Brookshire Grocery Co.

National Labor Relations Board - Board Decisions

Feb 18, 1987

282 N.L.R.B. 1273 (N.L.R.B. 1987)

BROOKSHIRE GROCERY COMPANY 1273
Brookshire Grocery Company and General Drivers,
Warehousemen and Helpers , Local Union 745,
affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 16-CA-12370
18 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 March 1986 Administrative Law Judge
Lawrence W. ' Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed a brief in support
of the decision and an exception and brief in sup-
port of the exception, and the Respondent filed an
answering brief in opposition to the General Coun-
sel's exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings,' and
conclusions and to adopt the recommended Order.
Contrary to our dissenting colleague, a prima
facie showing has been made that Evans' discharge
was in violation of the Act and the Respondent did
not adequately rebut this case. All the necessary
components of a prima facie case are present in-
cluding animus, as evidenced by the ongoing hostil-
ity of Hollis towards Evans. Upon becoming aware
of Evans' prounion sentiments, management, in the
person of Hollis, took immediate retaliatory action
against Evans and assigned him to an old, rough-
riding, substandard truck even though it knew he
had long-term back problems. On that same day,
employee David Nelson, who had been present
when Evans announced his union affiliation to
Hollis, was assigned to the return center and told if
he did not like his assignment, he was not needed
anymore.
Hollis continued to display animus towards
Evans when, in August, he commented to a group
of employees that it was too bad Evans had not
been in an accident that had occurred. Our dissent-
ing colleague finds this statement to be made in
jest. However, we find nothing in the record to in-
dicate Hollis was not serious in making his remark.
Management's motivation, also, may be inferred
from its hasty and unfounded discharge of Evans.
The information supplied on the medical claim
i In his decision, the judge stated that the charge in this case was filed
10 October 1985 The charge was actually filed 25 October 1985 This
inadvertent error has no impact on our decision
form submitted by Evans should have alerted man-
agement to the fact a mistake had been made:
clearly Evans had not been absent or disabled since
June as the form indicated. The fact that Evans, a
6-year employee, was summarily discharged with-
out adequate opportunity to explain the discrepan-
cies on the form leads to the conclusion that man-
agement, seized the opportunity to be rid of a
known union proponent. The cursory and ineffec-
tive nature of management's investigation of the
form makes the motive even clearer. Evans' per-
sonnel file was never examined to, determine his
medical condition; Dr. Bratcher (Evan's chiroprac-
tor and one of two doctors he was consulting) was
never contacted; and Evans was informed by
Adams that he really-did not care to hear Evans'
explanation. 2
In view of the foregoing and the record as a
whole, we agree with the judge's findings that the
General Counsel has made a prima facie showing
that Evans' discharge ,was discriminatorily motivat-
ed and that the Respondent's asserted reason for
the discharge was pretextual. Accordingly, we
adopt the judge's conclusion that the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging Evans.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Brookshire
Grocery Company , Tyler, Texas, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, and the administra-
tive law judge, I find that the General Counsel has
not made a prima facie showing' sufficient to sup-
port an inference that the Respondent discharged
employee Homer Evans because he engaged in
union or other protected concerted activity.
Evans, a truckdriver, was hired in 1979. In 1981
he sustained a back injury, for which he had been
treated and released. On 13 April 19851 he attend-
ed a union meeting and signed an authorization
card. After the meeting he "[talked] to the other,
drivers about what was going on."
When Evans reported for work on 31 May, he
discovered that the particular truck he had been
2 The conclusion that management sought to discharge Evans under
any pretext is, in Member Johansen's view, buttressed by the fact that
even after management contacted Dr. Bratcher and the discrepancies on
the claim form had been explained, management took no steps to correct
its erroneously based action
i All dates are in 1985 unless otherwise indicated
282 NLRB No. 166
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driving on a regular basis had been dispatched with
another driver. When Evans saw the truck he had
been assigned to drive, he became concerned about
hurting his back. -
When Evans reported for work the following
Tuesday, 4 June, he was notified that he was to see
the Respondent's transportation supervisor, ,David
Hollis, upon completion of, his delivery run that
day. According to Evans, "I notified David Nelson
[a fellow employee] that I would like to have him
there to be a witness, because I wanted to inform
Mr. Hollis that I was involved in union activities."
When Evans and Nelson entered Hollis' office,
Hollis told Nelson that "he wouldn't be needed in
there, and asked Nelson to leave. But Evans asked
Nelson to remain for a moment , because he wanted
Nelson to hear what he was going to say to Hollis.
Evans then "informed Mr. Hollis that I -was in-
volved in union activities ." Hollis again told
Nelson to leave, and he did so. Hollis then told
Evans that a dispatcher had complained about
Evans "throwing things around" in the dispatcher's
office. Hollis told Evans that from then on, or "for
the, duration ," Evans would be assigned to a differ-
ent truck, described by Evans as an "older" truck,
which had "a bad seat in it and also it rode ex-
tremely rough." Evans drove that truck on a 400-
mile round-trip journey that night. By the end of
this trip, Evans was experiencing back spasms and
pain.
The Respondent immediately replaced the seat in
Evans' truck with a new seat of good quality (al-
though, according to Evans, the new seat had no
lower back support to 'it). Evans testified that even
after the new seat was installed the truck continued
to ride rough , because the suspension was very
stiff.
Following Evans ' meeting with Hollis earlier
that day, Hollis told Evans' fellow employee David
Nelson that he would work in the return center
rather than drive a truck, and that if Nelson were
unwilling to do so, he would not be needed any-
more. About 4 hours later, Hollis rescinded his re-
assignment of Nelson, and returned him to his
duties as a truckdriver.
The next day, Evans visited his chiropractor, Dr.
Bratcher, who recommended to Evans that he take
off from work for a sufficient amount of time to
permit an improvement in his back condition. The
following day, at the Respondent's request, Evans
visited a clinic, where a physician prescribed medi-
cation and 48 hours' bed rest, after which Evans
could return to work. Evans followed the clinic
physician 's advice , and returned to work in about 3
days. However, after about 3 days of work, his
severe back pain returned , and he again visited his
chiropractor , Dr. Bratcher , who again recommend-
ed that Evans take off from work for a sufficient
time to permit his back condition to improve; Dr.
Bratcher also referred Evans to Dr. Collins, a neu-
rologist.
