EBY-Brown Co., L.P.

National Labor Relations Board - Board Decisions

May 26, 1999

328 N.L.R.B. 496 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
Eby-Brown Company L.P. and Robert W. Burnett,
Petitioner and Chauffeurs, Teamsters, Ware-
housemen and Helpers Local Union No. 135, a/w
International Brotherhood of Teamsters, AFL–
CIO

Eby-Brown Company L.P. and Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union
No. 135, a/w International Brotherhood of
Teamsters, AFL–CIO and Douglas A. Jones.
Cases 25–RD–1171, 25–CA–22530–1 Amended,
25–CA–22640, 25–CA–22782 Amended, 25–CA–
22862–1–2 Amended, 25–CA–22885 Amended,
and 25–CA–22983
May 26, 1999
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On July 26, 1996, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed limited
cross-exceptions with a supporting brief, and the Re-
spondent 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.4

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent 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, 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.
3 We agree with the judge’s conclusion that the Respondent engaged
in bad-faith bargaining in and after March 1994, but, in reaching this
conclusion, we find it unnecessary to rely on the Respondent’s state-
ment to the Union that any agreement reached would be void if the
Union lost the upcoming decertification election.
In finding that the Respondent had no right to deny off-duty em-
ployees access to its outside property, Member Hurtgen relies solely on
the basis that even had the Union contractually waived employees’ off-
duty access rights, this waiver ceased at contract expiration. Southwest-
ern Steel v. NLRB, 806 F.2d 1111, 1114 (D.C. Cir. 1986).
4 The Respondent filed a motion to reopen the record to introduce
evidence that it would be unduly burdensome for the Board to require it
to restore, to Indianapolis, its operations as they existed in March 1994
and, further, that restoration is not necessary to effectuate the purposes
of the Act. In denying this motion, we note that the Respondent is
permitted, at the compliance stage of this proceeding, to introduce any
evidence not available at the time of the hearing that restoring these
operations would be unduly burdensome. Q-1 Motor Express, Inc., 323
NLRB 767 (1997); Lear Siegler, Inc., 295 NLRB 857 (1989).
1. In adopting the judge’s findings that the Respondent
violated Section 8(a)(1) by informing employees that: (1)
it had spent so much money on the decertification cam-
paign that it had nothing left with which to bargain; and
(2) employees did not have a profit-sharing or 401(k)
plan because it had spent so much on arbitrations, we
find that these statements also unlawfully implied that
bargaining would be futile. See, e.g., R. L. White Co.,
262 NLRB 575, 589 (1982).
2. The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by informing employees who
were handbilling outside the Respondent’s gate on June
30, 1993, that they could not handbill on company prop-
erty, by asking if they wanted their names given to the
police, and by calling the police. In addition to the ra-
tionale relied on by the judge, we note that, regardless
whether the employees were on or off company property
when handbilling, their conduct was protected, and the
Respondent’s actions unlawfully chilled their Section 7
rights. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945).
3. In finding that the Respondent violated Section
8(a)(1) by disparately prohibiting employees from dis-
playing union slogans on company-owned back belts,
and Section 8(a)(3) by disciplining employees Douglas
Jones, Danny Rakes, and Randy Jewell for displaying the
Union’s name on their belts, we find that NLRB v. Win-
demuller, 34 F.3d 384 (6th Cir. 1994), is distinguishable.
In the instant case, the Respondent discriminated with
respect to company-owned back belts. That is, the Re-
spondent permitted the display of some markings on
company-owned back belts, but it would not tolerate
union markings on those belts. By contrast, in Winde-
muller, supra, there is no showing of such discrimination.
Further, in the instant case, the Respondent did not per-
mit the wearing of union insignia on employee-owned
property (i.e., employee-owned back belts). In Winde-
muller, this conduct was permitted.
4. In adopting the judge’s finding that the Respondent
unlawfully withdrew recognition from the Union in
about late August 1993, we do so on the basis that the
Respondent was precluded from withdrawing recognition
during the pendency of the decertification proceedings.
W. A. Krueger Co., 299 NLRB 914 (1990); Underground
Service Alert, 315 NLRB 958 (1994). Further, although
the judge did not cite the “causally related” test in Lee
Lumber & Bldg. Material Corp., 322 NLRB 175 (1996),
affd. in relevant part 117 F.3d 1454 (D.C. Cir. 1997), we
find that the employee disaffection from the Union was
causally related to the antecedent unfair labor practices
and, thus, Respondent could not rely on such disaffection
as a basis for withdrawing recognition. Thus, as stated in
Pirelli Cable Corp., 323 NLRB 1009, 1010 (1997), the

328 NLRB No. 75
EBY-BROWN CO. L.P. 497
Board considers the following factors when determining
whether there is a causal connection between an em-
ployer’s unlawful conduct and the subsequent expression
of employee disaffection:

(1) The length of time between the unfair labor prac-
tices and the withdrawal of recognition; (2) the nature
of the illegal acts, including the possibility of their det-
rimental or lasting effect on employees; (3) any possi-
ble tendency to cause employee disaffection from the
union; and (4) the effect of the unlawful conduct on
employee morale, organizational activities, and mem-
bership in the union.

Here, the unfair labor practices relied on by the judge satisfy
this test. Thus, throughout the months immediately preced-
ing the withdrawal of recognition, the Respondent commit-
ted numerous 8(a)(1), (3), and (5) violations, including (as
relied on by the judge): unlawfully denying off-duty em-
ployees access to its property to engage in protected con-
certed activity; denying the Union plant access for, among
other things, grievance processing; advising employee union
stewards and activists that adverse action was taken against
them because of their union activity; and promising em-
ployees that company supporters would receive preferential
treatment and implementing that promise through discrimi-
natory evaluations and bonuses. We find that the cumula-
tive effect of these violations (coupled with the other
prewithdrawal violations) reasonably would cause em-
ployee disaffection from the Union such that the Respon-
dent could not rely on the August 1993 petitions to establish
good-faith doubt that the Union continued to represent a
majority of unit employees.5
5. For the reasons stated by the judge, we find that the
Respondent violated Section 8(a)(5) by failing to provide
the Union with notice and an opportunity to bargain over
its decision to transfer bargaining unit work from Indian-
apolis, Indiana, to its Springfield, Ohio facility during
March to May 1994. Thus, we agree that the work trans-
fer was a mandatory subject of bargaining under Du-
buque Packing Co., 303 NLRB 386 (1991), enfd. 1 F.3d
24 (D.C. Cir. 1993), cert. granted 511 U.S. 1016 (1994),
writ dismissed 511 U.S. 1138. In this regard, we adopt
the judge’s findings and analysis that that the work trans-

5 Although Member Hurtgen agrees with his colleagues that the Re-
spondent unlawfully withdrew recognition from the Union, he does so
on the basis of the unremedied unfair labor practices which were caus-
ally connected to the employee disaffection. Lee Lumber, supra..
Member Hurtgen does not rely upon Krueger, supra. In Krueger, the
Board majority held that where a union loses a decertification election,
the employer must nonetheless continue bargaining with the Union
until the validity of the election is proclaimed (by the certification of
results). Consistent with the dissent in Krueger, Member Hurtgen
believes that in those circumstances the employer should be privileged
to withdraw recognition, assuming that the election results are ulti-
mately certified. In any event, because the decertification election in
this case—unlike Krueger—was not valid, Member Hurtgen finds that
the Krueger issue is not presented.
fer did not involve a fundamental change in the nature of
the Respondent’s operations, that labor costs were a fac-
tor in the decision, and that the Respondent failed to es-
tablish that the Union could not have offered sufficient
concessions to affect the transfer decision. With respect
to the issue of labor costs, we note that when analyzing
whether labor costs factor in an employer’s decision to
relocate unit work, the Board has interpreted labor costs
broadly to include indirect as well as direct costs. See
Stroehmann Bakeries, 318 NLRB 1069, 1078 (1995),
enfd. in part 95 F.3d 218 (2d Cir. 1996); Furniture Ren-
tors of America, 311 NLRB 749, 751 (1993), enfd. in
part 36 F.3d 1240 (3d Cir. 1994). See also Elliott Tur-
bomachinery Co., 320 NLRB 141, 156–157 (1995) (va-
cated pursuant to a settlement by unpublished Executive
Secretary Order dated Sept. 30, 1996).
AMENDED REMEDY6
1. Bonuses
The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) in August 1993 by
unlawfully denying bonuses, or granting reduced bo-
nuses, to employees Donald Hall, Arnie Ray Goens, and
Douglas Jones because of their union support and activi-
ties. We further agree with the judge that the Respon-
dent simultaneously, and unlawfully, granted excessive
bonuses to antiunion employees Robert Burnett, Clyde
Ervin, and Mark Mayfield in order to discourage em-
ployees’ union activities.7
To remedy these violations, the judge ordered the Re-
spondent to pay all unit employees who were eligible for
a bonus in August 1993 (including Goens, Jones, and
Hall), the difference between their actual bonuses, if any,
and the $850 bonus the Respondent unlawfully paid Bur-
nett. In fashioning this remedy, the judge relied on cases
where the Board found that employers unlawfully
granted bonuses to employees crossing union picketlines
and denied similar bonuses to striking employees. In
those cases, the Board required the employer to pay the
bonus. Aero-Motive Mfg., 195 NLRB 790 (1972), enfd.
475 F.2d 27 (6th Cir. 1973), cert. denied 414 U.S. 992;
Rubatex Corp., 235 NLRB 833 (1978), enfd. 601 F.2d
147 (4th Cir. 1979), cert. denied 444 U.S. 928 (1979).
Thus, in Aero-Motive, supra, the employer was ordered
to pay the same $100 bonus to strikers that it had paid to
crossover employees.
In the instant case, unlike Aero-Motive and Rubatex,
the amounts of employee bonuses are not uniform. They
are linked to individual performance appraisals and,
therefore, vary accordingly. In these circumstances, we
find that awarding all eligible employees the difference
between their actual bonuses and Burnett’s $850 may
6 Except as set forth below, we adopt the judge’s proposed remedy.
7 We further find that the Respondent’s grant of excessive bonuses
implemented its earlier unlawful promise to employees that company-
minded workers would receive preferential treatment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
constitute a windfall as to some employees. In order to
tailor the remedy more closely to the unlawful conduct,
we substitute the following for the judge’s remedy. First,
we leave to compliance the issue of the bonuses, if any,
Goens, Hall, and Jones would have received in August
1993, but for the Respondent’s discrimination against
them.8 Second, as to the unlawful grant of inflated bo-
nuses to Burnett, Ervin, and Mayfield, we order the Re-
spondent to pay all eligible unit employees (including
Goens, Hall, and Jones) $353. This amount, as tabulated
below, represents an average of the amounts that Ervin’s,
Mayfield’s, and Burnett’s August 1993 bonuses ex-
ceeded those which these three employees previously
received in the 1992–1993 evaluation periods.9

2. Gissel bargaining order
The judge found, and we agree, that the Respondent
engaged in unlawful and objectionable conduct during
the critical period between the filing of the decertifica-
tion petition and the election and that this conduct pre-
vented a fair election. Rather than impose the traditional
remedy of setting aside the election and ordering a sec-
ond election once the Respondent had remedied its unfair
labor practices, the judge recommended that the decerti-
fication petition be dismissed and that a Gissel bargain-
ing order be imposed. NLRB v. Gissel Packing Co., 395
U.S. 575, 582, 610–616 (1969).10 Thus, the judge con-
cluded that this was a “Category II” Gissel case because
the nature of the Respondent’s unlawful conduct was
such that the possibility of erasing its effects by tradi-
tional means was comparatively slight. See, e.g., Tex-
aco, Inc. v. NLRB, 436 F.2d 520 (7th Cir. 1971), cert.
denied 409 U.S. 1008 (1972). In recommending a bar-
gaining order, the judge relied particularly on the Re-
spondent’s persistent unlawful conduct towards Union
Stewards Arnie Ray Goens and Douglas Jones, its denial
of plant access to the Union and off-duty employees, its
unlawful promise of preferences to company supporters,

8 As the Board recognized in Nello Pistoresi & Son, Inc., 203 NLRB
905, 906 (1973), enf. denied on other grounds 500 F.2d 399 (9th Cir.
1974):
Although some difficulty may be encountered in computing the
employees’ losses, this is not a legitimate reason for denying
them compensation. We are not required at this stage of the
proceeding to decide the detailed formula to be used in deter-
mining the amounts of compensation due to the employees; the
formula to be used in fixing the amount of compensation can
be determined by agreement of the parties or, if necessary, in a
backpay proceeding. [Footnote omitted.]
9 The 1992-1993 bonuses were the only ones introduced into evi-
dence.
10 We agree with the judge that in certain decertification elections
involving substantial employer misconduct, a Gissel order, which es-
tablishes the Employer’s affirmative duty to bargain in good faith and
dismisses the decertification petition, may be a more fitting remedy
than an order which establishes the Employer’s affirmative duty to
bargain pending the results of the second decertification election. See,
e.g., Angelica Corp., 276 NLRB 617 fn. 2 (1985). However, based on
the presence of the consent decree in this case, we conclude, as ex-
plained below, that a Gissel bargaining order is not required in this
case.

Bonus 2–92 8–92 2–93 Total Average Difference from 8–93

Ervin

Mayfield

Burnett
(not
elig.)
$300

200
$300

300

200
$350

350

350
$650/2

950/3

750/3
$325

317

250
$550-325= $225

550-317= 233

850-250= 600
Formula: Total difference $1058/3= $353

and its statements that employees did not receive profit-
sharing or 401(k) benefits because of the costs of arbitra-
tion and the decertification campaign. The judge further
relied on the facts that the unlawful and objectionable
conduct occurred at all levels of the Respondent’s mana-
gerial hierarchy, and persisted after the decertification
election. Finally, the judge found that evidence of em-
ployee turnover between the election and the hearing did
not negate the propriety of a bargaining order.
Contrary to the judge, we do not find that a Gissel bar-
gaining order is appropriate. After the hearing in this
case, the Region petitioned the Federal District Court,
Southern District of Indiana, for 10(j) injunctive relief
against the Respondent.11 In April 1995, the district
court entered a consent decree in the 10(j) proceeding
redressing many of the alleged violations. Under the
decree, which remains in effect until issuance of this De-
cision and Order, the Respondent was ordered to cease
and desist from conduct including: threatening employ-
ees because they distributed union literature; surveilling
employees’ union activities; ordering employees to re-
move union insignia; promising benefits to company
supporters; interrogating employees; discriminating
against employees in order to discourage union activities;
unilaterally changing terms and conditions of employ-
ment; and withdrawing recognition from the Union.12

11 Civil No. 1P94-1872-C-G.
12 The consent decree required the Respondent to cease and desist
from:
EBY-BROWN CO. L.P. 499
The consent decree also affirmatively required the Re-
spondent to: recognize and bargain in good faith with the
Union as to the Indianapolis employees—including bar-
gaining over any decision to transfer unit work from In-
dianapolis, and the effects of that decision; provide the
Union access to its facility; and post the consent decree
until issuance of this Decision and Order.
Based on the broad terms of this consent decree, which
no party claims have been violated, we find that tradi-
tional remedies are sufficient to eliminate the effects of
the Respondent’s unfair labor practices. Accordingly,
once the Respondent has remedied its unfair labor prac-
tices the Regional Director shall direct a new election.13

(1) actually or impliedly threatening employees with disci-
pline, arrest, job loss or reduced benefits because of their union
activities and support, including because they distribute union lit-
erature and materials on the Respondent’s premises on non-work
time in non-work areas, or post union materials on public property
or attend union rallies;
(2) surveilling or implying that employee union activities are
under surveillance;
(3) ordering employees to remove union insignia from their
person inclusive of back belts and threatening them with disci-
pline if they fail to do so;
(4) disparately applying a rule prohibiting employees from
wearing or displaying on their person inclusive of back belts non-
Respondent insignia to prohibit the display of union insignia;
(5) informing employees that it rewards employees who op-
pose the Union and that employees who support the Union re-
ceive lower than normal bonuses and job evaluations;
(6) prohibiting employees from distributing union literature on
the Respondent’s premises during non-work time in non-work ar-
eas;
(7) interrogating employees regarding their union sympathies
and instructing employees to ascertain and report to the Respon-
dent the union sympathies of other employees;
(8) disciplining, granting reduced bonuses or job evaluations,
or in any other manner discriminating against employees with re-
gard to their terms and conditions of employment to encourage or
discourage employee union activities;
(9) withdrawing recognition from the Union as the exclusive
collective-bargaining representative of its unit employees at the
Respondent’s Indianapolis, Indiana facility;
(10) failing or refusing to meet and bargain in good faith with
the Union;
(11) unilaterally discontinuing or changing terms and condi-
tions of employment, including, but not limited to, relocating unit
work or the provision of the parties’ most recent collective-
bargaining agreement according the Union access to the Respon-
dent’s premises, without giving the Union notice and an opportu-
nity to bargain;
(12) in any other manner failing or refusing to recognize and
bargain in good-faith with the Union as the exclusive collective-
bargaining representative of its unit employees;
(13) in any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their Section 7 rights or refus-
ing to bargain in good faith with the Union[.]
13 We note that, consistent with Caterair International, 322 NLRB
64, 65 (1996), the Respondent is obligated to bargain with the Union
for a “reasonable period.” Further, pursuant to W. A. Krueger Co., 299
NLRB 914 (1990), the Respondent is precluded from withdrawing
recognition from the Union until such time as the Union loses an elec-
tion and those results have been certified. As stated, supra, in fn. 5,
Member Hurtgen would not apply Krueger.
3. “Broad” order
In addition to the remedying the specific violations, the
judge required the Respondent in the proposed Order and
notice to cease and desist “in any like or related manner
interfering with, restraining, or coercing employees in
the exercise of their rights under the Act.” The General
Counsel cross-excepts arguing that, because of the seri-
ous nature of the Respondent’s violations, a “broad” or-
der is warranted. Western Plant Services, 322 NLRB
183 fn. 1 (1996). We agree. Applying the principles of
Hickmott Foods, 242 NLRB 1357 (1979), we find that
the Respondent has engaged in such egregious and wide-
spread misconduct as to demonstrate a “general disregard
for the employees’ statutory rights.” Accordingly, we
will order the Respondent to cease and desist from “in
any other manner restraining employees in the exercise
of their Section 7 rights.”14
ORDER15
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Eby-
Brown Company L.P., Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(x).
“(x) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.”
2. Substitute the following for paragraph 2(a) and in-
sert 2(b) and reletter the succeeding paragraphs.
“(a) Pay each unit employee who was eligible for con-
sideration for a bonus in August 1993, $353 in addition
to the bonus (if any) he or she received, as set forth in the
amended remedy section of this Decision and Order.
“(b) Make whole Arnie Ray Goens, Douglas Jones,
and Donald Hall for any bonus they were entitled to but
did not receive in August 1993 because of the Respon-
dent’s unlawful conduct, as set forth in the amended
remedy.”
3. Substitute the following for the final (unlettered)
paragraph in the Order.
“IT IS FURTHER ORDERED that the July 8, 1993 election
is set aside and that Case 25–RD–1171 is remanded to
the Regional Director for Region 25 for the purpose of
conducting another election at such time as the Regional
Director finds that the circumstances will permit em-
ployee free choice.”
[Direction of Second Election omitted from publication.]

14 We note that this “broad” order language is consistent with that
imposed in the 10(j) proceeding.
15 We have also substituted the attached notice for that proposed by
the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
MEMBER HURTGEN, dissenting in part.
I do not agree that the decision to relocate a portion of
the business from Indianapolis to Springfield was a man-
datory subject of bargaining. Thus, I would dismiss the
8(a)(5) allegation pertaining to this decision.
In First National Maintenance Corp. v. NLRB (FNM),
452 U.S. 666, 679 (1981), the Supreme Court set forth
the following test for determining whether certain
management decisions are mandatory subjects:

[I]n view of an employer’s need for unencumbered de-
cisionmaking, bargaining over management decisions
that have a substantial impact on the continued avail-
ability of employment should be required only if the
benefit, for labor-management relations and the collec-
tive-bargaining process, outweighs the burden placed
on the conduct of the business.

In Dubuque Packing Co., 303 NLRB 306 (1991), enfd.
1 F.3d 24 (D.C. Cir. 1993), cert. granted 511 U.S. 1016
(1994), writ dismissed 511 U.S. 1138, the Board applied
FNM principles, and fashioned a test for determining
whether a particular relocation decision is a mandatory
subject. In relevant part, that case teaches that a reloca-
tion decision would not be a mandatory subject if “labor
costs” (direct or indirect) are not a factor in the decision.
The reference in that case to “indirect labor costs” is par-
ticularly elusive and not susceptible to a uniform applica-
tion.
In my view, “labor costs” includes the cost of wages,
hours, and working conditions.1 Thus, if the employer’s
decision is based on the high costs of these factors, the
potential benefits of bargaining would outweigh the bur-
dens on entrepreneurial freedom, and bargaining would
be required. However, if the relocation decision is based
on other economic considerations, the balance would tip
the other way. Thus, for example, if the employer’s de-
cision was based on cheaper rental costs at the new loca-
tion, bargaining would not be required.2
In the instant case, the Respondent’s decision was not
based upon the wages, hours, and working conditions at
Indianapolis. Rather, the Respondent could better ser-
vice its customers in West Virginia, Kentucky, and Ohio
from Springfield than it could from Indianapolis. In ad-
1 I agree with the Third Circuit in Furniture Rentors v. NLRB, 36
F.3d 1240 (1994), that merely because an issue may be designated a
“labor cost” in some broad sense, “is no reason to expand the term
beyond its ordinary meaning as used in Fibreboard and First National,
which contemplates subjects such as wages, fringe benefits, overtime
payments, size of workforce and production goals.” See also Arrow
Automotive Industries v. NLRB, 853 F.2d 223 (4th Cir. 1988).
2 I recognize that union concessions on wages (for example) could
be sufficient to counterbalance the rental advantage to be reaped.
However, it does not follow that the decision would be a mandatory
subject. If such reasoning were used, virtually all decisions would be
mandatory, for virtually all of them are driven by economics, and
wages theoretically could offset the economic benefit. Clearly, the
Supreme Court did not intend this result.
dition, it could minimize inventory expenses, and reduce
rent and utility expenses, reduce the expense of cigarette
tax stamps, save on the costs of overnight delivery and
lodging, eliminate the problems of partial loads, and pro-
vide next-day service to its customers.
In my view, although these factors are economic in a
broad sense, they are not labor costs. As stated above,
the balance tips in favor of bargaining only if the deci-
sion is driven by labor costs. As this is clearly not the
case here, I would find that the decision was not a man-
datory subject.
I also do not agree that the statements set forth in sec-
tion 1 of the majority opinion are unlawful. In my view,
the Respondent was simply telling its employees that: (1)
it had spent substantial sums of money in connection
with the decertification campaign and in regard to arbi-
tration proceedings; and (2) because of this, (a) there
were insufficient funds to have a profit-sharing plan or a
401(k) plan, and (b) there would be less money available
to meet union demands in collective bargaining. Of
course, the Respondent had a right to spend these mon-
eys in connection with decertification and arbitration. In
my view, the Respondent was simply pointing out the
economic consequences of same. It was not saying or
implying that benefits would be withheld in retaliation
for Section 7 activities.
Similarly I do not agree that the Respondent’s letter of
November 12, 1993, was unlawful. There is no evidence
that the Respondent had decided to grant a wage in-
crease. Thus, there can be no valid argument that a wage
increase was being taken away for unlawful reasons.
Further, the Respondent was not conditioning a future
wage increase on employee rejection of the Union or on
the withdrawal of charges. The Respondent was simply
saying that it would follow the prudent course of post-
poning “wage increase” decisions until all legal proceed-
ings were over.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

EBY-BROWN CO. L.P. 501
WE WILL NOT tell you that we have called the police,
are going to press charges, and intend to take other action
against employees because the stickers which they had
affixed to a public stop sign urged a vote in favor of
Chauffeurs, Teamsters, Warehousemen and Helpers Lo-
cal Union No. 135, a/w International Brotherhood of
Teamsters, AFL–CIO.
WE WILL NOT tell you that the reason you have no re-
tirement plan is that we spent so much money fighting
grievances.
WE WILL NOT promise you that we will give preferen-
tial treatment to employees who support us by opposing
Local 135.
WE WILL NOT tell you to choose between perceived con-
tinued discrimination based on union activity and quitting
your jobs.
WE WILL NOT tell you to choose between describing
Local 135 in favorable terms and remaining in our em-
ploy.
WE WILL NOT tell you that we spent so much money on
the decertification campaign that we do not have any-
thing with which to sit down at the bargaining table.
WE WILL NOT maintain or enforce a rule, with respect
to areas other than in company buildings or working ar-
eas, which prohibits off-duty employees’ presence on
company property for the purpose of engaging in activi-
ties protected by the Act.
WE WILL NOT tell you that you cannot pass out union
hats or buttons on company premises.
WE WILL NOT tell you that you are not allowed to dis-
tribute union literature: (1) anywhere on company prop-
erty at any time; (2) anywhere in company buildings; or
(3) on company property on company time.
WE WILL NOT tell you, when you are distributing union
handbills in nonworking outdoor areas on company
property, that you cannot pass out handbills on company
property.
WE WILL NOT ask you, when you are engaged in pro-
tected union activity, whether you want your names to be
submitted to the police.
WE WILL NOT call the police when you are engaged in
protected union handbilling.
WE WILL NOT forbid you to wear union insignia on
back belts owned by you.
WE WILL NOT forbid you to display union insignia on
company-owned back belts, while permitting you to dis-
play other messages on such belts.
WE WILL NOT solicit you to resign because of your pro-
tected union activity.
WE WILL NOT tell you that you are being denied disabil-
ity pay because of your union activity.
WE WILL NOT blame Local 135 for possibly preventing
or delaying past and future wage increases by filing
charges and election objections with the Board.
WE WILL NOT discipline you; require you to go home
without pay; withhold, lower, or increase bonuses; trans-
fer you to new routes; lower your evaluations; lay you
off; deny you disability pay; direct you to return to work
prematurely from medical leave; give you onerous work
assignments; transfer you between shifts; deny you a
longer workweek; or otherwise discriminate with respect
to hire, tenure of employment, or any term or condition
of employment, to discourage membership in Local 135
or any other union.
WE WILL NOT lower your evaluations; withhold bo-
nuses from you; discipline you; lay you off; deny you
disability pay; direct you to return to work prematurely
from medical leave; give you onerous work assignments;
transfer you between shifts; deny you a longer work-
week; discharge or otherwise discriminate against you
because you have filed charges or given testimony under
the Act.
WE WILL NOT fail or refuse to bargain with Local 135
as the exclusive bargaining representative of the follow-
ing unit:

All delivery men, warehousemen, janitor(s) and main-
tenance employees employed by us at our Indianapolis,
Indiana facility; but excluding salesmen, vending ma-
chine department employees, office clerical employees,
and all guards, professional employees and supervisors
as defined by the Act.

WE WILL NOT, without giving Local 135 prior notice
and an opportunity to bargain, unilaterally withdraw Lo-
cal 135 representatives’ access to our Indianapolis, Indi-
ana facility, or change the conditions under which access
can be obtained.
WE WILL NOT unilaterally transfer work out of the
above unit, without giving Local 135 notice and an op-
portunity to bargain about the decision to transfer and its
effects on employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
Except for those employees whom we paid unlawfully
inflated bonuses, WE WILL pay each unit employee who
was eligible for consideration for a bonus in August 1993
$353, with interest.
WE WILL additionally pay Arnie Ray Goens, Donald
Hall, and Douglas Jones any additional bonus (if any)
they would have received in August 1993.
WE WILL make employees James Edmond, Sr., Arnie
Ray Goens, and Douglas Jones whole, with interest, for
any other loss of pay they may have suffered by reason
of the action against them.
As to all employees who transferred at any time from
our Indianapolis, Indiana facility to our Springfield, Ohio
facility in anticipation of, or in consequence of, the trans-
fer of work from the Indianapolis facility to the Spring-
field facility in March, April, and May 1994:
WE WILL, within 14 days from the date of the Board’s
Order, offer each such employee reinstatement, with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
moving expenses from the Springfield to the Indianapolis
area, to the job which he held before his transfer or, if
such a job no longer exists, to a substantially equivalent
position, without prejudice to their seniority or other
rights or privileges previously enjoyed.
WE WILL make each such employee whole, with inter-
est, for any loss of pay he may have suffered by reason
of the transfer to our Springfield facility, including mov-
ing expenses from the Indianapolis to the Springfield
area.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our personnel records of Arnie Ray
Goens, Donald Hall, Randy Jewell, Douglas Jones, and
Danny Rakes the documents which reflect the action
against them, and WE WILL, within 3 days thereafter, no-
tify these employees in writing that this has been done
and that the material set forth in these documents will not
be held against them in any way.
Except as to company buildings and in working areas
WE WILL rescind our rule which prohibits off-duty em-
ployees’ presence on company property for the purpose
of engaging in activities protected by the Act.
WE WILL, on request by Local 135, recognize and bar-
gain collectively with Local 135 as the exclusive repre-
sentative of the employees in the unit, with respect to
wages, rates of pay, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody it in a signed agreement.
WE WILL, on Local 135’s request, afford its representa-
tives the same access to our Indianapolis facility which
they were afforded as of March 1993.
WE WILL, on Local 135’s request, transfer back to our
Indianapolis facility the bargaining unit work which we
transferred to our Springfield, Ohio facility from March
to May 1994.
Because of conduct between the filing of the decertifi-
cation petition and the decertification election held on
July 8, 1993, the results of that election have been set
aside. After we have complied with the Board’s Order
and, after a reasonable time for bargaining has passed,
the Regional Director shall direct a second election, at
such time as the Director deems appropriate.

EBY-BROWN COMPANY L.P.

Richard J. Simon, Esq. and Joanne C. Mages, Esq., for the
General Counsel.
Gerald A. Golden, Esq. and Eugene A. Boyle, Esq., of Chicago,
Illinois, for the Respondent.
Steven J. Chestnut, Esq., of Indianapolis, Indiana, for the Un-
ion.
Robert W. Burnett, of Indianapolis, Indiana, pro se.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me on 28 days between
July 25 and October 28, 1994. Case 25–RD–1171 was initiated
by a decertification petition filed on May 28, 1993, by em-
ployee Robert W. Burnett with respect to Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No. 135, a/w
International Brotherhood of Teamsters, AFL–CIO (the Union);
an election pursuant to this petition and to a Stipulated Election
Agreement was conducted on July 8, 1993, and was lost by the
Union, which thereafter filed timely objections thereto. The
charge in Case 25–CA–22530–1 was filed on May 14, 1993,
and amended on June 28, 1993; the charge in Case 25–CA–
22640 was filed on July 26, 1993; and a consolidated complaint
based on these charges was issued on September 21, 1993. The
charge in Case 25–CA–22782 was filed on October 1, 1993,
and amended on October 19, 1993; the charges in Cases 25–
CA–22862–1 and 25–CA–22862–2 were filed on November 9,
1993; the charge in Case 25–CA–22885 was filed on November
16, 1993, and amended on February 16, 1994; and a consoli-
dated complaint based upon all six of these charges (Cases 25–
CA–22530–1, 25–CA–22640, 25–CA–22782, 25–CA–22862–
1, 25–CA–22862–2, and 25–CA–22885) was issued on March
1, 1994. The charge in Case 25–CA–22983 was filed on Janu-
ary 26, 1994; and a consolidated complaint based upon all
seven of these charges (Cases 25–CA–22530–1, 25–CA–
22640, 25–CA–22782, 25–CA–22862–1, 25–CA–22862–2,
25–CA–22885, and 25–CA–22983) was issued on March 23,
1994. Most of the unwithdrawn objections to the decertifica-
tion election having tracked unfair labor practice allegations in
the March 23, 1994 complaint, on March 24, 1994, the unfair
labor practice cases were consolidated with the decertification
case. The charge in Case 25–CA–23120 was filed on March
31, 1994, and amended on April 15, 1994. A consolidated
complaint based upon all eight of these charges, with which
proceeding the decertification-election objections case was also
consolidated, was issued on June 3, 1994. This last complaint
was amended on August 25, 1994. The Union is the Charging
Party in all the unfair labor practice charges except Cases 25–
CA–22885 and 25–CA–22983, where the Charging Party is
employee Douglas A. Jones.
The complaint in its final form alleges various independent
violations of Section 8(a)(1) of the National Labor Relations
Act (the Act) before and after the decertification election. In
addition, the complaint in its final form alleges that before the
election, Section 8(a)(3) and (1) of the Act was violated with
respect to employees James Edmond Sr., Douglas A. Jones,
Danny Rakes, and Randy Jewell. In addition, the complaint
alleges that after the election, Section 8(a)(3) and (1) was vio-
lated with respect to employees Don Hall, Arnie Ray Goens,
Robert Burnett, Mark Mayfield, Clyde Ervin, and Teresa
Deutscher; and Section 8(a)(3), (4), and (1) was violated with
respect to Douglas Jones. Further, the complaint in its final
form alleges that the transfer of work between facilities since
about March 1994 violated Section 8(a)(3) and (1). Finally, the
complaint in its final form alleges that Section 8(a)(5) and (1)
was violated by the withdrawal of recognition from the Union
in August 1993, by the subsequent refusal to recognize it, by
direct dealing with unit employees about December 11, 1993,
and by taking certain unilateral action (including the previously
mentioned transfer of work) without giving the Union prior
notice and an opportunity to bargain. The complaint in its final
form claims that the alleged unfair labor practices (most of
which allegedly occurred after the filing of the decertification
petition) were so serious and substantial in character that the
EBY-BROWN CO. L.P. 503
possibility of erasing their effects and of conducting a fair elec-
tion by the use of traditional remedies is slight, and the em-
ployees’ sentiments regarding representation, having been ex-
pressed through the years through successive collective-
bargaining agreements, would, on balance, be protected better
by issuance of a bargaining order than by traditional remedies
alone.
On the basis of the record as a whole, including the de-
meanor of the witnesses who testified before me, and after due
consideration of the posthearing briefs filed by counsel for the
General Counsel (the General Counsel), Eby-Brown Company
L.P., and Robert Burnett (the Petitioner in Case 25–RD–1171),
I make the following
FINDINGS OF FACT
I. JURISDICTION; THE IDENTITY OF THE EMPLOYER
This case centers on a warehouse facility located in Indian-
apolis, Indiana. Between about 1989 and December 20, 1993,
this facility was owned by a corporation called Indiana Eby-
Brown Co., which was the employer of the employees who
worked at that facility. All of the formal papers filed before the
outset of the hearing named that corporation in the caption and
as the Respondent. On December 20, 1993, the then assets of
Indiana Eby-Brown Company were purchased by a limited
partnership called Eby-Brown Company L.P., which consists of
Indiana Eby-Brown Company, Aurora Eby-Brown Company
(which is also a general partner), and Elgin Eby-Brown Com-
pany. The parties stipulated that the limited partnership contin-
ued operating the business in basically unchanged form at the
same location with the employees who were employed at that
location as of December 20, 1993. Further, the parties stipu-
lated that the limited partnership would be obligated under the
collective-bargaining agreement executed by the Union and
Indiana Eby-Brown Company in 1990, which contract expired
by its terms in August 1993, and that the limited partnership
was answerable for the unfair labor practices which may have
been committed by the Indiana Eby-Brown Company. Thereaf-
ter, the General Counsel’s motion to substitute the name of the
limited partnership (Eby-Brown Company L.P.) for the name of
the corporation (Indiana Eby-Brown Company) in the caption
and pleadings was granted without objection. The employer of
the employees at the Indianapolis facility is hereafter referred to
as the Company.
The Company is engaged in the wholesale sale and distribu-
tion of tobacco and sundry goods to convenience stores. Dur-
ing the 12-month periods which preceded the issuance of each
of the complaints, the Company purchased and received at its
Indianapolis, Indiana facility goods valued in excess of $50,000
directly from points outside Indiana. I find that, as the Com-
pany admits, the Company is engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction over its
operations will effectuate the policies of the Act.
II. THE UNION’S STATUS
The Union is a labor organization within the meaning of the
Act.
III. THE ALLEGED PREELECTION UNFAIR LABOR PRACTICES
A. Background
As previously noted, the Company took over the operations
of the Indianapolis warehouse facility in 1989. During an un-
disclosed prior period which included 1957, the facility was
operated by the Hamilton-Harris Company. In 1957, the Board
certified the Union as the representative of an admittedly ap-
propriate unit which is described infra, in Conclusion of Law 6,
and which consists basically of warehousemen and drivers at
the Indianapolis facility. On an undisclosed subsequent date
prior to 1989, the operation of the facility was taken over by a
corporation called Smith-Harris, which in 1989 sold its assets
(including the Indianapolis warehouse) to the Company. The
parties stipulated that Hamilton-Harris was a predecessor of
Smith-Harris, and that Smith-Harris was a predecessor of the
Company.
The last collective-bargaining agreement between Smith-
Harris and the Union with respect to the Indianapolis facility
included a clause which at least purported to bind any successor
to Smith-Harris. Upon acquiring the facility in 1989, Respon-
dent agreed to be bound by that bargaining agreement. On
January 3, 1991, the Company and the Union executed a collec-
tive-bargaining agreement which was effective on August 26,
1990, and expired by its terms on August 25, 1993.
B. Alleged Interrogation (Complaint Paragraph 5(q), Added
August 25, 1994)
Former company employee Larry Thomas Benefiel Jr.
(whose name is variously spelled in the record) testified to the
following effect: About mid-June 1993, he went to the office
of Patricia Reynolds, who is the branch manager of the Com-
pany’s Indianapolis warehouse and is admittedly a supervisor
and agent of the Company, to talk with her about taking a few
hours off to spend with his family, because he had been work-
ing 15 or 16 hours a day. She asked him which way he was
going to vote in the forthcoming representation election. He
told her that he was afraid of being fired if he voted yes, but
was afraid of antagonizing his fellow workers if he voted no.
She asked him how the others around him felt; he replied that
he was not really sure. She asked him whether he could get
“input’’ from his fellow workers and report it to employee
Robert Burnett (the decertification petitioner) or his brother,
employee Tim Burnett; Benefiel replied that he would. There-
after, he checked with about four other unit employees about
how they planned to vote, and reported the results to Tim Bur-
nett.
The Company’s payroll records show that Benefiel very sel-
dom worked as many as 15 hours a day, and that the last dates
prior to mid-June 1993 when he worked that many hours were
May 24 and 25. Moreover, Benefiel’s demeanor did not im-
press me favorably. Accordingly, I accept Patricia Reynolds’
denial that this conversation occurred. Therefore, I shall dis-
miss that portion of the complaint which alleges that by such
alleged conduct by Reynolds, the Company violated Section
8(a)(1) of the Act.
C. Alleged Unfair Labor Practices in Connection with Union
Stickers on Public Stop Signs (Complaint Paragraph 5(c))
1. Facts
The Company’s Indianapolis warehouse is located in an in-
dustrial park, near the Indianapolis airport, which is called Park
Fletcher. In August 1994, employee Ronald Watt, who had
lived in the area since 1969 (except for 1984–1988), credibly
testified as follows: At least on a monthly basis, he had seen
yard-sale notices, garage-sale notices, “Mr. Yuck’’ signs, and
bumper stickers attached to public signs in the area, including
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
stop signs. Some of these private signs included addresses. At
least ordinarily, these private notices were attached to the pub-
lic signs in such a way as not to obscure the message on the
public signs. Among the stop signs to which such private mes-
sages were attached, in a manner which did not obscure the
printing on the sign, was a public stop sign (an equilateral octa-
gon with a maximum breadth of 2 feet) which is a block from
and controls virtually all vehicular traffic leaving the Com-
pany’s warehouse. This sign is the stop sign nearest the Com-
pany’s warehouse, and is referred to herein as the nearest stop
sign.
Day Warehouse Manager Michael Kramer, who is admit-
tedly a supervisor and an agent of the Company and has been
working at the Indianapolis warehouse since April 1992, and
Patricia Reynolds, who has been the Indianapolis branch man-
ager since 1987, both denied ever seeing any such private no-
tices in the area. For demeanor reasons, I do not credit such
testimony.
Reynolds and Kramer credibly testified that throughout June
1993, at least, they observed orange and black stickers, 2- or 3-
inches high and 5- to 7-inches long, which urged a vote for the
Union and had been affixed to the curb in front of the Com-
pany’s warehouse, on the bumpers of company trucks, on the
company fence, on beams and dumpsters in the Company’s
warehouse, and on several stop signs in the Park Fletcher area.
The credible testimony of employee Arnie Ray Goens shows
that the union stickers were also placed on telephone poles, “no
parking’’ signs, and fire hydrants.
The employees who posted the union stickers included Arnie
Ray Goens (whose surname is variously spelled in the record)
and Watt. About June 23, 1993, employee Watt affixed one
union sticker to the nearest stop sign, on the same side as the
printing on the sign but in a location where such printing was
not obscured. This was the only union sticker which Watt af-
fixed to a stop sign. On a date not shown by the record, this
sticker was torn down by an unidentified person connected to
the Company.
About June 24, 1993, the Company’s accounts-receivable
manager, DeeDee (also spelled “De De’’ in the record) Knapp,
told Patricia Reynolds that Knapp had seen Watt and Arnie Ray
Goens putting “stickers’’ on the nearest stop sign, and that
Knapp was “quite upset.’’1 Reynolds said that she would check
with Park Fletcher’s management. When she spoke to a repre-
sentative of Park Fletcher’s management, he told her that Park
Fletcher had no control over the matter, and suggested that she
get in touch with the Marion County sheriff’s department. At
this point, Reynolds advised Kramer that Knapp had seen Watt
and Goens put union stickers on the nearest stop sign, and told
him to report to the Marion County sheriff’s department that
“some’’ of the Company’s employees had been putting things
on stop signs. According to Reynolds’ testimony, she told
Kramer to ask the sheriff’s department “what should be done or
what could be done.’’ Kramer thereupon telephoned the sher-
iff’s department that a manager at the Company had witnessed
two of the Company’s employees placing stickers on the stop
sign. Kramer was told that someone would be sent out to take a
report.

1 This finding is based upon Patricia Reynolds’ testimony, received
without objection or limitation. This is the only evidence that Goens
affixed anything to the nearest stop sign. Knapp did not testify. Goens
testified for the General Counsel, but was not asked whether he had
affixed a sticker or stickers to this particular stop sign. Cf. infra, fn. 41.
Kramer has a practice of conducting a meeting about every
week, among the day warehouse crew, to discuss job-related
problems. During the meeting (about June 24) which he con-
ducted after telephoning the police, he said that someone had
been seen placing union stickers on stop signs in the Park
Fletcher area; that the Company had called the police and was
going to press charges; that the employees should not be doing
this, and that if anyone was caught doing it, other actions would
be taken. Employee Watt raised his hand and said that he was
the one who placed “the stickers’’ on the stop sign in question.
Kramer thanked Watt for his cooperation, and said that now the
Company knew whom to send the police to. Watt remarked
that because Kramer knew where Watt lived, Kramer knew
where to send the police.2
Later that day, someone from the sheriff’s department came
out to the warehouse. Kramer told her that he was the one who
had telephoned the police, and that Knapp had witnessed two
people placing stickers on the stop sign. The sheriff’s represen-
tative asked to speak to Knapp and take a statement from her.
After talking with Knapp, the sheriff’s representative left the
warehouse without any further conversation with Kramer.
Kramer testified that as far as he knew, the sheriff’s department
took no further action about the matter; and there is no evidence
otherwise.
That evening, employee Teresa Goens, who had attended
Kramer’s meeting, told her husband, employee Arnie Ray Go-
ens, that Kramer had said the police had been called and were
going to arrest “the vandals that’s been . . . sticking stickers on
signs.’’3
Neither Watt nor Arnie Ray Goens was ever disciplined by
the Company in connection with their sticker activity.
2. Analysis and conclusions
The foregoing evidence was received in connection with
paragraph 5(c) of the complaint, which alleges that the Com-
pany violated Section 8(a)(1) when Kramer “told [the Com-
pany’s] employees that it had filed criminal charges against two
employees [whom] it had observed placing Union insignia on a
stop sign located on public property.’’ In attempted support of
the General Counsel’s contention that the evidence supports an
unfair labor practice finding on the basis of this allegation, the
General Counsel’s posthearing brief cites (without a spot cita-
tion) the 18-page Decision in Roadway Package System, 302
NLRB 961 (1991), presumably referring to pages 961 fn. 1,
963–965, and 973–974; the Board there based an 8(a)(1) find-
ing upon the employer’s threat to call the police because of its
2 My findings as to what was said at this meeting are based on a
composite of credible portions of the testimony of Watt, Arnie Ray
Goens, employee Teresa Goens (whose given and surnames are vari-
ously spelled in the record), Kramer, and employee Bill Albright. For
demeanor reasons, I do not credit Kramer’s denial that he told Watt that
the Company now knew where to send the police. Also for demeanor
reasons, I do not credit Albright’s uncorroborated testimony that
Kramer said he did not want to know who had put up the stickers, or
Albright’s testimony that in response to Watt’s admission of responsi-
bility, Kramer said he was not interested in who did it, but only that it
was not done again, because it was considered destruction of public
property.
3 This finding is based on Arnie Ray Goens’ testimony, which was
offered, and received without objection, for the purpose of (1) showing
dissemination of Kramer’s remarks and (2) corroborating the testimony
of Teresa Goens, who was present during Kramer’s remarks, about
what was said. See Tome v. United States, 513 U.S. 150 (1995).
EBY-BROWN CO. L.P. 505
employees’ “protected union activities’’ of handbilling on the
employer’s property. The flaw in the General Counsel’s reli-
ance on Roadway Package is that employee action in affixing
union stickers to public stop signs (unlike employee distribu-
tion of union handbills on company property) is not an activity
protected by Section 7 of the Act.
Nonetheless, I agree with the General Counsel that the Com-
pany’s statement (through Kramer) violated Section 8(a)(1) of
the Act. I so find because this statement could reasonably be
interpreted by the employees as an assertion that the Company
had called in the police, was going to press charges, and in-
tended to take “other actions’’ against the sticker-affixing em-
ployees, not because the stickers had been affixed to a public
stop sign, but because the stickers contained the Section 7 pro-
tected message of urging a vote in favor of the Union. Thus,
for some days the Company had been urging the employees to
vote against the Union (see infra). Further, Kramer’s remarks
to the employees made no reference at all to the Company’s
explanation at the hearing as to why the Company was con-
cerned about the employees’ sticker activity—namely, that the
affixing of the stickers to the stop sign presented safety con-
cerns. Any employee inference that safety was nonetheless the
Company’s real concern was belied by the Company’s failure
to take substantial action to bring about the removal of the
stickers. Although such antiunion motives would not have
affected the Company’s right to draw to the attention of the
police the placing of union stickers on public stop signs, the
Company did violate the Act by representing to the employees
that such company action was motivated by the message on the
signs, and that such a message would lead to “other actions’’ if
the Company ascertained the identity of the perpetrators. See
Roadway Package, supra, 302 NLRB at 961 fn. 1, 963–965,
973–974; Carborundum Co., 286 NLRB 1321, 1323 fn. 8
(1989); and Prime Time Shuttle International, 314 NLRB 838,
842–843 (1994).
Although the test of interference, restraint, and coercion does
not ordinarily turn on the employer’s motive, it might be ap-
propriate to note my disbelief of Patricia Reynolds’ testimony
that her mid-June action in telling Kramer to call the police was
motivated by a belief that “anything that obstructs or obscures
any part of any traffic sign is a potential safety hazard.’’ By
Reynolds’ own admission, for a period of 10 days before issu-
ing these instructions, she had been seeing union stickers on
more than 10 stop signs in the area. However, by her own ad-
mission, she took no action whatever in connection with any
stop signs at all until Knapp reported to her the identity of two
company employees who had placed union stickers on a par-
ticular stop sign. Further, although there is no evidence that
Knapp told Reynolds that the printed instruction on the stop
sign was obscured by union stickers, there is no evidence or
claim that before telling Kramer to tell the police that employ-
ees had been seen to affix union stickers, Reynolds made any
attempt to ascertain whether the complained of union sticker or
stickers obscured the nearest stop sign. Further, by Reynolds’
own admission, she never made any attempt to remove, or
cause anyone else to remove, the stickers from any of the stop
signs, although the prompt removal of such stickers would have
contributed far more to safety than awaiting possible identifica-
tion of whoever had affixed some of them. Similarly, Kramer
testified that so far as he knew, no company representatives
removed the stickers from the stop sign. The Company’s inac-
tion in this respect, Kramer’s testimony that he did not recall
whether the stickers remained on the nearest stop sign for a
long period of time after his meeting about the matter, and his
further testimony that he did not know whether he would have
taken the same action if a garage sale notice rather than a union
sticker had been affixed to the stop sign, are likewise almost
impossible to reconcile with Kramer’s testimony (on which the
Company’s posthearing brief does not rely) that he brought the
matter up at the meeting because the stickers were defacing
public property.
D. Alleged Unlawful Statements by Copresident Thomas Wake
(Complaint Paragraphs 5(d), (l))
1. Facts
The Company has two officials with the title of co-
president—Thomas Wake and Dick Wake. Prior to the elec-
tion, Thomas Wake, who is admittedly a supervisor and an
agent of the Company, came to the Indianapolis facility on June
17 and 30 and July 6, 1993, during each of which days he at-
tended management-arranged meetings with employees who
were there urged to vote against the Union.
On June 17, Wake conducted a meeting which was attended
by mostly day warehouse employees and by some drivers.
Wake told the employees that a petition had been filed to vote
out the Union, that it was going to be a very important vote, and
that it would have great impact on the lives of all the employ-
ees. He said that he wanted everyone to trust him and give him
a chance, and that if the employees did not like the way things
were going for a year, the employees could always vote the
Union back in. Then, he asked whether any of the employees
had any questions or had anything to add. Employee Teresa
Goens, who is union steward Arnie Ray Goens’ wife and was
wearing a union hat and a union button, said that she felt the
main problem at the Company was “favoritism.’’ Wake said
that he was all for “favoritism,’’ and that anyone that was
“company minded’’ would get better treatment than anyone
who was not. Teresa Goens asked whether he would not agree
that the employees’ attitudes were a direct response to how the
employees were treated by their managers. Wake said that that
would be like the employees’ blaming their parents for how the
employees were raised. Goens asked Wake to pull her person-
nel file and look at her reviews by her supervisor; and said that
Personnel Director Stephen Reynolds had complimented her on
her attitude, but that the previous December she had been de-
moted to a lower paying job on the stated ground that she was
not a team player.4 Wake said that he was very aware of what
was going on at the Indianapolis branch, and that if she was so
unhappy and dissatisfied in her job, she could find another job;
that attitude was 51 percent of the job; that he would rather
have a worker that did an okay job with a good attitude than a
worker that did a good job with a bad attitude; that he was all
for favoritism; and that if the employees did not like it there,
they could go find a job elsewhere. One of the warehouse em-
ployees asked about profit sharing. Wake said that “if the peo-
ple hadn’t got up there and fabricated their stories in arbitration,
then he wouldn’t have had to spend that much money on griev-
ances and arbitrations and things like that.’’5

4 The complaint does not allege that this action with respect to Go-
ens was unlawful.
5 My findings in this paragraph are based on a composite of credible
parts of the testimony of Teresa Goens, employee Carla Wiggam, and
Patricia Reynolds. For demeanor reasons, I do not credit the testimony
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506
Goens continued to work for the Company until August
1994, when she obtained a job with another firm.
Later that same day (see infra, fn. 8), Wake conducted an-
other meeting attended mostly by night-shift employees. Wake
said, among other things, that the way things were being done
in the warehouse was not the democratic way, because the un-
ion leaders were chosen for the employees.6 Employee Wilke
said that she believed he was mistaken, and that the employees
had voted on the stewards. Wake said that if she checked her
facts, she would find out that they were appointed for the em-
ployees. She again disagreed with him.7 At this point, Wake
said that Wilke had been running her mouth since the Christ-
mas party, and she should shut up or get out of the Company, a
remark which put Wilke “in shock.’’ Wilke then turned to
Jones and said, “I thought this was a question and answer fo-
rum,’’ to which Jones replied, “Well, it sounds like he an-
swered your question.’’ Then, driver Michael Mitchell asked
why the Company did not have a profit-sharing or retirement
plan. Wake said that because the Company had spent so much
money on arbitrations, the Company could not give the em-
ployees any 10(k) plans or retirement plans (see infra, fn. 9).
He further said that as to those that did right by the Company
and wanted to be company people, he intended to play ball with
them and have them as his favorites.8

of Wake and Patricia Reynolds, credibly denied by Teresa Goens, that
he said he believed in “favoritism’’ for employees with a good work
ethic and a positive attitude, Goens said she had a bad attitude even
after talking to a number of managers, Wake thereupon suggested that
she look for a job elsewhere, and she said that it was not easy to find a
job with the pay and benefits she was receiving from the Company.
Also for demeanor reasons, I do not credit Patricia Reynolds’ testimony
that in reply to the question about profit sharing, Wake said that the
Company gave the benefits which had been included in the contract
negotiated between the Company and the Union.
6 This finding is based on the testimony of employee Douglas Jones.
He impressed me as having a better memory than employee Beverly
Wilke, who testified that Wake said the employees could not get rid of
their stewards.
7 In filling vacant stewards’ positions, Union Business Representa-
tive Brian Buhle (whose given name is variously spelled in the record)
intended to follow the practice of asking employees who were willing
to be stewards to sign a document, and then conducting an election
among the employees to determine who would be the steward. As to
each of the two steward vacancies which arose between Buhle’s begin-
ning to service the Indianapolis warehouse in May 1992 and late July
1994, only one employee signed the document, and Buhle appointed
that employee as steward without conducting an election.
8 My findings as to this June 17 meeting are based on a composite of
credible parts of the testimony of Wilke, Jones, and (to a very limited
extent) Patricia Reynolds, and employee James A. Edmond Sr. (also
spelled “Edmund’’ in the record). For demeanor reasons, I do not credit
Wake’s or Patricia Reynolds’ testimony that Wake did not exchange
remarks with Wilke, nor tell her that she had been running her mouth
since Christmas and she should shut up or get out of the Company.
Also for demeanor reasons, I do not accept Reynolds’ denial that Wake
and Wilke exchanged remarks on the subject of removing stewards.
My finding that the meeting described by Wilke and Edmond took
place on June 17, rather than on June 23 as she testified (“I think’’) or
after the June 30 rally, as he testified, is based (1) on Reynolds’ credi-
ble testimony that Wake’s speeches were given on June 17 and 30 and
July 6; (2) on Wilke’s failure to link the date of this speech to the June
30 rally, in which she actively participated; and (3) on her failure to
testify that the speech occurred just a few days before the July 8 elec-
tion.
At another such meeting, on June 30, employees from other
company warehouses, whom (inferentially) the Company had
brought to the meeting for this purpose, made favorable com-
ments about their jobs and and benefits to the assembled Indi-
anapolis employees. Then, Wake asked if anyone had any
questions. No hands were raised. Wake said, “I know you
people with the funny little green hats have got to have ques-
tions.’’ Employee Donald Hall, a driver who was wearing a
green union hat and a union button, said that the employees
from other warehouses had just been saying that they had a
retirement program, which the Indianapolis employees did not
have after 3 years of company ownership; that the drivers’
trucks were not equipped with radios, which could alert them to
bad weather conditions; and that the Company had turned down
a “deal’’ where trucks could be equipped with CB radios at a
cheap price. Hall went on to say that “Those things, there,
showed to me personally how you care about the employees.’’
Hall further said that his prounion sympathies did not mean that
he was a bad worker, that he felt he did his job well, and that he
was afraid he would be treated differently because of his union
sympathies. Wake replied that Hall was on the wrong side, that
he needed to come over to the right side, and that he needed to
take off his funny green hat and get on the winning team.
Wake said that the employees had no retirement program be-
cause of the money the Company had to spend to fight the
grievances being filed.9 A female employee brought up the
question of favoritism.10 Hall remarked that the Company was
promoting to the foreman classification employees who were
relatively unfamiliar with the job at the warehouse, and asked
about favoritism, to which Wake replied, “Damn right I’m go-
ing to show favoritism to people who are behind the Company
and who want to make the Company work.’’11
2. Analysis and conclusions
I agree with the General Counsel that the Company violated
Section 8(a)(1) when Copresident Wake told the employees
that the reason they had no retirement plan was that the Com-
pany had spent so much money in fighting grievances. Adco
Electric, 307 NLRB 1113, 1119 (1992), enfd. 6 F.3d 1110 (5th
Cir. 1993).12 Further, I agree with the General Counsel that the
9 This finding is based on Hall’s testimony. For demeanor reasons, I
do not credit Wake’s or Patricia Reynolds’ denials. During the 1990
bargaining negotiations, the Union had not requested a retirement plan.
The Company maintained at least two benefits which were not set forth
in the bargaining agreement—a bonus plan and a disability payment
plan.
10 Hall testified to being thereafter told by other employees that this
female employee was Wilke. She testified for the General Counsel, but
was not asked about this matter, as to which there is no other evidence.
11 My findings as to this June 30 meeting are based on a composite
of credible parts of the testimony of Hall and Carla Wiggam. Wig-
gam’s direct testimony attached Hall’s remarks to the day—warehouse
June 17 meeting described supra. However, on cross-examination she
testified that she had also attended a later meeting at which employees
from another company facility were also present; and Hall credibly
testified that the June 30 meeting was the only meeting with Wake
which Hall attended; I infer that Wiggam’s recollection merged the
June 17 and 30 meetings. Further, I believe that Patricia Reynolds and
Wake were mistaken in testifying that Hall attended and made remarks
at the June 17 meeting; and, for demeanor reasons, I do not accept their
testimony about the contents of the Wake-Hall exchange.
12 Cf. Dow Chemical Co. v. NLRB, 660 F.2d 637, 646–647 (5th Cir.
1981), relied on by the Company. In Dow Chemical, the employer
merely stated that the amounts paid by the employee for processing
EBY-BROWN CO. L.P. 507
Company violated Section 8(a)(1) when Wake told the employ-
ees that the Company would give preferential treatment to the
people who were company minded, did right by the Company,
were behind the Company, and wanted to make the Company
work; in the context of employee meetings called by the Com-
pany and during which employees were urged by the Company
to vote against the Union, Wake was plainly promising prefer-
ential treatment to the employees who supported the Company
by opposing the Union. In addition, I agree with the General
Counsel that the Company violated Section 8(a)(1) of the Act
when, immediately after there using the term “favoritism’’
(“company minded’’) and thereupon receiving a complaint
from employee Teresa Goens (who was wearing a union hat)
that she was a “favoritism’’ victim, Wake told her that he was
all for “favoritism,’’ and that unhappy employees could find
another job; in context, Wake was telling the employees to
choose between perceived continued discrimination and quit-
ting their jobs with the Company. Rather similarly, I agree that
the Company violated Section 8(a)(1) when, after Wilke re-
peatedly stated during the second June 17 meeting that Wake
was factually mistaken in stating that the employees had no
voice in the selection of union stewards, Wake told her to stop
running her mouth and shut up, or else to get out of the Com-
pany. Wake was thereby directing employee Wilke to choose
between continuing to exercise her statutorily protected right to
describe the Union in favorable terms, and leaving the Com-
pany’s employ.13
E. Alleged Unlawful Statement about Forthcoming Contract
Negotiations (Complaint Paragraph 5(e); see Objection 2)
Teresa Goens testified to the following effect: During a
regular weekly meeting of the 20 to 25 day warehouse employ-
ees in late June 1993, Day Warehouse Manager Kramer told the
employees that some signs and banners would be going up, and
that he did not know what the employees expected from the
Company, because the Company had spent so much money on
the decertification that the Company did not have anything to
sit down at the bargaining table with. When Goens asked fel-
low employee Mark Jones whether he had heard what Kramer
had just said, Jones remarked, using an obscene verb, that it
looked as if the employees were going to get cheated again.
Kramer testified that he did not recall making the remark
which Goens testimonially attributed to him about the decertifi-
cation campaign. Day warehouse employee Bill Albright, who
attended the weekly meetings of the day warehouse employees,
denied that Kramer made this remark, and also testified that he
had no recollection of Mark Jones’ making the remark attrib-
uted to him by Goens. Mark Jones (not to be confused with
Douglas Jones) did not testify. For demeanor reasons, I credit

grievances were not available for employee benefits; the employer did
not (as did Wake) state that if such amounts had not been so spent, they
would have been spent for employee benefits.
13 See NLRB v. Almet, Inc., 987 F.2d 445, 451–452 (7th Cir. 1993);
Gaucho Food Products, 311 NLRB 1270, 1272 (1993); Stoody Co.,
312 NLRB 1175, 1181–1182 (1993); Tualatin Electric, 312 NLRB 129,
133–134 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996); HarperCollins
Publishers, 317 NLRB 168, 180 (1995), enfd. in relevant part 79 F.3d
1324 (2d Cir. 1996); and Paper Mart, 319 NLRB 9 (1995). Cf. Yaohan
of California, 280 NLRB 268, 268 fn. 2, 275 (1986), where the em-
ployer’s remarks that the employee could find another job if she wanted
more money were not made in a context where the union was explicitly
or impliedly referred to.
Goens.14 I find that when Kramer made this statement about
the decertification campaign, the Company violated Section
8(a)(1) of the Act. Adco Electric, supra, 307 NLRB at 1119, 6
F.3d at 1119; NLRB v. E. I. du Pont, 750 F.2d 524, 528 (6th
Cir. 1984); and Evans Bros. Barber & Beauty Salons, 256
NLRB 121, 128 (1981).
F. The Allegedly Unlawful Rule Restricting Off-Duty Employ-
ees Access to Company Property (Complaint Paragraph 5(i))
About October 1, 1991, the Company and the Union agreed
to a set of rules which included the following: “If not on com-
pany business, employees are not allowed on company prop-
erty.’’ An initial violation of this rule was subject to a letter of
reprimand; a second violation, to a 3-day layoff; and a third
violation, to discharge. The Company’s June 1994 answer
admits that “since October 1, 1991, the Company has main-
tained a rule prohibiting employees from being present on
Company premises during non-work hours or when not other-
wise engaged in company business.’’ Moreover, the record
shows that the Company in fact enforced this no-access rule
from time to time both before and after the decertification peti-
tion was filed. Indeed, such enforcement is conceded in the
Company’s posthearing brief (pp. 41–46).15
The maintenance and enforcement of such a rule, at least if
unilaterally promulgated, presumptively violate Section 8(a)(1)
to the extent that it prohibits employees’ presence on company
property, other than in company buildings and in working ar-
eas, for the purpose of engaging in activities protected by Sec-
tion 7 of the Act. Fairfax Hospital, 310 NLRB 299, 308
(1993), enfd. 14 F.3d 594 (4th Cir. 1993), cert. denied 512 U.S.
1205 (1994); United Parcel Service, 318 NLRB 778 (1995);
Yukon Mfg. Co., 310 NLRB 324, 334–335 (1993); Tri-County
Medical Center, 222 NLRB 1089 (1976).16 Such a rule is
invalid unless justified by legitimate business reasons, none of
which the Company cites in the instant case. Tri-County, su-
pra; United Parcel Service, supra.
The Company contends that its maintenance and enforce-
ment of the rules were lawful because the Union agreed thereto
during the life of the August 1990–August 1993 bargaining
agreement and the rule was made part of that agreement. How-
ever, in the absence of special circumstances not claimed to be
present here, the bargaining representative cannot effectively
waive the right that unit employees would otherwise possess to
engage, on their employer’s premises, in activity protected by
Section 7 of the Act. See Harper-Grace Hospitals, 264 NLRB
663 (1982), enfd. 737 F.2d 576 (6th Cir. 1984). In any event,
to the extent that the rule may have effectively waived employ-
ees’ statutory rights during the contract term, that waiver be-
came ineffective upon the expiration of the agreement in Au-
gust 1993. See Southwestern Steel & Supply v. NLRB, 806 F.2d
14 Kramer testified that in his position as day warehouse manager, he
played no role in the Company’s bargaining positions, and that he had
no idea how much money the Company was spending on the decertifi-
cation campaign. Kramer is the brother-in-law of Copresident Thomas
Wake and represented the Company (although there is no evidence that
he said anything) during an April 1994 conference with the Union (see
infra, part V,F,8).
15 The Company contends that the rule was not discriminatorily en-
forced against union adherents and/or union activities. However, the
General Counsel’s posthearing brief does not appear to contend other-
wise.
16 Tri-County narrowed the at least seeming scope of GTE Lenkurt,
Inc., 204 NLRB 921 (1973), relied on by the Company (Br. 41).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508
1111, 1114 (D.C. Cir. 1986). Accordingly, I find that the
Company violated Section 8(a)(1) of the Act by maintaining
and enforcing a rule which prohibited off-duty employees’
presence on company property, outside company buildings, and
working areas, for the purpose of engaging in activities pro-
tected by Section 7 of the Act.
G. Alleged Unfair Labor Practices in Connection with Em-
ployee Distribution of Union Material (Complaint Paragraphs
5(b), (h); see Objections 6 and 8))
Facts
a. Introduction
Branch manager Patricia Reynolds testified that in 1993 em-
ployees were not to solicit on company time (including paid
breaks) on company property. Similar testimony as to his en-
tire tenure of employment was given in 1994 by Michael Grig-
desby, who had been the night warehouse manager continu-
ously since at least 1984, before the Company took over the
warehouse, and is admittedly a supervisor and an agent of the
Company. Reynolds further testified that prior to July 8, 1993
(the date of the election), there was no restriction imposed by
the Company on employees’ right to engage in solicitation or
distribution on company property during lunchtime, which is
unpaid.
b. Incident involving Day Warehouse Manager Kramer and
employee Teresa Goens
During the month before the July 8, 1993 election, employee
Teresa Goens (the wife of Steward Arnie Ray Goens) wore a
union hat to work every day. In June 1993, on a date not
shown by the record, employee Cecil Hooker asked Teresa
Goens about getting a union hat and a union button. Goens said
that she had them in her car. Hooker asked if he could have
one; she said yes. Later that day, while both employees were
on their lunchbreak, they went out to the company parking lot
to Goens’ car. She took a union hat and button from her car
and gave them to Hooker, who took them to his truck. When
Goens started back across the parking lot, Day Warehouse
Manager Kramer came outside and told her that she could not
pass “that stuff’’ out on company premises. Prior to this con-
versation, Goens and other employees had regularly walked out
to their cars, and engaged in social conversations, during their
lunchbreaks. After this conversation, she always went outside
the plant gates to pass out such material. She handed out such
items to anyone who asked for them. Some employees who
received this material wore it to work.
On another occasion whose date is not shown by the record,
Kramer approached a group of employees (including Teresa
Goens) at the timeclock and said that employees could not pass
out union hats and buttons on company property.
c. Incidents involving Night Warehouse Manager Michael
Grigdesby
(1) Incidents involving employee Wilke
On a couple of occasions about late June 1993, employee
Wilke passed out union literature in the breakroom. Thereafter,
while Wilke was standing near the health and beauty line, with
some union literature in her hand but not distributing it, Grig-
desby told her that she could not pass it out “within the Com-
pany property, anywhere, at any time’’; and that the only place
the employee could pass out any kind of literature would be
“off Company time, off Company property.’’ She said that she
would not pass any more out.
On the day before the election, while Wilke was passing out
union literature in the breakroom on breaktime, Grigdesby
came in and informed her that the employees could not pass out
literature, that this was the second time he had told her this, and
that she was not allowed to pass out union literature anywhere
in the building. About 15 or 20 other employees were in the
breakroom at that time.17
In September–November 1992, Wilke had sold candy, for
the benefit of a swim team, in the breakroom during breaks.
Among those who bought candy from her was Supervisor
Grigdesby, who never said anything about the time period
when she was selling candy.18
(2) Incidents involving employee Douglas Jones
During the first rest break about June 23, 1993, Union Stew-
ard Douglas Jones ate his lunch in the breakroom with a stack
of union handbills on the table near his seat. While Jones was
eating, Grigdesby came into the breakroom and told him that he
could not pass out union literature on company property.19
Jones replied that he was eating his lunch, was not passing
anything out, and had not been passing anything out at that
time. Grigdesby again said that Jones could not distribute this
material on company property, and then left the breakroom.
Jones continued to eat his meal. However, employee Edmond,
who had overheard the conversation, grabbed a few union
handbills off the stack and handed them to a few employees
who were sitting at the tables nearby. Jones said to Edmond,
“I’m not supposed to be passing that out.’’ Edmond smiled and
said, “[W]ell, you weren’t.’’ At that time, 20 to 35 employees
were in the breakroom, which is about 20 by 40 feet, and at
least 5 were within earshot of the Grigdesby-Jones conversa-
tion.
On July 5, 1993, Jones obtained from the Union a stack of
handbills which purported to reproduce a letter from former
bargaining unit employee Terry Keller. This letter, which bore
a purported facsimile signature by Keller, stated that the Com-
pany had discharged him because he had an alcohol problem,
that the Company had been unable to understand his problem,
and that the employees should vote for the Union because the
Company was going to treat other employees with problems in
the same way Keller had been treated. At the beginning of the
first break, Jones gave a stack of these handbills to Wilke, who
began passing them out to others in the breakroom while Jones
was fetching his lunch from the refrigerator. Then, Jones gave
a handbill to Working Foreman Danny Cooper, a unit em-
ployee, who thereupon went to Grigdesby’s office, showed him

