marked ‘‘Personal and Con-
fidential,’’ and bearing Andrews’ name, on Schlichting’s
desk. Taking the letter and opening it, Andrews found infor-
mation about life insurance. (Company life insurance, pre-
sumably.) For unstated reasons, Andrews reported this to
Wartinger who said nothing. Indeed, Andrews testified, he
was never told he could not read papers addressed to him
which he found on the desks. (2:281–282.) Andrews presum-
ably considered it improper for Schlichting to have on his
desk the personal and confidential envelope for Andrews.
During his testimony, Schlichting did not address this inci-
dent, and did not explain whether he simply was waiting to
deliver company mail to Andrews.
In any event, Andrews suggests that he looks through trash
to see if there is anything addressed to him. (2:304.) No one,
he testified, had ever told him that it was unacceptable for
him to inspect an item on DC Manager Ferguson’s desk.
Further responding to counsel’s question, Andrews replied,
‘‘I don’t have a problem with reading newspaper articles, do
you?’’ (2:315.) Andrews testified that so far as he knew Fer-
guson trusted him to clean around his desk. (2:309.)
The July written warning had no impact on the next per-
formance review given to Andrews. Thus, for his February
performance review he was given the middle rating of
‘‘Achieves Requirement’’ plus a pay increase of 4 percent.
(GCX 7.) For his August performance review (GCX 9),
signed by Andrews on September 2, Assistant DC Manager
Cunningham, giving Andrews the same rating, marks for im-
provement for Andrews to spend less time on a given task.
Cunningham compliments Andrews’ willingness to accept
spot assignments and compliments the quality of his work.
Moreover, Andrews was given a pay raise to $7, a $7.69 per-
cent increase—a bigger percentage increase than he received
in February before the warning.
b. Discussion
The Government’s position on brief appears not to be that
a warning issued at all, but that the warning which issued
was at the last step, a ‘‘serious violation’’ warning. The Gen-
eral Counsel sees this as nothing more than laying the paper
foundation for an immediate discharge of James Andrews on
a pretext that the slightest mistake would be perceived as
falling in the area of his July warning.
As described, there is some indication that both
Schlichting and Wartinger did not show immediate alarm on
either observing Andrews ‘‘long-necking’’ in Ferguson’s of-
fice (Schlichting) or when Wartinger learned that Andrews,
a month after being hired, removed a letter, addressed ‘‘Per-
sonal and Confidential’’ to Andrews [apparently a letter
which Schlichting, as the supervisor, would have delivered to
Andrews] from Schlichting’s desk. There also was some
delay in Wartinger’s obtaining Accounting Manager
Trammell’s typed statement, although Trammell could not re-
call whether Wartinger was out (3:584), possibly explaining
why Wartinger did not remind Trammell after a day or two
rather than the week it took Trammell. The key person, how-
ever, is DC Manager Ferguson, for it was the news that An-
drews had been reading a paper on his desk that really got
Ferguson’s attention and persuaded him that this was a seri-
ous matter.
AutoZone’s policy handbook provides for skipping to the
last warning, and the General Counsel offered no evidence
here that AutoZone has ever given anyone else a lighter dis-
cipline for similar conduct. Nor is there any evidence of a
pretext. Certainly the penalty imposed could have been light-
er, such as a first written warning, and under AutoZone’s
policy for a serious violation, Andrews could have been
fired. The question here, however, is whether union animus
was a motivating reason for the ‘‘serious violation’’ warning
which was given. Whatever animus existed in Schlichting’s
unlawful warning to Andrews in mid-February, concerning
the restroom incident, was so anemic that it had no adverse
impact on the performance review which Schlichting gave
Andrews later that month. (Although Schlichting signed ear-
lier in the month, he could have changed it before giving it
to Andrews later in the month.) Andrews apparently had ex-
perienced no problems with management after the March 5
election. AutoZone knew full well that Andrews was a strong
union supporter, and excluded him from Ferguson’s office, at
some point, until the March 5 election. Andrews received
similar performance ratings both before and after the July
warning. As Andrews testified that he was satisfied with his
February evaluation (2:307), presumably he was satisfied
with his August appraisal as well.
Ferguson’s recall was a bit fuzzy, and details lacking, con-
cerning whether Schlichting reported to him, about February,
that he had counseled Andrews at the time Andrews was ex-
cused from cleaning the offices during the campaign. (5:964–
965.) Schlichting did not address the point, and Andrews as-
serts that the July 9 warning was the first time he was talked
to about reading papers on desks. In these circumstances I
credit Andrews that he was never previously counseled or
warned.
Ferguson described AutoZone’s policy handbook as per-
mitting a ‘‘serious violation’’ for improperly handling ‘‘con-
fidential’’ information. The only paper identified by any of
the witnesses was the newspaper clipping described by An-
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drews. I credit Andrews that what he was reading on July
7 at Ferguson’s desk was that newspaper clipping, and that
it was that clipping which the two receptionists observed him
reading and, I find, touching the clipping. By Ferguson’s def-
inition the fact that the paper—regardless of its nature—was
on his desk made it confidential. (5:911, 963.) The written
warning is broad enough to cover items thrown into the trash
at any of the desks. On one hand it can be said that Andrews
can avoid any problem simply by emptying the trash, not
reading it or papers on the desks. On the other, it is clear
that the warning could be used as a tool for mischief.
As noted, there is no evidence of disparity or pretext, and
the only evidence of arguable animus predates the February
performance appraisal yet had no adverse impact on it. There
is no other evidence of animus directed toward Andrews be-
cause of his strong and open union activities. The July 9
warning had no adverse impact on the performance review
which Andrews received less than 2 months later, and the
pay increase he received was greater in amount and percent-
age than what he received in February.
Perhaps the key lies in Andrews’ assertion that with the
resumption, after the March 5 election, of his access to Fer-
guson’s office, Ferguson trusted Andrews to clean around his
desk. (2:309.) But after Andrews was observed on July 7
reading a paper on Ferguson’s desk, it is clear that Andrews
no longer enjoyed Ferguson’s trust. Ferguson testified that
Andrews’ union activities played no part in the July 9 warn-
ing. (5:969.) On this record, I credit Ferguson. Finding,
therefore, that the General Counsel failed to establish a prima
facie case of unlawful motivation in the July 9, 1993 written
warning to James Andrews, I shall dismiss complaint para-
graph 11.
4. Stanley Phillip Wilson fired September 13, 1993
a. Introduction
Complaint paragraph 12 alleges that AutoZone violated
Section 8(a)(3) of the Act when it fired Stanley Phillip Wil-
son on September 13, 1993. Admitting the fact, AutoZone
denies any violation.
A large portion of the record is devoted to the Wilson dis-
charge. The bottom line is that I do not believe Wilson. Ex-
cept where I credit Wilson, generally when he corroborates
someone’s credited testimony or is supported by credited evi-
dence, I do not believe anything he says. The record dem-
onstrates that Wilson frightened female employees, threaten-
ing the young daughter and husband of Hazel Ann Hurley,
and, holding a cardboard knife to Hurley’s throat, said ‘‘See
how easy it would be for me to cut your throat.’’ (4:714.)
