Cargill, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1994

315 N.L.R.B. 735 (N.L.R.B. 1994)

735
315 NLRB No. 114
CARGILL, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The September incidents were not alleged as separate violations.
We note that they were time barred by Sec. 10(b) of the Act.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
Cargill, Inc. (Salt Division) and Rusty D. Dav-
enport. Case 3–CA–17809
December 14, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On July 18, 1994, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the
Respondent filed an answering brief, and the General
Counsel filed a reply 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,1 findings, and con-
clusions and to adopt the recommended Order.
We agree with the judge that the Respondent did not
violate the Act by discharging Charging Party Dav-
enport. The General Counsel alleges that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by dis-
charging Davenport for his organizing activities on be-
half of the Union. The General Counsel also alleges
that the Respondent independently violated Section
8(a)(1) of the Act because Davenport’s discharge was
based in part on its September 8, 1992 warning to him
which, the General Counsel alleges, was given in retal-
iation for Davenport’s protected concerted activity of
informing another employee, Brown, of an admonition
or threat of discipline that Davenport received on Sep-
tember 2.2
The judge found that the General Counsel failed to
meet its burden of establishing a prima facie case that
Davenport’s protected conduct was a motivating factor
in the Respondent’s decision to discharge Davenport.
In addition, the judge found that the General Counsel
did not prove the separate 8(a)(1) discharge allegation
because the judge found that Davenport’s questioning
of Haskell on September 2 played no role in the Re-
spondent’s decision to discharge Davenport. The Gen-
eral Counsel excepts to the judge’s finding regarding
the 8(a)(3) and (1) charges and argues that it met its
burden of proof for establishing a prima facie case
under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The General Counsel also excepts to the
judge’s finding regarding the separate 8(a)(1) violation
because the General Counsel contends that the judge
misconstrued the General Counsel’s basis for that alle-
gation.
We adopt the judge’s finding that the General Coun-
sel failed to sustain its burden of establishing a prima
facie case under Wright Line by showing that Dav-
enport’s protected conduct was a motivating factor in
the Respondent’s decision to terminate Davenport. Fur-
ther, assuming arguendo that the General Counsel had
established such a prima facie case, and assuming that
the September 8 warning would have violated Section
8(a)(1) if it were not time barred by Section 10(b), we
find that Davenport would have been discharged even
in the absence of his allegedly protected conduct. The
record shows that the Respondent established that Dav-
enport was discharged because of his work perform-
ance. Davenport’s record reflects that: in addition to
the October 19 superbolter incident just prior to his
discharge, Davenport damaged other equipment and re-
ceived warnings for such incidents; he was not
straightforward with the Respondent about an alleged
‘‘near miss’’ incident with employee Antrum; he har-
assed employee Haskell; he had a poor attendance
record; and he had a history of poor work perform-
ance. In these circumstances, even in the absence of
his union activities and in the absence of the Septem-
ber 8 warning for talking to employee Brown, we find
that Davenport would have been discharged. Thus, we
adopt the judge’s dismissal of the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Rafael Aybar, Esq., for the General Counsel.
Albert J. Sufka, Esq. and Felix Ricco, Esq., for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on February 24 and 25 and March 1, 1994,
in Ithaca, New York. The complaint herein, which issued on
July 30, 1993, and was based on an unfair labor practice
charge and amended charges that were filed on April 23 and
June 23 and 29, 1993, by Rusty D. Davenport, alleges that
Cargill, Inc. (Salt Division) (Respondent), in about October
1992,1 maintained a rule prohibiting employees from engag-
ing in discussions or activities, whether on or off Respond-
ent’s facility, that Respondent considered disruptive behavior,
and that on about October 23, Respondent discharged Dav-
enport because he violated this rule and to discourage em-
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The unopposed motion of counsel for General Counsel to correct
the transcript, as contained in his brief, is granted.
3 There was some testimony as to whether this was an official
meeting of the facility’s employee relations team or was simply of
a meeting of managers with some employees. Due to the nature of
the testimony herein, I find it unnecessary to make any finding in
that regard.
ployees from engaging in these and other protected concerted
activities, and because of his union activities, all in violation
of Section 8(a)(1) and (3) of the Act.2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in Lansing, New York, has been engaged in salt
mining. Annually, Respondent has purchased and received at
its facility in Lansing goods and materials valued in excess
of $50,000 directly from points outside the State of New
York. Respondent admits, and I find, that it has been en-
gaged in commerce within the meaning of Section 2(5) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that Local 317, Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union) is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE FACTS
Respondent operates a salt mine, approximately 2300 feet
below ground, in Lansing, New York (the facility), the deep-
est salt mine in North America. The facility employs about
125 employees, 84 underground and 36 above ground. The
employees work on three shifts in teams, with about nine
employees in each team; about five are production miners,
two are Wagner operators, and one is a support person.
‘‘Wagner’’ is a front end loader that removes the material
from the mine. At the time of his termination, Davenport was
employed on the first shift as a production miner working
from 6 a.m. to 2 p.m. At that time, the relevant employees
on his team were Tom Clark, Mitchell Brown, Crystal Has-
kell, Ted Antrum, and Jim Bushey, all of whom are still em-
ployed at the facility. The supervisory hierarchy was Michael
Savino and Henning von Klinggraeff, production supervisors,
who reported to Stan Pamel and Gregory Smith, general su-
pervisors, who reported to Charles von Dreusche, mine su-
perintendent, who reported to Robert Supko, mine manager.
Davenport began working at the facility in May 1986. At
the time, the Machinists Union, which represented the facili-
ty’s employees, was on strike and Davenport and others were
hired as strike replacements. The union was decertified in
March 1987. Due to the fact that the winter of 1991–1992
had been a poor one, businesswise, there was a general lay-
off of all, or almost all, the production employees from
March to mid-July. Apparently, for the same reason, at a
meeting attended by several employees, including Brown and
Haskell, on about September 1,3 the Respondent announced
that there would be no general wage increase for the employ-
ees in 1992; rather the employees were given a $500 lump-
sum payment. It was this announcement, that there would be
no general wage increase in 1992, that began a chain of
events that resulted in Davenport’s termination 7 weeks later.
Prior to examining all the incidents that took place between
this announcement on about September 1 and Davenport’s
termination on October 23, I will discuss the union activity
at the facility. At the hearing Respondent admitted that it had
knowledge of some of the union activities at the facility and
that it would not contest the issue of its knowledge of Dav-
enport’s union activities.
Davenport testified that he started trying to unionize the
employees at the facility ‘‘late 1991 all the way to ’92.’’
