Earthgrains Co.

National Labor Relations Board - Board Decisions

Mar 20, 2003

338 N.L.R.B. 845 (N.L.R.B. 2003)

EARTHGRAINS CO. 845
The Earthgrains Company and Richard C. Jenkins.
Case 10–CA–33181
March 20, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 11, 2002, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The Charging Party filed exceptions and a supporting
brief. The Respondent filed a motion to strike the Charg-
ing Party’s exceptions and 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 record in
light of the exceptions, motion, and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

John D. Doyle Jr., Esq., for the General Counsel.
John J. Coleman III and Mieke Hemstreet Esqs., for the Re-
spondent.

1 The Respondent’s motion to strike is granted with respect to those
portions of the Charging Party’s brief in support of exceptions that refer
to purported facts which, by the Charging Party’s own description,
“were not brought to the judge’s attention.” Thus, these matters are not
in the record. These include: that Plant Manager Gary Kennedy’s
initials were on an employee writeup form for employee Derek Burke;
that employee witness Linda Cameron’s husband and son are supervi-
sors for the Respondent and that her son, whom the Respondent had
previously asked to resign, entered the Respondent’s management
training program after Charging Party Richard Jenkins was discharged;
that Brenda Bartley is a supervisor; and that Jenkins requested that
Kennedy let him take a lie detector test. However, the Respondent’s
motion to strike the Charging Party’s exceptions document in its en-
tirety is denied because that document substantially conforms with the
requirements of Sec. 102.46 (b)(1) of the Board’s Rules and Regula-
tions.
The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, Inc., 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 General Counsel did not file exceptions in this case, and the
Charging Party’s exceptions principally address the judge’s credibility
determinations. In particular, no exceptions were filed to the judge’s
finding that the evidence failed to establish that the Respondent har-
bored animus toward the Charging Party because of his union or other
protected concerted activities.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Birmingham, Alabama, on June 13 and
14, 2002. All parties had the opportunity to present testimony
and documentary evidence, to examine and cross-examine wit-
nesses, and to argue orally. The charge was filed on July 25,
2001,1 and amended on March 13, 2002, by Richard C. Jenkins
(Jenkins). A complaint issued March 22, 2002, alleging that
The Earthgrains Company (Respondent) discharged Jenkins on
or about July 20, 2001, in violation of Section 8(a)(1) and (3) of
the Act. Respondent filed an answer denying the pertinent
allegations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the operation of a
wholesale bakery at its facility in Fort Payne, Alabama, where
it annually sells and ships goods valued in excess of $50,000
directly to customers located outside the State of Alabama.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Bakery, Confectionary, Tobacco Workers
& Grain Millers, AFL–CIO–CLC (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues Involved in this Case
This case involves the discharge of Jenkins on or about July
20, 2001. General Counsel argues that Jenkins was terminated
because he joined and assisted the Union and engaged in con-
certed activities. Respondent asserts that it terminated Jenkins
because of its determination that he was away from the plant
while on the clock on July 8, 200l.
B. Background
At the time of Jenkins’ discharge in July 2001, he worked as
1 of 10 office employees at Respondent’s Fort Payne, Alabama
bakery facility. Jenkins began his employment at Respondent’s
facility in May 1977. Prior to his suspension on July 13, 2001,
Jenkins had never received any discipline during his tenure
with Respondent. Jenkins estimated that there were approxi-
mately 800 to 900 total employees at the Fort Payne facility.
While no union represented the office clerical employees, the
Union has represented the bakery production employees for
more than 20 years. Local 611 of the Union represents only the
bakery production and maintenance bargaining unit employees
at Respondent’s Fort Payne facility. Plant Manger Gary Ken-
nedy has worked at the Fort Payne facility for 30 years and has
been plant manager for approximately 19 years.
1 All dates are 2001 unless otherwise indicated.
338 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
In August 2000, the Union initiated a strike at the Fort Payne
facility. The strike lasted 4 weeks and involved approximately
680 to 700 Fort Payne production employees. While the strike
began at Fort Payne, 26 of Respondent’s other facilities eventu-
ally joined the strike because of their individual contract expira-
tions or as sympathy strikers.
Jenkins testified that during the time of the strike, he ob-
served Plant Manager Kennedy standing at the window of the
office with some other individuals from the corporate office or
from another of Respondent’s plants. Jenkins heard Kennedy
say that he would show them what a mistake they had made by
going on strike and they would pay for it in the long run. Ken-
nedy testified that he had no recollection of making this state-
ment. Kennedy recalled that because the strikers had been out
for a month, the employees had some concerns about how they
would be received when they returned to the plant. Kennedy
testified without contradiction, that when the first strikers re-
turned to the plant at 6 a.m. on a Sunday morning, he met them
at the timeclock. He shook their hands and thanked them for
returning to work.
Respondent’s Paris, Texas, and Fort Payne, Alabama baker-
ies are considered sister operations because of the similarity of
their layouts and operations. At the time of the Fort Payne
strike in August 2000, the Paris, Texas production employees
were unionized but not the officer employees. On May 1,
2001, a sister local of the Union filed a petition with Region 16
of the Board in Case 16–RC–10312, seeking to represent the
Paris, Texas office employees. Following a June 8, 2001 elec-
tion, the Union was certified on June 18, 2001, as the bargain-
ing representative for the Paris, Texas office employees.
C. Jenkins’ Union and Protected Activity
Plant Manager Gary Kennedy testified that when he found
out that the Paris office employees had signed union cards; he
called a meeting of his office and lab personnel to let them
know what was going on in Paris. He recalled that a Paris of-
fice employee nearing retirement had checked on retirement
benefits and found them to be less than what was available for
the production employees. Kennedy recalled that he told the
office employees that they were in a “pretty lucrative” position.
They could sit back and watch to see what happened in Paris.
If the Paris employees’ situation substantially improved by
becoming unionized, he could understand why they would
make the same judgment in Fort Payne. He added that he
thought that they were in a great position however, because
they didn’t have to make a decision. He opined that if Respon-
dent were going to make improvements in one facility, then
common sense would dictate that the Company would probably
be willing to give the same under the same circumstances in
another facility. Kennedy told the employees that Respondent
had originally intended to upgrade benefits on or about January
2003. He also explained that because of ongoing union orga-
nizing efforts, the Company’s hands were tied in doing a na-
tionwide blanket improvement.
Jenkins recalled that Kennedy held a meeting with office and
quality control employees after the office personnel at the Paris
facility “had voted to accept the Union contract.” Jenkins testi-
fied that Kennedy announced that the Paris plant had voted to
accept the union contract in the office and that they were in a
position to do the same thing to improve their retirement bene-
fits. Jenkins recalled that Kennedy asked the employees to wait
a timeframe of 6 months, however, until after all outstanding
union contracts were settled. He mentioned the California and
Kentucky union contracts. Kennedy explained that Respondent
could not make any changes in nonunion employee benefits for
6 months after all outstanding contracts had been settled. Jen-
kins testified that Kennedy opined that he fully expected the
company to make improvements to retirement benefits for all
management personnel, and that if they would wait the 6 month
timeframe, he expected that both their retirement benefits and
his would be improved.
Larry Aultman is the business agent for Local 611 of the Un-
ion and has held this position for 12 years. He previously
worked as a production employee in the facility and remains on
a union leave of absence from his job at Respondent’s Fort
Payne facility. Jenkins testified that approximately a week to
10 days after Kennedy’s meeting, he spoke with Aultman about
what was needed to initiate the Union’s organizing efforts for
the office employees. Aultman told Jenkins that the Union
would need to know what the general consensus of opinion was
for the office employees. Aultman testified that he told Jenkins
to talk with employees in the office and quality control to gauge
the level of support among the employees. He also asked Jen-
kins to find out what was important for the employees and what
needed improving. Aultman cautioned Jenkins “not to walk up
to them and ask them about the Union.” He suggested that
Jenkins work the conversation around to the Union or to their
opinion as to what improvements or additional benefits were
needed.
Aultman recalled that he initially spoke with Jenkins in late
May or early June. Approximately a week later, Aultman ran
into Jenkins in the plant. Aultman testified that he has known
Jenkins for probably 12 to 14 years and often encountered Jen-
kins on his frequent visits to the plant.2 Aultman had previ-
ously spoken with Jenkins about employees’ payroll or insur-
ance problems when Jenkins had filled in for the payroll and
insurance clerk. Aultman also had occasion to see Jenkins in
the plant area when Jenkins went to the parts department. Dur-
ing the later conversation with Aultman, Jenkins reported that
while he thought that a majority of the office employees would
be in favor of a union, they wanted to “take a wait and see ap-
proach.” Jenkins reported that employees wanted to wait and
see how the Paris employees fared before they really became
actively involved in a campaign. Aultman told Jenkins that if
the interest progressed and the Union began an organizing
campaign, the Union would need a list of everyone’s name,
address, and telephone number. Aultman told Jenkins that he
would get back with him if “it got that far.” Aultman testified
that he told Jenkins to try and come up with the information
and have it ready in the event that Aultman needed it. Aultman
estimated that this last conversation with Jenkins occurred ap-