Contending that he only showed a foot-long cardboard knife
to Hurley, Wilson denies that he threatened Hurley, denies
that he held it to her throat, and denies that he even teased
her with it. (2:129–130, 184–185.) According to Wilson, he
merely showed Hurley a foot-long knife he had cut from
cardboard, and she simply said, ‘‘Oh, well, big deal.’’
(2:184–185.) DC Manager Ferguson testified that one of the
motivating reasons for the discharge of Wilson was the
threats he had made to Hazel Ann Hurley. (5:919–920.)
Citing evidence that employees, particularly Wilson, joked
and engaged in horseplay, the General Counsel argues that
AutoZone’s reliance on the cardboard knife incident, and
other alleged threats, to justify Wilson’s discharge was mere-
ly a pretext to mask its unlawful purpose of getting rid of
an activist supporter of the Union. Finding no merit to the
Government’s case, I dismiss complaint paragraph 12.
b. Facts
Earlier, in treating allegations against Supervisor
Schlichting (pars. 8(l),(m)), I summarized Wilson’s job duties
and his open and vigorous support of the Union. Thus, com-
pany knowledge is well established that Wilson was strongly
prounion. Respecting Wilson’s work history, I should add
that, although Wilson did not arrive at the Greenville DC
until either January 1991 (2:100, Ferguson; 2:117, 148, Wil-
son) or possibly April 1992 (4:648–650, Schlichting), he had
been working at one of AutoZone’s retail stores since his
hire date of September 30, 1986. (2:117.) Ferguson, who had
been the district manager over the area retail stores when
Wilson worked in the store, and Supervisor Schlichting
brought Wilson to the Greenville DC because of his knowl-
edge of parts and their saleability in the stores. (2:117; 4:611,
647–648; 5:951, 970.) Ferguson recalls 1991 as the year in
which Wilson transferred. (2:100.) For Wilson’s July 1992
performance evaluation (GCX 10), Schlichting gave him the
top rating of ‘‘Exceeds Requirement.’’ (4:648–649.) Al-
though no other performance reviews are in evidence, Wil-
son’s technical abilities and knowledge are not in issue. Fer-
guson describes him as having been a ‘‘good, average em-
ployee.’’ (2:104.) From the March 5 election until his Sep-
tember 13 discharge, the only formalized problem Wilson
had with AutoZone’s management was a September 3 first
written warning (GCX 11) for poor attendance. Wilson goes
by the short name of ‘‘Phil Wilson.’’ (2:117.)
In the early afternoon one day around mid-to late-August
1993, the receptionist informed Ferguson that a male caller
had made a telephone bomb threat. This came in the early
afternoon. Ferguson ordered the plant evacuated for the bal-
ance of the day. No bomb was found and the police have
not apprehended anyone. The next day members of manage-
ment were told by employees that they should interview Wil-
son about the bomb threat because there were rumors he had
talked of making a bomb. (AutoZone asserts that it makes
no contention Wilson telephoned the bomb threat. Br. at 53
fn. 31.) Based on these reports, Ferguson instructed Assistant
DC Manager Barbara Cunningham and Personnel Manager
James S. Wartinger to investigate the matter. (2:103–104,
137–138, 174; 4:749, 759–760; 5:915–918, 952–953, 970–
971.)
So far as the record shows, employees who submitted
signed statements during the investigation were, Debra Shue,
statement of August 31 (GCX 12c); Jeananne Cole, statement
of August 31 (GCX 12d); and (Hazel) Ann Hurley, statement
of September 9 (GCX 12f.) Shue did not testify. As Fer-
guson does not rely on any incident described in Shue’s
statement, I shall not quote it. Concluding that Wilson could
not make a bomb by mixing the Greenville DC’s chemicals,
Ferguson testified that the reasons AutoZone discharged Wil-
son did not include the allegation that he would make a
bomb and destroy the DC. (5:955.)
About 2 weeks before his discharge, Wilson testified, Fer-
guson informed him that he was investigating some allega-
tions against him and that he soon would have a final deci-
sion. (2:136.) Before he was called to his September 13 dis-
charge meeting, Wilson was not interviewed for his version
139AUTOZONE, INC.
as part of AutoZone’s investigation. (2:136.) Acknowledging
that the decision was made to discharge Wilson before Wil-
son was called in (2:105; 5:920), Ferguson testified that the
AutoZone policy, at least at Greenville, is to ‘‘gather the
facts’’ and make a decision before confronting the accused
employee. At the time of the disciplinary interview, if the
employee presents evidence which counters the basis for the
decision, then Ferguson would reconsider his decision be-
cause his decision is ‘‘not irrevocable.’’ (5:920–921, 955.)
(Recall from Schlichting’s testimony that the same procedure
was followed respecting the written warning issued to James
Andrews. (4:650–651.)) As Wilson, Ferguson testified, pre-
sented no such countering evidence, his conduct, in Fer-
guson’s view, constituted harassment of employees which,
under AutoZone’s written policy (no written policy in evi-
dence) calls for discharge. (2:109; 5:958–959.) Actually, Fer-
guson recommended the termination (5:920) and Vice Presi-
dent Roberts, some 2 to 3 days before Wilson’s discharge,
decided that Wilson should be discharged under AutoZone’s
corporate policy against harassment. (2:104, 109.) There is
no record evidence that the procedure followed in Wilson’s
case deviated either from AutoZone’s corporate policy or
Greenville’s past practice.
On Monday, September 13, Assistant DC Manager Bar-
bara Cunningham escorted Wilson to DC Manager Rick Fer-
guson’s office where, in the presence of Cunningham and
Personnel Manager James Wartinger, Ferguson said that a
decision had been made. Ferguson said that other employees
had stated that Wilson had been harassing them. Ferguson
cited three incidents and asked if he had any explanation.
(2:128; 5:921, 958–959.) At the conclusion of the interview,
after Wilson had offered his explanations, Ferguson said he
was terminating Wilson for harassment. (2:135; 5:921, 959.)
Protesting that he had harassed no one, Wilson asked
Cunningham if he could see the papers. Cunningham said no
and for him to ‘‘hit the door.’’ (2:135.) Wilson testified that
he neither signed a termination paper nor had any conversa-
tion with Wartinger about signing. (2:136.) The termination
form (GCX 12a), signed only by Wartinger, records that Wil-
son ‘‘did not sign.’’ (During his initial testimony, when
called by the General Counsel, Ferguson testified, 2:104–105,
that Wartinger took Wilson to his office to sign the termi-
nation form.)
I credit Wilson’s testimony about Cunningham’s remark,
and about not signing and having no conversation with
Wartinger about signing. First, Cunningham, who testified
about other matters, did not address Wilson’s case. Although
Wartinger is still AutoZone’s personnel manager (5:983), he
was not called as a witness. Wartinger’s one-page minutes of
the meeting are attached to the termination form. (GCX 12b.)