During this period, ‘‘which came to a head in August of
’92,’’ he spoke to some fellow employees, principally Clark,
Brown, and Bill Rusinko, about the Union. These conversa-
tions usually took place at the lunchtable at the facility and
at a coffeeshop away from the facility during lunch or before
and after work. He testified that in mid-1991 he told his then
supervisor, John Greuber, that he and some other employees
were interested in organizing a union. After Clark contacted
the Union in about August, meetings were held at Clark’s
house with representatives of the Union, Clark, Brown, Dav-
enport, Rusinko, and some other employees. Davenport post-
ed notices of the union meetings on his car and at the nearby
coffeeshop. The union representatives gave the employees lit-
erature at these meetings and some employees signed union
authorization cards; the Union mailed literature to them at
other times. By letter dated September 30, the Union sent
Davenport, Clark, Brown, and one other employee some
union flyers; Davenport distributed them to fellow employees
during nonworking time and off the premises from August
through October. ‘‘Everybody knew’’ that he was distribut-
ing union literature. Davenport testified that he was friendly
with Savino (they had been hourly employees together) and
Savino initiated ‘‘quite a few’’ conversations about the
Union with him: ‘‘We were always talking.’’ He asked Dav-
enport: ‘‘How the Union was coming, how the meetings
turned out, if I had any more.’’ Savino testified that Dav-
enport told him of his union activities beginning in early
September; but he did not question Davenport about the ex-
tent of these activities. He told Davenport that he wasn’t sup-
posed to talk to him about it. Other employees, including
Brown, Haskell, and Bushey, also spoke to Savino about the
Union.
Brown testified that he began discussing the Union with
Clark and Davenport in about August. Clark contacted the
Union and he attended a union meeting at Clark’s house in
early September. Authorization cards and leaflets were dis-
tributed at the meeting. There was a subsequent meeting
about 2 weeks later attended by six to eight employees.
Clark testified that in about August he discussed unions with
Davenport, Brown, and Rusinko, usually at the mine office
or at the lunchtable at the facility. He called the Union and
had a meeting at his house with a union representative in
about August or September. Davenport, Brown, and a few
other employees attended the meeting. Literature, but not au-
thorization cards, was distributed. There were subsequent
meetings as well as where authorization cards were distrib-
uted and signed. He spoke to his fellow employees at
breaktimes, usually at the lunchtable, about the Union. Von
Dreusche testified that over the prior few years the subject
of unions came up periodically at the facility. He also testi-
fied that although Davenport never spoke to him about the
737CARGILL, INC.
Union, a fellow employee told him that Davenport had met
with union representatives. Clark has admitted to him his
support for the Union. Pamel also testified that Clark ‘‘vol-
unteered’’ to him that he supported the Union. Supko testi-
fied that during this period he had no knowledge of Dav-
enport’s involvement with the Union. In discussions with su-
pervisors, the only employee connected to the Union was
Clark. In July 1991, von Klinggraeff wrote a note in a file
memo and in his diary that Davenport spoke to Clark about
the possibility of bringing back a union. During the relevant
period, Respondent held no meetings with its employees
about the Union, nor did they send the employees any letters
in an attempt to discourage support for the Union. Supko tes-
tified that about two-thirds of Respondent’s facilities and em-
ployees are unionized and that Respondent has approximately
150 contracts with about 30 unions.
The complaint alleges that Respondent maintains a rule
against disruptive behavior and that it applies both on and off
Respondent’s facility. Toni Adams, Respondent’s human re-
sources manager, testified that Respondent instituted this rule
in about 1987 after incidents of rumor spreading caused dis-
sension, as well as decreased production, among the employ-
ees: ‘‘As a result, we began terming these kinds of issues
disruptive behavior, anything that would disrupt another em-
ployee from doing their job that didn’t necessarily involve
them.’’ Supko testified that disruptive behavior is inappropri-
ate actions by the employees: ‘‘For lack of teamwork, vio-
lence, profanity, failure to follow directions of supervisor,
things of that nature.’’ He testified that it would apply off
the clock as well as on the clock, and off the property as
well as on the property, ‘‘Depending on the circumstances.’’
He cited as an example an event that occurred away from
the facility that was ‘‘brought back into the workplace and
cause friction between people.’’ Kenneth Grimm, the surface
plant superintendent at the facility, testified that the rule is
an unwritten rule which: ‘‘Basically prohibits behavior in the
form of harassment, horseplay . . . rumors . . . back stab-
bing . . . violent behavior or possibly profanity.’’ Savino
testified that the policy covers harassment or rumor spread-
ing. Von Dreusche testified that the rule originated in about
1987; it includes various kinds of employee misconduct, in-
cluding, ‘‘misconduct that is adverse to good teamwork or
employee morale and such things as failing to follow the di-
rectives of a supervisor, retaliating against other employees,
rumor spreading, harassment, assaults, threats.’’ Counsel for
Respondent introduced into evidence numerous warnings and
one termination in October for violating this rule. One of
these warnings in 1987 was given to Davenport and another
employee for using abusive language rather than bringing the
situation to the attention of their supervisor. Although this
warning does not specifically state that it was a violation of
Respondent’s disruptive behavior rule, it states: ‘‘The manner
in which it did happen was not only contradictory to policy
and procedure, but disruptive as well, no matter what the rea-
sons.’’ Davenport and Clark each testified that they were not
aware that the Respondent had a rule regarding disruptive be-
havior. Brown testified that he had heard of a disruptive be-
havior policy prior to receiving his October 19 warning, but
didn’t know much about it.
Haskell testified that she attended the September 1 meet-
ing with Gerald Thornton, Respondent’s mine manager. At
this meeting, Thornton asked those present about the morale
of the work force and said that there would be no wage in-
crease that year because of the poor winter that they had.
Brown, who like Haskell was a member of the employee re-
lations team in September, testified that he attended this
meeting as well. At this meeting (in which safety and other
issues were discussed as well) the employees were told that
‘‘as of right then’’ there would be no raises, but that the
matter would be reconsidered at a subsequent time. After the
meeting, Brown was asked about it by Clark, Davenport, and
others, and he told them what occurred. As to the general re-
sponse of the employees to learning that there would be no
general wage increase, he testified: ‘‘Some of the people
were just glad to come back after layoffs. Some of the peo-
ple expected it, and some people were upset.’’ By memo to
the employees dated August 28, Respondent informed the
employees that because of the poor business conditions in
the prior season, there would be no wage or fringe benefit
adjustment at that time. Clark testified that he and many of
his fellow employees were displeased with this memo. The
facility has a phone system that is used to page people in
the mine. After reading this memo, Clark used this system
and made the announcement: ‘‘It’s time for a union.’’ Short-
ly thereafter, Smith took Clark to see von Dreusche, who
asked him about the statement that was made over the mine
phone, and Clark denied making or hearing that statement.
Von Dreusche said that a reliable source said that it was him,
but Clark again denied making the statement. Von Dreusche
testified that although his managers told him that Clark was
the one who made the statement over the mine phone, be-
cause Clark denied it he was not disciplined.
The morning of September 2 was when the ‘‘Haskell inci-
dent’’ occurred triggering the further incidents that, appar-
ently, resulted in Davenport’s termination. On that morning
Haskell, whose classification is mine support utility, was per-
forming her regular duties. At about 6:30 that morning, she
was preparing to water the equipment being operated in the
mine by her panel members. She testified that at about that
time she was watering Clark’s drill and while they were
about a foot apart, Clark asked her: ‘‘What was your meeting
about last night?’’ She said that Thornton asked them how
morale was underground because there was not going to be
a wage increase that year, but that she didn’t wish to discuss
it any further. She testified that Clark was not satisfied with
her response and seemed upset and said to her: ‘‘I was
fucking accused of starting a union.’’ Davenport, who was
standing behind Haskell, said that Clark had every right to
know what happened at the meeting because she was an em-
ployee relations team member. She testified that both Dav-
enport and Clark were speaking with raised voices, and Dav-
enport demanded to know more about the meeting; ‘‘he was
very persistent.’’ She testified: ‘‘I felt I was under pressure.