17 My findings as to these conversations are based on Wilke’s testi-
mony, which is to some extent corroborated by Grigdesby’s testimony
that employees were not permitted to distribute or solicit during paid
breaks. For demeanor reasons, I do not credit Grigdesby’s testimony
that he never told her she could only pass out literature off company
property and off company time; and that as to literature distribution, his
only conversation occurred when he saw her in the health and beauty
area during worktime with a handful of flyers (which he could see were
not work orders) and told her not to pass them out on company time.
18 My findings in this paragraph are based on Wilke’s testimony.
For demeanor reasons, I do not credit Grigdesby’s denial.
19 My finding that Grigdesby said “company property’’ is based on
the testimony of Jones, whose recollection impressed me as being supe-
rior to that of employee Edmond. Edmond, who overheard the conver-
sation, testified that Grigdesby said, “[C]ompany time.’’
EBY-BROWN CO. L.P. 509
the handbill, and said that the signature was not that of Keller,
who was Cooper’s longtime friend.20 Grigdesby thereupon
headed for the breakroom, which he had left less than a minute
earlier, and which he reentered just behind unit employee Brian
Hammer, a working foreman. Grigdesby got Hammer by the
arm and said, “I need a witness.’’ Grigdesby saw Jones with
handbills in his hand, handbills lying all over the table in the
breakroom, and almost everybody reading a copy. Grigdesby
told Jones, within the hearing of 6 to 8 employees including
Hammer, that Jones could not distribute literature on company
property or company time, that he was to do it on his own time
and his own property, and that Jones would have to put the
handbills away. Jones said that he was not passing out these
handbills. Grigdesby said that this was not the way he under-
stood it, and that Jones and Wilke could not pass the union
literature out. Jones asked whether Grigdesby was sure that he
did not want Jones to pass out these handbills, and said some-
thing about filing charges against the Company. Grigdesby
repeated his instructions about the handbills, and Jones said,
“Okay.’’ Then, Grigdesby and Hammer walked toward Grig-
desby’s office. During the Grigdesby-Jones conversation,
Grigdesby spoke in a loud tone, in a manner which he custom-
arily used in giving work orders, and within earshot of about 40
people. While walking to Grigdesby’s office, he and Hammer
encountered several nonunit persons on the Company’s payroll,
one of whom (an office employee) asked what was going on.
After Hammer and Grigdesby reached Grigdesby’s office,
Hammer showed Grigdesby the handbills which Jones had been
distributing, and commented that this was not really a “big
thing.’’ Grigdesby said that he did not care, that it was union
literature, and he did not want it passed around. Then, Grig-
desby compared the signature on the handbill with Keller’s
signatures in company files, and decided that the signature on
the handbill had not been written by Keller (see infra, fn. 21).
Grigdesby returned to the breakroom, showed those present the
file signature and the handbill signature, and told everyone
there (although many of them may not have heard him) that this
was a forgery, it was not really Keller’s signature.21 Jones
credibly testified that before Grigdesby’s statement to this ef-
fect, Jones had believed the purported Keller signature to be
genuine. After being so advised, Jones and Wilke did not pass
out these handbills any more.
Jones thereafter obtained another stack of handbills (not the
Keller handbills) from Union Business Representative Buhle.
During the first break on July 6, 1993, Jones started passing
them out in the breakroom to a number of other employees.
Grigdesby thereupon came into the breakroom and told Jones
that he could not pass out union literature on company time or
company property, that he had been warned about this, and that
he was not to be doing it. Referring to “the rules of the
NLRB,’’ of which Buhle had advised him, Jones said that “that
was a very serious violation.’’ Grigdesby said that this was not

20 My finding as to Cooper’s statement is based on Grigdesby’s tes-
timony, which on timely objection was not received to show the truth
of the contents.
21 In view of these remarks by Grigdesby, I do not credit his testi-
mony that he did not compare these signatures until after the break was
over. Grigdesby credibly testified that the two purported signatures
appeared to him to have been written by two different people. How-
ever, the record does not include either signature, nor any evidence as
to whether Keller had authorized the Union to sign the handbills on his
behalf.
a violation, this was a direct order from management. Grig-
desby said that Jones could put the handbills in the closet or
leave them in Grigdesby’s desk. Jones said that if he did this,
they would not be there when he got ready to leave for lunch,
so he was going to take them to his car immediately. Grig-
desby agreed, and, still during the break period, Jones took the
literature out to his car. The Jones-Grigdesby conversation
described in this paragraph took place within earshot of 20 to
30 other employees.
On an occasion whose date is not shown by the record,
Gridgesby told Jones that if he was off the property and on his
own time, there was nothing Grigdesby could do about Jones’
distribution of union literature, and that Gridgesby had no ob-
jection to such activity by Jones if, for example, he engaged in
it off company property on his lunchbreak.
My findings as to these incidents are based on a composite of
credible portions of the testimony of Jones, Wilke, Hammer,
and Grigdesby. For demeanor reasons, I do not credit Grig-
desby’s testimony that aside from perhaps being in the break-
room when Grigdesby talked to Jones, Hammer was not in-
volved in these incidents; Grigdesby’s denial that Jones said he
was permitted to pass out union literature; Grigdesby’s denial
that office employees were involved in this incident; Grig-
desby’s denial that he told Jones not to distribute his union
literature on company time or company property; or Grig-
desby’s denial that he told Hammer the Keller letter amounted
to union literature and Grigdesby did not want it passed around.
d. Analysis and conclusions
I agree with the General Counsel that the Company violated
Section 8(a)(1) of the Act (1) when Day Warehouse Manager
Kramer stated to employee Teresa Goens (who had been dis-
tributing union paraphernalia to another employee in the Com-
pany’s parking lot while both of them were on their lunch-
break) and other employees that they could not pass out union
hats or buttons on company premises; (2) when Night Ware-
house Manager Grigdesby told employee Wilke that she could
not distribute union literature (which she had previously dis-
tributed in the breakroom) anywhere on company property at
any time; (3) when he told her (while she was distributing un-
ion literature in the breakroom on breaktime) that she was not
allowed to distribute union literature anywhere in the building;
and (4) when he told employee Jones, during his breaktime in
the breakroom on two different occasions, that he could not
pass out union literature on company property or company
time. NLRB v. General Thermodynamics, Inc., 670 F.2d 719,
721 (7th Cir. 1982); Anderson Co., 305 NLRB 878, 880 (1991);
and Goldtex, Inc., 309 NLRB 158, 160 (1991), enfd. 16 F.3d
409 (4th Cir. 1994). Such statements to employee Jones were
not rendered lawful by the fact that Edmond, one of the em-
ployees in whose presence Grigdesby made one of his unlawful
statements to Jones about literature distribution, nonetheless
distributed union literature during Edmond’s break period.
NLRB v. Almet, Inc., 987 F.2d 445, 451 (7th Cir. 1993); and
Waco, Inc., 273 NLRB 746, 748 (1984). Nor was Grigdesby’s
conduct as to the Keller letter rendered lawful by the possibility
that Keller had not authorized the letter, particularly because
Grigdesby’s remarks to Hammer, and Grigdesby’s testimony
(which I have discredited) that his signature comparison was
not made until after the end of the break during which he told
Jones not to distribute the handbills, show that Grigdesby was
motivated by the fact that the letter constituted union literature
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510
rather than by any lack of Keller’s authorization. Jones be-
lieved Keller’s signature to be genuine, and Jones did not dis-
tribute the letter after having been put on notice that Keller’s
purported signature may have been forged. See
HCA/Portsmouth Regional Hospital, 316 NLRB 919 fn. 4
(1995); KBO, Inc., 315 NLRB 570 (1994); A. O. Smith Automo-
tive Products Co., 315 NLRB 994, 1008–1009 fn. 34 (1994).
H. Alleged Unfair Labor Practices in Connection with Union
Rally (Complaint Paragraphs 5(f), (g), (j), and (k); see Objec-
tion 3)
1. Events in front of the warehouse
The Company’s Indianapolis warehouse is located on the
north side of Fortune Circle Drive, a public road which runs
east and west. The Company owned land on which this ware-
house is built is surrounded by a chain link fence with only one
opening, which is on the south side of the Company’s property
and is controlled by a gate, and into which enters the only
driveway from the Company’s property to a public road (For-
tune Circle Drive). The parties stipulated that between the
southern edge of the Company’s property and the northern edge
of the Fortune Circle Drive pavement is a public easement
which is about 6 feet wide.22 The Company’s fence is about
22 feet north of the Company’s property line.23
At a union meeting on June 27, 1993, those present were ad-
vised that a union rally would be conducted on June 30 in the
public area in front of the Company’s property. On June 28,
the Company learned about these plans.
At about noon on June 30, Union Business Representative
Buhle drove his automobile to the neighborhood of the Com-
pany’s warehouse, and parked his car on the north side of For-
tune Circle Drive and in front of the Company’s property. A
few minutes later, employee Douglas Jones parked his personal
van directly behind Buhle’s automobile. Jones’ van contained
some canned and/or bottled soft drinks, an outdoor barbecue
grill, and (perhaps) beer.
Ordinarily, the Company’s trucks, when not in use, are
parked on company property behind the warehouse fence.
Shortly after Buhle and Jones parked their vehicles on the pub-
lic street in front of the warehouse and began to distribute union
literature, the Company’s managers, at Patricia Reynolds’ in-
structions, drove company trucks outside of the facility and
parked them in such a way that they may have boxed in Buhle’s
and Jones’ vehicles. When truckdrivers Mark Mayfield and
Clyde Ervin, both of whom wore “vote no’’ buttons, returned
from their delivery routes, at Patricia Reynolds’ instructions
they parked their respective trucks on opposite sides of the gate,
leaving a passageway which was too narrow for a truck to use.
Eventually, pursuant to management’s instructions, 8 to 18
company trucks, each of them 24-feet long, were parked on

22 Before this stipulation was entered into, Patricia Reynolds testi-
fied to the belief that the Company’s property extends to the northern
edge of the Fortune Circle Drive pavement. I am doubtful about the
sincerity of this testimony, which (if true) would mean that this public
road had no northern shoulder. However, whether she was sincere in
this respect does not affect the issues presented.
23 Using the same sketch map which partly underlies my description
of the relationship between the Company’s property and Fortune Circle
Drive, employee Jones testified that the warehouse faces west onto
Fortune Circle Drive. Such an assumption would make no material
difference here.
both sides of Fortune Circle Road in front of the Company’s
warehouse.
At about 1:30 p.m., Buhle and Jones began to distribute at
but outside the gate some handbills which urged the employees
to vote for the Union. Others then joined the handbilling activi-
ties. While the handbilling was taking place, Kramer left the
warehouse and came out to the gate. He saw about 50 people
in the area, most of whom were not employees of the Company.
In addition, he saw night-shift employee Wilke drinking beer
with someone else whom Kramer did not recognize.24 Kramer
told the handbillers that they were on company property, that
they had to get off company property, and that they could not
distribute handbills on company property. Buhle asserted that
he and Jones were standing on the easement—an assertion
which was accurate as to Buhle, at least.25 Buhle went on to
say that he believed they were within their Federal rights to
handbill, and told Kramer to call the sheriff’s department if
Kramer wanted Buhle and Jones removed.
At this point, Kramer reentered the warehouse and discussed
the handbilling matter with Patricia Reynolds, who said that she
thought Buhle and Jones were on company property and told
Kramer to call the police. Kramer then telephoned the police.
He told them that a prounion rally was being held outside the
Company’s building, that he thought a number of people were
trespassing on company property, that he had asked them once
or twice to leave and they had refused, that a crowd was gather-
ing, and that he would like the assistance of the police in re-
moving the people from company property. Kramer interpreted
the response as an assurance that the police would be on their
way shortly. At that time, 90 to 100 persons were present at the
rally, and safety concerns had been expressed to Kramer by
some warehouse employees who were returning from lunch and
by some clerical employees who were about to leave work for
the day. Kramer testified to his own concern at their safety,
particularly because he had seen two persons drinking beer at
the rally. Fifteen or twenty minutes after thus telephoning the
police, Kramer remarked to Patricia Reynolds that they had not
arrived yet. She told him to call them again. In doing so, he
used his office telephone, and was overheard by employee
Teresa Goens.26 He told the police that 100 people were in
24 The record identifies five employees who drank beer during the
rally, including Thomas Hawk (who drank one beer) and Wilke. Wilke
drank two or three beers, and ate several hot dogs, during her 6-hour
stay at the rally, during which she also distributed handbills and grilled
frankfurters for others at the rally. Because Supervisor Grigdesby
permitted Wilke to work her full shift that evening and testified that on
that day “she did her job,’’ because he testified that employees violated
company rules if they report to work too intoxicated to do their job, and
for demeanor reasons, I do not credit his or Hawk’s testimony that she
was intoxicated. Because Edmond was initially accompanied at the
rally by his small daughter and was later present awaiting the start of
his shift, and for demeanor reasons, I credit his denial of Hawk’s testi-
mony that he saw Edmond drinking beer at the rally.
25 My finding that Buhle was standing on the easement is based on
the stipulation that the easement extended about 6 feet north of the
north side of Fortune Circle Road, on Kramer’s testimony that the
change in the pavement as shown by a photograph of the area (G.C.
Exh. 58) is where the side of the road ends, and on Kramer’s testimony
that during their conversation Buhle was standing roughly where he
was standing in the photograph, which shows him to be standing less
than 6 feet north of the north side of the pavement change.
26 My finding that he used this telephone is based on her testimony,
which gains corroboration from employee Carla Wiggam’s credible
testimony that on the following day, Teresa Goens said that Kramer had
EBY-BROWN CO. L.P. 511
front of the building, and that he feared for the company em-
ployees’ safety. In addition, because the police had not re-
sponded to his first call and he wanted them to respond to this
one, he told the police that he had seen people throwing rocks
at the Company’s trucks, an assertion which (he testimonially
admitted) was not true.27
About 10 to 25 minutes after Kramer’s second telephone
call, four squad cars from the sheriff’s office drove up. The
police parked their vehicles some distance down the road, and
for about 20 minutes watched what was going on. Then, the
police approached Buhle, stated that they had been called by
Kramer, and asked to speak to a representative of the Company
and a representative of the Union. After that, the police car
drove in front of the warehouse. Kramer thereupon left the
warehouse and walked out of the gate toward the police car. En
route, he turned around and asked a group of employees who
were distributing handbills outside the fence (Arnie Ray Goens,
Teresa Goens, and Douglas Jones) if any of them wanted their
names given to the police.28 Jones and Teresa Goens re-
sponded by laughing. An unidentified person who was sitting
in a lawn chair told Kramer that he ought to have an “[obscen-
ity] Russian flag up there,’’ inferentially referring to an Ameri-
can flag displayed on the exterior of the warehouse.
The sheriff conferred with Kramer, Buhle, and Shirley
Green, who is the director of the Indiana Conference of Team-
sters. In response to the sheriff’s inquiries, Kramer said that he
had called the police, that he had told the police that people
were throwing rocks at incoming company trucks, and that in
point of fact, nobody was throwing rocks. The sheriff said that
this conformed with the police’s own observation. Kramer said
that he was concerned that “these people were on our property.
People were drinking beer. It was a nice sunny hot day and
things were getting loud.’’ The sheriff walked over to the
driveway, looked at the people standing around the driveway,
and then said that they might be standing on company property
but that he did not know whether it was company property, he
was “not going to make that call,’’ and they had a right to be
there as far as he was concerned. Then, the police told Kramer
that this was a Federal dispute and outside their jurisdiction.
As the police walked away, Kramer remarked that the Team-
sters must have friends in high places, since the Company could
not get the sheriff to do anything about the handbilling.29
Employee Edmond credibly testified that he left the rally,
and did not return to the area until the time his work shift nor-
mally began, because he was rendered uneasy by the Com-
pany’s action in calling the police “for no reason.’’ After the
police had left, employee Hall, who had been inside the fence,

called the police and accused people of throwing rocks—the report
admittedly made by Kramer. For demeanor reasons, I do not credit his
testimony that for privacy purposes, he used the conference room tele-
phone.
27 A number of other witnesses credibly denied seeing any rock
throwing. There is no evidence that any rocks were thrown.
28 This finding is based on the testimony of Teresa Goens, Jones, and
Buhle. Although their testimony in this respect was not corroborated
by Arnie Ray Goens, he is hard of hearing, was about 15 feet from
Kramer when he walked by, and testified that Kramer may have said
something which Goens did not hear. For demeanor reason, I do not
credit Kramer’s denial.
29 My findings in this paragraph are based on a composite of credible
portions of Buhle’s and Kramer’s testimony. For demeanor reasons, I
do not credit Kramer’s denial of the remark about Teamster friends in
high places.
left the Company’s premises, at which time Buhle told him that
the police had been called in with the representation that the
people at the rally were throwing rocks, and that the police had
left upon being told that nobody had been throwing rocks. On
the following day, employee Teresa Goens made a similar
statement to employee Carla Wiggam when she asked why the
police had been there.
The rally lasted between about 12:30 and 8:30 p.m., at which
time Buhle left the area because the evening-shift employees
had reported to work and most of the other participants had left
the area. The persons who were distributing union literature
were able to offer literature to all the individuals who entered or
left the company gate during this period. The witnesses’ esti-
mates of the maximum number of persons who were present at
the rally at any one time ranged between 50 and 200, with most
of the estimates being about 100. A majority of those present
were not company employees; some of them were members of
such employees’ families, and others were affiliated with the
UAW, which has an office next door to the Company’s ware-
house. During the rally, the persons outside and the persons
inside the fence engaged in a good deal of yelling.30 At about
2 p.m., an automobile occupied by the two Wakes (the Com-
pany’s copresidents, whose offices are in Illinois), Patricia
Reynolds, and employees from company facilities in Illinois
and Michigan, all of whom were returning from lunch, drove
into the facility. As the car was driven into the facility, some of
the participants in the rally yelled, “Go back to Illinois.’’ After
the car had been parked in the company parking lot, Buhle
yelled something to Reynolds about being a dictator, someone
else yelled something about raising the communist flag, and
someone (not connected with the Company) yelled a racial
epithet. One of the Illinois employees in the car, who is black,
told Reynolds that he wanted to go face-to-face with the person
who had used the racial epithet, but she induced the black em-
ployee to go into the facility.31 An obscene gesture was made
by an office employee with a “union free’’ sign on her car, as
she went out the gate. Many persons who attended the rally
wore union insignia, and some of them displayed signs with
such messages as “Vote Yes,’’ “We want a contract’’ (the cur-
rent union contract was due to expire by its terms in a few
weeks) or “Go back to Illinois.’’
By his own admission, Kramer never made any effort to as-
certain the location of the Company’s property line parallel to
Fortune Circle Road. From the circumstances noted supra,
footnote 22, I infer that no such efforts were ever made by
Patricia Reynolds either.
Driver Manager Paul Lodics (whose surname is variously
spelled in the record, and who is admittedly a supervisor and an
agent for the Company) and Branch Manager Patricia Reynolds
testified that the trucks were positioned around the Company’s
gate on June 30 to avoid or minimize confrontations between
the ralliers and persons leaving or entering the property, and to
prevent such departing or arriving persons from having to face
“a gauntlet of people outside.’’ The Company similarly posi-
tioned the trucks on July 7, when employee Arnie Ray Goens,
and Union Business Agents Buhle, Trader, and BuckClifton,
began to distribute union literature (the “Keller letter’’ de-
30 This finding is based on the testimony of Union Steward Arnie
Ray Goens (who is hard of hearing).
31 My finding as to the racial epithet is based on Kramer’s and
Patricia Reynolds’ testimony. The witnesses who denied hearing it
were not necessarly in a position to hear it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512
scribed supra, part III,G,(c),(2)) outside the gate. The trucks
did not prevent the literature distributors from doing anything
they wanted to do. The Company has offered no explanation
for this July 7 conduct. Buhle testified that he had no idea why
the trucks were out there.
2. Events on the warehouse roof
For a number of years, for the purpose of preventing theft
and vandalism, the interior and exterior of the warehouse have
been equipped with videocameras, and the outside of the ware-
house has been equipped with floodlights. For a continuous
period beginning before the Company acquired the warehouse,
this equipment has been serviced by an electrical contracting
firm whose partners are Steven Swallow and David Vander-
grifft, and by James L. Douglas (whose firm sells and services
closed-circuit television cameras), respectively.
Between January and April 1993, Douglas and Lodics en-
gaged in a series of conversations looking (1) toward the instal-
lation of additional videocameras in the warehouse, including
videocameras to cover the south side of the exterior property
and (2) toward the realignment or repositioning of existing
interior videocameras because of a recent remodeling of the
warehouse.32 In April 1993, Lodics instructed Douglas to
reposition existing videocameras, and install new ones, to cover
various interior areas, and also to install new videocameras to
cover exterior areas which included the south side of the prop-
erty.
Over a fairly continuous period which began in early May
1993, Douglas installed the videocameras ordered by Lodics.
Most of this work was performed within the warehouse. How-
ever, no later than late May, Douglas installed on the roof, for
the purpose of covering exterior areas of the property, several
videocameras to replace the single videocamera which had
previously been directed to such areas. One of these newly
installed videocameras, referred to in the record as videocamera
E, was supposed to cover the gate area. While the installation
of the interior videocameras was still in progress, Douglas as-
certained that videocamera E provided an unsatisfactory picture
in the evening and at night. Douglas believed that the problem
was related to a possibly defective lens on the camera and to
insufficient lighting in the gate area. He asked Lodics to have
Swallow install an additional floodlight to illuminate the gate
area. In addition, Douglas repeatedly went up to the roof and
attempted to correct the problem by physically manipulating
videocamera E. In mid-June, during one of these visits to the
roof, he broke the plastic housing around the lens and there-
upon ordered a replacement part, consisting of a new lens in a
new housing. However, videocamera E still worked properly
during the day, Lodics never told Douglas that there was a
problem with videocamera E, and Douglas never told Lodics
about the broken lens housing or the need to install a new part.
Nor did the Company ever tell Douglas that the job had to be
completed by June 30, or by any other particular date.
In mid-June, before finding out that the Union planned a
rally for June 30, Lodics asked Swallow to install the new
floodlight requested by Douglas in connection with videocam-

32 Testimony by Douglas that the Company gave problems with
vandalism and theft as reasons for various installations was not offered
or received to show that such incidents had actually occurred, but was
offered to show that the Company made such reports to these witnesses.
Cf. Fed.R.Evid. 803(3). The record contains probative evidence that
such incidents had occurred.
era E. Lodics did not give Swallow a date by which the new
floodlight had to be installed. Swallow did not have the neces-
sary fixture in stock, and had to order it from an electrical sup-
ply company called Graybar. On June 29, Graybar telephoned
Swallow that the new fixture had arrived and he should pick it
up. Swallow performed some electrical work inside the Com-
pany’s warehouse on June 29. On June 30, he picked up the
new fixture from Graybar and (without first advising the Com-
pany that he was planning to install the new fixture that day)
immediately drove out to the Company’s warehouse, together
with his partner David Vandergrifft, to install the fixture.
Swallow and Vandergrifft reached the warehouse about 1:30
p.m. They parked their truck in the Company’s parking lot,
removed the appropriate tools, fixture, and fittings from the
truck, and walked to the side door, where they were buzzed in
by Lodics. Swallow told Lodics that the two electricians were
there to install the new floodlight. Before buzzing them in,
Lodics had not known that they were going to install the new
floodlight on that particular day.
Carrying the material which they had removed from their
truck, Swallow and Vandergrifft walked across the warehouse
work floor until they reached the roof access hole, through
which they climbed up to the roof, and proceeded to install the
new floodlight. While performing this task, which included
connecting the new fixture to a junction box about 2 feet from
videocamera E, they mostly stayed on the roof, although one or
the other occasionally left the roof to obtain a fitting or to
thread a wire. Swallow credibly testified that while he was on
the roof, he did not see Douglas. Swallow and Vandergrifft
finished the installation job at about 3:30 or 4 p.m., and then
proceeded to the interior of the warehouse, where they contin-
ued to work until 5:30 or 6 p.m.
After ordering the replacement lens assembly about mid-
June, Douglas continued his videocamera repositioning work
inside the warehouse, and his videocamera installation work
mostly (if indeed not entirely) inside the warehouse. On June
30, Douglas reached the warehouse between 11 a.m. and noon.
For the first time, someone at the gate asked him to identify
himself and state his purpose in entering. After he explained
that he was there to continue to work on closed-circuit TV, he
was permitted to drive into the company parking lot. Douglas
was buzzed into the warehouse by Lodics, who credibly testi-
fied that Douglas “said something about changing a lens on a
camera.’’
After entering the warehouse on June 30, Douglas initially
worked inside the warehouse repositioning some internal vid-
eocameras. However, at some time between 1 and 4 p.m., he
decided to install the replacement lens assembly. Using the
access hole, he went up to the roof and (spending much of his
time sitting cross-legged) replaced the lens assembly, a proce-
dure which did not involve any change in the area to be covered
by videocamera E. The installation took him 1 to 2 hours.
After completing the installation, at some time before 5 p.m.,
Douglas returned to the interior of the warehouse, where he
went to the control room to make sure that videocamera E was
picking up the gate area which it was supposed to pick up, and
then resumed work on the interior videocamera system. With a
30-minute break (while the rally was still in progress) when he
left the warehouse in order to obtain parts, he remained inside
the warehouse (where he napped for a while) until 4 a.m. on
July 1. Douglas credibly testified that he did not see Swallow
EBY-BROWN CO. L.P. 513
on that day. No company representative ever complained to
Douglas about the operation of videocamera E.
The persons who were participating in the June 30 rally at
the time when Swallow and Vandergrifft were working on the
roof were able to see the two electricians when they were in-
stalling the floodlight. Douglas was visible to the participants in
the rally during the period when he was standing on the roof,
but not during the period when he was sitting there. Nobody
testified to having inferred from such activity that the Company
was using, or was preparing to use, videocamera E for the pur-
pose of surveilling the rally.33 Nor is there any evidence that
any participant in the rally expressed such a suspicion. Kramer
credibly denied looking at the monitor on the day of the rally,
and credibly denied any knowledge that anyone else did so, nor
is there any evidence that the Company used the monitor for
this purpose. There is no evidence that the Company ever ex-
plained to any of the employees or to the Union why Swallow,
Vandergrifft, and Douglas were working on the roof that day,
nor any evidence that anyone asked the Company for such an
explanation.
3. Analysis and conclusions
I agree with the General Counsel that the Company violated
Section 8(a)(1) when Kramer told the employees who were
distributing union handbills that they could not distribute hand-
bills on company property. The employees had the statutory
right to distribute union handbills on company property in
nonworking areas when neither they nor the employee recipi-
ents were expected to be actively working (General Thermody-
namics, supra, 670 F.2d at 721). Further, because it was this
protected activity by Jones and the Goenses which led Kramer
to ask if they wanted their names to be submitted to the police,
I find that this statement, too, constituted a violation by the
Company of Section 8(a)(1) of the Act. See Parents & Friends
of the Specialized Living Center, 286 NLRB 511 (1987), enfd.
879 F.2d 1442 (7th Cir. 1989); Pabst Brewing Co., 254 NLRB
494 (1981). Finally, because the protected handbilling activity
was a substantial reason for Kramer’s action in summoning the
police on the admittedly false pretext of rock throwing, I find
that Kramer’s action in calling the police constituted an addi-
tional Company violation of Section 8(a)(1).
However, the record fails to support the complaint allega-
tions in connection with the June 30 activities on the warehouse
roof. Paragraph 5(j) of the complaint alleges that in violation
of Section 8(a)(1), the Company, on “an unknown date in early
June, 1993, . . . increased the number of its surveillance cam-
eras in response to its employees’ union activities.’’ The record
evidence shows that videocamera E, the only videocamera
whose legitimacy was challenged at the hearing, was installed
in May 1993, for reasons which had nothing to do with union
activity. The General Counsel’s posthearing brief contends that
Douglas’ June 30 activities in connection with videocamera E
gave employees the impression that their union activities were
under surveillance by the Company (pp. 55–56). Assuming
arguendo that the complaint would permit such an unfair labor
practice finding,34 it would be unsupported by the evidence.
Rather, the evidence shows that the temporal coincidence of the

33 However, Douglas Jones credibly testified to the belief that the
videocamera lens was being repositioned or refocused. Further, Teresa
Goens credibly testified to the belief that the camera was being posi-
tioned so as to be aimed toward the gate.
34 See Williams Pipeline Co., 315 NLRB 630 (1994).
union rally, Douglas’s replacement of the lens assembly on
videocamera E, and the electricians’ installation of the new
floodlight on the roof was wholly fortuitous, and that at no
material time did the Company have any reason to anticipate
that Douglas would have to perform any additional work on
videocamera E. Further, there is no evidence that the Company
believed that employees might attribute Douglas’s June 30
work on videocamera E, or the electricians’ installation of the
new floodlight on June 30, to the union rally, nor (for that mat-
ter) that employees did believe it. In connection with the sur-
veillance-camera allegations, the General Counsel’s posthear-
ing brief relies on Teresa Goens’ testimony that on the day
before the rally, she asked Driver Manager Lodics what the
deal was with the new front-gate security guard and the guy or
two guys she saw on the roof that day, to which he replied that
“that was in case [the employees] got carried away at [their]
little rally the next day and decided to throw Molotoff cocktails
at the building.’’ Although I credit her testimony that Lodics
made this statement35 (which is not alleged to have been
unlawful), it neither undermines the credibility of the undis-
puted evidence as to the reasons for Douglas’s and the electri-
cians’ presence on the roof during the rally, nor appreciably
supports an inference that the employees who participated in
the rally had reason to believe that videocamera E was being
adjusted in order to spy on their rally.
I. Alleged Unfair Labor Practices in Connection with Writing
on Back Belts (Complaint Paragraph 5(a); see Objection 16)
1. Facts
Since at least August 1992, the Company has supplied em-
ployees with back belts (also referred to in the record as weight
belts) which provide employees with back support. Patricia
Reynolds testified (without contradiction or corroboration) to
having instructed her managers to tell the employees, when
they were issued their back belts, that they could write their
names, nicknames, initials, or social security numbers on their
belts. However, there is virtually no probative evidence as to
what the employees were in fact told about this matter.36
Moreover, as of March 31, 1993, the Company had no written
policy about what could be written on the belts; Reynolds gave
no oral instructions that the names of organizations were not to
be written on the belts; and there is no evidence that such in-
structions were actually given to any employees.
About March 29, 1993, during a grievance discussion unre-
lated to the belts, Patricia Reynolds told Union Representative
Buhle that people were going to be reprimanded for having
markings, other than their names, on the belts. Buhle asked
what was written on the belts; she said Teamsters. (As dis-
cussed infra, other employee then had on their belts markings
which were not their names but did not mention the Union.)
Buhle asked who those individuals were. She replied that
Jewell, Rakes, and Douglas Jones were going to get repri-
manded for what was on the belts. However, she was unable to
35 For demeanor reasons, I do not accept his denial of such a conver-
sation. He did not deny that someone had in fact been on the roof on
June 29.
36 Employee Wilke credibly testified that when she was given her
belt by Supervisor Grigdesby, he told her to “write something on it to
identify that it was mine.’’ Employees James A. Edmond Sr. and (as
noted infra) Douglas Jones were given no instructions at all.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
answer Buhle’s inquiry about what contract violation they were
going to be written up for.
On March 31, 1993, each of these three employees received
a written reprimand which stated, in part (emphasis in original):

You were instructed by your manager, Mike Grig-
desby, to put your name on the belt, in case it was left at
work, etc. Your were not instructed to make any other
markings on the belt. It has been brought to the com-
pany’s attention that you have written more than your
name on the belt.
. . . this is willful and deliberate damage to company property
and equipment. According to the contract, . . . Willful dam-
age to equipment is subject to discharge.
Although more stringent discipline could be imposed
for this offense, please consider this a letter of reprimand.

In early April 1993, a grievance which attacked these repri-
mands was filed on behalf of Jones, Jewell, and Rakes. At the
first-step grievance meeting, a few days later, Patricia Reynolds
said that the employees had been told by Assistant Night Man-
ager Troy Payne that they should write only their names or
nicknames on the belts. Reynolds testified at the hearing that
the managers had never been instructed to forbid employees to
put the name of any organization on their back belts. Payne
had not given Jones any instructions about writing on his back
belt, but Jones did not so advise Reynolds on this or (so far as
the record shows) any other occasion.
The grievance having been denied at the first two steps, a
third-step meeting was conducted about April 21, between
Jones, Buhle, Union Attorney Steven J. Chestnut, and Patricia
Reynolds. At this meeting, Reynolds agreed to comply with
the Union’s earlier request for a list of the entries which unit
employees had made on their back belts. This list, which she
sent to Chestnut with a covering letter dated May 6, included
the entries “Jamie, IU’’ (see infra), “Coonbo,’’ “Mo Money,’’
“Easy Money,’’ and “Fat Rat.’’ During an “executive session’’
with Reynolds on or shortly after May 6, Chestnut said that the
discipline administered to the grievants was “ridiculous’’ in
view of the entries on other employees’ back belts; that he be-
lieved the disciplinary action in connection with the writing on
the back belts was motivated by the employees’ union activi-
ties; that he was not going to move that grievance on to arbitra-
tion; and that if the discipline was not rescinded, he was going
to file a charge with the NLRB.37 No union representative
reached an agreement with the Company that only an em-
ployee’s name, initials, or social security number could appear
on the employees’ back belts.38 By letter to Rakes, Jewell, and
Jones dated May 11, 1993, Patricia Reynolds stated (emphasis
in original):

After careful consideration, I realize there exists the
remote possibility that you misunderstood the directions

37 Because the Company made no claim before me that the matter
should be deferred to arbitration, no deferral issue is presented.
38 This finding is based on Chestnut’s and Buhle’s testimony. Rey-
nolds initially testified that a written and signed agreement to this effect
was reached during a meeting between herself, Buhle, and Chestnut
which was held after March 31 and was occasioned by step two of a
grievance (No. 5789) which was based on discipline for failing to wear
back belts, and not for writing on back belts. Immediately after so
testifying, she testified that no such document had been signed by any
union representative. For this and demeanor reasons, I credit Chestnut
and Buhle.
given to you when issued the back belt, purchased by Indi-
ana Eby-Brown.
If you recall, you were instructed to put your “name’’
on the belt. Management approved “name’’ to include ini-
tials, nickname, or social security number. While implied,
it was never stated that you were not to put the name, slo-
gan, numerical identifier, etc. of any other club, organiza-
tion, business, etc. on the belt. Therefore, I will rescind
the letter of reprimand, dated March 31, 1993, provided
you “ink-out’’ the markings currently on your belt, prior to
May 17, 1993. You may identify your belt with your
name, initials, nickname, or social security number, but
may not mark your belt with anything identifying any or-
ganization, business, club, etc. other than Indiana Eby-
Brown.

Employee Teresa Goens credibly testified that the day after
these letters were received, Jewell told her that he, Jones, and
Rakes had been written up for what they had written on their
back belts, and that Goens talked to Jones about the matter; on
timely objection, her testimony was not received to show the
truth of the report. These May 11 letters constituted the first
written instructions by the Company about not putting the name
of an organization on their back belts. No similar letter was
issued to any other company employee.39
As of May 17, 1993, neither Jones, Jewell, nor Rakes had
inked out the markings on his back belt. At about 6 p.m. that
day, Driver Manager Lodics told Lee Miller, who was his assis-
tant, to retrieve the back belts which had writing on the back
other than names or initials, to mark off what was on the belts,
and to put on each belt the initials or name of the employee to
whom it was assigned. Miller thereupon retrieved the back
belts assigned to Jewell and Rakes; inked out the existing writ-
ing on these belts; and wrote these employees’ respective
names or initials thereon, and returned the belts.40
Jones had received his belt in August 1992 from Assistant
Night Marehouse Manager Troy Payne, who said nothing at all
about what, if anything, was to be written on the belt. Initially,
Jones wrote nothing on the belt. However, when he saw other
employees writing their names on the belts which they had
received, and saw others writing on these belts the words “Un-
touchable,’’ “Bull Dog,’’ “Fishin Man,’’ “Easy Money,’’ “Mo’
Money’’ (written by two employees), and “10,’’ Jones (the
steward on the second shift) wrote his own name on the inside
of the belt, and “Teamsters Local 135’’ on the outside. At that
time (August 1992), management said nothing to him about
what he had written on the belt. Jones’ March 31, 1993 letter
of reprimand was delivered to him by Grigdesby, who made an
obscene comment to the effect that he believed the reprimand
to be nonsensical but that Patricia Reynolds “didn’t see it that
way.’’ Immediately before receiving his reprimand letter,
Jones, who was then at his work station, was photographed by
Payne from the rear. Jones received his May 11, 1993 “rescis-
sion’’ letter from Payne or, perhaps, Grigdesby.
On the evening of May 17, Miller told Jones that Miller
needed Jones’ back belt to make some adjustments on it. Jones
39 This finding is based on the testimony of Patricia Reynolds, who
volunteered the explanation, “There were no other grievances pend-
ing.’’
40 This finding is based on Miller’s testimony. On timely objection,
Jones’ credible testimony that Jewell and Rakes had reported this to
Jones was not received to show the truth of this report.
EBY-BROWN CO. L.P. 515
said that the belt fastened by means of a velcro strap, and could
not be adjusted. Miller replied that he was just doing what he
was told, and that he needed Jones’ belt at that time to make
some adjustments. Miller had in his hand two different, brand
new belts, still wrapped in plastic. He asked Jones what size
belt he wore. Jones, who had gained a little weight since re-
ceiving a belt 9 months earlier, said that he was wearing a “me-
dium’’ size, but asked to try on a “large’’ size because the “me-
dium’’ size seemed to be a little bit snug. Miller gave him the
“large’’ size belt. Jones gave Miller the “medium’’ belt Jones
had been wearing, put on the “large’’ size, and remarked that
the “large’’ size was more comfortable. Miller walked off with
the belt Jones had given him, inked out the reference to the
Teamsters, and then brought the belt back to Jones. Jones, who
credibly testified that the “large’’ size was an improvement,
said that the new belt fit him better and he would like to keep it.
Miller said there should be no problem, wrote Jones’ name on
the outside of the new belt, and told him to go ahead and use it.
Twenty to forty minutes later, Miller came back to Jones and
told him that Reynolds had told Miller that Jones could not
have a new belt, that he had to use the original belt, and that he
would have to go to her with any questions. Miller retrieved
the “large’’ size belt, marked out Jones’ name on that belt, and
returned the old one to Jones.
Patricia Reynolds testified to the “understanding’’ that the
requests to ink out the Union’s name on the back belts had been
“complied with,’’ and that the letters of reprimand had thereaf-
ter been rescinded. Douglas Jones credibly testified to the
opinion that because the Union’s name on his back belt had
been inked out by Miller, the discipline imposed on Jones in
connection with this entry was “probably’’ no longer part of his
disciplinary record. Rakes and Jewell did not testify.
My findings as to the conversation between Jones and Miller
are based on a composite of Jones’ testimony and credible parts
of Miller’s testimony. Although the Company denies that
Miller was a supervisor and the record fails to show that he
possessed that status, the Company did not object to Jones’
testimony that Miller said Reynolds had told him Jones could
not have a new belt and would have to use the original one, and
such testimony was received without limitation. Accordingly,
such testimony is probative of the truth of Miller’s assertion.41
Moreover, for demeanor reasons, I do not credit Miller’s denial
that he so advised Jones, or his and Reynolds’ denial that she so
advised Miller; and I find that she did in fact so advise Miller;
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Further,
for demeanor reasons, I do not credit Miller’s testimony that
only 15 minutes elapsed between the time he told Jones he
could keep the new belt and Miller’s statement to Jones that he
would have to use the old one; or Miller’s testimony that both
belts were the same size; or his testimony that this was the rea-
son why he ultimately told Jones he would have to continue
using the old one.
In March 1993, employee Edmond’s immediate superior,
Assistant Night Warehouse Manager Payne, issued Edmond a
back belt and told him, “You need to wear the belt.’’ Thereaf-
ter, and before May 6, Edmond put his initials on this back belt

41 American Rubber Products Corp. v. NLRB, 214 F.2d 47, 52 (7th
Cir. 1954); Iron Workers Local 46, 320 NLRB 982 fn. 1 (1996); and
Today’s Man, 263 NLRB 332 (1982).
and wore it in the warehouse on as undisclosed number of oc-
casions.42
Before being hired by the Company, Edmond had purchased
a back belt to assist him in performing his duties for his then
employer. On an undisclosed date prior to May 18, 1993, Ed-
mond wrote the Union’s name on the outside of his own belt,
and began to bring it (rather than the company-issued belt) to
the Company’s warehouse. Like other employees during this
period, he wore a back belt irregularly while he was working.
When he was not wearing it, he kept it lying next to him, some-
times in such a manner that the Union’s name could be seen on
it. Also, between about late April 1993 and his discharge (not
alleged to be unlawful) in August 1993, he regularly wore in
the warehouse a union hat and a union button.
At about 7 a.m. on May 18, 1993, while Edmond was per-
forming his duties, Patricia Reynolds saw him wearing his back
belt with the Union’s name on it. She requested and obtained a
marker from Lodics, gave the marker to Edmond, and told him
to mark everything off his back belt. He refused. She said that
it was “her belt, the company belt,’’ and that he had to mark
everything off it. He said that it was his own belt and that,
therefore, he did not have to mark anything off it. She told him
that she did not like “Local 135’’ on the belt, that she did not
want that belt in “her’’ warehouse, that Edmond was not to
wear his own belt in the warehouse any more, and that she
wanted him to wear “her’’ belt. He said, “[F]ine.’’
My findings as to the content of this conversation are based
mostly on the testimony of Jones (who overheard part of the
conversation) and Edmond. Reynolds and Lodics testified that
Reynolds approached Edmond and asked if the belt he was
wearing was company issued, he said no, and she asked him to
please wear the company-issued belt. Both she and Lodics de-
nied that she told Edmond to ink out the Union’s name on Ed-
mond’s belt. I credit Edmond’s and Jones’ testimony other-
wise, and discredit Reynolds’ and Lodics’ version of the con-
versation, for demeanor reasons and in view of the following
additional considerations: Reynolds testified that she told Ed-
mond to wear the company-issued belt because “[t]his belt was
the one selected by our safety administrative manager who
works with our insurance company.’’ However, she further
testified that if Edmond had had nothing on the belt, it would
not have “stood out’’; and, even after inspecting Edmonds’ own
belt at the hearing, that so far as she knew there were no differ-
ences between it and the company-issued belt.43 Moreover,
before her conversation with Edmond about his back belt, she
had instructed the three employees who had been reprimanded
for putting the Union’s name on their respective company-
issued back belts to “purchase a replacement belt identical to
the company issued belt. If unable to find one locally, you may
order one through your manager, for $29. The belt you were
initially issued will then become your property outside of
42 My finding as to the date when Edmond put his initials on this belt
and first wore it in the warehouse is based on the “JAE SN’’ entry
attached to the name of James A. Edmond Sr. on the list of back-belt
entries supplied to the Union with a May 6 covering letter. This list
was offered into evidence by the General Counsel, and was received,
without objection or limitation and, in any event, was likely probative
under Fed.R.Evid. 801(d)(1)(A) and (B). I do not credit Edmond’s
testimony that he did not wear this belt in the warehouse until May 18.
43 Similarly, Jones testified to the honest opinion that the two belts
are “almost identical. They’re the same brand . . . and they looked
identical to me.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
work;’’ as to these employees, she admitted that it was a ques-
tion of the markings on the belt (“[i]t was Company property’’)
and not the belt itself. Furthermore, as discussed infra, her
explanation for later requiring Edmond to clock out and go
home in order to find his company-issued belt, after he reported
to work with his own belt, referred to disciplinary and not
safety considerations.44
Thereafter, Reynolds, who has usually left the warehouse by
the beginning of the night shift, wrote a note to Night-Shift
Warehouse Manager Grigdesby (Edmond’s immediate supervi-
sor) telling Grigdesby that Edmond was supposed to wear his
company-issued belt and not his personal belt when he came to
work that evening; and that if he did not have his company-
issued belt, Grigdesby was to send him home to get his com-
pany-issued belt and return to work. Patricia Reynolds testified
that she issued these instructions to Grigdesby because she had
given Edmond a direct order to wear his company-issued belt,
and if Edmond chose to come in without his company belt,
“then it became a matter of insubordination.’’
Meanwhile, Edmond had decided that he had a right to wear
his own belt at work, because it was identical to the company-
issued issued belts, he hardly ever wore a belt at work anyway,
and his belt bore no “cuss words’’ nor anything derogatory
about the Company. When he returned to the warehouse for his
next shift later that day, he consciously brought with him his
own belt only, which he was wearing under a flannel shirt
which was not tucked into his trousers. About a half hour after
his shift began, Night Warehouse Manager Grigdesby ap-
proached him and asked to see the belt he was wearing. Ed-
mond lifted his shirt, revealing his belt with the Union’s name
on it. Grigdesby then told him he would have to go home and
get the belt the Company had issued to him. Edmond, who
became “very irate’’ at these instructions, said that he would do
so, but that because he was in the process of moving, it would
take him some time to go home, find the company-issued belt,
and return to the warehouse. Grigdesby said, “[O]kay,’’ made
an entry on Edmond’s timecard to show that Edmond had left
work, and told him to telephone the warehouse shortly before
he expected to return with the company-issued belt, so someone
could unlock the warehouse door. Edmond initially went to his
new address, looked for the company-issued belt but could not
find it, and then went to his old address, where he found the
company-issued belt. Then, he returned to the warehouse, and
was admitted pursuant to his telephone call alerting the Com-
pany to his pending return. This errand caused Edmond to lose
about an hour and a half of work, for which period he was not
paid.
Three or four weeks later, Edmond forgot to bring a back
belt to the warehouse. Edmond asked Grigdesby whether he
had another belt which Edmond could use that evening, or
whether he would have to leave to go home and get a back belt.
Grigdesby told him not to worry about it, and just to go back to
work. At that time, Edmond was performing a task which re-
quired him to lift somewhat heavier loads than did the task
which he had been performing when he was sent home to get a
company-issued back belt.

44 In crediting Edmond, I have taken into account the inconsistency
between his prehearing affidavit that on May 18 Reynolds approached
him (as she testified) and his testimony that he was summoned to her
office; and the inaccuracy of his admittedly uncertain recollection that
he did not put his initials on the company-issued belt until after the
May 18 incident.
James Groce (also spelled “Gross’’ in the record), who
worked at the warehouse from September 1992 until his volun-
tary departure in August 1994, wrote the words “Indiana—
Jamie—IU’’ on his back belt. Between the time he received
this belt and his resignation, he wore it, in a place where others
could see it, throughout the entire day 2 or 3 days a week. No-
body from supervision told him to remove that writing from his
belt or, when he was not wearing it, to put on a back belt.45
Reynolds admittedly knew Groce to be an enthusiastic sup-
porter of Indiana University and believed the initials “IU’’ to
represent that school; Groce credibly testified that people
“pretty much’’ knew him to be an Indiana University fan be-
cause he talked about it and wore a hat with that school’s ini-
tials. Other employees put on their back belts such entries as
“10,’’ “Mo Money,’’ “Easy Money,’’ “Fishin Man,’’ “Bull-
dog,’’ “Fat Rat,’’ and “Coonbo,’’ without being reprimanded
therefor, so far as the record shows. When an employee leaves
the Company’s employ, he is expected to return his back belt to
the Company, which inks out whatever he may have written on
his belt and issues it to a new employee.
2. Analysis and conclusions
At least in the absence of special considerations, the right to
wear union insignia on the employer’s premises during working
hours is guaranteed by Section 7 of the Act. NLRB v. Republic
Aviation Corp., 324 U.S. 793, 802–803 (1945). Although there
may be some question about the extent of this right where the
insignia are displayed on clothing or equipment owned by the
employer but issued to employees for their use,46 the em-
ployer’s ownership of such clothing or equipment does not
privilege him to forbid display thereon of union insignia while
permitting display of other messages. C. Markus Hardware,
243 NLRB 903, 910–911 (1979); and Nestle Co., 248 NLRB
732, 734–737 (1980).
In the instant case, while forbidding employees in March
1993 to evince support for the Union by displaying its name on
back belts, the Company permitted employee Groce to display
his support for Indiana University, by displaying its “IU’’ logo
on the company-issued back belt worn by him, until he left the
Company’s employ in August 1994. Such disparate treatment
shows that the Company’s restrictions on union insignia were
not motivated by a desire to protect company property (that is,
the company-issued back belts) but, instead, were motivated by
a desire to interfere with the employees’ right of self-
organization. Markus Hardware, supra, 243 NLRB at 910–
911; see also NLRB v. Shelby Memorial Hospital Assn., 1 F.3d
550, 564–565 (7th Cir. 1993); and Fairfax Hospital, supra, 310
NLRB at 312. This intent is further shown by Branch Manager
Reynolds’ conduct when employee Edmond displayed the Un-
ion’s name on a back belt which was no different from the
company-issued belt but which was owned by him. The Com-
pany’s letters to employees Jakes, Jewell, and Jones had previ-
ously stated, in effect, that employee-purchased belts identical
45 My findings in these two sentences are based on his credible tes-
timony, which is not directly contradicted. In view of such testimony, I
do not credit Reynolds’ testimony that she told Groce’s direct line
manager to tell Groce to remove the “IU’’ marking, or that Grigdesby
(who was not asked about this matter) told her that Groce had removed
it. See Walton, supra, 369 U.S. at 408.
46 See Northeast Industrial Service Co., 320 NLRB 977 (1996);
NLRB v. Windemuller Electric, 34 F.3d 384 (6th Cir. 1994); see also
Machinists District Lodge 91 v. NLRB, 814 F.2d 876, 879–882 (2d Cir.
1987), reversing United Technologies Corp., 279 NLRB 973 (1986).
EBY-BROWN CO. L.P. 517
to the company-issued belts would be acceptable substitutes for
the company-issued belts on which the addressees had inked
the Union’s name, thereby undermining the Company’s seem-
ing claim, in its posthearing brief, that only company-issued
belts could be worn. Moreover, the Company had previously
taken no action when Edmond failed to wear on the job any
back belt at all. However, when Reynolds saw Edmond wear-
ing on the job his own back belt with the Union’s name, she
not only required Edmond to replace his back belt with the
company-issued back belt (which differed from his own back
belt only by the absence of the Union’s name), but also re-
quired him to return home to obtain the company-issued back
belt, thus causing him lost pay and some transportation ex-
penses; because this order to refrain from using Edmond’s own
back belt to display the Union’s name was an unlawful order,
Edmond’s failure to comply therewith cannot justify the Com-
pany in sending him home. That Reynolds’ actions were really
directed at the prounion message on the belts, rather than at
protection of company property in the form of back belts, is
further shown by the Company’s practice, when an employee
returned his company-issued back belt upon leaving the Com-
pany’s employ, of inking out whatever he may have written on
the belt and issuing it to a new employee. Manifestly, as to the
usefulness or even the appearance of such belts, it would make
no difference what the departed employee had written on it.
Further, because of this company practice, the instant case can-
not fairly be distinguished from Malta Construction Co., 276
NLRB 1409 (1985), enfd. 806 F.2d 1009 (11th Cir. 1986). The
Board there found, with judicial approval, that because there
was no evidence of any damage to company-issued hard hats
by the placement thereon of union stickers, the employer vio-
lated the Act by forbidding employees to put such stickers on
hard hats.
For the foregoing reasons, I find that the Company violated
Section 8(a)(1) of the Act by prohibiting employees from wear-
ing union insignia on their back belts, including individually
owned back belts. Further, I find that the Company violated
Section 8(a)(1) and (3) by issuing reprimands to employees
Jewell, Rakes, and Jones, on the ground that they had put the
Union’s name on their back belts; and by requiring employee
Edmond to go home during worktime, but without pay, to re-
place his individually owned back belt (which bore the Union’s
name) with the one provided to him by the Company.
IV. THE VALIDITY OF THE ELECTION
My unfair labor practice findings have tracked certain por-
tions of the Union’s unwithdrawn objections to the election.
Moreover, the Regional Director’s Report on Objections found
that the investigation of the unfair labor practice charges which
formed the basis of the March 23, 1994 complaint had dis-
closed evidence of potentially objectionable conduct which was
not specifically alleged in the Union’s objections, but which, if
proven, would serve as grounds for setting aside the election.
The election tally was 45 ballots for the Union, 51 ballots
against the Union, and 3 challenged ballots, in other words, the
result of the election might have been changed if two employ-
ees had voted for the Union rather than against it, and would
have been changed if five employees had voted for the Union
rather than against it. I conclude that the unfair labor practices
which occurred (and some of which were disseminated to em-
ployees who had not been present during their commission)
between the filing of the petition and the election, including
those which were not encompassed by the Union’s objections,
precluded the holding of a fair and free representation election
in Case 25–RD–1171, and that the election should be set aside.
Pro/Tech Security Network, 308 NLRB 655, 662 (1992), enfd.
993 F.2d 1538 (4th Cir. 1993), cert. denied 510 U.S. 1091
(1994); Framed Picture Enterprise, 303 NLRB 722 (1991); and
MD Railroad Corp., 319 NLRB 337 (1995). The ultimate dis-
position of the decertification petition is discussed infra, under
the heading “The Remedy.’’
Because the unfair labor practices in connection with writing
the Union’s name on back belts (see supra, part III,I) occurred
before the petition was filed, they are too remote in time to
form the basis of objections to the election; see infra, footnote
144.
Objection 13 alleges, “During the election, office personnel
were using the intercom instructing employees to vote `no.’’’
Such allegations were not encompassed by the complaint. As
to this objection, the credible evidence shows as follows:
The Company has a public address system which can be ac-
cessed by dialing a particular number on one of the company
telephones which are located throughout the warehouse. The
1990–1993 collective-bargaining agreement included a rule
stating, “Intercom is to be used for work-related communica-
tion only.’’ The system was installed for work-related pur-
poses, and is generally used for such purposes. However, on
occasion, company personnel use the system to express support
for local athletic teams. If an employee did this on several
occasions, stamping Supervisor Bill King (admittedly a super-
visor and company agent) would tell the employee to stop it,
and this was all the discipline that was needed.
Between about 9 a.m. and 6 p.m. on July 7, the public ad-
dress system carried about 30 announcements which urged a
vote against the Union. During this period, unit employee Jim
Dean used the intercom system on about a dozen occasions to
urge the employees to vote no. On at least two of these occa-
sions, he used the telephone on the desk and in the presence of
Supervisor King.47 On some of the occasions when a “no’’
vote, was thus urged, other employees used the intercom sys-
tem to urge a vote for the Union.48 Between 7 and 9 p.m. on
July 7, the intercom system aired both “vote yes’’ and “vote
no’’ messages. The polls were open between 2 and 9 a.m. on
July 8.
I find that the foregoing conduct in connection with the in-
tercom system did not constitute a basis for valid objections to
the election. Bro-Tech Corp., 315 NLRB 1014 (1994).