Thus, of the four attendees at Wilson’s discharge interview,
only Ferguson and Wilson testified about Wilson’s case. Sec-
ond, Wilson’s testimony about this is consistent with Fer-
guson’s version and with Wartinger’s minutes. As Wilson
did not ask Ferguson about inspecting the papers, it is likely
that the exchange with Cunningham occurred as they were
leaving Ferguson’s office.
The one-page termination form, ‘‘Corrective Action Re-
view,’’ is marked Serious Violation—May be separated with-
out prior warning.’’ (GCX 12a.) Under type of infraction is
hand-printed, on the first line, ‘‘Harassment’’ and, on the
second line, ‘‘Hostile Acts/Abusive Conduct.’’ As the hand-
printed text on the form conforms to the minutes and to two
of the statements (Debra Shue’s and Jeananne Cole’s) also
signed by Wartinger, I find that the hand-printed text is by
Wartinger. Barbara Cunningham also signed the minutes
under Wartinger’s signature (GCX 12b), but she writes in
script as is seen by her recording of Ann Hurler’s statement.
(4:727.)
In the block ‘‘Details Of Infraction’’ appears the following
handprinted text:
On several occasions Phil Wilson has harassed and
threatened fellow AutoZoners with harm. This type of
conduct will not be tolerated and is cause for S. Phil’s
termination.
In the next block, ‘‘Suggestions For Improvement,’’ ap-
pears, handprinted, ‘‘See attch statements.’’ Actually, it ap-
pears that, running out of space in the infraction block,
Wartinger printed the ‘‘See attch statements’’ on the next
line, the first line of the suggestions block, as a continuation
of the block for infraction details. The statements attached
have nothing to do with Wilson’s continued employment at
AutoZone, but relate directly to the basis for the asserted in-
fraction.
The text of Wartinger’s September 13 minutes (GCX 12b)
read:
On this date, Phil Wilson, was brought into Rick
Ferguson’s office. Rick Ferguson, Barbara Cunningham,
Phil Wilson and myself were in attendance. Rick told
Phil that several of his fellow AutoZoners had com-
plained of Phil harassing them and that he had threat-
ened them. Rick mentioned the incidents of[1] making
a paper knife and acting as if he was stabbing some-
one,[2] chasing Curtis w/ a handsaw and[3] having the
2x4 to hit David Bradberry.
Phil admitted to all 3 incidents, saying he chased
Curtis w/ the saw but did not intend to injure him. He
did have the 2x4 to hit David with, because David kept
bumping the hazardous waste barrels with his forklift
and it made Phil mad. And that he did make the paper
knife and stabbed at the Zoner (Ann) but he did none
of this maliciously.
Rick informed Phil that conduct of this type was un-
acceptable and that he was terminated effective imme-
diately.
Ferguson testified that he cited the three incidents of Wil-
son’s chasing Curtis Carrington with a handsaw, of planning
to hit David Bradberry with a piece of 2x4 lumber, and mak-
ing a cardboard knife and holding it to Ann Hurler’s throat.
Wilson, Ferguson testified, admitted the incidents, explaining
that he meant no harm. These admissions confirmed for Fer-
guson that his discharge recommendation was correct, and he
therefore fired Wilson for harassment based on these three
items plus the other incidents described by Ann Hurley.
(5:921–922, 955, 959.) Denying that Wilson was given no
opportunity to rebut additional incidents described in Hur-
ley’s statement, Ferguson explains that had Wilson denied
the cardboard knife incident then he, Ferguson, would have
asked about other incidents. In view of Wilson’s admission
about the cardboard knife, there was not need to go into
other details, for Wilson’s admitted conduct constituted har-
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
assment which Ferguson would not tolerate. (5:956–957,
959.)
Wilson asserts that he told the Ferguson group that
Carrington (who jokes a lot with Wilson) pushed Wilson as
the latter was cutting a box for Ann Hurley. Wilson, carrying
the handsaw, ‘‘walked real fast’’ (2:128, 188–189) to catch
up with Carrington. When he reached Carrington, Wilson
asked why Carrington had pushed him. Carrington explained
that he was only joking. Satisfied with the answer, Wilson
returned to his area. (2:128, 189.) Although Wilson, in his
pretrial affidavit, asserts that he had ‘‘chased’’ Carrington on
this occasion, at trial he testified that ‘‘chased’’ means about
the same as ‘‘walking fast.’’ (2:195–196.) Carrington testi-
fied that Wilson briefly ‘‘chased’’ him. (2:204.) Carrington
apparently passes it off as horseplay, although he observed
that it was the first time Wilson had ‘‘picked up something.’’
(2:204–205.)
Respecting the Bradberry incident, Wilson testified that he
told Ferguson he uses a 2x4 in this work to pry up boxes
that have fallen between racks. (2:130–131.) Although at trial
Wilson gives more details, he does not say that he reported
these additional details to Ferguson on September 13.
As for the cardboard knife matter, mentioned in my intro-
duction to this section, Wilson claims he told Ferguson that,
to kill spare time at work, he, as do employees in the core
section, throw cardboard cutouts at one another. From one of
these box flaps he carved a knife ‘‘and I showed it to Ann
Hurley’’ who said, ‘‘Oh, well.’’ ‘‘Nothing really happened,’’
Wilson explained. Employee Teomie Clay was present, Wil-
son testified. (2:128–129.) (Clay testified that she never saw
a knife, but that on one occasion Hurley jumped and said,
‘‘Teomi, make him stop.’’ Clay and Hurley then both
laughed. 2:209, 223.) As I mentioned in the introduction, at
trial Wilson denies holding the cardboard knife to Hurley’s
throat. (2:130, 185.) However, in describing what he told
Ferguson at the September 13 meeting, Wilson recites only
what I have set forth above.
Turn now to what Ferguson had before him at the time of
his decision. As noted, Ferguson had before him the state-
ments of Debra Shue, Jeananne Cole, and (Hazel) Ann Hur-
ley. Cole and Hurley testified, but Shue did not. Because
Ferguson did not list any item from Shue’s statement as one
of the grounds for Wilson’s discharge, I shall omit Shue’s
statement. Although Ferguson testified that he talked with
Cole (2:107), he later corrected this to say that he had not.
(5:919.) He did meet with Hurley. (2:107; 5:919–920, 956.)
It is clear that Ferguson was strongly influenced by Hurley’s
report.
Before I quote the written statements of Cole and Hurley,
a brief clarification of Jeananne Cole’s status is necessary.