And working down in dark tunnels, it was two men that
were hostile toward me.’’ She told them that she didn’t wish
to discuss it any further, and if they wanted any more infor-
mation, they should speak to Thornton. She then saw Savino,
her supervisor, and told him of the incident and that she
couldn’t understand why they were questioning her about the
meeting when they could have learned about it from others.
Savino told her that when she completed the task she was
doing she should go to see Smith and tell him of the inci-
dent, which she did. She then returned to work.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Savino testified that on that morning Haskell approached
him and said that Clark and Davenport had verbally abused
her. Later that morning when he saw Smith he told him of
the incident and Smith met with Haskell. Shortly thereafter,
Smith asked Savino to accompany him to talk to Clark and
Davenport. Smith asked them for their side of the story and
they said that they asked Haskell about the meeting the prior
day. They told Clark and Davenport to ‘‘keep it away from
Crystal because it would upset her even more.’’ Davenport
became upset and began yelling at Smith. Smith ended the
meeting by telling them ‘‘that they shouldn’t go spreading
this around.’’ Smith testified that on September 2 Savino
stopped him and told him that Haskell was upset and wanted
to speak to him. Haskell got into the truck with him, crying
and upset. She told him what Clark and Davenport said to
her that morning; ‘‘She felt that she was getting ganged up
on.’’ He sent Haskell back to work and asked Savino to get
Clark and Davenport ‘‘to talk through this thing.’’ When
they got together, Smith told them that Haskell was very
upset over the conversation that morning, ‘‘and I’d like to
know what happened.’’ Clark said that he asked her what
happened at the meeting the prior day and she refused to tell
him. Davenport got ‘‘kind of excited’’ and said that they
didn’t harass her. Smith then said that they were not accus-
ing anybody of harassment; he was only trying to determine
what got her so upset. They responded that all they did was
ask her what happened at the meeting on the prior day and
‘‘she got all upset and stormed away.’’ Smith said that he
was trying to find out what happened and that he got one
story from Haskell and a different story from them. He
ended the meeting by saying that the ‘‘conversation is going
to stay right here between us four . . . Savino, Rusty, Tom,
and myself. I don’t want you going back and talking to Crys-
tal, and I don’t want you talking to your fellow employees
about this.’’ He asked if they understood what he was saying
and they said that they did. They were not given a warning
for what occurred in the morning, although he did write up
the incident and their conversation. Von Dreusche testified
that after Smith met with Clark and Davenport, he told them
‘‘that any other conversations regarding the events of that
morning with other employees were to end. This was a dead
issue, end it here.’’
Davenport testified that on the morning of September 2,
he asked Haskell what happened at the meeting the prior
day. She said that she couldn’t say and he returned to work.
Later that afternoon, Smith and Savino spoke to him and
Clark. Smith said that Haskell was offended by what they
said to her and he was giving them a verbal warning for the
incident. Davenport responded that he couldn’t understand
why, when all he did was to ask her what happened at the
meeting the prior day. Smith said that they were getting a
verbal warning for the incident and told them not to speak
to any employee about the incident. Clark testified that on
that morning Haskell was in the area watering his drill.
While she was doing that, Davenport asked her ‘‘how the
meeting went last night?’’ He testified: ‘‘I knew Crystal pret-
ty good—I could tell like she was upset.’’ She didn’t answer
Davenport’s question. Clark then asked her the same ques-
tion, and she said: ‘‘You ought to know, it was the same
fucking meeting you were in last night.’’ He assumed that
she was referring to the mine phone incident and said that
it wasn’t the same fucking meeting and then tried to calm
the situation by telling her ‘‘don’t worry about it’’ and he
returned to work. A couple of hours later, Savino and Smith
asked him and Davenport to meet with them. Smith said that
they had harassed and verbally abused Haskell, that it was
creating an uneasy work environment and that he was giving
them a verbal warning for it. Clark denied that there was any
harassment and told his side of the story. Davenport and
Smith ‘‘started to have an exchange of words.’’ It got
‘‘loud’’ and ‘‘a little rowdy.’’ A few minutes later every-
thing calmed down and Smith told them:
That’s all been a misunderstanding. I don’t know ex-
actly what happened here . . . but let the whole mat-
ter drop right here and now, and he wouldn’t go any
further. We agreed to it.
Unfortunately, it did not end there. Davenport testified that
after leaving the meeting with Clark, Savino, and Smith, he
went to the picnic table where employees often eat or take
a break; Brown was sitting there and he asked Davenport
what was going on? Davenport said that he got a warning
for harassment, without saying by whom, but that he
couldn’t talk about it. Shortly thereafter, while he and Clark
were having lunch at the table, Haskell approached them and
said: ‘‘What’s the matter with you guys?’’ He told her that
they got a verbal warning for harassing her and she said that
she didn’t accuse them of harassment. She went to call
Smith. When he came to the area, Haskell started yelling at
Smith that they never harassed her and that it was all made
up. Smith told them to come to the office to talk about it
and Smith, Davenport, Haskell, and Clark went to his office.
After they discussed the situation, Smith said that it was his
misunderstanding; he apologized and said that they should
put it behind them and return to work, which they did.
Brown testified that while he was having lunch that day, he
saw and heard Savino, Davenport, and Clark arguing: ‘‘It
was quite heated.’’ When Davenport came to his table,
Brown asked him what was going on and he said that ‘‘he
was turned in,’’ but that he couldn’t talk about it. Clark then
joined them and ‘‘they said’’ that they had been turned in
for harassment of Haskell because they tried to talk to her
about the meeting the prior day. Brown then ‘‘took it upon
myself to go tell Crystal to meet with these guys to get it
cleared up and end it because we have a lot of people with
heated tempers, and you can’t work closely if people are
feuding.’’ He told Haskell that, although he didn’t really
know what was said, that she should meet with Davenport
and Clark, and she agreed. He did not attend the meeting.
Within the next few days he was questioned about the inci-
dent by Pamel, von Dreusche, Supko, and Adams.
Clark testified that later in the morning after the incident
with Haskell, he went to the mine office and overheard a
conversation between Davenport, Haskell, and Bushey about
the incident that morning. Clark joined the conversation and
told Haskell that Smith had given them a verbal warning be-
cause of the alleged harassment that morning, and Haskell,
‘‘just flew off the end of the handle,’’ saying that it was
bullshit, and management were assholes, that she would
never complain that way. Bushey then suggested that they
call Smith and arrange to meet to work out the problem.
Davenport, Clark, Haskell, and Smith then went to Smith’s
office. Haskell told Smith that she didn’t do it, presumably
739CARGILL, INC.