2 Aultman estimated that he usually averaged one to two visits a day
to the plant and it was not unusual for him to be in the office as often as
two to three times a week.
EARTHGRAINS CO. 847
proximately a week or two before his discharge and Jenkins
never provided him with the information.
Jenkins contends that within a week to 10 days after he first
spoke with Aultman, he talked with approximately 10 of the
eligible employees. Jenkins testified that he told the employees
that he was leaning toward union representation to improve
their retirement benefits and he wanted to find out if they would
be for or against the Union if an election were held. Jenkins
identified five of the employees with whom he spoke about the
Union. He included Linda Cameron as one of those employees.
Jenkins also testified that during this same time period, he told
Office Manager David Burgess that he had discussed the Union
with employees in the office and with Aultman. Burgress made
no comment. Jenkins described Burgress as a personal friend
and described the conversation as one between friends. While
General Counsel alleges that Burgess is a supervisor, Respon-
dent denies his supervisory or agency status.
D. Jenkins’ Alleged Absence from the Plant on July 8, 2001
1. Respondent’s timekeeping system
Nonexempt office employees clock in and out of the plant
using a card swipe KRONOS system, which records when they
arrive at the plant and when they leave. Employees are re-
quired to clock out any time they leave the plant except for
authorized company business. If an employee fails to clock out
as required, the employee may correct the error by completing a
punch order change form. Jenkins’ KRONOS record shows
that he clocked in at 6:32 a.m. on Saturday, July 7, and out at
11:14 a.m. He clocked back into the plant again at 12:55 p.m.
and out of the plant again at the end of the day at 5:54 p.m. On
Sunday, July 8, the KRONOS’ accounting timerecord shows
that Jenkins clocked in at 10:45 a.m. and out again at 2:38 p.m.
the same day.
2. Cecile Gray’s sighting of Jenkins
Cecile Gray has worked at Respondent’s facility for 24
years. Beginning her career as a call-in production employee,
she progressed through a series of different production jobs in
the Fort Payne facility. She eventually became a lead person
and later worked as a shift supervisor for 8 years before joining
the office staff. Since working in the office, she has been an
inventory controller for packaging materials and raw baking
materials and an assistant in human resources. Gray testified
that when she left the production area and began the job as
inventory controller, she received no assistance from fellow
office employees in learning the job. One employee refused to
even acknowledge her questions if she asked for assistance.
She said that after 2 or 3 days of this situation, Jenkins felt
compassionate enough to come over and help her learn the job.
Gray described Jenkins as being a really good friend to her
since that time in 1992. Gray was ultimately promoted to hu-
man resources manager and has been in that position since
March 1998.
On Sunday, July 8, Gray was traveling home from church
with her husband. Gray’s vehicle had just turned from 14th
Street north in Fort Payne and was heading north onto Gault
Avenue. Gray testified that as she was at this location, she saw
Jenkins in his truck and heading southbound in the direction of
his home on 14th Street south. At the time that Gray saw Jen-
kins, only the turn lane was between her vehicle and Jenkins’
truck. She looked at her car clock, and noticed that it was
12:45 p.m.3 Gray testified that at the time that she saw Jenkins
she had no reason to know that Jenkins was working that day or
on the clock.
3. Gray’s July 9 discussion with Jenkins
Gray recalled that Jenkins stopped by her office the next day
around 6 p.m., while on his way to the parts room in the plant.
Jenkins told her that he was considering applying for the pay-
roll clerk position that was to become available the following
Friday. Jenkins told Gray that he had spoken with Controller
Larry Christ about the position and Christ had told him that he
was going to fill the position from outside the office. Jenkins
discussed his ambivalence about applying for the position.
Gray recalled that Jenkins acknowledged that he knew that the
job was stressful and required overtime. He commented, how-
ever, that he was already accustomed to working overtime. He
explained that he had just worked overtime the previous week-
end while he was filling in for vacationing employee Debbie
O’Connor. Gray told Jenkins that if he were interested in the
position, she would speak with Christ. Jenkins told her that he
would think about it further and let her know the following day
if he wanted to pursue the job. Gray denied that at any time in
the conversation Jenkins made any comments about union rep-
resentation or about any contact with Union Representative
Aultman.
4. Gray’s followup to her discussion with Jenkins
After speaking with Jenkins, Gray then recalled that she had
seen him the previous day. She checked the KRONUS’ record
and found that Jenkins had been on the clock at the time that
she had seen him away from the plant. Immediately after
checking the KRONUS’ record and at approximately 6:45 p.m.,
Gray contacted Plant Manager Kennedy at his home.4 She told
Kennedy about having seen Jenkins the previous day and what
she had discovered when checking Jenkins’ KRONUS record.
Kennedy suggested that they give Jenkins time to correct the
mistake.
Prior to the time that Jenkins received his check on Thurs-
day, he neither submitted a punch order change form nor made
any attempt to correct the time record for the previous Sunday.
On Friday afternoon, Jenkins was called into a meeting with
Gray, Assistant Plant Manager Jim Crowe, and Office Manager
David Burgess. Gray testified that she told Jenkins that she had
seen him away from the plant on Sunday, July 8 at 12:45 p.m.
Jenkins responded that he didn’t know who she had seen but it
had not been him. Later in the conversation, Gray recalled that
Jenkins told her that he honestly didn’t remember if he had left
the plant, but asserted that if he had done so, he would have
punched out. During the meeting, Jenkins asserted that he had
either made a phone call to his wife or to former fellow em-

