Dunham's Athleisure Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 622 (N.L.R.B. 1995)

622
318 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 It is not entirely clear from the record whether Taylor should
have been credited with having ‘‘bought back’’ some points as a re-
sult of his performing certain Saturday overtime work and whether,
in light of his preemployment interview with Picotte, some points
should not have been charged for absences necessitated by court ap-
pearances.
Dunham’s Athleisure Corporation and Local Union
No. 51, International Brotherhood of Team-
sters, AFL–CIO. Cases 7–CA–35437 and 7–CA–
35797
August 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 13, 1994, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
1. We agree with the judge’s finding, for the reasons
he set forth, that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employee
Roderick Taylor because of his union activities. Tay-
lor, who was hired by the Respondent in November
1993, was an open and active supporter of the Union
during its organizational campaign. In December 1993,
Taylor began wearing a union hat, pin, and T-shirt at
work, and on two occasions he handed out union flyers
at the street end of the driveway leading into the Re-
spondent’s facility.
The Respondent maintains an attendance program,
under which employees accumulate points for being
late to work, leaving early, or being absent. The pro-
gram provides that an employee will be counseled and
ultimately discharged after the accumulation of a cer-
tain number of points. Employees who work overtime
on Saturdays can ‘‘buy back Points.’’ During his em-
ployment interview with Eileen Picotte, the Respond-
ent’s human resources manager, Taylor, informed
Picotte that in the first weeks of his employment he
would be absent for a few days because he had to ap-
pear in court several times in connection with a di-
vorce and child custody dispute in which he was in-
volved. Picotte told him that she would work with him
on it and that all he had to do was to bring in some
type of documentation from the court to substantiate
the reason for his absence.
On January 4, 1994, the Union distributed at the fa-
cility a flyer which included pictures of some of the
Respondent’s employees and their statements of sup-
port for the Union. Taylor’s picture and statement ap-
peared on this flyer.
On January 5, Taylor was called into Picotte’s of-
fice. Taylor was wearing a shirt that said, ‘‘Vote Yes,
Teamsters.’’ Picotte commented on Taylor’s shirt by
saying to him, ‘‘How do you expect the company to
do anything for you when you walk around with Union
Teamster caps and T-shirts on?’’ Picotte then told Tay-
lor that he had violated the Respondent’s attendance
points policy. Picotte asked Taylor what he could tell
her to make her change her decision to discharge him.
Taylor replied that if Picotte was asking him to vote
‘‘no’’ in the upcoming election, he would not do that,
but rather would vote ‘‘yes’’ even if she fired him.
Picotte concluded this discussion by telling Taylor he
was discharged.
In adopting the judge’s finding that the Respondent
discriminatorily discharged Taylor, we emphasize that
in the meeting in which Picotte discharged Taylor, she
specifically tied his discharge to his union sentiments.
Picotte’s statements in this context clearly reflect a
causal connection between the discharge and Taylor’s
union activity and establish a strong prima facie case
that Taylor’s union activity was a motivating factor in
his discharge within the meaning of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 393 (1982). In addition,
we rely on the timing of the discharge, which occurred
only 1 day after Taylor’s picture appeared in a flyer
expressing his support for the Union, and just 2 days
before the representation election.
Accordingly, under Wright Line, the burden shifts to
the Respondent to show that it would have discharged
Taylor even in the absence of his union activity. In his
answering brief, the General Counsel correctly ac-
knowledges that it is debatable whether Taylor reached
the maximum number of points such that his discharge
was warranted under the Respondent’s attendance pro-
gram.2 What is clear from Picotte’s final statements to
Taylor, however, is that his discharge was not an in-
evitability and that she had the discretion to vary that
outcome. After initially stating that Taylor’s wearing
of union insignia made it unlikely that the Respondent
could ‘‘do anything’’ for him, Picotte pointedly asked
Taylor if there was anything he could tell her that
would change her decision to discharge him. In light
of Picotte’s initial comment on Taylor’s prounion at-
623DUNHAM’S ATHLEISURE CORP.
tire, Taylor reasonably interpreted Picotte’s question as
referring to his vote in the NLRB election then just 2
days away. Picotte did nothing to correct Taylor’s in-
terpretation. We therefore infer that Picotte was seek-
ing to ‘‘persuade’’ Taylor to switch his sympathies and
that, if he had answered her question appropriately, she
would not have discharged him. Consequently, we
conclude that the Respondent has not met its burden
of showing that it would have discharged Taylor even
in the absence of his union activity. Therefore, we find
that the General Counsel has carried his burden of
proving that Taylor’s protected conduct was a substan-
tial or motivating factor in the adverse action taken
against him by the Respondent and adopt the judge’s
finding that the Respondent violated Section 8(a)(3)
and (1) by discharging Taylor.
2. We also agree with the judge that Steven Laycock
was discharged for his union activity in violation of
Section 8(a)(3) and (1). Laycock, who was a line lead-
er in the receiving department at the time of his dis-
charge, was considered by his supervisors to be an ex-
emplary employee who had not received any warnings
or discipline, except for attendance.
Four months before his discharge, Laycock was
handbilling for the Union in the parking lot. He was
observed by almost all of the Respondent’s higher
management officials. His picture appeared on union
flyers 2 months before his discharge.
On March 18, 1994, the day of his termination,
Laycock punched in at the usual time, 6:30 a.m., 30
minutes before the starting time for the rest of his
crew. For 10 or 15 minutes, he walked through his
area and determined the work to be done that day as
part of his usual responsibility. When he had deter-
mined the priorities for the day, he sat down on a
‘‘slip sheet,’’ which was a 4-by-4 foot piece of ply-
wood on wheels. He heard a conversation between two
approaching supervisors, Leslie Riley and Larry
Knight. Laycock sat forward and looked out. Riley and
Knight asked what he was doing, and Laycock replied
that he was waiting for his crew. Knight asked him if
he was on the clock, and Laycock falsely answered
that he was not. Knight did not believe Laycock’s de-
nial and told Laycock to get to work. Laycock com-
plied.
Later that day, Laycock was called to a meeting in
Picotte’s office at which he was informed that he was
seen ‘‘curled up’’ and sleeping, although the record
shows that neither Knight nor Riley actually saw him
asleep or in a prone position. Laycock denied that he
was asleep and related the conversation he heard as
they approached him. Laycock was informed that he
was suspended for 3 days and told to report to work
the following Tuesday.
Later that day, the Respondent’s vice president,
James Nelson, who had demonstrated significant union
animus during the organizing campaign, including as-
saulting an employee who was handbilling, changed
the suspension to a discharge. The Respondent sent
Laycock a letter terminating him and charging him
with three ‘‘Serious Infractions’’ under its standards of
conduct. Serious infractions are defined as those that
could warrant immediate dismissal. Laycock was
charged with violating standards of conduct sections
prohibiting knowingly providing false information con-
cerning timecards or other employment information,
misuse of company or customer property, and sleeping
on the job.