47 My findings in these two sentences are based on Teresa Goens’
testimony. For demeanor reason, I do not credit Patricia Reynolds’
testimony that she heard no such message before leaving the office at 5
p.m., or King’s testimony that his telephone was not used in his pres-
ence, that he told Dean to stop using the intercom if he was in fact
using it, and that Dean said, “[O]kay.’’
48 This finding is based on King’s testimony. For demeanor reasons,
I do not accept Teresa Goens’ testimony that no such prounion mes-
sages were aired before she left the facility at 6:30 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518
V. ALLEGED POSTELECTION UNFAIR LABOR PRACTICES
A. Alleged Unfair Labor Practices with Respect to Bonuses
and Douglas Jones’ Evaluation (Complaint Paragraphs 5(m),
(n), and (o), 6(c), (d), (f), and (g), and 7; Alleged Discrimina-
tory Route Reassignment to Arnie Ray Goens (Complaint
Paragraph 6(e))
1. Facts
a. Background
The Company has a practice, which is not set forth in the
bargaining agreement, of considering for bonuses, at 6-month
intervals, unit employees who have worked for the Company
for more than a year and who are not on probation. Patricia
Reynolds testified, and the Company’s posthearing brief con-
tends (p. 123), that bonuses are given to employees whose job
performance is “above and beyond’’ normal expectations.
However, at least in August 1993, bonuses were received by
the overwhelming majority of the drivers who were eligible for
consideration for bonuses.49 Employees who receive bonuses
are frequently, and perhaps usually, advised by the department
managers that individual bonus information is not to be dis-
closed to anyone, and that the Company considers the bonus a
confidential matter between the Company and the employee.50
This injunction does not extend to communications with em-
ployees’ spouses, or other family members, even where both of
them are employed by the Company. The complaint alleges
that among the employees who were unlawfully discriminated
against with respect to bonuses was Arnie Ray Goens, whose
wife, Teresa Goens, was likewise a bargaining unit employee;
and that among those who were favored by unlawful discrimi-
nation with respect to bonuses was Robert Burnett, whose
brother Tim is also a bargaining unit employee. The maximum
bonus which can be given at a particular time is determined on
a corporatewide basis; the record fails to show this maximum
as of August 1993 or any other date. A nonprobationary em-
ployee with a year’s service will not necessarily receive any
bonus at all. At the Indianapolis warehouse, each manager
submits to Patricia Reynolds at an appropriate time a list of his
nonprobationary subordinates with more than a year’s service,
with a recommendation as to how much (if any) bonus each
should receive. After reviewing each recommendation with the
manager and making any changes she deems appropriate, she
forwards the recommendation to Thomas Wake, who reviews it
and makes the final determination after discussing it with
Patricia Reynolds.
The Company also has a practice of issuing evaluations to
employees at approximately 6-month intervals. The evalua-
tions are made by the employees’ respective managers and, as
of August 1993, were made shortly before the bonuses were
determined. Whether and how much of a bonus is to be re-
ceived by a particular employee is determined by a rating be-

49 In August 1993, bonuses were given to about 40 unit employees
who were not drivers. As of the payroll week ending August 21, 1993,
the unit included about 79 employees who were not drivers. The record
otherwise fails to show how many nondrivers in the unit were eligible
to be considered for August 1993 bonuses.
50 The complaint does not allege that this confidentiality policy vio-
lates the Act, cf. Radisson Plaza Minneapolis, 307 NLRB 94 (1992),
enfd. 987 F.2d 1376 (8th Cir. 1993); and Handicabs, Inc., 318 NLRB
890 ( 1995).
tween one and five (with five being the highest) of several fac-
tors. However, as of August 1993, the factor “attitude’’ was
given the weight of at least 50 percent. Patricia Reynolds
credibly testified that as of August 1993, the term “attitude’’
meant the same in the employee evaluation and in the bonus
determination; I infer that at least in August 1993, substantially
the same employee conduct governed management’s “attitude’’
judgment as to both the evaluations and the bonuses. Patricia
Reynolds credibly testified that as to the August 1993 bonuses,
the employees were told at the time of their respective evalua-
tions what their respective bonuses would be.
b. Alleged unfair labor practices involving Hall’s bonus
As previously noted, in June 1993 Thomas Wake stated at
meetings of employees, whom the Company had assembled to
hear him urge a vote against the Union, that he was going to
display favoritism to people who were “Company minded’’ and
wanted to be company people, referring to those who opposed
the Union. During one of these meetings, employee Donald
Hall, who was wearing a union hat and union button, told Wake
that the absence of a retirement program and the Company’s
failure to equip trucks with CB radios showed that the Com-
pany did not really care about the employees; whereupon Wake
told him that he was on the wrong side, and that he needed to
take off his union hat, come over to the right side, and get on
the winning team.
The evaluation form used for drivers calls for a “1’’ to “5’’
rating (“5’’ being the highest) with respect to nine factors. On
August 11, 1993, Driver Manager Lodics showed Hall his
evaluation form, which Lodics had prepared about 2 weeks
earlier. Of the eight factors as to which Hall had been rated,
Hall received a “4’’ rating as to six (knowledge of work, qual-
ity of work, dependability, initiative, and judgment), a “2’’
rating as to attendance (during the 6-month rating period, Hall
had never been tardy but had been absent three times), and a
“1’’ rating as to attitude. Under “Manager’s Summary,’’ Lod-
ics had written, “Don does a good job as a driver and he is
timely. Don needs to work on his attitude . . . . Work on his
attitude and become a closer member of the Eby team.’’ The
“Manager’s Summary’’ also stated that Hall should “pay more
attention to his paper work and return more boxes,’’ the
“boxes’’ entry referring to the Company’s ongoing effort to
recycle boxes; these matters were not referred to during the
conversation.
Lodics said that Hall was one of Lodics’ best drivers, but
that Lodics did not believe in giving out five’s because nobody
was perfect. Lodics said that attitude was 51 percent of the
grade, and that Hall had received a “1’’ as to attitude “because
of the union thing, and the way that [he] felt about the Com-
pany.’’ Hall said, “So you’re basing my attitude grade on
things that you’ve heard that I’ve said, and things that I said at
union meetings?’’ Lodics shrugged his shoulders. Hall said,
“That’s what my attitude grade is based on?’’ Lodics said,
“Yes.’’ Hall had received a $200 bonus in February 1993 (the
amount recommended by then Driver Manager Doty) and Au-
gust 1992, and a $250 bonus in February 1992. Lodics said
that in August 1993 Hall would be receiving a $100 bonus (the
amount which Lodics had recommended to his superiors).51
After using a scatological expression, Hall said that it was not
51 See Patricia Reynolds’ testimony (supra, part V,A,1) as to when
employees were advised as to the amount of their August 1993 bonus.
EBY-BROWN CO. L.P. 519
“right’’ for Lodics to knock Hall’s bonus down, because of “the
way that [he] felt, and something that [he was] standing for,’’
after Lodics had said Hall was one of Lodics’ best drivers. Lod-
ics responded by telling Hall to sign his evaluation.52 The size
of the bonuses received by other employees is discussed infra,
part V,A,1,e.
Hall credibly testified to concluding from this conversation
that he was a “marked man’’ and had better find another place
to work. After giving 1 week’s notice to the Company, he
started working elsewhere on September 20, 1993, at the same
pay he had been receiving from the Company. Although he
believed his new job to be a better job than he had performed
with the Company, he credibly testified that he did not consider
these perceived improvements when he decided to seek other
employment.
My findings as to the August 11 conversation are based al-
most entirely on Hall’s testimony. Lodics testified, in effect,
that Hall’s low “attitude’’ rating was based partly on Hall’s
failure to attend quality control meetings, and that Lodics
brought this matter up during the evaluation conference. Lod-
ics testified that attendance at such meetings is voluntary. Hall
testified without contradiction that initially, the quality control
meetings were held at some time between 5 and 7 p.m. on
Mondays, and that he had to start work at 1 a.m. on Tuesdays;
and that when he pointed this out to Lodics, he said Hall would
not have to attend these meetings. Hall further testified without
contradiction that the quality control meetings were later
moved to Tuesday nights, and that he could not attend these
Tuesday meetings because his work schedule called for an
overnight run which put him in Cleveland, Ohio, on Tuesday
nights. I credit Hall’s testimony that Lodics excused him from
the Monday meetings because of his Tuesday schedule, for
demeanor reasons and because I regard as improbable Lodics’
testimony that Hall never brought up to Lodics either the unre-
solvable conflict between Hall’s work schedule and the Tues-
day meetings, or the sleep problem which was created by the
Monday meetings and his Tuesday work schedule.
Lodics also testified that Hall’s low “attitude’’ rating was
based partly on Hall’s alleged refusals to comply with Lodics’
alleged requests that Hall perform an additional run (at least
mostly on Fridays), after he had completed his regular runs.
Lodics testified that he had made such requests of Hall with
respect to at least 15 Fridays between March and the end of
July (a period which included about 22 Fridays), and that so far
as Lodics could recall, Hall did not agree to perform such a run
on any such occasion. Although Lodics testified that Hall was
first on the “checklist’’ and Lodics called him first every time,
Hall was in fact in the middle of the drivers’ seniority list. Hall
testified that Lodics had made such requests on about three
Fridays before Hall’s August 11 evaluation; that he had com-
plied with such a request on one occasion and refused on the
other two occasions; and that on both such occasions, Lodics
later told him that Lodics had been able to find a driver to run
the route in question. The Company failed to produce any re-
cords showing whether Hall ran more than his scheduled routes
during the period in question or, for that matter, whether any-
one ran more than his scheduled routes. Lodics went on to
testify that Hall’s low “attitude’’ rating was based partly on

52 The form states on its face that the employee’s signature does not
indicate agreement, but indicates only that the review was discussed
with him.
Hall’s having “badmouthed’’ the Company. However, Lodics
went on to testify that he could not remember when Hall made
these remarks (except that it was within the February–July 1993
review period), or how many times he made them (except “I
guess, five, ten. I really don’t know’’); and that all of such
comments by Hall were made in the employee breakroom
rather than to customers.
Because Lodics’ recital of lawful alleged reasons for Hall’s
low “attitude’’ rating relied partly on conduct which resulted
entirely from the work schedule to which the Company as-
signed him, partly on conduct for which Lodics had previously
given permission, and partly on conduct whose significance
Lodics exaggerated, because the Company failed to produce
records which would have shown whether Hall in fact ran an
extra route one Friday and how often extra routes were in fact
run (see infra, fn. 58), and for demeanor reasons, I credit Hall
as to Lodics’ requests that Hall perform additional runs and
Hall’s response, and also Hall’s version of his conference with
Lodics; and I do not credit Lodics’ testimony that during this
conference, the subject of the Union came up only when Hall
claimed that his union activity motivated his low “attitude’’
evaluation and Lodics denied this.
c. Alleged unfair labor practices involving Arnie Ray Goens
(1) Background
Arnie Ray Goens was the Union’s chief steward between the
Company’s 1989 acquisition of the warehouse and February
1994, when he quit for a better paying job elsewhere. In Feb-
ruary and August 1992 and February 1993 he received a bonus
of $100, $150, and $50, respectively; in each case, no other
driver who received a bonus received a lower bonus than he
did. In February 1993, then Driver Manager Larry Doty, who
was admittedly a supervisor, told Goens that if he had not given
Doty so many grievances Goens would probably have received
a better bonus than he had in fact received, but that Doty had no
problems with Goens’ work performance.53
After this interview, Goens continued to sign grievances on
other employees’ behalf, and to present them to management.
As previously noted (supra, part III,D), about a week before the
election, Copresident Thomas Wake told the employees that the
reason they had no retirement program was the money the
Company had to spend to fight the grievances being filed. Go-
ens wore a union hat to work every day, and wore a union but-
ton to work almost every day between the first week in June
and about the end of June, when the Company instructed em-
ployees not to wear prounion or antiunion buttons on deliveries.
As previously noted (supra, part III,H,1), on June 30, 1993,
Supervisor Kramer threatened to report him to the police be-
cause he was distributing union literature outside the warehouse
fence on his own time.
(2) Alleged exceptionable conduct by Goens before Lodics
became driver manager in March 1993
A letter to Goens from Patricia Reynolds dated February 13,
1993, while Doty was still driver manager and before the decer-
tification petition was filed, states as follows:54
53 The complaint does not allege that the Act was violated either
through Doty, or in connection with bonuses to Goens before August
1993.
54 My finding that Goens received this letter is based on Lodics’ tes-
timony. For demeanor reasons, I do not credit Goens’ testimony that he
never saw the letter before the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520

Recently, I learned that you may have advised a cus-
tomer of Indiana Eby-Brown Company that a strike will
occur this summer and that the customer should consider
alternative sources for its product needs.
While you certainly are free to have your own opinion
regarding the outcome of negotiations this summer, we
hope you will bear in mind that anything you say or do
which damages the Company in the eyes of the customers
also affects the job security of every employee of the Indi-
ana Eby-Brown Company.
In this regard, I bring to your attention the following
portion from the current bargaining agreement:
Article XXII
Section 1. The union, as well as the members thereof, agree
at all times as fully as may be within their power to further the
interests of the Company.
It is hoped in the future that regardless of your per-
sonal opinions and desires, you will consider how your
statements to customers may affect the Company and all
its employees, including those in the bargaining unit.

Goens testimonially admitted that during discussions with cus-
tomers about the representation election campaign, he “proba-
bly’’ told the customers that they should buy their “stuff’’ from
somewhere else.
On April 30, 1993, the Regional Director for Region 25 is-
sued a complaint against the Union, alleging, inter alia, that in
December 1992, Goens had threatened employees with repri-
sals if they did not support the Union, and that in January 1993,
Goens had threatened employees that in the event of a strike
among the Company’s employees, the Union’s agents would
assault company supervisors. The record fails to show the ul-
timate disposition of this complaint.55 There is no evidence as
to whether Goens in fact engaged in any of the conduct alleged
in this complaint.
Lodics became the Company’s driver manager in March
1993. He testified, in effect, that the employee evaluations
drawn up by him were based solely on events which occurred
after he became drivermanager.
(3) Goens’ evaluation and his failure to receive a bonus
Lodics gave Goens his evaluation on August 12, 1993. As to
the eight items which Lodics checked on the evaluation form,
Goens received a “5’’ on attendance (he had not been absent or
tardy during the period covered), a “4’’ (the highest mark Lod-
ics gave anyone) as to four items (knowledge of work, quality
of work, dependability, and judgment), a “3’’ as to two items
(quantity of work, and initiative), and a “1’’ as to attitude.
Lodics said that he had no problem with Goens’ work or his
paperwork, and that he met or exceeded what was expected of
him. Lodics went on to say that Goens had a bad attitude, and
that attitude was 51 percent of his evaluation. Goens asked
what Lodics meant by saying that Lodics had a bad attitude.
Lodics said that other drivers had told him that Goens had been
“bad mouthing’’ the Company. Goens asked who had said this.
Lodics said that he could not tell Goens. Goens asked him to

55 Lodics’ testimony that these charges “were found to be founded’’
was received only to show his mental processes. The Company’s post-
hearing brief states (p. 122) that Goens “was personally named in an
unfair labor practice charge by the Company;’’ and that the Union
agreed to settle the case by posting a notice.
bring in the driver who had said this. Lodics said that he could
not do that either. Goens asked what statements the drivers had
attributed to him. Lodics did not answer this question, but said
(in accordance with Lodics’ recommendation) that Goens
would not be receiving a bonus in August 1993.56 Of the ap-
proximately 32 drivers who were eligible for consideration for
a bonus in August 1993, 29 received a bonus.
After Goens had signed his evaluation (see supra, fn. 52) and
left the office, Lodics wrote on Goens’ evaluation, where the
form called for “Manager’s summary,’’ the words: “[Goens]
does a good job as a driver, and does very well on his paper
work but has an attitude problem. Attitude is 51 % of your job
and [Goens] has yet to learn that.’’ Where the form stated,
“Identify any areas for improvement that [employee] should
concentrate on to become more effective in his/her present
position,’’ Lodics wrote, “Attitude Attitude Attitude! Returned
boxes.’’
Notwithstanding Lodics’ “Returned boxes’’ entry on Goens’
evaluation form, Lodics testified that he told Goens during the
evaluation interview that he should “improv[e] his participa-
tion’’ in the box-return program, and that Lodics gave him a
low “attitude’’ rating partly because he “didn’t participate’’ in
that program. However, Patricia Reynolds testified that he
received a quarterly honorable mention in the box-return pro-
gram sometime in 1993, although (she testified) she could not
recall whether he received this recognition before or after his
August 1993 evaluation. Laying to one side Lodics’ testimony
about the evaluation interview, there is no evidence that Goens
was ever reproached by management in connection with the
box-return program. Moreover, the Company produced no
records to show how many boxes were brought in by Goens,
although the Company’s on-going box-return competition must
have caused it to keep records as to how many were brought in
by each driver.57 I infer that such records, if produced, would
have corroborated his testimony that he brought in 45 to 60
boxes a week58—a number which at least sometimes reached
(and, perhaps, exceeded) the Company’s “goal.’’59 Nor did the
Company produce any records showing how many drivers (if
any) achieved this “goal.’’
Lodics testified that he gave Goens a low “attitude’’ rating
partly because Goens repeatedly told him, when Goens was
leaving for the day, that Lodics should be careful driving home,
things can happen out there. Lodics testified that he interpreted
these remarks as threatening, but he testified, in effect, that he
did not know the purpose of these alleged threats. In view of
Lodics’ testimony in this respect, and for demeanor reasons, I
credit Goens’ testimony that he told Lodics to “have a nice
evening, good night, and be careful going home,’’ and did not
tell him that “things can happen out there.’’ Accordingly, and
56 See Patricia Reynolds’ testimony (supra, part V,A,1) as to when
employees were advised about the size of their bonuses.
57 Patricia Reynolds testified that since late 1993, the Company
“started tabulating the [box-return] information on a monthly basis.’’
58 Golden State Bottling Co. v. NLRB, 414 U.S. 168, 173–174
(1973); NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1269
(7th Cir. 1987); Zapex Corp., 235 NLRB 1237, 1239 (1978), enfd. 621
F.2d 328 (9th Cir. 1980).
59 The Company’s “goal’’ was 20 “points’’ per route, 2 “points’’ for
each Eby-Brown box, and 1 “point’’ each for other boxes. Goens drove
three routes a week. The record fails to show how many of the 45 to 60
boxes he returned each week were one “point’’ boxes and how many
were two “point’’ boxes.
EBY-BROWN CO. L.P. 521
because Lodics did not mention this matter on Goens’ evalua-
tion form, I do not credit Lodics’ testimony that he bought up
such remarks during Goens’ evaluation interview.
Lodics testified that Goens’ low “attitude’’ evaluation was
due partly to the fact that an accounts receivable manager who
introduced herself as “Dee Dee Knapp’’ was constantly ad-
dressed by Goens as “Fifi,’’ even though she had told Lodics
that she was upset by such conduct and had told Goens that she
did not want to be called “Fifi.’’60 Lodics testified that he
believed Goens so addressed Knapp because he believed it
annoyed her, and that he was thereby acting disrespectfully
toward her. The record fails to show that Lodics mentioned
this matter to Goens, and there is no probative evidence that
Knapp ever mentioned the matter to Goens. Goens credibly
testified to an incident in early 1993 where he referred to
Knapp as “Fifi.’’61 Shortly thereafter, according to his credible
testimony, Patricia Reynolds asked him what he had against the
Knapps, he said he had nothing against them, Reynolds asked
him to refrain from saying anything to Dee Dee Knapp, and he
said he would; there is no evidence or claim that he ever called
her “Fifi’’ again. After becoming driver manager, Lodics
“quite a few times’’ called Goens by the nicknames of “Whore
Dog’’ and “Playboy.’’62 Goens’ conduct in addressing Knapp
as “Fifi’’ was sometimes preceded by Knapp’s calling him
“Gonads’’; but this was not known to Lodics. Also, both be-
fore and during Lodics’ service as driver manager, employee
Mark Mayfield also used to call Goens “Gonads,’’ and he in
turn used to call Mayfield “Fairyfield,’’ in Lodics’ presence
and without any comment from him. In addition, Goens and
Mayfield used to call Lodics “Low Dick;’’ the record fails to
show whether this nickname was used after he became driver
manager.
Lodics testified that he gave Goens a low “attitude’’ rating
partly because of Goens’ conduct, shortly after Lodics became
driver manager in March 1993, in connection with some at least
arguably humorous cards. On this occasion, then company
employee Charlie Lodics, who is the wife of Paul Lodics, re-
marked to Goens that her husband had said Goens had a couple
of funny cards—a stud card and a union card.63 Goens there-
upon gave her two cards. The card thus described as a stud
card had been given Goens by his wife, and states, in part, “The
Stud Club, long standing member. . . . This card is carried by
sexy men all over the world.’’ The card thus described as a
union card states:

I’m the Sonofabitch from the Teamsters who Burns
Warehouses, Slashes Tires, Bankrupts Businesses . . . and
Makes $100,000 a Year! May I serve you?

Charlie Lodics read the union card and laughed. Then, she
gave the cards to a fellow employee, who in turn passed them
on to another fellow employee. Eventually, one of the em-

60 On timely objection, Lodics’ testimony is this respect was not re-
ceived to show that Knapp had in fact so advised Goens.
61 He credibly denied that he was using that name in the sense that it
would be used for his pet .
62 In addition, when Goens was wearing his hair in a pony tail, Lod-
ics repeatedly said that Goens’ hair “turned [Lodics] on.’’
63 This finding is based on Goens’ uncontradicted testimony, which
was received without objection or limitation. Moreover, Lodics, who
testified for the Company, did not deny telling his wife that the cards
were funny. Accordingly, I find that Lodics did so describe these cards
to his wife. See fn. 41, supra..
ployee recipients of these cards took them “up front.’’ There is
no evidence that Goens was ever disciplined in connection with
this incident.64
Lodics testified that he gave Goens a low rating about “atti-
tude’’ partly because Goens attended only about one of the
monthly drivers’ meetings (which are mandatory) and none of
the monthly quality control meetings (which are nonmanda-
tory). Goens testified that Lodics had excused him from attend-
ing the meetings in question, because Goens’ part-time work
schedule for another employer called for him to work during
the hours when these meetings were to be held; and that he
always asked Lodics what Goens had missed during a drivers’
meeting he had not attended. Lodics denied that Goens asked
to be excused from these meetings. I credit Goens, for de-
meanor reasons and because Goens’ testimony is uncontra-
dicted that Lodics never said anything to Goens about his not
having attended drivers’ meetings.65
Lodics testified that he gave Goens a low rating as to “atti-
tude’’ partly because employee John Ashby, who had run one
of Goens’ routes during the week of July 30, 1993, when Goens
was out sick, had reported to Lodics that some customers on
that route had told Ashby that Goens had urged them to patron-
ize other suppliers, and other customers on that route had told
Ashby that by slamming down boxes and other conduct, Goens
had indicated that the Company did not appreciate having them
as customers. On timely objection, Lodics’ testimony in this
respect was not received to show that the customers had in fact
made these reports to Ashby. Ashby, who still works for the
Company, was called by it as a witness, but was not asked
whether customers had complained to him about Goens or
whether Ashby had made such reports to Lodics. Lodics testi-
fied that although at least one of the allegedly complaining
customers was identified in the reports allegedly made to Lod-
ics about Goens’ advice that they should buy from another
company, Lodics did not ask the customer whether the report
was true (because “I don’t have any contact with customers’’)
and that Lodics did not know whether anyone else had at-
tempted to verify the report. Lodics further testified that as to
Ashby’s alleged box-slamming report, Lodics did not contact
the customer to find out whether the report was accurate; and
he testified that he did not recall if he relayed the report to any-
one else in management. Lodics testimonially attributed to
Patricia Reynolds the report that customers had said Goens
suggested they buy from another company. Reynolds testified
that the Company had received some customer complaints
about Goens, but that she did not recall the details of any of
these complaints and (in effect) that any reports to Goens about
such complaints would have been made by Lodics. Lodics
testified that he did not believe Goens was ever disciplined as a
result of the reports allegedly made by Reynolds, and there is
no evidence that any such discipline was administered. Goens
testified that he did not remember whether he had told any cus-
64 Patricia Reynolds testified to the belief that this incident was a
subject of the April 1993 unfair labor practice complaint against the
Union. That complaint alleged threats by Goens in December 1992 and
January 1993. The card incident occurred in March 1993.
65 In response to a leading question by company counsel which in-
cluded whether Lodics had mentioned the drivers’ meetings matter to
Goens during his evaluation interview, Lodics’ “yes’’ response was
stricken on objection. Immediately thereafter, Lodics was asked what
he told Goens during his evaluation interview. Goens’ response did not
include the drivers’ meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522
tomers that the Company was no good. He further testified that
lots of customers had asked him what was going on in connec-
tion with the “Union-free’’ or “Vote Teamsters’’ insignia, he
told them that the Company was going through a vote about
whether to keep the Union, the customers asked which would
be best, and he said they could buy their stuff from somewhere
else. Goens credibly denied without contradiction that he ever
slammed down boxes, or told a customer that it was an incon-
venience for him to deliver the Company’s products to the cus-
tomer. I do not credit Lodics’ testimony that he received these
reports from Ashby, for demeanor reasons, because Ashby did
not corroborate such testimony, because Lodics rejected Goens’
request to tell him what drivers had reported to Lodics about
what customers, because Lodics admittedly failed to investigate
such reports, and because the undisputed evidence shows that
any such reports would have been largely groundless.
Lodics testified that he gave Goens a low rating about “atti-
tude’’ partly because, when other drivers were running Goens’
routes, the other drivers completed them faster than Goens did.
However, Lodics was testimonially unsure whether he came to
this conclusion before preparing Goens’ evaluation. It is un-
contradicted that nobody ever told Goens that other drivers
were operating his routes faster than he, or that Goens was
running his routes too slowly, or that it took him too long to run
his routes. The Company failed to submit any records showing
how fast these routes had been run by either Goens or others
(see infra, fn. 69). As previously noted, Lodics rated Goens as
a “3,’’ which Lodics characterized as “medium,’’ with respect
to the factor “Quantity of Work/Accuracy—Errors.’’
(4) Allegedly unlawful change in Goens’ route assignment
Prior to August 1993, Goens delivered products to customers
on route 270 on Tuesdays and Wednesdays; delivered products
to customers on route 480 on Thursdays; and, on Fridays, drove
a route consisting of customer stops in Lebanon and Lafayette,
Indiana. Goens had been assigned to route 270, an overnight
route, since about 1988, and had been assigned to route 480
since about 1991.
On Friday, August 20, Goens saw a posted schedule which
stated that he was being assigned to routes other than 270 and
480. Goens thereupon approached Lodics, protested the
change, and asked why Goens had been moved to different
routes. Lodics replied that “they didn’t want [Goens] to be
burned out.’’66 Goens had never told the Company that he was
burned out on any of his routes; rather, Goens had repeatedly
told Lodics (even before Lodics became driver manager) that
Goens liked running route 270.67 Goens credibly testified that
he preferred the routes he had been driving before late August
1993 to the routes he was assigned thereafter.68

66 This finding is based on Goens’ credited testimony. When asked
whether Goens ever complained to Lodics about the route changes,
Lodics testified, “No. Not that I remember.’’ I credit Goens, for de-
meanor reasons and because it seems unlikely that he would not have
complained about an assignment change that displeased him.
67 This finding is based on Goens’ testimony. For demeanor reasons,
I do not credit Lodics’ denial.
68 Goens testified to the belief that route 270 was easier than the
route to which he was transferred because the new route required him
to take off more product than did route 270. At the hearing and in the
Company’s posthearing brief, company counsel contended that Goens’
belief was erroneous. However, it is significant that he preferred his
old route and so advised Lodics.
Ordinarily, drivers are assigned to particular routes for rela-
tively long periods of time. Moreover, Patricia Reynolds testi-
fied (although Lodics denied) that ordinarily, overnight routes
are assigned on the basis of seniority. However, drivers are in
fact transferred between routes from time to time, both perma-
nently and temporarily, and not necessarily with any considera-
tion for seniority. Lodics testified, in substance, that he trans-
ferred route 480 to John Harris (who was junior to Goens) be-
cause Lodics wanted to transfer route 270 to driver Ashby (also
junior to Goens), the route to which Goens was transferred in
lieu of route 270 called for a different number of hours than
route 270, and Lodics did not want Goens’ total hours to be
affected by his transfer from route 270.
As to why Lodics removed Goens from route 270, Lodics
testified that he took this action partly because Ashby, who had
run route 270 during the week ending July 30, 1993, when
Goens was out sick, had reported to Lodics that some custom-
ers on that route had made some adverse comments about
Goens. For reasons summarized supra, part V,A,1,c,(3), I find
that Ashby never made such reports. The week after Goens
was out sick, and after he had resumed running route 270,
Goens told Lodics that one of the customers on route 270 had
told Goens to advise his superiors to never send Ashby there
again, and that another customer on that route had said that she
would prefer not to have Ashby sent there again. In addition,
Goens told Lodics that a customer on another route which
Goens usually ran, and which had been run by John Harris
when Goens was out sick, had said that the Company should
never again send “that little idiot,’’ referring to Harris. In re-
sponse to these reports, Lodics laughed at Goens and walked
away. In addition, Goens reported to Lodics that one customer
had said that she did not like either Harris or Ashby.
Lodics testified that he transferred Goens from route 270,
and assigned that route to Ashby instead, for the further reason
that when Ashby ran that route in Goens’ absence for medical
reasons, Ashby was able to complete all the deliveries on that
route in one day (Tuesday), thereby accomplishing service the
next day after the customers’ orders; whereas Goens had been
making some of the route 270 deliveries on Wednesday. Lod-
ics testified that because of Department of Transportation regu-
lations regarding truckdrivers’ hours, when running route 270
both Ashby and Goens had had to spend Tuesday night in an
out-of-town motel and return to the Indianapolis warehouse on
Wednesday. Lodics testified that Ashby reached Indianapolis
at about 9 a.m. on Wednesday, July 27, “more than’’ or “al-
most’’ 4 hours earlier than Goens usually returned. However,
Lodics elsewhere testified that he did not really care at what
hour in the morning on Wednesday the driver chose to leave for
Indianapolis. Ashby and Goens were both paid on an hourly
basis (Goens likely receiving 35 cents an hour more), with no
pay for layover time. Lodics testified that a factor which con-
tributed to his decision to transfer route 270 from Goens to
Ashby was “probably, to save money, because [Ashby] would
get back sooner,’’ and that Ashby’s at least alleged relatively
early return advantaged the Company because Ashby (who was
a part-time warehouseman and a part-time driver) thereupon
became available for other work assignments. There is no evi-
dence that the Company ever sought to assign Goens to any
work other than work as a driver.
Ashby testified that before being regularly assigned to route
270 in August 1993 he had run it on 20 to 25 occasions since
June 1992, both before and after Lodics became driver man-
EBY-BROWN CO. L.P. 523
ager. The Company’s records show that Ashby drove route 270
on one occasion between May and August 1993, but the Com-
pany failed to offer any records to show how often he drove
route 270 before May 1993, or the hour or date of his return to
Indianapolis. Ashby testified that when he ran route 270, he
would leave the warehouse at 1 a.m. on Tuesday (as Goens also
did), and that except on one or two occasions when Ashby re-
turned to the Indianapolis warehouse about 9:30 a.m. on
Wednesday, he returned to the Indianapolis warehouse between
3:30 and 4:30 p.m. on Tuesday, the same day he left. As previ-
ously noted, Lodics testified that because of DOT regulations, a
driver who ran route 270 could not return on the same day he
left. The General Counsel offered into evidence an exhibit
which, when read in light of Goens’ testimony that when run-
ning route 270 he always laid over for the night, shows that the
last time he ran that route he clocked in at 3:42 a.m. on Tues-
day, August 17, went off duty at 5:31 p.m. that day, went back
on duty at 4:45 a.m. on Wednesday, August 18, and got back to
the Indianapolis warehouse at 2:50 p.m. that day. This exhibit
also contains such entries for Tuesdays and Wednesdays during
the period when Ashby ran route 270 until its composition was
changed, about the end of 1993. These exhibits show that on
approximately 11 occasions when Ashby probably ran route
270 between the week ending August 28, 1993, and the end of
that year, he left the Indianapolis warehouse earlier than 2 a.m.
on 3 occasions, and after 3 a.m. on 3 occasions. However, with
the exception noted in the margin,69 it is impossible to deter-
mine from the exhibits the hour or date when Ashby returned to
Indianapolis.70
By his own admission, Lodics never asked Goens to finish
all of the route 270 deliveries on Tuesdays. Lodics further
testified that so far as he knew, no customer on route 270 ever
asked Goens or the Company to deliver product on Tuesdays
and not on Wednesdays. Lodics never asked Goens why Ashby
could at least allegedly run route 270 faster than he, nor com-
plained to Goens that he was running his route too slow, or that
it took him too long to run his route.71 Lodics testified to being
unaware of any complaints from customers that deliveries were
untimely before August 1993. When giving Goens his periodic

69 As to one of these weeks, the exhibit consists of timecards rather
than payroll lists. Because both the clock-in and the clock-out times
appear to have been entered by a timeclock, I infer that on Tuesday,
November 2, Ashby returned to the Indianapolis warehouse at the
clock-out time of 5:31 p.m. Although Ashby’s driving logs would
show whether he took a layover period and the beginning and end times
of any such period, the Company is legally required to retain such logs
for only 6 months, and the record suggests that it routinely destroys
them shortly thereafter. Patricia Reynolds’ testimony suggests that the
Company may maintain and keep “trip cards’’ which show the time
that the driver leaves on and returns from his route. A charge received
by the Company on November 12, 1993, alleges that the Company had
“discriminated against [Goens] regarding employees bonuses and other
conditions of employment’’ because of his union activities. A com-
plaint which alleges discrimination against Goens in August 1993 with
respect to a bonus and reassignment of routes was received by the
Company on March 3, 1994.
70 More specifically, these records fail to show whether Ashby’s
Tuesday off-duty and Wednesday on-duty times were in Indianapolis or
at a layover point, and fail to show whether his Wednesday hours in-
volved driving, warehouse work, or both.
71 This finding is based on Goens’ testimony. I do not accept Lod-
ics’ testimony that he asked Goens why Ashby was able to return so
much earlier than Goens, for demeanor reasons and in view of Lodics’
testimony that he did not recall what Goens said in reply.
evaluation in August 1993, Lodics rated his productivity (which
included how fast he made his deliveries) as “medium’’—3 on
a scale of 1 to 5. Goens never received any customer com-
plaints with respect to the timeliness of his deliveries on route
270. Goens testified that he did not complete all the route 270
deliveries on Tuesdays because (1) as to the Clark station in
Jasper, Doty (Lodics’ predecessor as driver manager) had told
him never to deliver after 1 p.m., because there had been a big
mixup on cigarettes while Goens was on vacation, and he could
not reach Jasper by 1 p.m. on Tuesday; (2) the Crane Naval
Weapons base in Crane, Indiana, had a cutoff time for deliver-
ies of 2:30 p.m., and he could not reach Crane by 2:30 p.m. on
Tuesday; and (3) Boyle’s IGA in Petersburg wanted to receive
deliveries early in the morning, and he could not reach Peters-
burg early in the morning on Tuesday.72 Lodics testified that
he did not recall specifically whether, as of August 1993, any of
the customers on route 270 had any restrictions as to the time of
day of deliveries. Ashby testified that before August 31, 1993,
he never reached Crane later than 2:30 p.m. on Tuesday, and
never experienced any problem delivering at any customer on
route 270 because of the time of day.73
d. Alleged unfair labor practices in connection with Douglas
Jones’ evaluation and his failure to receive a bonus
(1) Background
Douglas A. Jones was hired on June 27, 1990, for the night
warehouse. The night shift is serviced by an employee whose
title is “alternate steward,’’ but whose duties are much the same
as those of the steward, who services the day shift. About Oc-
tober 1992, when the incumbent alternate steward resigned his
employment, Union Business Representative Buhle posted a
notice asking that it be signed by anybody wishing to run for
steward. Buhle had intended to conduct an employee election
to determine which of the signatories would become alternate
steward. However, Jones was the only employee who signed
the notice, and Buhle appointed him as alternate steward. He
served in this position until February 1994, when the chief
steward (Arnie Ray Goens) quit the Company’s employ and
Jones became chief steward.
Between his June 1990 hire and August 1994, Jones filed
three to five grievances on his own behalf. In November 1991,
Patricia Reynolds escorted Copresidents Thomas and Dick
Wake to Jones’ work station and said, “[Y]ou’ll note Doug, his
name appears as a witness on all the grievances of Charles Elli-
ott that’s been filed.’’74 One of the Wakes thereupon remarked
that Jones always seemed to be caught in the middle of every-
thing, and that being caught in the middle was a really bad
place for him to be. In 1992, he testified at two July arbitra-
tions, inferentially in the grievants’ favor, and represented the
grievant in a December arbitration. As steward, he handled
more than 10 grievances on behalf of the other employees.
Jones did not receive a bonus in mid-1992, the first time his
length of service made him eligible for consideration for a bo-
72 Copresident Thomas Wake testified that a significant number of
accounts want deliveries made before a particular hour (for example, by
10 a.m., by noon, or by 2 p.m.), and that it was very common for cus-
tomers to have specific requirements for delivery time.
73 Ashby testified that after route 270 was changed, about the begin-
ning of 1994, he became aware that Crane Naval Weapons would
probably not take any deliveries after 4 p.m.
74 Arnie Ray Goens’ testimony suggests that Elliott was a union
steward who had been discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524
nus, nor did he receive one in early 1993. When giving Jones
his evaluation in February 1993, Grigdesby told him that he
was not a team player, that he needed to be more company
supportive and company oriented, and that he had a bad atti-
tude.75
Charges filed by the Union on May 14 and June 28, 1993, al-
leged, among other things, that the Company was discriminat-
ing against Jones, Rakes, Jewell, and Edmond because of their
union activity and their wearing of union insignia (inferentially,
referring to the back-belt matter discussed supra, part III,1). On
June 10, 1993, Jones gave an affidavit to the Board’s Regional
Office in connection with the back-belt matter. As previously
noted, during a June 30, 1993 speech urging the employees to
vote against the Union, Thomas Wake told employees that they
had no retirement plan because of the Company’s expenses in
processing grievances (supra, part III,D). Jones served as the
Union’s observer at the election on July 8, 1993. On July 14,
1993, the Union filed objections to the election alleging, among
other things, that on July 7, Supervisor Grigdesby had ordered
Jones and employee Wilke “to stop passing out union literature
on their breaks, lunch, before and after work under threat of
termination.’’76
(2) Jones’ July 1993 evaluation, and his failure to receive a
bonus in August 1993
On July 29, 1993, Supervisor Grigdesby called Jones into
Grigdesby’s office and instructed Jones to close the door, a
somewhat unusual procedure in connection with issuing an
evaluation. Then, Grigdesby gave Jones his latest evaluation
form, which had been prepared by Grigdesby. One side of the
form calls for the supervisor to insert a check mark after each
of eight or nine factors, in one of five columns. A check in
column 2 means “Meets Majority of Job Requirements;’’ in
column 3 means “Satisfactorily Meets Job Requirements;’’ and
in column 4 means “Consistently Meets or Exceeds Job Re-
quirements.’’ Jones received a check mark in column 2 for 5
factors (quantity of work, initiative, attitude, judgment, and
advancement potential); in column 3 for 3 factors (knowledge
of work, quality of work, and dependability); and in column 4
for attendance.
After showing Jones this side of the evaluation form, Grig-
desby turned the form over and read to him Grigdesby’s entry
under “Manager’s Summary’’—namely, that Jones “seems
intent on only doing a mediocre job. He has negatively influ-
enced coworkers & has no sense of company loyalty. He is
dishonest & I feel would rather pursue other career interests.’’
Under the printed words “Identify any areas for improvement
this member should concentrate on to become more effective in
his/her present position,’’ Grigdesby had written, “Productivity
& become 100% company supportive or find an employer that
you can be happy with.’’ Jones asked Grigdesby exactly what
he meant by dishonest. Grigdesby said that Jones “had been
going around here telling everybody that [Grigdesby] wouldn’t
let [Jones] pass out union literature on and off the clock, on or

75 The complaint does not allege that the Company violated the Act
by failing to pay Jones a bonus in 1992 or in early 1993, or by any
statements to Jones in February 1993.
76 Par. 5(h) of the initial complaint herein (issued on September 21,
1993) and the subsequent complaints alleges that about July 1, 1993,
and thereafter, Grigdesby unlawfully “prohibited employees from dis-
tributing literature published by the Union, to other employees during
nonwork time in nonwork areas.’’ See supra, part III,G,b.
off company property;’’ and that Grigdesby had not said that.
Jones said, “[W]ell, that’s funny . . . because I didn’t say that,
either.’’ Grigdesby went on to say that the Company was very
fair, and from that point on, everyone was going to start out
with a clean slate. Jones said that this might be true for most
people, but that Grigdesby knew as well as Jones did that this
was not the case with Jones. Grigdesby said, “[W]ell, what do
you mean? Due to all this union business?’’ Jones said,
“[Y]es.’’ Grigdesby said that he did not care what Jones did as
long as he came to work on time and got the merchandise out
the door to the customers. Jones said that Grigdesby might feel
that way, but he was not in charge there. Grigdesby said that it
was true he was not in charge. Jones said that Patricia Rey-
nolds was Grigdesby’s boss. Grigdesby said, “[T]hat’s true,
and women never forget.’’ Grigdesby said that Jones had
burned a few bridges along the way. Jones “kind of laughed’’
and said, “[Y]es, I think I torched them.’’ Grigdesby told Jones
that he would not be receiving a bonus in August 1993,77 and
ended the conversation by saying, “[T]here’s one thing you’re
going to have to learn in life, Doug, you can’t fight city hall.’’
Although Jones told several fellow employees about his
evaluation and his evaluation interview, he merely advised
them that he had received a review which was “typical of the
type of review that he would get from the Company.’’
Grigdesby testified that the reason why he had included in
the evaluation the statement that Jones was dishonest was that
Jones allegedly had lied to the NLRB about Grigdesby’s threat-
ening him with termination, and that if Jones had not filed the
“charges’’ (inferentially, referring to the allegations in the elec-
tion objections about Grigdesby’s statements to Jones; Jones
had not yet filed any unfair labor practice charges), the “dis-
honest’’ entry would not have been in the evaluation. Grig-
desby further testified that Jones’ alleged lying to the NLRB
played no role at all with respect to the numerical marking. As
to what Grigdesby meant by the term in Jones’ evaluation “100
percent company supportive,’’ Grigdesby testified, “To be a
team player and help us as a team get the job done out there
instead of persisting on only doing a mediocre job.’’ When
asked whether he considered Jones a team player when Jones
allegedly lied to the NLRB in the charge he had filed relating to
Grigdesby, he replied, “What I’m talking about by team player
is his work performance. The way he had no interest in trying
to get the job done. He was more interested in socializing,
talking when he shouldn’t have been talking, being out of his
work area, going to the bathroom, working ultra slow.’’ Grig-
desby further testified that he did not know what Jones was
talking about when Grigdesby thought Jones should have been
working, and that Grigdesby knew Jones to be the alternate
union steward and “would imagine’’ he had occasion to discuss
grievance matters with other employees.78 Jones credibly testi-
fied that he had never told anyone that Grigdesby had threat-
ened him with discharge if he did not stop handbilling, that this
matter did not come up at all in his conversation with Grig-
desby, and that Grigdesby never did threaten him with dis-
charge.
77 See Patricia Reynolds’ testimony (supra, part V,A,1) as to when
employees were advised about the size of their bonuses.
78 Unless no steward or alternate steward was on the job, the bar-
gaining agreement required employees to submit grievances through
the steward. The bargaining agreement suggests that the shop steward
was entitled to use working time to investigate grievances, collect dues,
and transmit union messages to employees.
EBY-BROWN CO. L.P. 525
Grigdesby testified that he recommended to Patricia Rey-
nolds that Jones receive no bonus. Grigdesby testified to telling
her, with respect to his recommendation, that Jones “didn’t
show any signs of enthusiasm as to trying to get the work done
. . . that he seemed intent on just doing a mediocre job. Disrup-
tive with constant . . . conversations here and there and going to
the bathroom and just picking slow.’’ When asked whether
Grigdesby referred to Jones’ alleged dishonesty in making
Grigdesby’s bonus recommendation, Grigdesby testified, “I
really don’t know. . . . I don’t know. . . . I don’t believe so.’’
Reynolds was not asked for the specifics of her discussion with
Grigdesby about Jones’ bonus; she testified that she could not
recall the discussion she had with Thomas Wake about Jones’
bonus, and Wake was not asked about the matter.
e. Alleged discrimination in favor of Robert Burnett, Mark
Mayfield, Clyde Ervin, and Teresa Deutscher with respect to
bonuses
In February 1992, the Company’s drivers who were eligible
to be considered for bonuses received bonuses which ranged
between nothing and $300; in August 1992, their bonuses var-
ied between nothing and $300; and in February 1993, their
bonuses varied between nothing and $350.
Before Lodics drew up his recommendation as to how much
bonus (if any) each driver should receive in August 1993, he
asked Patricia Reynolds what the range of bonuses was. She
said that there were no real limits on bonuses, but that drivers
usually ranged between nothing and $350. The highest specific
amount which he set forth in his written recommendations to
Reynolds was $350. After the names of David Oyler (whose
name is also spelled “Oiler’’ in the record, and whom the com-
plaint does not allege to be a discriminatee), Robert Burnett,
Mayfield, and Ervin, Lodics merely entered question marks.
As to the content of his discussion with Reynolds about the
bonus matter, Lodics testified that he told Reynolds that there
was no definite cap or range which he had to work with, “ex-
pressed to her the thanks [he] had for these individuals, . . . how
much [he] appreciated their help,’’ and asked what was avail-
able which Lodics could give them. Reynolds testified to tell-
ing Lodics that customers had commented favorably with re-
spect to Burnett, but that she could not recall anything else
which was said by either her or Lodics during this conversation.
Eventually, they agreed to recommend a bonus of $450 to
Oyler, bonuses of $550 to Mayfield and Ervin, and a bonus of
$850 to Robert Burnett. Reynolds testified that she discussed
these recommendations with Thomas Wake; she testified that
she did not remember what was said, and he was not asked
about the matter. Wake approved all these recommendations:
such recommended bonuses were in fact paid. As to the bo-
nuses which had been granted in February and August 1992
and in February 1993, the highest amount given to any driver
had been $350 (to Robert Burnett, Ervin, Mayfield, Oyler, and
one other driver in February 1993). At the time Reynolds dis-
cussed the bonus matter with Lodics, she admittedly knew that
Burnett was the employee who had filed the decertification
petition, and knew that Mayfield and Ervin also opposed the
Union. In early June 1993, Burnett and Ervin had helped the
Company’s supervisors in hanging outside the facility at least
two banners which urged a vote against the Union. On June 30,
1993, Mayfield and Ervin, both of whom were then wearing
antiunion buttons, had parked company trucks on opposite sides
of the entrance gate to the Company’s facility, pursuant to Lod-
ics’ instructions (see supra, part III,H,1). On July 23 or 24,
Supervisors Kramer or Lodics received from employee Ham-
mer copies of a petition, signed by a number of employees and
requesting the Union to withdraw its objections to the election,
with the request that it be given to Robert Burnett, an initiator
of this activity (see infra, part V,D,1,a).
On August 13, 1993, Lodics advised Burnett that he would
receive an $850 bonus (see supra, fn. 77) and reviewed his
evaluation with him. This evaluation rates him as a “4’’ as to
all factors except attendance (where he was rated as “2;’’ he
had been absent twice and tardy once) and advancement poten-
tial, where he was rated as “3.’’79 Attached to these numerical
ratings were various notations by Lodics which included, “can
run any route faster than anyone else . . . does a good job 90
percent of the time . . . always there when I need him . . . al-
ways asking what he can do to help . . . 110% every day [after
“attitude’’] . . . needs to watch what he says.’’ On the other
side of the evaluation sheet, Lodics wrote that Burnett “is very
company minded employee . . . he has full understanding of the
Company’s success are his successes [sic]. He works well with
other [employees] and is the first to offer help. . . . Like most
drivers [Burnett] needs to pay more attention to his paperwork.
He has improved greatly but still needs to watch what he says
to customers.’’80 The record fails to include the evaluations
given to Ervin or Mayfield (or Oyler).
Lodics and Reynolds testified that they had agreed on a high
bonus for Burnett, who was at the top of the drivers’ seniority
list, partly because he was constantly offering to do work in
addition to his regularly assigned work, and accepted extra
assignments even at great personal inconvenience. Reynolds
testified that Burnett had been a “go-getter,’’ who regularly
offered to perform extra work, throughout Burnett’s tenure as a
driver. Reynolds had participated in bonus determinations of
$200 for Burnett in February 1992 (10 drivers received more),
$200 in August 1992 (nine drivers received more), and $350 in
February 1993 (the same amount was received by six others,
including Ervin, Mayfield, and Oyler). Although the evidence
shows that Respondent maintained business records which
showed as to each driver the number of hours worked and any
extra routes run, Respondent produced no such records as to
Burnett during any of the weeks covered by his evaluation.
Lodics and Reynolds both testified that they had agreed on a
high bonus for Burnett partly because he had received favorable
comments from customers, including favorable comments on
questionnaires distributed in connection with periodic company
surveys regarding customer satisfaction. These surveys were
not produced, but it is unclear whether they were still in com-
pany files at any material time.81 Because the Company has a
practice of inserting into the Employee’s personnel file any
complimentary letters from customers, but no such letters ap-
pear in Burnett’s file, I infer that no such letters were received.

79 As of March 1994, Burnett was going to be involved in training
drivers at the Company’s facility in Springfield, Ohio.
80 The copy of this evaluation which was eventually received into
evidence is Burnett’s own copy. The record otherwise fails to show
why Burnett’s signature does not appear thereon.
81 The first pleading which specifically referred to the bonus issue
was a charge received by the Company on November 12, 1993. During
the Region’s investigation of the case and pursuant to a subpoena is-
sued in early July 1994, company counsel supplied to the General
Counsel all the customer surveys which were still in the Company’s
files. No such surveys were put into evidence by any of the parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 526
The Company does not make file notes of oral compliments
from customers. Lodics was not asked to explain his notation,
on Burnett’s evaluation, that Burnett “needs to watch what he
says to customers.’’ Lodics testified that he joined in recom-
mending a high bonus for Burnett partly because Burnett al-
ways came in first or second place in the box-return recycling
program. The Company submitted no records in this connec-
tion (see supra, fns. 41, 57). Lodics gave, as an additional rea-
son, that Burnett regularly advised the sales department in writ-
ing about customer concerns. No such letters were produced.
On April 30, 1993, Burnett caused about $3500 worth of
damage to a company truck, and caused it to be tied up for 2 to
4 weeks, by driving it under an overpass with insufficient clear-
ance. Similar accidents involving company trucks had occurred
on three or four prior occasions. The Company classified the
Burnett incident as a minor chargeable accident within the
meaning of the bargaining agreement, and on May 4, 1993,
issued him a letter of reprimand therefor, which letter was not
contained in his personnel file.82 Lodics testified that this inci-
dent did not affect Burnett’s evaluation, because the incident
was not something which was done on purpose.83 According
to Lodics, in performing the evaluations he did not consider
accidents. In December 1992, truck driver Watt was involved
in a traffic accident which (Watt was advised) cost the Com-
pany about $224,000, including injury to another person, dam-
age to another vehicle, and $5000 worth of damage to the com-
pany vehicle driven by Watt. Watt was disciplined by a 2- or
3-day layoff and was transferred to another job for about 2
months. He did not receive a bonus in February 1993, when
Doty was still the driver manager.
On an undisclosed date in early 1993, Burnett was removed
from two routes because the Company’s sales department re-
ported an allegation that he had harassed a customer. The
Company investigated this allegation, but never made a deter-
mination as to whether it was true. The record fails to show
whether he was restored to the routes in question.
Lodics testified that the basis for his bonus recommendation
for Mayfield was that he went “the extra mile for the custom-
ers.’’ Lodics testified that he had received a written report and
oral reports from Sales Representative Ron Koppel and, per-
haps, oral reports from other sales representatives that Mayfield
would take it on himself to put in orders for products which
were out of stock and, where he had been unable to fill part of a
particular order because the Company was out of stock as to
that item, made sure that the item was delivered to that cus-
tomer after he had run his regular route. On timely objection,
this testimony was not received to show that Mayfield in fact
engaged in this activity. Koppel did not testify, nor was any
written report from him offered into evidence. Lodics testified
that he gave Ervin a high score on “attitude’’ because he was
“very customer oriented,’’ “was always willing and able to go
the extra mile for me,’’ volunteered to help Lodics out, and was
always willing to work beyond his usual quitting hour. The
Company failed to offer records showing how often, if ever,

82 If the accident had been classified as a major chargeable accident
under the bargaining agreement, Burnett would have been subject to
discharge.
83 The Company’s posthearing brief (p. 124) describes this incident
as an “unintentional accident.’’ I can find nothing in the record to
support the assertion in that brief (p. 124) that “employees who had had
similar accidents had not been denied bonuses if they were otherwise
eligible to receive them.’’
Ervin worked beyond his regular quitting hour between March
and August 1993.84 Lodics further testified that he gave Ervin
a high score on “attitude’’ because of oral reports from Sales
Representative Brent Shay and, perhaps, other sales representa-
tives that Ervin was helpful to him or them. Shay did not tes-
tify.
About 31 or 32 drivers were eligible for consideration for a
bonus in August 1993. Of these, Goens and one or two others
failed to receive a bonus in August 1993. Of those drivers who
did receive bonuses, about 13 (including alleged discriminatee
Hall) were considered by Lodics to be union supporters.
In August 1993, night warehouse employees Clell Groover
(not alleged to be a discriminatee) and Theresa Deutscher each
received a bonus of $550; both of them had received $350 bo-
nuses in February 1993. The highest bonus received by other
night warehouse personnel in August 1993 was $400 (Danny
Cooper), and the next highest was $350 (Brian Hammer). The
Company put in no evidence as to why Deutscher was one of
the two night warehouse employees who received the highest
bonus in August 1993. Grigdesby, who is Deutscher’s immedi-
ate supervisor, testified for the Company, but was not asked
about her. Deutscher is the daughter of Patricia Reynolds, who
testified that when bonuses were awarded in August 1993, she
believed believed that Deutscher opposed the Union. In Febru-
ary 1993, Deutscher had been one of the three night warehouse
employees who received the highest bonus ($350).
2. Analysis and conclusions
a. Alleged unfair labor practices in connection with bonuses
and Douglas Jones’ July 1993 evaluation
The evidence summarized above shows as follows: The
Company disliked operating the Indianapolis warehouse on a
unionized basis, earnestly desired to rid itself of the Union, and
hoped that the employees would vote against the Union in any
election conducted pursuant to the decertification petition filed
by employee Robert Burnett. As to how much (if any) bonus
each employee was to receive, the ultimate decision was made
by Copresident Thomas Wake, on the basis of recommenda-
tions made to him by Branch Manager Patricia Reynolds,
whose recommendations as to the night warehousemen and the
drivers were based on those made to her by Night Warehouse
Manager Grigdesby and Driver Manager Lodics, respectively;
all four of these members of management had participated in
the Company’s preelection unfair labor practices. During the
preelelction campaign, Thomas Wake had publicly advised an
assembly of employees that Wake was going to display favor-
itism toward the employees who opposed the Union, and told
Hall (who was wearing union paraphernalia and had attributed
to company indifference toward employees’ welfare the ab-
sence of a retirement plan) that Hall was on the wrong side.
Further, Wake publicly advised an assembly of employees that
the absence of a retirement plan was in fact due to the expense
the Company had undergone in opposing grievances; the bar-
gaining agreement required all grievances to be filed by the
steward (Arnie Ray Goens) or the alternate steward (Jones);
Goens and Jones processed a number of grievances and re-
ceived no bonus; Hall received the lowest bonus received by
any driver who received a bonus, although his immediate su-
84 An exhibit introduced by the General Counsel shows that during
the payroll week ending August 28, Ervin worked about 10 hours of
overtime during a 4-day week.
EBY-BROWN CO. L.P. 527
pervisor, Lodics, told Hall that he was one of Lodics’ best
drivers; Jones was introduced by Patricia Reynolds to the
Wakes in November 1991 as a witness on several grievances;
and one of the Wakes thereupon told Jones that he seemed to be
caught in the middle of everything, and being caught in the
middle was a really bad place for him to be. Moreover, in Feb-
ruary 1993, then Driver Manager Doty (Lodics’ predecessor in
that position) told steward Goens that if he had not filed so
many grievances, he would probably have received a better
bonus than he in fact received. Furthermore, at the hearing
Lodics included, as a reason for giving Goens a low evaluation,
an allegation refuted by the Company’s own evidence (includ-
ing the evaluation form prepared by Lodics with respect to
Goens)—namely, Goens’ alleged nonparticipation in a box-
return program in which he had in fact received honorable men-
tion.
The evidence further shows as follows: At least half of the
factors leading to the bonus determinations consisted of the
respective employees’ “attitude,’’ a factor which meant the
same in bonus determinations and in employee evaluations.
Further, during the period here in question, employees were
advised during their evaluation interview how much (if any)
bonus they would receive. During the same interview when
Hall was advised that he would receive only a $100 bonus (the
lowest amount received by any driver who received a bonus),
Driver Manager Lodics showed Hall his evaluation (which
gave him Lodics’ highest rating as to six of the eight listed
factors), and told him that “attitude’’ was 51 percent of the
grade, and that Hall’s lowest possible grade as to “attitude’’
was based on his union activity. In addition, when giving Go-
ens his evaluation, and telling him that he would receive no
bonus, Lodics admitted that he had no problem with Goens’
work, but that 51 percent of his evaluation was “attitude’’ and
Goens had a bad “attitude’’ (the evaluation form stated that
Goens should concentrate on improving his “attitude attitude
attitude!’’); Lodics’ conference with Hall on the previous day
shows that by “attitude’’ Lodics meant union sympathies, and
Goens was the chief steward and in management’s presence
had distributed union literature at the union rally about 6
weeks’ earlier. Of the 31 or 32 drivers who were eligible for
consideration for a bonus, Goens was one of only 2 or 3 drivers
who received no bonus; and the lowest bonus received by any
driver, $100, was received by Hall and three others. When
Night Warehouse Manager Grigdesby gave Jones his July 1993
evaluation form, and told him that he would receive no bonus,
Grigdesby read to him an entry on the form which alleged that
Jones was “dishonest’’; attributed this entry, in effect, to an
inaccurate version of Jones’ report in support of the Union’s
objections to the election—namely, that Grigdesby had alleg-
edly ordered Jones “to stop passing out Union literature on [his]
breaks, lunch, before and after work;’’ and showed Jones an
entry, on his evaluation form, associating his alleged dishonesty
with a preference for getting a job elsewhere.85 Further, during

85 Although company counsel was supplied with Jones’ prehearing
statements to the Board for use in cross-examination, there is no evi-
dence inconsistent with Jones’ representation to Grigdesby that Jones
had not accused him of forbidding distribution of union literature off
the clock and off company property. Although Jones testified that
Grigdesby did not threaten Jones with discharge for distributing litera-
ture, whereas the Union’s objections alleged that Grigdesby threatened
discharge for this reason, the objections alleged that Grigdesby had
issued no-distribution “orders’’ to Wilke as well as Jones. Because
this interview, Grigdesby tacitly admitted that Patricia Rey-
nolds entertained an unalterable dislike of then alternate Stew-
ard Jones because of his union activity;86 and showed Jones
entries, on his evaluation form, that Jones should “become
100% company supportive or find an employer that [he] could
be happy with’’—in context, that Jones should abandon the
Union or quit his employment with the Company.
In addition, the record shows as follows: driver Robert Bur-
nett, who is the petitioner in the decertification proceeding,
received an $850 bonus in August 1993; this bonus exceeded
by $300 the highest bonus awarded since at least February
1992, and exceeded by $500 the highest bonus given any other
driver between February 1992 and February 1993. Burnett
received this bonus (whereas Hall received only $100) after
receiving a numerical evaluation which was identical to Hall’s
except for “attitude,’’ where Burnett received the highest rating
Lodics gave (a “4’’) and Hall received the lowest rating possi-
ble (a “1’’); further, Burnett received his $850 bonus notwith-
standing a chargeable April 1993 accident which caused $3500
worth of damage and several weeks’ inactivation of his truck,
and which consisted of driving his truck under an overpass with
insufficient clearance. In my view, the Company’s explanation
for admittedly disregarding this accident in determining the size
of Burnett’s bonus adds to the weight of the General Counsel’s
case. More specifically, I regard as inherently implausible
driver manager Lodics’ testimony that in performing drivers’
evaluations he did not consider accidents, and that this accident
did not affect Burnett’s evaluation “because it was something
that was not done on purpose.’’ I note that the bargaining
agreement differentiates between “willful damage to equip-
ment,’’ which is subject to discharge for the first offense, and a
“minor chargeable’’ accident,87 which is subject to a reprimand
for the first offense, and is not subject to discharge until the
third offense. I note, moreover, that the evidence refutes the
Company’s claim that Burnett received written compliments
from customers, another explanation which the Company has
tendered for his receiving a large bonus.