3 She later determined that because her car clock had a discrepancy
of 4 minutes from the plant clock, the time would have been 12:41 p.m.
plant time.
4 Respondent introduced the telephone log to corroborate the call
made to Kennedy’s home at 6:45 p.m. on July 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
ployee Pam Mitchell while he was at the plant. He suggested
that the Company check the phone records to verify his pres-
ence at the plant during the time period in question. Gray testi-
fied that she checked the phone records and found two calls
made at 1:59 and 2:03 p.m. and neither call was made to his
wife or Mitchell. She later determined that the two calls were
made to St. Louis. Gray told Jenkins that he was suspended,
pending further investigation. Before leaving the office, Jenkins
also suggested that Gray speak with employee Brenda Bartley
who had been in the office on July 8.
When Respondent introduced the telephone log for July 8,
Gray testified that the only call that was made to Jenkins’ home
was shown to be at 2:36 p.m. There was also another call that
was logged into the plant and to the extension where Jenkins
was working on July 8. The call came into the plant at 12:10
p.m. and lasted for 10 minutes and 34 seconds. Gray testified
that it takes approximately 26 minutes for the round trip from
the plant to Jenkins’ home. Gray also talked with office em-
ployee Brenda Bartley on July 13. Bartley confirmed that she
had gone into work on the July 8 specifically for the purpose of
calling St. Louis. Bartley told Gray that she had seen Jenkins
prior to her making the first telephone call at 1:59 p.m.; ap-
proximately 10 to 15 minutes after arriving at the office.5
Gray testified that after talking with Bartley, she concluded
that Bartley had not been at the plant at the time that she (Gray)
had seen Jenkins at 12:45 p.m. and that Jenkins would have had
time to leave the plant and return prior to Bartley’s presence in
the office. Gray explained that after her investigation, includ-
ing the telephone records review, she determined that Jenkins
was away from the plant while on the clock at 12:45 p.m. Be-
cause the offense is a termination offense, Gray recommended
Jenkins’ termination to Kennedy. Kennedy testified that be-
cause he believed Gray, he concluded that Jenkins should be
terminated.
5. Jenkins’ account of July 8, and the investigation
that followed
a. July 8, 2001
While Sunday, July 8, was not a regularly scheduled work-
day for Jenkins, he had worked overtime to catch up on his
work before the next workweek. He had been covering for
employee Debbie O’Connor while she was away on vacation
and he had gotten behind in his own work. When Jenkins ar-
rived, there were no other employees in the office. Jenkins
recalled that he was using the computer system in the AREBA
program, which is an online parts ordering and reconciliation
program. Jenkins was using the computer to match purchase
orders to invoices. Jenkins explained that because the purchas-
ing card was in Billy Wagner’s name, he had to use Billy Wag-
ner’s computer identification code to log into the computer
program. Jenkins maintained that after arriving at the facility,
he never left the plant until he clocked out later that afternoon.
He testified that during the entire time that he was present, he

5 Gray’s notes from her interview with Bartley reflected Bartley’s
estimate that the first call had been made 10 to 15 minutes after arriving
at the plant. In Gray’s testimony, she recalled that Bartley had esti-
mated the call 5 to 10 minutes after her arrival at the plant.
continuously made entries on the computer as he reconciled the
invoices. He saw no other employees in the office other than
Brenda Bartley, who he estimated to have arrived sometime
between 1 and 1:30 p.m.
b. July 11, 2001
Jenkins testified that while he worked on both July 9 and 10,
he had no specific recall of having seen Cecile Gray. On
Wednesday, July 11, however, Jenkins saw Gray as he was
returning to the parts room to complete an inventory. Jenkins
recalled that he sat down in Gray’s office and began to share
with her his frustration about Larry Christ’s failure to follow
seniority in filling front office positions. Jenkins told Gray
about a conversation that he had with Christ about the payroll
job that was scheduled to become available. Jenkins recalled
that he had shared with Gray that he and his wife had just rec-
onciled after a separation and he was seeking a job with less
stress and overtime. Gray responded that she was glad to hear
that he and his wife were back together and she hoped that
everything worked out. She also told him that if he wanted to
pursue the payroll job, he should submit the resume and she
would consider it, regardless of what Christ said or thought.
Jenkins also testified that during the conversation, he men-
tioned to Gray that he had spoken with Union Representative
Larry Aultman and some of the office employees about the
benefits of union representation. He said that he told Gray that
he was definitely in favor of representation if it would improve
their retirement benefits. Jenkins provided no explanation as to
what Gray said in response to this information.
c. July 13, 2001
Jenkins confirmed that he was called to a meeting with Gray,
Burgess, and Crowe on Friday, July 13, and was informed by
Gray that she had seen him on Sunday. Jenkins’ account tracks
that of Gray’s and he recalled asking Gray to check the tele-
phone records. After he left the plant, he stopped and called
back to talk with Gray. He had remembered the recipient of
Brenda Bartley’s telephone call and relayed what Bartley had
told him about the substance of her calls to St. Louis.
d. July 14, 2001
Jenkins recalled that he called Gary Kennedy at his home the
following day. He denied having been away from the plant on
Sunday and he told Kennedy that Brenda Bartley could cor-
roborate his being at the plant. Jenkins volunteered to Kennedy
two possible reasons for Gray having accused him of being
away from the plant. Jenkins suggested that it may have been
because of the incident involving Larry Christ and his not get-
ting the payroll job or it may have been because he had some
involvement with the Union. Jenkins recalled that Kennedy
had vehemently denied any knowledge of Jenkins’ involvement
with the Union. Kennedy told him that he would talk with
Brenda Bartley, review the evidence, make a decision, and then
let him know something on Monday. Jenkins testified that
Kennedy did not call him back on Monday and he ultimately
received his notice of termination on July 20, 2001.
EARTHGRAINS CO. 849
III. ANALYSIS AND CONCLUSIONS
General Counsel asserts that Jenkins engaged in two general
categories of protected conduct: (1) the traditional “union”
activities of speaking to a union representative about the pros-
pect of obtaining his coworkers’ views about potential union
representation, and stating his own inclination toward union
representation; and (2) protected concerted discussions with
other employees concerning management’s departure from a
policy of filling front office job vacancies by seniority bid.
The analytical framework for determining when a discharge
violates Section 8(a)(3) and (1) of the Act has been set forth by
the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under the Wright Line test, the burden rests with the General
Counsel to make a prima facie showing sufficient to support the
inference that protected conduct was a “motivating factor” in
the Respondent’s decision to terminate Jenkins. To establish a
prima facie case, General Counsel must show the existence of
protected activity, Respondent’s knowledge of that activity,
evidence of union animus, and the link or nexus between the
protected activity and the adverse employment action.6 If the
General Counsel is able to make such a showing, the burden
shifts to Respondent to demonstrate that it would have taken
the same action even in the absence of the protected activity. In
meeting this burden, the employer cannot simply state a legiti-
mate reason for the action taken, it must persuade by a prepon-
derance of the credible evidence that it would have taken the
same action in the absence of any protected activity.7
A. Jenkins’ Protected Activity
1. Traditional union activities
General Counsel argues that Jenkins first spoke with Union
Representative Larry Aultman about the prospect of obtaining
union representation and then spoke with 10 other employees.
Jenkins identified some of the employees with whom he spoke
and included Linda Cameron as one of those employees. Jen-
kins testified that when he spoke with these employees, he told
them that he was “leaning toward Union representation for the
purpose of improving their retirement benefits.” He stated that
he tried to find out from the employees if they would be for or
against the Union if there were an election. General Counsel
presented no employees to corroborate these conversations.
Pursuant to Respondent’s subpoena, Linda Cameron testified
concerning her contacts with Jenkins during this period of time.
Cameron testified, without contradiction, that she and her hus-
band were friends of Jenkins. They had even helped him move
during his domestic difficulties in 2000. Cameron recalled that
there had been discussions about the Paris, Texas organizing
among the Fort Payne office employees. Cameron denied
however, that Jenkins ever said anything to her about a Union
or inquired as to her union views.
Counsel for the General Counsel argues that Cameron was
the only witness to refute any aspect of Jenkins’ testimony
about his protected activities, and submits that her testimony is