Based on the foregoing, we find that the General
Counsel has established by a preponderance of the evi-
dence that antiunion animus was a motivating factor in
Laycock’s discharge. Thus, the record shows that
Laycock was a union activist, that the Respondent had
knowledge of his sentiments, and that the Respondent
exhibited antiunion animus prior to his discharge.
Therefore, under Wright Line, the burden shifts to the
Respondent to show that it would have discharged
Laycock even in the absence of his union activity.
The General Counsel does not dispute that Laycock
‘‘may have been subject to some form of discipline for
his actions on the morning of March 18, 1994.’’ The
General Counsel correctly points out that the real issue
is whether the Respondent has established that that
form of discipline was discharge. For the reasons set
forth below, we agree with the judge that the Respond-
ent has failed to meet its burden.
First, the record shows that the Respondent’s man-
agement initially considered Laycock’s misconduct to
be relatively minor. Knight admitted that he did not
believe Laycock’s denial that he was on the clock
when Knight ordered Laycock back to work. With re-
spect to the alleged sleeping on the job, Knight and
Picotte conferred and determined that a 3-day suspen-
sion was warranted.
Second, the Respondent has failed to convincingly
explain why it increased the penalty from suspension
to discharge. The additional charge that the Respond-
ent leveled at Laycock, that he ‘‘misused’’ company
property by sitting on a slip, is not supported by the
record. The slips are used to transport heavy loads of
stock throughout the warehouse, and Laycock’s merely
sitting on a slip could not reasonably result in any
damage to it. The Respondent’s addition of this ‘‘seri-
ous infraction’’ suggests that it was searching for a
pretextual reason to justify Laycock’s discharge.
Third, the management official responsible for the
discharge decision, Vice President Nelson, is an indi-
vidual who exhibited substantial hostility toward the
Union and its supporters. In these circumstances, the
judge reasonably inferred that Nelson’s decision to dis-
charge, rather than suspend, Laycock ‘‘is another ex-
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates are in 1994.
2 Picotte testified on surrebuttal that it was her policy if someone
told her during their interview that they were going to need some
time off for a particular reason she ‘‘usually would make arrange-
ments to give them that time off without penalty due to the fact that
its a condition of employment.’’ Initially, Picotte testified that she
did not recall Taylor mentioning during his interview anything about
being in the process of getting a divorce. Then she testified that she
was sure that Taylor did not mention needing time off during his
interview. Respondent employs between 150 and 200 people at the
distribution center and it has about a 150-percent turnover annually.
Subsequently Picotte testified that during deer-hunting season she
has interviewed two people every half hour for 6 hours in a day,
5 days a week; that she hired about 30 people in November 1993;
that she had interviewed several hundred people between the time
Taylor was interviewed and the time she testified here; and that as
she testified on surrebuttal she could not be sure what she said dur-
ing her interview with Taylor but
on many occasions when an employee tells me that they are in
some sort of a situation where they need some time off, we will
discuss it and come up with some options, and it’s documented
in the file at the time that they are hired.
Respondent did not demonstrate that such documentation was not
included in Taylor’s file. It is noted that Picotte testified that on
‘‘many’’ and not on all occasions. Taylor testified that he brought
this up because he knew he was going to be taking time off and
he wanted Picotte to be aware of this. For the reasons set forth
below, Picotte did not impress me as being a credible witness.
Where her testimony conflicts with that of Taylor the latter is cred-
ited. Taylor impressed me as being a credible witness.
ample of how far Nelson is willing to go’’ to discour-
age union activity.
Fourth, we are not persuaded by the Respondent’s
attempt to justify its discharge of Laycock by present-
ing evidence of other discharges for violations of the
standards of conduct. In all these cases the employees
who were terminated had recurring problems and pre-
viously had been warned or had engaged in serious
misconduct. The only other employee whose termi-
nation involved sleeping on the job had been warned
for wandering around the warehouse and for threaten-
ing to damage the Respondent’s property. That em-
ployee was not discharged until he was caught sleeping
in the women’s restroom.
We find that the evidence clearly establishes that
Laycock was disparately treated relative to the dis-
cipline meted out to other employees. No other em-
ployee had been discharged for similar conduct. In
view of Laycock’s excellent work record, it is apparent
that the Respondent seized on this relatively insignifi-
cant incident to rid itself of an active and outspoken
union adherent. For all these reasons, we find that the
General Counsel has carried his burden of proving that
Laycock’s conduct was a substantial or motivating fac-
tor in the adverse action taken against him by the Re-
spondent and we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by discharg-
ing Laycock.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dunham’s Athleisure Cor-
poration, Waterford, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Richard Czubaj, Esq., for the General Counsel.
John Palmer, Esq. and Denise Remick, of Waterford, Michi-
gan, for the Respondent.
Kevin O’Neill, of Detroit, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The charge in
Case 7–CA–35437 was filed by Local Union No. 51, Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union)
against Dunham’s Athleisure Corporation (Respondent) on
January 18, 1994,1 and the charge in Case 7–CA–35797 was
filed by the Union against Respondent on April 8. A consoli-
dated complaint was issued on May 20 alleging that Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by discharging employees
Roderick Taylor and Steven Laycock on January 5 and
March 18, respectively, because they assisted the Union and
engaged in concerted activities. Respondent denies violating
the Act.
A hearing was held in Detroit, Michigan, on June 22. On
the entire record in this case, including my observation of the
demeanor of the witnesses and consideration of the briefs
filed by counsel for the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, which is engaged in the retail sale and dis-
tribution of sporting goods, athletic wear, and related prod-
ucts, maintains its principal office in Waterford, Michigan,
has stores at various locations in Michigan and it operates a
distribution center in Livonia, Michigan. The complaint al-
leges, the Respondent admits, and I find that at all times ma-
terial here Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Union has been a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent hired Taylor in November 1993. He was inter-
viewed by Eileen Picotte, who was then Respondent’s human
resources manager, before he was hired. During the interview
Taylor told Picotte that he was involved in a divorce and a
child custody battle and in the first month and a half of em-
ployment with Respondent he would have to appear in court
a couple of times. At that time Picotte told Taylor that she
would work with him on it and all he had to do was bring
in some type of documentation from the court as proof that
he had been in court that day.2
625DUNHAM’S ATHLEISURE CORP.
3 He estimated that eight other people in his department wore
union T-shirts and hats.
4 The tardy point schedule reads as follows:
.01 to 1.00 hr. 1 point
1.01 to 3.99 hrs. 2 points
4.00 hours plus 3 points
An employee who was absent and did not call in would receive
eight points. One who was absent but called in during the first hour
of absence received five points. One who was absent and called in
past the first hour of absence received six points. And one who was
absent and gave notice to the Respondent the previous day or before
that received four points.