Grigdesby would have been in error in believing that Jones had mis-
stated to the Board Grigdesby’s remarks about distribution of union
literature, I need not and do not consider whether any such misstate-
ments would have affected the statutory protection ordinarily afforded
to employee statements to the Board in support of objections to an
election (see infra, fn. 88). See NLRB v. Burnup & Sims, 379 U.S. 21,
22–24 (1964); and Bituma Corp., 314 NLRB 36 fn. 3 (1994).
86 Although Grigdesby denied that Jones’ statements to the Board af-
fected his numerical score on his evaluation, Grigdesby did not deny
that such statements affected his recommendation that Jones receive no
bonus. My inference that such perceived “dishonesty’’ did affect Grig-
desby’s recommendation is based on Grigdesby’s remarks during the
interview regarding Jones’ evaluation, and on the likelihood that super-
visors’ recommendations as to their subordinates are affected by re-
sentment of such subordinates’ perceived unjustified unfavorable
comments about them. Because Jones’ failure to receive a bonus was
due partly to Grigdesby’s recommendation to Patricia Reynolds, the
absence of evidence that she knew about Grigdesby’s resentment of
Jones’ statements to the Board is immaterial to the legality of Jones’
failure to receive a bonus. NLRB v. E.D.S. Service Corp., 466 F.2d
157, 158 (9th Cir. 1972); and Boston Mutual Life Insurance Co. v.
NLRB, 692 F.2d 169, 171 (1st Cir. 1982), and cases cited.
87 The Company’s evidence indicates that at least where no personal
injury resulted, the difference between a “minor chargeable’’ and a
“major chargeable’’ accident depends at least mostly on the dollar
amount of the damage. However, the critical amount has never been
specifically determined.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 528
Finally, the record shows as follows: In August 1993, May-
field and Ervin were given higher bonuses than any of the other
drivers except Burnett and Oyler, and higher than anyone had
received during, at least, the three preceding bonus periods.
The Company admittedly believed that Mayfield and Ervin
opposed the Union; Ervin had assisted Burnett and manage-
ment in hanging antiunion banners; and while wearing “vote
no’’ buttons, Ervin and Mayfield had assisted in the truck-
parking procedure which Patricia Reynolds had devised in re-
sponse to the union rally.
For the foregoing reasons, I conclude that the General Coun-
sel has shown, by a preponderance of the evidence, that the
Company lowered Jones’ evaluation, withheld a bonus from
Jones and Goens, and lowered Hall’s bonus, at least in part
because of their union activity and because Jones had given a
statement to the Board in support of the Union’s objections to
the election.88 I further conclude that the General Counsel has
shown, by a preponderance of the evidence, that the Company
gave relatively high bonuses to Burnett, Ervin, and Mayfield at
least in part because of their activity in opposition to the Union.
Upon such a showing, the Company can avoid being adjudged
a violator of the Act only if the Company can prove by a pre-
ponderance of the evidence that its actions were based on le-
gitimate reasons which, standing alone, would have induced the
employer to take the same personnel action. NLRB v. Advance
Transportation Co., 979 F.2d 569, 574 (7 th Cir. 1992); Care
Manor of Farmington, Inc., 318 NLRB 725 (1995); American
Ambulette Corp., 312 NLRB 1166, 1169 (1993); Manno Elec-
tric, 321 NLRB 278 fn. 12 (1996).89 The Company has failed
to sustain this burden.
As to Hall, the Company contends that he received a low bo-
nus partly because the number of boxes he brought in for recy-
cling purposes was “below goal.’’ However, the Company
produced no evidence whatever as to how many other drivers
failed to meet the Company’s “goal,’’ “which was 20 “points’’
per route (2 “points’’ for each Eby-Brown box and one “point’’
each for other boxes). Moreover, the Company brought in no
records to show how many “points’’ were credited even to Hall,
although the Company’s on-going box-return competition must
have caused it to keep records as to how many “points’’ were
credited to each driver; rather, the Company relies solely on
Hall’s testimony that he “would assume [as] I recall’’ he
brought back three or four boxes a day (he was not asked

88 As the Company does not appear to question, to lower Jones’
evaluation, and/or deny him a bonus, because he had given a statement
to the Board in support of the Union’s objections would violate Sec.
8(a)(4). See Pinter Bros., Inc., 233 NLRB 575 (1977); Heritage Nurs-
ing Homes, 269 NLRB 230, 234 (1984); Climate Control Corp., 251
NLRB 751, 752–754 (1980); Fry Foods, Inc., 241 NLRB 76, 89
(1979), enfd. 609 F.2d 267 (6th Cir. 1979); and Operating Engineers
Local 302, 299 NLRB 245, 249–250 (1990).
89 Accord: NLRB v. Horizon Air Services, 761 F.2d 22, 27 (1st Cir.
1985). In Fields v. Clark University, 817 F.2d 931, 936–937 (1st Cir.
1987), the First Circuit pointed out that NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 400–401 (1983), approved the Board’s
position that where there is proof of a forbidden motive with respect to
an employer’s personnel action, as to whether the employer would
nonetheless have taken the same action for lawful reasons the burden of
persuasion rests with the employer. The First Circuit stated, in effect,
that Transportation Management had thereby overruled the First Cir-
cuit’s contrary position in NLRB v. Wright Line, 662 F.2d 899, 905 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), on which the Company
relies in its brief to me (p. 114).
whether they were one-point or two-point boxes) and that he
was “sure that other drivers brought in more.’’ I infer that the
Company’s box-return records, if produced, would have shown
either that Hall in fact met the Company’s “goal,’’ or that this
“goal’’ was not attained by a significant number of drivers who
did receive bonuses (see supra, fns. 41, 57). The Company also
relies upon Hall’s testimony that occasionally, he failed to re-
turn a few signed receipt stubs. However, there is no evidence
that this particular alleged shortcoming was mentioned to him
at the evaluation meeting, his testimony is undenied that “occa-
sionally, there would be a few stubs missing from every
driver,’’ and Burnett received a bonus of $850 (as compared to
Hall’s $100) even though Burnett’s evaluation, like Hall’s,
stated that the evaluated employee needed to pay more attention
to his paper work.
The Company contends that Driver Manager Lodics gave
Goens a low “attitude’’ rating partly because he allegedly failed
to participate in the Company’s box-return program. However,
this contention not only is unsupported by any company records
offered into evidence (see supra, fns. 41, 57), but also is contra-
dicted by the evaluation prepared for Goens by Lodics, and by
Patricia Reynolds’ testimony that he received “honorable men-
tion’’ for his box-return performance.
The Company further contends that the driver manager who
manages Lodics gave Goens a low “attitude’’ rating partly be-
cause of complaints from customers about him and and because
he failed to attend certain drivers’ meetings. However, the
credible evidence shows that Lodics had received no such com-
plaints and had excused Goens from attending such drivers’
meetings. The Company further contends that Lodics gave
Goens a low “attitude’’ rating partly because he repeatedly
addressed Dee Dee Knapp as “Fifi’’ over her objections. How-
ever, there is no evidence that Lodics ever mentioned this mat-
ter to Goens, and both Lodics and other drivers (as well as
Knapp herself) had repeatedly addressed other company per-
sonnel by using derogatory and even obscene nicknames. The
Company also contends that Driver Manager Lodics gave Go-
ens a low “attitude’’ rating partly because, at the request of
other employees including Driver Mmanager Lodics’ wife,
Goens had passed around a couple of cards which Driver Man-
ager Lodics himself regarded as funny, a reaction shared by
Mrs. Lodics. However, there is no evidence that Goens was
ever disciplined in connection with this incident. Further, the
Company contends that Lodics gave Goens a low rating as to
“attitude’’ partly because his routes were completed more rap-
idly by driver Ashby. However, it is uncontradicted that Lodics
never mentioned this matter to Goens, although an evaluation
meeting would appear to be a particularly appropriate occasion
on which to discuss any such problem. Furthermore, as dis-
cussed supra, part V,A,1,c,(4), the Company’s evidence in at-
tempted support of its claim about the relative promptness of
Goens and Ashby has various peculiarities. In addition, Lodics
in effect admitted that any shortcoming about prompt comple-
tion of routes would be reflected in the rating attached to the
factor—which the evaluation form listed separately from “atti-
tude’’—of “quantity of work/accuracy—errors’’ where Goens
received a “3’’ (medium). Finally, the Company’s posthearing
brief at least implies (p. 122) that Goen’s low “attitude’’ rating
had something to do with misconduct which was attributed to
him in unfair labor practice complaints issued against the Union
by the Regional Office. However, these complaints alleged
misconduct by Goens in December 1992 or January 1993, and
EBY-BROWN CO. L.P. 529
Lodics testified that the evaluation forms filled out by him were
based solely on events which occurred after he became driver
manager in March 1993.
As to Jones, although the Company contends that he would
have been denied a bonus anyway (and, the Company at least
impliedly contends, would have been given a similar evaluation
because of his allegedly slow work), even Grigdesby’s descrip-
tions of Jones’ allegedly slow work—both on his evaluation
forms and on cross-examination—connected these alleged defi-
ciencies to his grievance and other union activity. Moreover, I
note that the only other witness who was asked about Jones’
work—working foreman, Hammer, who opposed the Union
and “by no means’’ liked Jones—testified that Jones not only
worked at a steady pace, but also worked at a pace which re-
quired the Company to transfer other employees to work sta-
tions beyond Jones’ work station, in order to keep up with him.
For the foregoing reasons, I find that the Company violated
Section 8(a)(3) and (1) of the Act by denying Goens a bonus
and giving Hall a lower bonus than he otherwise would have
received, and violated Section 8(a)(3), (4), and (1) by giving
Jones a low evaluation and denying him a bonus.
Furthermore, I find that the Company violated Section
8(a)(1) of the Act when Lodics told Hall that because of his
union activity his evaluation had given him the lowest possible
rating as to “attitude,’’ and concomitantly told him that he was
receiving a bonus of only $100 even though his evaluation gave
him Lodics’ highest possible rating as to all other factors.90
Unlike the Company (Br. 119, fn. 27), I believe this evidence is
encompassed by paragraph 5(n) of the complaint, which alleges
that Lodics “told employees that the [Company] had awarded
smaller bonuses than they otherwise would have received, be-
cause said employees joined, supported and assisted the Un-
ion.’’ Also, unlike the Company, I believe that Lodics’ state-
ment to Goens that he would receive no bonus, and (concomi-
tantly) that he had received a low rating on his evaluation be-
cause of his “attitude,’’ is encompassed by paragraph 5(o) of
the complaint, which alleges that Lodics “told employees that
[the Company] had not awarded certain employees any bonus
because they had joined, supported, and assisted the Union.’’
However, I do not find that Lodics’ statement to Goens violated
Section 8(a)(1). While the record as a whole does show that
whether an employee received a bonus turned largely on his
“attitude,’’ that by “attitude’’ Lodics meant union activity, and
that Goens may well have suspected that Lodics meant this, the
record fails to show that Goens knew about circumstances
which would reasonably have caused him to reach this conclu-
sion. See Van Leer Containers v. NLRB, 943 F.2d 786, 790
(7th Cir. 1991).
In addition, I find that the Company violated Section 8(a)(1)
when Grigdesby told Jones that he was receiving a reduced
evaluation because of his union activity, and solicited him to
resign his employment because of such activity. See cases
cited supra, footnote 13.
Further, I find that the Company has failed to sustain its bur-
den of showing that Burnett, Mayfield, and Ervin would have
received the same level of bonuses which they did in fact re-
ceive, even if they had not engaged in antiunion activity. The
company witnesses’ rather generalized testimony about the
alleged virtues of these three antiunion employees was not sup-

90 See Sertafilm, Inc., 267 NLRB 682, 687 (1983), enfd. 753 F.2d
313 (3d Cir. 1985).
ported by company records (including, as to Burnett, written
compliments from customers and records of box returns, as to
which he allegedly excelled) or testimony from company per-
sonnel who allegedly made favorable reports about Mayfield
and Ervin. However, I conclude that the General Counsel has
failed to show that Teresa Deutscher’s relatively high bonus
was partly motivated by her known antiunion views. It is true
that her bonus resulted partly from the recommendations of
Grigdesby and Patricia Reynolds (her mother), both of whom
had been instrumental in the discriminatory withholding of a
bonus from Jones. However, the record is barren of any evi-
dence that Deutscher was particularly active against the Union,
another night warehouse employee (not alleged to be a dis-
criminatee) received as high an August 1993 bonus as she did,
and both of them had been among the three employees who
received the highest bonuses during the previous bonus period.
The complaint will be dismissed as to Deutscher. Nevertheless,
I note that the Company has put in no evidence whatever as to
the reasons for her relatively high bonus.91
b. Goens’ transfer to new routes
In addition, the General Counsel has shown by a preponder-
ance of the evidence that Chief Steward Arnie Ray Goens was
transferred between routes at least partly because of his union
activity. Thus, the management representative who decided on
this transfer, Driver Manager Lodics, had also participated in
the unlawful decision to deny Goens a bonus even though Lod-
ics admittedly believed that Goens did a good job as a driver
and did very well on his paper work. Further, Lodics knew that
Goens liked running route 270, from which Lodics transferred
him, and gave him as the sole reason for the transfer the claim
that “they didn’t want [Goens] to be burned out’’—an assertion
which had no basis whatever in fact and on which the Company
did not rely before me. Furthermore, after removing Goens
from route 270 over his protests, the Company transferred that
route to Ashby, although customers had complained about him
when he was performing it while Goens was out sick. In addi-
tion, although the Company contended before me that Ashby
was put on the route because he had been able to complete it on
Tuesdays whereas Goens had performed part of it on Wednes-
days, the Company did not so advise Goens, who might have
been able to explain his own performance and/or to equal
Ashby’s alleged performance; for example, Goens’ failure to
make certain deliveries on Tuesday may have been based on
outdated information concerning these customers’ require-
ments. Indeed, Lodics testified that he had never asked Goens
to finish all of the route 270 deliveries on Tuesday, nor knew of
any requests from customers to deliver products on Tuesdays
and not on Wednesdays. Finally, according to Lodics’ testi-
mony, Ashby’s claimed return from route 270 to the Indianapo-
lis warehouse without an intervening layover could have been
achieved only if Ashby had disregarded DOT regulations. In
short, as shown, the Company’s explanations for putting Ashby
on route 270 in place of Goens, far from satisfying the Com-
pany’s burden of showing that Goens would have been re-
moved therefrom even if he had not engaged in union activity,
reinforce the evidence that he was transferred for this reason.
Accordingly, I find that Goens’ transfer from route 270 violated
Section 8(a)(3) and (1) of the Act. Moreover, because his
91 No contention is made that the size of her bonus was affected by
her kinship to Patricia Reynolds.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 530
transfer from route 480 was admittedly due to his transfer from
route 270, his transfer from route 480 likewise violated Section
8(a)(3) and (1).
B. Further Alleged Unfair Labor Practices Directed to Union
Steward Jones (Complaint Paragraphs 5(p), and 6(h–r))
1. Background
In March 1991, Douglas A. Jones incurred a lumbosacral
strain while lifting coolers on the job. Night Warehouse Man-
ager Grigdesby, who was then Jones’ immediate supervisor,
sent him to the Methodist Health Care Centers, Inc., a clinic
which is near the Company’s Indianapolis facility and to which
the Company sends all employees who are injured on the job,
and authorized payment by the Company for his visit. The ex-
amining physicians from Methodist stated that for a 2-week
period, Jones’ bending and stooping should be reduced, and the
weight which he lifted should be limited (10 to 15 pounds at the
beginning of this period, and 25 pounds toward the end). Upon
incurring this injury, he missed about 1 week’s work. Eventu-
ally, he received from the Company’s workmen’s compensa-
tion insurer, workmen’s compensation totaling about $62.92
2. The September 1993 leave-early incidents
a. The September 7 incident and the letter of reprimand dated
September 12
Jones has had back problems since March 1991. In the late
winter or early spring of 1993, his back pain became more per-
sistent, and by the summer of 1993, his back pain reached the
point where the pain was radiating into his hips and back and
numbing his left leg, and he could not stand on his feet for
many hours at a time. Jones’ job as a warehouseman kept him
on his feet for up to 15 hours a day, and required him to bend,
stoop, and lift. On August 13, 1993, he consulted his personal
physician, Dr. R. Daniel Pollom (whose surname is variously
spelled in the record), about the problem. The tests initially
scheduled by Dr. Pollom came back negative.
During a consultation on August 27, 1993, Dr. Pollom
scheduled Jones for an “MRI’’ to take place about September 3.
During this consultation, Jones said that he was required to
wear a back belt at work and the belt was irritating his back
more than helping it. Dr. Pollom told Jones not to wear any
restrictive belts until the MRI results came down, which Dr.
Pollom said would take a week or two, because he did not
know what was wrong and, if Jones had a pinched nerve, the
belt would only make it worse.93 About August 27, Jones gave
Grigdesby a note signed by Dr. Pollom which was dated Au-
gust 27 and said (emphasis in original), “Diagnosis Neuralgia
Parestheticia. Do not wear [weight] belt or constricting belts

92 My findings in connection with Jones’ 1991 injury and his receipt
of workmen’s compensation are based on his testimony after being
shown the Company’s records. Before being shown these records, he
testified in 1994 that in connection with this injury, he did not file a
claim against or seek a recovery from the Company, on the ground that
his back problems were the result of an on-the-job injury. After re-
viewing the Company’s records, Jones testified that he understood
counsel to be asking whether Jones had hired an attorney and gone in
front of a workmen’s compensation board. There is no evidence that in
connection with this matter, Jones himself had any contact with the
Indiana workmen’s compensation board. In assessing his credibility, I
have taken this matter into account.
93 During this consultation, Jones said that his back belt was too
small.
around waist for one week.’’ Patricia Reynolds admittedly read
this note about August 28; for demeanor reasons, I do not credit
the testimony of Reynolds (a very intelligent woman) that this
note raised no question in her mind with respect to Jones’ hav-
ing some type of medical problem relating to his back. When
giving this note to Gridgesby, Jones stated that he was not go-
ing to wear his back belt. Grigdesby acknowledged that Jones
had handed him the note, and said, “Okay.’’ Jones’ MRI ex-
amination was conducted on September 3, but he did not re-
ceive a diagnosis based thereon until September 17. Mean-
while, he did not wear his back belt.
Warehouse employees on the night shift, on which Jones was
working at this time, start work at 6 or 7 p.m. and are expected
to continue working until all the trucks are loaded, the drivers
are out on the road, and management calls a “general dis-
missal.’’ On September 6, 1993, Jones clocked in at 7 p.m.
Shortly after 7 a.m. on September 7, and before general dis-
missal had been called, Jones told Assistant Night Warehouse
Manager Troy Payne (who was then in charge, Grigdesby hav-
ing left for the day) that Jones was suffering extreme back pain
and could no longer stand on his feet. Payne said, “[I]f you
gotta go, you gotta go.’’ Payne did not comment about whether
he believed that Jones’ back hurt, said nothing about needing a
doctor’s excuse, and did not say that Jones would receive a
reprimand. Jones clocked out at 7:16 a.m.
At 6 a.m. on September 15, 1993, Grigdesby gave Jones,
without comment, a letter of reprimand, dated September 12
and signed by Grigdesby, which was at least purportedly based
on Jones’ having left work on September 7 before general dis-
missal was called by management. The letter stated that Jones’
conduct violated article V, sections 1 and 2 of the bargaining
agreement, which provisions state, in part, “Employees have an
obligation to work necessary overtime, subject to being excused
or subject to their unavailability for good cause.’’ In addition,
the letter states that Jones’ conduct violated certain contractual
provisions (appendage B, rules and regulations, sec. 3, conduct
F) which call for discipline for “Failure to carry out orders
from qualified personnel.’’ Upon receiving the letter of repri-
mand, Jones asked why he was being written up. Grigdesby
said that Jones had left before the general dismissal. Jones said
that he was awaiting the results of an MRI, and that he had left
early because he had severe back pain. Further, he asked what
his orders were which (according to the letter of reprimand) he
was being disciplined for failure to carry out, and said that he
was not failing to carry out any orders. So far as the record
shows, Grigdesby did not reply. During this conversation,
Grigdesby said nothing about a doctor’s excuse.
b. The September 17 incident, the letter of reprimand dated
September 17, and the September 28–30 disciplinary layoff
In the morning of September 17, 1993, Jones approached
Assistant Night Warehouse Manager Payne, who at that time
was in charge. Jones said that his back was “killing’’ him and
he had to rest his back and get off his feet. Payne said that he
could not authorize Jones to leave, but neither could Payne tell
him that he could not leave. Jones said, “[T]hat’s cool. . . . I’m
going to go ahead and leave right now.’’ Payne said, “Okay.’’
Jones credibly testified to the opinion that at that time, it ap-
peared that the shift’s work would be finished, and general
dismissal called, in 30 to 45 minutes. Jones clocked out at 5:44
a.m., and went out into the parking lot. Then, he noticed that
the gate from the parking lot to the street was locked, and that
EBY-BROWN CO. L.P. 531
two cars were then waiting to get in and one to get out.94
Jones, who does not have a key to the parking lot gate, noticed
that fellow Union Steward Arnie Ray Goens, who as a truck-
driver did possess a key to that gate, was sitting with his wife,
employee Teresa Goens, in the Goens’ personally owned van,
which was parked in the company parking lot. Jones tapped on
the window, whereupon steward Goens opened up the side door
of the van. Jones, who knew that steward Goens had a key to
the gate, asked him to unlock it. Goens, who was preparing his
pretrip paperwork, replied that if Jones would wait a few min-
utes until it was finished, Goens would unlock the gate and they
could all leave at the same time. Jones thereupon entered the
van, sat down, and remarked that it really felt good to get off
his feet. Steward Goens asked Jones whether his back had been
bothering him; he said yes. Jones handed to Teresa Goens, who
was sitting in the driver’s seat, a written reprimand (at least
purportedly for “ultra slow productivity’’ and socialization)
which Grigdesby had given him at the beginning of the shift
(see infra, part V,B,3). After reviewing the letter of reprimand,
she gave it to her husband. As he was reading it, Payne walked
by the van, jingling his keys at Jones, and motioned Jones to-
ward the gate. Then, Payne unlocked the gate, whereupon
Jones exited the Goens’ van, got into his car, and left the prem-
ises. Inferentially, Payne permitted the waiting cars to pass
through the gate, and then relocked it. Meanwhile, Steward
Goens walked over to the company delivery truck which he
was supposed to drive that day, drove it out of the parking
space it had occupied while being loaded, unlocked the gate to
permit his wife to drive the Goens’ van out, relocked the gate,
returned to the building to hit his trip ticket, put his two-
wheeled cart into the truck, unlocked the gate, pulled the truck
through the gate, relocked it, and drove the truck away. He
drove away at about 6 a.m., and before the night shift had be-
gun to exit the building upon the calling of general dismissal.
Jones was in the Goens’ van for less than 10 minutes.
My findings in the preceding paragraph are based upon a
composite of credible parts of the testimony of Arnie Ray Go-
ens (based partly on his trip logs, which he had retained for his
own files) and Jones. Payne was no longer working for the
Company at the time of the hearing, and he did not testify.
Grigdesby, who was Jones’ regular supervisor during this pe-
riod, testified for the Company, but was not asked what he was
told about this incident.
After leaving work before general dismissal (but after work-
ing 14 hours) on September 17, a Friday, Jones went to Dr.
Pollom’s office. When Jones arrived, the receptionist gave him
a note, signed by Dr. Pollom, which restricted Jones to an 8-
hour shift. Jones told her that the 8 hours “would not work’’
because of the language in the union contract. She then
brought him into the training room, where Dr. Pollom brought
him into the examining room, sat him down, and (without ex-
amining him) told him that he had a disc bulge in the lumbar
region, fifth vertebra, and would probably have to go through
some type of physical therapy. Dr. Pollom asked Jones what he
needed for his employer. Jones said that the union contract
called for regular shifts of 10 hours, and that for financial rea-
sons he needed the overtime pay contractually specified for
work beyond 10 hours a shift. Dr. Pollom asked whether most
of Jones’ problem with his job came from his lifting or from

94 For security purposes, the gate is locked between 8 p.m. and 5:30
or 6 a.m.
something else. Jones said that his back belt was too small and
too constrictive, but that the lifting of the product did not ag-
gravate his back nearly as much as being on his feet for as long
as 14 or 15 hours a shift. Dr. Pollom said that he would write a
note limiting Jones to 10 hours a shift. Jones asked Dr. Pollom
to post date the note to September 22 (the following Tuesday),
because Jones would probably be expected to work more than
10 hours on Monday and Tuesday (which were heavy days), he
was afraid of receiving another disciplinary layoff if he left
before general dismissal, and he needed to receive some over-
time pay. Dr. Pollom destroyed the note which the receptionist
had shown to Jones, and gave him a note, post dated September
22, whose contents are described, infra.
About 7 p.m. the following Monday, September 20, Grig-
desby asked Jones whether he had a doctor’s note for leaving
early on September 17. Jones untruthfully said that he did not
then have a note, that he was awaiting the MRI results, and that
when he got those results he would provide that documentation
to the Company. Immediately after Jones so stated, Grigdesby
gave Jones a typewritten letter of reprimand which is dated
September 17, 1993, and covers most of one letter-sized page.
This letter reads in part as follows:

. . . at approximately 5:42 a.m. Friday morning, September
17, [you] stated [to Payne] that you had to leave early because
your back was hurting (from a non-work related problem) and
had allegedly been told by a physician (unknown) to “rest.’’
You then clocked out at 5:44 a.m. However, you were ob-
served approximately 20 minutes later conversing with non-
night warehouse employees, not more than 55 feet from the
back door[.] At this point, Payne went out and informed you
to leave the premises.
Payne returned to the building and announced the end
of shift at approximately 6:08 a.m. . . . there was obviously
no urgent need for you to leave before the end of shift was
called.

The letter went on to say that since this was Jones’ second
violation (referring to his September 12 reprimand, purportedly
for violating appendage B, rules and regulations, sec. 3, con-
duct F—”Failure to carry out orders from qualified personnel,’’
and leaving before shift dismissal, on September 7), he was
being laid off from September 28–30, inclusive; and that his
next violation would result in a 1-week layoff. (As discussed
infra, part V,B,5, on September 27 Jones went on a leave of
absence which included what otherwise would have been the
effective period of his 3-day layoff.) Grigdesby testified that
“possibly’’ an employee’s leaving early because of a medical
problem might be excused if he went to a doctor sometime
thereafter; Grigdesby testified that he was unable to describe
the circumstances under which such an absence might be ex-
cused.
c. The September 21 incident and the September 23 letter of
disciplinary layoff on October 11–14
On September 21, 1993, after working for about 14 hours,
Jones developed severe back pain. As he was walking toward
the timeclock, he encountered Patricia Reynolds, who asked
him where he was going. He said that he was going home. She
asked why. He said that his back hurt, it was for medical rea-
sons. She asked whether he had a doctor’s note. He untruth-
fully said no. She said that he had to have a doctor’s note be-
fore he could leave. He said that when he got the doctor’s note,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532
he would give the Company a copy. Then, he clocked out, at
about 9:17 a.m., and left.
On September 22, Jones gave Grigdesby the note which on
September 17, Dr. Pollom had postdated September 22. The
note read as follows:

(1) [Back] belt to be used at [patient’s] discretion due
to [illegible] Nerve Compression Syndrome.
(2) Restrict work to 10 HR/Day due to [patient’s in-
crease in] lower back pain with prolonged work hrs. [Pa-
tient] has an abnormal MRI scan which demonstrates an
[illegible] disc bulge and a [right] sided annular [illegible].
A neurosurgical consult is pending with David Hall M.D.
(3) Send records from original Back injury (Winger
from Methodist).

Jones told Grigdesby that Jones would be leaving after 10
hours, at 5:30 a.m. on September 23; Grigdesby said, “Okay.’’
Jones made boxes throughout that shift. At 5:30 a.m. on Sep-
tember 23, Grigdesby approached Jones, and told him his 10
hours were up and he could go.
Personnel Assistant Kathy Sizemore testified that when
showing her this document, Patricia Reynolds said that Jones
had mentioned that his back problem might be related to a pre-
vious injury. Patricia Reynolds testified that if Jones had sub-
mitted this document to his supervisor and stated that the medi-
cal problem described therein referred back to an injury which
had already led to the employee’s discipline, the discipline
would have been rescinded if Jones’ representation was veri-
fied; and that in order to have such discipline removed, Jones’
responsibility was limited to orally drawing this to his supervi-
sor’s attention.
Patricia Reynolds testified that in the Company’s experience
it was “highly unusual’’ that an employee “with back pain to
have no weight restriction, but to be able to work 10 hours a
day. I don’t think there has been any employee . . . that has
been able to work with back problems, and no weight restric-
tions, wearing no [back] belt.’’ According to Reynolds, she
asked Sizemore to call Dr. Pollom and clarify the matter.
Sizemore testified that when she called Dr. Pollom, he told her
that there were no weight-lifting restrictions, that Jones knew
what his limits were and what he was capable of doing, and that
that was why the note specified a 10-hour restriction but no
restrictions for weight. Reynolds testified that Sizemore told
her that according to Dr. Pollom, the hours restriction had been
told to him by Jones. Sizemore testified for the Company, but
was not asked what she told Reynolds.
Sizemore testified that after her conversation with Dr. Pol-
lom, Reynolds told her to schedule an appointment for Jones at
the Methodist Clinic, to which the Company sends employees
with work-related injuries.95 On September 23, Sizemore tele-
phoned the Methodist Clinic and set up an 8:45 a.m. appoint-
ment for Jones on September 24.

95 On direct examination, and before testifying on cross-examination
that she made this call pursuant to Reynolds’ instructions, Sizemore
was asked, “Do you recall anything in particular that prompted you to
set up that appointment?’’ She replied, “I think basically because there
had been some referral made that . . . the injury may be related to a
previous workmen’s comp injury.’’ She did not modify this answer
after her attention was drawn to the reference to the Methodist Clinic at
the end of the note and she was asked whether this was the clinic where
the Company sent employees with work-related injuries. The record
otherwise fails to show the source of this “referral.’’
On September 24, Grigdesby gave Jones a letter, dated Sep-
tember 23 and signed by Grigdesby, which stated that Jones
would be laid off without pay on October 11, 12, 13, and 14,
1993, because he had left work at 9:17 a.m., before general
dismissal was called, in violation of appendage B, rules and
regulations, section 3, conduct F (“Failure to carry out orders
from qualified personnel’’) and that this was his third offense
of that nature; although attributing this incident to Monday,
September 20, the letter was in fact directed to the Tuesday,
September 21, incident.96 (As discussed infra, part V,B,5, on
September 27 Jones went on a leave of absence which included
what otherwise would have been the effective period of his 4-
day layoff.) Grigdesby told Jones that his doctor’s note dated
September 22 was “invalid’’ because Jones had told the doctor
what to write on the note and had not seen the company doctor.
Grigdesby said that “the Company had called and that [Jones]
had told the doctor that [Jones] didn’t want to work more than
10 hours or to wear a back belt.’’ Jones told Grigdesby that
when Jones arrived at Dr. Pollom’s office to obtain a note, he
had been given a note which had been written by Dr. Pollom
before Jones’ arrival, and which had set forth a maximum
workday of 8 hours. Jones went on to say that because he
thought there might be a problem with the language in the bar-
gaining agreement, he had prevailed on Dr. Pollom to increase
the hours from 8 to 10. Jones said that he did not have to go to
the company doctor unless it was a work-related injury, and
that Jones had not filed it under a workmen’s compensation
claim. Grigdesby told Jones that the Company had set up an
appointment for Jones at the occupational clinic for 8:45 a.m.
on September 24, and that if he went to the “Company doctor’’
there was a “good chance’’ that Jones could get “those repri-
mands’’ rescinded.97 Personnel Director Stephen Reynolds
and Branch Manager Patricia Reynolds both testified that ex-
cept as to injuries covered by workmen’s compensation, the
Company had no requirement that an employee be examined by
a doctor selected by the Company rather than the employee.
Moreover, a note prepared by Patricia Reynolds on September
27, 1993, memorializing part of a conference that day during
which Jones requested a leave of absence (see infra, part
V,B,5), states, in part, that “[i]f’’ Jones had claimed that his
medical problem during the September 23–24 shift had been
work related, “Doug would have been required to go to [Meth-
odist] Health Clinic—did not keep appointment of 9/24/93 at
8:45 p.m. [sic].’’
On the morning of September 24, Jones telephoned Dr. Pol-
lom and asked whether Jones had to go see the company doc-
tor. Dr. Pollom said that Jones was his patient and did not have
to see another doctor if he did not want to. Dr. Pollom said that
he had once been an “occupational doctor,’’98 and that “they
pretty much do what the company tells them to do.’’ Dr. Pol-
lom asked if Jones’ injury was a work-related injury. Jones
said that it probably was not, and that he had not filed a work-
men’s compensation claim based thereon. Dr. Pollom replied
96 The letter stated that he had clocked out at 9:17 a.m. on September
20; he was not scheduled to and did not in fact work between the morn-
ing of Friday, September 17, and the evening of Monday, September
20, and he clocked out at 9:17 a.m. on September 21.
97 Jones believed that “those reprimands’’ consisted of the 4-day
layoff, the 3-day layoff, and the original letter of reprimand, all of them
at least purportedly based on his leaving before general dismissal.
98 The quotation is from Jones’ testimony, on which I have based my
findings as to the content of this conversation.
EBY-BROWN CO. L.P. 533
that if Jones had not filed such a claim, the Company could not
require him to go to the occupational clinic. Jones did not keep
the appointment which Sizemore had made for him at the
Methodist Clinic. Nor did he tell anyone from the clinic or
(laying to one side his September 24 remarks to Grigdesby)
anyone from the Company that he would not be showing up.
Sizemore testified that although she had no specific recollec-
tion as to Jones, she normally notified an employee’s manager
(as to Jones, this would have been Grigdesby) and Patricia
Reynolds that an employee had missed an office visit and
needed to go back to the clinic. Sizemore explained that she
followed this practice because “we generally don’t want the
person back at work . . . if they have not been released or we
don’t have some updated documentation from the doctor.’’
Nobody told Sizemore to reschedule another appointment for
Jones. As discussed infra, part V,B,5, on the next working day
(September 27), Jones initiated arrangements for a leave of
absence to begin that day.
Patricia Reynolds testified that if Dr. Pollom’s note dated
September 22 had addressed the September 7 and 17 incidents
when Jones left early, the Company would have rescinded the
discipline issued on the basis of these incidents. She testified
that “the only time personnel would go back and address prior
absences would be if it were so notated on the doctor’s ex-
cuse.’’ However, she went on to testify, in effect, that the
Company would have rescinded the discipline based on such
incidents if Jones had advised his supervisor (orally or other-
wise) that the note dated September 22 referred back to such
events. She testified that about September 23 (the day that
Grigdesby told Jones his doctor’s note dated September 22 was
“invalid’’), she had received and reviewed both that note and
Grigdesby’s September 23 letter to Jones stating that he was to
be given a 4-day disciplinary suspension for leaving work on
September 20 (see supra, fn. 96) before general dismissal, that
she did not recall having a feeling that she should ask Grig-
desby why Jones had left early on that occasion, and that she
did not recall checking with Grigdesby about the matter. She
further testified that after reviewing the doctor’s note dated
September 22 that Jones was to wear his back belt at his discre-
tion, she drew no conclusion about whether Jones may have
been justified in not wearing his back belt on September 17,
the subject of an allegedly discriminatory reprimand dated Sep-
tember 17 and given to Jones on September 20 (see infra, part
V,B,4). In addition, she testified that she did not direct anyone
on September 23 to contact Dr. Pollom’s medical clinic regard-
ing Jones’ medical condition before September 23. However,
she further testified that she believed the note (dated September
22) from Dr. Pollom which Jones gave the Company on Sep-
tember 23 was genuine, and that when she received and re-
viewed it, she concluded that Jones had some sort of back prob-
lem.
In May or June 1992, Patricia Reynolds stated to the night
crew (including Jones), whose shift started at 6 or 7 p.m., “[I]f it
gets to be 5:30 in the morning and you are deathly ill, we are not
going to keep you here’’; she told the employees to advise Grig-
desby that they were leaving, but said nothing about a doctor’s
note. On various occasions between September 1992 and mid-
July 1994, employees received discipline from their immediate
supervisors for leaving before general dismissal. During a griev-
ance meeting on September 23, 1992, the Company and the Un-
ion agreed that discipline imposed on employees Jones and
Eugene Bushrod, for leaving before general dismissal, would be
rescinded if they could produce documentation for their respec-
tive explanations for leaving. The discipline was later rescinded
as to Jones, who produced documentation for his explanation
(need to retrieve his car, which he needed to get to work), but not
as to Bushrod, who produced no documentation for his explana-
tion (need to pick up a sick child).99 During a conference be-
tween Chestnut and Patricia Reynolds immediately after the Sep-
tember 23 grievance meeting, they orally agreed that child care,
medical situations, higher education, and nonrecurring emer-
gency situations were all excusable by management where an
employee left before general dismissal.100 In the spring of 1993,
Jones was not disciplined when he left before general dismissal
(but after working more than 10 hours on the night shift) because
of an upset stomach, and failed to bring in a doctor’s excuse.
3. The September 16, 1993 letter of reprimand, purportedly for
slow productivity and excessive socializing
On September 16, 1993, Grigdesby gave Jones a letter of
reprimand which stated that on the evening of September 15,
Grigdesby had received “numerous complaints from crew
members about your ultra slow productivity and your constant
stopping to socialize with Eric Johnson.’’ The letter of repri-
mand further said:

. . . this kind of behavior is totally unacceptable . . . . Your
work is in direct opposition to the 6-month goal that you
should be trying to achieve, and discussions that we have had
on [your] performance. . . . in the future, I suggest that you
strive to be a team player by doing your part and giving the
effort that you are capable of. If no improvement is noted
over the course of the next week, further [disciplinary] action
will follow.

Eric Johnson received an identical letter on this occasion; the
complaint does not allege that this letter to Johnson was unlaw-
ful.
The Company does not have any written productivity stan-
dards for employees working in the warehouse, or any written
definition of what constitutes ultra slow productivity. Patricia

99 Also, Patricia Reynolds rescinded “leave-early’’ discipline im-
posed on a married couple who left for a vacation trip presented to
them by their family. It is unclear whether they presented any docu-
mentation.
100 This finding is based on Chestnut’s testimony, which is corrobo-
rated by the testimony of Buhle and Jones that Chestnut so advised
them shortly after this conference; see Tome v. United States, 513 U.S.
150 (1995). I do not credit Patricia Reynolds’ denial, for demeanor
reasons and in view of May 1994 documents, involving employee Kris
Starks, which indicate that leaving before general dismissal would be
excusable if due to sickness and with submission of a doctor’s excuse.
A May 1993 letter to Chestnut from Patricia Reynolds, received in
evidence without objection or limitation, states that about the previous
summer, “We had several discussions regarding acceptable excuses and
finally agreed to continue with the current contract language until the
next negotiations.’’ Although this letter was delivered to Chestnut’s
office, he made the professional representation that he had never seen it
before it was marked for identification on October 11, 1994. I credit
Chestnut’s testimonial denial that such an agreement was reached, for
demeanor reasons and because Reynolds’ letter was written in the
context of a request that the Union discuss with the employees their
“contractual responsibilities’’ in view of “another rash of’’ employees
who “once again’’ were leaving before the end of their shift. Also for
demeanor reasons, I credit Chestnut’s denial of Grigdesby’s testimony
indicating that Chestnut said that employees would not be disciplined
for leaving early if they documented a need to go to court or to a doc-
tor’s appointment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
Reynolds testified that she could not recall any employee, other
than Jones, who had been disciplined for “ultra slow productiv-
ity’’ or on the basis of employee complaints to the Company;
and did not know whether any such complaints about Jones had
been documented in any way other than in the reprimand itself.
Laying Johnson and Jones to one side, the only employee (so
far as the record shows) disciplined for such a reason was an
employee who fell asleep on the job.
The Company has no rule forbidding employees to discuss
matters unrelated to work while the employees are working,
and such discussions occur on a daily basis. Laying Johnson
and Jones to one side, no employee has ever been disciplined
for socializing on the job, so far as the record shows. During
the shift specified in the reprimand, nothing about socializing
was said to Jones or (so far as the record shows) to Johnson.
During that shift, working Foreman Thomas Hawk, a unit em-
ployee, looked down toward the beginning of the line, where
Jones was working, and orally chastised employees in the plu-
ral, and without naming anyone, about not working; such re-
marks by Hawk were not usual. Laying this incident to one
side, nothing was said to Jones that night regarding lack of
productivity. Hawk testified for the Company, but was not
asked whom this remark was directed to, or whether he made
any reports about the matter to Night Warehouse Manager
Grigdesby. Grigdesby testified for the Company and (as an
adverse witness) for the General Counsel, but was not asked
about Jones’ conduct during the September 15–16 shift. Then
working foreman, Hammer, who described himself as “by no
means’’ a friend of Jones, credibly testified that in 1993, when
Hammer was cigarette foreman and Jones worked on the oil
line (on September 15–16, Jones was working on the candy
line), Jones was a consistent worker whose work pace usually
required the assignment of backup workers further down the
line in order to keep up with him. In connection with Jones’
discipline on September 16, 1993, the Company’s posthearing
brief (pp. 141–142) relies on Grigdesby’s testimony, as to his
comment on Jones’ July 29, 1993, evaluation that Jones should
become “100% company supportive,’’ that Jones “[h]ad no
interest in trying to get the job done. He was more interested in
socializing, talking when he shouldn’t have been talking, being
out of his work area, going to the bathroom, working ultra
slow.’’ Particularly because Grigdesby was not asked about
Jones’ conduct during the shift of September 15–16, 1993, I
credit Jones’ testimony that during that shift, he talked no more
than he usually did and his productivity was no different that
night than it was other nights.
4. The September 17, 1993 discipline purportedly in connec-
tion with Jones’ back belt
As previously noted, about August 27, 1993, Jones gave
Grigdesby an August 27 note from Dr. Pollom which stated, in
part, that Jones was not to wear a back belt for 1 week. Also,
Dr. Pollom told Jones not to wear any restrictive belts until the
MRI results came down, which Dr. Pollom said would take a
week or two, because he did not know what was wrong and, if
Jones had a pinched nerve, the belt would only make it worse.
When handing the note to Grigdesby, Jones said that he was not
going to wear his back belt, and Grigdesby said, “Okay.’’
Jones did not receive a diagnosis based on his MRI examina-
tion until September 22. Meanwhile, he did not wear his back
belt.
Patricia Reynolds testified that she was not aware of any
specific number of days that an employee may fail to wear his
back belt without being disciplined. She further testified, with-
out corroboration, that she asked Grigdesby if there had been
any followup on Dr. Pollom’s August 27 note or if Jones was
wearing his back belt; that Grigdesby said that he had received
no followup; and that she and Grigdesby determined that Jones
should be advised that he had to wear his back belt “since we’d
had no follow-up in several weeks after the expiration of the
doctor’s note.’’ About September 20, at 7 p.m., working fore-
man, Eugene Groover, a unit employee, approached Jones and
told him that he needed to wear his back belt. Jones said that
his doctor did not want him to wear a back belt pending the
MRI result, that the belt issued to Jones was too small, and that
he was not going to wear it. A few minutes later, working
foreman, Tim Burnett, a unit employee, approached Jones and
asked if he had his back belt. Jones said that he was not going
to wear it until his doctor got the MRI result back. Burnett said
that Grigdesby wanted to see Jones.
When Jones and Burnett approached Grigdesby, he gave
Jones a letter signed by Grigdesby, and dated September 17,
1993, which directed him to wear his back belt “at all times
during working hours; unless medically excused. Per the at-
tached doctor’s slip of 8/27, you were excused from wearing
same only until September 3, 1993. . . . The next violation will
result in a 1-week lay-off.’’ Jones said that his doctor did not
want him to wear a back belt until he got the MRI results back,
and that if he had a pinched nerve the back belt would make it
worse. Grigdesby said that the doctor’s note was only good for
about 1 week, until about September 3, and that Jones was to
wear the back belt. Jones said that he was not going to wear a
back belt which was too small for him when his doctor did not
want him to wear it anyway. Jones said that he had requested a
larger size belt on May 17 and that Patricia Reynolds had said
he could not have one.101 At Grigdesby’s request, Jones
fetched his back belt from his car, put it on, and showed Grig-
desby that it was too small. Grigdesby told him not to worry
about it. Jones said, “[S]o you don’t want me to wear the
[back] belt.’’ Grigdesby said, “[N]o, don’t worry about it. Just
go back to work.’’
As previously noted, on September 22 Jones gave Grigdesby
a note from Dr. Pollom, dated September 22, which stated, inter
alia, that because of lower back pain and a disc bulge, Jones
was to use a back belt at his discretion. As an adverse witness
for the General Counsel, Reynolds testified on the second day
of the hearing that after reading this note, about September 23,
she drew no conclusion about whether Jones may have been
justified in not using his back belt on September 17. The Com-
pany never took any action with respect to Patricia Reynolds’
September 17 letter. About 2 months after testifying as an
adverse witness, as a witness for the Company she testified on
cross-examination that as to this September 17 letter (which
stated, in effect, that he had had no medical excuse for not
wearing a back belt after September 3, and would be laid off for
a week for the “next violation’’), she never “thought about’’ it
“as being discipline. I thought the issue had been resolved. He
brought in his doctor’s note dated September 22, [which said]
that [Jones] could wear [his back belt] at patient’s discretion.
So that meant exactly that.’’
Jones did not wear a back belt again until March 1994, when
Day Warehouse Manager Kramer told him that he was being
assigned to work in the cigarette stamping department, stated

101 See supra, part III,I,1.
EBY-BROWN CO. L.P. 535
that he needed to wear his back belt, and asked whether there
was a problem with that. Jones said that there was a problem,
that his back belt was too small. Kramer told him to bring the
belt in, and gave him a larger size when he reported to the ciga-
rette stamping department. Thereafter, and at least until the
time he testified in August 1994, he regularly wore his back
belt while at work. Jones and several other employees credibly
testified in 1994 that at all relevant times, quite a few employ-
ees failed to wear a back belt at work; so far as the record
shows, no action was taken against any of them but Jones and
Edmond (see supra, part III,I). In consequence of a grievance
filed by Jones in March 1993, Patricia Reynolds advised Buhle
after a second-step grievance meeting that in the absence of a
doctor’s note stating that wearing a back belt would be injuri-
ous to the employee’s health, an employee who reported to
work would be sent home to get one, and would be disciplined.
The Union took this grievance to the third step of the grievance
procedure. The ultimate disposition of the grievance is not
shown by the record.
5. Allegedly discriminatory denial of disability pay
On an occasion between August 13 and September 27, 1993,
but whose date is not otherwise shown by the record, Dr. Pol-
lom suggested that Jones take a leave of absence, and Jones
replied that he could not really afford it. On September 24,
1993, the Company received the first complaint in the instant
proceeding, which complaint alleged, among other things, that
about March 31, 1993, the Company had reprimanded Jones
because of his union activity and (through Grigdesby) had un-
lawfully restricted the distribution of union literature; as shown
supra, part V,A,1,d,(2), Grigdesby knew that Jones had told the
Board’s Regional Office about such conduct. On September
27, 1993, Jones telephoned Personnel Director Stephen Rey-
nolds (Patricia Reynolds’ husband, who is admittedly a super-
visor and agent of the Company), told him that Jones’ doctor
wanted him to take a leave of absence but for monetary reasons
Jones could not afford to do this, and asked whether arrange-
ments could be made for Jones to leave after working for 10
hours. Without mentioning the 10-hour matter, Reynolds said
that all Jones had to do to take a medical leave of absence was
to get a doctor’s slip stating that the doctor wanted him to take
a medical leave of absence. Jones said that if he could see his
doctor that day, Jones would present the Company with a leave
of absence slip that same day.102 Jones credibly testified to
deciding that a leave of absence would be his best option, be-
cause if he again left before general dismissal he would be ter-
minated and would lose his health insurance while still having
back problems, he believed Stephen Reynolds had been unre-
sponsive to a 10-hour limitation but very receptive to a leave of
absence, and Jones did not believe that the Company would

102 My findings as to this conversation are based on Jones’ testi-
mony. Stephen Reynolds testified that he had no recollection of any
telephone conversation with Jones before their September 27 confer-
ence in Patricia Reynolds’ office (see infra), and that Stephen Reynolds
did not recall any conversation with Jones as of September 27 about
working up to 10 hours a day. Stephen Reynolds denied that prior to
the September 27 conference, Jones ever said that he wanted to take a
medical leave of absence but could not afford one. To the extent that
Stephen Reynolds’ testimony may amount to a denial, for demeanor
reasons I credit Jones.
would rescind his discipline, ostensibly for leaving early, even
if he did go to a company doctor.103
Later that same day, Jones told Dr. Pollom that the Company
required a doctor’s slip stating that the patient should take a
leave of absence. After giving Jones a physical examination,
Dr. Pollom wrote out a slip which read, in part:

[Illegible] Disc bulge with [left] sciatic pain mid and lower
Back Pain. I recommend [patient] take a medical leave pend-
ing his neurosurgical evaluation by Dr. David Hall on
10.22.95.

At about 5:15 p.m., that day, September 27, Jones brought
this slip to Stephen Reynolds’ office. His receptionist said that
he was on the phone, and took Jones to Patricia Reynolds’ of-
fice. Jones told Patricia Reynolds that his doctor wanted him to
take a leave of absence pending a neurosurgical evaluation with
the neurosurgeon at the Methodist Clinic. At this point, Ste-
phen Reynolds came into the room. Patricia Reynolds said that
there were two types of leave. Purportedly correcting her, Ste-
phen Reynolds said that there were three types of leave (two of
which she had mentioned)—a family leave, a personal leave,
and a medical leave. Patricia Reynolds said that Jones would
be required to use up any unused sick time or vacation time.
Purportedly correcting her, Stephen Reynolds said that under
the medical leave, Jones did not have to do that. Jones said that
he was out of paid sick leave, and that as to the vacation he had
left, he wanted to exercise his right to be paid for that period
rather than taking it. Patricia Reynolds asked Jones why he had
failed to keep the September 24 doctor’s appointment which
Sizemore had made for him at the medical clinic. He replied
that he did not have to go to the company doctor, since it was
not a work-related injury and he had submitted all his bills to
Blue Cross/Blue Shield. At this point, Patricia Reynolds
fetched Kramer, and then obtained a repetition from Jones of
this last statement. Jones said that he wanted a medical leave of
absence. Stephen Reynolds said that there would be no prob-
lem, and Jones was granted an immediate leave of absence
extending to October 22, 1993. During this conference, no
management representative asked Jones if there was any work
he could perform at the Company.
The 1990–1993 bargaining agreement provides for an un-
paid leave of absence if an employee is “unable to work by
reason of illness, injury or other disability.’’ During the Sep-
tember 27 conference, disability pay was not mentioned. At
that time, the Company had a benefit of paying employees dis-
ability pay, with the only requirement being an appropriate
doctor’s slip. This benefit is not set forth in the bargaining
agreement; and as of September 27, 1993, the date that Jones
began his leave of absence, he was unaware that this benefit
existed. Thereafter, Jones learned from other unit employees
that they had received disability pay while off on a nonwork
injury. On October 14, Jones called the office number of
Stephen Reynolds and asked to speak to him. Jones was ad-
103 Jones did not trust Grigdesby’s honesty in stating that the disci-
pline might be rescinded if Jones went to a company doctor, believed
that the Company “was trying to put [him] in the trick bag,’’ and be-
lieved that without the MRI scan, the company doctor would not be
able to tell if there was anything wrong. As previously noted (supra,
part V,B,2,a), Jones’ own doctor had said that without an MRI scan, he
could not determine what was wrong. As discussed infra, part V,B,10,
thereafter the Company did in fact put Jones into a “trick bag’’ as to
other matters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
vised that Reynolds was not in the office that day, and was
referred to personnel assistant Sizemore. Jones then asked
Sizemore about receiving disability pay. Sizemore said that
“they told me that it was going to be an unpaid leave,’’ without
specifying the identity of “they.’’ She told Jones that Stephen
Reynolds could be reached in his office the following week.
On Monday, October 18, Jones telephoned Stephen Rey-
nolds. Jones asked Reynolds if Jones was eligible to receive
disability pay while off on his leave of absence. Reynolds re-
plied that Jones was not on a medical leave, that he was on a
personal leave, and that Jones was not entitled to temporary
disability benefits under personal leaves. Reynolds said, how-
ever, that a prearranged leave of absence would not be counted
as an occurrence under the Company’s absenteeism policy (see
infra, part V,B,9). Jones said that his leave was indeed a medi-
cal leave,104 said that Jones had given the Company “documen-
tation prior,’’ and again asked why he was not receiving any
disability pay. Raising his voice, Reynolds said that Jones was
always trying to cause trouble for the Company, and if he did
not like the Company, he should just get out. Jones asked
whether Blue Cross/Blue Shield picked up the temporary dis-
ability. Reynolds said no, it was the Company which had this
benefit. Jones said that other people had received disability pay
and he could not understand why he was not receiving it. Rey-
nolds replied that Jones had not gone to the Company doctor
when the Company had scheduled an appointment for him, and
that if he wanted to receive disability pay, he would be required
to go to the company doctor; as previously noted, Reynolds
testified before me that except for injuries covered by work-
men’s compensation, the Company had no requirement that
employees see a doctor selected by the Company. Reynolds
said, “[Y]ou are on a personal leave, not a medical leave. I
didn’t have to give you a leave of absence if I didn’t want to
. . . if you go to our Company doctor, I will be more than glad
to give you a medical leave of absence.’’ Then, Reynolds
slammed down the phone.105
By letter to Stephen Reynolds dated October 19, 1993, Jones
stated:

On September 27th per our phone conversation, I in-
quired about the procedures to obtain a medical leave of
absence. It was my understanding that I was required to
obtain a medical leave of absence statement from my phy-
sician. This statement was delivered to your office on the
same day. This letter is to confirm that my absence is a
medical leave and not a personal leave.106 If this is not

104 As shown in the text attached to fn. 108, infra, on October 26,
1993, Patricia Reynolds advised Jones that he had been on a medical
leave of absence since September 27. Further, at the July 1994 hearing
she testified that Jones had been given a medical leave of absence.
105 My findings as to this telephone conversation are based on Jones’
testimony, which I credit for the reasons summarized infra, fn. 106.
106 Because Jones’ testimony as to the September 27 telephone con-
versation is the only record explanation for this sentence, and for de-
meanor reasons, I credit his version of that telephone conversation.
Reynolds denied that the subject of personal leave was mentioned
during the September 27 conversation or on any other prior occasion;
and the testimony of Sizemore (who shares Reynolds’ office and was
allegedly there during the September 27 telephone conversation) con-
tains no reference to personal leave. However, Sizemore was a demon-
strably untruthful witness in other respects (see infra, part V,B,10). I
do not credit her testimony regarding Reynolds’ conduct and tone of
voice during this telephone conversation, nor her uncorroborated testi-
mony as to what he told her about it immediately thereafter.
your understanding of the matter, please contact me at the
address below.

Enclosed with this letter was a copy of the September 27 slip
issued by Dr. Pollom, which, as noted, stated, in part, “I rec-
ommend a medical leave pending [Jones’] neurosurgical
evaluation by Dr. David Hall on 10–22–93.’’ After this consul-
tation, Dr. Hall, who is a neurosurgeon, advised Jones that he
did not need surgery at that time, and referred him to Dr. John
Lomas, a rehabilitation specialist.
The Company received Jones’ October 19 letter on October
21. By letter to Jones dated October 22, 1993, Stephen Rey-
nolds stated:

On Monday, October 18, 1993, per our phone conver-
sation, you inquired about receiving disability pay while
off on your leave of absence.
In order to receive disability pay you must bring in a
doctor slip stating that you are unable to do any work at
all. Upon receipt of this statement you will be paid dis-
ability pay for non-vacation weeks and the week of your
three-day layoff.

Stephen Reynolds initially testified that in order to receive
disability pay, an employee must meet the requirement, and
only the requirement, of a doctor’s slip saying that the em-
ployee is “totally unable to work—light duty or regular work.’’
He testified that this requirement was included in the company
handbook, but the Company did not offer this handbook into
evidence. Stephen Reynolds further testified, “The doctor is
the key—we go by whatever the doctors’ slips say.’’ Disability
pay was received by employee Michael Lundy in April 1991,
by employee Dixie Deaton in April and May 1992, and by em-
ployee Carla Wiggam in November 1992, although none of
them submitted a doctor’s statement to the Company containing
the statements which (according to Stephen Reynolds) were
required in order to receive disability pay.107 Patricia Reynolds
testified that when an employee is on a medical leave, that
normally indicates to her that the employee is unable to per-
form any work at the Company.
The expired bargaining agreement states that to retain senior-
ity while on leave of absence, an employee on leave for illness,
injury, or other disability “shall be required to furnish a current
report from the attending doctor at the end of each thirty (30)
day period or as otherwise required by the Company.’’ By letter
to Jones dated October 26, 1993, Patricia Reynolds stated, in
part, “[T]he doctor statement you brought in on September 27,
1993, stated that your leave would be from 9/27/93–10/22/93.
Since that time has expired we need for you to bring in an up-
dated slip by 10/29/93—in order to continue to be off work on
a medical leave of absence.’’108 On November 1, Jones con-
sulted Dr. Pollom, who recommended that Jones stay off work
for 2 more weeks and set up an appointment for him with Dr.
Lomas. In addition, Dr. Pollom gave Jones a note, which Jones
gave to Grigdesby, stating, in part, “Off work through 11–15–
93. . . . Mr. Jones is physically unable to return to work at this
time due to persistent lower back and [left] leg pain.’’ Jones
told Grigdesby that the doctor’s note put Jones off work
107 Deaton may not have been a unit employee. However, as to dis-
ability pay, the Company’s policy is the same for both unit and nonunit
employees.
108 See supra, fn. 104.
EBY-BROWN CO. L.P. 537
through November 15, at which time he was going to start see-
ing another doctor, Dr. Lomas. Grigdesby said, “Okay.’’

Patricia Reynolds testified that she read this November 1
doctor’s note about that same date, and that “from the face of
the document’’ it indicates that Jones was unable to do any
work. Jones never received any disability pay.
6. Allegedly discriminatory direction that Jones return to work
and assignment of allegedly onerous work
On November 1 or 2, Sizemore saw Dr. Pollom’s November
1 note regarding Jones, and received instructions from Patricia
Reynolds to telephone Jones and find out what his work restric-
tions were and if he could do any work at all. Patricia Rey-
nolds testified that she issued these instructions because the
September 27 note from Dr. Pollom enclosed in Jones’ October
19 letter had stated that Jones was scheduled to see Dr. Hall on
October 22, and the Company had not received any “followup’’
from Dr. Hall; however, she testified that she could not remem-
ber what, if anything, she said to Sizemore about Dr. Hall, or
whether he was contacted, and Sizemore’s testimony does not
mention him.
At 9 or 9:30 a.m. on November 2, Sizemore telephoned
Jones and asked whether he could perform “like desk work,
sitting down.’’ He replied no. Sizemore said that Reynolds
had instructed her to call Jones and tell him that “we do have
that available’’; Sizemore went on to say, “So you’re not able
to do that either?’’ Jones said no.109 When Sizemore told
Patricia Reynolds what Jones had said, she instructed Sizemore
to call the doctor’s office, which is located at the Aegis Medical
Clinic, and find out what Jones’ work restrictions were; prior to
this occasion, and while Jones was on a medical leave of ab-
sence, Reynolds had not instructed anyone at the Company to
make contact with Aegis about Jones’ medical condition. On
November 2, Sizemore telephoned Aegis and was referred to a
nurse. When Sizemore asked the nurse what Jones’ work re-
strictions were, the nurse said that he was to do no lifting, bend-
ing, or stooping. Sizemore asked whether he could do work
which was not within these restrictions. The nurse said yes, but
it would have to be something that would be a sitting job,
something like a desk job. Sizemore asked her to fax an up-
dated doctor’s note which included the restrictions of no lifting,
bending, or stooping. Immediately after hanging up the phone,
Sizemore told Patricia Reynolds that “the nurse’’ had said
Jones could perform work which did not call for lifting, bend-
ing, or stooping, and that “it would have to be something that

109 My findings as to the content of the Jones-Sizemore conversation
are based on Jones’ tape of the conversation, which was recorded by his
answering machine. I hereby deny the Company’s motion to strike this
recording, which motion is grounded on the claim that Jones violated
Indiana law by recording this conversation without Sizemore’s knowl-
edge. NLRB v. Plasterers Local 90 (Southern Illinois Builders Assn.),
606 F.2d 189, 191–192 (7th Cir. 1979), enfg. 236 NLRB 329, 330
(1978); East Belden Corp., 239 NLRB 698, 711 (1994), enfd. 634 F.2d
635 (9th Cir. 1980); and Wellstream Corp., 313 NLRB 698, 711
(1994). No contention is made that the taping of the conversation vio-
lated Federal law; see Southern Illinois, supra, 606 F.2d at 192; 236
NLRB at 330. The Company has offered no legal authority for its
claim that the taping violated Indiana law, and I have made no effort to
determine the validity of this claim.
would be a sitting job, something like a desk job.’’110 Rey-
nolds said, “Okay.’’111
A little later that same day, Sizemore received over the fax
machine a note as to Jones and bearing at least a purported
signature by Dr. Pollom, which was dated November 1 (the
previous day) and stated, “Work Restrictions/No lifting, bend-
ing, stooping’’; Jones did not see this note until preparing for
the July–October 1994 hearing.112 Upon receiving it, Sizemore
showed it to Patricia Reynolds, who told Sizemore to call Jones
and tell him to report to work that night. Sizemore and Rey-
nolds both testified that Reynolds told her to tell Jones that he
was to be there at 7 p.m. and that the Company had light duty
work for him.
Sizemore thereupon telephoned Jones’ home, and was con-
nected with Jones’ answering machine. She left a message
which stated that she was “calling back on the light duty with
the desk work.’’ The message left by Sizemore went on to say
that she had called Jones’ doctor, that the doctor had sent to the
Company “an updated doctor’s statement, dated 11–1, saying
that the light duty desk work would be okay for [Jones] to do,’’
and that Reynolds had said that “in that case’’ Jones was ex-
pected to return to work that evening, November 2.113 Immedi-
ately after completing this call, Sizemore made the following
note to herself: “Left message on [Jones’] answering machine
at 9:54 a.m. Tuesday 11–2–93/Report to work at 7 p.m. . . . Lt.
duty desk work.’’
At about 1 p.m., immediately after listening to this message
on his answering machine, Jones telephoned Dr. Pollom’s of-
fice and asked his nurse whether the Company had called. She
said yes, and that she had faxed to the Company the restrictions
of no lifting, no bending, no stooping. Jones said that he would
go back to work unless Dr. Pollom had any objections to it.
At 7 p.m. that evening, November 2, Jones reported for work
to Grigdesby. Grigdesby said that Jones would be working for
4 hours, and told him to sweep certain areas with a push broom.
Jones asked what had happened to the light duty desk work that
the Company had said he was going to be doing. Grigdesby
said that he was not aware of any light duty desk work, and that
110 My findings as to what Sizemore told Reynolds are based on
Sizemore’s testimony (1) as to what the nurse told Sizemore; and (2)
that Sizemore “probably did make [Reynolds] aware that [Jones’] job
would have to be within those restrictions and something that he would
have to do sitting.’’ Reynolds testified that she did not recall if
Sizemore said the nurse at Dr. Pollom’s office said Jones could do desk
work.
111 My findings as to Sizemore’s call to the Aegis Clinic are based
on her testimony. She testified, in effect, that the telephone was an-
swered by a receptionist who stated that the call was being received by
the office of “Dr. Paul Linville,’’ and that the receptionist had con-
nected Sizemore with a nurse. Dr. Linville’s name does not appear on
the Aegis letterhead, and the record does not otherwise mention him.
Reynolds testified that Sizemore attributed her message to “Dr. Pol-
lom’s office.’’
112 Jones testified (without objection or limitation) to having been
advised by Dr. Pollom’s nurse that the Company had asked for a list of
Jones’ work restrictions and she had faxed a “no lifting, no bending, no
stooping’’ list to the Company. He initially dated this conversation
with the nurse as November 1, but he later testified that he reported to
work on the evening of the day when he had this conversation, and it is
undisputed that he returned to work on November 2.
113 My finding in this sentence is based on the message taped by
Jones’ answering machine. The Company’s motion to strike did not
include the recording of this conversation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
“they’’ (without specifying who) had told him that Jones was
going to be sweeping.
My finding that Jones was told at the beginning of his No-
vember 2 shift to perform a sweeping job is based on his testi-
mony. Grigdesby testified that he initially told Jones to make
boxes, and did not assign him to sweep the floor until after
Jones said he was not able to make boxes. Grigdesby testified
that the determination to assign Jones to making boxes was
made by Grigdesby, that Grigdesby did not consult with anyone
else before making this determination, and that he did not con-
sult with anyone else before assigning Jones to sweep the floor.
Patricia Reynolds testified that before Jones reported for work
on November 2, Grigdesby told her that he intended to assign
Jones to box making and she said this would be fine; and that
that evening Grigdesby advised her by telephone that Jones had
said he could not make boxes because it involved repetitive
bending, and that Grigdesby was going to assign Jones to
sweeping the floor.114 In view of these inconsistencies be-
tween Grigdesby’s and Reynolds’ testimony, and for demeanor
reasons, I credit Jones.
The sweeping operation assigned to Jones required him to
stoop and bend in order to remove the accumulated piles of
debris from the floor and throw them into the trash. In addi-
tion, the push broom, which weighs about 2 pounds and whose
30-inch brush does not swivel on the handle, must be lifted
every 6 to 10 feet while in use. Also, the sweeping operation
required Jones to stoop and bend in order to dip floor sweep
with a 32-ounce cup from a box about 3-feet high onto the
floor.
Jones performed the sweeping work for 4 hours each night
on November 2, 3, and 4. After his initial conversation with
Grigdesby, Jones did not state to any other company represen-
tative that he had been told that he would be assigned light duty
desk work and was not getting that assignment. Meanwhile,
about November 4, he received a letter from Patricia Reynolds,
dated November 2, which stated:

On November 2, 1993, we contacted Dr. Daniel Pol-
lom’s office, requesting more specific information on your
work restrictions. We were told that you could not do any
lifting, bending or stooping, but you could do any other
light duty work we may have available which did not re-
quire you to lift, bend or stoop.
[Y]ou are expected to report to work on Tuesday, No-
vember 2, 1993 at 7:00 p.m. at which time you will be as-
signed light duty work.