6 Farmer Bros. Co., 303 NLRB 638, 649 (1991).
7 T & J Trucking Co., 316 NLRB 771 (1995).
reconcilable with Jenkins’ purpose of remaining low key during
the conversations and gathering the most candid responses from
employees. Despite General Counsel’s argument, however,
there is no direct evidence that Jenkins spoke with these other
employees or at least effectively communicated his union sup-
port to them. His support was apparently unnoticed by Cam-
eron who was a friend as well as a coworker. The only cor-
roborative evidence of his having spoken with these employees
was hearsay evidence from union Representative Aultman.
Neither Aultman nor any other witness could directly corrobo-
rate these conversations.
2. Concerted protected discussion of the job bidding policy
General Counsel further asserts that Jenkins engaged in pro-
tected concerted activity when he spoke with other employees
about employee benefits and about their dissatisfaction that
office positions were not being filled by seniority as in the past.
General Counsel argues that while Jenkins may not have raised
the issue of job bidding expressly in connection with the pros-
pect of unionizing, there was talk of the Union and potential
benefits to unionizing within the office area. General Counsel
submits that because seniority-based job bidding is a common
benefit in union contracts, employees’ discussions about the job
bidding system had a nexus to the potential group action con-
templated by employees’ discussion of unionizing.
I do not find that the evidence supports such a nexus. When
Jenkins testified that he spoke with the 10 employees, he made
no reference to his having talked with them about the job bid-
ding system in the office. He only mentioned his having spo-
ken about improving retirement benefits. The only person with
whom he mentioned any discussion about job bidding was Ce-
cille Gray. Jenkins testified that he had told Gray that he was
“kind of upset” about the way some open positions had been
filed in the front office and that Controller Larry Christ was no
longer going by seniority as it had always been done in the past.
Jenkins recalled that he had told Gray that he spoken with some
other people in the office about the fact that seniority no longer
played a part in filling positions. Jenkins admitted that he had
not mentioned the names of any specific individuals with whom
he had spoken or given any details as to the exact substance of
those conversations. While Jenkins may have been dissatisfied
with Christ’s failure to follow seniority in filling positions, the
evidence is insufficient to substantiate that Jenkins was en-
gaged in discussions with other employees about this problem.
At best, Jenkins’ raising this issue with Gray was arguably
protected concerted activity. For reasons set forth below in the
discussion concerning animus, I do not find Jenkins’ protesta-
tion of Christ’s failure to follow seniority to be a motivating
factor in Jenkins’ termination.
B. Respondent’s Knowledge
General Counsel asserts that Respondent’s knowledge of
Jenkins’ protected activities is established by (1) Jenkins’
statements to David Burgess concerning his union activities; (2)
Jenkins’ statements to Cecile Gray concerning his union and
concerted protected activities; and (3) Jenkins’ statements to
Plant Manager Kennedy regarding his union and concerted
protected activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
1. Statements to David Burgess
Jenkins testified that approximately 3 weeks before his ter-
mination, he spoke with his personal friend and Office Manager
David Burgess. Jenkins testified that he told Burgess that he
had talked with people in the office and he felt that if there
were an election, the employees would support the Union.
Jenkins also recalled that he told Burgess that he had spoken
with Aultman about the consequences and benefits of union
representation in the office. Jenkins recalled that Burgess made
no comment and simply nodded. Within a few days, he had a
second conversation with Burgess and he reiterated his earlier
comments. Jenkins described the conversation as “just a con-
versation between fiends.”
2. Burgess’ supervisory status
The term “supervisor” means any individual “having the au-
thority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly direct them or to
adjust their grievances, or effectively to recommend such ac-
tion, if in connection with, the foregoing the exercise of such
authority is not merely routine or clerical nature, but requires
the use of independent judgment.” Queen Mary, 317 NLRB
1303 (1995). General Counsel asserts that Burgess is a super-
visor within the meaning of Section 2(11) of the Act and Bur-
gess’ knowledge of Jenkins’ protected activities is attributable
to Respondent as a matter of law. Dayton Typographical Ser-
vice, 273 NLRB 1205, 1211 (1984), enfd. in pertinent part 778
F.2d 1188 (6th Cir. 1985), citing Pelligrini Bros. Wines, 239
NLRB 1220 (1979); Red Line Transfer & Storage Co., 204
NLRB 116 (1973).
While the complaint alleged that Burgess is a supervisor
within the meaning of Section 2(11), Respondent denied Bur-
gess’s supervisory status. In his brief, counsel for the General
Counsel acknowledges that the burden of establishing the su-
pervisory status of Burgess rests with the General Counsel.
Counsel also notes that an individual’s appraisal or evaluation
of employees’ performance does not of itself establish supervi-
sory status. General Counsel asserts however, that if the
evaluations have a direct effect on the employees’ working
conditions, such as where they directly affect wages, tenure, or
employment status, then the evaluators are per force Section
2(11) supervisors.8
In asserting that Burgess is a statutory supervisor, General
Counsel relies upon the testimony of Jenkins and former em-
ployee Pam Mitchell. Jenkins and Mitchell testified that based
upon their experience running payroll for the Respondent, an
employee’s appraisal score corresponds directly to the level of
annual merit raise awarded to the employee. General Counsel
submitted an appraisal form for Jenkins that was prepared and
signed by Burgess in April 2000. I agree with General Coun-
sel’s argument that the appraisals’ ability to affect discipline
and tenure is implicit in the process and in the language of the
form itself. The form language indicates that an unsatisfactory
rating may serve as grounds for disciplinary action, up to, and
including dismissal. I also note that Respondent submitted into