5 Points were deducted or bought back at the rate of one for every
2 hours worked on Saturdays.
6 R. Exh. 6(b) is a similar flyer involving 11 employees, except
for Shawn Hill, different from those pictured on R. Exh. 6(a).
Picotte left Respondent on May 31. She testified that all the employ-
ees pictured on R. Exhs. 6(a) and (b), except for Taylor, Laycock,
and Jim Artushin, were still employed at Respondent when she left.
Also, she sponsored a number of documents, R. Exh. 7 which covers
recognition for perfect attendance, notices of recognition, and pay
raises given to some of the employees pictured, except Taylor and
Laycock, on R. Exhs. 6(a) and (b). Many of the documents predate
the involved organizing campaign and the involved union flyers with
employees’ pictures and statements on them. On cross-examination
Picotte testified that attendance awards are automatic and there is no
discretion with management; that first line supervisors or live leads
generally generate notices of recognition and pick associate of the
month and upper management does not veto the call.
7 The election was held on January 7.
In the beginning of December 1993 Taylor began wearing
a union hat and a union T-shirt.3 He wore them ‘‘just about
everyday.’’ Also, he wore a pin which endorsed the Union.
Taylor attended union meetings and twice he handed out
union flyers at the street end of the driveway into Respond-
ent’s distribution center.
Under Respondent’s perfect attendance program, which is
contained in its employee handbook, Respondent’s Exhibit 1,
employees accumulate points for being tardy, leaving early,
or being absent.4 After receiving 6 points, the employee re-
ceives oral counseling; after 9, written counseling; after 12,
verbal counseling; and on receiving 18 points, the employee
was terminated. An employee could ‘‘buy back’’ two points
by working 4 hours on Saturday after working a 40-hour
week.5 Employees were also rewarded with a free paid day
off and given recognition for perfect attendance. Respond-
ent’s Exhibit 4. Picotte, who administered the program, esti-
mated that 80 percent of Respondent’s terminations involve
this program. See, for example, Respondent’s Exhibit 5.
Picotte sponsored Respondent’s Exhibit 3(e) which is a
form which indicates that Taylor received oral counseling
when he had accumulated 8 points. The date of ‘‘11/27/93’’
appears at the top of the form. The date ‘‘12-6-93’’ appears
at the bottom of the one-page form where the supervisor and
Taylor signed it.
On December 16, 1993, Taylor called in to the distribution
center at 7:45 a.m. to indicate that he would be late. Picotte
filled out the involved form, Respondent’s Exhibit 3(d). She
testified that she took Taylor’s call; that Taylor told her he
would be in as soon as possible; and that her assistant, Kathy
White, informed her later in the day that Taylor did not
come to work that day.
On December 17, 1993, Picotte called Taylor to her office
and told him that on December 16, 1993, he had reached 18
points under the perfect attendance program. When she asked
Taylor if there was anything on the point schedule, Respond-
ent’s Exhibit 5(c), that was in error he indicated that he had
worked on the prior Saturday and his manager must not have
informed the personnel office that Taylor had bought back
points. Picotte gave Taylor credit for two points.
On January 4, a union flyer which included pictures of Re-
spondent’s employees and their statements in support of the
Union was distributed. General Counsel’s Exhibit 9 and Re-
spondent’s Exhibit 6(a).6 The following statement appears
with Taylor’s picture: ‘‘By voting ‘Yes’ we not only have
the support of Local 51, we also have the support of 1.4 mil-
lion other Teamsters behind us.’’
And the following statement appears with Laycock’s pic-
ture: ‘‘I’ve been at Dunhams long enough to know that man-
agement doesn’t really care. That’s why I’m voting ‘Yes’ for
the Teamsters!’’
On January 5 Taylor was called to Picotte’s office. Com-
menting on Taylor’s attire, Picotte said ‘‘How do you expect
the company to do anything for you when you walk around
with Union Teamster caps and T-shirts on.’’ Taylor believed
that his shirt said, ‘‘Vote yes, Teamsters.’’ Regarding this
meeting, Taylor testified that Picotte said that he had violated
Respondent’s ‘‘point policy’’ dealing with attendance; that
Picotte said that she could have terminated him at the begin-
ning of December because he was in violation of the point
policy then; that Picotte asked him what he could tell her to
make her change her decision to terminate him; that he told
her that if she was asking him to vote ‘‘no’’ in the upcoming
election he would not do that but rather he would vote
‘‘yes’’ even if she terminated him; that she told him she
would mail his paycheck and he did not have to come back
to the distribution center; and that he told her that he would
be back in a couple of days to vote for the Union.7
Regarding Taylor’s termination, Picotte testified that she
asked him if there was anything on the status report, which
showed 18 points, that he felt was in error, Respondent’s Ex-
hibit 3(b); and that Taylor was in her office the morning he
was terminated and it was in January, it was cold, and all
she could remember about his attire was that he was wearing
a jacket. On cross-examination Picotte testified that she did
not recall Taylor talking to her about the fact that the only
two absences on the status sheet—Respondent’s Exhibit
3(b)—November 17 and December 16, were court dates; that
each one of these absences resulted in five points; that Tay-
lor never discussed with her in November or December that
he had to go to court because he had a child custody prob-
lem; that she did not know if she spoke to Taylor on January
5 or 6; that the date on Respondent’s Exhibit 3(a) means she
spoke to Taylor on January 6; and that she recalled she ter-
minated Taylor in the morning. Subsequently, Picotte testi-
fied that she absolutely did not say to Taylor on the day she
discharged him, ‘‘How do you expect the company to do
anything for you when you wear union T-shirts and caps’’;
and that Taylor did not ask her if she was requesting him
to change his vote in the upcoming election.
Taylor’s master payroll and charge request, Respondent’s
Exhibit 3(a), has an effective date of January 6 for Taylor’s
termination.
On rebuttal Taylor testified that between November and
his termination he received points for two absences; that both
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Laycock pointed out that there were two other part-time line
leaders in receiving and they started at 7 a.m. He had requested to
be able to start at 7 a.m. and Wilson had approved his request but
upper management denied the request.
9 The standards of conduct, R. Exh. 20, reads, as here pertinent,
as follows:
Standards of Conduct are divided into (2) categories in order
to communicate our expectations of all Dunham’s Distribution
Center’s associates and to clarify what is meant by a serious in-
fraction of Company policies and standards:
A. Serious Infractions are those violations of Company poli-
cies or standards that are of such importance to the safe and ef-
ficient operation of the Distribution center that an infraction
could result in immediate dismissal:
. . . .
2. Knowingly falsifying records, applications for employment,
time cards, or any other information used in conducting Com-
pany business. Supplying false, misleading, misrepresentative or
distorted information or refusing to provide accurate and com-
plete information when requested.
. . . .