4 There was testimony and a diagram by Haskell and Davenport
over exactly where they met and whether it was Respondent’s prop-
erty or public property. I find it unnecessary to discuss this testi-
mony or to decide that issue.
complain about Davenport and Clark harassing her, and
Smith said that the matter would be dropped and that there
wouldn’t be any warning about that morning’s incident. At
the conclusion of the meeting they all returned to work.
Haskell testified that shortly before noon on that day,
Brown told her that Davenport told him that she had filed
harassment charges against him. Shortly thereafter, when she
saw Davenport at the picnic table, she asked him why he
was saying that she filed harassment charges against him.
Davenport became hostile, told her that Smith had ‘‘jumped
all over him,’’ and said that she ‘‘owed him a fucking apol-
ogy.’’ She became upset and called Smith and told him that
Davenport was saying that she filed harassment charges
against him, and she wanted them to leave her alone. Smith
took them to his office, where Clark and Davenport apolo-
gized to her and she told them that she wasn’t filing charges
against them.
Smith testified that at about noon on that day he was
paged by Haskell, who wanted to see him. When he got to
the mine office, Haskell, who was crying, was with Dav-
enport, Clark, Brown, and Bushey. Haskell told him that they
were saying that she had filed harassment charges against
them and it wasn’t true and that she just wanted to ‘‘forget
about all this bullshit, do my job and get along with people.’’
He took Davenport, Clark, and Haskell to his office. When
they got there, Haskell said that she heard that Clark and
Davenport were saying that she filed harassment charges
against them, but ‘‘I’m not doing that.’’ Smith told them that
they were a team and had to work closely together without
hostility. When they lose sight of that, people get sloppy and
get hurt. He told them that he had heard conflicting stories
of the morning’s events: ‘‘I do know that I expect all of you
to put it behind you, forget about this thing for the day, get
back to the job and finish out the day and pay attention to
your work.’’ He did not issue any warnings to Davenport or
Clark at that time. However, he notified von Dreusche and
Supko of the incidents.
By memo from von Dreusche dated September 8, Dav-
enport was given a disciplinary warning for disruptive behav-
ior. The memo recited the events of the morning of Septem-
ber 2 and the incident with Haskell and that, at the conclu-
sion of that incident, the parties were told to keep the inci-
dent to themselves, but that later that morning, he involved
another employee, which caused Haskell to become upset.
The memo states:
Effective this date, you are placed on notice, that any
future occurrences of disruptive behavior, as that may
involve and is not expressly limited to, a lack of team-
work and cooperation between yourself and your co-
workers, the spreading of rumors, failure to follow di-
rections by supervision, and any other actions which
may create or lead to a hostile or threatening work en-
vironment will result in disciplinary action up to and
including termination. Any retaliation toward other em-
ployees in regard to this investigation or any future in-
cidents will not be tolerated and will result in discipli-
nary action up to and including termination.
Davenport testified that he was called to von Dreusche’s of-
fice on September 8 and was given this memo. Von
Dreusche read him the memo and Davenport asked why he
was being singled out and von Dreusche laughed. Davenport
said that he would like to discuss it with somebody else and
went to speak to Supko. He told Supko that he felt that it
was unfair that he was being singled out and that 6 days ear-
lier Smith had told him that the matter was being dropped.
He said that he felt that this was all due to the uproar about
the Union, and Supko told him that he didn’t care if the fa-
cility got a union. Supko said that he would review the mat-
ter and get back to him. On September 17, Davenport was
called to Supko’s office. Supko told him that the write up
would stand because he had spoken to Brown about the inci-
dent after being told not to talk about it. Davenport said that
this was due to his union activities and that he was going
to put in a complaint with the Board. He also asked to speak
to somebody at Respondent’s headquarters in Minneapolis.
Von Dreusche testified that he gave Davenport the Sep-
tember 8 warning because he failed to follow a supervisor’s
direction. On the morning of September 2, at the conclusion
of the incident with Haskell, Smith told all present that the
incident was over and they were not to speak to anyone
about it further and, within a number of hours, Davenport
told Brown that Haskell was filing harassment charges
against him. After von Dreusche read and gave the memo to
him, Davenport went to speak to Supko. Supko testified that
he met with Davenport on September 9; Davenport took ex-
ception to the September 8 warning and asked him to remove
it from his file. Davenport never claimed that it was caused
by his union activities. Davenport claimed that Smith told
him not to discuss the matter further with Haskell and that
he did not speak to any other employee about the incident.
Supko told him that he would investigate the matter and on
September 15, he spoke to Brown, Clark, Haskell, and
Savino, none of whom supported Davenport’s version of the
events and, on September 17, Supko called Davenport to his
office and told him that he felt that the discipline was appro-
priate and warranted. Davenport said that he wanted to speak
to somebody in Minneapolis, and Supko made arrangements
for him to do so.
The next incident occurred as Davenport was leaving the
facility that day (September 17) after speaking to Supko.
Haskell was arriving at the facility to get her paycheck and
Davenport was leaving when their paths crossed.4 Haskell
testified that they ‘‘met face to face’’ and Davenport stopped
and told her that the Respondent ‘‘was only using me as a
scapegoat for information and he’s going to get a lawyer and
he was going to sue everybody and even sounded like he
was going to sue me.’’ This made her upset and, after getting
her check, she asked to speak to Adams. She told Adams
what happened and Adams told her that she would inform
Supko and von Dreusche of the incident. A few days later
von Dreusche questioned her about the incident and where
it took place. Von Dreusche testified that Adams told him of
the September 17 incident and asked him to look into it. He
spoke to Haskell about it, and she told him that they passed
each other in front of the building and Davenport told her
that she had not heard the end of the September 2 incident,
that she would be hearing from his lawyer and she would be
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sued along with some of Respondent’s personnel; as a result,
she was very upset. He and Supko met with Davenport on
September 22 to get his version of the incident. Supko testi-
fied that he observed the September 17 incident because his
office window is adjacent to the front door. He observed
Davenport and Haskell meet on the sidewalk in front of the
building. Haskell spoke to him about the incident and said
that Davenport told her that she would hear from his attorney
because he was going to sue her.
Davenport testified that as he was going to his car after
leaving the building on September 17, he met Haskell and
told her that Supko ‘‘wouldn’t throw the write-up out, and
I was going to have to turn it in to Minneapolis.’’ Haskell’s
response was: ‘‘Oh, I wish that they would leave us alone
on this.’’ He testified that Haskell seemed concerned, but not
upset.
Supko and von Dreusche met with Davenport on Septem-
ber 22 in Supko’s office. Davenport testified that he was
handed a copy of the September 8 warning and he was asked
what happened when he met Haskell on September 17; he
said that what he did outside of work was his own business.
They told him that he was terminated and he said that he
didn’t understand how he could be terminated for something
that occurred outside of work. He met again with von
Dreusche and Supko at 6 a.m. the following day. They again
read him the prior warning and asked if he understood the
contents of the memo; he said that he did. They said that:
they weren’t going to terminate me at that point, but if
any . . . further instances of disruptive behavior hap-
pened either at work, outside of work, off the clock or
on the clock that they considered disruptive, I would be
terminated.