8 Bayou Manor Health Center, 311 NLRB 955 (1993).
evidence a punch record change form for Jenkins that was
dated December 15, 2000. David Burgess signed this form as
Jenkins’ supervisor. Certainly the completion of these forms is
a strong indication that Burgess met the criteria for supervisor
in April and December 2000. The evidence however, does not
support that Burgess continued to possess the same indicia of
supervisory status in July 2001.
While Burgess signed the punch record change form as Jen-
kins’ supervisor in December 15, 2000, Larry Christ signed this
same form as Jenkins’ supervisor on July 3, 2001. Jenkins’
testimony indicates that it was Larry Christ who had the re-
sponsibility to fill the positions in the front office. Jenkins
neither asserts that Burgess had any role in selecting the payroll
clerk nor in Respondent’s decision to terminate him. General
Counsel also asserts that Burgess possessed other indicia of
supervisory status including his participation in the July 13,
2001 meeting with Jenkins, his title of “Office Manager,” and
the fact that he does not clock in and out. I note that while
Burgess was present during Gray’s suspension meeting with
Jenkins on July 13, there is no evidence that he participated in
any way. At best, he appeared to be a witness who ultimately
escorted Jenkins to collect his personal belongings. The fact
that Burgess may have the title of “Office Manager” and is
compensated by salary rather than based upon an hourly rate
does provide sufficient evidence of authority or responsibility
to establish supervisory status.
General Counsel argues that while it bears the burden of
proving Burgess’ supervisory status, the fact that the Respon-
dent did not offer any evidence on the point is significant. Cit-
ing International Automated Machines, 285 NLRB 1122, 1123
(1987), enfd. 861 F.2d 720 (6th Cir. 1988), General Counsel
submits that where witnesses who reasonably may be consid-
ered favorably disposed toward a party are not called to testify
about matters disputed by the litigation and about which they
have special knowledge, an inference is required that, had the
witness testified, their testimony would have been adverse to
the party on the point in question. Certainly, in International
Automated Machines, the Board reiterated the rule that when a
party fails to call a witness who may reasonably be assumed to
be favorably disposed to the party, an adverse inference may be
drawn regarding any factual question on which the witness is
likely to have knowledge. I note however, that in that case the
Board drew such an adverse inference when the missing wit-
ness was a member of management. In a recent case, the Board
noted that the failure to call a witness permits but does not re-
quire the drawing of an adverse inference. That determination
depends upon the particular circumstances in each situation.
Desert Pines Golf Club, 334 NLRB 265 (2001). Thus, while
Respondent did not call David Burgess to deny knowledge of
Jenkins’ union activity or to deny his supervisory status, such
action is consistent with Respondent’s position that he was not
a supervisor. Accordingly, I draw no adverse inference from
Respondent’s failure to present Burgess.
Based upon the total record evidence, I do not find the evi-
dence sufficient to establish that David Burgess was a statutory
supervisor in July 2001. Having failed to find that Burgess was
a supervisor, his knowledge of Jenkins’ union activity may not
be imputed to Respondent.
EARTHGRAINS CO. 851
3. Jenkins’ statements to Gray
Jenkins testified that he told Gray during their meeting the
week of July 9, 2001, that he had been in touch with Union
Representative Aultman and that he had talked with employees
about obtaining union representation. Gray denied that Jenkins
made any mention of the Union or his having spoken with
Aultman. She recalled that while Jenkins expressed his dissat-
isfaction about how Christ was filling the job opening in the
office, he made no mention of retirement benefits.
Certainly, it is this conversation that is most critical to estab-
lish knowledge of Jenkins’ union or protected activity. Jenkins
presented no evidence that either Gray or Kennedy had per-
sonal knowledge of his having talked about the Union with
office employees. Jenkins’ testimony concerning his conversa-
tion with Gray must be credited in order to establish Respon-
dent’s knowledge through Gray. Respondent argues that Jen-
kins’ contention that he had a conversation with Gray about the
payroll position and his union leanings on Wednesday, July 11,
2001, is not credible. While Jenkins testified that this
conversation occurred with certainty on Wednesday, July 11,
Gray recalled that her conversation with Jenkins occurred on
Monday, July 9. Gray recalled specifically that after learning
from Jenkins on Monday that he had worked overtime on
Sunday, she reviewed his time record. When she discovered
that Jenkins was shown to have been on the clock at the time
that she saw him away from the plant, she called Plant Manager
Kennedy at home. Respondent submitted the telephone log to
verify her call to Kennedy on Monday evening as she testified.
Respondent also submitted Jenkins’ time record to show that
while he had worked as late as 6:51 p.m. on Monday, July 9, he
had clocked out at 5:25 p.m. on Wednesday, July 11. These
particular documents appear to bolster Gray’s testimony that
the meeting occurred on Monday rather than Wednesday, how-
ever I don’t find them definitive for discrediting Jenkins’ ver-
sion of the substance of the conversation.
In considering the testimony of both Gray and Jenkins how-
ever, I find Gray to be more credible. Jenkins admits that dur-
ing his conversation with Gray, he talked with her about his
relationship with his wife and shared that he and his wife had
gotten back together. Admittedly, Gray told him that she was
pleased to hear it and that she hoped that everything worked
out. Jenkins explained to Gray that one of the reasons that he
was interested in getting the payroll clerk position was the
stress and overtime demands of his current job. Jenkins admits
that Gray told him that if he were interested in the payroll
clerk’s position, all that he had to do was submit a resume. She
assured him that she would consider it no matter what Christ
said or thought. Jenkins contends that it was in this same con-
versation that he told Gray that he had spoken with Aultman
and other employees and that he was “ definitely in favor” of
the Union. While Jenkins contends that he openly shared these
views with Gray, Aultman testified that he had cautioned Jen-
kins about raising the subject of the Union in an indirect man-
ner. Aultman testified:

When I talked to him about trying to gauge the interest in the
Union, I cautioned him about just walking up to somebody
saying what do you think about the union. I encouraged him
to just work that conversation around to where the union just
came up, or not even necessarily the union maybe, but just the
need for improvement in benefits and things like that—to
maybe start the conversation out with something that did not
even have anything to do with the job or the benefits or any-
thing, but then just work the subject of organizing around, to
where people are not so open about it and they are not fearful
that they are really talking about a Union and somebody will
overhear them, and maybe get discharged.