Evans notified Hollis that he was going to have
to put himself under his doctor's care for whatever
amount of time it took to become well again. The
Respondent asked Evans to return to the clinic and
obtain a referral to a physician for a second opin-
ion. Evans did so, and was , on 28 June , also seen
by Dr. Collins, who recommended that Evans
attend a "back school ." However , Evans and his
chiropractor, Dr. Bratcher, both felt that Evans
had recovered sufficiently to return to work.
About 8 July Evans notified Hollis that, as far as
Evans knew, the back school recommended by Dr.
Collins would take 2 or 3 weeks, and that Evans
felt well enough to return to work right away.
Thus , Evans returned to work in early July.
In August , several truckdrivers were engaged in
a conversation about an accident that one of them
had. Hollis overheard them and remarked that it
was too bad it could not have been Evans.
Evans worked from early July through early Oc-
tober , when his back problems resumed . He visited
his chiropractor, Dr. Bratcher , who again recom-
mended that Evans take off from work for a suffi-
cient time to permit improvement . Evans informed
the Respondent of his situation and of Dr.
Bratcher's recommendation . Director of Operations
Charles Adams requested Evans to submit ,a short-
term disability form . In doing so , Evans completed
the first page of the form , which asked, inter alia,
"When were you personally' examined by your
doctor?", to which Evans (believing this to be a re-
ferral to his chiropractor, Dr. Bratcher ) answered
"October 10, 1985." The second page of the short-
term disability form , "Examining Physician 's State-
ment" was completed by Dr' Collins on 14 Octo-
ber. Dr . Bratcher had suggested to Evans that Dr.
Collins fill out the examining physician statement
on page 2 of the disability form, since it was Dr.
Collins who had initially suggested that Evans
attend back school.
Kathy Bridges, a clerical employee of Dr. Col-
lins, assisted in the preparation of the examining
physician statement. She asked Evans "something
to the effect of, how long have you been off
work?" She understood Evans to say "something
to the effect that he had been off since the acci-
dent." Therefore, Bridges entered on the form that
Evans had been continuously disabled from the
time he was first seen by Dr. Collins on 28 June
through ' the present (i.e., 14 October), and that it
was undetermined when Evans would be able to
BROOKSHIRE GROCERY COMPANY 1275
return to work . Ultimately , the form signed by Dr.
Collins stated that Evans was suffering from work-
related "mechanical lower back syndrome"; that
Evans should attend "b"ack school"; that Collins
had first seen Evans on 28 June ; that Evans had
been continuously disabled , unable to work since
28 June (this statement was erroneous , since the
record establishes that Evans had actually been
working continuously since early July); and that it
was undetermined when Evans would be able to
return to work. -
Although Evans personally took the short-term
disability form to the Respondent's personnel de-
partment , he never read page 2, which, as seen, er-
roneously stated that Evans had been , continuously
disabled and ' unable to work since June.
Evans' short-term disability form went to one of
the Respondent 's personnel clerks , Debra Spradlin,
for processing . She first noticed that Dr. Collins'
signature on' page 2 of the form was not dated. She
also noticed that on page 1 of the form , Evans had
stated that he had seen his doctor on 10 October,
while on page 2 of the form , the only doctor's visit
shown was on 28 June. Spradlin was not aware, of
course , that Evans' statement on page 1 that he had
seen his doctor on 10 October was a reference by
Evans to Dr. Bratcher, and not to Dr . Collins. In
any event , Spradlin called ' Dr. Collins' office in
order to verify that Evans had seen him on 10 Oc-
tober, as page 1 of the form indicated . She spoke
with Bridges , who told Spradlin that Evans had
not been to see Dr . Collins on 10 October , and that
the only day that Dr. Collins had seen Evans was
28 June. Spradlin told Bridges "something to the
effect, well, we have had a lot of trouble with this
man and that he has been involved in a lawsuit."
Spradlin went on to ask Bridges whether Evans'
attendance at the back school recommended by Dr.
Collins would require Evans to be 'off from work.
Bridges replied that she did not think that it would
require more than 2 days off from work.
Spradlin showed Evans ' form to her supervisor,
who agreed with Spradlin that the Respondent
could not make any disability payments to Evans
until the form was correctly and completely filled
out. Later that day or the next , Spradlin brought
the matter to the attention of Transportation Man-
ager Greg Nordyke, informing him that Evans' dis-
ability payments could not be paid , because Evans
had not seen a doctor . As it appeared to Spradlin,
Evans' statement on page , 1 of the form that he had
seen his doctor on 10 October had been contradict-
ed by Bridges' statement that Evans had not seen
Dr. Collins since 28 June. Spradlin informed Nor-
dyke of her conversation with Bridges.
Soon thereafter, Nordyke visited Dr. Collins at
his office. Collins told Nordyke that he had seen
Evans in June and had recommended at that time-
that Evans attend back school, but that he had not
seen Evans on 10 October.
Nordyke discussed this situation with Director of
Operations Adams on 18 October. According to
Nordyke:
We decided that there didn't seem to be any
doubt that this fell directly under the item in
our policy manual which says falsification of
documents, . . We decided that we really
had no choice. The policy, manual says, first of-
fense is dismissal, and all of our investigation
showed that is what had been done, so we de-
cided that we had no choice' but to terminate
him.
Nordyke testified that Dr. Bratcher's name never
came up during his investigation of the discrepancy
between the dates of doctors' visits on pages 1 and
2 of Evans' short-term disability form, and that he
had no knowledge or reason to believe that an-
other doctor had been involved in counseling
Evans regarding his back problem. Adams cor-
roborated Nordyke's testimony in this regard: that
it appeared' that Evans had falsified his short-term
disability form, by claiming to have been seen by
Dr. Collins on 10 October, and that company
policy mandates automatic dismissal for such an of-
fense . In this latter regard, Adams testified that an
employee had been discharged in 1980 for falsify-
ing the date of his emergency treatment at a local
hospital; the employee's termination report was en-
tered into evidence.
The following Monday, 21 October, Evans was
summoned to meet with Adams and Nordyke. Ac-
cording to Evans' credited testimony, Nordyke
told him that the information on the short form
was "inadequate," that Nordyke had checked with
Dr. Collins and discovered that Evans had not
been seen by Dr. Collins since 28 June, and that
"this was falsifying and grounds for firing me
anyway." Evans asked Nordyke, whether he was
fired, and Nordyke said yes. Evans told Nordyke
he had "been expecting this but not this way."
Evans did not elaborate to Nordyke or in his testi-
mony at the instant hearing on why he had been
expecting to be discharged. Evans asked Nordyke
if he could see the form in question. Nordyke
"pulled it back, wouldn't let me." Evans then
walked to the back of Nordyke where he could see
the form and the specific question at issue: "When
were you personally examined by your physician?"