When Wilson arrived in 1991, his immediate supervisor was
Line Leader Cole (an admitted statutory supervisor) who in
turn reported to Advisor Timothy Schlichting. (2:148–149;
4:620, 740.) Around late spring or early summer 1993, Cole
took a maternity leave, returning from that leave about Au-
gust 2. (4:750, 757–758.) About 3 weeks into August, Cole
relinquished her line leader position, and became a defect co-
ordinator, because the overtime required in the line leader
position interfered with the time she needed to devote to her
young child. (4:740, 757–758.) When Cole signed a written
statement (GCX 12d) for Personnel Manager Wartinger on
August 31, she was no longer a line leader. (4:757, 758.)
Nevertheless, at the time of the events described in her Au-
gust 31 statement, she was a line leader. (4:759.)
Recall that in the second part of August the facility had
to be evacuated because of a telephoned bomb threat. A
week or so before giving her August 31 statement, Cole tes-
tified, employees Ann Hurley and Debra Shue informed Cole
that Phil Wilson had made statements that he would blow up
the DC. Thinking that Wilson perhaps could harm someone,
Cole, after several days, went to Personnel Manager
Wartinger. (4:749–750.) Cole made her statement to
Wartinger on August 31. (4:747.)
In her statement Cole describes four items respecting Wil-
son. At trial Cole describes the first three (handsaw; 2x4; cy-
anide; but not the fourth—Waco.) The text of Cole’s August
31 statement of 1-1/2 pages reads (GCX 12d):
On or about August 16, 1993, after lunch, Phil Wil-
son, Curtis Carrington, and Jeananne Cole were in the
4800 aisle. This is a statement of what happened.
I [was] coming down from lunch to check the area
to see how work was progressing. I was walking down
the aisle between 4800–4900. I saw Phil with a hand-
saw in his hand chasing Curtis Carrington acting like
he was going to cut him. I approached Phil and asked
him what he was doing. Phil said he was chasing Curtis
with [the] saw. He did not say why. I told Phil not to
do this that he might offend or hurt someone. I told
him to go back to his area. I asked Phil why he had
a saw in his hands. He told me he used it to cut core
boxes down so it would be easier to put merchandise
in.
On or about August 16 or 17, I came in to Phil’s
area. Phil told me he had gotten a 2x4 because David
Bradberry had moved a pallet and almost hit Phil with
the pallet. He said he had gotten the 2x4 so next time
David almost hit him, he could knock David off the
forklift with the 2x4. He appeared very upset and
angry. David Bradberry and Keith Henderson had
warned me prior to going into Phil’s area that he was
angry about the incident.
On or about March/April 93, Phil had a big bag of
candy passing it out to everyone in the section. After
I had put some in my mouth, Phil stated ‘‘he could
have laced the candy with cyanide.’’ I assumed he
meant he could have hurt people in the section by
doing this. It made me so wary of Phil that I won’t eat
any of the candy he has offered since.
During the [spring 1993] Waco, Texas Massacre,
Phil mentioned many times how he was excited about
it and how he couldn’t wait to get home to watch it on
Oprah, the news etc.
Ann Hurley gave her four-and-a-half page statement (GCX
12f) on September 9. Assistant DC Manager Cunningham
served as the amanuensis. (4:727, 732.) The day after the
bomb threat, Hurley testified, Cunningham, also serving as
Hurley’s supervisor, approached her about the rumors con-
cerning Phil Wilson. (4:722, 726.) Initially uncertain as to
how far she wanted the matter to progress, Hurley only told
Cunningham about some of the threats Wilson had been
making against her. (4:722–723.) No statement was taken at
that time. (4:724.) Some 2 or 3 weeks later Hurley was inter-
141AUTOZONE, INC.
viewed by Ferguson in the presence of Wartinger. (2:107;
4:724–726; 5:919.) At the conclusion of that interview Hur-
ley asked to speak with Cunningham alone. Either that same
day, or later, Hurley met alone with Cunningham and gave
her statement of September 9. (4:726–727.)
Before I quote the text of Hurley’s statement, some back-
ground is necessary. During the relevant time Hurley and
Wilson worked in the credit returns department. (4:612, 707.)
Hurley would sort damaged products and place them in
boxes for return to the vendors. A conveyor belt separated
her work area from Wilson’s primary work area. (4:708.)
Employee Teomie Clay worked nearby, in the same depart-
ment, at a computer. (2:208; 4:713.) In her September 9
statement Hurley describes certain threats by Wilson against
her, her husband, and her young daughter. Her husband is
Line Leader Marshall Hurley. (4:708–709.) Her daughter’s
name is Allison (4:711), not the ‘‘Alician’’ as spelled in her
September 9 statement. Hurley testified that daughter Allison
was born in February 1992. (4:711, 737.) Allison, therefore,
would have been about 18 months in August 1993. Hurley
apparently worked in the receiving department before taking
her maternity leave. After her maternity leave Hurley first
went to receiving, but about September or October 1992 she
was transferred to the credit returns department where she
first met Wilson. (4:734–735.) Hurley’s September 9 state-
ment reads (GCX 12f):
Phil Wilson has been making remarks to me for
many months. Remarks that started to concern me,
making them over and over. As in, saying I’m going
to kill Marshall, he’s going to take Alician, also asking
how Alician’s doing each day and he’s Alician’s god-
father and he’s going to take Alician this weekend and
they couldn’t stop him. That he was going to kill Mar-
shall and take Alician since he was the godfather and
had visitation rights. [Hurley denies that Wilson is the
child’s godfather, 4:712, and at trial Wilson makes no
such claim of godfather status.]
Phil also said he was going to make another Waco,
Texas in our warehouse and blow up the place making
sure me & Marshall was in here, and he was going to
get Alician. I asked Phil how he knew where Alician
was and he said ‘‘wouldn’t you like to know; I know
a lot of things, so watch out.’’
On August 24, 1993 Phil said when he had a child,
it was going to be a boy. He would name him Jason,
and send him after my child and he (the boy) would
take care of her. After Phil said that he started making
weird noises, laughing like he was crazy and said to
me, ‘‘Welcome to Phil’s world—This is the Real
World,’’ saying it real wild.
Phil and I were working in damages. Phil was run-
ning the computer, and I was taking the merchandise
off the belt and putting [it] on the cart. Phil had a part
that didn’t have a number so I went to get it for him
and as I was coming back down Phil was holding the
scanner pointing it at me saying he was zapping me. He
put the gun down and as I was going toward the rack
Phil was starting to come towards me., leaning forward
and making strange noises and I told Phil to stop it. I
walked back as far as I could go and I was up against
the rack where the boxes are. I turned my head because
Phil was right up against me and I could feel his breath
on my face. I felt Phil do something with his hand. I
know he reached down like searching in his pockets
and the next thing I know I felt something under my
chin and for a brief moment I thought it was a knife,
but I was not sure. Phil said, ‘‘Do you think I won’t?
You just try me if you think I won’t!’’ He was saying
this right in my face. I could still feel his breath on my
right cheek. He started laughing crazy. I told him I was
going to the bathroom and I left the aisle. He said he
would take care of things while I was gone, in a very
strong determined voice while he was talking through
his clenched teeth.