4. Misappropriation of Company or customer property, or
willingly or maliciously causing damage or defacing Company
or customer property. Removing Distribution Center or supplier
property without receiving proper written authorization. Misuse
or unauthorized use of Company property while on or off Com-
pany time or Company premises.
. . . .
13. Sleeping on the job.
absences involved court appearances; that with respect to the
second absence listed on Respondent’s Exhibit 3(b) he called
Respondent from the courthouse expecting to finish there be-
fore lunchtime but he was not able to get to work; that he
believed he spoke with Kathy, the secretary, at Respondent’s
and he did not speak with Picotte that day; that he brought
the documentation Picotte requested for both court appear-
ances and he gave it to his leadman, Don Sutton; that when
Picotte spoke to him in December she told Taylor that she
had no knowledge of the documents; that he thought that the
matter was going to be taken care of; that he was discharged
in the early afternoon about 1:30 or 2 p.m.; and that he did
not bring up the fact that he had supplied the documentation
showing that he appeared in court in his termination meeting
with Picotte because Picotte had already decided she was not
going to replace the points and he was not the arguing type.
On cross-examination, Taylor testified that when he spoke
with Picotte in December he told her he worked just about
every Saturday during his employment and with respect to
the absences Picotte said she could not do anything because
she did not have any knowledge of the hearing slips that he
brought in and gave to his line lead; that he did not bring
the documents covering his court appearances to Picotte be-
cause when he was hired Picotte said that he had to use the
chain of command and therefore he gave them to his line
lead, Sutton.
On surrebuttal, Picotte testified that to her knowledge nei-
ther Taylor nor Sutton ever brought her documentation re-
garding Taylor being in court. On cross-examination, Picotte
testified that the first time she heard about Taylor going to
court was at the hearing here; that she thought she took ei-
ther the morning phone call from him regarding his second
absence when he said he was going to be late or the phone
call he made later that morning to say he would not show
up at all; and that court was not mentioned in the phone call
she took from Taylor.
As stipulated by the parties, Joint Exhibit 2, on January 14
the Employer filed objections to the election and on March
4 the ballots were counted. The tally showed 61 for the Peti-
tioner Union, 28 against the Petitioner, and 28 challenged
ballots.
Laycock, who was hired by Respondent in 1990, was a
line leader in receiving at the time of his termination. In
1991 during a prior organizing campaign, Laycock was
named as a member of the Union’s in-plant organizing com-
mittee in a letter the Union sent to Respondent. General
Counsel’s Exhibit 8(a). Laycock testified that about 4 months
before he was terminated he was handbilling for the Union
at the street end of the driveway into Respondent’s distribu-
tion center; that while he was handbilling for the Union at
that location he was observed by the following of Respond-
ent’s managers: Larry Knight, Picotte, Jim Nelson, Doby
Billingsley, Jerry O’Hullen, Joe Wilson, Leslie Riley, and
Cliff Krieger; that once the police came to the site while he
and others were handbilling; that as line leader between 6:30
and 7 a.m., which was the starting time of the employees in
his department, he was supposed to find orders for them to
move when they came to work; that on March 18 when he
first came to work he spent 10 or 15 minutes finding orders
to be handled; that he then sat down and waited for his em-
ployees to come in; that he sat on a ‘‘slip sheet,’’ which is
a 4-by-4 foot piece of plywood which rides on rollers and
on which merchandise is stacked; that half of the order was
gone off one of the slip sheets on the line so he sat on that
slip sheet; that as he sat on the slip sheet he heard Riley and
Knight talking about an order that was on ad which order
was two spots back from him; that he had looked at the
order before and it was for Conventional and he had decided
to wait for the area to clear out and it was going to be one
the next items moved; that when he leaned out Knight asked
him what he was doing and he told Knight that he was sit-
ting and waiting for his people to come in; that Knight asked
him if he was on the clock and he said ‘‘no’’;8 that Knight
then said, ‘‘[w]ell, get to work’’; that he then helped some-
one push an order; that shortly after 7 a.m. Knight called
Laycock into his office; that Picotte was present; that Knight
said that he saw Laycock ‘‘curled up’’ and Laycock said that
he was not curled up; that he was suspended for 3 days; that
Knight told him to report back to work on the following
Tuesday; that he told his supervisor, Wilson, that he would
see him on Tuesday because he had received a 3-day suspen-
sion; and that when he returned home on the following Mon-
day he received the following letter from Respondent, Gen-
eral Counsel’s Exhibit 2, which is dated March 18:
After investigating the incident this morning and
talking to witnesses, we have decided to terminate your
employment effective immediately. The termination is
for violating the Standard of Conduct in the Employee
Handbook under Serious Infractions Nos. 2, 4, and 13.
Your last paycheck will be mailed to you within 3
business days.9
Laycock testified that other than notices regarding attend-
ance, he had never received any other kind of written warn-
627DUNHAM’S ATHLEISURE CORP.
10 Laycock sponsored past reviews, G.C. Exhs. 5–7, which dem-
onstrated that he constantly achieved a rating of more than accept-
able and one year he achieved an outstanding performance rating.
11 It was stipulated by the parties that R. Exh. 22 covers termi-
nations under the standards of conduct occurring between November
1992 and March 1994.
ing or discipline from Respondent;10 and that he was not
asleep on March 18 when he was sitting on the slip sheet.
On redirect Laycock testified that when he heard Knight and
Riley he ‘‘sat up and looked out.’’ On recross Laycock testi-
fied that when he testified he ‘‘sat up’’ he meant he ‘‘sat
out’’ since he was sitting. Subsequently Laycock testified
that when he sat down on March 18 the only other work he
could have done was to push freight over into the other area
but no other line leaders did that; and that he was waiting
for his employees to come in so they could start to move the
merchandise out of the receiving area.
Joe Wilson, who was Laycock’s supervisor in March
1994, testified that his manager, Larry Knight, told him that
Knight ‘‘found Steve laying down on a slip sheet . . . and
he actually discovered him getting up’’; that Knight said
Laycock was going to be suspended for 3 days; that later in
the day on March 18 Picotte told him that Laycock received
a 3-day suspension or more specifically ‘‘[h]e was found
sleeping on the job and we’re suspending him for three
days’’; that later that same day he had a conversation with
Knight and Picotte and it was indicated to him that the deci-
sion had been changed by Respondent’s vice president, Jim
Nelson, and Laycock was terminated; that when Laycock left
on March 18 he was told to report back to work the follow-
ing Tuesday; and that Laycock gave a good performance as
a worker and he gave Laycock a good review, General
Counsel’s Exhibits 4(a)–(d). On cross-examination Wilson
testified that Knight told him that when Nelson found out
about the episode, he thought termination was more appro-
priate.