Notwithstanding Sizemore’s November 2 telephone message
to Jones stating (in effect) that he would be assigned “light duty
desk work,’’ Reynolds testified that he was not assigned such
work because it was a nonunit job which he did not have the
knowledge to perform, and because the Company already had
other people who were doing it. On three occasions when unit
employee Carla Wiggam was on light duty because of an injury
(two of them on-the-job injuries)—in 1991 for about a month,
in May or June 1992 for about a month, and in March 1993 for
about 6 weeks—she performed nonunit work in the clerical
night office. She credibly testified that it took her about a week
to learn these duties when she first performed them, in 1991,
and took her a couple of weeks to learn “every little detail that

114 On timely hearsay objection, Reynolds’ testimony was not re-
ceived to show the truth of Grigdesby’s report to her.
had to be taken care of.’’115 In addition, in about 1992 unit
employee Larry Hunt had worked in the night office during a
temporary shortage of warehouse work.
On 40 days between November 29, 1993, and the week end-
ing March 6, 1994, the Company used 1 to 10 temporary em-
ployees, obtained from an agency which furnishes such person-
nel, to work 4 to 8 hours a day. On all but about 2 of these
days, the temporary employees were used for making
“deals’’—that is, removing cigarette packages from cartons,
and packaging them together (sometimes with a premium gift),
to be sold to the consumer as a unit. One stage in such “deal’’
making merely requires the worker to assemble and package
the “deals’’ after all the components had been set out on the
worker’s work table. Such work limited to the assembly tables
was performed by unit employee Carla Wiggam during a period
which began about mid-January 1994, under a 10-pound re-
striction while she was limited to light-duty work. Jones made
“deals’’ in May and June 1994, after he was no longer under a
10-pound restriction. However, he was not assigned such work
when it was being performed by temporaries while he was re-
stricted to light duty.
After being off work for about 2 weeks because of a work-
related injury, employee Carla Wiggam returned to work on the
day shift on January 17, 1994, subject to a 10-pound weight
limit (later raised to 25 pounds), a 6 to 8 hour day, and “No
overhead work.’’ Then stamping department manager, King,
assigned her to writing up cigarette receiving, totalling cigarette
inventory, preparing stamp inventory, and making “deals.’’ All
of these jobs were normal assignments for stamping department
employees. About February 14, 1994, King transferred to the
Company’s Ypsilanti warehouse; at that time Mike Brown
(who did not testify) was put in charge of the day-to-day opera-
tions of the stamping department, and day warehouse manager
Kramer (to whom Brown reported) was in charge of that de-
partment for any other purpose. King testified that there was
not enough of the type of work, which was assigned to Wiggam
while she was on light duty, to have another employee do it at
the same time. As previously noted, Jones was recalled to
work, under a light-duty restriction, more than 2 months before
Wiggam returned to work under a light-duty restriction; he was
transferred to the day shift (under Kramer) a few days later.
When called as an adverse witness by the General Counsel,
Patricia Reynolds testified that “making boxes requires you to
repetitively bend over and pick up the boxes . . . if the skid was
on the ground level.’’ However, as a company witness, she
testified to the belief that when Jones returned to work on the
night shift on November 2, his medical restrictions would not
have precluded him from making boxes. Although she testified
that it would be “very possible’’ that night-shift operations
would be interfered with by the full-time assignment of a single
employee to make boxes in a single area, Night Warehouse
Manager Grigdesby testified that such an assignment would
present no problem. For a period of at least a week after July
1992, when unit employee Eric Johnson was on light duty, he
had been assigned to the sole duty of making boxes on the night
shift. When considered in light of Grigdesby’s testimony that
115 Her light duty assignment in 1991 was due to a back injury.
Later on in 1991, after some additional medical difficulties, she under-
went about a month of training in anticipation of a permanent transfer
to the night office, where her duties would have been different from
those which she performed shortly after her back injury. She eventu-
ally decided against a permanent transfer to the night office.
EBY-BROWN CO. L.P. 539
most of the 45 night warehouse employees spend 45 minutes to
an hour and a half each day cleaning up trash and making
boxes, the evidence that night warehouse employees were
working between 114 and 199 hours of overtime per week in
November and December 1993 indicates that the total overtime
hours could have been reduced by assigning Jones up to 40
hours per week making boxes.
7. Allegedly discriminatory transfer to day shift and assign-
ment of allegedly onerous work
As an adverse witness called by the General Counsel,
Patricia Reynolds testified that on an undisclosed date and hour
before 7 p.m. on November 3, she and Grigdesby decided that
because of Jones’ work restrictions and because more light-
duty work was available on the day shift than on the night shift,
it would be to the Company’s best interest if Jones were able to
do his particular light-duty assignment on the day shift.116 As
previously noted, on November 2 Sizemore had relayed to
Patricia Reynolds the statement from Dr. Pollom’s nurse that
the only work which Jones could perform consistent with his
medical restrictions was a sitting job. Patricia Reynolds testi-
fied, in effect, that the only such jobs performed on the day
shift were receiving work and inventory counter; she did not
refer in her testimony to making “deals.’’ Jones was not given
any such assignments. Day Warehouse Manager Kramer testi-
fied that the two jobs in his area on the day shift which employ-
ees could do on light duty were making boxes and running the
floor scrubber. He further testified that about November 5,
Patricia Reynolds told him that Jones had been making boxes at
night; testified that “they’’ told him Jones would be coming to
the day shift (without identifying “they’’); and testified to the
understanding that Jones was being transferred to the day shift
because he was not able to “continue’’ making boxes. As pre-
viously noted, Grigdesby (as well as Jones) testified that Jones
did not make any boxes on the night shift after his November 2
return to work; and Reynolds testified to having been so ad-
vised by Grigdesby. Kramer went on to testify that during this
conversation with Reynolds about November 5, she told him
that Jones was subject to the limitations of no stooping, no
bending, and no lifting over 10 pounds; she asked whether he
had any work for Jones; Kramer said Jones could run the floor
scrubber; and she told Kramer on a date which he did not spec-
ify that Jones would be working 20 hours a week. As previ-
ously mentioned, the note from Dr. Pollom’s office dated No-
vember 1, faxed to the Company on November 2, and inspected
by Patricia Reynolds that same day, had forbidden lifting with-
out specifying any exception. At the beginning of the night
shift on Wednesday, November 3, Grigdesby told Jones that
starting the following Monday, November 8, Jones would be
going to days, and would report to Kramer. Grigdesby did not

116 About 2-1/2 months later, as a witness for the Company, Patricia
Reynolds testified, in substance, that she decided to transfer Jones to
the day shift because Grigdesby told her that while performing the
sweeping work on the night shift, Jones was engaging in excessive
socializing and was thereby slowing down other employees in the per-
formance of their jobs. I do not credit her testimony in this respect,
because it is difficult to square with her earlier testimony, because
Grigdesby was not asked about the matter, and because of Jones’ un-
contradicted and credible testimony that Grigdesby did not reprove him
for excessive socializing after he returned to work on November 2, and
that after his return he socialized no more nor less than previously.
tell Jones what duties he would be performing, or indicate any
reason why he was being transferred to days.117
On the morning of November 8, Jones reported to Day Man-
ager Kramer, who told him that he would be operating the floor
scrubber. This piece of machinery weighs about 200 pounds,
and is about 3-feet deep, 2-feet wide, and 4-feet long. The floor
scrubber moves around on swiveling wheels, has a speed-
control lever, and operates somewhat like a self-propelled lawn
mower. The operator exerts hand pressure on one of the two
handles, which are at about waist-high level, to cause the
scrubber to move or stop and to release water. The operator
must guide the scrubber around any obstacles which may be in
the aisles, guide it around corners, and also guide it to make a
U-turn in each aisle, because the width of the aisles requires
two trips down each aisle in order to scrub the entire aisle.
When such maneuvers require putting the floor scrubber in
reverse, the operator must also lift a squeegee. The aisles must
also be swept before scrubbing. Jones was expected to, and
did, sweep the aisles. If the swept-up debris could be left in
locations where it was not in the path of the floor scrubber,
Jones left the little piles of debris to be put into the trash by
someone else; otherwise, he himself deposited the piles into the
trash, an operation which required him to stoop and twist.118
Before Jones’ assignment to the floor scrubber, it had been
operated about once every 3 weeks. Jones performed these
tasks 4 hours a day between Monday, November 8 and Thurs-
day, November 11, inclusive.119 During this period, he did not
advise anyone from the Company that these duties were aggra-
vating his back problems; nor did he ask anyone from the
Company about performing desk work.
On November 15, 1993, Jones kept an appointment with Dr.
John Lomas, a rehabilitation specialist to whom Dr. Hall had
referred Jones.120 During this consultation, Jones told Dr. Lo-
mas that taking the corners and moving around obstacles with
the floor scrubber agitated Jones’ back. Dr. Lomas gave Jones
a note which stated, “Limit work to 4 hours. 20 [pounds] no
bend or twist. No floor scrubber.’’ That same day, Jones took
the slip to Kramer, and told him that Jones found it physically
difficult to wrestle the floor scrubber around tight corners.
Kramer looked at the doctor’s note and said, “[N]o floor scrub-
ber? Well, what can you do?’’ Jones replied, “[Y]ou’re the
manager. You tell me.’’ Kramer thereupon telephoned Dr.
117 Working Foreman Hammer testified that upon noticing Jones was
not listed on the personnel schedule for the night shift, Hammer asked
Patricia Reynolds where Jones was, she said he was on the day shift,
Hammer asked why, and she said, “[T]hat by placing Doug Jones on
days, this would weaken union backers on nights.’’ Hammer’s prehear-
ing affidavit dates this alleged conversation as having occurred before
the July 8 election, more than 3 months before Jones’ transfer to the
day shift. Moreover, on direct examination, Hammer testified that their
conversation was conducted in Grigdesby’s presence; on cross-
examination, Hammer testified that Grigdesby was not there. Accord-
ingly, I credit Reynolds’ denial.
118 My finding that Jones sometimes himself deposited the piles into
the trash is based on his credible testimony. For demeanor reasons, I
do not credit Kramer’s denial.
119 His days and hours of work are shown by company records in
evidence.
120 By certified letter dated November 5, 1993, Jones had asked
Patricia Reynolds to accommodate his November 15 schedule to his
appointment with Dr. Lomas at 9:15 a.m. that day. The Company
permitted him to delay the start of his 4-hour shift that day in order to
enable him to consult Dr. Lomas.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
John Lomas’ office. A female voice answered the phone.
Without asking for her name, Kramer said that he was the su-
pervisor of one of Dr. Lomas’ patients, Douglas Jones; that Dr.
Lomas had written a note saying that Jones could not run the
floor scrubber, and that Kramer would like to explain what the
floor scrubber was because it was definitely light-duty work.
She said that Dr. Lomas was not available at the time and she
could get any message to him. Kramer said that the floor
scrubber was a self-propelled machine, that all the operator had
to do was to walk behind it and guide it, and that the operator
did not have to do any lifting, bending, or twisting. She said
that she would explain this to Dr. Lomas, but she saw no reason
to restrict Jones from running the floor scrubber. Kramer asked
her to fax “a copy of the release similar to the one [he] had in
front of [him] getting [Jones] off the restriction of running the
floor scrubber.’’ She said she would. Kramer asked whether
Jones could run the floor scrubber that day; she said yes.
Kramer hung up and, without awaiting the promised fax, told
Jones to start operating the floor scrubber at once. Kramer
made no effort to find out the name of the woman he was talk-
ing to, or to ascertain whether she was a nurse or a receptionist.
Kramer testified that he believed she must have been a nurse
rather than a receptionist, because a receptionist would not have
taken it upon herself to remove a restriction imposed on a pa-
tient by Dr. Lomas. Patricia Reynolds testified that Kramer’s
call to Dr. Lomas’ office was not “normal procedure.’’
That day or the next day, the Company received on Dr. Lo-
mas’ prescription blank letterhead a faxed note, which was
dated November 15, named Jones, and stated, “May work with
floor scrubber.’’121 On November 16, Jones telephoned Dr.
Lomas’ office. A female answered the phone. Jones asked
why he was continuing to run the floor scrubber even though
the doctor’s note he had received the previous day had said not
to. She said that Kramer had told her that all Jones had to do
was walk behind it and there was no bending, lifting, or twist-
ing involved; that it did not sound to her as if operating the
floor scrubber would be further damaging to his health; and that
she had faxed such a message to the Company. Jones did not
complain to Dr. Lomas’ office about the fact that she was
changing Dr. Lomas’ written orders. Jones did not see the No-
vember 15 note until preparing for the August 1994–October
1994 hearing. Jones’ personnel folder includes another note, on
a prescription-blank form (under the same logo as Dr. Lomas’
previous notes but bearing no letterhead) which names Jones, is
dated November 17, and states, “May use floor scrubber.’’ The
signature blank contains what may be a purported signature;
underneath are written the words “Dr. Lomas.’’122 Jones never

121 The record contains several documents which bear Dr. Lomas’
purported signature. The record fails to show whether any of them was
his original (rather than his authorized) signature, and most of these
signatures are illegible. However, the signature blank on the November
15 document contains what appears to be merely a large check mark,
which is unlike any of his purported signatures on other documents.
122 Kramer testified that he first saw this document a few days after
his conversation with the female who answered Dr. Lomas’ telephone,
that the document received in evidence appeared to be the way it was
when he first saw it, and that he believed it had been mailed to the
Company. Company counsel expressed the belief that this document
had been faxed to the Company, and stated that he had never seen a
copy without the “Dr. Lomas’’ entry. The exhibit as received is a pho-
tocopy of the document in Jones’ file. I cannot determine from this
exhibit whether the “Dr. Lomas’’ was written by someone who wrote
saw this document prior to the unfair labor practice proceed-
ings. Patricia Reynolds, who testified that this November 17
document was received by the Company and was part of Jones’
personnel file, testified that she did not know why this docu-
ment was received by the Company, that she did not recall
asking anyone to obtain such a document, that she did not know
whether any other representative of the Company had requested
it, and that she did not know why the Company had received
the November 17 document when the November 15 document
said essentially the same thing. Kramer testified that both the
November 15 and 17 notes were in his envelope where he re-
ceives the mail which is sent to him at the Company, but that he
did not know why there were two documents which said essen-
tially the same thing.
During Jones’ next appointment with Dr. Lomas, on Decem-
ber 20, Jones said that the floor scrubber was aggravating his
back, to which Dr. Lomas replied that it was his information
that operating the floor scrubber did not take a lot of physical
effort and from the information he had received, he did not
think operating the floor scrubber would be harmful to Jones’
health. Dr. Lomas did not state where he had received this
information. As discussed infra, on the day after this appoint-
ment, the Company transferred Jones from the floor scrubber to
making boxes.
On November 18, 1993, the Company received a copy of the
original charge filed by Jones in Case 25–CA–22885, alleging
that because of his union activity, he had been reprimanded
several times since about July 8, 1993, and had been suspended
about September 28–30 and October 11–14. By letter to Jones
dated December 2, 1993, Patricia Reynolds stated that he was
“required’’ to submit an updated medical report from Dr. Lo-
mas every 30 days; and requested Jones to ask his physician to
notate the nature of Jones’ disability and the estimated length of
time he would be restricted to limited work activity. The letter
went on to say that since his last visit to his doctor was Novem-
ber 15, 1993, a current report was due on December 15. Article
XXIII, section 2 of the expired bargaining agreement required a
doctor’s report every 30 days from an employee on leave of
absence, but Jones was not on a leave of absence. Patricia
Reynolds testified that it is “standard procedure’’ for the Com-
pany to request an updated medical document from an em-
ployee on “any type of long-term restriction,’’ if the employee
has failed to submit such documentation of his own volition.
After receiving Reynolds’ December 2 letter, Jones called
Dr. Lomas’ office and asked it to provide the Company with an
updated medical document. Jones’ personnel folder contains a
note dated December 15, 1993, which is on Dr. Lomas’ pre-
scription-blank letterhead, names Jones, and states, “Current
light duty—plan FCE this week and final determination Mon-
day.’’ Patricia Reynolds testified that she considered this
document responsive to her letter of December 2. Jones did not
see this document prior to the unfair labor practice proceedings.
8. Allegedly discriminatory denial of 40-hour week; allegedly
discriminatory discipline about December 27, 1993
Toward the end of the week ending Saturday, November 20,
Patricia Reynolds told Kramer that the Company did not need
someone running the floor scrubber 20 hours a week, and in-
structed him to put Jones on a 2-day schedule. Thereafter,
Jones operated the floor scrubber for 4 hours a day 2 days a

part or all of the rest of the document, or at the same time that part or
all of the rest was written.
EBY-BROWN CO. L.P. 541
week. Jones’ personnel folder contains a note on a prescription
blank bearing Dr. Lomas’ printed name (among others), and
with an indecipherable signature, which is dated December 16,
1993, and reads in its entirety, “10 lb. wt. limit.’’ A few days
after the issuance of this note, Jones told Kramer that the doc-
tor’s note said nothing about bending, lifting, or twisting.
However, Jones did not complain about his 2-day schedule
until Tuesday, December 21, when he told Kramer that Jones
wanted to work a 40-hour week. Kramer said that the Com-
pany did not have that much light-duty work available for
Jones. Jones, who had been undergoing physical therapy since
about October 1993, accurately said that his most recent doc-
tor’s note had upgraded him to a straight 10-pound weight
limit, and that he had previously picked groceries on a 10-
pound weight limit. Kramer said that the Company did not
pick groceries on days. Jones asked whether the Company still
picked groceries on nights; Kramer said, “[Y]es. Jones said
that he had come from the night shift and saw no reason why he
could not pick groceries at night on a 10-pound weight limit, as
he had done before. Kramer said that the Company did not
have that much light duty work available for Jones.
Patricia Reynolds testified that the Company denied Jones’
request for a 40-hour week because he was still under a 10-
pound weight restriction from his doctor, and an employee on
disability needs a full release from his doctor before he is re-
turned to full-time status. On January 17, 1994, employee
Carla Wiggam, who had been undergoing treatment by a Meth-
odist Clinic doctor for a work-related shoulder injury, returned
to work subject to a limit of 6 to 8 hours a day, a 10-pound
weight limit, and “No Working Overhead.’’ At the time that
she testified in late August 1994, she was still under these re-
strictions, except that the weight limit had been raised to 25
pounds.123 Between the payroll week ending January 22, 1994,
and the payroll week ending March 26, 1994, she worked 41
hours or more during each of 7 weeks, 35 hours during 1 week,
and about 27 hours during each of 2 weeks; during each of
these 10 weeks except a 27-hour week, she worked 5 days.
During this Tuesday, December 21, conversation, Kramer
told Jones that thereafter, instead of working Tuesdays and
Fridays running the floor scrubber, Jones would be working
Tuesdays and Wednesdays making boxes.124 Kramer said that
Mondays and Tuesdays were the heaviest nights for picking
customer orders, so that after a heavy Monday night, the Com-
pany needed someone to come in Tuesday morning and make
boxes, and after a heavy Tuesday night, the Company needed
someone to come in Wednesday morning and make boxes.
Jones worked about 4 hours on Tuesday, December 21, and
on Wednesday, December 22. By letter to Patricia Reynolds
dated December 23, 1993, Jones enclosed a note, under Dr.
Lomas’ prescription-blank letterhead, which was dated Decem-
ber 16, 1993, named Jones, and stated “10 lb weight limit.’’
Jones’ covering letter stated that the enclosed note was “per the
company’s letter dated December 2, 1993 [see supra, part

123 Her shoulder injury was classified as a “permanent partial im-
pairment.’’
124 This finding is based on Jones’ testimony, credible parts of
Kramer’s testimony, and the Company’s payroll records, which show
that Jones worked on Tuesday, December 21, and Wednesday, Decem-
ber 22. Although Kramer testified to being uncertain whether Jones’
second day under his new schedule was to be a Wednesday or a Thurs-
day, Kramer testified to being certain that Jones’ first day of work was
to be a Tuesday.
V,B,7]. Please be advised that I am currently available to work
a full-time shift consisting of a 40-hour work week. Please
consider this written notification that I am requesting a full-
time (40-hour work week), at this time.’’
Jones did not report to work on Monday, December 27. At 2
or 2:30 p.m. that day, Patricia Reynolds telephoned Jones.125
She said that she had received Jones’ December 23 letter re-
questing a 40-hour week, and that the Company did not have
that much light duty work which did not require him to bend,
twist, or lift. Without denying that he was under a light duty
restriction, he said that the doctor’s note had said nothing about
lifting, bending, or stooping, but only indicated a 10-pound
limit. She said that the Company did not want him to create
further injury until the Company had some directive as to what
the injury was and what his restrictions or treatment would be.
Jones said that he had picked groceries (in 1991) on a 10-pound
weight limit. She said that she could not go up and down the
grocery line and weigh every item; and went on to say that after
Jones had concluded his 1991 grocery picking assignment un-
der a light duty restriction, the Company had begun the practice
of putting at the end of the grocery picking line some bulk
items which had previously been picked on another line.126
(However, the Company followed the practice of assigning
each picker to a given section of the line.) She said that
Kramer had told Jones the week before to work Mondays and
Tuesdays, that Jones was supposed to be in at work that day, a
Monday, and that he was considered a no-call, no-show for that
Monday. Jones accurately said that Kramer had told him to
work Tuesdays and Wednesdays. She said that this was ridicu-
lous, that it made no sense, that the heavy nights were on Mon-
days and Tuesdays, that the Company needed box makers on
Mondays and Tuesdays, and that this is what Kramer had told
him. Jones said that this is not what Kramer had told him, and
that Kramer had told him that he wanted Jones to come in after
the heavy night on Monday and make boxes on Tuesday morn-
ing, and to come in after the heavy night on Tuesday and make
boxes on Wednesday. Reynolds told Jones that thereafter, he
would be working on Mondays and Tuesdays, 8 hours a day.
When Jones reported to work on Tuesday, December 28,
Kramer asked where he had been yesterday. Jones said that he
was not supposed to be there yesterday. Kramer said that Jones
was indeed supposed to be there, that the matter had been dis-
cussed the previous Wednesday. Jones truthfully denied having
any such discussion. Kramer said that during this Wednesday
discussion, Jones had agreed to change his schedule to Mon-
days and Tuesdays. Jones worked at making boxes, on a Mon-
day/Tuesday schedule, from that day on, until the week ending
March 12, 1994.
As to Jones’ assigned schedule for the calendar week which
included Monday, December 27, Kramer testified as follows:
Before lunch on Wednesday, December 22, Patricia Reynolds
told him to change Jones’ shift from Tuesday/Wednesday to
Monday/Tuesday. Later that same morning, Kramer told Jones
that beginning Monday, December 27, Kramer needed him to
125 My finding that she initiated this call is based on Jones’ testi-
mony, and on her testimony as a company witness. As an adverse
witness called by the General Counsel, she testified that the call was
initiated by Jones.
126 This finding is based on a composite of credible parts of Jones’
and Reynolds’ testimony. For demeanor reasons, I do not credit her
testimony that she said the heavier items were scattered throughout the
grocery line.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
work on Mondays and Tuesdays; Jones replied, “[O]kay.’’
When Jones failed to report to work at 7:30 a.m. on Monday,
December 27, Kramer wrote him up as a no-call, no-show, on a
document not offered into evidence, and at an undisclosed hour,
gave the document to Patricia Reynolds. Kramer initially testi-
fied that it was “probably’’ Monday, December 27, when he
told her that Jones claimed he had not been told to report to
work that day, but immediately after so testifying, Kramer said
that he so advised her on Tuesday, December 28.
I credit Jones’ denial of any such conversation with Kramer
during the week preceding December 27, for demeanor reasons
and in view of the following additional considerations:
Kramer’s testimony that Jones worked a Tuesday/Wednesday
schedule (making boxes) for 2 or 3 weeks before the change in
his schedule is impeached by the Company’s records, which
show that the payroll week ending December 25 was the only
week during which Jones worked a Tuesday/Wednesday
schedule; however, these records are consistent with Jones’
testimony that his schedule was changed to Tues-
day/Wednesday immediately upon his being changed from the
floor scrubber to box making. Moreover, Patricia Reynolds’
assertion to Jones that his claim of being assigned to a Tues-
day/Wednesday schedule was “ridiculous’’ because the Com-
pany’s heaviest nights were on Mondays and Tuesdays is belied
by (1) Kramer’s testimony that he initially assigned Jones to a
Tuesday/Wednesday or Tuesday/Thursday boxmaking schedule
and that it was adhered to for 2 or 3 weeks, although Kramer
had been the day warehouse manager for 2 years and must have
known what times the Company particularly needed boxes; (2)
the undisputed evidence that boxmaking was performed by the
Sunday night warehouse crew, although Sunday is a light day;
and (3) Kramer’s explanation to Jones (as shown by the undis-
puted evidence) about the reasons for Jones’ initial Tues-
day/Wednesday schedule. Finally, Reynolds’ assertion to Jones
(as shown by the undisputed evidence) that a Monday/Tuesday
schedule had been assigned to Jones by Kramer (although there
is no evidence or claim that she was present during any such
assignment) is difficult to square with Kramer’s testimony that
it was Reynolds who told him to reschedule Jones, a claim
which she did not advance to Jones when he denied having
been rescheduled to Mondays.
The Company has a policy of putting on absenteeism proba-
tion an employee who has five “occurrences’’ of absence (one
“occurrence’’ may extend over more than 1 day) in a calendar
year. According to the Company’s witnesses, this policy is
applicable to all absences, whether or not excused, including
paid sick leave days specified in the expired bargaining agree-
ment, except for absences due to injuries covered by work-
men’s compensation, absences for medical appointments which
cannot be scheduled during nonworking hours, funeral leave,
vacation days, and absences covered by the Family and Medi-
cal Leave Act of 1993, 29 U.S.C. §§ 2601–2654 (the FMLA).
Absenteeism probation lasts for 6 months after the fifth “occur-
rence,’’ a probation period which may extend into the calendar
year after the calendar year during which the five absences
occurred. While on absenteeism probation, an employee is
subject to a 3-day layoff for a sixth absence and discharge for a
seventh absence, and is ineligible for consideration for a bonus.
On January 3, 1994, Jones received a “Written Warning—
Excessive Absenteeism.’’ This document put Jones on absen-
teeism probation until June 27, 1994, on the basis of five speci-
fied instances of absenteeism. These five instances included
his failure to report to work on Monday, December 27, 1993,
and his leave of absence between October 4 and 27, 1993 (su-
pra, part V,B,5). When Jones received this document, he told
Kramer that (as Stephen Reynolds had said on October 18,
according to Jones’ uncontradicted testimony) the October 4–
27 leave of absence should not have been charged as an occur-
rence.
Inferentially about January 4, 1994, Kramer advised Patricia
Reynolds that Jones had refused to sign the absenteeism-
probation document on the ground that his leave of absence
should not count as an occurrence. By letter to Jones dated
January 7, 1994, Stephen Reynolds stated that under a 1991
arbitration decision, leaves of absence were considered absen-
teeism occurrences.127 The letter went on to say that the Com-
pany was willing to consider the “leave period of 9/27/93–
11/15/93’’ (Jones had returned to work on November 2) as an
absence under the Family Medical Leave Act, and to rescind
Jones’ absenteeism probation, provided he had Dr. Pollom fill
out and return the attached FMLA forms before January 17,
1994. Jones never asked Dr. Pollom to fill out these forms.
Jones credibly testified that he made no such request of Dr.
Pollom because Jones believed that the occurrence charged on
December 27 was “bogus’’ and should not have been counted;
that his October–November leave of absence should not have
been counted because it had been preapproved; and that he did
not want to claim that this leave of absence was covered by the
FMLA because that law calculates the entitlement to 12 weeks
of leave on a rolling basis and he did not want his October–
November leave to be deducted from that entitlement and, in
consequence, to affect his anticipated need therefor to undergo
advanced physical therapy in 1994.128 Nobody from the Com-
pany ever asked him for these reasons, and he never volun-
teered them.
For the next 11 weeks, Jones worked less than a full-time
schedule.129 Meanwhile, at the Company’s request (by letter to
Jones dated January 7, 1994) for an updated medical report, he
arranged for Dr. Lomas to fax a note on a prescription blank,
with Dr. Lomas’ letterhead, which was dated January 12, 1994,
and stated that Jones was subject to a 10-pound weight limit.
Pursuant to a letter to Jones from the Company dated February
15 requesting an updated medical report, Dr. Lomas faxed to
the Company on February 21 a note stating that Jones was sub-
ject to a 20-pound restriction.
As previously noted, Jones became chief steward in February
1994. In late January or early February 1994, the Company
received the charge filed by Jones in Case 25–CA–22983, al-
leging that because of Jones’ union activities, and because he
had filed charges and given testimony under the Act, the Com-
pany had given him a low rating, and denied him a bonus, on
July 30, 1993; had required him about September 21 to obtain
a doctor’s statement in order to leave early without being disci-
plined; had denied him a 40-hour week since about November
2; and had placed him on a 6-month attendance probation in
late December. On February 18, 1994, the Company received

127 The complaint does not allege that the Company violated the Act
by thus retroactively reclassifying Jones’ leave of absence as an occur-
rence.
128 For a period which included February 1994, he did in fact go to
the rehabilitation hospital three times a week for physical therapy.
129 During this period, he usually worked 2 days a week and 4 or 5
hours a day. However, on occasion he worked 1 or 3 days a week, and
8 or 9 hours a day.
EBY-BROWN CO. L.P. 543
the first amended charge filed by Jones in Case 25–CA–2885.
This charge alleged that because of “Jones’ union and other
protected activity including his testimony in NLRB proceed-
ings,’’ the Company had reprimanded him on September 12
and 16, 1993; had reprimanded him, and issued him a 3-day
layoff, on September 17; had reprimanded him, and issued him
a 1-week layoff effective in October, on September 23; and
since November 1 had required Jones to return from a leave of
absence, denied him paid medical leave, and assigned him to
onerous work assignments. On March 3, the Company re-
ceived the consolidated complaint, which was based in part on
Jones’ charges as amended in Case 25–CA–22885. In addition
to including the above-described allegations in the first com-
plaint, this complaint alleged, among other things, that the
Company, through Patricia Reynolds, had forbidden employees
to wear union insignia on their back belts (at the hearing, she
admitted to directing such conduct to Jones), and had unlaw-
fully discriminated against Jones in a number of other respects.
By letter to Patricia Reynolds dated March 9, 1994, Jones
stated that he was again requesting a 40-hour work week, re-
quested his 6-month review and evaluation, and enclosed a
photocopy of a note from Dr. Lomas, on a prescription blank
with his letterhead, which stated, “May work as tolerated/8-
hour days.’’ The note was dated March 9, a Wednesday, and
was received by Jones on that day. At that time, Jones was
working a Monday/Tuesday schedule. He credibly testified to
the apprehension that if he gave the Company this note from
Dr. Lomas, management would say that he was supposed to
come to work the next day, Thursday, March 10. He went to
Dr. Lomas’ receptionist and had her add the entry “Return on
3/14’’ (a Monday). Then, he hand-delivered this note to the
Company.
By letter to Jones dated March 9, and received by him on
March 12, 1994, Reynolds stated:

Please be advised that you are required to submit an updated
medical report from Dr. Lomas every 30 days. Per the con-
tract, please request that your physician note “the nature of
your disability, estimated length of time that you will be re-
stricted to light duty, along with the specific restrictions.’’
This is the company’s 14th request for this information and to
date it has not been provided.130 Before returning to work
March 21, 1994, you must [submit] the complete information.

Jones worked half-days on March 14 and 15. On March 14,
Kramer called him in and said, “I understand that you requested
your review and evaluation.’’ Jones said, “[Y]es.131 Kramer
said that Jones was considered part time, and part-timers did
not get reviewed or evaluated. Jones asked about getting a 40-
hour work week. Kramer said that he knew nothing about this.
Jones said that because both the request for review and evalua-
tion and for a 40-hour week were in the same certified letter, if
Kramer knew about the review he must also know about the 40-
hour work week. Kramer said that he would have to check with
Patricia Reynolds.132

130 This was in fact the first such request from the Company since
February 21, when Dr. Lomas had faxed to the Company a note stating
Jones was subject to a 20-pound weight restriction.
131 Jones credibly testified that he was referring to the review and
evaluation which (in his opinion) should have been given in January or
February 1994.
132 My findings as to this conversation are based mostly on Jones’
testimony. Kramer testified that he “informed’’ her that Jones had
Later that day, after checking with her, Kramer advised
Jones by telephone that on the following day, he would start
working a full-time schedule in the stamping department under
King. Kramer told Jones that he would have to wear a back
belt, and asked if this would present any problem. Jones said
yes, because the Company had been requiring him to wear a
belt which was too small. Kramer said that this would not be a
problem, and that the Company would fix Jones up with a lar-
ger size.
Jones began to work in the stamping department on March
16. On March 18, he developed tendonitis in his left wrist ow-
ing to the repetitive motion required in his stamping department
job. He was then transferred to the tobacco department, which
required bending, stooping, and lifting products which weighed
up to 50 pounds. On March 30, after he was returned to the
stamping department, Stamp Manager King told him that he
had to have an updated doctor’s note or he would not be al-
lowed to work. After telling King that this was “ridiculous,’’
Jones left work and came back with a note from Dr. Lomas on
a prescription blank bearing his letterhead and dated March 30,
1994, which states, “No wt. restrictions/May work up to 10
hours QD.’’
On April 6, 1994, Jones hand-delivered to Stamping Man-
ager King or working foreman Mike Brown a typewritten
document, based on an April 5 physical examination and signed
by Dr. Lomas, which stated, inter alia, that Jones was working
8 hours a day without weight restriction, that he was doing
“quite well’’ in his present job, that “at this point I would like
to increase him to 10 hours a day,’’ and that “I feel that he is
going to progress without significant incident. I plan to see him
in 4–6 weeks. If he does well at that I will probably release
him from an hourly restriction in addition to the weight is-
sues.’’ By letter to Jones dated April 21, Patricia Reynolds
asked Jones to submit an updated medical report from Dr. Lo-
mas by April 30. About May 3, someone from the Company
told Jones that the Company had not yet received an updated
doctor’s note. Jones thereupon hand-delivered to Brown a
second copy of Dr. Lomas’ April 6 note. By letter dated May
27, Reynolds advised Jones that “per the contract’’ he was re-
quired to submit an updated medical report from Dr. Lomas
every 30 days, stated that the last medical report the Company
had received was dated April 5, and stated that Jones would
have to submit an updated medical report before he could re-
turn to work. Also about May 27 (a Friday), Working Foreman
Brown told Jones that he could not come back to work on
Monday without a doctor’s note. Jones said that this was “ri-
diculous,’’ that he had been working for 40 hours without any
problem, and that he was not scheduled to see the doctor for
another week. Jones was not allowed to work again until after
his scheduled visit on June 6 with Dr. Lomas, who gave Jones a
note bearing that date and stating “work as tolerated.’’ Jones
gave this note to Brown, and asked him to copy the document
and return the original to Jones. However, Brown returned
only a copy to Jones, explaining that the original was neeed by
the Company “for workmen’s compensation purposes’’ (al-
though Jones had never filed a workmen’s compensation claim
based upon his 1993–1994 back problems). As of August

requested a 6-month evaluation. Because Jones’ letter to her dated 5
days previously had contained such a request, I credit Jones. However,
I regard the issue as immaterial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
1994, Jones was still working 40 hours a week in the stamping
department.
Jones remained on absenteeism probation until June 27,
1994, the date specified on the document issued by Kramer on
January 3, 1994. During this period, Jones was not absent. He
did not file a grievance protesting his having been charged with
an occurrence on December 27, 1993. As discussed infra, part
V,D,1,b and F,3,5, and 7, the Company did not purport to rec-
ognize the Union between August 1993 and March 1994. Un-
der the expired bargaining agreement, grievances had to be
filed within 10 days of the occurrence of the event out of which
the grievance arose. On January 26, 1994, he filed a charge
with the NLRB in which he complained, among other company
conduct, of the December 27 incident and his consequent atten-
dance probation.
9. Analysis and conclusions
The General Counsel’s contention that the Company unlaw-
fully discriminated against alternate steward Jones on various
occasions after August 1993 must be considered in light of the
evidence (summarized supra, parts III,V,A,1–9) that the Com-
pany not only wanted to rid itself of the Union, but also wanted
to rid itself of alternate steward Jones because of his union
activity and because of his communications with the NLRB
about the Union’s objections to the election; and that for these
reasons the Company unlawfully lowered his July 1993 evalua-
tion and withheld an August 1993 bonus. Further, the allega-
tions of subsequent discrimination against Jones must also be
considered in light of his actions in filing charges and an
amended charge against the Company in November 1993; par-
ticularly in view of the Company’s resentment at Jones’ July
1993 statements to the NLRB in support of the Union’s objec-
tions, I infer from the probabilities of the case that the Com-
pany likewise resented Jones’ subsequent unfair labor practice
charges. Further, the Company’s personnel action with respect
to Jones must be assessed in light of the Company’s so-called
“absenteeism’’ policy, under which an employee with five oc-
currences of absence during a calendar year is placed on a 6-
month absenteeism probation during which he is subject to a 3-
day layoff for a sixth occurrence and discharge for a seventh
occurrence.
This absenteeism policy assumes particular significance in
light of the incidents on November 2 and December 27, 1993.
Since September 27 and as of November 2, Jones had been on a
leave of absence because of back problems. According to the
Company’s eventual position (although Stephen Reynolds had
otherwise advised Jones before he began his leave), this leave
of absence constituted Jones’ fourth absenteeism occurrence for
1993. Initially, this leave of absence was to have expired on
October 27, more than 2 months before the expiration of the
calendar year would have wiped out up to four absenteeism
occurrences in 1993. However, on November 1, the Company
received a note from Jones’ doctor which stated that Jones
would be physically unable to return to work until November
16—a date which would have left only 6 weeks for Jones to
accumulate a fifth 1993 absenteeism occurrence and thereby be
subject to absenteeism probation which would render him sub-
ject to discharge for two more occurrences even if they did not
take place until 1994. Accordingly, the Company decided to
entrap Jones into another absenteeism occurrence in 1993.
Thus, after Sizemore was advised on November 2, 1993, by
the office nurse of Jones’ personal physician that Jones was to
do no lifting, bending, or stooping but could do a “sitting job,
something like a desk job,’’ Sizemore merely asked for a doc-
tor’s note which included the restrictions of “no lifting, bend-
ing, or stooping.’’ Although Sizemore told Patricia Reynolds
that the office nurse had said (inter alia) that Jones would have
to be given something that would be a sitting job, something
like a desk job, and although Reynolds testified that at that time
the Company had no desk work which Jones was capable of
performing (although see supra, part V,B,6), Reynolds told
Sizemore to tell him to report for work that night. Sizemore
thereupon left on Jones’ answering machine a message direct-
ing him to report to work that evening. She inaccurately told
him that his doctor’s updated written statement said it would be
all right for Jones to do light-duty desk work, and in effect told
him that he would be assigned to such work (as he was not).
Before Jones revealed as a rebuttal witness that he had retained
the answering-machine tape of her message, Sizemore sought
to obfuscate her trickery in making this statement, by testifying
(inconsistently with her own contemporaneous notes) that she
did not tell him the Company had desk work available. When
Sizemore’s proffer of light-duty desk work induced Jones to
return to the facility (thereby terminating his at least alleged
fourth absenteeism occurrence), the Company did not give him
the desk work to which his doctor had restricted him and which
Sizemore had promised him, although such work had been
assigned to Carla Wiggam (without prior training) when she
injured her back, and to unit employee Hunt (also without prior
training, so far as the record shows) during a temporary short-
age of warehouse work. Further, the Company’s written repre-
sentations to Jones about the information which it had received
from his doctor’s office made no mention of Jones’ limitation
to a sitting job, but, instead, untruthfully attributed to the doc-
tor’s office the statement that he could perform any light-duty
work which the Company had available, provided it did not
require him to lift, bend, or stoop.
Moreover, the Company did not even assign Jones the job of
making boxes, although other employees’ overtime hours at
premium pay could have been reduced by assigning him to
such work, Patricia Reynolds at one point testified to the belief
that his medical restrictions would not have precluded him from
performing such work, and on an earlier occasion another
warehouseman on light duty had been assigned box making on
a full-time basis. Nor is there any evidence that the Company
sought to limit its need to hire temporary employees to assem-
ble “deals’’—some steps of which require no lifting, stooping,
bending, or twisting—by assigning Jones to such work. In-
stead, and notwithstanding Jones’ truthful assertions to Super-
visor Grigdesby that the Company had said Jones was to be
performing light-duty desk work, he was initially assigned a
sweeping job on the night shift (his shift before he began his
leave of absence) which required him to lift, stoop, and bend.
When he continued to report for such work on the night shift
notwithstanding his need to perform motions forbidden by his
doctor, the Company transferred him to the day shift in order to
assign him to another job (operating the floor scrubber) which
also required him to perform proscribed motions and which he
was directed to operate on much more frequent occasions than
it was operated during periods when he was not assigned to this
job. When Jones thereupon obtained a note from his doctor
which forbade him to operate the floor scrubber, Supervisor
Kramer procured a rescission of this note by incompletely de-
scribing the job to someone in the doctor’s office who he knew
was not a doctor, without even attempting to find out whether
EBY-BROWN CO. L.P. 545
she was a nurse or a receptionist. When Jones nevertheless
continued to work his scheduled hours and days on the floor
scrubber, and with the approach of 1994 when Jones’ four ab-
sentee occurrences in 1993 would be erased, the Company
engineered a fifth occurrence on the next to last day of his 1993
work schedule, and thus put him on attendance probation, by
telling him that his then Tuesday/Friday schedule had been
changed to Tuesday/Wednesday and then charging him with a
fifth occurrence when he failed to report to work on the follow-
ing Monday, December 27. Thereafter, Jones’ December 23
request for a 40-hour week picking products, instead of the
short weeks (between about 8 and about 16 hours) he had been
working, was denied by Patricia Reynolds on the stated ground
that the weight of some of these products exceeded his 10-
pound weight limit, although the 10-pound restriction could
have been obviated by giving him a work station which was not
at the end of the pick line and on previous occasions the Com-
pany had given him work assignments which were inconsistent
with his medical restrictions; moreover, at the hearing before
me, Reynolds explained her denial of a 40-hour week on a
ground not voiced to Jones and proved false by Carla Wig-
gam’s work schedule while on light duty namely, that a 40-hour
schedule could not be given to an employee on medical restric-
tion. Moreover, as discussed infra, part V,F,7–12, and G, dur-
ing discussions with the Union between April and June 1994,
some of them participated in by Jones, the Company advanced
and adhered to a proposal which would have had the effect of
reactivating Jones’ absenteeism occurrences, and rejected union
proposals which at least arguably would have had the effect of
excising his attendance probation.
The foregoing evidence preponderantly shows that Jones’
union activity, and his action in giving the Board an affidavit in
support of the Union’s objections (which affidavit also sup-
ported the Union’s subsequent unfair labor practice charges), at
least partly motivated the Company’s action in (1) directing
him on November 2 to return from his medical leave of absence
on the false representation that he would be assigned desk
work; (2) assigning him on November 2 to a sweeping job
which was inconsistent both with the Company’s prior assur-
ances and with his medical restrictions; and (3) transferring him
on November 8 to the day shift in order to assign him to a
floor-scrubber job which was inconsistent with his medical
restrictions. Such evidence also preponderantly shows that his
union activity, his affidavit, and the charge which he filed with
the Board in mid-November 1993, at least partly motivated the
Company’s action in (1) denying him a 40-hour week on De-
cember 21, 1993, and (2) charging him with an attendance oc-
currence on December 27, 1993, which resulted in his being put
on attendance probation, although his December 27 “absentee-
ism’’ was due to his having adhered to the schedule which his
supervisor had told him to observe. Accordingly, the burden
rests on the Company to prove, by a preponderance of the evi-
dence, that the Company would have taken the same actions
against Jones even if he had not engaged in protected union
activity or given statements to and filed charges with the Board;
see cases cited supra, footnote 68 and attached text. Having
offered for such actions various explanations all of which are
demonstrably false or pretextuous, the Company has failed to
discharge that burden. Aero Metal Forms, 310 NLRB 397, 399
(1993); and Asphalt Paving Co., 310 NLRB 1109 (1993).
Further—and in light of the Company’s motivation and con-
duct in connection with these work assignments, with Jones’
request for a 40-hour week, and with his December 27 “absen-
teeism occurrence’’—I conclude that the evidence preponder-
antly shows that Jones’ union activity, and his statements to the
Board in connection with the Union’s objections to the election,
constituted at least part of the Company’s motivation in issuing
reprimands to Jones dated September 12, 17, and 23, ostensibly
for leaving work before general dismissal; in administering a
layoff effective on September 28, 1993, on the ground that the
leave-early event which was the subject of the reprimand dated
September 17 was his second offense of that nature; and in
administering a 4-day effective on October 11, on the ground
that the leave-early incident which was the subject of the rep-
rimand dated September 23 was his third offense of that nature.
Thus, the reprimand dated September 17 contains an incom-
plete, inaccurate, and misleading account of the events on that
day—more specifically, the reprimand alleged that his claim of
back pain was untruthful because he had conversed with other
employees for 20 minutes after leaving and 22 minutes before
general dismissal; whereas he had been sitting down during this
conversation, he had told the assistant night warehouse man-
ager that what Jones needed was to rest his back and to get off
his feet, the conversation had lasted less than 10 minutes, and
his delay in leaving the premises was due to a locked gate to
which Jones had no key. Further, all of these reprimands were
untruthful in alleging that when leaving early, Jones was failing
to obey orders—more specifically, in each such incident, his
immediate superior had at least tacitly given him permission to
leave. Moreover, in May or June 1992, Patricia Reynolds told
the night crew that they could leave before general dismissal if
they became ill, and to tell their immediate superior they were
leaving (as Jones had done), but said nothing about a doctor ‘s
note; in September 1992, the Union and management had
reached an agreement that leaving before general dismissal
would be excused by management when due to medical situa-
tions; and in the spring of 1993 (about 6 months before the
September 1993 reprimands here in question), when Jones left
early because of an upset stomach, he was not disciplined there-
for even though he failed to bring in a doctor’s excuse. Fur-
thermore, in connection with the doctor’s—note matter, the
Company gave mutually inconsistent statements and engaged in
equivocal conduct. Thus, Patricia Reynolds told Jones on Sep-
tember 21 that he had to have a doctor’s note before he could
leave early, whereas on September 20, Grigdesby at least im-
plied that a doctor’s note obtained after Jones had left early but
before he was reprimanded would have obviated the reprimand,
and Patricia Reynolds testified that an otherwise sufficient
postreprimand doctor’s note would have caused the reprimand
to be rescinded. Moreover, as to Jones’ September 22 doctor’s
note, Grigdesby told Jones that it was “invalid’’ because Jones
had told the doctor what to write (although the Company hon-
ored as to Carla Wiggam a doctor’s note in which she had
played a similar role), whereas Patricia Reynolds testified that
she believed the September 22 note to be genuine and con-
cluded therefrom that Jones had some sort of back problem
(although she also testified, in effect, that it did not suggest to
her any reason why Jones had left early on September 7 or 17).
In short, the evidence regarding the Company’s proffered ex-
planations for Jones’ leave-early reprimands dated September
12, 17, and 23—and, therefore, his 3-day layoff effective Sep-
tember 28 and his 4-day layoff effective October 11—supports
the General Counsel’s contention that such reprimands were at
least partly motivated by unlawful considerations. A fortiori,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
such explanations do not satisfy the Company’s burden of pre-
ponderantly showing that even in the absence of Jones’ pro-
tected activity, the Company would for lawful reasons have
reprimanded him and given him a disciplinary layoff.
Also, and in light of the Company’s unlawfully motivated
action against Jones in other respects, I conclude that the Gen-
eral Counsel has shown by a preponderance of the evidence
that the Company was motivated, at least in part, by his pro-
tected conduct in denying disability pay to Jones. Thus, Ste-
phen Reynolds initially gave Jones a false explanation—
namely, that he was not on a medical leave of absence—for
denying him disability pay, concomitantly remarking that he
was always trying to cause trouble for the Company, and if he
did not like the Company, he should just get out. Then,
Stephen Reynolds gave Jones a second untruthful explanation
for his failure to receive disability pay—namely, that he had not
gone to a company doctor, a claim inconsistent with the testi-
mony of both Stephen and Patricia Reynolds that except for
injuries covered by workmen’s compensation (which Jones had
expressly disclaimed in their presence), the Company had no
requirement that the employees consult a company doctor. At
the hearing, Stephen Reynolds testified that in order to receive
disability pay, an employee must meet the requirement, and
only the requirement, of a doctor’s slip stating that the em-
ployee is totally unable to work. However, several other em-
ployees received disability pay without submitting such a slip,
the Company failed to offer into evidence the company hand-
book which allegedly set forth this requirement (see cases cited
supra, fn. 58), Patricia Reynolds testified that an employee who
is on medical leave is normally unable to perform any work at
the Company, and as soon as Jones received from his doctor a
statement that Jones was “physically unable to return to work at
this time’’ (by which time, Jones had learned and inquired
about disability pay) the Company recalled him to work with
the false representation that he would be given desk work.
Because the Company’s tendered lawful reasons for denying
Jones disability pay are pretextuous, the Company has failed to
meet its burden of showing by a preponderance of the evidence
that Jones would have been denied disability pay for lawful
reasons even if he had not engaged in protected activity. Ac-
cordingly, I conclude that the Company violated the Act by
failing to give him disability pay.
In addition, I conclude that the General Counsel has prepon-
derantly shown that Jones’ never-rescinded reprimand dated
September 17, 1993, and referring to his failure to wear a back
belt, was motivated—like his reprimands dated September 15,
20, and 23—at least partly by his union activity and his state-
ments to the Board. When Jones demonstrated to Grigdesby
(who had signed the letter of reprimand) that the belt issued to
Jones was too small, Grigdesby told him not to worry about
whether to wear the back belt; moreover, when Jones advised
Day Warehouse Manager Kramer about 5 months later that
Jones’ back belt was too small, Kramer arranged for him to
receive a larger size belt. Furthermore, a number of employees
had failed to wear their back belts without incurring any disci-
pline therefor. Moreover, although the Company does not
normally require an employee to wear a back belt if his doctor
forbids it, Grigdesby gave Jones a previously prepared repri-
mand letter for failure to wear a back belt even though Jones
had advised Grigdesby that as to the MRI scan the results
(whose pendency had formed the basis of the doctor’s note
forbidding Jones to wear a back belt) had not yet come back;
and Reynolds never took any action with respect to either this
reprimand letter or her September 17 letter stating that Jones
would be given a disciplinary layoff for the “next’’ back belt
violation, even though she admitted (in effect) that a medical
excuse therefor had been supplied by Dr. Pollom’s September
22 note that Jones was to wear a back belt at his discretion. In
short, the circumstances surrounding the explanation given by
the Company for the September 17, 1993 disciplinary letter
serve to reinforce, rather than to detract from, the General
Counsel’s affirmative case. A fortiori, the Company has failed
to discharge its burden of preponderantly showing that for law-
ful reasons it would have administered the reprimand, and
failed either to rescind it or to issue Jones a larger back belt
upon learning that Jones’ back belt was too small, even if he
had not engaged in protected activity.
Additionally, and in light of the Company’s motivation for
other reprimands and adverse action directed against Jones, and
in light of the September 16 reprimand’s reliance on the dis-
criminatorily motivated comments on his July 1993 evaluation
(see supra, part V,A,1,d, and 2,a), I find that the evidence pre-
ponderantly shows this September 16 reprimand was at least in
part similarly motivated. Although this September 16 repri-
mand was ostensibly based on alleged socializing and low pro-
ductivity by Jones on September 15, the supervisor who signed
it, Grigdesby, was not asked to testify about the events alleg-
edly described in this letter, whereas Jones gave honest testi-
mony that during the shift in question, he worked at his usual
pace and socialized no more than usual. Nor did the Company
present testimony from anyone else, in a position to observe
Jones’ conduct during the shift in question, as to his work pace
or socializing. In short, the Company has failed to sustain its
burden of showing, by a preponderance of the evidence, that
Jones would have received the September 16 reprimand for
lawful reasons even if he had not engaged in protected activity.
In addition, I conclude that the evidence preponderantly shows
that the Company was motivated at least in part by Jones’ pro-
tected activity when, in response to Jones’ December 21, 1993
request for a 40-hour week, the Company refused to assign him
such a schedule until March 16, 1994, and revoked this assign-
ment after May 27, 1994, and until on June 6, 1993, he com-
plied with the Company’s demand for an updated doctor’s note.
I so conclude because of the Company’s prior and subsequent
other acts of discrimination against Jones, and in view of the
demonstrated falseness of the Company’s explanations for such
action. More specifically, his 10-pound weight limit would
have permitted him to pick groceries on the night shift if he had
been assigned to any one of the several work stations before the
last work station on the pick line, employee Carla Wiggam had
been given a 40-hour week while she was under medical re-
strictions which included a 10-pound weight limit, and the con-
tract contained no requirement for updated doctor’s notes from
employees who were actively working. Further, the pretextu-
ousness of these explanations establishes that the Company has
failed to sustain its burden of preponderantly showing that for
lawful reasons Jones would have been denied a 40-hour week
even if he had not engaged in protected activities.
For the foregoing reasons, I find that the Company has vio-
lated Section 8(a)(1), (3), and (4) of the Act by: (1) issuing
disciplinary documents to Jones dated September 12, 16, 17,
20, and 23, 1993; (2) laying Jones off between September 28–
30 and October 11–14, 1993; (3) denying Jones disability pay
between September 27 and November 2, 1993; (4) telephoning
EBY-BROWN CO. L.P. 547
Jones’ doctor, and then directing Jones to return to work, on
November 2, 1993; (5) giving Jones onerous work assignments
effective November 2, 1993, and November 8–December 16,
1993; (6) transferring him between shifts on December 8, 1993;
(7) denying Jones a 40-hour week between December 27, 1993,
and June 7, 1994; (8) determining the existence of an absentee-
ism occurrence on December 27, 1993; and (9) putting Jones on
attendance probation between December 27, 1993, and June 27,
1994. Furthermore, in the context of the Company’s concomi-
tant discriminatory denial of disability pay, and in view of the
Company’s prior unfair labor practices against Jones, I con-
clude that Jones could reasonably believe that in remarking that
he was always trying to cause the Company trouble and should
get out if he did not like the Company, Stephen Reynolds was
attributing to Jones’ protected activity his failure to receive
disability pay, and because of his protected activity was solicit-
ing him to resign. Accordingly, I find that such remarks vio-
lated Section 8(a)(1); see cases cited supra, footnote 13.
C. Alleged Unfair Labor Practices Regarding Union Access to
Plant (Complaint Paragraphs 7(e), and (f))
1. Allegedly relevant provisions of collective-bargaining
agreement
The August 1990–August 1993 collective-bargaining agree-
ment included the following provisions:

Authorized agents of the Union shall have access to
the Employer’s establishment during working hours for
the purpose of adjusting disputes, investigating working
conditions, collection of dues and ascertaining that the
Agreement is being adhered to, but this shall not unduly
interfere with the performance of necessary work.