Evans told Nordyke, "This [i.e., 10 October] is a
fact; I was examined by my doctor; that is not
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
false; that was my doctor." Evans then looked at
Adams and asked, "But you don't care about that,
do you?", to which Adams replied, "No." While
Evans, Nordyke, and Adams then discussed Evans'
removal of his personal belongings from his truck
and leaving the premises, there was no further con-
versation about the discharge.
Nordyke testified without contradiction that
during the above-described termination interview
Evans did not say that he had another doctor who
had approved Evans' absence from work, and also
that Evans never mentioned Dr. Bratcher's name.
The Charging Party filed its unfair labor practice
charge in this case on 25 October. During the sub-
sequent investigation of the charge by the General
Counsel, Nordyke first became aware of Dr.
Bratcher's involvement in Evans' treatment. Nor-
dyke spoke with Dr. Bratcher in November, and
learned that the latter had recommended time off
for Evans. Nevertheless, Nordyke was still of the
view that Evans had falsified his short-term disabil-
ity form as discussed above, and he chose not to
reconsider his handling of this matter.
The judge found that the General Counsel estab-
lished a prima facie case that the Respondent dis-
charged Evans because of Evans' "support of the
Union." I disagree.
The credited evidence shows that Evans attend-
ed a union meeting on 13 April, signed "a card,."
and thereafter spoke with other employees "about
what was going on." That constitutes the sum total
of Evans' self-proclaimed "involvement in union
activities." It was not until 2 months later that Re-
spondent was even made aware-by Evans him-
self-that Evans had any involvement in union ac-
tivities. On 4 June Evans told Hollis, without any
elaboration whatsoever, that he was "involved in
union activities."2 It was not until an additional 4
months had passed that Evans was discharged for
what the Respondent maintained was a falsification
of his short-term disability form. During the entire
6-month period preceding Evans' discharge, he en-
gaged in one incident of union activity: he attended
a meeting and signed a card 6 months before his
discharge. Even this limited foray into organiza-
tional activity would not have come to the Re-
spondent's attention had ' not Evans himself blurted
it out to Hollis in what the record clearly shows
was a last-second desperate attempt by Evans to in-
sulate himself from what he feared would be disci-
pline for his misconduct in the dispatcher's office a
few nights earlier.
2 Thus, the judge 's findings that Evans had spoken to other employees
"on behalf of the Union" and that Evans told Hollis that he "had been
Thus, the record establishes that Evans' only
union activity was limited, occurred more than half
a year prior to his discharge, and would likely
have remained unknown to the Respondent but for
Evans' frantic effort to,cloak himself in Section 7
protection when he anticipated disciplinary action.
Morever, there is no evidence whatsoever of union
animus on the part of the Respondent, such as
would support the General Counsel's theory that
the Respondent was motivated by such animus in
discharging Evans. Nevertheless, the judge found
that Hollis "reacted" to Evans' announcement in
their 4 June meeting that, Evans had been "in-
volved in union activities" by reassigning Evans to
,,a, less desirable truck from that time on."' This
finding that Evans was reassigned to another truck
because of union activities is wholly unsupported
by the record. According to Evans' credited ver-
sion of this encounter, before Hollis could say any-
thing (except to tell employee David Nelson that
his presence was not required), Evans blurted out
that he was "involved in union activities." This an=
nouncement drew absolutely no -reaction from
Hollis. According to Evans, after again "telling
Nelson to leave:
Mr. Hollis said something about the night
before a dispatcher had complained about me
throwing things around in his office, and
[Hollis] says, from now on or for the duration,
or something to that effect, he said, you will
be,assigned to this older truck, B141 .3
Thus, it is clear that Hollis summoned Evans to his
office for the sole purpose of chastising -him for
what Hollis considered to be misconduct on Evans'
part in the dispatcher's office. Before Evans' hur-
ried declaration to Hollis, the latter had no knowl-
edge at all of Evans' "involvement in union activi-
ties," and his new knowledge clearly played no
part whatsoever in Hollis' decision, apparently al-
ready made in advance of this meeting, to reassign
the latter to a different truck. Furthermore, and
again according to Evans' own testimony, the Re-
spondent employed approximately 80 drivers to
drive approximately 45 trucks; not every driver
had his own truck all the time; Evans himself was
called on to drive many different trucks during the
ordinary course, of his duties; during the 6 months
preceding the 4 June reassignment to a different
truck, Evans himself had driven approximately 10
different trucks for at least one or two trips; the
truck to which he was reassigned, B141, was in
regular use, having been driven, by another driver
active in a campaign on behalf of the Union" are not supported by, and 8 Evans testified that he had not thrown anything in the dispatcher's
far exceed, the credited testimony of Evans himself, as detailed above office the night before
BROOKSHIRE GROCERY COMPANY 1277
right up until the time it was assigned to Evans; the
seat in Evans ' new truck was immediately replaced
with a brand ' new seat at Evans' request; after the
Respondent replaced the seat at Evans ' request; he
never made any other complaint - about that truck.
In light -of all the foregoing , I find that Evans' reas-
signment to 'a new truck on 4, June was in no way
a "reaction" to, or indeed even related to, Evans'
declaration of involvement in union activity, but
was instead entirely brought on by Hollis' displeas-
ure with what he perceived to have been Evans'
misconduct in the dispatcher's office.
In further attempting to support his finding of
discriminatory treatment of Evans, the judge next
notes that shortly after David Nelson witnessed
Evans trumpeting his "involvement in union activi-
ties" to Hollis, Nelson was told by Hollis to work
in the return center rather than perform his normal
truckdriving duties. What the judge does not at-
tempt to explain is how this is, material to the ques-
tion of whether the Respondent discharged Evans
for his involvement in union activities . The judge
implies, I suppose, that Hollis was retaliating
against Nelson because he accompanied Evans into
Hollis' office and remained there while Evans
made his declaration of "involvement in union ac-
tivities," and that this tends to prove that the Re-
spondent 's discharge of Evans almost 5 months
later was in further retaliation for such activities.
However , I find that the record evidence com-
pletely fails to support the inference drawn by the
judge in regard to Nelson 's 4-hour stint in nondriv-
ing duties.