With respect to Laycock’s termination; Picotte testified
that on March 18 Knight asked Laycock ‘‘if he was sleeping
on the job or if he was sleeping out of his work area, and
I believe he denied it, although he did not deny laying on
the slip sheet’’; that Laycock was told he was on suspension
pending further investigation, witnesses would have to be
interviewed and she told Laycock ‘‘that this procedure nor-
mally—our policy is that it does not take more than three
days, and that he would be notified as soon as we made a
decision’’; that it is standard policy at Respondent’s distribu-
tion center to suspend individuals before termination; that
more than one manager had seen Laycock ‘‘laying on a slip
sheet, and the fact that he looked startled when they con-
fronted him’’; that other employees have been terminated for
violating Respondent’s standards of conduct;11 that the fact
that his past appraisals were near perfect was not taken into
consideration because of the severity of the incident; that she
suggested Laycock be charged with unauthorized use of
company property; that Laycock was laying down with his
eyes shut; that nobody saw him with his eyes shut but he
was seen laying down; that Laycock was terminated for
sleeping on the job; that they had reason to believe that
Laycock was sleeping on the job; that it was not Nelson’s
determination to terminate Laycock; that Nelson gave his
opinion ‘‘but it was not his decision, finally. No, it was
not’’; that Nelson’s opinion was that Laycock should be ter-
minated; that as vice president of Respondent, Nelson’s opin-
ion holds a lot of weight; that she did not recall a conversa-
tion with Wilson on March 18 during which she indicated
Laycock was suspended for 3 days; that she did ask Wilson
on the morning of March 18 what he saw; that she never told
Wilson what Laycock’s punishment would be; that after she
had all the reports (see statements of Knight and Riley, Jt.
Exhs. 3 and 4, respectively), she, Knight, and Nelson met
later on March 18 and all three made the decision to dis-
charge Laycock; and that both Knight’s and Riley’s written
statements indicate that they saw Laycock laying down.
Knight, who is general manager of processing, began his
employment with Respondent on July 19, 1993. Regarding
March 18, he testified that about 6:50 a.m. he walked the
floor with another supervisor, Riley; that he was looking for
some merchandise that Respondent had an ad for the follow-
ing weekend and he wanted to make sure it was moving and
would be in Respondent’s stores in time for the sale; that as
he walked down the aisle between pallets he saw a pair of
feet; that he ‘‘saw some rustling, rustling about as . . .
[Laycock] sat up; that Laycock did not reply when he asked
him what he was doing; that he asked Laycock if he was on
the clock and Laycock said ‘‘no’’; that Laycock ‘‘seemed a
bit disoriented to me, quite honestly, as if he had just opened
his eyes’’; that he told Laycock to go to work; that he imme-
diately went to the timecards and determined that Laycock
had already punched in; that since he had only been with the
Company 7 or 8 months he went to Picotte to discuss the
appropriate action; that he told Picotte that he had caught
Laycock at least laying on the job and it looked to him like
Laycock was sleeping and, moreover, Laycock lied; that they
spoke to Laycock and he asked Laycock if he was sleeping;
that Laycock denied sleeping; that he and Picotte determined
to suspend Laycock pending further review; that he solicited
input from Nelson; that it was his decision to terminate
Laycock; and that he spoke to line leader Winfred Cobb
about working prior to the time when other employees came
in and he spoke to Wilamoski about reading a newspaper.
On cross-examination, Knight testified that Laycock ‘‘was in
a reclined position is as close as I could tell you’’; that he
could not recall what specific merchandise he was looking
for; that he does not know for a fact that Laycock was sleep-
ing; that Laycock’s prior appraisals were not considered; that
Nelson ‘‘felt like that was a situation that warranted termi-
nation; that while Wilson testified that he was told Laycock
was given a 3-day suspension, ‘‘I told [Wilson that Laycock]
was suspended. I believe that’s the only term I gave him be-
cause we had not come to a final conclusion and that’s all
the information I could give him at that point’’ (emphasis
added); that ‘‘I don’t think I said [to Wilson] it was a three
day suspension. I think I told [Wilson that Laycock] was sus-
pended’’ (emphasis added); that regarding Laycock’s testi-
mony that he was to report back to work on Tuesday, ‘‘I do
not believe that’s what was said, no’’ (emphasis added); that
he decided to terminate Laycock after Nelson said Laycock
should be terminated; that he made the ultimate decision as
to what penalty to give Laycock; that before he made his de-
cision Picotte indicated that Laycock should be terminated;
that Nelson and Picotte’s ‘‘thoughts were in line with what
I felt’’; that while it is his belief that Laycock was sleeping,
he could not ‘‘unequivocally say that Laycock was sleep-
ing’’; that he never saw Laycock with his eyes closed; that
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In his written statement, Jt. Exh. 3, Knight indicated ‘‘WE
WALKED UP IN [sic] STEVE LAYCOCK LAYING ON A PAL-
LET.’’
13 In her statement, Jt. Exh. 4, Riley indicates ‘‘we walked up on
Steve Laycock laying down on a slip sheet.’’
14 Picotte testified that she was not aware of any disciplinary ac-
tion taken against Wilamoski for this.
15 Picotte testified that she was not aware of any disciplinary ac-
tion taken against Cobb for just standing around and not doing any-
thing.
16 Respondent shares space with other entities and it is located sec-
ond from the end away from the street, which is about a block from
the street.
he did not hear any snoring sounds; that he saw Laycock
‘‘leaning up but not in a fully flat position’’; that when he
spoke to line leader Dean Wilamoski, who was terminated
‘‘a couple of months [before the hearing here] for job per-
formance,’’ it involved a violation of the standards of con-
duct since he was on the clock and instead of working he
was standing reading the newspaper; that the area in which
he found Laycock was Laycock’s work area; and that he
knew prior to his termination that Laycock was a supporter
of the Union. Subsequently, Knight testified that he could
not recall whether he indicated in his written statement that
Laycock was laying down;12 and that he believed that when
he first saw Laycock his feet were above the slip next to the
one that he was sitting on.
Riley testified that on March 18 she saw Laycock ‘‘com-
ing to a rising position on a pallet, sitting down’’; that
Knight asked Laycock, ‘‘Are you supposed to be working’’
and she thought Laycock said ‘‘yes’’; that Knight asked
Laycock if he was on the clock and Laycock said ‘‘no’’; and
that Knight then said, ‘‘Well, go ahead and get to work; that
to her Laycock appeared ‘‘startled, like—like you shock
somebody out of their sleep, like, they jump. By the time I
saw around Larry and seen him [Laycock] rising to a sitting
position, he had taken a deep breath like somebody who had
just woke up.’’ On cross-examination, Riley testified that she
prepared her statement, Joint Exhibit 4, ‘‘[t]he same day
[they] found [Laycock] laying down’’; that she ‘‘only saw
him coming to a sitting position. I saw his head rise up’’;
that she did not know where his body was, but she saw him
sit up;13 that she did not see Laycock’s eyes closed but he
appeared to be sleeping; and that on March 18 Knight told
her that Laycock would be suspended until they investigated
further. Subsequently, Riley testified that there was freight
on all slip sheets contiguous to the one Laycock was occupy-
ing and there was even some merchandise on the 4-by-4 foot
slip sheet that he occupied.