Davenport asked Supko what he considered disruptive, but
Supko would not respond. Rather, he said that this was a
writeup and that he would be terminated for one more in-
stance of disruptive behavior at work or outside of work, on
or off the clock. Davenport said to von Dreusche: ‘‘Do you
hear that? Do you agree with that?’’ He said that he did and
Davenport said that he understood and returned to work.
Supko and von Dreusche testified that the purpose of the
September 22 meeting with Davenport was to get his side of
the story of the September 17 incident with Haskell. Supko
testified that at this meeting he reviewed the September 8 let-
ter, told him what their expectations were for him, and that
future similar actions would result in his termination. Dav-
enport refused to discuss the September 17 incident with
Haskell, but said that he understood the provisions of the let-
ter. Davenport asked to speak to somebody in Respondent’s
Minneapolis office and the meeting was adjourned to resume
the following day at 5:30 a.m. Davenport reported to the
meeting at 6 a.m. the following day. Supko asked him if he
understood the terms of the letter and whether he could com-
ply with them; he answered yes to both questions. Davenport
asked him for a definition of disruptive behavior and if the
provisions applied while he was off the clock. Supko read
from the September 8 letter for a definition of disruptive be-
havior, and the circumstances that would dictate whether it
could occur while he was off the clock. At that point, Dav-
enport got excited and asked von Dreusche if he heard what
Supko said. Davenport was not terminated at either of these
meetings. Von Dreusche testified that Davenport refused to
discuss the September 17 incident except to claim that it oc-
curred off Respondent’s premises. They told him that his ac-
tions on September 17 were unacceptable and they wanted
to know if he understood what disruptive behavior was and
Supko asked him if he could abide by the terms of the Sep-
tember 8 warning. When Supko asked Davenport if he met
Haskell outside the facility on September 17, Davenport
asked to speak to somebody in Minneapolis. At the meeting
on the following morning, Davenport asked Supko for the
definition of disruptive behavior and asked that it be put in
writing. Supko read to him from the September 8 letter.
Supko asked him if he understood the letter and whether he
could abide by it and he answered yes. Davenport asked if
the rule applied both on and off the clock and Supko an-
swered that it applied on as well as off the clock. Davenport
grinned and asked von Dreusche if he heard what Supko
said, and he said that he did. Davenport was not terminated
on either September 22 or 23.
On about October 7, while a number of the employees in-
cluding Brown and Bushey were sitting at the picnic table
at the facility, Bushey (who did not testify) is alleged to have
made an antiunion statement. Brown, who was present at the
time, testified that Bushey said that he was dead set against
the Union, and would do anything that he could do to keep
them out of the facility, including driving through their pick-
et line. The next day Brown called Clark at home and told
him of Bushey’s statement and, a few days later, he told
Pamel what Bushey said. Shortly thereafter, Pamel ques-
tioned him about the incident. Davenport testified that he
was present when Bushey stated that he would run over any
union organizer with a Wagner. Shortly thereafter, Pamel
asked him about the statement and Davenport said that he
heard the statement and felt threatened by it since he was a
union organizer at the facility. Haskell testified that Pamel
asked her if she heard Bushey threaten to run over supporters
of the Union and she said that she did not hear such a threat.
Clark testified that Brown called him at home and told him
that Bushey said that he would do whatever he could do to
keep the Union out, even if he had to run somebody over
with a Wagner. On the next day, Clark went to see Pamel
and told him of this statement that Brown told him was made
by Bushey, and that he felt threatened by the statement.
Pamel said that he needed names, and Clark said that he
would give him names. He was later told that they inter-
viewed a number of employees, but that they could not find
substantial grounds to support the allegation.
Pamel testified that in October Clark came to his office
and told him that Brown told him that Bushey said that he
would run over union supporters with his Wagner and that
he (Clark) was the principal union activist. Pamel said that
he would investigate and he spoke to Brown, who said that
Bushey made a comment at the break table at the facility that
he would do anything he could do in order to keep the Union
out, even if he had to run over somebody with his Wagner.
Brown said that he didn’t know whether Bushey was serious
when he made the statement. Pamel also spoke to Bushey,
who denied making the statement, to Davenport, who said
that he did make the statement, and to Haskell and Kurt
Shoemaker. He informed Clark that he was unable to con-
clude whether or not Bushey had made the statement, al-
741CARGILL, INC.
5 There was some testimony regarding prior accidents that Antrum
was involved in. He testified that he had been involved in one recent
accident with his Wagner.
though he did conclude that there was a heated discussion of
the Union at the time.
The next event to occur herein was an alleged ‘‘near
miss’’ by Antrum5 that was reported by Davenport in mid-
October, and some teasing of Antrum that resulted. Dav-
enport testified that on October 17 he ‘‘was almost run over
by a Wagner’’ operated by Antrum. It occurred while he was
walking back to the mine office and he was beside a pillar:
‘‘Teddy Antrum came sliding with the Wagner, and he slid
within a foot of me and came to a sliding stop.’’ Davenport
was startled and scared and spoke to Antrum, who apolo-
gized for the incident and told him to report it to Savino,
which is required for accidents or near misses at the facility,
and he did so. Antrum testified that the alleged incident oc-
curred on October 14, but was not a near miss. On that day
he was driving his Wagner (which has a top speed of less
than 10 miles per hour) down a tunnel and he observed Dav-
enport walking in the tunnel, but further out in the tunnel
than he should have been. In addition, Davenport did not
look behind him while he was walking. Antrum passed him
by a comfortable margin and stopped his Wagner about 15
feet ahead of Davenport. When Davenport reached him, An-
trum told him that he was walking too far out in the tunnel
and that he should stop and look around more often while
walking in the tunnels because he could have been hit. Sub-
sequently, Pamel questioned him about the incident as part
of his investigation of the ‘‘near miss’’ that Davenport re-
ported. Later that day, while Antrum was at the picnic table
with other employees, Davenport made a comment to him
such as: ‘‘I hope you’re not going to run into me.’’ He did
not respond. Later that day, with many of the other panel
members present, Davenport made about the same comment
to him; again, he did not reply. Before leaving that day, An-
trum complained to Savino about Davenport’s comments
about his driving and Savino said that he would have a meet-
ing of the panel. The next day, while the employees were on
the truck waiting to go into the mine, Davenport again asked
Antrum: ‘‘Are you going to run into me today?’’ Antrum an-
swered: ‘‘Listen, I’ve heard enough of it. I don’t want to
hear it anymore, and we’re going to discuss it with Savino
today.’’ When they met with Savino later in the day, as An-
trum began telling his side of the story, Davenport began
yelling and screaming and called him a liar, causing him to
be unable to complete his story.
Davenport testified that at the picnic table later that day
he joined with other employees and said something to An-
trum such as: ‘‘Be careful you don’t hit me.’’ Many of the
employees were also joking about it. On the next day, while
they were in the truck, he said to Antrum: ‘‘Teddy, don’t hit
me today’’ and Antrum got angry and said: ‘‘You’re a liar.