Nelson's entire testimony about this event is that
the next time he reported for work after witnessing
Evans' declaration of involvement in union activi-
ties in Hollis ' office, Hollis told the dispatcher that
Nelson "wouldn't be driving tonight" (he had been
scheduled to make, two runs); Hollis told Nelson
that he would work in the return center, or "they
didn't need me anymore "; Nelson had worked in
the return center before , for a period of approxi-
mately 6 months; on the occasion in question, he
worked in the, return center for about 4 hours, at
which time Hollis told the dispatcher that Nelson
would be making his second run.4
Thus, there is no evidence that Nelson 's 4-hour
stint in the return center was related to his brief ap-
pearance in Hollis' office as a "witness" for Evans
on the preceding shift , and no evidence that it was
anything other than a routine assignment dictated
4 Hollis testified without contradiction that while the return center has
a permanent staff of about 17 employees, drivers are assigned to fill in at
the return center from time to time, as the needs of the return center dic-
tate and as individual driver schedules permit According to Hollis, all
drivers are subject to being assigned to the return center at any time, and
such assignments occur routinely
by the short-term needs of the return center and
the availability of Nelson to meet those needs.
In finding that Evans was discharged because of
his involvement in union activities, the judge also
relies on a remark made by Hollis 2 months prior
to Evans' discharge, to the effect that it was too
bad that Evans had not been in an accident. I find
that the judge's reliance on this remark as evidence
of union-motivated hostility towards Evans is en-
tirely unwarranted.
According to the credited testimony of employee
Dallas Nelson, a group of five, or six drivers were
relaxing in the breakroom,' laughing about an acci-
dent that one of the drivers had been involved in.
Hollis came into the breakroom and asked, "What
was that?" The driver involved in the accident re-
counted his story to Hollis, who remarked, "Too
bad it couldn't have been Homer [i.e., Evans]," and
walked off. Contrary to the judge, I do not find
Hollis' offhand remark in August, uttered in a con-
text of group jocularity and obviously not intended
to be taken seriously, to be probative of the ques-
tion whether the Respondent discharged Evans 2
months later because of his "involvement in union
activities" 6 months earlier.
The judge also notes that Dr. Collins' assistant,
Kathy Bridges, was told by the Respondent's per-
sonnel clerk, Debra Spradlin "something to the
effect, Well, we have had a lot of trouble with this
man and that he has been involved in a lawsuit." I
find' this gratuitous, uninformed, and unsubstantiat-
ed remark to be no more than the irresponsible
gossip mongering of a low-level clerk, 'not in any
way imputable to the Respondent and-more im-
portantly-no evidence whatsoever of an antiunion
motive on the part of the Respondent in discharg-
ing Evans.
First, neither Bridges nor Spradlin elaborated on
this remark in their testimony of the hearing;
indeed, Spradlin made no reference to it at all.
Second, there is no way of telling from this record
what Spradlin may have had in mind when she
stated "something to the effect" that the Respond-
ent had had "a lot of trouble" with Evans. But one
thing is certain-the reference could not have been
to Evans' self-proclaimed "involvement in union
activities," since, as the record fully' establishes,
those activities consisted entirely of attendance at
one meeting, signing a card, and speaking with
other employees "about what was going on"-all
of which transpired more than 6 months before
Spradlin tossed off her "a lot of trouble" remark to
Bridges. Moreover, there is no evidence in the
record about any union organizational campaign.
Thus, whatever "trouble" Spradlin had in mind-if
anything-it had nothing to do with union activity
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the part of Evans in particular or the Respond-
ent's work force in general. Third, there is also no
way of knowing from this record what Spradlin
was referring to when she told Bridges that Evans
had been "involved in a lawsuit." As what? Plain-
tiff? Defendant? Witness? About what? A driving
accident? A home improvement contract? Neither
Spradlin, nor Bridges, nor any other witness, testi-
fied about any lawsuit. But again, one thing is cer-
tain-the reference to a "lawsuit" could not have
been a reference to the instant proceeding, since
the unfair labor practice charge in this case was
not filed until 25 October, more than a week after
Spradlin told Bridges that Evans had been in-
volved in a lawsuit. Thus, whatever "lawsuit"
Spradlin had in mind-if any at all-it certainly
was not the instant one, and it is therefore immate-
rial to the question of whether the Respondent dis-
charged Evans because of his so-called involve-
ment in union activity.
In sum , and based on the above thorough review
and analysis of the record evidence, as summarized
below, I find that the judge erred in finding that
the Respondent was motivated by Evans' union ac-
tivities in its decision to discharge him.
First, I find-as seen in footnote 2-that the
judge substantially overstated the actual extent of
Evans' union activities and also what Evans told
Hollis as to the extent of those activities. Thus,
contrary to the judge's finding, Evans did not testi-
fy that he spoke to other employees on behalf of
the Union, and he did not testify that he told Hollis
that he had been active in a campaign on behalf of
the Union. Rather, Evans merely testified that fol-
lowing the union meeting he spoke with other em-
ployees "about what was going on," and that he
told Hollis only that he was "involved in union ac-
tivities." Thus, the impression created by the judge
that Evans was a leading union supporter, and that
the Respondent knew it, is not supported by cred-
ited record evidence.5
Second, I find that the judge erroneously deter-
mined, contrary to the clear record evidence, that
the Respondent reassigned Evans to a different
truck because of his union activities; the record
evidence shows; if anything, that the decision to re-
assign Evans to a different truck was made before
Evans made the hurried announcement of his "in-
volvement in union activities."
Third, I find that the judge has accorded undue
weight to Hollis' assignment of David Nelson to a
4-hour stint in the return center, and has failed to
show how this incident tends to prove that Evans
s In Hollis' discredited version of his 4 June meeting with Evans, he
testified under questioning by the judge that he believed that Evans
stated that "he was trying to organize for the union "
was discharged because of his involvement in
union activities.
Fourth, I find that the judge has similarly ac-
corded undue weight to, and has failed to assess
properly the circumstances surrounding, Hollis' flip
remark in the midst of a relaxed, jovial discussion
among truckdrivers, to the effect that it was too
bad Evans had not been in the accident being dis-
cussed. I find it to be more likely than not, in light
of the surrounding circumstances, that Hollis'
remark was made in jest, in keeping with the
jovial, mirthful tone of the discussion in general.
Fifth, I find that the judge has failed to justify
the apparent inference of discriminatory motive he
drew from employee Spradlin's unexplained and
ambiguous remark to Dr. Collins' assistant that
"we have had a lot trouble with [Evans] and he
has been involved in a lawsuit."
Sixth, I find that the judge has failed to give due
weight to the timing of Evans' limited involvement
in union activities in April vis-a-vis his discharge
over 6 months later.