Regarding the conduct of other line leaders between 6:30
and 7 a.m., Laycock testified that ‘‘[m]ost of them would
come in, find out what they had to do, and then they would
just talk’’; that Wilamoski, who was a line leader in process-
ing, would sit down and read a newspaper; that twice he saw
Knight talking to Wilamoski as he was sitting down; that
Billingsley, Respondent’s general manager, saw Wilamoski
sitting down; and that line leaders Cobb and Ron Marshall
asked Distribution Center Supervisor Riley why Wilamoski
could sit and read the newspaper and nobody else could.
Cobb testified that for 4 or 5 months line leader
Wilamoski would come in at 6:30 a.m. ‘‘he would get his
paperwork together somewhat, and then he would go back
and just sit down and read the newspaper or do whatever he
would like’’; that he saw Knight observe Wilamoski; and
that twice he mentioned to Riley what Wilamoski was doing
and one of these times it involved a situation when she
talked to him, Cobb, and line leader Marshall about standing
around, talking and not doing anything.14 Subsequently,
Cobb testified that the reason he and Marshall were standing
around and not doing anything was because they had already
done everything to set up and it was his practice, once things
were set up, to view it as free time until the employees came
in to work; and that while Riley spoke to him twice for just
standing around and not doing anything he never received a
written warning or any disciplinary sanction.15 Riley testified
that Cobb did tell her about Wilamoski and she asked an-
other supervisor to watch out for it and she said something
to Wilamoski about having a newspaper in his work area;
and that she did speak to Cobb when she saw him talking
with Marshall.
Timothy Potter, who is a line leader at Respondent’s dis-
tribution center, testified that on the day of the union elec-
tion, January 7, he put a union banner on his car which was
parked somewhere in the vicinity of the distribution center;
that the police arrived at the scene; that Nelson and
Billingsley came out into the parking lot;16 that the police
told the union supporters that they had to leave; that Nelson
approached Potter and asked him if he was on the clock; that
when he said he was not Nelson raised his hand and began
to put it on Potter’s shoulder saying, ‘‘[w]ell, then, in that
case, I want you off my property’’; that he said to Nelson
‘‘I wasn’t asked that this was your property’’; that Nelson
squeezed his hand into his, Potter’s, shoulder and, with the
snow on the ground Potter slipped and fell up against a near-
by truck; that the union representative present told Nelson to
take his hands off Potter; that the police told Potter to get
into his vehicle and leave; and that when Nelson first found
out that the union people were out there again handing out
cards he told Potter, ‘‘Tim, you’ve already gotten a little
piece of the candy, and if we can keep this union thing out
of [here] you’ll be getting much more.’’ On cross-examina-
tion, Potter was shown Respondent’s Exhibit 14 which col-
lectively contains recognition Potter received such as notices
of recognition, associate of the month, perfect attendance
awards, pay increase, and a gift certificate. When asked
about the two perfect attendance awards he received subse-
quent to this incident, Potter testified that he earned the
awards, testifying ‘‘[i]t’s not because they wanted to give it
to me.’’
As stipulated to by the parties in Joint Exhibit 2, on March
29 a hearing was conducted on the Employer’s objections
and on May 26, a hearing officer’s report and recommenda-
tions issued. General Counsel’s Exhibit 3. The following ap-
pears on page 7 of the report:
At first, Kim Tarovella testified that she did not vote
‘‘[b]ecause one of the union employees [Steve
Laycock] told me that my vote wasn’t going to be
counted anyway.’’ At the same time, though, Tarovella
said that she was also told by this supporter of Peti-
tioner that ‘‘the Union would fight for the right for me
to vote. . . .’’ In the end, Tarovella chose not to vote
because, according to her, she considered herself to be
629DUNHAM’S ATHLEISURE CORP.
a supervisor and did not want to get involved in the
voting process.
There is no evidence in the record that Laycock is
an agent of Petitioner. Consequently, his actions must
be examined with reference to the third party standard
enunciated by the Board in Baja’s Place, supra [268
NLRB 868 (1984)]. Not only did Laycock’s remarks to
Tarovella fail to create a ‘‘general atmosphere of fear
and confusion,’’ but they also do not rise to the level
of violating the Baja’s Place standard for parties to an
election, as they did not reasonably tend ‘‘to interfere
with the employees’ free and uncoerced choice in the
election.’’ Id.
Tarovella’s testimony establishes that she was not in
any way coerced or intimidated regarding her right to
vote and that she freely chose not to vote for her own
reasons.
Contentions
Counsel for the General Counsel, on brief, contends that
once a prima facie case is established, the burden shifts to
Respondent to show that it would have taken the same action
even in the absence of the protected concerted activity and/or
union activity. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); that Respondent cannot simply
present a legitimate reason for its actions, but must persuade
by a preponderance of evidence that the same action would
have taken place even in the absence of the protected con-
duct, Roure Betrand Dupont, Inc., 271 NLRB 443 (1984);
that here a prima facie case has been established; that clearly
Picotte made an impermissible connection between the pro-
posed personnel action and Taylor’s union activity in that
Picotte clearly stated to Taylor that the Company could do
something for him but not if he continued to walk around
wearing union T-shirts and caps and Picotte asked him if
there was anything he could say to persuade her to change
her mind about releasing him; that while Taylor brought up
the union election, Picotte did not disclaim Taylor’s interpre-
tation of her question; that had Taylor given Picotte what she
considered to be the appropriate answers, Taylor would not
have been terminated; that Picotte impermissibly linked Tay-
lor’s continued employment with Respondent to his abandon-
ment of his support for the Union and Respondent’s actions
are thus in violation of Section 8(a)(3) of the Act; that
Laycock would not have been terminated but for his activi-
ties on behalf of the Union; that Respondent had no evidence
that Laycock was asleep on the job; that Laycock was a very
good employee who had never been disciplined for any in-
fractions in the years that he had been in Respondent’s em-
ploy; that both Laycock and his immediate supervisor were
informed that Laycock was merely suspended for 3 days im-
mediately after Laycock’s disciplinary interview and Laycock
was terminated only after Nelson became involved; that had
Knight truly believed that Laycock was not on the clock, he
would not have ordered Laycock to ‘‘get back to work’’ and,
therefore, Laycock’s misrepresentation of his status was not
a major deception which caused great harm to Respondent;
that Respondent took great pains to literally ‘‘throw the
book’’ at Laycock; that Respondent’s actions are clearly
‘‘over-kill’’ in an attempt to insulate its actions from legal
challenge; that a close examination of Respondent’s evidence
of other discharges for violations of its standards of conduct
reveals that most, if not all, of the employees terminated had
recurring problems and had been previously warned, or en-
gaged in very serious misconduct; that in one of the exam-
ples, former employee Mario Savino had been caught sleep-
ing on the job earlier and had not been discharged; that these
records demonstrate that Respondent had a practice of giving
employees an opportunity to correct perceived deficiencies in
their behavior before being terminated; that it can only be
concluded that, but for his union activity, Laycock would not
have been terminated.