Respondent argues that Aultman’s advice would have been
completely at odds with Jenkins’ alleged bold proclamation of
his union support and activity to Gray. I find merit in Respon-
dent’s argument. It is implausible that he would have boldly
proclaimed his union support to the manager who had assured
him that she would consider him for the payroll job despite
possible resistance from Christ. The fact that he had been told
by the Union to use caution in even bringing up the subject of
the Union with other employees belies his assertion that he
boldly proclaimed his union support during this particular con-
versation with Gray. I also find it incredible that Jenkins so
boldly proclaimed this union support and yet he provides no
explanation as to how Gray reacted or responded to this infor-
mation. I do not credit Jenkins’ testimony concerning this con-
versation and find no basis to conclude that Gray had knowl-
edge of Jenkins’ protected or union activity.
4. Knowledge based on Jenkins’ conversation with Kennedy
Jenkins testified that during a July 14, 2001 telephone con-
versation he relayed to Plant Manager Kennedy his belief that
the Respondent was taking these actions against him because of
his union organizing activities and because of his complaints
about Christ’s process of filling office positions. Kennedy
testified that he did not recall any reference to the Union or
Jenkins’ opinion about the Union during this conversation.
General Counsel asserts that Respondent’s position statement
submitted during the Region’s investigation concedes knowl-
edge based upon Jenkins’ conversation with Kennedy. General
Counsel submits that under Federal Rules of Evidence
801(d)(2)(A) and Board precedent, an admission by a party-
opponent may be admitted as nonhearsay.9 Respondent’s vice
president and deputy general counsel, Thomas H. Langenberg,
submitted the position statement to the Region. I note that the
portion of the letter in issue is not consistent with either the
testimony of Kennedy or Jenkins. Neither Jenkins nor Kennedy
testified that Kennedy was involved in any investigatory inter-
view with Jenkins. The only discussion referenced by either
witness was the telephone conversation initiated by Jenkins on
July 14, the day after Gray suspended him. The letter however,
states that Kennedy conducted an investigatory interview with
Jenkins after his suspension. Langenberg lists three reasons
that Jenkins gave to Kennedy for why he felt that he had been
suspended. Langenberg asserts that Jenkins had given his fail-
ure to be selected by Christ for the position of packaging buyer
and his discussion with Gray about the payroll position as the

9 Citing Optica Lee Borinquen, 307 NLRB 705 (1992); Massillon
Community Hospital, 282 NLRB 675 (1987); American Postal Workers
Union, 266 NLRB 319 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
first two reasons. With respect to the third reason given by
Jenkins, Langenberg states:

Finally, Mr. Jenkins raised a question of the office employees
giving consideration to joining the union. The Fort Payne
plant has a sister facility in Paris, Texas where the office em-
ployees recently voted to join the BCTGM union. Mr. Jen-
kins relayed to Mr. Kennedy that he had told some of his co-
workers he would support joining a union if the union could
improve his benefits. He did not allege that Cecile Gray was
aware of his comments, or that any other member of man-
agement was aware of such comments. After the election at
the Paris facility, Mr. Kennedy addressed the issue with the
office employees and advised them that they were “in the cat
bird seat.” He told them that they could watch to see what
benefits the union obtained for the office employees in Paris
and then make up their minds. Mr. Jenkins told Mr. Kennedy
that his comments to his co-workers were a repetition of what
Mr. Kennedy had said to them. Mr. Jenkins was unable to
explain why anyone would object to him repeating, or para-
phrasing, the plant manger’s statements. Further neither Ce-
cile Gray nor Gary Kennedy nor any other manager was
aware of the comments until the interview. Mr. Jenkins was
already under suspension, with the expectation of termination,
if a plausible, acceptable excuse for his behavior was not ten-
dered, when the company [was] first learned of this activity.
Further, this activity was alleged by Mr. Jenkins to be no
more than a restatement of the plant manager’s remarks.

While Respondent’s deputy general counsel may have been
mistaken about the circumstances of the discussion between
Jenkins and Kennedy, his letter certainly corroborates that Jen-
kins informed Kennedy of his union discussions with employ-
ees. Accordingly, I find that the evidence supports that as of
July 14, Jenkins had informed Kennedy that he had engaged in
discussions with employees about the Union. See McKenzie
Engineering Co., 326 NLRB 473, 485 fn. 6 (1998); Walker
Stainless Inc., 334 NLRB 1260, 1275 fn. 23 (2001). I note
however, that this knowledge is not established prior to Gray’s
initiating the investigation and it was after Jenkins’ suspension.
C. Animus
Under the Wright Line analysis, the General Counsel must
prove that animus was a “substantial and motivating factor” in
Respondent’s decision to take adverse action. Manno Electric,
321 NLRB 278, 280 at fn. 12 (1996). In other words, the Gen-
eral Counsel must prove by a preponderance of the evidence
that animus was present during the decisionmaking process.
Sears Roebuck & Co., 337 NLRB 443 (2002). Animus need
not be proven by direct evidence; it can be inferred from the
record as a whole.10
General Counsel argues that the motivational link between
Jenkins’ protected activities and his discharge is inferred from
five factors: (1) Plant Manager Kennedy’s statement during the
strike, (2) Kennedy’s statement in his meeting with employees
concerning the organizational activities at the Paris plant, (3)
the highly suspicious timing of Respondent’s actions against

10 Fluor Daniel, Inc., 304 NLRB 970 (1991).
Jenkins, (4) Respondent’s failure to meaningfully investigate
the events of July 8, 2001, and (5) official notice of Respon-
dent’s prior unlawful conduct as found in a previous unfair
labor practice proceeding.
1. Plant Manager Kennedy’s alleged statements
during the strike
General Counsel alleges no independent 8(a)(1) violations in
this case. Counsel for the General Counsel argues however, that
because Kennedy’s August 2000 statement was heard by em-
ployees and would reasonably tend to coerce them in the exer-
cise of Section 7 rights, it would have constituted an independ-
ent Section 8(a)(1) had it been plead. General Counsel further
acknowledges however, that because there is no complaint
allegation or timely charge regarding that statement, no redress
of the violation is sought. Citing Hankins Lumber Co., 316
NLRB 837, 845 (1995), General Counsel asserts however, that
evidence of coercive conduct properly establishes motive even
though it is not alleged as an independent violation. In
Hankins, the Government argued that an alleged threat of plant
closure should be credited even though the remark was neither
alleged as a violation in the complaint nor amended into the
complaint at trial. The administrative law judge however, did
not credit the statement, finding it to be ambiguous and not
clearly interpretative of an unlawful meaning. General Counsel
also relies upon Best Products Co., 235 NLRB 1024, 1025
(1978), in its argument that Kennedy’s statement provides ani-
mus for Jenkins’ discharge. I note that in Best Products there
had been a prior representation proceeding in which the em-
ployer was alleged to have coercively interrogated an employee
whose discharge was the subject of the subsequent unfair labor
practice hearing. The hearing officer, whose decision was af-
firmed by the Board, found such interrogation to interfere with
employee rights. In the subsequent unfair labor practice
proceeding, the Board found that the employer’s union animus
toward this employee was established by the findings of the
hearing officer and the Board in the preceding representation
proceeding.
I find the circumstances of this case distinguishable from
both Hankins Lumber Co. and Best Products Co. While Jen-
kins recited this one statement, he failed to identify to whom
this comment was addressed, whether this was a part of a con-
versation, and what comments preceded or followed this state-
ment. There is no evidence that this statement was directed to
employees or even overheard by any other employees. I note
that the Board has previously determined that it is irrelevant
whether a comment is intended to be overheard when evaluat-
ing the coerciveness of an alleged statement. Crown Stationers,
272 NLRB 164 (1984). The coerciveness of Kennedy’s alleged
statement however, cannot be ascertained without an adequate
foundation of the circumstances in which it occurred. Unlike
the circumstances in Best Products Co., Kennedy’s statement
was not directed to Jenkins. The evidence in fact, demonstrates
that it occurred prior to Jenkins or any other office employee
engaging in any union activity. Accordingly, I do not find the
alleged statement by Kennedy sufficient to establish that Jen-
kins’ union or protected activities were a motivating factor in
his July 2001 discharge.
EARTHGRAINS CO. 853
2. Plant Manager Kennedy’s statements to the
congregated employees
In issuing complaint, General Counsel did not allege Ken-
nedy’s statements to the office and quality control employees as
violative of the Act, although they were alleged to have oc-
curred within 6 months of the date of the charge. General
Counsel argues however, that Kennedy’s statements were no
less than a directive for employees to refrain from union activ-
ity for at least 6 months and a promise of benefits if they would
refrain from unionizing for the prescribed time period. General
Counsel argues that these statements establish a motivational
link between Jenkins’ union activities and his discharge since
Jenkins disobeyed Kennedy’s directive to hold off on union
organizing. The Board and the courts have long recognized
that while statements may not be alleged as violations, they
may nevertheless be relied upon as evidence of animus.11
While the remarks might arguably establish evidence of animus
toward an employee who did not postpone pursuit of organizing
activities, the evidence fails to establish Respondent’s knowl-
edge of Jenkins’ union activity prior to his suspension.
3. Timing and the extent of Respondent’s investigation
General Counsel further submits that the timing of Jenkins’
discharge and the extent to which Respondent investigated the
incident are further evidence of Respondent’s unlawful motive.
Considering only Jenkins’ testimony, the timing of his dis-
charge may certainly raise a question of unlawful motivation.
It is undisputed that he had no prior discipline during his 24
years of employment. Based upon Jenkins’ testimony, Re-
spondent terminated him within weeks of his having talked
with other employees about the Union and his dissatisfaction
with Christ’s selection process for office positions. Jenkins’
testimony that he spoke with employees about the Union how-
ever, was not only uncorroborated but actually rebutted by his
friend and fellow employee Linda Cameron. As discussed
above, the credited evidence fails to show that Respondent had
any knowledge of Jenkins’ alleged union activity prior to
Gray’s investigation and Jenkins’ subsequent suspension on
July 13. Thus, without evidence of protected activity and Re-
spondent’s knowledge of such activity, the timing of the sus-
pension and subsequent discharge fail to establish evidence of
animus.
General Counsel argues that Respondent’s investigation of
the events indicated that the Respondent was more concerned
with justifying planned action against Jenkins than determining
whether misconduct occurred. General Counsel describes Re-
spondent’s investigation as “Verdict First—investigation after-
wards.” General Counsel submits that Respondent could have
checked with the security guard or Gray’s husband to determine
the accuracy of Gray’s account. I note however, that Jenkins’
never asserted that the security guard could verify his presence
“in the office.” There was no evidence that the security guard’s
responsibility included visually observing and documenting
each individual employee leaving and entering the premises.
At best, the security guard could only have verified that he had