Seventh, I find that the judge has erroneously
failed to give any weight to the complete absence
of evidence of any other union activity on Evans'
part or of and organizational activity of any kind
among the employees, during the intervening half-
year period prior to Evans' discharge.
Finally, and, perhaps most tellingly, I find that
the judge has not given any weight'to the complete
absence of evidence of union animus on the part of
the Respondent. Thus, the judge has gone to great
lengths to disparage the Respondent's asserted
reason for discharging Evans-falsification of his
short-term disability form. But it is well settled that
absent a showing of antiunion motivation, an em-
ployer' may discharge an employee for a good
reason, a bad reason, or no reason at all without
running afoul of the National Labor Relations Act.
See, e.g., Clothing Workers v. NLRB, 564 F.2d 434,
440 (D.C. Cir. 1977). Mere suspicion about an em-
ployer',s stated reason for a discharge is an insuffi-
cient basis for establishing a violation. Bay State
Gas Co., 255 NLRB 708, 709 (1981). Thus, the
question of motivation in the case' of an allegedly
unlawful discharge is not answered by discrediting
an employer's asserted reason for the discharge.
Rather, the answer to the question of motivation
rests on an evaluation of all the relevant evidence.
Garrett Flexible Products, 270 NLRB 1147, 1148
(1984). Having evaluated all the relevant evidence
in this case, as discussed above, I find it unneces-
sary to scrutinize the Respondent's proffered
reason for discharging Evans. I need not reach that
issue because I have found, contrary to the judge,
that the General Counsel failed to make a prima
BROOKSHIRE GROCERY COMPANY 1279
facie showing sufficient to support an inference
that Evans' "involvement in union activities" was a
motivating factor in the Respondent's decision to
discharge him. Thus, I find that the General Coun-
sel has not met her initial burden6 under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1,981), cert. denied 455 U.S. 989 (1982).
. In light of the above considerations, I would dis-
miss, the complaint.
6 See Irving Tanning Co, 273 NLRB 6, 8-10 (1984). See also John J
Hudson, Inc., 275 NLRB 874 (1985) (no showing of unlawful motivation
even though other unfair labor practice), Pullman Products Corp., 275
NLRB 765 (1985) (causal connection` must be shown between union ac-
tivities and adverse action); Jim's Big M, 264'NLRB 1124 fn 2 (1982)
(prima facie case not shown where no showing of union animus or other
unlawful reason for alleged discriminatory conduct)
Ruth Small, Esq., for the General Counsel.
)13rynley James III, Esq. (Fulbright & Jaworski),,of Hous-
ton, Texas , for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on 4 February 1986 in
Tyler, Texas, pursuant to a complaint filed by the Re-
gional Director for Region 16 of the National Labor Re-
lations Board (the Board) on 6 December 1985. The
complaint, as amended at the hearing, alleges a violation
of Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act) by the unlawful discharge of employ-
ee Homer Evans because of his engagement in protected
concerted activities. The charge was filed on 10 October
11985 by General Drivers, Warehousemen and Helpers,
]Local Union 745, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union). Respondent by its
answer filed 11 December 1985 has denied the commis-
sion of any violations of the Act and has asserted as an
affirmative defense that the employee was discharged be-
cause of its conclusion that he "intentionally falsified his
Short-Term Disability Income Claim Forms and provid-'
ed false information to Respondent and to a physician in
an effort to defraud Respondent into paying him disabil-
ity income to which he was not entitled."
After due consideration of the evidence and testimony
presented at the hearing, including the demeanor of the
witnesses, and of the briefs filed by the General Counsel
and counsel for Respondent, I make the following
FINDINGS OF FACT
filing of the complaint, Respondent, in the course and
conduct of its business operations, derived gross reve-
nues in excess of $500,000 and sold and shipped from its
Tyler, Texas facility products, goods, and materials in
excess of $50,000 directly to points outside the State of
Texas; and that Respondent is, and has been at all times
material herein, engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is, and has been at all times material
herein , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE'
A. Background2
This case involves the discharge of Homer Evans, a
truckdriver who had been employed by Respondent ap-
proximately 6 years prior to his discharge on 21 October.
The General Counsel contends that Evans was dis-
charged because of his engagement in concerted activi-
ties on behalf of the Union and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act. Respondent
contends that the General Counsel has failed to prove a
prima facie case. Respondent contends that Evans was
discharged because of his falsification of a short-term dis-
ability form in order to receive disability pay to which
he was not entitled.
B. The Discharge of Homer Evans
Evans testified as follows; He had initially sustained a
back injury in 1981 for which he had been treated and
released. A few days prior to 4 June 1985 the truck to
which Evans was normally assigned was not available
when Evans reported to work and he was assigned a dif-
-ferent truck. When he completed his truck run for the
day on 4 June, he found a note telling him to see David
Hollis, Respondent's transportation supervisor.3 At that
time he asked his fellow truckdriver, David Nelson, to
accompany him. ' On entering Hollis' office, David
Nelson was told to leave by Hollis, but Evans told the
employee to stay and then immediately told Hollis that
he (Evans) had been active in a campaign on behalf of
the Union in April. Evans had attended a union meeting,
signed a union card, and spoke to other employees on
behalf of the Union. He had been told by Union Official
Rogers ' to tell Hollis of his involvement in the union
campaign. Hollis then again told David Nelson to leave
which he did at that time. Hollis asked him what the
problem had been the preceding Friday, and Evans told
1. JURISDICTION
The Business of Respondent
The complaint alleges, Respondent admits, and I find
that Respondent is, and, has been at all times material
herein, a Texas corporation with an office and place of
business in Tyler, Texas, engaged in the retail sale of
groceries; that during the 12-month period preceding the
i All dates are in 1985 unless otherwise stated
2 The following includes a composite of the testimony of the witnesses
at the hearing
2 I find on the basis of Respondent's, admissions and the evidence at the
hearing that Hollis and Charles Adams, Respondent's director of oper-
ations-distribution center, and Greg Nordyke, Respondent's transporta-
tion manager, were all supervisors within the meaning of Sec 2(11) of
the Act, and Respondent's agents within the meaning of Sec 2(13) of the
Act.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that he had not been permitted to drive the truck he
was normally assigned to. Hollis then permanently as-
signed Evans to truck 141 which Evans contends was
the oldest truck in the fleet and told Evans that he
would drive truck 141 from then on. He was then told to
get out and off the premises by Hollis who was very
angry. Evans had just completed his run for the day.