2. Alleged unlawful restriction of access in May
and June 1993133
a. Facts
Before May 1992, the Indianapolis warehouse was serviced
by then union business representative, Pat Trader. In May
1992, when Buhle was about to take over the account, Trader
took him directly to the warehouse door, which is on the side of
the building. The two of them were buzzed in by someone
inside the warehouse, and then proceeded directly to the break-
room, where they talked to a few people. Then, Trader took
Buhle to the warehouse and introduced him to several people.
After that, Trader took Buhle to Patricia Reynolds’ office and
introduced him to her. After a 5- or 10-minute conversation
with Reynolds, Buhle left the premises. On at least three occa-
sions during the first month when he was servicing the Indian-
apolis warehouse, Buhle used in entering the facility the same
procedure which had been used during his first visit, when he
was accompanied by Trader.134

133 The events discussed under this heading occurred before the rep-
resentation election. However, for convenience, they are discussed
under the instant heading “Part V, Alleged Post Election Unfair Labor
Practices.’’
134 My findings in this paragraph are based on Buhle’s testimony, on
which both the Company’s (pp. 258–259) and the General Counsel’s
(p. 25) posthearing briefs rely. Patricia Reynolds’ and Lodics’ testi-
mony is susceptible to the interpretation that a different practice was in
effect at all times until late August 1993.
About a month after Buhle began to service the Indianapolis
warehouse, Patricia Reynolds told him that if he was going to
be visiting the warehouse, he would first have to check in at the
lobby, sign in, obtain a visitor’s pass, and then wait at the side
door (which gives direct access to the warehouse) until he was
buzzed in by management. Buhle did not file a grievance alleg-
ing that this change violated the bargaining agreement. Rather,
he accepted the new arrangements (according to his testimony),
and usually followed them.135 After entering the warehouse, he
sometimes posted material on the bulletin board (which is near
the warehouse entrance) and sometimes merely chatted with the
employees. Some of these chats occurred while the employees
were in the breakroom while they were taking their breaks.
However, on various occasions up to about April 1993, he chat-
ted with them while they were actively working, or near the
drivers’ room or an area called “the cage,’’ without any inter-
ference by managemeent.136
About March 1993, an investigator from the Indiana Occupa-
tional Safety and Health Administration told the Company and
Buhle that anyone (including vendors) who entered the ware-
house for the first time had to be given an explanation of the
hazardous materials on the premises; however, once that expla-
nation was given to a particular individual, it did not have to be
repeated every time he returned to the warehouse unless addi-
tional hazardous material was included or incorporated.137
Also, during a conference attended by Buhle, one of the stew-
ards, or the employee wife of Steward Arnie Ray Goens, the
Company identified with the IOSHA representative what haz-
ardous materials were present in the warehouse, although not
where they were physically located.
Thereafter, about late April 1993, Patricia Reynolds told
Buhle that he would no longer have access to the warehouse
unless, before each visit, he had a conference with her to keep
abreast of all the hazardous material in the warehouse; and that
absent such a prior conference, he would have access to the
breakroom only. Between the date that Reynolds imposed
these strictures and the date of the election, Buhle gained access
to the warehouse on at least four occasions. On two of these
occasions, he checked in at the lobby, was then buzzed into the
warehouse, and restricted his activities to posting material on
the bulletin board and conferring with employees in the break-
room while they were on break and the room was not being
135 Because the lobby office is not open at night, he was unable to
check in at this office before visiting the night shift at the warehouse;
Patricia Reynolds testified that this was a proper procedure between
4:30 p.m. and 8 a.m., when no receptionist was on duty in the lobby.
Also, on one occasion when he wanted to file a grievance on the last
day when the grievance would be timely, after a 45-minute fruitless
wait in the lobby he went directly to the warehouse side door and was
buzzed in.
136 My findings as to contacts with employees outside the break-
room are based on the testimony of Buhle and Teresa Goens. Although
Patricia Reynolds testified that Buhle was not to her knowledge permit-
ted to be present in any part of the warehouse except for the breakroom
and (for the purpose of posting notices) in the warehouse area near the
bulletin board, there is no record evidence that she had any first-hand
knowledge of what the practice had been in fact. For demeanor rea-
sons, I do not credit the testimony of Kramer (who according to
Buhle’s credible testimony was in a position to observe Buhle’s con-
tacts with employees in the warehouse but not in the breakroom) that
Buhle chatted with employees in the breakroom only.
137 There is no evidence or claim that such additions were ever ef-
fected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
used for other purposes; neither such errand required him to be
in the area of any hazardous materials. The record fails to show
whether these two visits took place before or after the represen-
tation petition was filed.
The other visits took place after the petition was filed. On
one of these occasions, he did not sign in at the lobby, was
buzzed into the warehouse by someone, and proceeded to the
breakroom. The employees were not on break, and he talked to
nobody while in the breakroom. Then, he left the breakroom
and went into the warehouse proper, where he began to con-
verse with two unit employees. Kramer and Lodics approached
Buhle and said that he had no right to be there.138 He said that
he believed he had a right to be there, and continued his con-
versation with the employees. After ending this conversation,
he walked to other locations in the warehouse proper, and
talked with other employees. Kramer and Lodics walked right
behind him everywhere he went. After 8 to 10 minutes in the
warehouse proper, Buhle proceeded to the breakroom, where-
upon Lodics and Kramer went elsewhere. The employees were
not on break, and Buhle did not talk with any employees in the
breakroom.139
On his second visit to the warehouse proper, Buhle was
buzzed into the warehouse by or with the knowledge of
Kramer, who testified that he did not know whether Buhle had
signed in at the lobby.140 Inferentially, Buhle started to walk
toward the mezzanine, which is a work area. He was ap-
proached by Kramer and Lodics. Kramer said that Buhle had
no right to be there. Buhle said that he needed to talk to one of
the employees. Kramer asked him to wait in the breakroom.
Buhle said that he needed to talk to the employee “now,’’ and
approached Teresa Goens while she was hand-stamping ciga-
rettes on the mezzanine. Kramer followed him to Goens’ work
station, and, while she was conversing with Buhle, took him by
the arm and tried to escort him downstairs. This effort proving
unsuccessful, Kramer remained within 2 feet of the conversa-
tion until it had ended. During this conversation, which lasted
about 5 minutes, Goens continued to work.141 When Buhle had
concluded his conversation with Goens and headed toward the
exit, he was followed by Kramer, who in turn was followed by
Lodics. En route to the door, and still with Lodics and Kramer
behind him, Buhle stopped to chat with two more employees on
the warehouse floor.142

138 Kramer testified, in effect, that he never knew whether or not
Buhle had signed in at the lobby. Although the lobby receptionist
would have issued him a visitor’s pass, he usually failed to wear a pass
when he had one.
139 My findings as to this visit are based on Buhle’s testimony. For
demeanor reasons, I do not credit Lodics’ testimony that he was not
present during any such incident; or—to the extent that such testimony
by Kramer may amount to a denial—that he did not recall any such
incident other than the one described in the next paragraph.
140 Although not wholly clear, the record suggest that Buhle had in
fact signed in.
141 My finding that she continued to work is based on her testimony.
For demeanor reasons, I do not credit Kramer’s testimony that she
stopped working. While actively working, employees are permitted to
converse with each other on subjects unrelated to work.
142 My findings in this paragraph are based on a composite of credi-
ble portions of the testimony of Buhle, Goens, and Kramer. For de-
meanor reasons, I do not credit Lodics’ testimony that he was not pre-
sent during any incident of this nature, or Kramer’s testimony that on
what Kramer described as the only incident when to his knowledge
Buhle entered the warehouse (except for the breakroom) to converse
Lodics and Kramer had never before stood near Buhle while
he was talking with employees. Buhle credibly testified to the
opinion that “[p]eople are a little bit apprehensive about open-
ing up to you when management is standing around.’’
Although Patricia Reynolds testified, in effect, that the Com-
pany’s safety director had been instructed to advise vendor
James Douglas and other vendors about the presence of hazard-
ous materials in the plant, there is no evidence that this was
done, and the testimony of vendors Douglas and Swallow, both
witnesses called by the Company, shows that no such explana-
tions were given them before they entered the plant on June 30,
1993.
Buhle was present while the Board agent was counting, in-
side the company facility, the ballots cast in the July 8, 1993
election. Inferentially after the count had been completed,
Patricia Reynolds told Kramer and Lodics to escort Buhle from
the premises. Kramer thereupon told Buhle that his services
were no longer needed there. Buhle said that he had not com-
pleted his functions there, and the Board agent agreed. After
Buhle had signed some election documents, Kramer once again
told Buhle that his services were no longer needed, to which
Buhle replied with an obscenity. Then, the two supervisors
escorted him into the parking lot.
b. Analysis and conclusions
As the Company does not appear to question, the conditions
under which union representatives are permitted access (if any)
to company premises for the purposes of performing the func-
tions of the employees’ bargaining representative are a manda-
tory subject of collective bargaining. T.L.C. St. Petersburg,
Inc., 307 NLRB 605, 610 (1992); Colonna’s Shipyard, 293
NLRB 136, 141 (1989), enfd. 900 F.2d 250 (4th Cir. 1990); and
Park Manor Nursing Home, 318 NLRB 1085 (1995). Accord-
ingly, an employer violates Section 8(a)(5) and (1) of the Act if
he unilaterally, and without the statutory representative’s hav-
ing been given prior notice and an opportunity to bargain,
makes a material, substantial, and significant change in such
conditions of access. See Wil-Kil Pest Control Co. v. NLRB,
440 F.2d 371, 375 (7th Cir. 1971); Fabric Warehouse, 294
NLRB 189, 192 (1989), enfd. 902 F.2d 28 (4th Cir. 1990); and
Peerless Food Products, 236 NLRB 161 (1978). Moreover,
there is no evidence or claim that the Union received prior
notice and an opportunity to bargain about the Company’s
newly imposed April 1993 limitations on Buhle’s access to the
employees in warehouse areas other than the breakroom—namely,
Reynolds’ requirement that he confer with her before entering
areas other than the breakroom, and the supervisors’ assertion to
him that he had no right to be in such areas and, when he nonethe-
less continued to engage in his prior practice of entering such areas,
following him and standing near him when he talked to the em-
ployees, thereby tending to dampen their willingness to talk to him
freely. There is no claim or evidence that the supervisors acknowl-
edged that Buhle could continue to have access to these areas for
the contractually specified purpose of “adjusting disputes, investi-
gating working conditions . . . and ascertaining that the [bargaining]
agreement is being complied with’’ (see supra, part V,C,1); rather,
the supervisors added no exceptions to their assertion that he had
no right to be there.143

with employees, he engaged in such activity over Kramer’s protests but
was not followed by Kramer.
143 Cf. Peerless Food Products, supra, 236 NLRB 161, relied on by
the Company, where the unilaterally imposed limitations on visits to
EBY-BROWN CO. L.P. 549
Assuming arguendo that some newly taken IOSHA action
due to the presence of hazardous materials could under some
circumstances operate as a defense to the imposition (without
prior notice and an opportunity to bargain) of new unilateral
restrictions on access by union representatives, the record
shows that the Company’s newly imposed restrictions on Buhle
were not called for by IOSHA’s action nor motivated by an
effort to satisfy IOSHA’s concerns, but, instead, were moti-
vated by a desire to impede Buhle’s opportunity to consult with
employees. Thus, IOSHA did not tell the Company to exclude
anyone from the warehouse, but merely told the Company to
give hazardous-material information to those who entered.
Moreover, IOSHA merely told the Company to give such in-
formation to persons who were entering the warehouse for the
first time; and during one of the IOSHA conferences the Union
had been advised what hazardous materials were in the ware-
house. Furthermore, although the Company did not require its
vendors to receive such information on each occasion before
they entered the warehouse (indeed, there is no evidence that
they ever received such information), Patricia Reynolds had
told Buhle that he had to have a hazardous-materials conference
with her on each occasion before he entered the warehouse;
even in the absence of other considerations, the addition of this
requirement meant that Buhle could never enter the warehouse
(except for the breakroom) unless and until Patricia Reynolds
was asked and willing to confer with him, although the ware-
housemen in the unit worked in two consecutive 10-hour shifts
and the drivers in the unit sometimes left the warehouse in the
small hours of the morning on overnight runs. See Ernst Home
Centers, 308 NLRB 848, 849 (1992). In addition, when
Kramer and Lodics saw Buhle speaking to unit employees in
the warehouse, they did not mention Buhle’s failure to have a
prior conference with Patricia Reynolds, or (so far as the record
shows) caution him about the hazardous materials in the ware-
house; rather, they dogged his footsteps and overtly stationed
themselves in a position where they could overhear his conver-
sations with unit employees. Moreover, the Company’s unfair
labor practices for the purpose of rendering the warehouse a
nonunion facility included actual and threats of discrimination
against union stewards and a statement attributing the absence
of an employee retirement plan to the expense of processing
grievances. Such concomitant conduct renders insupportable
the contention that the newly imposed limitations on union
representatives’ access to the warehouse were too insignificant
to violate the Act. See Xidex Corp. v. NLRB, 924 F.2d 245, 253
(D.C. Cir. 1991). Accordingly, I find that the Company vio-
lated Section 8(a)(5) and (1) of the Act in late April 1993 by
unilaterally altering the conditions under which union represen-
tatives could gain access to the warehouse.144

the production floor did not extend to visits for the purposes of investi-
gating or processing grievances or discussing with employees matters
related to the bargaining agreement.
144 However, because Buhle was advised of this change (effective
immediately) before the petition was filed, I do not rely on the change
as a basis for setting aside the election even though there is no evidence
that Buhle visited, or wanted or tried to visit, the warehouse proper
during the interval between when he was advised of the change and
when the petition was filed. See Kokomo Tube Co., 280 NLRB 357,
358 (1986); cf. Advo System, Inc., 297 NLRB 926, 934–935, 941
(1990); and Scott Glass Products, 261 NLRB 906, 919–920 (1982).
3. Denial of access after the bargaining agreement expired
a. Facts
The collective-bargaining agreement expired by its terms on
August 25, 1993. By letter dated September 8, 1993, Sizemore
advised Buhle that because the contract had expired, the Com-
pany would no longer deduct union dues from employee pay-
checks. About September 10, upon receiving this letter, Buhle
telephoned Patricia Reynolds and asked her whether she con-
curred with Sizemore as to the dues—deduction matter. Rey-
nolds said, “[Y]es.’’ Then, Buhle asked if he had access to the
facility. Reynolds said that access, too, had ended when the
contract expired.
Thereafter, Buhle consulted Union Attorney Chestnut, who
advised Buhle that he had better go out to the warehouse and
attempt to gain access to the facility. About September 14,
Buhle entered the warehouse lobby at some time between 9 and
10:30 a.m., and asked to speak to Reynolds. When she came
out into the lobby, he asked her if he had access to the ware-
house that day. She said that he did not have access, that she
had checked with her attorney, that access was a negotiated
benefit of the contract, and that if Buhle was caught or seen
inside the facility, the Company would have him arrested for
trespassing.145 Buhle credibly testified on July 28, 1994, that
because he did not want to be arrested, since that September
1993 conversation with Reynolds he had made no further at-
tempt to gain access to the Company’s facility. As discussed
infra, part V,D,1,b, about late August 1993 the Company with-
drew recognition from the Union, and no contention is made
that the Company resumed recognition until March 1994 at the
earliest.
b. Analysis and conclusions
It is well settled that where (as here) an employer has permit-
ted his employees’ statutory representative to obtain access to
his facility for the purpose of discharging the representative’s
statutory duties, pursuant to the provisions of a collective-
bargaining contract and/or a practice, the employer violates
Section 8(a)(5) and (1) of the Act by unilaterally withdrawing
such access, without giving the statutory representative prior
notice and as opportunity to bargain, whether or not the bar-
gaining agreement has expired. Park Manor, supra; and
Campo Slacks, Inc., 250 NLRB 420, 429 (1980), enfd. 659 F.2d
1067 (3d Cir. 1981), cert. denied 454 U.S. 941 (1981). The
Company’s principal defense to its unilateral withdrawal of
such access—namely, that upon the expiration of the contract
the Union was no longer the employees’ bargaining representa-
tive—is unmeritorious for the reasons stated infra, part V,D,2.
Nor can the Company fairly rely on Buhle’s failure again to
seek access after it was denied on September 10 and 14, 1993;
particularly in view of the Company’s threat to have him ar-
rested if he entered the facility and the Company’s failure—
between about August 1993 and March 1994—to recognize the
Union for any purpose, the Union can hardly have forfeited its
statutory rights by taking at its word the Company’s refusal to
145 This finding is based on Buhle’s testimony. Reynolds replied in
the negative to the question, “At any time did you ever threaten Brian
Buhle that the Company would call the police if he obtained access in
any manner other than what the Company deemed acceptable?’’ To the
extent that this may constitute a denial, for demeanor reasons I credit
Buhle.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
honor them.146 The Company’s contention that its April 1994
conversations with the Union about the access subject either
negated the Company’s September 1993 denial of such access,
or render a remedial order inappropriate, is unmeritorious for
the reasons discussed infra, under “The Remedy.’’ I find that
the Company violated Section 8(a)(5) and (1) in September
1993 by unilaterally withdrawing the Union’s access rights,
without giving it prior notice and an opportunity to bargain.
D. Allegedly Unlawful Denial of Recognition
1. Facts
a. Circulation of petitions requesting the Union to withdraw its
objections to the decertification election
The Union filed its objections to the July 8 decertification
election on July 14, 1993. About July 21, unit employee
Robert Burnett, who had filed the decertification petition, be-
gan to circulate among the other unit employees several copies
of a typed petition (the objections petition) which read, “We . . .
respectfully request that (the Union) withdraw their . . . objec-
tions to the . . . election. . . . In our opinion, the campaign was
legal and fair.’’ At the request of Burnett, a driver who worked
during the day, night warehouse unit employees Hawk, Ham-
mer, and Mitchell (all of whom were working foremen) and
night warehouse unit employee Benefiel accepted copies of the
petition and, during working hours, solicited other employees
to sign such copies.147
More specifically: On July 21, Benefiel signed a copy at the
solicitation of Burnett, who said that “this is one of the ways
that we can get the Union out of here . . . when you know
somebody that doesn’t want you around, maybe you will
leave.’’ Then, Burnett gave this copy to Benefiel to pass
around for other employees’ signatures. Benefiel devoted 10 to
15 minutes of working time to obtaining the signatures of five
other unit employees on the night shift, with the representation
that the document was going to be turned over to the Union and
that it was “to get the Union out, so that [the employees] would
no longer be represented’’ by the Union. Benefiel then gave
this document to unit employee Hatfield. At an undisclosed
time thereafter, Burnett returned this document to Benefiel with
the instructions to obtain the employees’ addresses. Benefiel
did this, during working time, and then gave the document to
Burnett. The record fails to show whether management was
aware of Benefiel’s use of working time in connection with the
petition.
On July 21, Robert Burnett also gave a copy of the petition
to unit employee Mitchell, a working foreman; asked him to get
as many signatures as he could; and told him that if anyone
asked who started the petition, Mitchell should give the names
of unit employees Hatfield or Dean. During the shift which
began that day and ended on July 22, Mitchell signed this copy
of the petition and used 1 to 3 hours of working time inducing
16 other unit employees to sign. Among the employees whose
signatures were obtained by Mitchell on July 21 was Randy
Jewell, who on March 31 had been unlawfully disciplined for
putting the Union’s name on his back belt (see supra, part III,I).

146 Far from sleeping on its rights, on November 9, 1993—about a
month after being denied access rights—the Union filed a charge com-
plaining of such conduct.
147 As to Hawk, my finding that Burnett asked him to engage in such
activity is based on inference.
Mitchell credibly testified, in effect, that while he was engaging
in this solicitation activity, he had no urgent tasks to perform,
but that he could have performed other needed work or assisted
the employees under him in performing their work. In order to
obtain these signatures, Mitchell had to leave his usual work
area, the loading dock, and proceed into the warehouse itself,
an area in which he did not customarily work. Mitchell re-
turned to Burnett the copy of the petition on which Mitchell had
obtained these signatures. The record fails to show whether
any member of management was aware of Mitchell’s use of
working time in connection with the petition.
The copies of the “objections’’ petition received into evi-
dence contain about 51 signatures dated before July 24; the unit
as of the July 8 election had consisted of about 97 employees.
At all times relevant here, unit employee Hammer was on the
night shift, which begins in the evening and ends the following
morning. Toward the beginning of his shift (probably, a shift
which began on Friday, July 23, 1993; see infra), Hammer was
paged by Robert Burnett, the bargaining unit driver who had
filed the decertification petition, to go to the office of driver
manager, Paul Lodics, where Burnett gave Hammer a copy of
an “objections’’ petition. Hammer then walked into the office
of Night Warehouse Manager Grigdesby, showed him the paper
Hammer had received from Burnett, and said, “I’ve got to get
my John Hancocks tonight.’’ Grigdesby looked at the paper
and said, “Okay.’’ Prior to that evening, Hammer had induced
about six other employees to sign other copies of the petition.
During that shift, he signed this copy of the petition himself and
spent about 8 hours on a 10-hour or 12-hour shift trying to in-
duce other employees to sign. Eventually, he obtained about
four more signatures. While Hammer was getting the signa-
tures, Grigdesby was in the area, in a position to observe what
Hammer was doing, and made no attempt to stop Hammer from
soliciting. During an attempt by Hammer to obtain a signature
from employee Gary Phillips, employee Jones told Grigdesby
that it was wrong for Hammer to pass “this literature’’ around
in the warehouse. Grigdesby then approached Hammer; said,
“You were caught once, don’t let it happen again’’; and walked
away. Thereafter, Hammer continued to solicit signatures, but
more cautiously. Prior to this occasion, Grigdesby had not
permitted Hammer to perform over a period of 8 hours during
the shift something which was not related to work; rather, when
Grigdesby observed Hammer standing and talking with others,
or “find[ing] his own free time,’’ Grigdesby ordered Hammer
to return to work.148 Hammer also asked unit employees Hawk
and Mitchell to obtain signatures, “Because they are working
foremen,’’ and they did so during regular worktime; the record
fails to show whether management was aware of this activity
by Hawk and Mitchell. As to the various copies on which
Hammer had obtained signatures, he returned some to Burnett
and, in Burnett’s absence, gave the others to Lodics or Kramer,
with the request that such documents be given to Burnett; both
supervisors said, “Okay.’’149 While Hammer was soliciting
signatures on this document, about 10 of the employees whom
he solicited remarked that they were not sure that they would be
making a good decision to vote the Union out, that they were
148 Moreover, Grigdesby testified that when he saw alternate steward
Jones engaging with other employees in conversations whose subject
Grigdesby did not know, “I go over and say you need to get back to
work.’’
149 This finding is based on Hammer’s testimony. For demeanor rea-
sons, I do not credit Kramer’s and Lodics’ denials.
EBY-BROWN CO. L.P. 551
not quite sure whether, with the Union out, they could trust the
Company. To these remarks, Hammer replied that if the em-
ployees got the Union out, they could see what benefits and
options were offered by Thomas Wake and the Company and
from that point decide whether to “reorganize.’’ Among the
employees who signed this document was employee Watt,
whom Supervisor Kramer had unlawfully threatened because
Watt had put a prounion sticker on a stop sign (see supra, part
III,C).
By letter to the Union dated July 28, 1993, with courtesy
copies to (among others) Thomas Wake, Patricia Reynolds, and
an NLRB field examiner, unit employees Dean and Hatfield
stated, “Please accept the enclosed request that the [Union]
withdraw their objections and charges to the July 8th election
. . . our signatures signify that we feel the election was legal
and fair.’’ Attached to this letter were copies of the petition
previously described, with the at least purported signatures of
about 72 employees.150 After receiving this document, in her
“in’’ basket or under her door, Patricia Reynolds alerted Tho-
mas Wake to its existence by telephone, sent him a copy, and
may have sent a copy to Company Attorney Gerald A. Golden.
The record fails to show the Union’s response, if any, to this
letter. The complaint does not allege that the circulation of this
petition constituted an unfair labor practice by the Company.
b. The circulation of petitions disavowing the Union; the
withdrawal of recognition
By letter to Patricia Reynolds dated August 18, 1993, Union
Business Agent Buhle requested the commencement of
bargaining negotiations for a contract to replace the current
agreement, which was to expire on August 26, 1993.

On a date not clear in the record, Burnett was advised by an
unidentified person or persons that the “objections’’ petitions
were ineffective. About August 25, Burnett began to solicit
employee signatures on, and asked Hammer and (perhaps)
Mitchell to solicit signatures on, copies of a petition (the “dec-
laration’’ petition) which read, “We . . . of our own declaration,
no longer wish to recognize or be represented by the [Union] on
or after this date August 26, 1993, effective 12 a.m.’’ On that
day, Mitchell (who may have received a petition from Ham-
mer) asked Grigdesby “if he minded if we passed around the
petition during working hours.’’ Grigdesby said that as long as
he did not know about it, he did not care what they had done.
Later that evening, during working hours, Mitchell solicited
between 16 and 28 employees to sign the petition. Five of them
did so, eight to twelve said that they had signed the “objec-
tions’’ petition, and two or three refused to sign. Mitchell him-
self also signed. Then, Mitchell gave the “declaration’’ petition
to Burnett. Either at that time or when giving the petition to
Mitchell, Burnett said, “[T]o hurry up and get it by the next
[day] so they could send it to wherever it needed to go.’’ As to
Mitchell’s location and the status of his work duties when he
was soliciting signatures on this August petition, he gave the
same credible testimony which he gave in connection with the
July petition. Hammer obtained the signatures of four employ-
ees on a copy of the “declaration’’ petition, and gave it to
Kramer, Lodics, or Robert Burnett about August 27. This copy

150 A number of these signatures were authenticated by testimonial
evidence. There is no claim or evidence that any of the petitions was
signed by anyone who was not in the bargaining unit, or that any of the
signatures is not authentic.
in its final form contains several signatures after the last one
obtained by Hammer.
The “declaration’’ petitions contain about 62 signatures. A
number of these are authenticated by testimonial evidence, and
there is no contention or evidence that any of them is not au-
thentic. Some employees signed both petitions; but because
many of the signatures are not very legible, it is not easy to
determine the number of duplications. Among the employees
who signed this document, at Robert Burnett’s instance, was
Ronald Watt, who had also signed the “objections’’ petition
(directed to the Union) and whom Supervisor Kramer had un-
lawfully threatened for putting a union sticker on a stop sign
(see supra, part III,C). Watt testified that he signed the “decla-
ration’’ document because “I have no idea who’s going to see
this form after I sign it . . . if you take into account that the
Company may see this after I had signed it, then you could call
that coercion if you wish. I certainly do. . . . how do I know
that [Robert Burnett is] not going to show this document to Pat
Reynolds when he goes up to see her. If my name is on that
document, then I have insured that she knows that I have signed
it and, therefore, I am not a threat to her.’’151 The complaint
does not allege that the circulation of these petitions constituted
an unfair labor practice by the Company.
On or after August 27, Patricia Reynolds found copies of
these “declaration’’ petitions under her door or in her “in’’
basket. On the day she received them, she faxed copies to
Thomas Wake and (perhaps) Golden.
About late August or early September, Buhle telephoned
Patricia Reynolds and asked her about a negotiation date. She
informed him that a decision on whether or not to bargain was
in the hands of the Company’s attorney, and that she would
have to get back to Buhle. She never did get back to him. As
previously noted, in mid-September 1993, Reynolds advised
Buhle that because of the expiration of the contract on August
27, the Company would no longer afford him access to the
plant or checkoff dues. On October 1, upon seeing Reynolds
and Sizemore at an unemployment compensation hearing, he
asked Reynolds if she had received any response from the
company attorney regarding bargaining. Reynolds responded
that if the Company had intended to bargain, it would already
have contacted the Union.152 The Company did in fact stop
checking off dues; the complaint does not allege that this con-
duct violated the Act. Thereafter, only one employee kept his
dues up.
On October 5, 1993, the Company received a charge (dock-
eted as Case 25–CA–22782) which the Union had filed on Oc-
tober 1, and which alleged that the Company had violated Sec-
tion 8(a)(1) and (5) by refusing to bargain with the Union.153
By letter dated October 12, 1993, with respect to Case 25–CA–
151 Hatfield obtained Watt’s signature while Watt was out of his
regular work area because he was returning from a bathroom break
which would normally have lasted less than 5 minutes. The Hatfield-
Watt conversation which preceded Watt’s signature took 10 to 15 min-
utes. When Watt left for his break, he complied with the Company’s
requirement that he so notify his superior. Company policy did not
require Watt to notify his superior of Watt’s return, and he did not do
so.
152 My findings as to this October 1 conversation are based on
Buhle’s testimony. Because Sizemore and Patricia Reynolds were
unreliable witnesses in other respects, and for demeanor reasons, I do
not credit their denials.
153 This charge is among those which underlie the amended com-
plaints issued on March 1, 1994, and thereafter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
22782, Company Counsel Gerald A. Goldman advised the
Board’s Regional Office that it was the Company’s position
that it had lawfully suspended bargaining with the Union. The
letter further stated that the Company’s “last’’ collective-
bargaining agreement with the Union had expired on August
27, 1993; and that in a July 8 Board decertification election, “a
majority of employees voted not to be represented by the . . .
Union. The Company acknowledges that the Union has filed
unfair labor practice charges and objections to the election
[some of which] are pending hearing.’’ Further, the letter re-
ferred to, and enclosed photocopies of, the August 1993 “decla-
ration’’ petitions described supra. The letter went on to say:

In view of the above, and despite the fact that the re-
sults of the decertification election have not yet been certi-
fied, it is the position of the Company that the Union no
longer enjoys the presumption of majority support. As a
result, it is the position of the Company that it lawfully
suspended bargaining.

Patricia Reynolds testified on July 27, 1994, that “it was the
Company’s position that, based on the results of the July 8
election where the majority of the employees had voted to de-
certify and based on two subsequent petitions [of which] the
Company had received copies . . . on or about the end of July
and on or about the end of August—that there was not a need to
negotiate with the Union.’’ All parties stipulated on July 27,
1994, that this had been the Company’s position since receipt
of the two petitions by late August 1993.
c. Credibility in connection with solicitation activity
My finding that Mitchell circulated copies of the “declara-
tion’’ petition during working hours with Grigdesby’s tacit
consent is based upon Mitchell’s uncontradicted testimony.
Grigdesby was still employed by the Company as a supervisor
at the time of the hearing, and testified on its behalf, but was
not asked about this incident. Nor was Grigdesby asked about
Hammer’s testimony that with Grigdesby’s knowledge, Ham-
mer solicited signatures on copies of the “objections’’ petition
during periods when he would normally be expected to be ac-
tively working. Further, Bill Albright testified for the Com-
pany, but he was not asked about Hammer’s testimony that he
obtained a signature from Albright on the “objections’’ petition
on July 24, and Albright’s signature with that date appears on
the petition. Robert Burnett (the decertification-case petitioner)
made a formal appearance on his own behalf, and was physi-
cally present during Hammer’s testimony and during most of
the hearing; but Burnett did not testify, even though Hammer
testified that he received a copy of the “objections’’ petition
from Burnett toward the beginning of the shift during which
Hammer solicited signatures on that petition.
Contrary to Burnett’s posthearing brief, the fact that Hammer
attended a company picnic on July 24 (a Saturday) does not call
for the inference that this was the period when he obtained on
copies of the “objections’’ petition the signatures dated July 24,
and that he was untruthful in testifying that he obtained them in
the warehouse during his shift. Hammer worked a night shift
which sometimes began on Friday and ended on Saturday.
Further, neither Bill Albright (a company witness who dated his
signature July 24), nor Robert Burnett (who attended the pic-
nic), nor Hawk (a company witness who signed the “objec-
tions’’ petition), nor any member of management (some of
whom attended the picnic) testified that Hammer engaged in
any solicitation activity during the picnic. Moreover, although
Hammer’s wife also attended the picnic, the presence of the
Hammers’ four children (between 4 and 8 years old) indicates
that he might have experienced some difficulty if he had solic-
ited signatures during the picnic. Furthermore, as Hammer in
effect pointed out at the hearing, if the first signatory on a par-
ticular page (Albright) had erred in dating his signature July 24,
subsequent signatories may have also misdated their signatures
because they copied Albright’s date. For the foregoing reasons,
and after considering Hammer’s demeanor, to the extent previ-
ously indicated I accept his testimony about his circulation of
the petitions during periods when he would ordinarily have
been expected to be actively working and with Grigdesby’s
knowledge, and Hammer’s denial that his solicitation activity
occurred during the picnic. Nor is there merit to the contention
in Robert Burnett’s brief that Hammer’s testimony about his
solicitation with Grigdesby’s knowledge is unworthy of belief
because of Hammer’s further testimony that he also obtained
several signature dated July 21 or 22. Hammer testified that he
solicited signatures on dates “around,’’ but other than, July 24.
2. Analysis and conclusions
As the Board-certified bargaining representative of the unit
employees and their recognized representative under the 1990–
1993 collective-bargaining agreement, the Union enjoyed the
presumption of majority status, although this presumption be-
came rebuttable with the expiration of the bargaining agree-
ment on August 25, 1993. Auciello Iron Works v. NLRB, 517
U.S. 781 (1996); and Zim’s Foodliner v. NLRB, 495 F.2d 1131,
1139 (7th Cir. 1974), cert. denied 419 U.S. 838 (1974). This
presumption of majority status is unaffected by the Union’s
failure to obtain a majority of the votes cast in a representation
election which (like the election in the instant case) has been set
aside because of employer misconduct; indeed, this presump-
tion continues during the pendency of even unmeritorious ob-
jections. See Underground Service Alert of Southern Califor-
nia, 315 NLRB 958 (1994); W. A. Krueger Co., 299 NLRB 914
(1990); Selkirk Metalbestos, 321 NLRB 44 (1996); and
Planned Building Services, 318 NLRB 1049 fns. 4–5 (1995).
Accordingly, to the extent that the Company’s withdrawal of
recognition was based (as Patricia Reynolds testified) on the
Union’s narrow loss in the tally of ballots, such withdrawal was
unlawful.
Nor can the Company justifiably rely on the employee peti-
tions given to the Company in late July and late August 1993.
Because the Company made no efforts whatever to remedy the
unfair labor practices which rendered the July 8 election unreli-
able as to the employees’ choice, the petitions in late July and
late August were likewise unreliable evidence. Indeed, after
the election the Company continued to maintain and enforce its
unlawful no-access rule with respect to off-duty employees and
(so far as the record shows) failed to advise the Union that the
Company had forsworn the unlawful alterations in its practice
with respect to access by union representatives. Moreover,
after the election and before the “declaration’’ petitions were
signed, the Company unlawfully withdrew union representative
Buhle’s access to the facility for the purpose of, among other
things, processing employee grievances; advised both of the
union stewards and union activist Hall of bonus decisions
which were adverse to them because of their union activity;
issued to alternate Union Steward Jones an evaluation which
had been lowered because of his union activity; and advised
decertification petitioner Robert Burnett of the unprecedentedly
EBY-BROWN CO. L.P. 553
high bonus he would receive because of his antiunion activity.
Because the signatures on the petitions were thus tainted not
only by the same conduct which tainted the election and whose
effects the Company had made no effort to dispel, but also by
the Company’s postelection unfair labor practices, such signa-
tures were not a reliable indicator of employee sentiment. See
Hi-Tech Cable Corp., 318 NLRB 280 (1995); Beltway Trans-
portation Co., 319 NLRB 579 (1995); Selkirk, supra. The
Company’s right to rely on the “declaration’’ petitions is fur-
ther impugned by their circulation, during times when the em-
ployees were expected to be actively working, with the knowl-
edge of Supervisor Grigdesby, notwithstanding his testimony
that the Company forbids employees to solicit or distribute “on
the clock.’’ See Crispus Attucks Children’s Center, 299 NLRB
815, 838 (1990). I note, moreover, that although the second
election which the Union was then seeking would entail the use
of secret ballots, the petitions disclosed the identity of the sign-
ers, a consideration to which at least one-time union activist
Watt testimonially attributed his signature on the August peti-
tion.
For the foregoing reasons, I conclude that the Company vio-
lated Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union about late August 1993.154
E. Allegedly Unlawful November 1993 Letter to Unit Employ-
ees (Complaint Paragraph 8(j))
1. Facts
On October 1, 1993, the Union filed a charge (docketed as
Case 25–CA–22782, one of the charges underlying the instant
consolidated complaint) alleging that the Company had violated
Section 8(a)(1) and (5) by refusing to bargain with the Union.
On October 19, this charge was amended so as to seek a bar-
gaining order, on the ground that the Company’s unfair labor
practices had “created an atmosphere which has interfered with
and prevented a subsequent free choice election.’’
A letter dated November 10, 1993, from the Union to the
Company (attention Patricia Reynolds) stated that for 4 months
the Union had “consistently heard rumors that [the] Company
would immediately raise the wages of the bargaining unit em-
ployees, if not for possible Union objections.’’ The letter went
on to say that if the Company in fact wanted to give across-the-
board pay increases to unit employees, “please consider this
letter our waiver of any rights to file any future objections
and/or legal actions with the [NLRB] or any Local, State or
Federal agency over this pay raise.’’ The letter stated on its
face that courtesy copies were being sent to, inter alia, all bar-
gaining unit employees and the Board’s Regional Office.
By reply letter to the Union dated November 12, 1993, and
posted by the Company on the employee bulletin board, Rey-
nolds summarized the Union’s November 10 letter and then
went on to state (emphasis in original):

154 No different result is suggested by Master Slack Corp., 271
NLRB 78, 78 first fn. 1, 85 (1984), on which the company relied before
the Regional Director. In that case, the employer’s unfair labor prac-
tices had occurred 8 or 9 years before the employee petition, and, well
before its circulation, the employer had complied in many significant
respects with the Board’s remedial order. In Hotel & Restaurant Em-
ployees Local 19 (Burger Pits) v. NLRB, 785 F.2d 796 (9th Cir. 1986),
affirming 273 NLRB 1001 (1984), also relied on by the company be-
fore the Regional Director, the employer’s only unfair labor practice
was prematurely (before contract expiration) withdrawing recognition
from the bargaining representative and related unilateral conduct.

We appreciate the Union’s assurance that in this one
instance the Union will not file a charge with the NLRB or
other government agency. I am sure the employees also
appreciate your Union’s concern for their welfare. How-
ever, as you know, a majority of the employees voted last
summer not to be represented by your Union. Thereafter,
your Union filed and continues to file numerous objections
and unfair labor practice charges with the NLRB seeking
to overturn that election. The Union apparently intends to
do everything it can to avoid having to abide by the results
of the election. The Union, obviously, could not care less
that this puts all parties, including the employees, in the
position of having this important decision unresolved for
months or even years. While the Company has denied the
Union’s allegations and argued that the NLRB should cer-
tify the results of last summer’s election, in an effort to
clear the air and permit all parties to know where they
stand as soon as possible, the Company has offered to
waive further defense and agree to a second NLRB secret
ballot election as soon as possible.
Your Union, however, apparently fears the outcome of
a second secret ballot election because it has done every-
thing possible to prevent a re-run election. The Union has
even gone so far as to request that the NLRB issue a bar-
gaining order thereby forcing the Union down the employ-
ees’ throats without the employees even getting a chance
to vote. So much for Union concern over the welfare of
Eby-Brown’s employees.
I firmly believe that it is in the best interests of all par-
ties, particularly the employees, that the NLRB issues be
resolved as quickly as possible and that the only fair way
to resolve it is to agree to permit the NLRB to hold a sec-
ond secret ballot election as soon as possible. Once the
question of representation by your Union is resolved, is-
sues like wage increases can be determined without any
party having to consider and weigh the potential legal con-
sequences of those decisions.
Therefore, if the Union truly wants to do what is in the
best interest of the employees, it will agree to a second
election as soon as possible.155

2. Analysis and conclusions
Paragraph 8(j) of the complaint in its final form alleges that
the Company “bypassed the Union and dealt directly with its
employees in the unit by disseminating to unit members a letter
addressed to the Union;’’ such conduct is alleged to have vio-
lated Section 8(a)(1) and (5) (complaint par. 13).
As to the 8(a)(5) allegation, the General Counsel’s posthear-
ing brief alleges that the November 12 letter “solicits employee
sentiment regarding their satisfaction with benefits negotiated
by the Union and the impact of any delay in processing the
decertification petition on such benefits,’’ citing Allied-Signal,
155 At the hearing, company counsel objected to the receipt of all
portions of this letter after the words in the first quoted paragraph “or
even years,’’ on the ground that they constitute material of a settlement
nature. I received the entire letter subject to a contention by company
counsel, if he chose to make one subsequently, that all or part of it
should be stricken on the grounds that he cited at the hearing. Further, I
asked him to include in any such subsequent argument a discussion of
what significance (if any) should be attached to the fact that the entire
letter was publicized by the Company to the employees. Counsel’s
posthearing brief does not ask me to strike this exhibit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
Inc., 307 NLRB 752, 753–754 (1992). However, the General
Counsel’s contention in this respect misconceives the basis for
the Allied-Signal line of cases—namely, that solicitation of
employee views with respect to a mandatory subject of collec-
tive bargaining (in Allied-Signal, workplace smoking limita-
tions) is unlawful where such solicitation is likely to erode the
stated position of the bargaining representative with respect to
that issue. See Alexander Linn Hospital Assn., 288 NLRB 103,
106 (1988), enfd. 866 F.2d 632, 636 (3d Cir. 1989), cited in
Allied-Signal, supra, 307 NLRB at 754. In the instant case, the
Company was not soliciting the employees’ views regarding a
mandatory subject of collective bargaining. Rather, their
views, if solicited at all, were being solicited with respect to
whether the Company’s duty to bargain should depend on the
results of an immediate second decertification election (not-
withstanding, although the Company’s letter did not so con-
cede, the unremedied unfair labor practices which invalidated
the first election and the likewise unremedied unfair labor prac-
tices which had occurred thereafter); manifestly, this issue is
not a mandatory subject of collective bargaining. The letter’s
references to wages (manifestly, a mandatory subject of collec-
tive bargaining) were directed to the possible impact thereon of
the existing situation (where the Company was unlawfully re-
fusing to recognize the Union and the pending unfair labor
practice charges and complaint blocked a rerun election) and
did not address the employees’ views on how much they should
receive.
However, in substantial agreement with the General Coun-
sel’s posthearing brief (p. 74), I find that the Company violated
Section 8(a)(1) of the Act when in this letter the Company
blamed the Union for possibly preventing or delaying past and
future wage increases by filing charges and election objections
with the Board, particularly since such charges and objections
were filed because of company unfair labor practices and the
Company was violating the Act by refusing to bargain with the
Union notwithstanding its Board certification, the 1990–August
1993 bargaining agreement, and the pending objections. See
Centre Engineering, Inc., 253 NLRB 419, 420–421 (1980);
National Micronetics, Inc., 277 NLRB 993, 996, 1005 (1985);
and Waste Management of Utah, 310 NLRB 883, 899 (1993).
F. Alleged Unfair Labor Practices Connected with the Unilat-
eral Transfer of Work (Complaint Paragraphs 6(s), 10, 11,
and 13)
1. Background
The Company is a wholesaler which distributes products to
various convenience stores. As of early 1993, it owned
branches (each consisting of a warehouse and trucking opera-
tion) in Aurora, McHenry, Elgin, and Galesburg, Illinois; in
Ypsilanti, Michigan; and in Indianapolis, Indiana, the facility
involved here. In addition, the Company operated shuttle ga-
rages (that is, facilities equipped only to accept and drive
loaded trucks driven from a company warehouse/trucking op-
eration) in several locations in Illinois and Michigan, and in
Hilliard, Ohio; this Hilliard facility is sometimes referred to in
the record as the Columbus facility. From these facilities, the
Company serviced convenience stores in portions of Wiscon-
sin, Illinois, Michigan, Iowa, Indiana, Kentucky, and West
Virginia. After acquiring the Indianapolis facility in 1989, and
until about early 1993, the Company spent about $2.5 million
on that facility, including capital improvements as well as
maintenance.
A corporation identified in the record as Marathon Petroleum
includes among its divisions a division referred to in the record
as Emro Marketing.156 Emro operates a number of petroleum
stations, which are referred to in the record as convenience
stores. Until the end of 1993, Emro’s divisions included a divi-
sion referred to in the record as Bosart, a wholesaler which
bought from manufacturers in large quantities and sold such
products to convenience stores, primarily those owned by
Emro. Bosart conducted its operations from a ware-
house/trucking facility owned by it in Springfield, Ohio, from
which it provided direct delivery service to stores in Illinois,
Indiana, Michigan, Ohio, and Kentucky.
In June 1993, Bosart’s president asked the Company whether
it would be interested in buying Bosart’s assets and supplying
Emro’s convenience stores. At Bosart’s request, in connection
with the purchase and service negotiations the Company signed
a letter of confidentiality on June 29, 1993, 9 days before the
decertification election. Subsequent negotiations led to an
agreement in which the Company undertook to purchase Bo-
sart’s assets and a second agreement in which the Company
undertook to service about 1600 Emro convenience stores in
Illinois, Indiana, Michigan, Ohio, and Kentucky,157 although
not necessarily through the Springfield facility through which
Bosart had serviced Emro and which Bosart was selling to the
Company.158 This was the largest acquisition the Company had
ever made, and the largest service contract the Company had
ever entered into. The Bosart facility was one of the larger
employers in the Springfield area, and was not union repre-
sented. During the negotiations which led up to the sale, Bosart
expressed concern about the job security of the Bosart employ-
ees at the facility. The contracts as finally executed in written
form did not require the Company to retain Bosart’s personnel.
However, Company Copresident Thomas Wake testified that he
did not believe Bosart would have entered into these contracts
absent oral assurances from the Company that the Bosart per-
sonnel would be retained, and testified, in effect, that the Com-
pany felt at least a moral obligation to retain them. As to the
Company’s perceived moral obligations to the Bosart person-
nel, similar testimony was given by Attorney Golden, who was
the Company’s principal spokesman in March–June 1994 dis-
cussions with the Union regarding the Indianapolis facility. In
the event, all the personnel who had worked for the facility
under Bosart either continued to work there under the Company
or were transferred to other Emro facilities.
The purchase and service contracts in their final form were
executed in mid-December, with a closing date of December
31, 1993. However, on November 4, 1993, the Company
posted at its Indianapolis warehouse a notice stating that it had
executed a letter of intent to acquire the Springfield operation
from Bosart, and inviting the Indianapolis personnel to apply

156 Marathon Petroleum is owned by a corporation referred to in the
record as U.S. Exxon.
157 Also included in the service contract were Emro’s stores in west-
ern Pennsylvania (nonexistent at all material times) and in Wisconsin,
where the Company was already servicing Emro stores. In addition,
the Company took over 150 to 200 accounts at Ohio retail locations
which Emro had serviced but did not own.
158 Company Copresident Thomas Wake credibly testified that al-
though each of the two contracts with Bosart called for a separate pay-
ment by the Company, his concern was the total amount due and not
the allocation between the two contracts.
EBY-BROWN CO. L.P. 555
for “a limited number of positions’’ at the Springfield opera-
tion. The letter further stated:

We have learned from previous experiences that a ma-
jor goal in opening a new branch is a quick and efficient
transition. We’ve found the best way to achieve this is by
placing a limited number of members who possess a work-
ing knowledge of our systems, policies, and procedures at
the new branch. These members serve as role models and
resource people for our newest members.

In the event, all personnel (including bargaining—unit employ-
ees) who asked to be or expressed an interest in being trans-
ferred from Indianapolis to Springfield were given an opportu-
nity to transfer. With the exceptions shown in the margin, the
record fails to show the number of persons who inquired about
or requested transfer from Indianapolis to Springfield, the dates
of their transfer requests, how many eventually transferred, the
reasons why they transferred,159 or their pay and jobs at Indi-
anapolis and at Springfield, respectively.160
As of the end of 1993, the Springfield facility employed a to-
tal of 335 or 340 persons, including about 270 warehouse and
driving personnel; the Indianapolis warehouse-driver unit had
consisted of about 97 employees as of July 8, 1993. Pursuant
to plans prepared before the end of 1993, between January and
March 1994 the Company expended a little over $2 million in
capital improvements to the Springfield facility. Copresident
Thomas Wake credibly testified to the opinion that the Indian-
apolis facility could not be further expanded without purchas-
ing additional land; no contiguous land is for sale, although
some land is available for purchase on the other side of Fortune
Circle Road. On December 30, 1993, the Company executed a
renewal of its lease on the shuttle garage in Hilliard, Ohio, to
which unit employees had driven from the Indianapolis facility
loaded trucks which were driven by nonunit employees be-
tween Hilliard and the Company’s customers; at the Com-
pany’s instance, the 1-year term proposed by the landlord was
shortened to 6 months.161 The Company closed down the Hil-
liard garage on March 29, 1994, and transferred all of these
routes to the Springfield facility.
Company Copresident Thomas Wake testified that in late
February or early March 1994, and before March 9, he decided
to transfer from Indianapolis to Springfield the work of servic-
ing all of the convenience stores in West Virginia, Ohio, and
Kentucky. I conclude that a February date is more likely, in
view of the December 30 execution date of the shortened Hil-
liard lease and the March 4 date on a memorandum setting forth
not only the anticipated dates of shifting work from Indianapo-
lis to Springfield, but also the anticipated dates of shifting work
from Springfield to Ypsilanti, Michigan, a shift occasioned at

159 As discussed infra, some of the employees believed that work
was being moved from Springfield to Indianapolis well before March
28, 1994, when such moves did in fact begin.
160 Pursuant to a request made before March 4, 1994, Robert Burnett
transferred from an Indianapolis driver’s job to a Springfield drivers’
trainer job effective March 28, 1994. Indianapolis Driver Manager
Lodics became the driver manager in Springfield about November
1993.
161 Copresident Thomas Wake testified that he did not recall issuing
instructions to anyone with the Company to enter into a lease at the
Hilliard facility for any certain amount of time, and never told anyone
with the Company that this lease should end by a certain date.
least partly by Springfield’s acquisition of Indianapolis work.162
This March 4 memorandum anticipated a three-phase transfer
of work from the Indianapolis warehouse. More specifically:
During the week of March 28, Indianapolis volume was to de-
crease 19 or 20 percent in consequence of a transfer to Spring-
field of “the balance of all Big Bear/Hart Stores’’ and of 21
complete routes, which 21 routes served all of Indianapolis’
current customers in central and eastern Ohio, eastern Ken-
tucky, and West Virginia. During the week of April 28, Indi-
anapolis volume was to decrease 27 percent over its prephase I
level, in consequence of the removal of all cigarettes to be sold
in West Virginia and the shifting of all Super Value work plus
West Virginia Phar Mors (drug stores) work. The date of
“phase III’’ was “to be determined,’’ but was to be no later than
May 1. The memorandum states that the Company was making
the shifts described therein “to meet our commitment of provid-
ing next day delivery service to all Emros . . . and to service our
customers as cost efficiently as possible.’’
Copresident Thomas Wake testified that as of late February
1994 no consideration had been given to closing the Indianapo-
lis branch, and that as of that date no decision had been made to
reduce the Indianapolis operation to any particular number of
employees. He further testified that as of mid to late March
1994, management had made no decision as to any particular
level of operations or of employee complement that would be
maintained in Indianapolis. Also, he testified that an operation
of 25 employees was greater than what he would consider a
shuttle garage operation (that is, an operation physically sepa-
rate from a warehouse). He testified that in late February 1994,
he authorized Golden to approach the Union, off the record, in
order to see whether there was some possible basis of settle-
ment of the pending objections and unfair labor practice
charges and “assembling all matters of dispute.’’ Wake testi-
fied that at that time he believed that these issues would be best
dealt with by means of a collective-bargaining agreement. He
further testified that as to the provisions to be included in such
a contract, he believed that the most important would be a pro-
vision affording the Company much more flexibility as to the
level of bargaining unit employees than did the expired con-
tract, whose provisions (quoted infra, part V,F,7) forbade trans-
fer of unit work or services to other company facilities unless
no layoff of unit employees resulted. Wake testified to the
belief that the Company would obtain the desired flexibility if it
obtained an agreement that the Company need not employ more
than 15 bargaining unit employees, and that he authorized
Golden to propose such an agreement to the Union. At that
time, the bargaining unit consisted of about 87 employees.
Before March 9, 1994, the Union had not received any notice
from the Company that work had recently been transferred, or
was going to be transferred, from the Indianapolis warehouse.
Although Buhle had received (and relayed to Chestnut) reports
from employees that work had been transferred, Patricia Rey-
nolds testified that the work transfers involved in the instant
case did not begin until March 28, 1994. Moreover, before
March 28, 1994, no unit work had been transferred out of the
Indianapolis facility since the end of 1992 at the latest.163
162 The memorandum set forth, among other things, the anticipated
“changes in weekly picks’’ at Ypsilanti, Springfield, and Indianapolis,
broken down by phases and by five classes of products.
163 This finding is based on the testimony of Copresident Thomas
Wake and Indianapolis Branch Manager Patricia Reynolds. The trans-
fer of unit work to the Hilliard garage about January 1992 was the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
2. The March 9, 1994 meeting between Chestnut, Neal, and
Golden; and allegedly related matters
a. Introduction
As discussed infra, part V,F,2,c, on March 9, 1994, Com-
pany Counsel Golden met with Union Counsel Chestnut and
Union President John Neal. At the hearing, the Company
sought to exclude all evidence about what was said at this meet-
ing, on the basis of Rule 408 of the Federal Rules of Evidence,
which addresses evidence of conduct or statements made in
compromise negotiations (see infra, part V,F,13,a). By written
order dated August 5, 1994, I rejected this claim. The Com-
pany’s request to the Board for special permission to appeal
this ruling was denied on August 22, 1994, without prejudice to
the Company’s right to renewal in the exceptions process. The
Company’s posthearing brief renews its motion to exclude.
Many of my findings in connection with this meeting have been
made because of at least arguable materiality to the issues
raised in that motion.
b. Status of litigation as of March 9, 1994
The initial complaint herein, which bears the case numbers
25–CA–22530–1 and 25–CA–22640 and issued on September
21, 1993, contained no 8(a)(5) allegations. On October 1,
1993, the Union filed a charge (Case 25–CA–22782) alleging
that the Company had refused to bargain with the Union, in
violation of Section 8(a)(1) and (5).
By letter dated October 20, 1993 (captioned case numbers
25–CA–22530, 25–CA–22649, and 25–CA–22782) to NLRB
Field Examiner Theresa Dowling, Company Counsel Golden
offered, “in settlement’’ of these cases, to post notices, to agree
to an election within fewer than the 60 days which is the “nor-
mal . . . posting period,’’ and to meet and bargain with the Un-
ion. About December 20, Dowling advised Golden by tele-
phone that the Region had declined to accept his settlement
offer and was going to seek a bargaining order.164
On March 1, 1994, a complaint issued on the basis of some
of these and other charges, with a hearing date set for April 11,
1994. That complaint alleged, inter alia, that the Company had
violated Section 8(a)(5) and (1) by withdrawing recognition
from the Union in August 1993, and requested a bargaining
order. On March 4, 1994, Company Counsel Golden tele-
phoned the office of Attorney Edward Fillenwarth Jr. (variously
spelled in the record), who had represented the Union in con-
nection with charges filed by the Company against the Union in
April 1993, and whom Golden then believed to be the Union’s
outside counsel.165 Golden said that an unfair labor practice

subject of a union grievance which was pending arbitration as of the
1994 hearing, which the Company claimed was untimely, and which
Chestnut expected to lose. Golden testified to the “understanding,’’ at
least as of March 9, 1994, that in January and February 1994, work was
transferred from the Indianapolis facility to the Springfield facility and
other company facilities. He did not explain why he possessed this
“understanding.’’
164 My findings in this paragraph are based on evidence put in by the
Company without objection. The complaints in the instant case are not
based on the charge in Case 25–CA–22649, and its contents and dispo-
sition are not shown by the record.
165 Golden testified that he then (as of March 1994) assumed Fillen-
warth would be representing the Union in the instant case. Attorney
Chestnut, who did represent the Union during the hearing before me,
signed all but one of the charges (the exception was signed by Buhle)
filed by the Union on which the March 1 complaint was based.
complaint and several unfair labor practice charges were pend-
ing against the Company, that the complaint was coming up for
hearing, and that he was interested in an off-the-record meeting
to discuss the matter. Fillenwarth said that things could not be
resolved if they were not discussed. However, he said, he was
not involved in the pending cases and did not know what role,
if any, Union President Neal would want him to have if there
was a meeting. Fillenwarth undertook to check with Neal and
then to call Golden back. Fillenwarth testified to inferring from
Golden’s call that Golden’s purpose was to explore settlement
“of something.’’166
Immediately thereafter, Fillenwarth telephoned Neal that
Golden had called him regarding the Company, and had asked
whether Neal would be willing to meet with Golden in an off-
the-record conference to discuss issues relating to the Com-
pany. Neal, whose office is in Indianapolis, said that during the
following week he had to come to Chicago (where Golden
maintains his office) anyway on an unrelated matter, and asked
Fillenwarth to have Golden call him direct.
Later that same day, Golden telephoned Neal. Golden said
that he had telephoned Fillenwarth and told him that in the
interests of both the Union and the Company, an off-the-record
meeting should be convened in order to examine whether or not
a settlement of all pending charges between the Company and
the Union could be reached. Neal said that he would be glad to
meet with Golden on an off-the-record basis, but Neal wanted
Union Attorney Chestnut to be present. Golden said that it
would be all right if Chestnut was there. Neal told Golden that
Neal was going to be in a Chicago area hotel on March 9 in
order to participate in negotiations for a master labor contract,
which did not involve the Company here, and suggested a
meeting there at 11 a.m. Golden agreed. A few days before
March 9, Neal told Chestnut (who is the Union’s staff attorney)
that Neal was going to meet with Golden on March 9, and
asked Chestnut whether he wanted to attend. Chestnut said that
he did. Before going to the meeting, Chestnut asked Buhle
what the major problems were and what the Union “needed to
have.’’ At the Chicago hotel, before Golden and Neal came to
the appointed meeting place, Chestnut jotted down his memory
of the items listed by Buhle.
c. The March 9 meeting
The meeting between Golden, Neal, and Chestnut took place
on March 9. After some preliminary courtesies, Golden said
that he was aware that there had been a lot of problems in the
past at the Company, that perhaps the conferees could resolve
some of these problems and maybe could even make the NLRB

Golden’s answer to the original complaint was served on Chestnut (but
not Fillenwarth) in October 1993.
166 My findings as to the content of this conversation are based on a
composite of credible parts of Fillenwarth’s and Golden’s testimony.
For demeanor reasons, I accept Fillenwarth’s denial of Golden’s testi-
mony that Golden said there had been ongoing confrontation between
the Union and the Company, and proposed a conference to settle all
pending matters between the Company and the Union, to which Fillen-
warth agreed. In connection with Fillenwarth’s testimony that the
conversation did not last long enough to include the entire exchange
testified to by Golden, I note that although Golden’s telephone usage
reports show that the first March 4 connection lasted for 6.1 minutes,
there is no evidence as to either the interval (if any) between the time
the telephone call reached Fillenwarth’s office and the time he got on
the line, or the interval (if any) between that time and the time Golden
himself got on the line.
EBY-BROWN CO. L.P. 557
charge go away.167 Neal and Chestnut replied that they were
“listening.’’ Golden said that he wanted the conference to be
“off the record’’ and confidential; Neal and Chestnut agreed.
Golden said that the Company had completed the acquisition of
Bosart’s assets and had spent a lot of money on an addition to
the former Bosart facility at Springfield;168 that the Company
had been considering how best to integrate the Springfield fa-
cility into the Company’s system; that the Springfield, Ohio
facility was larger than the Indianapolis facility and had a larger
work force; and that he understood that the Company felt com-
pelled to commit itself to maintaining the operation in Ohio and
retaining the work force in Ohio as a commitment to make in
order to achieve the purchase. Golden went on to say that the
Company was going to move all of its Indianapolis warehouse
operations to the Springfield facility; and that the Company
intended to maintain only a shuttle operation in Indianapolis,
probably out of a new and much smaller facility.169 Golden’s
statements inaccurately described the Company’s plans.170
Golden said that the Company would be prepared to negotiate a
closeout agreement or a severance package with respect to the
employees who would not be working there any more.171 Neal
said that the Union was not interested in negotiating a closeout
contract, that he wanted the Company to stay in town with the
unit complement it had historically employed (95 to 105).
Golden asked what kind of figures the Union could live with if
the Company stayed in Indianapolis. Chestnut or Neal said 60
to 75. Neal said that he was aware that the Company had been
transferring bargaining unit work out of the Indianapolis facil-
ity, and that he might be filing charges on that at a later date.
The Company had not in fact been transferring such work;
Golden neither admitted nor denied Neal’s assertion (see su-
pra, fn. 163 and attached text).
Neal or Chestnut asked how big Golden anticipated the Indi-
anapolis shuttle facility would be. Golden said that seven driv-

167 This finding is based on Chestnut’s testimony, which is partly
corroborated by Neal. For demeanor reasons, I do not credit Golden’s
testimony that he said he wanted to try to resolve all pending issues
between the parties and that Chestnut and Neal agreed; rather, I credit
Chestnut’s denial.
168 Chestnut, a generally reliable witness, testified that “I think
[Golden] said $30 million’’; as previously stated, Copresident Thomas
Wake testified that the Company had spent a little over $2 million in
capital improvements to the Springfield facility. The record contains
no other evidence as to this matter.
169 My findings in this sentence are based on Chestnut’s and Neal’s
testimony, which I credit for demeanor reasons and for the additonal
reasons discussed infra.
170 Copresident Thomas Wake testified that although “rumors were
fairly rampant in our organization’’ that “Indiana is closing because we
purchased Bosart,’’ no consideration had been given as of late February
1994 to closing the Indianapolis branch. The Company’s March 4
memorandum contemplated that after May 1, 1994, the Indianapolis
warehouse would continue to service some Indiana customers and,
perhaps, some in western Kentucky. Thomas Wake testified in Sep-
tember 1994 that the Company had no current plans to transfer any
additional work from Indianapolis to other branches; Patricia Reynolds
testified that she was unaware of any such company plan in March
1994 and would likely have had knowledge of any such plan; and,
laying to one side Golden’s representations to Neal and Chestnut on
March 9, 1994, there is no evidence that the Company ever had any
such plans other than those described in the March 4, 1994 memoran-
dum and completed in May 1994.
171 This finding is based on Chestnut’s testimony, which I credit for
demeanor reasons and other reasons discussed infra.
ers would be working at the facility,172 and that the Company
was willing to negotiate a new bargaining agreement which
would cover that unit and would be retroactive to the August
1993 expiration of the previous contract. Thomas Wake testi-
fied that he had never considered offering the Union a number
lower than 15; that he had come up with that number before the
March 9 meeting; that he had communicated that number to
Golden; and that as of September 1994, the number of employ-
ees employed by the Company at any one shuttle garage ranged
between two and nine. Neal said that he wanted a contract, but
that he wanted it to cover warehousemen and drivers. Using
notes which Chestnut had prepared in advance of the meeting,
Neal said that the Union would require certain terms to be in-
cluded in any contract to which it would agree. Some of these
terms consisted of (1) a $2 hourly wage increase over the 3-
year life of the contract; (2) a provision requiring job shift as-
signments to be bid and assigned on a seniority basis; (3) a
limit on mandatory overtime; (4) the exclusion of working
foremen from the bargaining unit; (5) a retirement plan; (6) a
provision requiring an offer of rehire to anyone who had quit or
had been terminated after 1992; (7) the substitution of a joint
union-employer committee for the third step of the grievance
procedure in the expired contract; (8) discussion of the bonus
system; and (9) negotiation over work rules.173
Golden stated that he did not have the authority to agree to a
unit of more than seven people. He left the group and tele-
phoned Thomas Wake. Upon returning, Golden said that he
might be able to go as high as 25.174 Neal asked for a guaran-
tee that at least 75 unit employees would be employed at Indi-
anapolis. Golden said that he would contact his client and
(probably in a week or 10 days) get back to Neal, who sug-
gested that Golden get back to Chestnut. Chestnut specified to
Golden a dollar amount which (Chestnut said) constituted the
Company’s liability under the pending unfair labor practice
charges. Golden said that he did not believe the Company
would be liable for that much. Neal said that the liability issue
would have to be resolved.
This meeting, which lasted about an hour, was conducted
during the lunchbreak of negotiations (unrelated to the instant
case) in which Neal was participating elsewhere in the hotel.
When Neal remarked that the lunchbreak had ended, the par-
ticipants again agreed that their meeting was off the record, and
the conference broke up.
My findings as to the substance of the March 9 conference
are based on a composite of credible parts of the testimony of
Golden, Neal, and Chestnut. As to conflicts in the testimony, I
have credited Chestnut. Golden testified that as to the transfer
of work from Indianapolis to Springfield, he told the Union that
some work had already been transferred, but that the Company
172 This finding is based on Neal’s and Chestnut’s testimony. For
demeanor reasons, I do not credit Golden’s testimony that he gave a
figure of seven delivery drivers and two or three shuttle drivers.
173 My findings as to these terms are based on Golden’s testimony
and contemporaneous notes, and on Chestnut’s testimony with refer-
ence to his contemporaneous notes. I believe Neal was mistaken in
denying that some of these matters were referred to.
174 My finding in this sentence is based on Chestnut’s testimony, cor-
roborated by Neal as to the “25’’ figure. Golden testified that at the
meeting he gave the figure of 15, and that he gave Chestnut the figure
of 25 during a telephone conversation a few days later. In an out-of-
court discussion during a break in the hearing, Golden and Chestnut
agreed that it was immaterial whether Golden gave the figure of 25 at
the March 9 conference or during a subsequent telephone conversation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
had not laid off and was not anticipating laying off any em-
ployees as a result of the transfers; that the Company was now
considering future plans which would involve Indianapolis and
Springfield; and that the Company could guarantee that during
the life of a 3-year contract it would maintain at least a “shuttle
garage’’ in Indianapolis. According to Golden’s testimony, he
further said that the 1990–1993 agreement “which had re-
mained in effect’’ allowed the Company to transfer work be-
tween branches as long as employees had not been laid off and
that transfers had occurred at prior times under that provision
(see infra, part V,F,7). I credit Chestnut’s denial, for demeanor
reasons, for the reasons discussed infra, footnotes 174, 177,
178, and 180, and because Thomas Wake testified that a 25-
employee complement (which Golden admittedly cited to the
Union as a possible minimum guarantee; see supra, fn. 174)
would be too large to constitute a shuttle operation. I note that
as to this matter the credibility of Golden’s testimony is not
enhanced by Thomas Wake’s testimony that the Company did
not in fact intend to move all of its Indianapolis warehouse
operations to Springfield; at the time of the March 9 confer-
ence, the Company had not yet begun to transfer work from
Indianapolis to Springfield, but Golden testified (over Chest-
nut’s credible denial) to telling the Union on March 9 that
transfers had already begun. In addition, I credit Chestnut’s
denial of Golden’s testimony that he said that as a result of the
Bosart asset purchase there would be some “additional work
transfers occurring’’ which would not result in any layoffs, for
demeanor reasons and because there had been no work transfers
since 1992. Also, for demeanor reasons, I credit Chestnut’s
denial of Golden’s testimony that Neal said there was not much
to talk about, and no need to talk any further, if the Company
was not willing to guarantee 80 bargaining unit jobs for the life
of the contract; and that the Union said the best it would agree
to would be an assurance of maintaining 75 jobs in Indianapo-
lis, with further reduction by attrition.175 Also, for demeanor
reasons, I credit Chestnut’s and Neal’s denial of Golden’s tes-
timony that Neal said the Union was going to get everything it
wanted from the NLRB.
3. The March 22, 1994 letter to Neal from Golden about
possible negotiations
By letter to Neal dated March 22, 1994, with a courtesy
copy to Chestnut, Golden stated that the Company was pre-
pared to meet with the Union to engage in negotiations over the
terms of a collective-bargaining agreement. The letter asked
Neal to get in touch with Golden as soon as possible to arrange
times and places for meetings. The letter further stated:

The Company wishes to emphasize that by participat-
ing in negotiations with the Union, the Company has not
waived its position that the results of the NLRB election
conducted on July 8, 1993 should be certified. The Com-
pany has denied and shall continue to deny that it engaged
in unfair labor practices as charged by the Union to the
National Labor Relations Board. These negotiations,
therefore, are to be viewed as without prejudice to posi-
tions the Company has taken and shall continue to take in
denying the Union’s allegations of objectionable con-

175 As of March 28, 1994, the date that the transfer of work began,
the unit consisted of 87 employees; as of July 26, 1994, after the trans-
fer of work had concluded, the unit consisted of 71 employees. At the
time of the July 1993 election, the unit consisted of 96 to 99 employees.
duct/unfair labor practices before the National Labor Rela-
tions Board.