I kept thinking to myself I need to make sure that’s
what Phil had (a knife.) So I went back to my station
and started working again. There was a box taped up
and Phil couldn’t find any paperwork, so I looked for
paperwork and then told Phil it could be inside the box.
I reached for my safety cutter and it was not in my
apron. I started to reach for Teomie’s cutter and quickly
thought I should ask Phil if he had something to open
it with. Phil reached into his pocket. Opened the knife
and cut open the box. As he was closing his pocket
knife he had [a] smart smirk on his face. And then [he]
turned around and went on with his business.
The Thursday before [August 19], Phil made card-
board knives (out of a box) and came up from behind
me and stuck it under my throat, saying ‘‘See how easy
it would be to cut your throat.’’ I told Phil to stop.
Teomie told Phil he was crazy and stop and leave her
alone. After this, he went back to his cart. Then a cou-
ple [of] minutes later he came back and put the card-
board knife in my stomach and said, ‘‘I’ll cut your
baby.’’ I told Phil to stop and quit. Then Teomie yelled
at Phil furiously. He came back again reaching under
the belt acting as if he was cutting my legs. He said,
‘‘I’m going to cut your legs off.’’ I told Phil again to
please stop. And Teomie went over and yelled at Phil
again.
Beginning about late December 1992, Hurley testified,
Wilson began expressing an interest in Allison, such as ask-
ing about her. (4:737–738.) Eventually the expressions turned
to threats of kidnapping Allison from the sitter and of killing
Marshall Hurley. By April/May 1993 Wilson made these
threats on a daily basis. (4:710–711, 731, 734.) There is sub-
stantial evidence that some of the employees in the depart-
ment, along with employees in the Core department, would
engage in horseplay. (cores are from alternators, starters, and
master cylinders. 2:117, 133.) Wilson describes how he and
employees from the core line, in the dock area, would throw
boxes or sail pieces of cardboard at each other. (2:133–134.)
They would do this when the supervisors were not looking.
(2:135.) If a supervisor did see it, the employee or employees
would be told to stop, but no disciplinary penalty would be
imposed. (2:135, 191.) Some confirmation of this exists in
former Line Leader Jeananne Cole’s statement, quoted
above, about the handsaw incident (Wilson chasing Curtis
Carrington) and the 2x4 incident (although Cole’s description
there is of an angry Wilson planning to knock David
Bradberry off his forklift with a 2x4.) Other than putting a
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stop to the incidents, Cole neither formalized her cautions to
the employees nor informed management of the incidents.
Wilson, at least, was well known by several employees as
a person who joked a lot and engaged in horseplay. As Cole
describes, however, until the handsaw and 2x4 incidents,
jokes and horseplay by Wilson and others had been verbal,
not physical. (4:755–756.) Even Curtis Carrington, who
passes off the handsaw matter as some momentary horseplay
by Wilson (2:204, 205), admits that it was the first time Wil-
son had ever ‘‘picked up something.’’ (2:205.)
Hurley insists that she seldom joked with Wilson, and
even then it would be about such things as a ball game.
(4:729.) Teomi Clay tells a different story, describing inci-
dents where Hurley would laugh about Wilson’s horseplay
(2:209, 210, 218–219) and, for example, when he would
‘‘zap’’ her with the scanner gun. (2:209, 210, 218–219, 223.)
Clay, who admits that she thinks Wilson was wrongly fired
(2:216–217), eventually concedes that by August Hurley was
expressing concern about Wilson’s remarks about her daugh-
ter, although, in Clay’s opinion, Hurley did not get serious
until after meeting with Ferguson in August. (2:215–217,
223–224.) Hurley testified that about 90 percent of the time
Wilson’s threats to her would be when no one else was
around. (4:713.) Clay did not testify persuasively, whereas
Hurley did.
Neither party called David Bradberry to testify. Cole testi-
fied that when she asked Wilson about the incident he
showed her the 2x4 on this work desk and stated that the
next time Bradberry almost hit him with a pallet Wilson was
going to knock Bradberry off the forklift with the 2x4. Cole
told Wilson to calm down, that she would talk to Bradberry.
Cole spoke to Bradberry and told him to be more careful.
(4:744–745–746.) Cole did not formalize her caution to Wil-
son on the handsaw incident, and she did not discipline ei-
ther Wilson or Bradberry or report (until her August 31 state-
ment) that incident to management. (4:745–746, 752.) Al-
though Cole never spoke to Carrington (4:752), Cole person-
ally observed Wilson chasing Carrington with the saw.
(4:741.)
In confirming the cyanide incident, Cole explains that she
was pregnant at the time and Wilson’s remark upset her.
(4:750.) Although Cole, in her August 31 written statement,
assumes that Wilson meant he could have hurt employees in
the section by lacing the candy with cyanide, Cole testified
that she did not report the cyanide incident to management,
until August 31, because she was not sure Wilson had told
anyone else in the section, and she saw no need to report a
remark made only to her. (4:751.) Wilson denies making the
cyanide remark. (2:187.)
Ferguson testified that before his decision he read the
statements of Cole, Hurley, and Shue. He testified that he
was motivated to recommend Wilson’s discharge based on
the reports of management, the information he received from
Ann Hurley, and the Curtis Carrington (handsaw) and David
Bradberry (2x4) incidents. (5:918–921, 954–955.) Ferguson
did not list the cyanide remark to Cole. Wilson’s union sym-
pathies were not a factor, Ferguson testified. (5:922–923.)
Teomi Clay testified that Assistant DC Manager
Cunningham spoke to her in the returns area about 2 to 3
weeks before Wilson was fired. Cunningham asked if Wilson
had said anything about a bomb threat. Clay said no, but that
Wilson had said the chemicals he was mixing [as part of his
job] ‘‘could be a bomb.’’ (2:212.) At trial Clay testified that
she had heard Wilson say that only once. (2:214.) A few
days after her conversation with Cunningham, and still be-
fore Wilson’s discharge, Wartinger and Cunningham inter-
viewed Clay in the personnel office. Cunningham asked if
Clay knew anything about Wilson’s harassing anyone. Clay
answered no. When Cunningham said she was more con-
cerned about the knife incident, Clay replied that she had not
seen it. All she saw, Clay told them, was that Ann Hurley
jumped, calling out, ‘‘Teomi, make him stop,’’ following
which both Hurley and Clay laughed. After Wartinger and
Cunningham looked at each other, Cunningham told Clay,
‘‘That’s all we wanted,’’ and the interview ended. Appar-
ently no written statement was secured from Clay. (2:209.)