Evans drove the truck on a lengthy run on 5 June and
found it to have a defective seat and to ride rough. As a
result, he reaggravated his back injury and underwent
treatment and lost about 1 month from work in June and
July. During this period he was treated by Dr. Luther
Bratcher, a chiropractor, on a number of occasions and
was also examined by Dr. Lester Collins III, who recom-
mended he attend a "back school." He had also been ex-
amined by another doctor at Respondent's request. His
back became better and he returned to work in July
without attending the back school.
In September his back condition became aggravated
again . He discussed his attendance at the back school
again with Dr. Bratcher who recommended he take off
and that he return to Dr. Collins to make arrangements
for attendance at the back school. Evans told Tony
Wesley, Respondent's dispatcher, that he would be off
work and would attend the back school. He was later
called by Charles Adams, Respondent's director of oper-
ations-distribution center, to come to the office' and fill
out a short-term disability form. He came to Adams'
office to get the form and told Adams that he had talked
to Dr. Bratcher who told 'him he "was going to have to
take time off, I had asked him about that back school
that had been recommended earlier by Dr. Collins, and
he thought that was a good idea." He took the form to
Dr. Collins' office on 14 October about 9 a.m. and was
told by the lady in the office of Dr. Collins that he could
pick the form up about noon which he did. The second
page had been filled in. Dr. Bratcher had suggested that
he have Dr. Collins fill out the second page as he (Dr.
Collins) had originally recommended the back school.
Evans did not read the second page that had been filled
out by Dr. Collins which erroneously listed that he had
been off work since June when Dr. Collins had examined
him. Evans filled out the first page as required and
showed the date of his examination as 11 October which
was the' date he had been examined by Dr. Bratcher,
who Evans considered to be his doctor rather than Dr.
Collins. The receptionist at Dr. Collins' office told him
the program would last 2 or 3 weeks. He attended the
back school for 1 day and remained off work to rest his
back. On 21 October Greg Nordyke called him at home
and told him to meet with him in Adams' office. When
he entered the office, he was told he was being terminat-
ed for falsifying the short-term disability form as he had
not seen Dr. Collins since 28 June. He asked to see the
form, but Nordyke pulled it away. He went around the
desk to look at it and told them he had seen his doctor
on that date (11 October). He looked at Adams and said,
"But you don't care about that, do you?" and Adams re-
plied, "No." He commented he had expected this but not
like this. He was' told to get his tools and property and
leave the premises `and was never given an opportunity
to explain how the form had been filled out.
,David Nelson testified he was asked by Evans to
attend the June meeting with Hollis, that Hollis told him
to leave, and Evans asked him to stay and then told
Hollis he (Evans) had been active in the Union. Hollis
then again told Nelson to leave which he did. Shortly
thereafter, Hollis told Nelson to go to the return center
and work there and that he would be working there
from then on instead of driving a truck, and that if he
were not willing to do so, he could "go to the house"
(go home). Hollis later relented after 4 hours and al-
lowed him to resume his duties as a truckdriver. Nelson
had also been involved in union activities with Evans.
Dallas Nelson, a truckdriver who was also involved in
union activities with Evans, testified that he' was engaged
in a conversation with several other drivers in August
concerning an accident that one of them had had, and
that Hollis overheard the conversation and remarked
that it was too bad it could not have been Homer
(Evans).
Dr. Luther Bratcher testified that in 1980 and 1981
and in June and July 1985 and again in September 1985
he treated Homer Evans for his back and that he had re-
ferred Evans to Dr. Collins, a neurologist, in June 1985
for examination and Dr. Collins had recommended that
Evans attend the back school. Evans felt better and was
released for work without attending the back school in
July 1985. Evans was totally disabled from 5 June to 12
July. Dr. Bratcher completed a short-term disability
form on 16 July and a light-duty form on 1 July on
Evans' behalf, both of which were submitted to Re-
spondent. He also submitted a copy of his billing for
Evans to Respondent on 1 September as Respondent's
workmen's compensation carrier had not paid it. He also
had telephone contact with Hollis in June concerning
Evans' reaggravation of his back. Dr. Bratcher recom-
mended Evans take time off from work in October 1985.
He prescribed that Evans stay home (off work) and rest
and they again discussed the back school. He told Evans
to contact Dr. Collins' office to make the arrangements
as Dr. Collins had originally recommended the school,
which they thought was 2 or 3 weeks in duration. He
was not contacted by anyone on behalf of Respondent in
October concerning Evans. He has continued to treat
Evans since his discharge. He was contacted by Nordyke
on 18 November who asked him whether he had recom-
mended that Evans attend the back school 'and that
Evans be off from work during this time period. He saw
Evans on 2, 4, 6, 7, 9, 10-18, 23, and 29 October. He rec-
ommended that Evans "be off from work because he
needed to rest his back and not aggravate it. And while
he was going to be off," he also recommended that
Evans contact Dr. Collins to get into the back school.
Dr. Lester Collins ,III, a neurologist, testified he exam-
ined Evans in June 1985. Evans had been referred to him
by Dr. Bratcher for evaluation of his back. He arranged
for a CAT scan which showed some degenerative dis-
ease of the back but in Dr. Collins' opinion did not ex-
plain his present back problems. He recommended that
Evans attend a back school but did not make arrange-
ments for him to attend the back school until October.
He signed the form in October which had been filled out
BROOKSHIRE GROCERY COMPANY 1281
by his clerical staff. He was later questioned by Nordyke
about whether he had seen Evans on 10 October, and
Dr. Collins told him he had not, and whether Evans
could attend the back school as prescribed and continue
working. Dr. Collins replied that it would be logistically
(in a timeframe) possible for him to work while attending
the back school. He had not seen Evans since June and
could not give a medical diagnosis or report on Evans'-
condition. He is not sure whether the first page of the
form was attached at the time he signed the second page.
Kathy Bridges, a clerical employee employed by Dr.
Collins, testified that she understood Evans to say that
he had been off since his injury (in May). She put this
information on the form and put "undetermined" about
when Evans would return to work because she under-
stood the back school to consist of a 1- to 3-week pro-
gram. She was later contacted by a woman (Debbie)
from Respondent' s personnel department who inquired
whether Evans had been seen by Dr. Collins on 10 Octo-
ber, and she replied in the negative. The lady said,
"'Well, we have had a lot of trouble with the man and
that he has been involved in a lawsuit."