4. The first-phase and second-phase transfer of work from
Indianapolis to Springfield
When the Saginaw, Elgin, and Aurora facilities were ac-
quired by the Company on various dates, each of them was
represented by the Teamsters. On various dates between 1988
and before the end of 1992, the Teamsters was decertified at
each of these locations. No objections or unfair labor practice
charges were filed in connection with any of these decertifica-
tions. Laying the Indianapolis facility to one side, as of March
28, 1994, and until at least July 24, 1994, none of the Com-
pany’s facilities was union represented. When taking steps to
acquire the Springfield facility from Bosart, in mid-1993, the
Company became aware of the pendency of a representation
petition, filed by the United Food and Commercial Workers,
with respect to the Springfield warehouse employees. The
UFCW had lost an NLRB election in that unit, by a fairly close
vote, but the Company anticipated that the NLRB would set
aside that election and direct a rerun election. The UFCW
withdrew its petition in August 1994, after the events involved
in the instant case.
As of March 27, 1994, 117 total routes were being loaded by
unit employees in the Indianapolis night warehouse. Of these
routes, 103 were normally delivered by bargaining unit drivers;
the rest were shuttled (mostly by bargaining unit drivers) to the
Hilliard garage, from which deliveries would be made to the
customers by nonunit drivers. On March 28, the Company
transferred to its Springfield facility the Indianapolis bargain-
ing—unit work of processing orders and delivering products on
21 routes in northern Ohio and eastern West Virginia. For the
purpose of pulling product and loading trucks to service these
21 routes, the Company had used at least one, and sometimes as
many as five, Indianapolis unit warehousemen per day; after
March 28, all of these 21 routes were serviced by Springfield
warehousemen. Moreover, of these 21 routes, 6 to 8 had been
serviced by about 2 Indianapolis bargaining unit drivers prior to
March 28, 1994, and were serviced thereafter by nonunit driv-
ers in Springfield. Although the rest of these transferred routes
were serviced prior to March 28 by nonunit drivers attached to
a company shuttle garage in Hilliard, Ohio (about 160 miles
from Indianapolis), the products on these routes had been
loaded by one to five bargaining unit employees at the Indian-
apolis facility, and then driven to the Hilliard shuttle garage by
about two bargaining unit shuttle drivers.
About April 16, six Super Value routes were transferred
from Indianapolis to Springfield. These routes had been driven
by at least two bargaining unit Indianapolis employees every
week, and had been serviced by bargaining unit Indianapolis
warehousemen.
The March 4 memorandum had stated that by the end of the
week of April 18, 27 percent of Indianapolis business would be
transferred to Springfield.
5. The March 31 charge; the March 31–April 14 Chestnut-
Golden correspondence
On March 31, 1994, the Union (through Chestnut) filed the
original charge in Case 25–CA–23120, which is among the
charges underlying the complaint in its final form. That charge
alleged, inter alia, that “within the last 6 months, and continu-
ing to date,’’ the Company had violated Section 8(a)(1) and (3)
EBY-BROWN CO. L.P. 559
by “permanently transferring bargaining unit work from the
Indianapolis warehouse to an out-of-state facility.’’
By letter to Golden (with courtesy copies to, inter alia, Neal
and an NLRB representative) dated that same day, Chestnut
acknowledged receipt of Golden’s March 22 letter stating that
the Company was prepared to meet and negotiate a new bar-
gaining agreement. The letter went on to say (emphasis sup-
plied, for reasons which will appear):

You then state the employer has not waived its posi-
tion that the decertification election of July 8, 1993
“should be certified’’ which means Local 135 should not
be the employees’ bargaining representative. Is your posi-
tion in this letter that Local 135 is the proper bargaining
unit employees’ bargaining representative? We find it dif-
ficult to believe good faith bargaining could be conducted
if, as you state in your letter, your position is that Local
135 is not the proper employee bargaining agent.
Additionally, assuming the aforementioned is resolved,
[is it] the position of the employer that the provisions of
the expired bargaining agreement (e.g. grievance proce-
dure, rules and regulations, check-off and dues, business
representative’s access to employees on Company prop-
erty, etc.) will remain in effect while bargaining pro-
ceeds?176
Lastly, based on our conversations in Chicago, is the
employer willing to negotiate the decision to close the
warehouse operations in Indianapolis or are you only will-
ing to negotiate the effects of the rumored closure?177
I will wait for your response to these questions and
also obtain dates for a possible meeting.

After receiving this letter on April 6, Golden made a number
of attempts to telephone Chestnut, but was unable to reach him.
Golden left messages with Chestnut’s office, but Chestnut did
not return Golden’s calls, although on previous occasions
Chestnut had returned Golden’s calls promptly. Thereafter, by
letter to Chestnut dated April 11, and received by him on April
12, Golden stated that on several occasions since his March 18
letter to Neal, “wherein I indicated that [the] Company was
prepared to meet with [the] Union over the terms of a new col-
lective-bargaining agreement,’’ he had telephoned Chestnut’s
office “to establish a mutually agreeable date and time to com-
mence negotiations’’; but that the Union had not contacted
Golden to schedule a negotiating meeting. The letter went on
to say:

176 In the letter, the bracketed words were “it is.’’ However, Chest-
nut testified that he intended to use the words “is it,’’ and Golden stated
that he so interpreted the letter when reading it.
177 At the hearing on July 29, 1994, it was agreed that the under-
scored words would be disregarded by me pending disposition of the
matter discussed infra, part V,F,13,a relating to the admissibility of
evidence regarding the Chicago meeting. I accord such words the
weight which I regard as appropriate in view of my finding (infra, part
V,F,13,a) that such evidence was admissible for certain purposes.
Accordingly, I regard this paragraph of Chestnut’s letter as corroborat-
ing his testimony that during the March 9 meeting, Golden said that the
Company was going to move all of its Indianapolis warehouse opera-
tions to the Springfield facility, and to maintain only a shuttle operation
in Indianapolis. See Tome v. United States, 513 U.S. 150 (1995). So
far as the record shows, Golden never claimed to Chestnut that this
inquiry was based on an erroneous recollection of what Golden had
said at this Chicago meeting on March 9.
Once again, let me restate that [the] Company is [pre-
pared] to meet with representatives of your Union to nego-
tiate the terms of a collective bargaining agreement to re-
place the contract which expired August, 1993. The Com-
pany intends to propose several modifications to the prior
contract and it assumes the Union intends to do the same.
If I do not hear from you by the end of this week in re-
sponse to this letter, it will be assumed the Union does not
desire to negotiate with the Company over the terms of a
new labor contract.

Laying the quoted language to one side, Golden’s April 11
letter did not address any of the questions posed in Chestnut’s
March 31 letter.
In response to Golden’s April 11 letter, Chestnut telephoned
him on April 12, and a meeting was set for April 29. A short
time later, Golden telephoned Chestnut and asked whether they
could meet on April 22 also. Chestnut agreed.
By letter to Golden dated April 14, 1994, and received on
April 21, Chestnut stated, in part:

In order to expedite the preliminaries at our meeting
next Friday [April 22], I would still like an answer to the
inquiries I made in my letter to you dated March 31, 1994.
Is [the Company] recognizing Local 135 as the proper
bargaining representative of the Indianapolis employees?
Is the Company abiding by the provisions of the expired
bargaining agreement regarding work rules and regula-
tions, hours of work, wages, etc.? Will the Local’s busi-
ness representatives have access to the employees on
Company property?
Lastly, I have been told bargaining work is still being
transferred from the Indianapolis facility and employees
from your Ohio facility have [begun] performing local de-
liveries that were performed by Indianapolis drivers. I
would request that this cease if our scheduled meetings
are to amount to more than just a “paper trail’’ in future
litigation.

Prior to April 22, Chestnut had no other written correspon-
dence with the Company. On April 21, Golden telephoned
Chestnut that the Company would be responding to his ques-
tions when the parties met the following morning.
6. Letters to employees by President Neal on April 14, and by
the Company on March 22
Meanwhile, by letter to the unit employees dated April 14,
1994 (offered and received without limitation or objection),
Neal stated, in part (emphasis in the original):

With the possibility of protracted legal battles with the
N.L.R.B., Eby-Brown management has contacted the [Un-
ion] and requested to meet and bargain a new collective
bargaining agreement.
When Eby-Brown first contacted me they proposed we
negotiate a close-out agreement for the warehouse em-
ployees and, in return, they would recognize an on-going
seven-man shuttle operation by Teamster drivers to dis-
tribute products in the Indianapolis area from the new
Springfield, Ohio warehouse.178 I flatly rejected this pro-
178 As noted supra, fn. 151, the witnesses were in disagreement as to
whether on March 9 Golden initially proposed a 7-man shuttle opera-
tion or an operation manned by 9 or 10 drivers. Laying this matter to
one side, there is no evidence that Golden ever advised the Union or the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
posal, and the Company was informed that I maintained
our earlier position and was prepared to abide by the
NLRB’s ultimate resolution. I also informed the Company
that I would have additional NLRB charges filed in the
event work was transferred from the Indianapolis ware-
house.
Again, Eby-Brown management has contacted me re-
questing to negotiate a new collective bargaining agree-
ment. I have agreed to meet with them.

A letter from the Company to the unit employees dated
March 22 had stated, in part:

Given the fact that the NLRB process from this point
forward can take several months, if not longer, it has been
decided that the Company will engage in bargaining while
the NLRB issues are under consideration. The Company
has notified the Union, however, that by agreeing to bar-
gaining pending the final resolution of pending NLRB
matters, the Company has not waived its position it has not
committed unfair labor practices or objectionable conduct
and the results of the July 8th election should be certified.
7. The meeting between the Company and the Union on
April 22, 1994
At the April 22 meeting, the Company was represented by
Golden, Patricia Reynolds, and Rodney Capanash (variously
spelled in the record), who is the corporate director of person-
nel. At the beginning of that session, the Union was repre-
sented by Chestnut and Buhle. Golden began the meeting by
stating that the Company was there to negotiate. However,
Golden said, it was also the Company’s position that the Com-
pany was not guilty of any unfair labor practices and that the
results of the decertification election should be upheld. Golden
said that if the parties reached an agreement, it would all be
tentative, pending resolution of the NLRB charges; and that if
the Company’s position and the results of the decertification
election were upheld, the contract would be null and void.
Chestnut asked Golden whether the Company was recognizing
the Union and believed that the Union represented the employ-
ees. Golden said that basically, the Company was there to ne-
gotiate; that if the parties did reach a contract, it would remain
in effect unless and until the results of the decertification elec-
tion were upheld; but that if the results of the election were
upheld, any contract reached would be null and void. Golden
said that the contract had expired in August 1993, but that its
terms and conditions remained in effect.
Chestnut asked whether the union business representative
would be given access to the facility and to the bulletin board
there. Golden replied that the business agent would be afforded
access to the warehouse and bulletin board in accordance with
the language of the contract and how it had been applied. The
Company said that this would require Buhle, as a condition of
access, to notify the Company by telephone that he was com-
ing. The Union denied that this practice had been followed; as

employees of any inaccuracy in the sentence to which this footnote is
attached. Rather, Golden testified, in effect, that neither he nor (to his
knowledge) the Company ever told the Union or the employees that
this statement was inaccurate (see p. 3475, L. 21 to p. 3484, L. 6 of the
transcript). Moreover, Chestnut credibly testified that Golden had
never said to him that Golden disagreed with the accuracy of any de-
scription of the March 9 conference in that letter. See also, infra, fn.
180.
to Buhle’s practice since taking over the account in mid-1992,
this was true (see supra, part V,C,2,a). Patricia Reynolds said
that Buhle’s predecessor, Trader, had followed that practice.
Reynolds further said that Trader had followed the practice of
notifying someone, such as the receptionist, that he was in the
building; as shown supra, part V,C,2,a, Buhle, too, had fol-
lowed this practice. During the discussion, the parties also
disagreed as to whether the business representative had previ-
ously gone directly to the side door and been buzzed into the
warehouse (Buhle had occasionally done this, supra, part
V,C,2,a), and whether Trader and/or Buhle had restricted them-
selves to the breakroom during work time (Buhle had not done
this; supra, part V,C,2,a).
Chestnut asked whether the Company had any intention of
closing the Indianapolis facility or reducing that operation in
any way. Golden said that no decision had been finalized re-
garding these two issues, but that the Company would contact
the Union for discussions before a final decision was made; that
the Company would also bargain the effects, if it did decide to
close; and that the Company would also bargain if there were
any major reductions of the Indianapolis operations, or major
changes in the Indianapolis operations. Indianapolis branch
manager Patricia Reynolds testified in late July 1994, about 3
months after she attended this meeting, that so far as she knew,
there had never been any plan to reduce the size of the Indian-
apolis facility, or to transfer any work from Indianapolis in
addition to the transfers described in the March 4 memoran-
dum; and that she believed she would have known of any such
plans, if they existed. There is no evidence that she so advised
the Union at this meeting or any other meeting.
In response to a question by Chestnut about deliveries to a
Speedway convenience store about 5 miles from the Indianapo-
lis facility, Golden stated that this customer had been obtained
as a result of the Bosart acquisition; that it had previously been
serviced by Bosart from the Springfield facility then owned by
it; and that after acquiring the Springfield facility from Bosart,
the Company had continued the servicing of this Speedway
store from Springfield. The Union said that certain work was
being transferred out of the Indianapolis facility, and that the
size of the bargaining unit was diminishing through attrition.
Golden pointed out that the last sentence in article XXI, section
1 of the expired contract (a provision more fully discussed in-
fra) stated that the Company would not violate the contract by
removing “work currently performed by [unit] employees . . .
and reassign[ing] the work to employees at other operations of
[the] Company so long as no employees are laid off as a result
of said reassignment’’; Golden stated that the Company consid-
ered that as a “term and condition then in place.’’ Golden fur-
ther stated that a reorganization of how customers would be
serviced is always an ongoing process for the Company and the
acquisition of the Bosart assets made this an additional element
which was then under consideration as to the period after De-
cember 1993.
Buhle asked about the status of dues checkoff, grievance
procedure, and the union bulletin board. Golden said that the
checkoff and the arbitration steps of the grievance procedure
were no longer in effect, because the bargaining agreement had
expired; but that the Union would continue to have access to
post notices on the bulletin board on the same terms as it had in
the past.
Buhle asked what the current size of the bargaining unit was.
Reynolds replied 82; there is no contention or evidence that this
EBY-BROWN CO. L.P. 561
was inaccurate. Chestnut also asked for a copy of the seniority
list. Golden said it would be forthcoming. The Union received
this list on May 10 or June 1, after the work transfers had been
completed.
Buhle asked whether there had been any decision to transfer
any work into or out of the Indianapolis facility. Golden said
that no final decision had been made at that point about trans-
ferring work either to or from Indianapolis. Golden testified
that at the time he made this representation, he believed it to be
true. No effort to correct him was made by Reynolds, although
according to Thomas Wake’s credible testimony he had worked
with her and with her recommendations as to what should be
moved, and although as branch manager she had received
shortly after March 4 and prior to March 11 a copy of the
March 4 memorandum which set forth the procedures for trans-
ferring specifically described work from Indianapolis to Spring-
field during the weeks of March 28, April 18, and “date to be
determined,’’ and which set forth concomitant transfers of work
from Springfield to Ypsilanti but said nothing about any trans-
fer to Indianapolis.179 Chestnut said that the Union would like
the Company to stay and prosper in Indianapolis, and that the
Union was interested in doing what it could to cause the Com-
pany to decide to remain in Indianapolis. Chestnut asked
whether there was a time frame concerning a move from Indi-
anapolis. Golden said no, but the Company would provide
notification of any possible decision in a timely manner so that
bargaining could take place over that decision before it was
finalized. So far as the record shows, Reynolds did not reveal
that so far as she knew, the Company did not intend to move
from Indianapolis.
Then, Chestnut said that he was going to present the Union’s
proposals. Golden thereupon brought up the subject of Neal’s
April 14 letter to the employees, which included an assertion by
Neal (emphasis in the original) that the Company had “pro-
posed we negotiate a close-out agreement for the warehouse
employees and, in return, they would recognize an on-going
seven-man shuttle operation by [union] drivers to distribute
products in the Indianapolis area from the new Springfield,
Ohio warehouse.’’ Without questioning the accuracy of this
assertion by Neal, Golden heatedly asserted that the letter had
breached the agreement between him and Neal to keep the
March 9 meeting off the record.180 Chestnut replied that the
Company had breached the agreement by issuing its March 22
letter to the employees (see supra, part V,F,6).181

179 Thomas Wake testified that within the week following March 4,
copies of this memorandum were received by the “branch managers of
Indianapolis or Springfield and our Ypsilanti facility and members of
corporate responsible for coordination of issues pertaining to transfer of
business.’’ It is unclear whether he was referring to Capanash, the
Company’s corporate director of personnel, who represented the Com-
pany at this April 22 meeting but (so far as the record shows) said
nothing about the work transfer matter.
180 Golden’s failure at this meeting to make any such claim of inac-
curacy forms part of the basis for my action in crediting Chestnut’s and
Neal’s testimony, which virtually tracks Neal’s April 14 letter, as to
what Golden stated on March 9 regarding the Company’s plans at Indi-
anapolis. Because Golden was admittedly “personally upset’’ at the
letter’s perceived breach of the agreement for an “off-the-record’’ and
“confidential’’ meeting, I think it likely that during this conversation he
would also have referred to any factual inaccuracy set forth in the al-
leged breach.
181 In describing the Company’s at least alleged willingness to en-
gage in negotiations over the terms of a new collective-bargaining
Golden’s bargaining notes state that at this point, Buhle
asked whether there was a hiring freeze in place, and whether
there was a plan to replace bargaining unit employees who had
quit. Golden testified that he could not recall what the response
was. As to the April 22 meeting, the record contains no other
evidence as to this matter.
Using the expired contract as a base, Buhle then orally pre-
sented the Union’s proposals. These proposals included,
among many others, a provision that a minimum number of
employees (82, the then number of employees in the bargaining
unit) be maintained for the life of the contract; Buhle credibly
testified that the Union advanced this proposal because the
Union was seeing a lot of work being transferred out of the
Indianapolis facility and a decrease in the size of the bargaining
unit, and to the Union this was a major concern. Also, the Un-
ion proposed a provision that an employee who was displaced
through no fault of his own would receive either transfer rights
to another location plus moving expenses, or else severance
pay; and a provision that all employees who had left the Com-
pany’s service for any reason after 1992 be offered reemploy-
ment. In addition, Buhle proposed that the position of working
foreman (a classification covered by the expired contract) be
filled by seniority or, if the Company rejected this proposal,
that the word “foreman’’ be deleted from the agreement and not
covered by the contract;182 a limit on mandatory overtime; and
a provision that the number of paid sick days be increased from
6 to 8 and that an employee who took a paid sick day not be
charged with an attendance occurrence. The Union also pro-
posed various economic improvements, including a $4 hourly
wage increase over the life of the contract ($2 to be retroactive
to August 25, 1993, the expiration date of the old contract), a
$300-ratification bonus, a profit-sharing and pension proposal,
shift premiums, time and a half for drivers after 8 hours a day,
an increase in payments to a safety and training fund, a 1-week
increase in paid vacations for 8-year employees, a paid birthday
holiday, payment to employees for time spent at a clinic be-
cause of on-the-job injuries, and payment to employee negotia-
tors for time spent in negotiations.
At this point, the parties took a lunchbreak. When the dis-
cussions resumed, Chief Steward Douglas Jones and Teresa
Goens (who had become alternate steward when Jones became
chief steward) joined the union team. The Company then sub-
mitted a set of written proposals which (like the Union’s) used
the expired contract as a base. These proposals included,
among a number of others, the addition of “shuttle driver’’ to
the job classifications covered by the contract, and certain
changes in article XXII, section 3. As previously noted, in the
expired contract this provision had stated:

agreement, the Company’s March 22 letter to the employees did not
refer to the Company’s March 9 offer to engage in such negotiations as
to a unit of up to 25 employees. Chestnut testified that if anyone knew
what the March 9 discussion was, he would be very much misled by the
March 22 letter. However, after looking at the March 22 letter, he was
unable to point to any portion which described the March 9 meeting.
182 The contractual job description for “working foreman’’ states, in
part; “able to plan and coordinate the flow of work . . . to direct the
work of labor force . . . and maintain a harmonious, neat and well-
organized shop. Can be assigned to bargaining unit work as the Com-
pany sees fit. Working foreman relays instructions from management
and makes required reports of day-to-day operations. He has no author-
ity to hire, fire, discipline or effectively recommend the same.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
Authorized agents of the Union shall have access to
the Employer’s establishment during working hours for
the purpose of adjusting disputes, investigating working
conditions, collection of dues and ascertaining that the
agreement is being complied with, but this shall not un-
duly interfere with the performance of necessary work.

The Company proposed that the words “The Union Business
Agent’’ be substituted for the first five words in this provision,
that the words “adjusting disputes’’ and “collection of dues and
ascertaining that the agreement is being complied with’’ be
deleted, and that the following sentence be added at the end:
“The Business Agent shall first make a `courtesy call’ to the
Branch Manager informing him/her of his visit.’’ During sub-
sequent discussions, Golden said that as to access by the busi-
ness representative, the Company was willing to live with
whatever practice had been followed, but that the Company
wanted the practice put into writing and included in the next
collective-bargaining agreement. The parties never did reach
an agreement on what the practice had been. As of July 28,
1994, Buhle had not attempted to gain access to the facility, or
the bulletin board, after this April 22, 1994, conference.183
Article XV of the expired agreement, which article neither
party ever proposed to change, provides, “The Company con-
strues and the Union recognizes the provisions of this agree-
ment as . . . being the only limitations on management’s right to
continue to manage and operate its business.’’ The Company
proposed the deletion of article XXI of the expired contract,
which provision read as follows:

Subcontracting
Section 1. Except as provided below, for the purpose
of preserving work and job opportunities for the employ-
ees covered by this Agreement the Company agrees that
no work or services presently performed or hereafter as-
signed to the collective bargaining unit will be subcon-
tracted, transferred, leased, assigned or conveyed in whole
or in part to any other plant, to any person or non-unit em-
ployees, unless otherwise provided in this Agreement. The
Company may subcontract work in accordance with past
practice including administrative janitor services, truck
servicing, truck cleaning, conveyor repair, and facility re-
pair, and when all of its regular employees are working
except that in no event shall work presently performed or
established during the life of this Agreement be farmed
out. Overflow work may be performed by persons other
than the Company’s employees provided that this shall not
be used as a subterfuge to violate the provisions of this
Agreement. It shall not be considered a violation of this
provision if the Company, in order to better serve the
needs of the business, removes work currently performed
by employees covered by this Agreement and reassigns
the work to employees at other operations of Eby-Brown

183 As to the discussion on access, my findings are based mostly on
Golden’s testimony. Buhle testified that Golden said access would be
permitted under the same circumstances as prior to the election, the
Union asked if that meant access to the facility, and the Company re-
plied that this meant the breakroom only. However, Buhle’s contempo-
raneous notes are somewhat difficult to square with his testimony.
Company so long as no employees are laid off as a result
of said reassignment.184
Section 2. Grievances. Within five (5) working days
of filing of grievance claiming violation of this Article the
parties to this Agreement shall proceed to the final Step of
the Grievance Procedure, without taking any intermediate
Steps, any other provisions of this Agreement to the con-
trary notwithstanding.

After a caucus, the Union accepted some of these proposals,
made counterproposals as to some, rejected some, and passed
on or failed to comment on others, including the proposed dele-
tion of article XXI. As to some of the rejected company pro-
posals which called for changes in the provisions of the expired
agreement, the Union took the position that the provisions of
the expired agreement should be retained.
Then, the Company accepted one union proposal and re-
jected others, including the proposal that the position of work-
ing foreman be filled by seniority, the proposals for an in-
creased number of paid sick leave days and the exclusion of
paid sick leave from absenteeism occurrences, and the proposal
for offers of reemployment for employees who had been sepa-
rated since January 1, 1993.
8. The meeting between the Company and the Union on
April 29, 1994
The parties reconvened on April 29, 1994. The Company
was represented by Golden and Kramer. The Union was repre-
sented by Chestnut, Buhle, Douglas Jones, Teresa Goens, and
unit employee Richard Niehaus (variously spelled in the re-
cord). Buhle asked whether the Company was currently en-
gaged in a hiring freeze, and whether the Company planned to
replace certain employees who had been “displaced’’ during
the preceding 2 weeks. Golden said that he would have to get
back to Buhle with a response to these questions. Chestnut
produced a letter from the Company to a customer, stating that
effective May 9, 1994, the servicing of this customer was being
changed from the Indianapolis to the Springfield branch.
Golden said that the Company was still intending to transfer the
servicing of that customer to Springfield. Chestnut asked how
much work was being transferred. Golden replied, according to
his testimony, “I can’t respond at [this] time regarding the vol-
ume of work being transferred but I did indicate that there
would be no layoffs as a result of any of these work transfers
that were being discussed.’’ Then, Buhle resumed going
through the Company’s April 22 proposals, accepting some,
offering counterproposals as to some, and rejecting others.
During the discussion of certain Company proposals to delete
references to certain job classifications (which had not been
filled for a long time) and to add the shuttle-driver classifica-
tion, to which proposals the Union agreed, Buhle stated that the
Union wanted the working foreman positions to be filled by a
bid system, and that if this was not done, then the Union
wanted them to be given authority which would make them
“true supervisors,’’ no longer in the unit covered by the bar-
gaining agreement. The subject of working foremen again
arose during the parties’ discussion of a company proposal to
alter a rule calling for discipline if an employee failed to carry
184 The agreement in effect before August 1990, which the Union
had negotiated with Smith-Harris, had included this section without the
last sentence, which at the Company’s instance was added to the sec-
tion as incorporated in the 1990–1993 contract.
EBY-BROWN CO. L.P. 563
out orders from “qualified personnel,’’ so as to add “including
Managers, Assistant Managers, [and] working foremen.’’
Buhle stated that the Union would agree to this reference to
working foremen if, but only if, they were made true supervi-
sors. Buhle took basically the same position with respect to a
company proposal for a rule which required an employee to
remain in his assigned work area “unless . . . with the consent
of your foreman.’’
As to the Company’s proposal for deletion of article XXI,
Buhle proposed the deletion of only the last two sentences of
section 1 of that article.
Then, Buhle went through the Union’s proposals. As to
working foremen, he stated that the working foremen jobs
should be filed on a seniority basis but, if the Company ob-
jected to this arrangement, they should be excluded from the
performance of unit work and excluded from the bargaining
unit. Further, Buhle proposed a 12-hour limit on the number of
hours an employee could be compelled to work in 1 day.
After a lunchbreak, the Company withdrew some of its pro-
posals which the Union had rejected, agreed to some union
proposals, offered counterproposals as to some, and rejected
some. The Company rejected the proposal that working fore-
men be selected on the basis of seniority, rejected a proposed
limitation on mandatory overtime per day but proposed a limi-
tation on mandatory overtime per week, and rejected the pro-
posal for an 82-employee minimum. Golden adhered to the
Company’s proposal for the deletion of article XXI, and, in
addition, adhered to its admittedly related April 22 proposal for
a change in the “Work Assignments’’ article. In the expired
contract, this provision read, in part, that the Company “shall
not directly require employees, or persons other than employees
in the bargaining unit here involved, to perform work which is
recognized as the work of the employees in said units [sic],
except present practices and emergencies.’’ The Company
proposed the insertion of the words “and past’’ after the word
“present.’’
At this point, Chestnut said that he needed to consult with
Neal before going further, because it seemed to the Union that
if the parties continued to negotiate, it would be for a nonwork
force and, therefore, it might not be worth while from the Un-
ion’s point of view to continue bargaining. Golden said that the
Company was ready and willing to continue bargaining and
saw no reason to postpone further bargaining. Chestnut asked
whether the Company had stated its final position. When
Golden said no, Chestnut said that he was happy to hear that.
Chestnut again brought up the letter which advised a customer
that the servicing of his account was being transferred from
Indianapolis to Springfield. Golden said that “the Company
had transferred certain work out of the Indianapolis branch to
other branches, that the Company had previously disclosed that
to the Union and was making no attempt to hide that fact [, and]
that the Company was making these transfers in order to ser-
vice the customers as efficiently as possible.’’185
Chestnut said that the Union and the employees were con-
cerned about a complete shutdown of the Indianapolis facility.

185 My finding that Golden said this is based upon his testimony and
bargaining notes. The only evidence that the Company had previously
told the Union that work had been transferred out of the Indianapolis
branch is Golden’s discredited testimony that he so told the Union on
March 9 (see supra, part V,F,2). No such information could have been
accurately given as of March 9, 1994, because after 1992 no work
transfers occurred until March 28, 1994.
Golden said that no such decision had been made, and that if
the Company was close to finalizing such a decision, it in-
tended to provide the Union notice that the Company was in the
process of examining and possibly finalizing the decision, and
to bargain with the Union over both such a decision and its
effects. Buhle commented that it seemed to the Union that the
work was all going one way. The meeting then broke up, with
an agreement to meet again on May 10.
9. The May 9, 1994 transfer of work from Indianapolis
to Springfield
On May 9, 1994, 26 more routes were transferred from the
Indianapolis to the Springfield facility. These routes had been
driven by five to seven drivers in the Indianapolis unit, and
serviced by an undisclosed number of warehousemen in that
unit.
With this transfer, all of the routes in Ohio, Kentucky, and
West Virginia which had been serviced in and operated out of
the Indianapolis facility had been transferred to Springfield.
Since the transfers on March 28, April 16, and May 9, 1994, the
Springfield drivers have been delivering the same type of prod-
uct to the same customers to which the Indianapolis bargaining
unit drivers would have delivered if the work had not been
transferred. Similarly, since these transfers the Springfield
warehouse employees have been picking the product which is
delivered to the customers whose accounts were thus trans-
ferred from Indianapolis to Springfield. As of March 27, 1994,
the Company was operating 38 to 40 trucks, all of them leased,
out of the Indianapolis facility. Between March 28 and June
26, 1994, the Company transferred 16 of these trucks from the
Indianapolis facility to the Springfield facility. Between March
28 and July 26, 1994, the size of the Indianapolis bargaining
unit decreased from 87 to 71.186 Nobody was laid off from the
Indianapolis facility during this March 28–July 26 period; the
unit diminished because of terminations, quits, transfers, and
promotions.187 The average number of hours worked per unit
employee did not substantially change as a result of the March
28–May 9 transfers.
10. The meeting between the Company and the Union
on May 10, 1994
At the May 10 meeting, the Company was represented by
Golden, Patricia Reynolds, and Capanash. The Union was
represented by Chestnut, Buhle, Douglas Jones, Teresa Goens,
and Niehaus. Buhle asked the current number of employees in
the bargaining unit. Reynolds said 77, and further said that one
unit employee had given notice of his intention to resign and
another was serving the probationary period required of all new
employees. Buhle asked for an updated seniority list, and Rey-
nolds said she would provide one. Buhle asked whether a hir-
ing freeze was in effect at the Company; Golden said no. Buhle
asked whether any decision had been made to close the Indian-
apolis facility. Golden said no, and that if a decision to close
was to be finalized or was close to being finalized, the Com-
pany intended to give notice, and would bargain with the Union
over such a decision and, if necessary, its effects. So far as the
186 As of the July 8, 1993 election, the unit had consisted of about 97
employees.
187 A memorandum from Campanash dated March 3, 1994, memori-
alized the transfer after March 24, 1994, of four bargaining—unit em-
ployees to other company facilities. One of these employees was
Robert Burnett, who was promoted to a driver trainer job at the Spring-
field facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
record shows, Patricia Reynolds did not state that she knew of
no plans to close the Indianapolis facility. Buhle asked a ques-
tion about the performance of unit work by a nonunit office
employee; Reynolds replied that this had been necessary be-
cause of a unit employee’s absence. Buhle asked what work
had been transferred from the Indianapolis facility, and what
the nature of that work was. Patricia Reynolds replied that
work had been transferred effective May 9, and that this was
the remainder of the Ohio and Kentucky work. This was the
Union’s first notice from the Company of any 1994 transfers.188
Then, the Union reiterated some proposals, and modified
others, which the Company had previously rejected. Among
the reiterated proposals were the Union’s wage proposal, the
proposal regarding working foremen, the proposal that an em-
ployee not be subject to discipline for an absence occurring on
a day when he was eligible to receive a paid sick day, the pro-
posed transfer rights/severance benefits clause, and the pro-
posal requiring offers of reemployment to employees who had
left the Company after 1992. As to mandatory overtime, Buhle
said that the Union was willing to discuss a concept in which
the Company could require unlimited overtime for 1 day a
week, to be selected at the Company’s discretion; Golden
credibly testified that he took this to be a reference to the Com-
pany’s need to assure that it could retain its work force on cer-
tain days which were predictably heavy days. Also, after being
advised by Reynolds that the current number of bargaining unit
employees was 77, Buhle said that he was proposing a clause
which required the Company to maintain 77 employees in the
bargaining unit for the entire term. Golden said that “under no
circumstances’’ was the Company willing to agree to this
minimum level of employees. Buhle asked if there were any
current plans to move work either from Indianapolis or into
Indianapolis from other branches; Golden replied that the
Company had no plans “as of that day’’ to move work in or out.
Then, Buhle accepted some of the Company’s outstanding
proposals, rejected others, and offered counterproposals as to
others. Golden thereupon rejected some of the Union’s out-
standing proposals, accepted others, adhered to some of the
Company’s outstanding proposals, and withdrew or modified
others. As to article XXI, Golden stated that the Company
wanted to amend the contract to provide that nothing therein
would restrict the Company’s right to remove or reassign work
which might currently be performed by members of the bar-
gaining unit to other branches or facilities owned by the Com-
pany. Chestnut asked if this was the Company’s final position,
and stated that if it was, the Union considered the parties to be
at impasse. Golden stated that he did not believe the parties

188 This finding is based on Buhle’s and Chestnut’s testimony. On
direct examination, Golden testified that Reynolds “responded that the
work that had recently been transferred was the remainder of Ohio and
Kentucky work, which had already been disclosed to the Union previ-
ously.’’ However, on cross-examination he testified that he did not
give any notice to the Union that work was going to be transferred on
May 9, and that he did not recall any such statement from a company
representative to a union representative in Golden’s presence. The only
other evidence that transfer information had previously been “dis-
closed’’ by the Company is Golden’s testimony attached to fn. 185,
supra, and his discredited testimony (supra, part V,F,2) that on March 9
he told the Union that some work had already been transferred and, in
effect, that the Company was now “considering’’ such transfers in the
future. As of March 9, no work had yet been transferred to Indianapo-
lis, but the Company had already decided to transfer such work. For
this and demeanor reasons, I credit Chestnut and Buhle.
were at impasse, that the Company had not taken its final posi-
tion, but that it was the Company’s final position as to this one
item. Golden went on to say that there were still 40 or 50 open
items left to be negotiated over, that the position the Company
might take on any one subject could be influenced by the Un-
ion’s position as to all other items that could be subject to nego-
tiation, that he felt the parties still had a lot of negotiating to
accomplish, and that it was far too premature to consider the
parties to be at an impasse or to talk about final offers. Golden
said that the Company was prepared to continue to bargain, and
anticipated reaching and operating under an agreement with the
Union. Chestnut said that the Union wanted some kind of
minimum number of people, that $100 an hour times zero was
still zero. Golden said that the Company was prepared to con-
tinue to bargain; he “repeated . . . that the [Company] was un-
willing to be locked into a contract restriction which totally
prevented the [Company] from transferring work under any
circumstances to the other branches.’’189 Chestnut said that he
did not really care what the Company proposed until the Union
obtained some kind of guarantee as to the number of employees
who would be in the unit. He said that until the Company was
willing to give such a guarantee, the Union was not going to
agree to anything. Chestnut asked Golden to give the Union
the Company’s final proposal next week. Golden said that the
Company would decide for itself when it would present a final
offer to the Union, that the Company had not yet presented
anything in the nature of a final offer, that the Company con-
tinued to believe that there was a lot of bargaining to be done,
and that the parties should continue the process and continued
to engage in bargaining. Chestnut said that the Company
would have the Union’s final proposal at the next meeting, and
that if the Company did not change its position with respect to a
minimum number of people in the unit, the next meeting would
be the parties’ last meeting, because until the Union had some
kind of guarantee as to this matter, the Union was not going to
agree to anything.190
11. The meeting between the Company and the Union
on June 1, 1994
The parties met again on June 1, 1995. The Company was
represented by Golden, Patricia Reynolds, and Capanash. The
Union was represented by Chestnut, Buhle, Teresa Goens,
Douglas Jones, Niehaus, and Harold Durham, who is the direc-
tor of safety and training for the Union’s parent international.
Buhle presented what he said was the Union’s final offer for
a collective-bargaining agreement. He said that anything not
referred to which had been part of the Company’s proposals
was being rejected by the Union. The Union’s proposals were
much the same as they had been as of the end of the May 10
bargaining session. These proposals included a proposal that
the Company agree to maintain, for the life of the contract, 76
bargaining unit jobs, 76 being the number of bargaining unit
employees as of June 1 according to Patricia Reynolds’ repre-
sentations during this meeting. In addition, these proposals
189 The quotation is from Golden’s prehearing affidavit, which as to
this matter is substantially the same as his testimony.
190 This finding is based on a composite of credible parts of Chest-
nut’s and Buhle’s testimony. For demeanor reasons, I do not credit
Golden’s testimony that Chestnut “in effect demanded that the Com-
pany present the Union with its final offer at the following meeting,
that being . . . the meeting that [Chestnut] had said would be the last
meeting the Union would participate in.’’
EBY-BROWN CO. L.P. 565
included retention of article XXI (the subcontracting clause)
with the deletion of the last two sentences in section 1. Also,
Buhle proposed that working foremen be excluded from the
bargaining unit and that it be a contractual violation for the
Company to permit them to perform bargaining unit work; a
limitation on involuntary overtime except for one shift a week;
that a paid sick day or 4 hours’ absence for a doctor’s appoint-
ment would not count as an absence for purposes of discharge;
transfer rights (with moving expenses) and severance benefits
for “displaced’’ employees; and a limitation on the number or
use of temporary employees. In addition, Buhle proposed a $2
an hour increase on the effective date of the contract, and a $1
increase effective on each of the two anniversary dates thereaf-
ter. Buhle withdrew the Union’s request for reinstatement of-
fers to employees separated for any reason after 1992, accepted
the Company’s last proposal to increase the number of stewards
recognized by the Company from two to three (the Union had
been proposing four), and as to certain company proposals
expressed agreement for the first time. Also, Buhle agreed “in
principle’’ to the Company’s proposal about tardiness as consti-
tuting an “occurrence’’ under the Company’s absenteeism pol-
icy. Among the company proposals which Buhle rejected was
a proposal that any person who reached probationary status
twice within a 36-month period would be subject to dis-
charge.191
After a break for a union caucus and for lunch, Golden orally
presented the Company’s counterproposal. He withdrew some
pending company proposals and accepted some pending union
proposals. As to the rule which stated that employees were not
to be present on company property except on business, Golden
said that the Company was continuing to propose that rule but
was open to discussing a reasonable period of time for employ-
ees to wait for a ride, or to pick someone up, on company prop-
erty. Golden said that working foremen should remained in the
bargaining unit and continue to do bargaining unit work, re-
jected the proposal that all jobs be bid by seniority, and said
that in selecting working foremen the Company would consider
seniority but would also consider other factors. Golden stated
that as to mandatory overtime, the Company wanted a 60-hour
weekly limit on total hours; and rejected the proposal that a
paid sick day not count as an absence on the attendance pro-
gram. As to severance pay, he stated that the Company would
make a presentation at a later time. Golden agreed to some
limitations on the use of temporary employees. Golden said
that the Company was adhering to its proposal to eliminate
article XXI, and rejected any proposal for a minimum number
of employees to be maintained in the bargaining unit for the life
of the contract.192 Golden said that the Company was proposing
that if an employee’s position was eliminated as the result of a
transfer of work to another company branch, the Company
would offer the employee affected the opportunity to transfer to

191 As discussed supra, part V,B,9, Chief Steward Douglas Jones had
been on probationary status in partial consequence of an absentee oc-
currence charged to him in 1993 because of his protected activity.
Under the existing practice, his successful completion of probation in
June 1994 would have erased the discriminatorily charged absentee
occurrence for most or all purposes.
192 This finding is based on Golden’s testimony. Thomas Wake tes-
tified that in late March 1994 he had authorized Golden to agree to
maintain a minimum of 25 bargaining unit employees for the life of the
contract, but believed that the Union would insist on a minimum level
of 78.
another company branch (but the Company would not pay for
moving expenses) or, at the employee’s option, 1 week’s sever-
ance pay for each full year of service to a maximum of 5
weeks’ severance pay. Golden also proposed an across-the-
board hourly wage increase of 20 cents retroactive to August
27, 1993, and 20 cents effective August 27, 1994. He proposed
a 2-year contract effective as of August 27, 1993, to “remain in
effect unless and until the results of the [July 1993] election are
certified and the Union is no longer designated the employees’
bargaining representative.’’
The Union then caucused for about 15 minutes. Upon re-
turning, Chestnut said that the employees were very concerned
about job security, that they felt that if they did not have a
guarantee of jobs for the life of the contract, the contract had no
value. Golden said that the Company felt that it could not
guarantee jobs at that time for the employees, but that the
Company had not yet given the Union any final position, and
that the Company was prepared to continue to negotiate with
the Union and he was confident that if the Company continued
to negotiate with the Union, they could reach an agreement.
Chestnut said that the employees simply felt that they must
have a job guarantee and without it there really was not much
point in continuing to bargain. Golden said that the Company
had never by contract guaranteed jobs, that this was an extraor-
dinary commitment for the Company to make, but that the
Company was prepared to keep bargaining and had not given
the Union its final position. Golden said that the Company had
no assurance that in the future it would have the business to
support job guarantees, and that the Company felt that it had to
be able to operate as efficiently as possible given the Com-
pany’s various branches and its need to be able to determine
how best to service its customers. Chestnut said that the em-
ployees were very concerned because of the acquisition of the
Bosart assets. He said that the employees had heard rumors
that other new branches would be opened by the Company, and
the employees felt that they absolutely had to have job guaran-
tees. Golden said that the Company had tried to address such
concerns by offering the option of transfer rights or severance
pay. Chestnut said that the Company had offered no job secu-
rity to the bargaining unit employees, that $100 an hour times
zero was zero, and that work rules and wages were meaningless
without some guarantee that there was going to be some job
security. Golden said that the Company was trying to reasona-
bly address these concerns over job security, but the Union
appeared to be insisting on a guarantee to maintain in Indian-
apolis a job for every employee then employed in the bargain-
ing unit. Chestnut responded that this was indeed the Union’s
position. Golden said that the Company could not agree to
guarantee a minimum number of employees, and if that was the
Union’s condition for a contract, it presented a problem in
reaching an agreement. Chestnut said that the Union had flexi-
bility on several issues, if the Company had flexibility on the
job-security issue; but that unless the Company’s position
changed as to article XXI and a guaranteed number of employ-
ees, the parties were at an impasse, so far as Chestnut was con-
cerned. Golden said that he hoped the Union would reconsider
that position and then get in touch with him.
Chestnut said that the Union had given the Company the Un-
ion’s final offer, and would not move on that final offer as long
as the Company had the right to move any and/or all bargaining
unit work to any other company facility. Chestnut said that the
Union was not prepared to agree to allow the Company to uni-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
laterally transfer any or all of the bargaining unit work from the
Indianapolis facility, but that if the Company changed its posi-
tion on the right to make such unilateral transfers, there might
be some flexibility in the Union’s final offer.193 Chestnut said
that he hoped Golden would get in touch with him if the Com-
pany changed its position, and that the Union would notify the
Company if the Union’s position changed. The meeting then
broke up.194
Between that time and at least the next to last day of the
hearing (October 27, 1994), no company representative advised
the Union that the Company’s contract proposals had changed
in any way. So far as the record shows, the Union did not dur-
ing this period advise the Company that the Union’s proposals
had changed. The Union never filed a grievance with respect to
the transfer of work. Chestnut credibly testified that the Union
never did this because the expiration of the contract meant that
the Union could not force the Company into binding arbitra-
tion195 and all the Union could expect was to be able to take the
grievance to the third step, which calls for “mediation’’ by a
committee consisting of one union and one company represen-
tative and a third member selected by them.
Patricia Reynolds testified, “To the best of my knowledge,
no,’’ when company attorney Golden asked, “At any time be-
fore or after the transfers in late March 1994 . . . did the Union
ask any information regarding these transfers, request to bar-
gain over decisions over transfers or over the effects of these
transfers?’’ I do not credit such testimony, to the extent that it
may amount to a denial that during the April 1994 meetings the
Union asked whether work was being transferred and received
evasive replies at best, or a denial that the Union made certain
contract proposals directed to preventing and remedying work
transfers.
12. The parties’ position as of the close of the June 1, 1994
meeting; the return of the Super Value account from Spring-
field to Indianapolis
During the April–June 1994 negotiations, both parties pro-
posed that any contract agreed to would be retroactive to the
August 1993 expiration of the 1990 bargaining agreement.
However, the Union proposed a 3-year term (that is, an August
1996 expiration date), whereas the Company proposed a 2-year
term (that is, an August 1995 expiration date). Further, the
Company took the position that if the results of the July 1993
decertification election were certified, any contract agreed to
would thereby be rendered null and void.
Among company proposals rejected by the Union during
these March–June 1994 discussions was a rule, “If not on com-
pany business, employees are not allowed on company prop-
erty’’; since September 1993, the complaint has alleged main-
tenance and enforcement of this rule as an unfair labor practice,
and an earlier part of this decision has found this complaint
allegation to be meritorious (see supra, part III,F). Also, the

193 My findings in the last two sentences are based on Chestnut’s tes-
timony and his virtually contemporaneous notes. In view of these
notes, and for demeanor reasons, I do not credit Golden’s denial that
Chestnut said there was still some flexibility in the Union’s position if
the Company would give up its position on the unilateral right to trans-
fer.
194 My findings as to the events at the June 1 meeting are based on a
composite of credible parts of Chestnut’s, Golden’s, and Buhle’s testi-
mony.
195 See Litton Business Systems v. NLRB, 501 U.S. 190, 198–201
(1991).
Company proposed the addition of an employee rule calling for
discipline for “Violation of the Company’s `No Solicitation/No
Distribution rule.’’’ On June 1, the Company withdrew its
proposal as to the no-solicitation/no-distribution rule, and
modified its proposal as to the rule regarding off-duty employ-
ees’ access to company property.196 The Company never with-
drew its proposal that an employee who reached probationary
status twice within 36 months would be subject to discharge,
and the Union never agreed thereto.
The Company never gave the Union any offer to return to
Indianapolis any of the work transferred from that facility to
Springfield between March 28 and May 9, 1994. About mid-
June 1994, Super Value, a “sizable,’’ multimillion dollar’’ cus-
tomer to which the Company delivers product in Xenia, Ohio
(about 20 minutes from Springfield), and whose servicing had
been transferred from the Indianapolis to the Springfield branch
on April 16, 1994, advised the Company that its service from
the Springfield branch had been unsatisfactory, and that Super
Value would cancel its account unless within 1 week its service
was transferred back to Indianapolis (more than 3 hours from
Xenia). The transfer back was effected within this 1-week
period. Copresident Thomas Wake testified that the service to
Super Value by the Springfield warehouse had been unsatisfac-
tory because the Springfield warehouse personnel were not
sufficiently trained or disciplined to handle the “intricacies’’ of
that account, which as compared to other accounts receives a
“more limited subsection’’ (mostly cigarettes and tobacco) of
the products which the Company supplies to other customers.
The Company never advised the Union, which had been ad-
vised on May 10 of the April 16 transfer of the Super Value
accounts from Indianapolis to Springfield, that these accounts
had been returned to Indianapolis. The return of the Super
Value accounts to Indianapolis required the Indianapolis unit
employees to resume putting state-tax stamps on cigarettes for
Ohio, Kentucky, and West Virginia.197 After the May 9 work
transfers and before the return of Super Value, the Indianapolis
unit employees had been stamping cigarettes for Indiana only.
However, as to the Super Value account—unlike most of the
other accounts which involve cigarettes—the Company does
not maintain any “safety stock’’—that is, a supply of tax-
stamped cigarettes to be used if the customer orders more than
usual. The Super Value account called for six routes, driven by
at least two drivers, a week; and also required overtime work
by five warehousemen.
Patricia Reynolds testified in late October 1994 that 67 em-
ployees were presently employed in the Indianapolis bargaining
unit; that 87 employees had been employed in the bargaining
unit on March 27, 1994 (the day before the Company began to
transfer work from Indianapolis to Springfield); and that if this
work had not been transferred in March–May 1994, but had
remained in Indianapolis, either 87 bargaining unit employees
would be needed to perform that work, or some customers
would be unhappy and the unit employees would be working a
lot of overtime.
196 This modification consisted of specified exceptions for employ-
ees waiting for a ride or to pick up other employees. As shown supra,
part III,F, such modifications would not have corrected the legal defect
in the rule.
197 All deliveries made by the Company to Super Value are made to
an Ohio warehouse, from which Super Value distributes cigarettes to its
convenience stores in Kentucky and West Virginia as well as Ohio.
EBY-BROWN CO. L.P. 567
13. Analysis and conclusions
a. Whether all evidence as to the March 9, 1994 conference
is inadmissible on the ground that this was a
settlement conference
As previously noted, the Company’s posthearing brief re-
news its objection (advanced on July 28, 1994, during the hear-
ing) to the receipt of any evidence regarding the conference on
March 9, 1994, on the ground that this conference was a settle-
ment conference. The Company relies upon article IV, “Rele-
vancy and its Limits,’’ Rule 408 of the Federal Rules of Evi-
dence, which provides:

Evidence of (1) furnishing or offering or promising to furnish,
or (2) accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise
a claim which was disputed as to either validity or amount, is
not admissible to prove liability for or invalidity of the claim
or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible. This rule
does not require the exclusion of any evidence otherwise dis-
coverable merely because it is presented in the course of
compromise negotiations.

This rule also does not require exclusion when the evidence
is offered for another purpose such as proving bias or prejudice
of a witness, negativing a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution.

The General Counsel’s August 1994 “Statement of Posi-
tion,’’ which was filed before the receipt of any evidence about
what was said at the March 9 meeting, averred, inter alia, that
he was offering testimony:

regarding the statements made by Golden at the March 9
meeting concerning the [Company’s] intentions to transfer
bargaining unit work and the Union’s response thereto for a
purpose other than to prove the validity or amount of any un-
fair labor practice claim which was the subject of a charge or
complaint as of March 9. Rather, General Counsel offers said
testimony . . . to establish (1) the [Company’s] intention as of
March 9 to transfer bargaining unit work from its Indianapolis
facility to its Springfield, Ohio facility, and (2) to provide the
context in which the [Company] thereafter transferred bar-
gaining unit work from its Indianapolis facility to its Spring-
field, Ohio facility on March 28, April 16, and May 9.

In reaching my conclusions as to the merits of the instant
case, I have not relied upon evidence as to the March 9 meeting
for any purpose other than those set forth by the General Coun-
sel. Moreover, it is undisputed that the work transfers which
are a subject of the unfair labor practice allegations (discrimina-
tion and unilateral action) in the June 1994 complaint did not
begin until March 28, more than 2 weeks after the March 9
meeting. Under these circumstances, I conclude that evidence
as to the March 9 meeting was properly received by me.
In the first place, as to a particular claim Rule 408 only bars
admission of evidence relating to settlement discussions of that
same claim. See Broadcort Capital Corp. v. Summa Medical
Corp., 972 F.2d 1183, 1194 (10th Cir. 1992). However, be-
cause the transfers of work which were the subject of the June
1994 complaint had not even begun as of March 9, and because
the Union did not learn about them until May 10, they could not
have constituted part of any claim whose settlement was dis-
cussed at the March 9 meeting.198 It is true that during the
March 9 meeting Neal said that he would file charges regarding
work transfer. However, his testimony makes clear that he was
basing this statement upon reports from unit employees that
work had already been transferred, and it is uncontradicted that
these reports were mistaken. Moreover, Rule 408 does not
require exclusion of evidence of settlement attempts where the
evidence is offered for a purpose other than to prove liability
for or invalidity of the claim under negotiation. Vulcan Hart
Corp. v. NLRB, 718 F.2d 269, 276–277 (8th Cir. 1983); U.S. v.
Hauert, 40 F.3d 197, 200 (7th Cir. 1994); Breuer Electric Mfg.
v. Toronado Systems of America, 687 F.2d 182, 185 (7th Cir.
1982); and Jennmar Corp., 301 NLRB 623, 631 fn. 6 (1991).
Here, the evidence as to what Golden said about the Company’s
plans, and as to the context of his statements, was not offered to
show the Company’s liability vel non for the claims discussed
on March 9.199
b. Whether the March 28–May 9 transfers of work from Indi-
anapolis to Springfield violated Section 8(a)(3) of the Act
As the Company does not appear to dispute, an employer
violates Section 8(a)(3) of the Act by transferring work be-
tween the employer’s facilities in order to discourage union
activity, Lear Siegler, Inc., 295 NLRB 857 (1989); and Dahl
Fish Co., 279 NLRB 1084, 1091–1095 (1986), enfd. 813 F.2d
1254 (D.C. Cir. 1987). The evidence which may tend to sup-
port the General Counsel’s contention that such a motive was at
least a reason for the transfer of at least some routes from the
Indianapolis to the Springfield facility may be summarized as
follows:
The Company was anxious to rid itself of the Union; and for
many months before the March–May 1994 work transfer, had
engaged in a series of unfair labor practices, at all levels of
supervision including a company copresident, directed toward
this end. The Springfield facility to which the work was trans-
ferred was a nonunion facility at which a union representation
petition was pending at the time of the transfers. The trans-
ferred work included servicing one customer whose location
(Bowling Green, Kentucky) was closer to Indianapolis than to

198 Although at that meeting Golden did tell the Union that the Com-
pany was planning to transfer all the Indianapolis warehousemen’s
work and most of the Indianapolis drivers’ work to Springfield, this
was not an accurate description of the Company’s previously formu-
lated and subsequently executed plans to transfer work to Springfield.
Accordingly, any March 9 discussion of a “claim’’ arising from
Golden’s inaccurate March 9 statement would have been directed at a
plan which never existed, rather than at the plan which had actually
been formalized on March 4 and whose execution began on March 28.
199 On p. 5 of my August 5, 1994 ruling rejecting the Company’s ob-
jection to receipt of evidence regarding the March 9 meeting, I stated
that disposition of the work-transfer allegations added by the post-
March 9 charges and complaint does not depend on the disposition of
the issues raised by the complaint as of March 9. This statement was in
error. Later in the hearing, it transpired that the Company was contend-
ing that as of the late summer of 1993 and thereafter, it was under no
duty to bargain with the Union because of events which occurred after
the July 8, 1993 election and which allegedly gave the Company a right
to claim a good-faith doubt of the Union’s majority. As shown supra,
part V,D,3, disposition of this contention involved consideration of
unfair labor practice allegations regarding conduct prior to the fall of
1993, some of which were included in charges and/or the complaint
filed before March 9, 1994. However, my August 1994 error does not
affect the issue regarding the admissibility of evidence as to the March
9, 1994 meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
Springfield. Moreover, when Union Attorney Chestnut told the
Company that one of the customers which under Bosart had
been serviced by the Springfield facility was only 5 miles from
the Indianapolis facility (and, therefore, at least 155 miles from
the Springfield facility), the Company neither questioned the
accuracy of this assertion, nor transferred the servicing of this
customer from Springfield to Indianapolis, nor (so far as the
record shows) even investigated the possibility of such a trans-
fer. Such company conduct does not seem to square with a
company purpose to allocate work between its only union and
its only union-sought facility on the basis of cost and prompt
service considerations alone. Moreover, particularly because
the March 4 memorandum stated that the work transfers sum-
marized therein were intended “to service our customers as cost
efficiently as possible,’’ it is highly probable that the memo-
randum was preceded by dollar estimates and dollar discussions
among management as to the relative costs of servicing particu-
lar customers, particular routes, or groups of customers in par-
ticular areas, as between the Springfield and the Indianapolis
facility. However, the Company presented no documents or
testimony as to what these dollar estimates were, or even any
dollar evidence as to what these comparative costs turned out to
be.200 Moreover, neither did the Company produce any evi-
dence as to its pretransfer estimates about anticipated changes
in the promptness of service in consequence of the transfers.
Furthermore, the Company over a period of more than 2
months misrepresented to the Union what the Company
planned to and was doing in connection with the transfer of
work from Indianapolis to Springfield; more specifically, the
Company said on March 9 that it planned to transfer the entire
Indianapolis warehouse function to Springfield and to retain
only a few Indianapolis-based drivers (although the Company
had no such plans), and the Company told the Union on April
22 that no final decision had been made to transfer any work
from Indianapolis to Springfield (notwithstanding its March 4
memorandum, pursuant to which the Company transferred
work to Springfield on March 28, April 16, and May 9). When
Chestnut produced on April 29 the Company’s written notice to
a customer about the transfer from Indianapolis to Springfield
of that customer’s business, the Company merely verified that
this particular transfer was to take place, without offering to
bargain about it, and inaccurately asserted that the Company
had previously told the Union about past transfers. Not until
May 10, after all the transfers described in the March 4 memo-
randum had been completed, did the Company give the Union
complete and accurate information about them. This conceal-
ment and misrepresentation, over a period of more than 2
months (and throughout the period when these transfers from
Indianapolis were being effected), at least arguably point to
apprehension by the Company that if apprised of what the
Company was really doing, the Union would be able to point to
at least some transfers which were not called for by normal
business judgment, and whose discussion might lead to inculpa-

200 I am aware that in making such estimates or ascertaining such
costs, considerations not mentioned in the text (including the concomi-
tant transfer of work from the Springfield to the Ypisilanti facility)
would have to be factored in. However, the fact that such estimates
would have been more sophisticated than those set forth in the text does
not appreciably diminish the likelihood that management made them.
The General Counsel offered documentary evidence that the rent for the
Hilliard garage, which because of the work transfers was no longer
leased by the Company after June 1994, was $880 a month.
tory statements by the Company. Further, the Company never
did tell the Union that the Super Value work transferred to
Springfield on April 16 was transferred back to Indianapolis in
mid-June—information which, if revealed to the Union, might
have caused it to investigate the reasonableness (and therefore,
almost inevitably the motivation) for other transfers of work.
Finally, the transfer of work foreseeably contributed to a dimi-
nution in the size of the Indianapolis unit from at least 97 in
July 1993 to 71 as of July 26, 1994; indeed, Patricia Reynolds
testified, in effect, that absent an increase in Indianapolis over-
time work, if the work had not been transferred the unit as of
October 1994 would have included 20 more employees than it
in fact comprised.201
I am inclined to think that the foregoing evidence preponder-
antly shows that a reason for the transfer of at least some work
from Indianapolis to Springfield was a desire to discourage the
Indianapolis employees’ effort to retain union representation
and/or to encourage the Springfield employees to reject the union
efforts to organize that facility. However, I further conclude that
notwithstanding my finding (infra, part V,F,13,c) that whether to
make the transfers was a mandatory subject of collective bargain-
ing, the Company can effectively defend itself against a finding
that the transfers violated Section 8(a)(3) if the Company can
preponderantly show that if the Union had received prior notice
and an opportunity to bargain about the transfers but never
sought to bargain about them, the work would have been trans-
ferred even in the absence of the foregoing protected union
activities.202 Thus, because most of the customers whose servic-
ing was transferred were in fact closer to Springfield than to Indi-
anapolis, the Company could have reasonably believed that the
transfers would help it to achieve its next-day-service goal;
would lessen fuel costs and truck wear and tear; would limit the
need to send out trucks with less than a full load in order to avoid
layovers; and would lessen or eliminate layovers. Further, the
Company could have reasonably believed that the work transfers
would enable it to save costs by closing the Hilliard garage,
which before the Springfield acquisition had serviced the Com-
pany’s then customers in the Columbus (Ohio) area, thereby
201 The evidence shows that more than 11 Indianapolis employees’
work was transferred to Springfield between March 28 and May 9,
1994 (supra, part V,F,4,9). As previously noted, the record fails to
show how many Indianapolis unit employees tranferred to Springfield
driver and warehouse jobs as a result of the November 1993 letter (see
supra, part V,F,1).
202 In addition to the cases cited supra, fn. 89 and attached text, see
Wisconsin Steel Industries, 318 NLRB 212 (1995). Cf. Transportation
Management, supra, 462 U.S. at 401–404, holding that upon the General
Counsel’s showing, by a preponderance of the evidence, that an em-
ployee’s protected conduct was a substantial or motivating factor in ad-
verse action taken against him, the employer can avoid being judged a
violator by bearing the burden of showing that he would have taken the
same action regardless of his forbidden motivation. Transportation Man-
agement was not claimed to involve personnel action as to which the
respondent employer had a duty to bargain. Particularly because of
Transportation Management’s reliance on the view that the employer
could fairly be required to bear the risk of nonpersuasion as to a factual
issue created by his own wrongdoing, it might be argued that the em-
ployer can never (or almost never) meet such a burden where (as here) the
challenged personnel decision was a mandatory subject of collective
bargaining and the possibility that such bargaining would have led to a
different decision was obviated or limited by the employer’s unlawful
failure to give the bargaining representative prior notice and an opportu-
nity to bargain. However, such an argument, which is not advanced by
the General Counsel, would appear to be foreclosed by Wisconsin Steel.
EBY-BROWN CO. L.P. 569
saving rent, utilities, and security expenses and enabling the
Company to reallocate two trucks from shuttle service to over-
the-road service. Also, the Company could have reasonably
believed that the work transfers would limit the amount of its
funds which were tied up in maintaining at the Indianapolis, Indi-
ana facility (as well as the Springfield facility) a supply of ciga-
rettes with tax stamps from Ohio, Kentucky, and other states to
which, before the transfer, both facilities had delivered cigarettes.
Finally, the transfer of work from Indianapolis to Springfield was
a part of a plan which also involved the transfer of work from
nonunion Springfield to nonunion Ypsilanti, a transfer not
claimed to be motivated by unlawful considera- tions. Accord-
ingly, and although I am exceedingly uneasy about the Com-
pany’s total failure to produce any specific dollars-and-cents
testimony or documents showing how much it anticipated in
savings when it decided to transfer the work,203 I conclude that
the Company has borne the burden of showing that the work
would have been transferred absent the union activity at Indian-
apolis.
For the foregoing reasons, I conclude that the General Counsel
has failed to show that the transfer of work from the Indianapolis
to the Springfield facility violated Section 8(a)(3) of the Act.
c. Whether the decision to make the March 28–May 9 transfers
of work from Indianapolis to Springfield constituted a manda-
tory subject of collective bargaining
As previously found, after the March 28–May 9 transfers
from Indianapolis of the servicing of certain customers, these
same customers were serviced by Springfield employees who
for such purposes performed the same picking and driving work
which had previously been performed by unit employees at
Indianapolis. The transfers eliminated the need at Indianapolis
for the services of at least 20 unit employees,204 from a unit
which had consisted of about 97 employees before the Com-
pany’s November 1993 invitation to transfer to Springfield, and
about 87 employees just before transfers began on March 28.
The General Counsel contends, but the Company denies, that
the decision to effect these transfers was a mandatory subject of
collective bargaining. These contentions are mostly based on
the parties’ respective analyses of the instant case under the
standards set forth in Dubuque Packing Co., 303 NLRB 386
(1991), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. granted 511 U.S.
1016 (1994), writ dismissed 511 U.S. 1138 (1994). The Board
there stated (303 NLRB at 391):

Initially, the burden is on the General Counsel to establish that
the employer’s decision involved a relocation of unit work
unaccompanied by a basic change in the nature of the em-
ployer’s operation. If the General Counsel successfully car-
ries his burden in this regard, he will have established prima
facie that the employer’s relocation decision is a mandatory
subject of bargaining. At this juncture, the employer may pro-
duce evidence rebutting the prima facie case by establishing
that the work performed at the new location varies signifi-
cantly from the work performed at the former plant, establish-
ing that the work performed at the former plant is to be dis-
continued entirely and not moved to the new location, or es-

203 Moreover, although the Company at least implies that its pretransfer
calculation of savings turned out to be accurate, the Company did not
submit any evidence showing how much (if anything) was saved.
204 This figure does not include the April Super Value transfer,
which was rescinded in mid-June.
tablishing that the employer’s decision involves a change in
the scope and direction of the enterprise. Alternatively, the
employer may proffer a defense to show by a preponderance
of the evidence: (1) that labor costs (direct and/or indirect)
were not a factor in the decision or (2) that even if labor costs
were a factor in the decision, the union could not have offered
labor cost concessions that could have changed the em-
ployer’s decision to relocate.