I didn’t hit you.’’ Later, Savino met with both of them. An-
trum claimed that it was not a near miss, that he saw Dav-
enport all the time during the incident. Davenport said that
he was scared because Antrum almost ran over him.
Savino testified that in mid-October Davenport told him
that Antrum almost hit him with his Wagner. When he dis-
cussed it with Antrum, he told Savino that he saw Davenport
during the entire period, and that Davenport was walking in
an area of the tunnel where he should not have been and that
it was not a near miss. Savino then told Davenport that the
two stories were completely different, there were no wit-
nesses, and he therefore could not conclude that there was
a near miss. Davenport was not satisfied, and Savino told
him to talk to Pamel. On the following day Antrum told him
that he would like to meet with Davenport to settle the mat-
ter, so Savino arranged for a meeting. It ended up as a
‘‘verbal fight’’ and nothing was resolved. Pamel testified that
on October 15 Davenport asked him to investigate the al-
leged near miss with Antrum. He told Pamel that Antrum
came to ‘‘a screeching halt within an arm’s length of him’’
and yelled at him that he should not be walking in the tun-
nel, that he could have run him over. He also told Pamel that
later in the day he made a joking comment to Antrum about
hoping that he didn’t run him over, and that Antrum got
upset. Pamel’s notes of this conversation state that he told
Davenport: ‘‘I am happy to investigate this incident, but if
this is B.S. [bullshit] and if Rusty is instigating problems, he
will be in big trouble. Rusty insisted he had legitimate con-
cerns.’’ Pamel then spoke to Antrum, who said that there
was no near miss, that he drove past Davenport and stopped,
and told Davenport that he should not have been walking
where he was, that he could have gotten hit, but Davenport
ignored him and continued walking. He also told Pamel
about Davenport’s subsequent remarks about his driving abil-
ity, and that he was bothered by these remarks because they
concerned his reputation as a Wagner operator. Pamel then
spoke to Brown, Clark, Bushey, Haskell, and Bruce Fellows,
and each said that they had no direct knowledge of the inci-
dent, but that Davenport had told them of it. He testified:
‘‘There was no reason to involve all of these other employ-
ees. It was addressed with the supervisors and should have
been handled that way.’’ After his investigation, he was un-
able to conclude whether or not a near miss occurred.
‘‘However, I thought it was strange the way Rusty had cho-
sen to communicate to the other employees in the work
group.’’
Savino testified that a couple of weeks prior to this inci-
dent, at a safety meeting, Antrum suggested that employees
in the mine be required to wear the cap lamp on their head.
On the day before the Antrum incident, while he was in the
mine, he saw Davenport without the lamp on his head and
he told Davenport to put the lamp on his head. Davenport
commented that it ‘‘was all because of that blind mother,’’
which Savino understood referred to Antrum, who is black.
Von Dreusche testified that he received the reports of Savino
and Pamel on this alleged incident and they both felt that
Davenport’s story was fabricated, for two reasons. The prin-
cipal reason was that on the day before the alleged incident,
Savino had to tell Davenport to wear his cap lamp on his
head, a safety idea initiated 2 weeks earlier by Antrum, and
Davenport made a derogatory comment about Antrum. In ad-
dition, there was no reason to involve Brown and Clark in
the incident as Davenport had done. After reviewing this in-
cident, von Dreusche, by memo to Supko dated October 21,
recited some of the above-described events of the prior 7
weeks and recommended that Davenport be terminated. An
intervening event occurred, however, before that final deter-
mination was made.
On October 19, Davenport damaged the Superbolter ma-
chine that he was operating. His testimony, and General
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 These are used when heavy machines have to cross over elec-
trical cables. They prevent damage to the cables.
Counsel’s position, is that this accident was not his fault and
was used as an excuse for a final reason to terminate him.
Davenport testified that he had to back his machine to a dif-
ferent area and Savino assisted him in this move. During this
move, he was ‘‘under the direct supervision’’ of Savino, who
was ‘‘guiding’’ him because he could not see behind his ma-
chine. After about 15 minutes of this process, while he was
backing up his machine with Savino’s guidance, he hit an-
other truck causing some damage. Prior to the hit, he did not
see the truck and Savino did not warn him that it was there.
He testified that Clark, Brown, and Shoemaker were in the
area at the time and probably witnessed the incident. Savino
wrote a report on the accident and, on the following day,
Davenport asked him why the report did not state that he
was present during the entire period. He testified that Savino
said: ‘‘Would you?’’ Davenport also testified that standard
procedure in cases where there is damage to equipment is for
the supervisor to take pictures of the damaged equipment;
pictures were not taken of the damaged truck on this occa-
sion. Savino prepared a report of this incident, dated October
21, which states that the damage to the truck was $1000 and,
under ‘‘Immediate Causes,’’ he wrote: ‘‘Operator was aware
that the truck was near him, but didn’t know how close he
was. Operator didn’t check where the truck was before mov-
ing the Bolter.’’ Clark testified that he was in an adjacent
tunnel at the time of the alleged accident. He saw that
Savino’s truck (the one that was damaged) was parked in the
tunnel with its lights out and Savino approached him to bor-
row crossing ramps to assist Davenport.
Savino testified that he parked his truck with the lights on
at the side of the tunnel at about 10:15 while he was making
a gas check, which is part of his normal routine. When he
saw that Davenport had to get across the panel with his ma-
chine, he assisted him by getting crossovers for him.6 He
gave the crossovers to Davenport and left the area to check
the panels for gas. When he returned to the area, he saw that
his truck had been damaged by Davenport’s machine. He tes-
tified that it was obvious that Davenport’s Superbolter had
done the damage because he could see the tracks from the
machine to his truck. He showed Davenport the damage, and
Davenport said: ‘‘Oh, no, here we go again.’’ Later on, when
he investigated the incident, Davenport told him that he
knew the truck was there, but he neither admitted nor denied
hitting the truck. Savino did not include himself in the inci-
dent report because his only participation was that it was his
truck that was damaged and he got the crossovers for Dav-
enport. He testified further that picture taking is normally
done when an individual is injured or almost injured, but it
is not usually done with equipment damage. He notified
Pamel and von Dreusche of the incident. Pamel testified that
he read the incident report and concluded that the accident
was caused by operator error although he never questioned
Davenport about the situation. He also testified that they are
not required to take pictures of all accidents at the facility.
Von Dreusche testified that he was notified of the accident
and read the incident report. He was also present at a meet-
ing on October 22 wherein it was decided that Davenport
would be terminated.