11 Electronic Data Systems Data, 305 NLRB 219 (1991); Passaic
Daily News v. NLRB, 736 F.2d 1543 fn. 15 (D.C. Cir. 1984).
seen Jenkins’ leaving or returning to the plant during the rele-
vant time period. Inasmuch as Kennedy relied upon Human
Resource Manager Gray’s recollection of her observation, it
would not have been reasonable for him to distrust her informa-
tion and question Gray’s husband. General Counsel also sub-
mits that Respondent could have interviewed other employees
who clocked in and out during the time period in issue to de-
termine if they had seen Jenkins. The record reflects however,
that Gray spoke with Brenda Bartley, who was the only em-
ployee that Jenkins claims to have been present during this time
period. General Counsel also argues that Respondent’s consult-
ing electronic evidence would have yielded additional sources
of information. General Counsel argues that Respondent never
checked its electronic log file or data uploads to determine the
times at which Jenkins made entries on the day in question.
Gray denied that Jenkins told her during the July 13 meeting
that he was making computer data entries in the inventory data-
base. Gray testified however, that after the July 13, 2001 meet-
ing with Jenkins and prior to the decision to terminate Jenkins,
Larry Christ checked the computer records. Gray explained
however, that the relevant records were overwritten every 4
days and were no longer available for verification. While Gen-
eral Counsel would expand the investigation to every conceiv-
able factual resource, the overall evidence does not indicate that
Respondent engaged in a perfunctory or inadequate investiga-
tion.
4. Official notice of earlier unlawful conduct
General Counsel asserts that the Board’s findings of Re-
spondent’s other unlawful conduct may be relied upon in de-
termining animus. General Counsel submits that the Board has
recognized that its earlier decisions regarding an employer are
properly the subject of official notice in order to establish back-
ground information and the likelihood of ill motive.12 As noted
by the General Counsel, the Board has also found that prior
unfair labor practices engaged in by the same respondent can
not only be properly noted as background, but may also bolster
a finding of union animus in a later proceeding. Control
Services, Inc., 315 NLRB 431 (1994). Accordingly, it is argued
that I may appropriately rely on findings of other unlawful
conduct found by the Board in Earthgrains Co., 336 NLRB
1119 (2001), Earthgrains Co., 334 NLRB 1131 (2001), and the
administrative law judge’s decision in Earthgrains Co., JD–51–
00. It is argued that collectively, these cases disclose a general
disrespect on Respondent’s part for employees’ rights under the
Act.
Respondent argues that judicial notice cannot fill the animus
gap in General Counsel’s prima facie case. Respondent argues
that the earlier Earthgrains cases, as cited by General Counsel,
are not proper subjects for judicial notice. Respondent submits
that judicial notice is limited to cases involving the same deci-
sionmaker, the same facility, the same factual basis, and/or the
same employees. Respondent distinguishes Barnes & Noble,
supra, as a case where the “chief activist” in the prior case that
was judicially noticed was also the “chief activist” in the sub-
12 Barnes & Noble Bookstores, 237 NLRB 1246 fn. 1 (1978), enfd.
598 F.2d 665 (1st Cir. 1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
sequent case. Respondent argues that the other cases relied
upon by the General Counsel are further distinguishable as the
judicial notice involved: the same administrator and same facil-
ity, the same employees and the same facts, statements made to
employees that had been found unlawful in a prior case involv-
ing the same statements, or was taken for the limited purpose of
establishing a chronology of background events.13 Respondent
argues that not one of the cases cited by the General Counsel
takes judicial notice of events that happened at another facility,
involved a different decisionmaker, concerned different union
locals, or implicated different employees, and/or different fac-
tual circumstances.
In Earthgrains Co., supra, the Board affirmed the adminis-
trative law judge in finding that the Respondent violated Sec-
tion 8(a)(5) of the Act during the terms of collective-bargaining
agreements for two bargaining units by withdrawing recogni-
tion from the Union, ceasing to apply contract terms, bypassing
the Union, and refusing to process grievances with respect to
certain historically represented unit employees. The unfair la-
bor practices involved Respondent’s employees in Columbus,
Laurel, Hattiesburg, and Meridian, Mississippi. Earthgrains
Co., 336 NLRB 1119, involved Respondent’s facility in
Orangeburg, South Carolina. The Board affirmed the adminis-
trative law judge in finding violations of 8(a)(1) that arose in
the midst of an organizing campaign at the South Carolina fa-
cility. Included in the conduct found violative was the plant
manager’s statement to employees during the campaign. The
plant manager told maintenance employees that they would get
the planned wage increases if the union was defeated in the
election, but the increase was “something that would have to be
negotiated” if the union won. The administrative law judge
decision pending before the Board in Earthgrains Co., JD–51–
00 (lead Case 11–CA–18006–1, May 1, 2001) involves allega-
tions of independent 8(a)(1) conduct as well as the discrimina-
tory discharge of one employee and the discriminatory transfer
of another employee at Respondent’s facilities in Johnson City,
Tennessee; Norton and Bristol, Virginia; and Jenkins, Ken-
tucky.
Respondent argues that the cases for which General Counsel
requests judicial notice are not similar in time, nature, or par-
ticipants to the case in issue. I find merit in Respondent’s ar-
gument. Jenkins’ discharge resulted from Cecile Gray’s inves-
tigation and her later recommendation for termination to Plant
Manger Gary Kennedy. There is no evidence that Gray, Ken-
nedy, or Jenkins was involved in any of the prior cases cited by
General Counsel. None of the cases involve the Fort Payne
facility. While I take judicial notice of these cases as back-
ground, I do not find these cases sufficiently similar in nature
or in participants to provide evidence of animus or unlawful
motive in Jenkins’ discharge.
5. The question of disparity
Respondent asserts that employees Stanley Crowe, Gary
Hughes, and Dwayne Meeks were all terminated for the same
offense as Jenkins. General Counsel argues that Respondent