Wilson denies ever using the word ‘‘bomb’’ in relation to
the chemicals at work (2:174–175), and he denies ever teas-
ing Hurley (2:184.) He asserts that he told Cole he was not
threatening Carrington with the handsaw. (2:130, 190.) He
denies telling anyone that he planned to hit Bradberry with
the 2x4. (2:181.) When Cole asked what he was doing with
the 2x4 in his area, Wilson explained (apparently) that he
used it to raise pallets that had fallen between the racks. Cole
did not tell him to dispose of the 2x4. Wilson asserts that
he was upset when Bradberry, driving a forklift on this occa-
sion in August, hit a pallet stacked with merchandise, almost
pushing the pallet into Wilson. Bradberry then laughed. Wil-
son claims, however, that he was not ‘‘extremely’’ upset and
that he took no action other than to tell Bradberry not to do
it again. (2:131, 177–184.)
c. Discussion
Crediting DC Manager Ferguson, Jeananne Cole, and Ann
Hurley, and disbelieving S. Phillip Wilson, I find that the
General Counsel has failed to establish, prima facie, that a
motivating reason for AutoZone’s discharge of Wilson was
his activities on behalf of the Union. I therefore shall dismiss
complaint paragraph 12.
Although Teomie Clay generally supports Wilson, she
concedes she never saw a cardboard knife, yet Wilson admits
that he ‘‘showed’’ one to Hurley. I credit Hurley that 90 per-
cent of the time no one was around when Wilson made his
threats. I also find that Clay observed more than what she
admits seeing. What had started as an apparently innocent in-
terest by Wilson in Hurley’s family developed into some
kind of morbid fixation by Wilson resulting in his psycho-
logical bullying and terrorizing of Hurley. As Hurley de-
scribes it, Wilson began acting ‘‘weird’’ and ‘‘not normal.’’
(4:738.) Other than discussing the matter with her husband,
Hurley did not report the threats to management out of fear
it could provoke Wilson. She endured the threats in order to
protect her daughter. (4:717, 733–734.) Whether most would
have reacted as did Hurley is debatable, but I credit Hurley.
In doing so I recognize that at work she may have joined
the banter more than she allows, at least before matters be-
came serious. Nevertheless, I find that Hurley eventually be-
came seriously concerned, finally reporting the matter when,
during the investigation initiated by management after the
bomb threat in August, management interviewed Hurley.
In any event, it is clear that Ferguson had before him re-
ports alleging serious misconduct by Wilson. Although Fer-
guson did not personally interview Jeananne Cole, he read
her statement of August 31. He likewise read Hurley’s Sep-
143AUTOZONE, INC.
tember 9 statement and personally interviewed her. It is clear
that Hurley’s statement, and the personal report she made to
him, figured heavily in Ferguson’s decision to recommend
Wilson’s discharge—a recommendation accepted by Vice
President Roberts. Consistent with AutoZone’s past practice,
at least at Greenville, Wilson was not confronted until his
discharge interview. At that interview Wilson, I find, admit-
ted the three incidents but asserted he had meant no harm
by his conduct. (Had he denied them Ferguson would have
cited some of the additional incidents.) But what was a (mor-
bid) joke to Wilson was no laughing matter to Ferguson or
to AutoZone, and Ferguson fired Wilson. Crediting Ferguson,
I find that Wilson’s union activities were not a motivating
reason for Wilson’s discharge. Accordingly, I shall dismiss
complaint paragraph 12.
IV. THE UNION’S OBJECTIONS
A. Introduction
As I mentioned in the Overview section of this decision,
the Regional Director assigned for hearing Union Objections
1–3, 5–8, 11, and 14. For the most part these nine objections
parallel allegations in the complaint, and on brief the Union
generally relies on the evidence submitted in support of the
complaint allegations as also sustaining its objections.
B. The Objections
1. Objection 1
This objection attacks the February 19 speech of CEO
J. R. Hyde III as threatening plant closure and loss of jobs.
Having found merit to complaint paragraphs 8(j) and 8(k), I
also find merit to Objection 1.
2. Objection 2
This objection alleges that during the critical period
AutoZone hired more than 30 replacement employees, as-
signed 50 additional managers, and advertised in local news-
papers for new warehouse employees. Supervisors threatened
employees that the new employees were hired to replace cur-
rent employees who supported the Union and would perma-
nently replace current employees if the Union were selected
as the bargaining agent. On brief the Union’s entire one-sen-
tence presentation cites the evidence presented in support of
complaint paragraph 8(i), particularly the testimony of em-
ployee Karen Holcombe at 3:411. As discussed earlier, find-
ing Holcombe’s testimony unreliable, I dismissed complaint
paragraph 8(i.) In the face of testimony by DC Manager Fer-
guson showing that the newspaper advertisements (such as
CPX 9) and additional hires (some being hired after the elec-
tion) were not unusual (3:520–522), the Union apparently has
abandoned this position of its objection. Finally, the Union
fails to cite any evidence about 50 managers. The record
shows that some managers were brought in for training and
to assist during the campaign. The Union fails to articulate
anything objectionable in this. I shall recommend that Objec-
tion 2 be overruled.
3. Objection 3
This objection alleges that AutoZone distributed literature
to employees and gave captive audience speeches threatening
employees with strikes and loss of jobs if the Union were
selected. Respecting the literature, the Union relies, appar-
ently, on a February 16, 1993 letter (CPX 8) to employees
from Vice President Roberts. For the captive audience
speeches, the Union, on brief, fails to cite any complaint al-
legation or evidence on which it relies. At trial the Union,
during its case in chief, asked Ferguson about remarks by
Roberts made following the January 22 captive audience
speech. In these taperecorded remarks (CPX 1 at 29–30;
3:504–507), Roberts, answering questions by employee Les
Hayes, states that if no contract is reached in bargaining
there are repercussions, such as a strike, which hurt every-
body.
Similarly, at trial the Union focused on statements by Fer-
guson and Roberts at the February 1 captive audience
speech. (CPX 7; 3:507–514.) At page 14 of that joint 28-
page speech Ferguson refers to ‘‘button wearers’’ and asks
whether they are ‘‘really the type of people you want run-
ning the union’s show in here if the Teamsters are somehow
able to dupe enough AutoZoners to vote for them and to get
in here?’’ Continuing, Ferguson rhetorically asks
Are they the kind of leaders you want to entrust your
jobs and your futures to? Are they the people you want
speaking for you? You can keep yourselves free of their
control and the control of the International by voting
NO!
At page 15 of the February 21 speech Roberts, discussing
strikes, states, in part:
The main reason we are opposed to the Teamsters get-
ting in here is because this union means strikes. Our
own management has fought its way through Team-
sters’ strikes time and time again. In every case, the
strikers lost everything, and the company was hurt too.
The only people not hurt were the outside Teamsters
organizers.
That leads to the February 16 letter which the Union also
cited at trial. (3:515–516, 534–535.) The letter describes
AutoZone’s personal experience in dealing with the Team-
sters. The text of Roberts’ letter, addressed individually to
employees, reads (CPX 8):
As you know, AutoZone is a totally non-union com-
pany, and it has been that way since its found[ing] thir-
teen years ago. But don’t let that fact lead you to be-
lieve that we are ‘‘babes in the woods’’ when it comes
to dealing with the Teamsters. When I and lots of other
members of your management team—including Peter
Formanek, Tom Hanemann, Ken Jones and John Wil-
liams—were with AutoZone’s former parent company,
Malone & Hyde, we had plenty experience dealing with
the Teamsters. Unfortunately, that experience turned out
to be disastrous for hundreds of our employees.