Respondent, on brief, argues that the Charging Party has
failed to show any evidence that Taylor’s union activities
were a motivating factor in his termination of employment;
that Taylor’s employment record speaks for itself, and
‘‘timecards do not lie’’; that Taylor was consistently absent
and/or late beginning 6 days following commencement of his
employment; that within 30 days of employment, he had
been verbally warned and advised of the attendance policy
twice, but continued to accumulate points, and quickly ac-
crued 18 points following 55 days of employment, before his
90-day orientation period had expired; that Picotte reduced
Taylor’s points on December 16 after Taylor explained he
had worked a Saturday, giving Taylor the benefit of the
doubt; that when Taylor reached the termination level for the
second time in January 1994, he had no excuse; that with re-
gard to Taylor’s allegation that he was terminated because he
wore union T-shirts and hats, the evidence is clear that the
Employer did not single out Taylor on January 5 or on any
other date, amongst other active union supporters who wore
union T-shirts and hats; that as for Taylor’s testimony that
Picotte commented on Taylor’s attire in the doorway of her
office, such statement is unsubstantiated and Picotte denied
making such a comment; that the perfect attendance program
has been uniformly applied; that the simple fact that Taylor
accumulated 18 points within the 14-week period is clear
evidence that Taylor’s alleged union activities were not a
factor in his termination from the distribution center; that
Laycock was terminated on March 18 pursuant to the Em-
ployer’s standards of conduct, serious infractions; that
Laycock was found by Knight and Riley ‘‘sleeping’’ on a
pallet camouflaged amongst 200 pallets stacked with mer-
chandise 5 to 7 feet high between 6:30 and 7 a.m. on March
18; that following ‘‘an interruption of Laycock’s nap, and
upon opening his eyes (T-153)’’ Knight asked Laycock if he
‘‘was on the clock?’’ Laycock replied ‘‘no’’; that Knight
then checked Laycock’s timecard and found that Laycock
was in fact ‘‘on the clock’’; that whether Laycock was pleas-
antly dreaming or sitting/resting on a pallet, is a question of
credibility; that the weight of evidence, including Laycock’s
testimony, suggests Laycock was caught sleeping on the job;
that it is an undisputed fact that Laycock lied to Knight; that
‘‘[i]n similar instances, on October 14, 1993, Employer’s
employee, Mario Savino, was terminated for sleeping on the
job’’; that ‘‘[i]n the past year, two (2) employees have been
terminated for supplying false, misleading or distorted infor-
mation pursuant to Employer’s Standards of Conduct (Ex-
E22) which are uniformly and consistently applied’’; and that
Laycock is using his alleged association with the Union as
a veil to cover the mistakes he made.
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 R. Exh. 22 covers documents taken from the files of Mario
Savino, Eric Spencer, Anna Dascke, Charles Morgan, Kevin
Koeppen, Eric Henry, Melanie Grifica, Michael Moore, Carey
White, and Justin Hines.
18 The fact that other employees whose pictures and statements ap-
peared in the union flyers received recognition from Respondent
after the union flyers were distributed demonstrates nothing more, in
my opinion, than that Respondent continued with its normal routine
regarding these other employees since they did not present it with
a situation that Respondent could somehow take advantage.
Analysis
Certain of Respondent’s statements on brief cause me con-
cern. Taking the last first, Respondent argues that ‘‘[i]n the
past year two (2) employees have been terminated for sup-
plying false, misleading or distorted information pursuant to
Employer’s Standards of Conduct (Ex-E22) which are uni-
formly and consistently applied.’’ Unlike the preceding sen-
tence in its brief Respondent does not supply the names of
the individuals in Respondent’s Exhibit 22 who supplied
false, misleading, or distorted information. A review of all of
the documents in Respondent’s Exhibit 22 fails to reveal any
evidence of any employee who was terminated for supplying
false, misleading, or distorted information. Consequently, I
am unable to make any kind of a comparison.17
Next, Respondent argues on brief that ‘‘Savino was termi-
nated for sleeping on the job.’’ As indicated in Appendix C
hereto (omitted from publication), Picotte wrote ‘‘Mario was
terminated at 3:00 on 10/14 for sexual harassment when he
was found leaving the ladies room in Bldg. 3.’’ One of five
entries on the sheet refers to the fact that Savino was caught
sleeping in the restroom. Other entries indicate that he (1)
would wander from his department for one-half hour or
more, (2) called Supervisor Sutton names behind his back,
(3) was a slow worker, and (4) yelled ‘‘foul things at Rich-
ard Ware and threatened to key his car.’’ Savino was not ter-
minated for sleeping on the job. He did that and a number
of other things. But only when he engaged in ‘‘sexual har-
assment when he was found leaving the ladies restroom in
Bldg. 3’’ was he fired.
Also, as noted above, Respondent argues at page 7 of its
brief that Laycock ‘‘upon opening his eyes (T-153)’’ at tran-
script page 153 Knight testified that Laycock ‘‘seemed to be
a bit disoriented to me, quite honestly, as if he had just
opened his eyes.’’ No one testified that they saw Laycock
with his eyes closed. And while both Knight and Riley testi-
fied that they did not see Laycock laying down both included
the same or similar sentence in their aforementioned written
statements, namely, ‘‘we walked upon Steve Laycock laying
[Riley included the word ‘‘down’’ in her statement] on a
. . . .’’
I credit Taylor’s testimony that during his job interview in
November 1993 he explained to Picotte that he would have
to appear in court regarding domestic relations problems, and
that Picotte hired him notwithstanding this with the under-
standing that he would not be penalized for his absences as
long as he provided documentation showing that he was in
court. While Picotte testified that ‘‘on many occasions’’ such
understanding would be documented in the employee’s file,
she did not testify that a review of Taylor’s file failed to re-
veal such documentation. Additionally Picotte’s testimony
that ‘‘on many occasions’’ this is the approach taken appar-
ently means that on some occasions this is not the approach
taken.
Taylor started wearing union paraphernalia and engaging
in activities in support of the Union in the beginning of De-
cember 1993. On December 6, 1993, he signed a document
indicating that he had received oral counseling regarding Re-
spondent’s absence program.