As the Company does not appear to question, the Company’s
transfer of unit work from Indianapolis to Springfield was “un-
accompanied by a basic change in the nature of [the Com-
pany’s] operation.’’ Rather, the Company continued to deliver
to the same customers the same products which it had delivered
before the transfer. Moreover, as the Company does not appear
to question, the work performed at Springfield in consequence
of the transfer is the same work which had been performed at
Indianapolis; the work of servicing other customers continues
to be performed at Indianapolis; and a change in the scope or
direction of the enterprise did not result from the Company’s
decision to service some of its customers through the Spring-
field facility rather than through the Indianapolis facility which
had previously serviced them. See Stroehmann Bakeries, 318
NLRB 1069 (1995).
However, the Company contends that the evidence prepon-
derantly shows “(1) that labor costs (direct and/or indirect)
were not a factor in the decision or (2) that even if labor costs
were a factor in the decision, the union could not have offered
labor cost concessions that could have changed the employer’s
decision to relocate’’ (Dubuque Packing, supra, 303 NLRB at
391). I disagree.
Thus, the Company contends (Br. pp. 239–240) that “by
condensing a branch’s delivery area and reducing overlap, the
Company can significantly improve its operating efficiency
both in terms of asset utilization and customer service. These
efficiencies are related solely to geographic factors such as the
distance between the branch and the customer and the concen-
tration of customers in the area, and are unaffected by labor
costs. In other words, lowering labor costs would do nothing to
eliminate the inefficiencies identified by the Company.’’ How-
ever, Copresident Thomas Wake testified that economic effi-
ciency related to the cost of operating the truck that travels
from the warehouse facility to the customer, and that such costs
include the labor costs associated with the driver operating the
truck. See Rock-Tenn Co., 319 NLRB 1139 fn. 2 (1995).
Moreover, although he testified that the Company had “an
objective given the capabilities of the branch’’ to have just one
warehouse make deliveries to all customers in the Indianapolis
area, when the Union inquired about the Springfield ware-
house’s servicing of a particular customer 5 miles from the
Indianapolis warehouse, Golden by his own admission ad-
vanced as the reason the fact that Springfield had serviced this
customer (at least 155 miles away) before the Company had
acquired the Springfield facility. Furthermore, the work trans-
ferred from Indianapolis to Springfield included servicing a
Bowling Green customer which was closer to Indianapolis than
to Springfield. Also, the Company’s desire to achieve prompter
service was related to the relative skills of the Indianapolis and
the Springfield employees. Thus, although the transfer of the
Super Value account from the Springfield warehouse (20 min-
utes away) back to the Indianapolis warehouse (more than 3
hours away) required the Indianapolis warehouse to resume
stocking cigarettes stamped for Ohio, Kentucky, and West Vir-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
ginia, Thomas Wake testified that this transfer back was ef-
fected because the Springfield day warehouse crew “didn’t
function well enough’’; such considerations constitute “labor
costs’’ within the meaning of Dubuque Packing.205 Indeed, as
early as November 4, 1993, almost 2 months before the closing
date of the sale, the Company acknowledged to the Indianapolis
employees that as compared with the present Springfield work
force, they had the advantage of “a working knowledge of [the
Company’s] systems, policies, and procedures.’’ I note, more-
over, that as suggested by Super Value’s return to Indianapolis
and the testimony of Arnie Ray Goens as to certain customer-
restricted delivery times (supra, part V,A,l,c,(4)), employees
may be more aware than management as to picking and deliv-
ery problems which are peculiar to particular customers and do
not appear on company records. Adjustment of work alloca-
tions in light of such problems is amenable to the collective-
bargaining process. See Torrington, supra, 307 NLRB at 811.
Nor does the Company’s failure to ask the Union for wage
concessions in order to keep the work in or transfer it back to
Indianapolis indicate that labor costs were irrelevant to its posi-
tion. The Company withdrew recognition from the Union
about August 1993, well before deciding to transfer the work;
the Company did not even arguably resume recognition until
March 9, 1994, several weeks after deciding to transfer the
work; and the Company could not concomitantly conceal the
work transfer from the Union (as the Company chose to do
until the transfer had been completed) and propose wage con-
cessions to keep the work in Indianapolis.
Furthermore, the Company has plainly failed to show by a
preponderance of the evidence that the Union could not have
offered labor cost concessions that could have at least partly
changed the Company’s decision to transfer the work. Rather,
the Company offered no evidence whatever as to the amount of
money (if any) which it saved, or anticipated saving, in conse-
quence of the transfers from Indianapolis to Springfield; and
offered very little evidence as to the relative promptness of
deliveries before and after the transfer. As to the possibility of
such concessions, no inference can be drawn from the Union’s
wage proposals in April 1994, because during this period the
Company was untruthfully representing that no work transfers
had taken place or were planned. Nor can any inference be
drawn from the Union’s subsequent position as to wages, in
view of the Union’s belatedly acquired knowledge that the
work had already been transferred; manifestly, failure to make
wage concessions in an effort to bring about the return of work
does not preponderantly establish unwillingness to make the
(probably) lesser wage concessions necessary to prevent the
transfer of such work in the first place.
For the foregoing reasons, I conclude that the transfer of
work from the Indianapolis to the Springfield facility consti-
tuted a mandatory subject of collective bargaining. The ab-
sence of layoffs in consequence of the work transfer does not
render it a nonmandatory subject of collective bargaining, in
view of the consequent substantial diminution in the size of the
unit,206 the fact that the work transfers limited the Indianapolis

205 Furniture Rentors of America, 311 NLRB 749, 751 (1993), enfd.
in part and remanded in part 36 F.3d 1240 (3d Cir. 1994); Torrington
Industries, 307 NLRB 809, 811 (1992); and Stroehmann Bakeries,
supra, 318 NLRB 1069.
206 See Auto Workers (General Motors Corp.) v. NLRB, 381 F.2d
265, 266 (C.C. Cir. 1967), cert. denied 389 U.S. 857 (1967); Painters
drivers’ choice of routes (whose individual characteristics vir-
tually controlled the days of the week and the times of the day
when, and the geographical areas where, the drivers worked),
and the fact that in connection with the work transfers some
Indianapolis unit employees moved to Springfield, without
moving expenses and to jobs and at pay rates undisclosed by
the record. Although the Company does not dispute that the
effects of this decision on employees constituted a mandatory
subject of collective bargaining,207 the Company contends that
the Union effectively waived its right to bargain in 1994 about
both the 1994 decision and its effects, by virtue of the Union’s
agreement in the 1990–1993 contract that “[i]t shall not be
considered a violation of [the subcontracting clause] if the
Company, in order to better serve the needs of the business,
removes work currently performed by employees covered by
this Agreement and reassigns the work to employees of other
operations of [the] Company so long as no employees are laid
off as a result of such reassignment.’’ However, because the
1990–1993 contract had expired by its terms, this clause could
not effectively waive the Union’s right to bargain about such
matters in 1994. Furniture Rentors, supra, 311 NLRB at 751,
36 F.3d at 1245.208
d. Whether the Company violated Section 8(a)(5) and (1) of the
Act by unilaterally transferring the work from Indianapolis to
Springfield without giving the Union prior notice and an oppor-
tunity to bargain about the decision to transfer and about its
effects on employees
As shown supra, part V,F,13,c, the Company’s decision to
transfer work from the Indianapolis to the Springfield facility was
a mandatory subject of collective bargaining. As also shown
supra, part V,F,13,c, regardless of whether the decision to trans-
fer was a mandatory subject, the effects on employees of the
transfer were a mandatory subject. Accordingly, the Company
could not lawfully effect such a unilateral transfer without the
Union’s being afforded prior notice and an opportunity to bargain
about the decision and its effects. Wil-Kil, supra, 440 F.2d at
375; Jay Henges Enterprises v. NLRB, 14 F.3d 1258, 1261 (8th
Cir. 1994); and John R. Cowley & Bros., Inc., 297 NLRB 770
(1990). The credible (and mostly undisputed) evidence shows
that the Company gave the Union no notice whatever, before
actually transferring the work, about any plans to transfer; in-
deed, while the transfers were in progress and before they had
been concluded, the Company repeatedly made untruthful repre-
sentations to the Union that no transfers were being effected or
had been finally decided on. However, the Company contends

District Council 51 (Manganaro Corp., Maryland), 321 NLRB 158
(majority opinion), 171 (dissenting opinion) (1996).
207 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678 fn.
15 (1981).
208 In so concluding, both the Board and the court of appeals relied on
Control Services, 303 NLRB 481, 484 (1991), enfd. 961 F.2d 1568 (3d
Cir. 1992). Without referring to either the 1993 or the 1994 opinions in
Furniture Rentors, supra, the Company’s January 1995 posthearing brief
seeks to distinguish Control Services, supra, by arguing (1) that the al-
leged waiver clause in Control Services was less specific as to subject
matter then is the instant clause; and (2) that Control Services erred in
relying on a case where a successor employer which had not adopted the
predecessor’s labor agreement sought to defend its own unilateral action
by citing the management-rights clause in that agreement. Distinction 2
was not present in Furniture Rentors; and I make no finding as to the
effect of the relied-on clause during the term of the contract. See also
Blue Circle Cement Co., 319 NLRB 954 (1995).
EBY-BROWN CO. L.P. 571
that its concealment and misrepresentations at the bargaining
table are immaterial to the legality of its conduct in connection
with the transfers, on the ground that unit employees gave the
Union prior notice of the transfers—in other words, that the
Company was excused from its bargaining obligations because
the Company’s misre-presentations may have led the Union to
believe that the employees were mistaken. The difficulty with
the Company’s reliance on the employees’ reports is that almost
all these reports were indeed mistaken; more specifically, al-
though all of these reports predated the transfers, almost all of
them erroneously stated that work was already in the process of
being transferred.209 The only exceptions were November 1993
reports to Buhle and Union Steward Arnie Ray Goens by unit
employee Teresa Goens (his wife, who became the Union’s al-
ternate steward about March 1994) that in mid-November 1993,
Day Warehouse Manager Kramer had said that the Company had
bought out Bosart, the Springfield branch formerly owned by
Bosart was close to Super Value, and the Super Value account
was going to be moved and serviced out of the Springfield
branch. This piece of information did in fact turn out to be accu-
rate. However, it involved only a part of the transfers which were
effected, the decision to make these transfers was not reached by
top management until 3 months or more after Line Supervisor
Kramer’s remarks to Teresa Goens, the April 1994 Super Value
transfer was not effected until 5 months after Kramer’s remarks
(and was later rescinded), and in April 1994 the Company as-
sured the Union’s representatives (including Teresa Goens) that
no transfers had been effected or finally decided on. In view of
the inaccuracies in the employees’ reports to the Union regarding
work transfer, and the Company’s concealment of and misrepre-
sentations about what transfers were really planned and were
really occurring, the Union’s failure to request pretransfer bar-
gaining about the decision to transfer and its effects did not con-
stitute a waiver of the Union’s right to bargain about such mat-
ters. See Porta-King, supra, 14 F.3d at 1262–1263. Moreover,
because the Union failed to receive prior notice of the transfers,
the Company’s unilateral conduct was not cured by the Union’s
failure to request bargaining about the decision, and its effects,
after the Company had completed all the transfers and then accu-
rately told the Union about them. Walker Construction Co., 297
NLRB 746 (1990), enfd. 928 F.2d 695 (5th Cir. 1991); John
Cowley, supra, 297 NLRB at 771; Dow Jones & Co., 318 NLRB
574 (1995); Gannett Co., 319 NLRB 215 (1995), supplemental
decision 321 NLRB 602 (1996); Migali Industries, 285 NLRB
820, 821 (1987).210 Nor do I attach any legal significance to the
Union’s failure to file a grievance upon receiving inaccurate

209 Patricia Reynolds testified that since late 1992 baseless rumors had
been circulating in the plant that the Indianapolis facility was going to
close or was going to move to Kansas City, Arizona, or Ohio. Jones
testified that beginning 2 or 3 months before the 1993 election, he had
heard rumors that the Company was going to close the Indianapolis facil-
ity and move to Springfield; on occasion, the rumors were conditioned on
the Union’s winning the election.
210 Because both the Company and the Union were proposing a bar-
gaining agreement retroactive to August 1993 and encompassing the
dates of the March 28–May 9, 1994 work transfers, the April 22–June
1, 1994 discussions regarding art. XXI of the expired agreements, sev-
erance pay, transfer rights, and the Union’s proposals for a minimum
employee guarantee and reinstatement offers to all employees separated
or transferred after 1992, as a practical matter dealt with the work trans-
fer and effects issues; see supra, part V,F,7–11, infra, part V,G. How-
ever, the Union could not have realized this until the Company advised
it on May 10 that the transfers had occurred.
information that transfers had occurred. The Company withdrew
recognition from the Union in August 1993; and, when meeting
with the Union in March and April, told the Union that no trans-
fers had occurred.
For the foregoing reasons, I find that the Company violated
Section 8(a)(5) and (1) of the Act by unilaterally transferring
unit work from the Indianapolis facility to the Springfield facil-
ity, without the Union’s having been afforded prior notice and
an opportunity to bargain about the decision to transfer and its
effects on unit employees.
G. The Company’s Alleged Unlawful Failure and Refusal to
Recognize and Bargain with the Union, in and after
March 1994
As previously found (supra, part V,D,2), the Company un-
lawfully withdrew recognition from the Union about August
1993. Moreover, the Company did not thereafter even purport
to recognize the Union until March 1994. I agree with the
General Counsel that the Company continued to violate Section
8(a)(5) in and after March 1994.
The Company admittedly withdrew recognition from the Un-
ion in about August 1993 and (so far as the record shows) made
no subsequent effort to communicate with the Union, about
negotiating a new contract to replace the contract which had
expired in August 1993, until March 1994. Meanwhile, by late
February 1994, the Company had decided to transfer certain
unit work from the Indianapolis to the Springfield facility.
However, unless the Union first relinquished its right to bargain
about the transfers, either by failing to accept a company offer
to bargain or by agreeing to a contractual waiver, the work
transfers might expose the Company to a Board order requiring
that the work be transferred back to Indianapolis, and to a
make-whole order for the benefit of, inter alia, any Indianapolis
employees who had lost work by reason of the transfer to
Springfield. See the discussion infra, under “The Remedy.’’
Before the parties had agreed to an April 22 meeting, the
Company advised the Union that unless it took the Company up
on its offer to meet, “it [would] be assumed’’ that the Union did
not desire to negotiate for a new contract-in short, that the Un-
ion had waived bargaining rights which it otherwise would
have had. Moreover, the Company took action which would
tend to discourage the Union from asserting such rights or (if
the Union did assert them) aggressively pursuing and persisting
in negotiations—namely, untruthfully advising the Union that
the Company was going to close most of the Indianapolis op-
eration, withholding from the Union the Company’s plan to
transfer more than 27 percent of the Indianapolis work to
Springfield, and emphasizing that any contract agreed to would
become void if and when the July 1993 election results were
certified.
From these circumstances and the Company’s unwavering
insistence on omitting from a new and retroactive contract the
entire clause (art. XXI) which in the expired agreement had
limited the Company’s right to transfer work between facilities,
I infer that the Company’s initiation of contract discussions was
at least largely motivated by a desire to protect itself from any
NLRA—generated liability for the work transfers which the
Company was about to begin. In order to improve its chances
of obtaining a retroactive waiver of work—transfer claims, the
Company withheld from the Union the fact that work had al-
ready been transferred, and untruthfully represented that the
Company had no specific plans to transfer work in the future.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
Furthermore, when Chestnut asked the Company’s representa-
tives (including Golden and Patricia Reynolds) about a possible
shutdown of the Indianapolis facility (inquiries which were
almost certainly generated by Golden’s inaccurate March 9
representation that the Company planned such a shutdown,
except for a shuttle garage), no company representative re-
vealed to the Union that no shutdown plans existed, although
this was admittedly known by Reynolds, at least. Instead, by at
least implying that such a shutdown was under consideration,
by insisting on unrestricted freedom to transfer unit work, and
by rejecting the Union’s proposals for work-transfer restric-
tions, for a minimum employee complement, and for severance
benefits, the Company left the Union with a seeming choice
between agreeing to an unfavorable contract in order to dimin-
ish the prospect of a shutdown, or abandoning contract discus-
sions (as the Union eventually elected to do) because the pros-
pect of a shutdown rendered them futile. Moreover, far from
attempting to remedy the preelection and post-election unfair
labor practices which preceded the April–June 1994 discussions
with the Union, the Company chose to exacerbate unlawful
conduct directly impinging on the Union’s bargaining rights.
Thus, after unlawfully and unilaterally limiting Business Rep-
resentative Buhle’s access to the facility before the election,
and unlawfully denying such access after August 1993, the
Company sought to perpetuate at least some of such unlawfully
imposed limitations by incorporating them into a new bargain-
ing agreement on the tendered ground that they had been fol-
lowed in practice. Also, although the pending complaint at-
tacked the Company’s unlawful restrictions on off-duty em-
ployees’ access to company property, the Company adhered to
a proposal (rejected by the Union) that this rule be incorporated
into a new contract, with modifications which did not affect the
unlawful aspects of the rule. In addition, the Company ad-
vanced and adhered to a proposal which would have exposed
Union Steward Douglas Jones, whose discriminatorily imposed
probationary status while he was participating in contract dis-
cussions was due to expire in a few weeks, to about 2 more
years of vulnerability flowing from the 1993 absenteeism oc-
currence into which the Company had discriminatorily en-
trapped him. Finally, the Company encouraged the Union to
believe that discussion was futile, by giving grudging and
equivocal responses to the Union’s repeated requests for clari-
fication of the status which the Company was affording the
Union. Although the Company advised the Union that a failure
by the Union to reply to the Company’s proposal for a meeting
would cause the Company to assume the Union did not want to
negotiate over a new contract, the Company’s letters proposing
such meetings stated that the Company believed that because of
the July 1993 election the Union should be decertified, and that
negotiations were to be viewed as “without prejudice’’ to this
position. Moreover, at the outset of the first meeting pursuant
to the Company’s March 22, 1994 letter, Golden gratuitously
asserted that any contract agreed to would be tentative pending
resolution of the charges, and would be null and void if the
results of the decertification election were upheld, as (according
to the Company) they should be. The Company’s wistful refer-
ence to an eventual voiding of any contract to be negotiated
could not have been intended to convey any new procedural
information to the Union, which must have known that this
would be the effect of validating the decertification election.211

211 See RCA Del Caribe, Inc., 262 NLRB 963, 966 (1982).
However, when viewed in light of the Company’s refusal to
make even a pretense of recognizing the Union during the pre-
ceding months, such a statement, and the Company’s expres-
sions of adherence to its claim that the election was valid, add
weight to my inference that during the March–June 1994 meet-
ing the Company failed to fulfill its duty to bargain in good
faith. See Brooks, Inc., 228 NLRB 1365, 1366–1367, enfd. in
relevant part 593 F.2d 936 (10th Cir. 1979); Parents & Friends
of the Specialized Living Center, 286 NLRB 511 (1987), enfd.
879 F.2d 1442 (7th Cir. 1989) (citing Brooks with approval,
879 F.2d at 1455).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(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. The Company has violated Section 8(a)(1) of the Act by
engaging in the following conduct:
(a) Telling employees, through Day Warehouse Manager
Michael Kramer, that it had called in the police, was going to
press charges, and intended to take other actions against em-
ployees, because the stickers which they had affixed to a public
stop sign urged a vote in favor of the Union.
(b) Telling employees, through Copresident Thomas Wake,
that the reason they had no retirement plan was that the Com-
pany had spent so much money in fighting grievances.
(c) Promising employees, through Copresident Thomas
Wake, that the Company will give preferential treatment to
employees who supported the Company by opposing the Un-
ion.
(d) Telling employee Teresa Goens, through Copresident
Thomas Wake, to choose between perceived continued dis-
crimination based on union activity and quitting her job with
the Company.
(e) Telling employee Beverly Wilke, through Copresident
Thomas Wake, to choose between describing the Union in fa-
vorable terms and remaining in the Company’s employ.
(f) Telling employees, through Day Warehouse Manager
Michael Kramer, that the Company had spent so much money
on the decertification campaign that the Company did not have
anything to sit down at the bargaining table with.
(g) To the extent that such prohibition extends to employ-
ees’ presence for the purpose of engaging in activities protected
by Section 7 of the Act, maintaining and enforcing a rule
which, with respect to areas other than in company buildings
and in working areas, prohibits off-duty employees’ presence
on company property.
(h) Telling employees, through Day Warehouse Manager
Michael Kramer, that they could not pass out union hats or
buttons on company premises.
(i) Telling employee Beverly Wilke, through Night Ware-
house Manager Michael Grigdesby, that she could not distrib-
ute union literature anywhere on company property at any time.
(j) Telling employee Beverly Wilke, through Night Ware-
house Manager Michael Grigdesby, that she was not allowed to
distribute union literature anywhere in the building.
(k) Telling employee Douglas Jones, through Night Ware-
house Manager Michael Grigdesby, that Jones could not pass
out union literature on company property or company time.
(l) Through Day Warehouse Manager Michael Kramer, tell-
ing off-duty employees who were distributing union handbills
EBY-BROWN CO. L.P. 573
in nonworking outdoor areas on company property that they
could not distribute handbills on company property.
(m) Through Day Warehouse Manager Michael Kramer,
asking employees who were engaged in protected union hand-
billing whether they wanted their names to be submitted to the
police.
(n) Through Day Warehouse Manager Michael Kramer,
calling the police because employees were engaged in protected
union handbilling.
(o) Prohibiting employees from wearing union insignia on
their individually owned back belts and on company-owned
back belts issued to the employees for their use.
(p) Telling employee Donald Hall, through Driver Manager
Paul Lodics, that Hall had received a low bonus because of his
union activity.
(q) Through Night Warehouse Manager Michael Grigdesby,
telling employee Douglas Jones that he was receiving a reduced
evaluation because of his union activity, and soliciting him to
resign his employment because of such activity.
(r) Through Personnel Director Stephen Reynolds, telling
employee Douglas Jones that he was being denied disability
pay because of his protected union activity, and soliciting him
to resign because of such activity.
(s) Blaming the Union for possibly preventing or delaying
past and future wage increases by filing charges and election
objections with the Board.
4. The Company has violated Section 8(a)(1) and (3) of the
Act by engaging in the following conduct:
(a) Reprimanding employees Randy Jewell, Danny Rakes,
and Douglas Jones on the ground that they had put the Union’s
name on the back belts which the Company had issued to them.
(b) Requiring employee James Edmond Sr. to go home dur-
ing worktime, but without pay, to replace his individually
owned back belt (which bore the Union’s name) with the one
provided to him by the Company.
(c) Withholding a bonus from employee Arnie Ray Goens in
August 1993.
(d) Lowering the August 1993 bonus given to employee
Donald Hall.
(e) Increasing the bonuses paid in August 1993 to employ-
ees Robert Burnett, Mark Mayfield, and Clyde Erwin.
(f) Transferring employee Arnie Ray Goens to new routes in
August 1993.
5. The Company has violated Section 8(a)(1), (3), and (4) of
the Act by engaging in the following conduct with respect to
employee Douglas Jones:
(a) Lowering his July 1993 evaluation, and withholding a
bonus from him in August 1993.
(b) Issuing disciplinary documents to him dated September
15, 16, 17, 20,
and 23, 1993.
(c) Laying him off between September 28–30 and October
11–14, 1993.
(d) Denying him disability pay between September 27 and
November 2, 1993.
(e) Telephoning his doctor, and then directing Jones to re-
turn to work, on November 2, 1993.
(f) Giving him onerous work assignments effective Novem-
ber 2 and November 8–December 16, 1993.
(g) Transferring him between shifts on November 8, 1993.
(h) Denying him a 40-hour week between December 27,
1993, and June 7, 1994.
(i) Determining the existence of an attendance occurrence
on December 27, 1993.
(j) Putting him on attendance probation between December
27, 1993, and June 27, 1994.
6. The following employees of the Company constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All delivery men, warehousemen, janitor(s) and main-
tenance employees employed by the Company at its Indi-
anapolis, Indiana, facility; but excluding salesmen, vend-
ing machine department employees, office clerical em-
ployees, and all guards, professional employees and su-
pervisors as defined by the Act.

7. At all material times, the Union has been the exclusive
collective-bargaining representative of the unit, pursuant to
Section 9(a) of the Act.
8. The Company has violated Section 8(a)(1) and (5) of the
Act by engaging in the following conduct:
(a) In April 1993, by unilaterally changing the conditions
under which Union Business Representative Brian Buhle could
obtain access to the facility, witout giving the Union prior no-
tice and an opportunity to bargain.
(b) In September 1993, by unilaterally withdrawing Union
Business Representative Brian Buhle’s access to the facility,
without giving the Union prior notice and an opportunity to
bargain.
(c) At all times after about late August 1993, by withdraw-
ing recognition from and failing and refusing to bargain with
the Union.
(d) In March, April, and May 1994, by unilaterally transfer-
ring work out of the unit, without giving the Union prior notice
and an opportunity to bargain about the decision and its effects.
9. The unfair labor practices set forth in Conclusions of Law
3–5 and 8 affect commerce within the meaning of Section 2(6)
and (7) of the Act.
10. The Company has not violated the Act in the following
respects:
(a) The Company has not violated the Act by interrogating
employee Larry Thomas Benefiel Jr.
(b) The Company has not violated the Act by increasing the
number of its surveillance cameras in response to its employ-
ees’ union activities.
(c) The Company has not violated the Act by increasing the
August 1993 bonus paid to employee Teresa Deutscher.
(d) The Company has not violated the Act by telling em-
ployee Arnie Ray Goens that because of his “attitude’’ he was
not receiving a bonus.
(e) The Company has not violated Section 8(a)(5) of the Act
by dealing directly with employees in the unit.
(f) The Company has not violated Section 8(a)(3) of the Act
by transferring work out of the bargaining unit in March, April,
and May 1994.
THE REMEDY
Having found that the Company has violated the Act in cer-
tain respects, I shall recommend that the Company be required
to cease and desist from such conduct, and from like or related
conduct, and to take certain affirmative action necessary to
effectuate the policies of the Act.
Thus, the Company will be required to rescind the unlawful
portions of its rule limiting off-duty employees’ access to com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
pany property. Moreover, in order to remedy the Company’s
action in discriminatorily paying antiunion employees higher
August 1993 bonuses than they would otherwise have received,
the Company will be required to pay every employee who was
eligible for consideration for a bonus in August 1993 (including
but not limited to Arnie Ray Goens, Douglas Jones, and Hall)
the difference between the bonus (if any) he in fact received
and $850, the highest amount received by an employee because
of his antiunion activity. Aero-Motive Mfg. Co., 195 NLRB
790, 793 (1972), enfd. 475 F.2d 27 (6th Cir. 1973), cert. denied
414 U.S. 922 (1973); Rubatex Corp., 235 NLRB 833, 835–836
(1978), enfd. 601 F.2d 147 (4th Cir. 1979), cert. denied 444
U.S. 928 (1979).212 In addition, the Company will be required
to make employees James Edmond Sr. and Arnie Ray Goens
whole for any loss of pay (including, as to Edmond, transporta-
tion expenses) they may have suffered by reason of the dis-
crimination against them. Also, the Company will be required
to make employee Douglas Jones whole for any loss of pay
(including, but not limited to, bonuses for 1994 and disability
pay) he may have suffered by reason of the Company’s dis-
crimination against him between September 15, 1993, and June
26, 1994. In addition, the Company will be required to remove
the following documents from the employees’ personnel re-
cords, and advise the respective employees in writing that this
has been done and that the material set forth in these documents
will not be held against them in any way: (a) the reprimands
issued on March 31, 1993, to Randy Jewell and Danny Rakes
and the May 11, 1993 letters referring thereto; (b) the evalua-
tions issued in July 1993 to Arnie Ray Goens and Donald Hall;
and (c) the following documents with respect to Douglas
Jones: (1) his March 31, 1993 reprimand and the May 11, 1993
letter referring thereto; (2) his July 1993 evaluation; (3) the
disciplinary documents issued to him dated September 15, 16,
17, 20, and 23, 1993; (4) any record of his layoffs between
September 28–30 and October 11–14, 1993; (5) any record of
his having an absenteeism occurrence on December 27, 1993;
and (6) any record of his being on attendance probation be-
tween December 27, 1993, and June 26, 1994. Also, the Com-
pany will be required, on request by the Union, to afford union
representatives the same access to the facility which they were
afforded as of March 1993. I find unmeritorious the Com-
pany’s seeming contention that as to access, such an order is
rendered inappropriate by the 1994 negotiations about this mat-
ter. During these negotiations, the parties’ eventual agreement
to memorialize in the bargaining agreement the access practice
which had in fact been followed was rendered nugatory by the
parties’ inability to agree on what that practice had been, and
this inability was due in significant part to the Company’s April
1993 unlawful unilateral change in its access procedures and
the Union’s noncompliance therewith.
In addition, the Company will be required, on request by the
Union, to transfer back to the Indianapolis facility the work
which was transferred to the Springfield facility between March
1994 and May 1994. Where (as here) an employer has unilat-

212 As the Board said in Aero-Motive, supra, 195 NLRB at 793:
Rescission would appear to be inappropriate and impractical.
. . . The only practical method, therefore, of restoring the statuto-
rily required equality of treatment as between employees who en-
gaged in concerted activity and those who refrained therefrom is
to require the payment of an equivalent amount to the employees
who did engage in the concerted activity and who were denied the
payment.
erally transferred work out of the bargaining unit, in violation
of Section 8(a)(5) and (1) of the Act, restoration of the status
quo ante (at least on the bargaining representative’s request) is
prima facie appropriate, and the burden is upon the employer to
demonstrate that such a requirement is not appropriate, whether
because such a requirement would be unduly burdensome or for
some other reason. See Stroehmann Bakeries, supra, 318
NLRB 1069; and N.C. Coastal Motor Lines, 219 NLRB 1009
(1975), enfd. 542 F.2d 637 (4th Cir. 1976). The Company has
failed to discharge that burden.
Thus, when sizable customer Super Value threatened to take
its business to another firm unless the Company transferred the
servicing of the Super Value account from Springfield back to
Indianapolis within 1 week, the Company effected the transfer
within the prescribed period. Moreover, the March 4 memo-
randum (not received by the branch managers until several days
thereafter) called for transfers of work from Indianapolis to
Springfield to begin on March 28, and contemplated that Indi-
anapolis volume would decrease 20 percent in consequence of
the transfers to occur over that 1 week, even though virtually
simultaneous transfers were projected from Springfield to Ypsi-
lanti. Furthermore, that memorandum contemplated that each
of the first two phases of the transfers (including those from
Springfield to Ypsilanti) would take place during respective
periods of less than a week. Moreover, Copresident Thomas
Wake testified that transfers of work between branches is
“fairly common. We’ve freely made transfers throughout the
history of the Company,’’ and that it was not unusual for the
Company to shift the servicing of a particular store from one
branch to the other. Also, Company Attorney Golden testified
that during the April 22 meeting, when the Union pointed out
that the Springfield facility was continuing to service a cus-
tomer which had been acquired from Bosart and was located 5
miles from the Indianapolis facility, he replied that “a reorgani-
zation of how customers would be serviced is always an on-
going process for the Company.’’
In addition, the transfers did not lead to any capital expendi-
tures or divestments, so far as the record shows; the Company’s
improvements and additions to the Springfield facility were
planned before the closing date (Dec. 30, 1993) of the purchase
contract and had begun about 2 months before Copresident
Thomas Wake decided in late February 1994 on the work trans-
fers from Indianapolis to Springfield, and the Company leases
all of its trucks; indeed, there is no evidence or claim that the
transfers caused the Company to lease fewer trucks than it had
leased before. Although the transfers from Indianapolis to
Springfield did enable the Company to stop leasing the Hilliard
shuttle garage, the signing of a lease with a shorter term does
not constitute capital divestiture; moreover, because the Hil-
liard garage operations involved mostly nonunit employees, the
Union might be agreeable to accepting (instead of the pretrans-
fer Hilliard work) the transfer from Springfield to Indianapolis
of servicing customers who had been serviced by Springfield
under Bosart but were in fact closer to Indianapolis.
Finally, because before the transfers the Indianapolis facility
was in fact servicing the customers whose servicing was trans-
ferred to Springfield, and in view of Patricia Reynolds’ October
1994 testimony that the Company was then soliciting new busi-
ness for the Indianapolis facility, I infer that the Indianapolis
facility would be able to resume servicing its former customers
if the work was returned to Indianapolis. The testimony cited
by the Company in its brief, about the full utilization of the
EBY-BROWN CO. L.P. 575
Indianapolis warehouse, relates to the period before the trans-
fers; the evidence shows that after the transfers, vacant space
existed in the Indianapolis warehouse.213 It is true that Patricia
Reynolds testified that return of the work to Indianapolis would
require some reprogramming of the Company’s Indianapolis
computer, would cause partly empty trucks to be sent from
Indianapolis, and might cause the loss of some customers ow-
ing to the Company’s inability to continue next-day delivery.
However, the Company has failed to quantify its anticipated
reprogramming or partial-load costs, some reprogramming
costs would appear to be required by the Company’s “fairly
common’’ interbranch transfers for reasons unrelated to reme-
dying unfair labor practices, and there is no evidence that any
of the customers serviced from Indianapolis before the work
transfers had expressed a desire for next-day service.214
Contrary to the Company (Br. 285), the record fails to show
that the Company’s unilateral transfer of bargaining unit work
to Springfield has caused no “harm . . . to any member of the
bargaining unit’’ at Indianapolis. As to the bargaining unit
employees who transferred to Springfield in consequence or
anticipation of the transfer of work to Springfield (the record
shows that there were some, although not how many), the re-
cord fails to show whether their Springfield wages and working
conditions equaled those at Indianapolis, or whether they would
have changed their residences (particularly because they had to
pay their own moving expenses) if assured of job security at
Indianapolis. Moreover, the work transfers diminished the
route choices available to the Indianapolis drivers, whose start-
ing and quitting hours, days off, and work locations were virtu-
ally controlled by the particular routes they drove. Further,
“the change had an adverse impact on the bargaining unit since
it diminished [by 20] the whole number of jobs performed by
[unit] members’’ (General Motors, supra, 381 F.2d at 266).
Moreover, the Company’s reliance on the absence of unit lay-
offs overlooks the fact that “the real injury is . . . to the union’s
status as bargaining representative, and it would be difficult to
translate such damage into dollars and cents’’ (NLRB v. C & C
Plywood Corp., 385 U.S. 421, 429 fn. 15 (1967)). The Com-
pany’s unlawful conduct in connection with the transfer has
aggravated the pressures which the Company’s other unfair
labor practices exerted against employee support of the Union;
the Company’s conduct advised the unit employees that the
Union would not even be afforded the opportunity to express its
views before the Company decided to transfer more than 27

213 Teresa Goens credibly testified that when she resigned from the
Company’s employ in August 1994, the area which had been used for
back cigarette stock was almost completely empty, and there was “a lot
of room’’ for storage in the Indianapolis warehouse. Kramer testified
in September 1994 that since March 1994, about 10 percent of the
Indianapolis warehouse storage space was not being utilized; that the
warehouse could handle additional product “if need be’’; and that al-
though no more storage space could be provided, the existing storage
space could be reconfigured to put in more product. Although in Sep-
tember 1994 Thomas Wake testified to the opinion that the Indianapolis
warehouse did not have enough room to stock the proprietary items
which the Company had to carry for the Bosart locations which the
Company began to service in January 1994, this evidence is irrelevant
to whether it would be unduly burdensome to require the Company to
restore to the Indianapolis warehouse the work which the Company had
performed there before March 1994.
214 Indeed, as noted supra, part V,A,c,(4), none of the customers on
driver Arnie Ray Goens’ overnight route before August 1993 had re-
quested next-day delivery service.
percent of the bargaining unit work and to invite Indianapolis
employees who were “interested’’ in “possible relocation’’ to
Springfield to consult the branch personnel manager. Nor
should the Company be permitted to keep the unlawfully trans-
ferred work in Springfield because its return to Indianapolis
might cause some Springfield workers to lose their jobs, at least
if the Company decides to keep in Ypsilanti the work trans-
ferred there from Springfield in connection with the transfer of
work from Indianapolis to Springfield. The welfare of innocent
beneficiaries of unlawful conduct cannot properly be preferred
over the legal rights of its innocent victims. See Aguayo v.
Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988).
Moreover, the Company’s return of work from Springfield to
Indianapolis would not preclude it from similarly transferring
Springfield employees.
In addition, the Company will be required to bargain with the
Union, on request. Laying to one side, for the moment, the
Company’s other unfair labor practices, such an order is called
for by the Company’s failure to continue recognizing and bar-
gaining with the Union during the pendency of the Union’s
objections to the election; see Angelica Corp., 276 NLRB 617,
617 fn. 2 (1985).215 The reasons for such an order are articu-
lated in Krueger, supra, 299 NLRB at 915–918, and Presbyte-
rian Hospital in the City of New York, 241 NLRB 996, 998
(1979); briefly, such an order furthers industrial relations stabil-
ity while the Board determines whether the seeming employee
choice was freely made, and discourages the employer from
acting prematurely on the basis of an unreliable tally and from
engaging in preelection unfair labor practices which would
render the tally unreliable.216 My finding that during the
March–June 1994 meetings the Company failed to comply with
its bargaining obligations renders unsupportable the Company’s
contention that a bargaining order is rendered inappropriate by
the Company’s and the Union’s conduct during these meetings.
In any event, the Union’s bargaining power during these meet-
ings had been undermined by the Company’s prior unfair labor
practices, which have never been remedied and some of whose
215 Such an order issued in the case principally relied on by the com-
pany—St. Agnes Medical Center, 304 NLRB 146, 147–149 (1991).
216 Although no affirmative bargaining order issued in either of these
cases, in both of them the results of the decertification election, which
the incumbent union lost, had been certified before the Board’s order
issued. The dissenting opinion in Krueger, supra, expressed the view
that the Court of Appeals for the Seventh Circuit, where the Company’s
unfair labor practices took place, had rejected the conclusion that an
employer is obligated to continue bargaining with an incumbent union
pending disposition of the objections to a decertification election which
the union lost and whose results were eventually certified. See 299
NLRB at 920 fn. 3, citing Weather Shield Mfg. v. NLRB, 890 F.2d 52,
60 fn. 5 (7th Cir. 1989), not cited in either of the posthearing briefs
filed with me. In Weather Shield, the court found that the Board erred
in sustaining the objections to the decertification election which the
union lost, and concluded that this holding rendered moot the appropri-
ateness of the Board’s order to bargain while the case was pending. In
the instant case, the objections to the election have been found merito-
rious. In any event, “The Board takes the view that an Administrative
Law Judge’s duty is to apply established Board precedent which the
Supreme Court of the United States has not reversed, despite reversal of
Board precedent by courts of appeals.’’ Ford Motor Co. v. NLRB, 571
F.2d 993, 996 (7th Cir. 1978), affd. 441 U.S. 448 (1979) (but see
Pyramid Management Group, 318 NLRB 607 (1995)). Because of the
venue provisions of Sec. 10(e) and (f) of the Act, the identity of the
court of appeals (if any) which reviews the instant case cannot be pre-
dicted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
substantive effects the Company’s bargaining position sought
to retain.
However, a bargaining order which thus remedies the Com-
pany’s unlawful refusal to recognize the Union pending the
certification of the results of an election pursuant to the decerti-
fication petition is a remedy separate and distinct from a bar-
gaining order pursuant to NLRB v. Gissel Packing Co., 395
U.S. 575, 582, 610–616 (1969), to the exclusion of a rerun
election. Angelica, supra, 276 NLRB 617 at fn. 2. Gissel itself
dealt with the standards to be used in determining whether a
bargaining order, or merely what the Court characterized as
“traditional’’ remedies (e.g., a cease-and-desist and notice-
posting order), were appropriate to remedy an employer’s un-
fair labor practices which have invalidated an election loss by a
nonincumbent union, where that union has demonstated at least
a one-time majority status by means of authorization cards.
Nevertheless, the Board has applied such standards in determin-
ing whether to require the employer to discharge bargaining
obligations beyond those owed to an incumbent union pending
the results of a decertification election.217 Moreover, consistent
with the Board’s practice as to a representation petition filed
with respect to a nonincumbent union which has obtained a
Gissel-type bargaining order after losing the election—namely,
dismissal of the petition,218 the Board will dismiss a decertifica-
tion petition with respect to an incumbent union which has lost
the election but obtains a bargaining order pursuant to Gissel
standards. See St. Agnes Medical Center, supra, 287 NLRB
259–261; cf. the Board’s supplemental decision, supra, 304
NLRB at 147–148.
In agreement with the General Counsel, I find that the instant
case calls for a Gissel-type order and dismissal of the decertifi-
cation petition. Thus, I conclude that this is a second-category
Gissel case (see 395 U.S. at 611–615) in which the possibility
of erasing the effect of past practices and ensuring a fair rerun
election by the use of traditional remedies, though present, is
slight and is outweighed by the considerations (here, including
the Union’s election victory some years ago) which generate
the presumption of majority. In so finding, I give substantial
weight to the Company’s treatment of union steward/charging
party Douglas Jones and Union Steward Arnie Ray Goens in
light of Copresident Thomas Wake’s statements to employees,
who had been assembled by the Company for the very purpose
of listening to antiunion speeches, that the Company wanted
prounion employees to resign and would give preferred treat-
ment to antiunion employees, that employees who believed
themselves to be the victims of this discriminatory policy
should resign, and that the Company had no retirement plan
because of the expense of fighting grievances, as well as Night
Warehouse Manager Grigdesby’s expressed resentment at

217 Angelica, supra; St. Agnes Medical Center, 287 NLRB 242
(1987), enfd. in part, reversed in part, and remanded in part 871 F.2d
137 (D.C. Cir. 1989), supplemental decision 304 NLRB 146 (1991). In
short, as to this “separate and distinct’’ remedy, the Board affords to the
union’s incumbency status (whether based on a certification more than
a year old, collective-bargaining agreements, or, as here, both) essen-
tially the same weight which Gissel afforded to recent authorization
cards. See Gissel, supra, 395 U.S. at 610–616; Fall River Dyeing Corp.
v. NLRB, 482 U.S. 27, 37–39 (1987); NLRB v. Curtin Matheson Scien-
tific, Inc., 494 U.S. 775, 794–796 (1990); and Auciello, supra, 116 S.Ct.
at 1758.
218 See, e.g., White Plains Lincoln Mercury, 288 NLRB 1133, 1136–
1140 (1988).
Jones’ having reported to the Board’s Regional Office conduct
by Grigdesby which constituted both unfair labor practices and
objectionable conduct. In order to obtain pretexts for disciplin-
ing Jones and thereby putting him on absenteeism probation
which exposed him to possible discharge, the Company used
techniques which included lies, entrapment, deceptive con-
cealment, and work assignments which it knew were in viola-
tion of his medical restrictions. Further, the Company under-
scored its reluctance to entertain grievances by unilaterally
limiting (before the contract expired) the union business repre-
sentative’s access to the plant for that purpose, and underscored
its opposition to Board processes by blaming the Union’s resort
to the Board (to secure redress of the Company’s misconduct)
for alleged disadvantages to employees. I do not think that the
“traditional remedies’’ of a cease-and-desist order, excision of
Jones’ discipline, and a backpay order would suffice to erase
from employees’ minds the message that the Company was
willing to use untruthful sworn testimony, misrepresentation,
and other dishonest tactics in order to rid itself of (or, at least,
punish) a union activist who was the only employee who signed
a bulletin board notice stating that he wanted to act as night
steward when that vacancy arose, and who had cooperated with
the Board’s Regional Office in order to obtain legal redress for
the Company’s unlawful action against himself and other em-
ployees, or to erase the Company’s repeatedly evinced unwill-
ingness to entertain grievances filed by or through the Union.
Rather similarly, the union activity of the only other union
steward in the facility (Arnie Ray Goens), caused him to re-
ceive a poor evaluation, and to be transferred over his protest
from a route which he liked and which he had run for years,
even though his evaluation said that he did a good job as a
driver and did very well on his paper work. I conclude that
such discrimination against union stewards will have the linger-
ing effect of persuading the employees that union activists are
subject to retaliation on false charges even if they do their jobs
well, and that the Company’s resentment at grievances pre-
sented through the Union will to that significant extent make
collective representation useless. Also, and still in light of
Company Copresident Thomas Wake’s statement to assembled
employees that preference would be given to antiunion em-
ployees, I do not think that the “traditional remedies’’ of a
cease-and-desist and make-whole order will erase from em-
ployees’ minds the message conveyed by the Company’s dis-
crimination in favor of antiunion and against prounion employ-
ees in connection with bonuses, which are given semiannually
and for which most employees are entitled to consideration.
The likely continuing effect of the foregoing unfair labor
practices is augmented by the Company’s other, concomitant
unfair labor practices. Thus, at all relevant times, the Company
has maintained unlawful restrictions on off-duty employees’
access to company premises for the purpose of engaging in
union activity, and has unlawfully forbidden employees to
distribute union literature during paid breaks. Moreover, prior
to the election, the Company unlawfully told employees (usu-
ally, in groups) that they could not distribute union literature or
paraphernalia on company property, unlawfully required em-
ployees (sometimes, in the presence of other employees) to
refrain from such activity, and on one occasion responded to
such activity by summoning the police (whose presence was
visible to a number of employees) and by threatening to press
charges. In view of the Company’s repeated announcement of
these restrictions to a large number of employees (on occasion,
EBY-BROWN CO. L.P. 577
an entire shift) over a period of several weeks, the Company’s
inclusion (at all relevant times) of some of these restrictions in
its written rules, and its open enforcement of such restrictions, I
think it unlikely that their mere rescission would assure the
employees that they are hereafter free to further a prounion vote
by engaging in union handbilling in nonworking areas when not
expected to be actively working. In addition, the Company
further purported to enlist the police in its unlawful campaign
by telling the day warehouse employees, in effect, that the
Company was going to call the police and press charges be-
cause stickers which employees had attached to a stop sign
urged a prounion vote. Also, the Company disciplined several
employees for writing prounion messages on the back belts
issued to them, although an employee who wrote support for a
local university on the back belt issued to him was not penal-
ized, the Company instructed employees to write identification
on the back belts issued to them and inked out such identifica-
tion when an employee resigned and his back belt was assigned
to a new employee, and the Company—while permitting em-
ployees to work without back belts—caused an employee to
lose work time by requiring him to substitute a company-owned
belt for a back belt owned by him which was indistinguishable
from the company-owned belts but which bore the Union’s
name.219
Moreover, there is a significant possibility that the Company
will continue to engage in unfair labor practices. Thus, the
participants in the Company’s June 1993–January 1994 unfair
labor practices included persons at all levels of the Company’s
managerial hierarchy (from the Company’s copresident to line
supervisors) all of whom220 were still on the Company’s pay-
roll at the time of the July–October 1994 hearing. Furthermore,
the Company continued to engage in unfair labor practices after
the Union lost the decertification election, and after receiving
the initial complaint in the instant case. Nor has the Company
made any effort whatever (so far as the record shows) to rem-
edy any of the 8(a)(1), (3), and (4) violations in which these
still-incumbent members of management engaged; indeed,
during the April–June 1994 discussions with the Union, the
Company sought to incorporate into a bargaining agreement the
unlawful rule restricting off-duty employees’ access to com-
pany property, a provision specifying discipline for violation of
the no-solicitation/no-distribution rules which the Company
had unlawfully enforced, and a provision which would have
prolonged the effects of the Company’s unlawful discrimina-
tion against steward Jones.
In determining whether to issue a Gissel-type order with re-
spect to an incumbent union, the Board does not (at least ordi-
narily) give weight to employer action in withdrawing recogni-
tion, and engaging in unlawful unilateral conduct, after an elec-
tion lost by the incumbent but before the results have been cer-
tified; see Angelica, supra, 276 NLRB 617. Accordingly, for

219 Although the unfair labor practices involving the back belts oc-
curred before the decertification petition was filed, unlawful conduct
does not have to occur after the filing of the decertification petition to
be relevant to a determination of whether a Gissel order is appropriate.
Holly Farms Corp., 311 NLRB 273, 282 fn. 36 (1993), enfd. 48 F.3d
1360 (4th Cir. 1995), affd. 517 U.S. 392 (1996).
220 Except Assistant Night Warehouse Manager Troy Payne, who
played a minor part in the discipline received by Jones on September 12
and 17, 1993 (supra, part V,B,2,a–b). The record fails to show whether
Payne was a supervisor. However, former Indianapolis driver manager,
Lodics, is now the driver manager at Springfield.
this purpose, such unlawful conduct by the Company will be
disregarded here. However, analysis of the practical conse-
quences of an Angelica-type order as compared to a Gissel-type
order indicates that in determining which kind of order to issue,
certain aspects of the Company’s postelection 8(a)(5) con-
duct—namely, the role played by the pendency of the decertifi-
cation petition—should be taken into account. If a Gissel-type
bargaining order issues (and, consequently, the decertification
petition is dismissed), a new decertification petition would be
barred by a bargaining agreement reached during the compli-
ance period. However, if an Angelica-type bargaining order
issues (and, consequently, the decertification petition is merely
held in abeyance), such a bargaining agreement would not bar
an election pursuant to that petition.221 As shown supra, part
V,G, the fact that a second election pursuant to the decertifica-
tion petition would not be barred by the new contract at least
ostensibly under discussion between April and June 1994 not
only was used as a tool by the Company to discourage the Un-
ion’s pursuit of negotiations, but also contributed to their even-
tual collapse. Accordingly, there is some basis for apprehend-
ing that if the decertification petition is not dismissed, its pend-
ency will inhibit the bargaining required by the Board’s order.
For the foregoing reasons, I find that a Gissel-type bargain-
ing order should issue here, and that the decertification petition
should be dismissed. See Texaco, Inc. v. NLRB, 436 F.2d 520
(7th Cir. 1971), cert. denied 409 U.S. 1008 (1972); NLRB v.
Brown Specialty Co., 436 F.2d 372 (9th Cir. 1971); NLRB v.
Don’s Olney Foods, 870 F.2d 1279, 1285–1286 (7th Cir. 1989);
and Madison Industries, 290 NLRB 1226 (1988). No different
result is called for by the evidence that as of the close of the
hearing on October 28, 1994, 11 of the 67 bargaining unit em-
ployees had not been employed by the Company when the de-
certification election was held on July 8, 1993; surely, these 11
might well be informed by the remaining 56 employees of the
Company’s postelection unfair labor practices. As the Court of
Appeals for the Seventh Circuit stated in Justak Brothers & Co.
v. NLRB, 664 F.2d 1074, 1082 (1981), enfg. 253 NLRB 1054,
1086 (1981), “If we were to accept the Company’s contention,
an employer could engage in a scheme of unfair labor practices
and yet escape a bargaining order by delaying and waiting for
employee turnover. NLRB v. L. B. Foster Co., 418 F.2d 1, 5
(9th Cir. 1967), cert. denied 397 U.S. 990 (1970); Chromalloy
Mining & Mineral v. NLRB, 620 F.2d 1120, 1132–1133 (5th
Cir. 1980). We cannot allow this perversion of the Act’s pur-
pose.’’ See also Q-1 Motor Express, 308 NLRB 1267, 1268
(1992), enfd. 25 F.3d 473 (7th Cir. 1994); Tufo Wholesale
Dairy, 320 NLRB 896 (1996). Nor is a different result called
for by St. Agnes Medical, supra, 304 NLRB at 147–148, on
which the Company principally relies. In St. Agnes, the union
221 See City Markets, 273 NLRB 469 (1984); Hermet, Inc., 207
NLRB 671 (1973); Mercy-Memorial Hospital Corp., 221 NLRB 1
(1975); Automotive Supply Co., 124 NLRB 1380, 1381–1382 (1959);
and Armco Drainage & Metal Products, 116 NLRB 1260 (1956).
Dismissal of the instant petition would also require an employee who
wished to file another decertification petition to undergo the labor, and
possible expense, of obtaining a new showing of interest among the
current employees. On the other hand, conduct of a second election
pursuant to the instant petition, which was supported by a showing of
interest already more than 3 years old, might cause the very kind of
waste which the showing-of-interest requirement was designed to pre-
vent (see NLRB v. J. I. Case Co., 201 F.2d 597, 598–599 (9th Cir.
1953)). However, I regard these considerations as secondary to those
discussed in the text.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
steward’s unlawful suspension had been rescinded before the
hearing, and the employer’s only postelection unfair labor prac-
tices consisted of withdrawing recognition from the union and
engaging in unilateral conduct.
Also, the Company will be required to offer, to any unit em-
ployees who transferred from the Indianapolis facility to the
Springfield facility in anticipation of or in consequence of the
unlawful unilateral transfer of work, reinstatement at the Indi-
anapolis facility to the job he performed there, or (if that job no
longer exists), to a substantially similar job, together with his
moving expenses from the Springfield to the Indianapolis area,
without prejudice to his seniority or other rights previously
enjoyed, and make him whole for any loss of pay (including
moving expenses from the Indianapolis to the Springfield area)
he may have suffered by reason of his transfer.
All sums due under this Order are to be paid with interest as
called for by New Horizons for the Retarded, 283 NLRB 1173
(1987). Backpay resulting from transfer from or other separa-
tion from the Indianapolis facility is to be calculated in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950).
In addition, the Company will be required to post appropriate
notices. Because some of the employees who worked at the
Indianapolis facility during the commission of the Company’s
unfair labor practices transferred to the Springfield facility, in
consequence of or perhaps as a reaction to such unfair labor
practices, such notices are to be posted at both facilities.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended222
ORDER
The Respondent, Eby-Brown Company L.P., Indianapolis,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that it has called in the police, is go-
ing to press charges, and intends to take other action against
employees, because the stickers which they had affixed to a
public stop sign urged a vote in favor of Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No. 135, a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO.
(b) Telling employees that the reason they have no retire-
ment plan is that the Respondent had spent so much money in
fighting grievances.
(c) Promising employees that Respondent will give prefer-
ential treatment to employees who support Respondent by op-
posing Local 135.
(d) Telling employees to choose between perceived contin-
ued discrimination based on union activity and quitting their
jobs.
(e) Telling employees to choose between describing Local
135 in favorable terms and remaining in Respondent’s employ.
(f) Telling employees that Respondent had spent so much
money on the decertification campaign that Respondent did not
have anything to sit down at the bargaining table with.
(g) As to off-duty employees present on company property
for the purpose of engaging in activities protected by Section 7
of the Act, maintaining and enforcing a rule, with respect to

222 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.
areas other than in company buildings or working areas, which
prohibits such employees’ presence on Respondent’s property.
(h) Telling employees that they cannot pass out union hats
or buttons on company premises.
(i) Telling employees that they are not allowed to distribute
union literature (1) anywhere on company property at any time;
(2) anywhere in company buildings; or (3) on company prop-
erty or company time.
(j) Telling off-duty employees who are distributing union
handbills in nonworking outdoor areas on company property
that they cannot pass out handbills on company property.
(k) Asking employees who are engaged in protected union
activity whether they want their names to be submitted to the
police.
(l) Calling the police because employees are engaged in pro-
tected union handbilling.
(m) Prohibiting employees from displaying union insignia
on their individually owned back belts.
(n) Forbidding employees to display union insignia on com-
pany-owned back belts, while permitting employees to display
other messages on such belts.
(o) Telling employees that they received low bonuses or
evaluations because of their union activity.
(p) Soliciting employees to resign their employment because
of their protected activity.
(q) Telling employees that they are being denied disability
pay because of their union activity.
(r) Blaming Local 135 for possibly preventing or delaying
past and future wage increases by filing charges and election
objections with the Board.
(s) Disciplining employees; requiring them to go home
without pay; withholding, lowering, or increasing employee
bonuses; transferring employees to new routes; lowering em-
ployees’ evaluations; laying employees off; denying them dis-
ability pay; transferring them between shifts; telephoning em-
ployees’ doctors and then telling such employees to return to
work; giving employees onerous work assignments; denying
employees a longer work week; or otherwise discriminating
with respect to hire or tenure of employment or any term or
condition of employment, to discourage membership in Local
135 or any other labor organization.
(t) Lowering employees’ evaluations; withholding bonuses
from employees; disciplining employees; laying off employees;
denying employees disability pay; transferring them between
shifts; telephoning employees’ doctors and then directing such
employees to return to work; giving employees onerous work
assignments; denying employees a longer work week; discharg-
ing them; or otherwise discriminating against employees; be-
cause they have filed charges or given testimony under the Act.
(u) Failing and refusing to bargain with Local 135 as the ex-
clusive collective-bargaining representative, within the mean-
ing of Section 9(b) of the Act, with respect to the following
unit:

All delivery men, warehousemen, janitor(s) and main-
tenance employees employed by the Respondent at its In-
dianapolis, Indiana, facility; but excluding salesmen, vend-
ing machine department employees, office clerical em-
ployees, and all guards, professional employees and su-
pervisors as defined by the Act.

(v) Unilaterally withdrawing the access of Local 135 repre-
sentatives to Respondent’s Indianapolis, Indiana, facility, or
EBY-BROWN CO. L.P. 579
changing the conditions under which access may be obtained,
without giving Local 135 prior notice and an opportunity to
bargain.
(w) Unilaterally transferring work out of the aforesaid unit,
without giving Local 135 prior notice and an opportunity to
bargain about the decision and its effects on employees.
(x) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Pay each unit employee who was eligible for considera-
tion for a bonus in August 1993 the difference between $850
and the bonus (if any) he in fact received, in the manner set
forth in that part of this Decision entitled the remedy.
(b) Make employees James Edmond Sr., Arnie Ray Goens,
and Douglas Jones whole for any loss of pay they may have
suffered by reason of the discrimination against them, in the
manner set forth in that part of this Decision entitled the rem-
edy.
(c) As to all employees who transferred at any time from
Respondent’s Indianapolis, Indiana, facility to Respondent’s
Springfield, Ohio facility in anticipation of or in consequence
of the transfer of work from the Indianapolis to the Springfield
facility in March, April, and May 1994:
(1) Within 14 days from the date of this Order, offer each
such employee reinstatement, with moving expenses from the
Springfield to the Indianapolis area, to the job which he held
before his transfer or, if such a job no longer exists, a substan-
tially equivalent job, without prejudice to his seniority or other
rights previously enjoyed.
(2) Make each such employee whole for any loss of pay he
may have suffered by reason of the transfer to Springfield, in-
cluding moving expenses from the Indianapolis area to the
Springfield area, in the manner set forth in that part of this De-
cision entitled the remedy.
(d) Within 14 days from the date of this Order, remove the
following documents from the employees’ personnel records,
and within 3 days thereafter advise the respective employees
that this has been done and that the material set forth in these
documents will not be held against them in any way:
(1) The reprimands issued on March 31, 1993, to Randy
Jewell and Danny Rakes and the May 11, 1993 letters referring
thereto.
(2) The evaluations issued in July 1993 to Arnie Ray Goens
and Donald Hall.
(3) The following documents with respect to Douglas Jones:
(aa) His March 31, 1993 reprimand and the May 11, 1993
letter referring thereto.
(bb) His July 1993 evaluation.
(cc) The disciplinary documents issued to him dated Sep-
tember 15, 16, 17, 20, and 23, 1993.
(dd) Any record of his layoffs between September 28–30,
1993, and between October 11–14, 1993.
(ee) Any record of his having an absenteeism occurrence on
December 27, 1993.
(ff) Any record of his being on attendance probation be-
tween December 27, 1993, and June 26, 1994.
(e) Except as to company buildings and in working areas,
rescind its rule which prohibits off-duty employees’ presence
on company property for the purpose of engaging in activities
protected by Section 7 of the Act.
(f) On request by Local 135, recognize and bargain collec-
tively with Local 135 as the exclusive representative of the
employees in the aforesaid unit, with respect to wages, rates of
pay, hours of employment, and other terms and conditions of
employment, and, if an understanding is reached, embody it in
a signed written agreement.
(g) On request by Local 135, afford its representatives the
same access to Respondent’s Indianapolis facility which they
were afforded as of March 1993.
(h) On request by Local 135, transfer back to Respondent’s
Indianapolis facility the bargaining unit work which was trans-
ferred to Respondent’s Springfield facility between March 28
and May 9, 1994, inclusive.
(i) Preserve and, within 14 days of a request, make available
to the Board, for examination and copying, all payroll records,
social security records, timecards, personnel records and re-
ports, and all other records necessary or useful for analyzing the
amounts due under the terms of this Order.
(j) Within 14 days after service by Region 25, post at its fa-
cilities in Indianapolis, Indiana, and in Springfield, Ohio, cop-
ies of the attached notice marked “Appendix.’’223 Copies of
the notice on forms provided by the Regional Director for Re-
gion 25, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt 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 Re-
spondent to ensure that these notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed its Indianapolis and/or its Springfield facil-
ity, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former em-
ployees employed by the Repondent in the closed facility or
facilities since November 15, 1992.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The complaint is dismissed to the extent that it alleges that
Respondent violated the Act by interrogating employee Larry
Thomas Benefiel Jr. by increasing the number of its surveil-
lance cameras in response to its employees’ union activities, by
increasing the August 1993 bonus paid to employee Teresa
Deutscher, and by telling employee Arnie Ray Goens that be-
cause of his attitude, he was not going to receive a bonus. The
complaint is also dismissed to the extent that it alleges that
Respondent violated Section 8(a)(5) of the Act by dealing di-
rectly with employees, and violated Section 8(a)(3) by transfer-
ring work out of the bargaining unit.
IT IS FURTHER ORDERED that the election in Case 25–RD–
1171 be set aside and that the petition in that case be dismissed.

223 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 Na-
tional Labor Relations Board’’ shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.’’