Here is a recap of the history we had with the Teamsters:
Nashville—Shortly after we purchased this ware-
house, the Teamsters convinced the employees that they
could not trust our management to be fair to them, and
the employees voted for the Teamsters. As we were le-
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gally required to do, we bargained with the union and
eventually reached agreement on a contract. Things
went reasonably well for a short while, but then one of
the Teamsters’ stewards got upset with us over the dis-
charge of one of his buddies, and pulled the 185 em-
ployees out on an illegal strike in violation of the con-
tract. We did not wait around to see what would hap-
pen next; we fired every striker and hired new employ-
ees to take their place. We never missed an order or a
shipment, and the 185 fired strikers never got their jobs
back.
Memphis—The Teamsters got into our hometown
warehouse longer ago than anyone can remember—at
least 50 years ago. These employees also thought that
they needed the Teamsters to have job security and that
they had nothing to lose by having the Teamsters as
their representative. Unfortunately, they found out the
hard way that having the Teamsters is no guarantee of
real job security. These employees, just like the ones in
Nashville, walked out on an illegal wildcat strike. We
fired all of them, too, and hired new employees to fill
their jobs. We never missed and order or a shipment,
and the fired strikers never worked for us again.
Sikeston, MO—The employees at our Sikeston ware-
house were also represented by the Teamsters. Unfortu-
nately, the Teamsters called the employees out on strike
to try to force their contract demands on us. The strike
did not work, however, because we never gave in to the
Teamsters’ demands; we never missed an order or a
shipment; and we replaced all of the strikers with new
employees. To this day, those replaced strikers have
never returned to work at the warehouse.
All of these stories had one thing in common—the
Teamsters Union! And, unfortunately, all of those sto-
ries had one common result: strikes which ended up
being disastrous for the employees involved. By the
way, each of these stories had the same final out-
come—the Teamsters Union was eventually kicked out,
and all of these warehouses are now now-union.
It seems pretty clear that the Teamsters’ record of
dealing with your management team has not been very
good. Whatever the reasons for this, we just haven’t
had good experiences when our employees have de-
cided to turn their working lives and their futures over
to this union. Maybe the reason for this is that we have
taken a non-nonsense business approach to unions and
that we have never let the Teamsters Union run our
business. We run AutoZone today, and we will run it
after March 5, no matter what the results of the election
are.
Some of you in the group meetings have asked why
we have taken such a strong stand on this issue and
why we have insisted that we don’t think it would be
the best thing for you to bring the Teamsters in here.
Well, now I hope you understand the reasons. The peo-
ple who were hurt the worst by the strikes in Memphis,
Nashville and Sikeston weren’t the management team,
but the employees. We do not want to take a chance
on the same kind of strike happening at the Greenville
D.C. or anywhere else for that matter. We want to be
free from union problems like the ones the Teamsters
have caused for employees we have worked with in the
past. We do not want to take a chance on this union
doing to you and to us the same thing they did to us
and to our employees in Nashville, Memphis and
Sikeston. Remember, the only was you can guarantee
that you will never get caught up in a Teamsters Union
strike or other Teamsters’ trouble is by voting NO on
March 5.
These February 1 (speech) and February 16 (letter) re-
marks merely describe AutoZone’s experience with the
Teamsters. Finding nothing objectionable in AutoZone’s re-
porting that experience to its Greenville employees for their
edification, I shall recommend that the Board overrule Objec-
tion 3.
4. Objection 5
In this objection the Union alleges that, in captive audi-
ence meetings, that AutoZone was withholding a scheduled
wage increase because the Union, supported by employees,
filed the representation petition. On brief, the Union relies on
the evidence adduced in support of complaint paragraphs
8(b) and (c) (which I dismissed), 8(f) (merit, respecting Rob-
erts’ January 22 speech), 8(h), (i), and (r) (all three dis-
missed), and 9 (merit respecting the 8(a)(3) allegation on the
pay increase). Because I found merit to complaint paragraphs
8(f) and 9, I shall recommend that the Board sustain this ob-
jection.
5. Objection 6
This objection alleges that AutoZone discriminated against
union activists by placing them on more onerous work
schedules and changing job assignments solely because of
their visible and known support for the Union, denying these
union activists the ability to attend employee seminar ses-
sions on paid time unless they disavowed support for the
Union. Once a known union activist verbally disavowed his
or her support for the Union, AutoZone permitted their at-
tendance at such paid seminars with other employees. On
brief the Union relies on complaint paragraph 8(l) (which I
dismissed) ‘‘and the testimony of employee Stanley Phillip
Wilson at Transcript pages 124 to 125.’’
First, recall that beginning the week of February 1
AutoZone excluded from its meetings those employees who
had a fixed opinion on the union issue. (5:925, 974, 979.)
Respecting a discriminatory exclusion of union activists,
there is no evidence that AutoZone required activists to dis-
avow support for the Union, and DC Manager Ferguson de-
nies knowledge that any supervisor ever said it. (5:928.) Fer-
guson also testified that union supporters were permitted to
attend if they merely said they wanted information to deter-
mine whether their decision to support the Union was cor-
rect. (3:525, 528–529.) This also is consistent with Advisor
Timothy Schlichting’s report to Phillip Wilson when Wilson,
as I described earlier, asked why he could not attend the
meetings. Thus, on February 15 Schlichting informed Wilson
that Ferguson said Wilson could not attend because his mind
was not open. (2:125–126, 168.) Wilson makes clear that his
opinion was fixed. (2:151–152.) It is well settled that both
unions and employers may exclude opponents from their
meetings. Teamsters Local 856 (Holiday Inn), 302 NLRB
572 (1991); Luxuray of New York, 185 NLRB 100 fn. 1
(1970.)
145AUTOZONE, INC.
Second, the only ‘‘onerous’’ aspect is that Wilson also had
to cover the job of an employee called to the meetings, but
this happened only for 1 hour per week in 4 separate weeks.
(5:926, 929, 981–982.) That hardly rises to the level of ob-
jectionable conduct. I shall recommend that Objection 6 be
overruled.
6. Objection 7
By this objection the Union complains that AutoZone’s su-
pervisors and managers threatened union activists with loss
of their jobs and coercively interrogated union activists be-
cause of their support for the Union. In support of the objec-
tion, the Union relies on complaint paragraphs 8(d), (h), (i)
(all three dismissed) and 8(j) and (k), the Hyde speech re-
specting which I found merit. Based on my findings respect-
ing CEO Hyde’s February 19 speech, I shall recommend that
the Board sustain Objection 7.