Respondent called Chris Cochran, who is employed at
the Musculaskeletal Center in Tyler, Texas (the back
school), as a registered nurse and who teaches a course
to patients as part of a back-to-work program consisting
of anatomy, physiology, exercise, daily living skills, and
body mechanics. The course is normally a 5-1/2 hour
course with the first session consisting of 3-1/2 hours and
the second session a week later consisting of 2-2-1/2,
hours. Evans attended and participated fully in a consoli-
dated course 15 October which was completed in i day
rather than the customary 2 days in order to accommo-
date out-of-town participants. She explained this to
Evans prior to 15 October and he was told it would be a
total of 1 day. She was subsequently contacted by Nor-
dyke approximately 17 October who asked her what the
back school entailed and whether Evans needed to be off
work further for the back school, to which she respond-
ed in the negative. She did not conduct any examination
of Evans or know what his medical diagnosis was.
Hollis testified that on the day prior to 4 June be was
told by a mechanic that Evans had "thrown a fit" on
Friday night and'threw things around because the truck
he was normally assigned to was not available. He dis-
cussed this with the mechanic and dispatcher on duty
and then asked Evans to come to his office on 4 June
which he did. Evans brought David Nelson with him,
and Hollis told Nelson that he wanted to speak to Evans
only. When Evans stepped into his office with Nelson,
Evans "blurted something out about" not trying to orga-
nize a union . 'After Nelson left, he discussed the incident
concerning the truck with Evans and asked Evans what
the problem was. Evans told him that his truck had not
been available, and he told Evans it was not his truck.
Evans wanted a truck he could drive all the time and
truck 141 was available at the time so he assigned him to
that truck. Evans did not 'reply, and he told Evans "that
was all." This truck is not the oldest truck in the fleet
and was not considered undesirable, and he assigned it to
Evans to accommodate his desire to drive the same
truck. Evans drove truck 141 the next day and then
complained about the seat , which the mechanics initially
tried to fix on the first day of Evans' complaint. -When
Evans was still dissatisfied the next day, a new seat was
installed . Evans had also complained, about the front-end
alignment of truck 141, which he thinks the mechanics
subsequently aligned . He acknowledged that the repair
sheet for truck 141 did not show that the alignment had
been fixed. He acknowledged that he may have assigned
David Nelson to the return center, rather than make his
regular run on, 4 June. He, does not remember one way
or the other whether he told David Nelson that he
would be working in the return center from then on or
that he could leave if he did not like' it. -Nelson was the
only driver in the breakroom at the time and Hollis said
he needed help in the return center.
Debra Spradlin, a personnel clerk and secretary em-
ployed by Respondent; testified she routinely reviewed
short-term disability forms, and in October she noted
there was no date on the second page of the short-term
disability form submitted by Evans. She called Dr. Col-
lins' office to check and was told that Dr. Collins had
not seen Evans on 10 October as set out in the first page
of the form. The form otherwise appeared correct. She
showed it to her supervisor' who told her to hold up pay-
ment of the claim and she also informed Nordyke who
was Evans' supervisor.
Charles Adams testified that in early October, on a
Thursday, Nordyke told him that the dispatcher, Tony
Wesley, had told Nordyke that "he was going to have
one to three weeks off to go to back school." He asked
Nordyke whether Evans had filled out a short-term dis-
ability form and Nordyke said he did not know. Adams
then called Evans at home and told him to pick up the
form and get it filled out in order to get paid. There was
no discussion of Evans' condition. Nor did' Evans tell
him that he needed to be off 1 or 3 weeks to attend back
school. The following Monday, Evans came to his office
and brought him the completed form. He turned it in to
his secretary who turned it into the office. On Wednes-
day or Thursday of that week, Nordyke told him he had
received the form back as it was not properly filled out
and that Spradlin had been told by the doctor's recep-
tionist that Evans had not seen the doctor. He told Nor-
dyke to investigate the matters. Nordyke reported that
Evans had not seen Dr. Collins on 10 October as shown
on the form.'It thus appeared as if the document was fal-
sified, which is grounds for automatic dismissal under
Respondent's personnel policy. There has been one prior
case of discharge of an individual who physically altered
a date on the form and was terminated. On the basis' of
the facts before them at the'time, Nordyke and Adams
decided to terminate Evans on 'Friday, and Nordyke
called him into the office on Monday. Nordyke reviewed
the findings with Evans and told Evans that he was
being terminated for "falsifying records." Evans wanted
to see where he had falsified the records and Nordyke
showed him. He did not hear any' other discussion, but
acknowledges there could have been some additional dis-
cussion. He does recall Evans commenting that he had
been expecting this. The name of Dr. Luther Bratcher
was never mentioned. He was aware that Evans had
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been off in June and July with a back problem. The Re-
spondent maintains a personnel file on employees that
contains medical documents filed with it, but Evans' file
was not reviewed.
James Gregory Nordyke testified that he was informed
by Spradlin of a discrepancy on the short-term disability
form filed by Evans, that the form was not dated on the
back, and that Evans had not been examined by the
doctor on 10 October. He discussed this with Adams and
they decided he (Nordyke) should make phone calls. He
talked to Dr. Collins in his office who told him that he
had recommended the back school to Evans in June, but
that Evans had returned to work then but subsequently
had returned and said he was ready to go to back school,
and the lady in the office had filled out the form for
Evans. Dr. Collins also told him it was not necessary to
take off work to go to the back school except for the
time of the classes. Dr. Collins did not know how many
days of school were involved. Dr. Collins told him that
he had not ordered Evans to take time off from work.
Nordyke next called Chris Cochran, the instructor at the
back school, and she said Evans had completed it in 5 or
6 hours on 1 day and was not scheduled to return. Evans
had initially reported to the dispatcher that he would be
off work on 10 October and then worked his regular
night shift on 10, 11, and 12 October (Thursday night to
Friday morning and Friday night to Saturday morning).
He did not work the following Monday, attended the
back school on Tuesday, and did not thereafter work. He
was called into the office and terminated on Monday, 21
October. The decision tor terminate Evans was made on
Friday, 17 October,,, by Adams and Nordyke, Dr.
Bratcher's name never came up during the investigation
and he had no knowledge that he was involved. He
called Evans on Monday morning (21 October) and
asked him to meet him in Adams' office. When Evans ar-
rived, they told him that he had not been examined by
the doctor as indicated on the form and they had no
choice but to terminate him. Evans asked to see the line
on the form and Evans came by Nordyke who pointed
out the line to him. Evans mumbled something about
"my doctor" and Nordyke responded that the form had
been filled out by Dr. Collins. Evans did not say any-
thing else about the form. Nor did Evans mention any
other doctor's name. Several weeks later Nordyke called
Dr. Bratcher after the Board attorney, commenced the
investigation of the charge in this case and apprised him
of Dr. Bratcher's involvement. Dr. Bratcher told him
that he had recommended that Evans take time off. This
did not cause him to reassess the discharge as he main-
tains that Evans falsified the form. He at no time prior to
the termination of Evans discussed this matter with
Hollis, as Hollis was out of town. He at no time checked
Respondents file concerning Evans' medical condition.