Present at this meeting were von Dreusche, Thornton,
Adams, and Supko. Von Dreusche’s recommendation that
Davenport be terminated because of the Antrum incident and
the disruptive behavior incidents involving Haskell in Sep-
tember, as contained in his October 21 letter to Supko was
not accepted because of the October 19 accident. Von
Dreusche testified that at this meeting it was decided that he
should be terminated because of that incident, the Antrum in-
cident and the Haskell incidents of the prior 7 weeks, and
his attendance record. Davenport’s union activity was not
discussed at this meeting. Adams testified that those present
decided that Davenport should be terminated. The reasons
that were discussed were the Antrum incident, the October
19 equipment damage as well as prior problems that Dav-
enport had with equipment damage, and attendance problems
that he had. She could not remember whether the Haskell in-
cidents were discussed at the meeting, but the Union was not
mentioned at the meeting. Supko testified that the meeting
was initiated by von Dreusche’s recommendation that Dav-
enport be terminated. At the meeting they discussed the Sep-
tember 8 warning that resulted from the Haskell incident on
September 2, the counseling of September 22 and 23 that re-
sulted from the September 17 incident with Haskell, the An-
trum incident, the October 19 equipment damage and Dav-
enport’s attendance record, and it was decided that he should
be fired. His union activity was not mentioned.
Von Dreusche and Pamel met with Davenport on the fol-
lowing day at which time von Dreusche told him that he was
being terminated. He told him that the reasons he was being
fired were the equipment damage that he caused, the disrup-
tive behavior that he engaged in, more particularly the An-
trum incident, and his attendance record. In addition, he gave
him a copy of a written warning for poor job performance
that Smith gave him on April 10, 1991. The letter states:
‘‘your work performance history reflects incidents of equip-
ment damage resulting in disciplinary actions.’’ It concludes:
Even though your letter of September 1988 stated that
continued poor work performance would result in ter-
mination, you are again being given the benefit of the
doubt due to length of time since that letter. However,
no such lapses will be tolerated any longer. The con-
sistency of your work performance must improve for the
remainder of your employment with Cargill. Future
lapses will result in further disciplinary action up to and
including termination. [Emphasis added.]
Pamel testified that von Dreusche told Davenport that he was
being terminated for work performance and the unsafe oper-
ation of equipment. ‘‘He may have’’ also referred to disrup-
tive behavior, such as the Antrum incident.
Davenport testified that he was terminated at this meeting,
but was never told of a reason for the termination. Von
Dreusche mentioned the Antrum incident and gave him two
prior warnings, the September 8 warning and, presumably,
the April 1991 warning referred to above. Von Dreusche
never mentioned the October 19 incident.
As stated above, the parties discussed Davenport’s attend-
ance problems and equipment damage problems at the Octo-
ber 22 meeting. Without going in detail, counsel for Re-
spondent introduced into evidence 15 written warnings given
to Davenport for absenteeism, excessive absenteeism, or at-
743CARGILL, INC.
tendance problems, dated from June 1988 to January 1992.
In addition, Davenport was given five written warnings for
damage to equipment or poor work performance from No-
vember 1986 through June 1991, including the April 10,
1991 warning from Smith referred to above. Further, he was
counseled by letter about eight instances of poor work per-
formance during the period July 1990 through October 1991.
IV. ANALYSIS
I should initially state that I did not find Davenport to be
a particularly credible witness. I found, rather, that he has a
tendency toward denial of having done anything wrong; for
example, he could not remember most of the written warn-
ings that he was shown by counsel for Respondent. In addi-
tion, he tended to explain many of his answers on cross ex-
amination, even when not asked to do so. On the other hand,
I found Brown a credible and believable witness. Of Re-
spondent’s witnesses, the only one whom I found not to be
totally credible and believable was Haskell; she seemed eva-
sive, at times, and appeared to not remember events when it
was convenient for her. However, I would credit her testi-
mony over that of Davenport. The other witnesses called by
Respondent testified in a direct and truthful manner and ap-
peared to be credible witnesses.
It is alleged that Davenport’s discharge violated the Act
for two reasons; firstly, that he was fired on October 23 be-
cause of his activities on behalf of the Union in violation of
Section 8(a)(1) and (3) of the Act. In the alternative, it is al-
leged that the September 8 warning that Davenport received
for his actions on September 2 would have violated Section
8(a)(1) of the Act as retaliation for his protected concerted
activities of questioning Haskell about what was said at the
meeting on the prior day had a timely charge been filed re-
garding this allegation. However, General Counsel alleges,
since Davenport’s October 23 termination was based, at least
in part, on this September 8 warning, the termination like-
wise was due to his earlier protected concerted activities and
therefor violates Section 8(a)(1) of the Act.
Respondent, as an affirmative defense in its answer, al-
leges that the complaint is based on alleged unfair labor
practices that occurred more than 6 months prior to the filing
of the charge and it should therefore be dismissed in its en-
tirety. This defense should really be separated into two
issues: the applicability of Section 10(b) to the 8(a)(3) allega-
tion and its applicability to the 8(a)(1) allegation. Davenport
was terminated on October 23. On April 23, 1993, exactly
6 months later, he filed his initial unfair labor practice
charge, alleging that he was terminated by Respondent on
October 23 because of his union activities. MacDonald’s In-
dustrial Products, 281 NLRB 577 (1986), cited by counsel
for General Counsel in his brief, states that the 10(b) 6-
month period ‘‘properly begins the day following the com-
mission of the alleged unfair labor practice.’’ Therefore, the
unfair labor practice charge was timely filed for the 8(a)(3)
allegation. The defense that the charge was untimely for the
8(a)(1) allegation is more complicated. By an amended unfair
labor practice charge filed on June 23, Davenport added the
following allegation:
Since on or about October 23, 1992, it, through its offi-
cers, agents, and representatives, has interfered with, re-
strained, and coerced, and is interfering with, restrain-
ing, and coercing employees of Cargill Salt, Inc. in the
exercise of their rights of self-organization, to form,
join, or assist labor organizations . . . which rights are
guaranteed in Section 7 of the Act.
Six days later, Davenport filed a second amended charge that
was identical except it added the words: ‘‘by terminating the
employment of Rusty Davenport because of his protected
concerted activities.’’
It was therefore not until June 29 that a charge was filed
alleging that Davenport’s termination violated Section 8(a)(1)
of the Act. However, as stated above, a timely charge had
been filed alleging that he had been discharged because of
his union activities, in violation of Section 8(a)(3) of the Act.
A timely charge can ‘‘bootstrap’’ an otherwise untimely
charge when the allegation in the latter charge is ‘‘closely re-
lated’’ to the original timely filed charge. All three unfair
labor practice charges relate to Davenport’s discharge on Oc-
tober 23; the only difference is that the early charge alleged
it as an 8(a)(3) allegation, while the latter charges added an
8(a)(1) concerted activities violation. There are therefor
closely related, and the charges were timely filed. The af-
firmative defense is therefore dismissed.