7. Objection 8
This objection alleges that AutoZone solicited employee
grievances and promised remedies and benefits. On brief the
Union relies on complaint paragraphs 8(c) and (r) (I dis-
missed both) and paragraph 9 (merit found to 8(a)(3) allega-
tion on withholding scheduled pay raise). As the withholding
of the pay raise does not promise a benefit, and paragraphs
8(c) and (r) are being dismissed, I shall recommend that the
Board overrule this objection.
8. Objection 11
This objection alleges that AutoZone permitted employees
to circulate antiunion petitions during worktime and gave
other material support to antiunion employee while verbally
reprimanding union activists for speaking to employees at
work and while removing union literature from bulletin
boards where general employee communications are nor-
mally permitted. On brief the Union relies on complaint
paragraphs 8(d), (g), (n), and (o) (merit found to each). I
shall recommend that the Board sustain this objection.
9. Objection 14
In this ‘‘catch-all’’ objection the Union alleges ‘‘other’’
coercive conduct during the critical period. On brief the
Union relies on a statement by Marty Nelson that, after a
union loss in the election, she and the other (open) union
supporters ‘‘would be considered anticompany.’’ (1:54–55.)
Nelson, recall, is the assistant manager from San Antonio
who was at Greenville to train and to assist. (4:602–603.)
Nelson denies knowing Hanson (4:600) or having a con-
versation with any employee, other than James Andrews,
who was wearing union insignia. (4:600–601.) I credit Han-
son.
Hanson testified that Nelson had been working in the de-
partment for several days. He was assisting in pulling orders
on this occasion. (1:54, 58.) Hanson is certain Nelson was
aware of her union support. (1:56) Hanson had openly worn
union insignia, had handbilled for the Union, and was the
first of 32 employees named as members of the Union’s or-
ganizing committee in the Union’s February 1 letter (GCX
4) to Ferguson. Finally, on this occasion Hanson was wear-
ing her union pin. (1:54.) I find that Nelson knew Hanson
and knew that she was an open and vigorous supporter of
the Union. On this occasion, Hanson testified, Nelson asked
Hanson if she was on the Committee. Hanson replied yes. To
this Nelson asked, ‘‘Well, what do you think is going to hap-
pen when you lose the election?’’ [Recall, as I found, that
Nelson asked James Andrews the same question.] In a joking
(not ‘‘jerking’’ as the transcript reflects) fashion, Hanson re-
plied that AutoZone probably would ‘‘fire us all.’’ ‘‘No,’’
Nelson stated, but they ‘‘would be considered
antiCompany.’’ Hanson considers Nelson’s remark to be a
threat of future retaliation. (1:59.)
Although I credit Hanson rather than Nelson, I shall rec-
ommend that the Board overrule Objection 14. There is no
evidence other employees overheard Hanson’s remark or that
she told any employees about it. In view of the lopsided vote
(135 No, 57 Yes), it is clear that, even if Nelson’s remark
had frightened Hanson into voting No, a single No vote
would not have affected the results of the election. Thus,
Nelson’s remark, even if objectionable, was isolated and in-
significant. Gold Shield Security, 306 NLRB 20 (1992.)
C. Recommendations
Based on the foregoing, I recommend that the Board over-
rule Objections 2, 3, 8, and 14, that it sustain Objections 1,
5, 7, and 11, and that the Board set aside the March 5, 1993
election in Case 11–RC–5894 and direct that a second elec-
tion be conducted.
CONCLUSIONS OF LAW
1. By engaging in various acts, from January 20, 1993
through mid-February 1993, constituting interference, re-
straint, and coercion of its employees, Respondent AutoZone
has violated Section 8(a)(1) of the Act.
2. By freezing its pay adjustment process because the
Union filed a representation petition on January 7, 1993, in
Case 11–RC–5894, Respondent AutoZone has violated Sec-
tion 8(a)(3) and (1) of the Act.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
AutoZone artificially interrupted its processing of the wage
adjustment process for its Greenville, South Carolina dis-
tribution center, while continuing with it for its other dis-
tribution centers, because on January 7, 1993, the Union filed
a representation petition in Case 11–RC–5894. As of the
time AutoZone ceased its wage adjustment process for its
Greenville facility, the preliminary indication was that a
weighted increase would exceed 5 percent at Greenville.
AutoZone must be ordered to complete its wage adjustment
process, as if the Union had not appeared on the scene, and
implement whatever wage increase is, in good faith, ap-
proved, retroactive to January 3, 1993—the date it would
have been effective had one been implemented at Greenville.
(4:842–843.) Atlantic Forest Products, 282 NLRB 855, 859
fn. 21 (1987); Otis Hospital, 222 NLRB 402, 405 (1976.)
The money due shall be computed at the compliance stage.
Interest, likewise computed at the compliance stage, shall be
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The backpay so computed
shall be due to all eligible employees, including any eligible
employees who have since left AutoZone’s employment.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Autozone, Inc., Greenville, South Caro-
lina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Removing prounion literature from canteen bulletin
boards while leaving posted anitunion literature.
(b) Imposing a gag order on all working-time talk about
unions (supporting or opposing) while permitting employees
to discuss other nonwork topics during working time.
(c) Threatening employees with closure of the Greenville,
South Carolina facility if they select the Teamsters Union as
their bargaining representative.
(d) Threatening employees with loss of jobs if they select
the Teamsters Union as their collective-bargaining represent-
ative.
(e) Telling employees that a pay raise is being withheld
because the Teamsters Union filed a representation petition.
(f) Freezing the wage adjustment process because a labor
organization has filed a petition to represent employees for
the purposes of collective bargaining.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Complete the wage adjustment process for the distribu-
tion center at Greenville, South Carolina, which process was
frozen at Vice President Dennis Roberts’ level in early Janu-
ary 1993 on the filing of the petition in Case 11–RC–5894,
and implement the pay increase there effective January 3,
1993, with interest.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Greenville, South Carolina facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that complaint paragraphs 8(a),
(b), (c), (e), (h), (i), (l), (m), (r), and 10, 11, and 12 are dis-
missed.
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 remove prounion literature from canteen
bulletin boards while leaving posted antiunion literature.
WE WILL NOT impose a gag order prohibiting, during
working time, all talk about unions (supporting or opposing)
while permitting employees to discuss other nonwork topics
during working time.
WE WILL NOT threaten you with closure of the Greenville,
South Carolina facility if you select the Teamsters Union as
your bargaining representative.
WE WILL NOT threaten you will loss of jobs if you select
the Teamsters Union as your collective-bargaining represent-
ative.
WE WILL NOT tell you that a pay raise is being withheld
because the Teamsters Union filed a representation petition.
WE WILL NOT freeze the wage adjustment process because
a labor organization has filed a petition to represent employ-
ees for the purposes of collective bargaining.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL complete the wage adjustment process for the
distribution center at Greenville, South Carolina, and WE
WILL implement the pay raise retroactive, with interest, to
January 3, 1993 for all eligible employees, including eligible
employees who no longer work for AutoZone.
AUTOZONE, INC.