He acknowledges that he had heard rumors of Evans', in-
volvement in the union organizing campaign. Evans
never represented to him that, he was going to back
school during his absence from work.
Analysis
I find that the General Counsel has established a prima
facie case that Respondent discharged Homer Evans be-
cause of his support of the union. In making this determi-
nation, I rely on several factors. Initially, I credit Evans'
version of the June meeting with Transportation. Super-
visor Hollis wherein he initially told Hollis that he bad
been active in the union campaign in April and that
Hollis reacted to this and assigned him a less desirable
truck from that time on. I do not credit. Hollis' version
that he only assigned Evans this particular truck in order
to ensure that Evans would thereafter drive the same
truck. I also credit the testimony of truckdriver David
Nelson that shortly thereafter he witnessed Evans dis-
close his union activities to Hollis, he was taken off of
his regular truck and assigned to the return center by
Hollis from then on, and told he could go home if he did
not want to do this. Hollis acknowledged that he did not
recall whether this had occurred as David Nelson testi-
.fied.- I also credit the unrebutted testimony of Dallas
Nelson that in August, Hollis remarked to him and other
truckdrivers that it was too bad that Evans had not been
involved in an accident they were discussing at the time,
thus ^ evidencing the continuing hostility of Hollis toward
Evans. Although it is evident that the medical disability
leave form presented by Evans gave rise to an inquiry by
Respondent, I find that the evidence supports the infer-
ence that Respondent seized on this as an excuse` to rid
itself of Evans without giving Evans an' opportunity to
clear up'the matter. In this regard, I also note that Kathy
Bridges, Dr. Collins' receptionist, testified' that she was
told by Spradlin, who called her on behalf of Respond-
ent, that "we have had a lot of trouble with this man and
that he has been involved in a lawsuit." I have also con-
sidered the testimony of Dr. Collins and Bridges that
they advised Nordyke that they had signed the form for
Evans to attend the back school. I also consider the sud-
denness with which Evans was called into the office and
presented with the information on the form, told he had
falsified the record, and was being discharged without
being given an opportunity to explain. I do not find con-
vincing the position of Respondent that it discharged
Evans because of his falsification of the form rather than
because of his support of, the Union. I reject Respond-
ent's contention that assuming arguendo Evans had been
told, he should take the time off by-Dr. Bratcher no vio-
lation should be found as Nordyke was thus mistaken
and his motive for the discharge was thus not unlawful.
Rather, I find that Respondent, through Nordyke and
Adams, seized on the opportunity to discharge a known
union adherent ' toward whom Nordyke's supervisor had
shown continuing animus following the disclosure of
Evans of his support for the Union. Nor do I find the
knowledge of Evans' support for the Union remote in
time as he was absent from work through most of June
and part of July as a result of the reaggravation of his
back. Moreover, I note that Respondent did not produce
its dispatcher Wesley who received the message from
Evans to the effect that Evans would, according to Nor-
dyke's version, be absent because, of his attendance at
back school. I find that Respondent's failure to call
Wesley supports the inference that Wesley's testimony
would not support Nordyke in this regard, but rather
would support Evans' version of this conversation that
BROOKSHIRE GROCERY COMPANY 1283
Evans had told him he needed time off because -of his
back and was going to attend the back school. I also
note the admissions of both ' Nordyke and Adams that
Evans at no time told them that his absence from work
was for the purpose of attending back school. I find
meager evidence on the disability form itself that would
have led Nordyke and Adams to reasonably conclude
that Evans should be summarily discharged without an
opportunity to clear himself. I credit Evans' testimony
that he told Adams that he had seen his doctor on the
date in question and looked at Adams and said, "But you
don't care about that, do you?" to which Adams replied,
"No." I thus find that the General Counsel has made a
prima facie showing that the protected activity of Evans
in supporting the Union was a motivating factor in Re-
spondent's decision to discharge him. I find that Re-
spondent's alleged discharge of Evans for falsification of
the short-term disability form was pretextual. Limestone
Apparel Corp., 255 NLRB 722 (1981). I find that Re-
spondent has failed to rebut this prima facie case as it has
failed to demonstrate by a preponderance of the evi-
dence that it would have discharged Evans in the ab-
sence of his protected activities in support of the Union.
I note that Respondent does not contend that Evans was
discharged because of his filing or, processing of work-
men compensation claims. Wright Line, 251 NLRB 1083
(1980); Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
CONCLUSIONS OF LAW
1. The Respondent, Brookshire Grocery Company, a
corporation, is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. General Drivers, Warehousemen and Helpers, Local
Union 745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employee Homer Evans because
of his engagement in union activities.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take the following affirmative
actions, including the posting of an appropriate notice,
designed to effectuate the policies of the Act.
I recommend Respondent be ordered to offer Homer
Evans immediate and full reinstatement to his former po-
sition or its equivalent, to make him whole for any loss
of earnings or benefits he may have sustained as a result
of his discharge, and to remove any reference to the dis-
charge from its files. The loss of earnings and benefits
shall be determined as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962). I do not rec-
omineiid a visitatorial clause as requested by the General
Counsel under the circumstances of this case. See O. L.
Willis, Inc., 278 NLRB 203 fn. 1 (1986).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Brookshire Grocery Company,
Tyler, Texas, its .officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging its, employees for engaging in union or
other protected activity.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative' action necessary to
effectuate the policies of the Act.
(a) Offer to Homer Evans immediate and full reinstate-
ment to his former position or, if it no longer exists, to a
substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
(b) Remove from its files any reference to the unlawful
discharge of Homer Evans, and notify him in writing of
this and that the discharge will not be used against him
in any manner.
(c) Make Homer Evans whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other, records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Tyler, Texas, copies of the at-
tached notice marked "Appendix."5 Copies of the notice,
on forms provided by the Regional Director for Region
16, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees 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.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If no exceptions are filed as provided by See, 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102,48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
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 Nation-
al 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 "
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting General Drivers, War-
ehousemen and Helpers , Local Union 745, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
union.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you under Section 7 of the Act.
WE WILL offer Homer Evans immediate and full rein-
statement to his former position or, if that job no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE' WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any manner.
BROOKSHIRE GROCERY COMPANY