And 11 days later Picotte spoke to him regarding his ab-
sences. As noted above, on brief Respondent points out that
‘‘time cards do not lie,’’ Taylor testified that he told Picotte
on December 17 that he worked just about every Saturday
during his employment. Picotte testified that she gave Taylor
the benefit of the doubt regarding working the Saturday be-
fore December 17, 1993. Picotte did not specifically deny
that on December 17 Taylor not only said that he worked the
prior Saturday but he said that he worked just about every
Saturday during his employment. ‘‘[T]ime cards do not lie.’’
Picotte did not have to give Taylor the benefit of the doubt.
The timecards or some other of Respondent’s records would
have indicated if he worked on the prior Saturday. And if he
worked on other Saturdays before that he should have re-
ceived credit for them. He did not receive credit for them.
Picotte did not specifically deny that Taylor worked on those
Saturdays and no documents were introduced here to show
that Taylor did not work on those Saturdays.
Taylor testified that he gave the documentation for his two
court appearances to Sutton. Sutton did not testify to deny
this. I credit Taylor’s testimony. Picotte was not a credible
witness. As Taylor testified, on December 17 Picotte denied
receiving the documents showing that Taylor was in court.
By then Respondent knew where Taylor stood regarding the
Union. His future at Respondent was sealed unless he
changed his mind. Taylor assumed on December 17 that
Picotte would act in a reasonable manner and straighten out
the question of documentation regarding his being in court.
What Taylor did not realize at the time was that there was
no question regarding the court documentation and that
Picotte had no intent of doing anything other than taking
those actions which could be used in an attempt to justify
the termination of Taylor.
Taylor engaged in union activity. Respondent knew about
it. One or two days after Taylor’s picture and statement ap-
peared on a union flyer he was terminated.18 Respondent’s
union animus was demonstrated not only by the two unlaw-
ful terminations involved here but also by the fact that its
vice president, Nelson, does not deny that he went so far as
to intentionally make physical contact with one of Respond-
ent’s employees who supported the Union, causing that em-
ployee to lose his balance and fall against a truck. Under
Wright Line, supra, Respondent has not shown that it would
have terminated Taylor but for his union activity. In termi-
nating Taylor, Respondent violated the Act as alleged.
Wilson, who was one of Respondent’s supervisors, im-
pressed me as being a credible witness. I credit his testimony
that in separate conversations on March 18 Knight and
Picotte originally told him that Laycock was suspended for
3 days, and later that same day Wilson, during a conversa-
tion with Knight and Picotte, was told that Nelson changed
the decision so that Laycock was terminated. Nelson did not
testify to deny that he changed the decision. Knight’s denial
that he told Wilson that Laycock was suspended for 3 days
631DUNHAM’S ATHLEISURE CORP.
19 Under New Horizons for the Retarded, supra, interest is com-
puted at the ‘‘short-term Federal rate’’ for the underpayment of taxes
as set forth in the 1986 amendment to 26 U.S.C. § 6621.
20 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.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Continued
is couched in terms of ‘‘I believe’’ and ‘‘I don’t think I [told
Wilson] it was a three-day suspension.’’ While Knight testi-
fied in this manner about his original conversation with Wil-
son about Laycock’s punishment, Knight did not specifically
deny Wilson’s testimony that in the second conversation
about Laycock on March 18 with Knight and Picotte he was
told that the suspension decision was changed by Nelson to
termination. Since Knight was relatively new at being a su-
pervisor at Respondent he looked to Picotte for guidance.
They conferred and a decision was reached to suspend
Laycock for 3 days. Laycock was told and his immediate su-
pervisor, Wilson, was told of the 3-day suspension by both
Knight and Picotte.
Picotte and Knight engaged in overkill here. Why? As
counsel for the General Counsel contends on brief, ‘‘Re-
spondent took great pains to literally ‘throw the book’ at
Laycock.’’ Picotte decided to charge Laycock with misuse of
company property for simply sitting on a slip sheet or pallet.
Laycock was also changed with sleeping on the job, albeit
no one unequivocally testified that they saw Laycock sleep-
ing on the job. In the one incident of sleeping on the job
cited by Respondent, the individual was not terminated until
he subsequently engaged in sexual harassment when he was
found leaving a ladies’ restroom.
Laycock was not insubordinate to Knight on March 18.
Laycock’s response that he was not on the clock, in a con-
text like the one here where leadmen before 7 a.m. stand
around and talk and read newspapers and are not disciplined,
is somewhat akin to a young man being caught with his hand
in the cookie jar. He realizes his mother knows what he is
doing but when she asks ‘‘are you taking a cookie,’’ his sur-
vival reflex causes him to say ‘‘no’’ notwithstanding the fact
that both know that is exactly what he is doing. Banishing
the young men from the family would not be a reasonable
approach. Terminating Laycock for this, in the circumstances
which existed here, would not be reasonable. This is not why
Laycock was terminated.
Laycock engaged in union activity and Respondent was
aware of this. At the first opportunity Laycock presented Re-
spondent after the election, it decided to take advantage of
the situation and terminate him. As indicated above, Nelson’s
intentional physical contact with one of Respondent’s em-
ployees who supports the Union on the morning of the elec-
tion is one indicia of union animus and it demonstrates how
far Nelson would go. Laycock’s termination is another exam-
ple of how far Nelson is willing to go. In terminating Lay-
cock, Respondent violated the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent Dunham’s Athleisure Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Roderick Taylor on January 6, 1994,
and Steven Laycock on March 18, 1994, because of their
union activities and concerted protected activities, Respond-
ent engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid 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 un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tions designed to effectuate the purposes of the Act.
Having found that Respondent unlawfully discharged Rod-
erick Taylor and Steven Laycock, it will be recommended
that Respondent be ordered to reinstate them to their former
positions, and make them whole for any loss of earnings and
other benefits computed on a quarterly basis from the date
of discharge to the date of a proper offer of reinstatement,
less interim earnings in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).19
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Dunham’s Athleisure Corporation, Wa-
terford, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because of their union activities
and concerted protected activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Roderick Taylor and Steven Laycock immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions without
prejudice to their seniority or any rights or privileges pre-
viously enjoyed and make them whole for any loss of earn-
ings and other benefits they may have suffered as a result
of the discrimination practiced against them in the manner
set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Remove from its files any reference to the discharges
of Roderick Taylor and Steven Laycock on January 6 and
March 18, respectively, and notify them in writing that this
has been done and that evidence of their unlawful discharges
will not be used as a basis for future personnel action against
them.
(d) Post at its Livonia, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’21 Copies of the notice,
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge employees because of their union
activities and concerted protected activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Roderick Taylor and Steven Laycock im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits they may
have suffered as a result of the discrimination against them.
WE WILL notify Roderick Taylor and Steven Laycock in
writing that we have removed from our files any reference
to their unlawful discharges on January 6 and March 18,
1994, respectively, and that evidence of their unlawful dis-
charges will not be used as a basis for future personnel ac-
tion against them.
DUNHAM’S ATHLEISURE CORPORATION