13 Barnes & Noble, 237 NLRB at 1249; Kings Terrace Nursing
Home, supra; Best Products Co., 236 NLRB 1024 (1978); Stark Elec-
tric, Inc., 327 NLRB 518 fn. 1 (1999).
disparately terminated Jenkins as compared to its treatment of
employee Stanley Crowe. The record reflects that Crowe was
terminated for being away from the plant while on the clock in
March 1999. While Crowe initially denied the accusation, he
later admitted that he had left the plant because he had to check
on a problem with his son. General Counsel submitted into
evidence a memorandum by Supervisor Larry Gaines. The
memorandum documents that Gaines had warned Crowe for
leaving the plant without clocking out 6 months before his dis-
charge. Plant Manager Kennedy testified that when he termi-
nated Crowe, he had been unaware of Crowe’s earlier warning
for this infraction.
D. Summary and Analysis
After considering General Counsel’s and Respondent’s ar-
guments and the total record evidence, I find that this case ul-
timately turns on the credibility of Cecille Gray. Plant Manager
Gary Kennedy testified that he terminated Richard Jenkins
because he believed that Jenkins was away from the plant while
on the clock. He concluded that Jenkins had been away from
the plant on July 8, because Cecile Gray told him that she had
seen Jenkins. Kennedy was asked why he believed Gray even
though Jenkins denied being away from the plant. Kennedy
explained that he had placed Gray in her position as human
resources manager primarily because of her integrity. She not
only told Kennedy that she had seen Jenkins, but she fully de-
scribed his behavior. She described Jenkins as driving with
both hands on the wheel; looking straight ahead, and appearing
possessed like a man on a mission. Kennedy recalled that a day
or two after Gray first told him about seeing Jenkins, she con-
fided to him the personal problem that she had with disciplining
Jenkins. For the first time she shared with Kennedy how Jen-
kins had befriended her when she first went into the office and
the fact that she might not have become eligible for her current
job had it not been for Jenkins. Kennedy also explained that
Respondent had taken into account everything that Jenkins had
said but had found nothing that exonerated him. Kennedy testi-
fied that Respondent could find nothing that even remotely
indicated that Jenkins was not where Gray placed him on July
8. Kennedy explained that he had to believe someone and that
“someone” was Cecile Gray.
In his brief, counsel for the General Counsel described Gray
as emotive while testifying and describes her as portraying a
continuing internal conflict. General Counsel suggests that any
lingering internal struggle evinced by Gray was indicative of
one who realizes that she has done a friend wrongly and feels
guilt. General Counsel further submits that the image of Jen-
kins assisting her at a time when others in the office coolly
distanced themselves from her would not trouble her if her
conscience were clean regarding her actions toward him.
Gray’s demeanor clearly demonstrated her anguish for her role
in Jenkins’ discharge. Contrary to General Counsel’s argument
however, I found her testimony to be forthright and completely
credible. Candidly, one might wonder why Gray, as a friend,
did not approach Jenkins on a personal basis and ask him about
the problem with his time records. She apparently concluded
however, that her job responsibility required her to do just as
she did with no room for variance. While this may have been a
EARTHGRAINS CO. 855
very harsh stance to take with a friend, the evidence does not
support that it was done because of an unlawful motive. Inter-
estingly, it is the testimony of both Cameron and Gray that so
markedly contradicts Jenkins and these are the witnesses who
describe themselves as his friends.
Based on the overall evidence, I do not find that the record
supports that Jenkins’ union activity or protected activity was a
motivating factor in Respondent’s decision to terminate him.
Jenkins’ union activity was not corroborated. Any question
that Respondent harbored animus about his complaints con-
cerning Christ’s selection criteria is diffused by Jenkins’ own
testimony. Admittedly, Gray assured him that she would con-
sider him in spite of Christ. There is no credible evidence of
Respondent’s knowledge of any union activity until after Jen-
kins’ suspension. In view of the total record evidence, I am
unable to conclude that Jenkins’ was treated in a disparate
manner. Respondent has terminated other employees for the
same offense. For the reasons set forth above, I find no proba-
tive evidence from which I can infer that Jenkins’ discharge
was the product of animus toward his union or protected activ-
ity.14
Even if General Counsel had met its burden of establishing a
prima facie case, Respondent has demonstrated that it would
have terminated Jenkins even in the absence of any protected or
union activity.15 The record evidence supports the conclusion
that Respondent discharged Jenkins because it was determined
that he was away from the plant while on the clock. Respondent
has demonstrated that this determination was based upon the
clear and unwavering account of Cecile Gray. Gray may have
been mistaken in her conclusion that she saw Jenkins on July 8,
at 12:41 p.m. Respondent however, relied upon Gray’s obser-
vation and conclusion. The Board has determined that while an
employer may act on a mistaken belief, such conduct does not
constitute an unfair labor practice. See Yuker Construction Co.,

14 See Meritor Automotive, Inc., 328 NLRB 813 (1999), where the
Board found there was marginal knowledge of union activity but no
direct evidence of animus. The Board concluded that there was an
insufficient basis to infer animus and therefore a failure to meet Gen-
eral Counsel’s burden of proof.
15 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
335 NLRB 1072 (2001). In Yuker, the Board also noted that an
employer might discharge an employee for any reason, whether
or not it is just, as long as it is not for protected activity.16
While Gray’s treatment of a friend may appear to be harsh
and even unjust based upon the undisputed history of their rela-
tionship, the overall evidence is insufficient to find that Jenkins
was discharged for either his union or protected activity. Ac-
cordingly, I shall recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the mean-
ing 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. Respondent has not engaged in the alleged unfair labor
practices.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The complaint is dismissed.

16 Manimark Corp. v. NLRB, 7 F.3d 547, 552 (6th Cir. 1993); NLRB
v. Ogle Protection Service, 375 F.2d 497, 505 (6th Cir. 1967), cert.
denied 389 U.S. 843 (1967).
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.