Under Wright Line, 251 NLRB 1083 (1980), it is the Gen-
eral Counsel who had the initial burden of establishing a
prima facie showing to support the inference that the em-
ployee’s protected conduct was a ‘‘motivating factor’’ in the
employer’s decision. If the General Counsel satisfies this
burden, the burden then shifts to the Respondent to dem-
onstrate that the same action would have taken place even
absent the protected conduct. Turning first to the 8(a)(3) alle-
gation, I find that the General Counsel has not sustained his
initial burden under Wright Line. Davenport was active in at-
tempting to build the support for the Union at the facility,
but so was Clark (and more so) and Brown (less so). Re-
spondent admits that it was aware of the union movement at
the facility during 1992 and some of Respondent’s super-
visors testified that they were aware of Davenport’s support
for the Union. However, Davenport testified that he has been
active for the Union since 1991, that he told Greuber, his su-
pervisor, in July 1991 that he was interested in having a
union at the facility, and von Klinggraeff wrote a memo to
the file in July 1991 stating that Davenport spoke to Clark
about bringing back a union to the facility. Yet no action
was taken against Davenport at that time. More importantly,
General Counsel failed to prove any union animus on the
part of Respondent. The only evidence adduced at the hear-
ing in this regard was some time-barred discussions about the
Union, and these were mainly friendly discussions. More to
the point, during this period, Respondent held no meetings
with its employees about the Union nor did it mail any let-
ters to its employees regarding the union campaign. When
Davenport complained to Supko about the September 8
warning, and said that it was caused by the union uproar,
Supko told him that he didn’t care if they had a union at the
facility. Additionally, two-thirds of Respondent’s employees
are unionized and are represented by about 30 different
unions under about 150 different collective-bargaining agree-
ments. This is not an employer that was giving much thought
to the union campaign, much less, an employer who was fir-
ing employees for supporting the Union.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I do not understand why Respondent gave Davenport this warn-
ing after Smith had told all the participants in the September 2 inci-
dent to put the matter behind them. However, absent a violation of
the Act, it is not within my responsibilities to substitute my judg-
ment for that of another.
Although Davenport was an active union supporter, Clark
apparently was the principal spokesman for the Union at the
facility, and von Dreusche, Pamel, and Supko were aware of
this. Clark called the Union and had the initial union meeting
at his house. On about September 1, when Clark yelled into
the mine phone: ‘‘It’s time for a union,’’ Respondent did not
punish him for the incident even though von Dreusche said
that he had a reliable source who told him that it was Clark
who made the statement. An employer with union animus
would not have backed off from an opportunity like this to
punish a union supporter. The strongest evidence supporting
General Counsel’s case is the timing: the union campaign
was building during September and October and Davenport
was terminated on October 23. Respondent, however, pre-
sented a strong case to establish that it was not the union
campaign, but rather was his problems at work, that caused
his termination. At the same time that the union campaign
was gaining momentum, so were Davenport’s misdeeds. On
September 2, he and Clark questioned, or harassed, Haskell
about the meeting on the prior day. I find that it should more
properly be characterized as harassment. Brown also attended
the September 1 meeting and, apparently, heard Thornton
speak as well. The unanswered question is why Davenport
and Clark were asking Haskell about the meeting when they
had already learned from Brown what occurred at the meet-
ing. When Haskell made it clear that she didn’t want to dis-
cuss it, they persisted. Further, after Smith told them that the
matter was over and they should not discuss it any further,
Davenport discussed it with Brown. Two weeks later, upon
meeting Haskell outside Respondent’s facility as she was
preparing to enter to get her check and he was leaving after
Supko told him that the September 8 warning7 would stand,
Davenport told her that he was going to sue the Respondent
and hinted that he would sue her as well. This further upset
her. The next incident was the ‘‘near miss’’ on October 14
that Davenport reported. Based upon my observation of the
witnesses and the circumstances herein, I find that Respond-
ent reasonably concluded that this incident did not happen as
Davenport reported. The final incident was the October 19
accident with Davenport’s Superbolter. General Counsel ar-
gues that this accident was not Davenport’s fault and oc-
curred while Savino was guiding him while he was backing
up his machine. There were apparently no direct witnesses
to this incident so my finding as to the cause of the incident
must be based upon my credibility finding as between Dav-
enport and Savino. I found Savino to be a totally credible
and believable witness while I found Davenport to often be
less than credible. Additionally, to believe Davenport’s testi-
mony on this incident would require a finding that it was a
setup as an excuse to terminate Davenport. However, von
Dreusche had recommended that Davenport be fired even be-
fore learning of this incident. I therefore find that General
Counsel has failed to sustain his initial burden under Wright
Line and recommend that the 8(a)(3) allegation be dismissed.
General Counsel also alleges that Davenport’s termination
violated Section 8(a)(1) of the Act. The allegation originates
with the claim that when Davenport and Clark were ques-
tioning Haskell about what happened at the September 1
meeting, that they were engaged in protected concerted ac-
tivities and that the September 8 warning, which allegedly
was based upon this incident, would have violated Section
8(a)(1) of the Act if a timely charge had been filed. How-
ever, according to General Counsel’s position herein, as Dav-
enport’s termination was based, in part, on the September 8
warning, the discharge likewise violates Section 8(a)(1) of
the Act as one that was caused, at least in part, by Dav-
enport’s protected concerted activities. This allegation re-
quires that two questions be answered: Was Davenport’s
questioning of Haskell on September 2 an element in his ter-
mination and, if so, did it constitute protected concerted ac-
tivities? The difficulty in answering the first question is that
there were so many possible causes for discharge that it is
difficult to determine if the questioning of Haskell was one
of them. Adams testified that Davenport was terminated be-
cause of the October 19 incident, the Antrum incident a
week earlier and Davenport’s problems with attendance and
equipment damage. She could not remember whether the
Haskell incident of September 2 was discussed. Supko testi-
fied that the September 8 warning, the September 17 inci-
dent, the Antrum incident, the October 19 equipment damage
incident, and his attendance and equipment damage problem
were discussed as the reasons for discharging Davenport.
Davenport testified that he was not given a reason for his
discharge on October 23, although von Dreusche mentioned
the Antrum incident and gave him copies of the September
8 warning and the April 10, 1991 warning. Von Dreusche
testified that he told Davenport that he was being fired for
the disruptive behavior involved in the Antrum incident, the
equipment damage that he was involved in and his attend-
ance problems; he also gave him a copy of the April 10,
1991 warning. Pamel testified that von Dreusche told Dav-
enport that he was being discharged for work performance
and the unsafe operation of equipment; he may also have re-
ferred to disruptive behavior, such as the Antrum incident.
The above evidence convinces me that Davenport’s initial
involvement with Haskell on the morning of September 2
played no part in his termination. The evidence establishes
that the September 17 and October 19 incidents, the Antrum
incident, his attendance and equipment damage difficulties
caused Respondent to terminate him. The September 8 warn-
ing may have been discussed at the October 22 meeting
where it was decided that Davenport would be fired. How-
ever, that warning was not for questioning Haskell, which
may or may not constitute protected concerted activities, but
for disobeying Smith’s instructions that the matter shouldn’t
go any further and they should not discuss it further with
anyone. Von Dreusche testified that he gave Davenport this
warning because he failed to follow Smith’s order. Dav-
enport testified that Supko told him that he got the warning
because he spoke to Brown about the incident after being
told not to do so. As Davenport’s alleged protected concerted
activities played no part in Respondent’s determination to
fire him, I therefore recommend that the 8(a)(1) allegation
herein be dismissed.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
745CARGILL, INC.
8 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.
2. The Union has been a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
It having been found and concluded that the Respondent
has not engaged in the unfair labor practices alleged in the
complaint herein, the complaint is dismissed in its entirety.