Fort Dearborn Corporation

National Labor Relations Board - Board Decisions

Sep 28, 2012

359 N.L.R.B. 199 (N.L.R.B. 2012)

FORT DEARBORN CO. 199

359 NLRB No. 11
Fort Dearborn Company and District Council Four,
Graphic Communications Conference of the In-
ternational Brotherhood of Teamsters. Case 13–
CA–046331
September 28, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On November 30, 2011, Administrative Law Judge
Arthur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel and the Charging Party filed an-
swering briefs, and the Respondent filed reply briefs.
The Acting General Counsel and the Charging Party filed
cross-exceptions and supporting briefs, the Respondent
filed answering briefs, and the Charging Party filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,
1
findings,
2
and conclusions
only to the extent consistent with this Decision and Or-
der.
3

1 The Respondent has excepted to the judge’s denial of its motion to
dismiss the complaint. We find the judge did not err in denying the
motion. The Respondent contends that the Region improperly resumed
these proceedings after the Respondent withdrew from an arbitral pro-
ceeding due to the Union’s alleged insistence that the arbitrator decide
not only whether the Respondent breached the collective-bargaining
agreement but also whether it violated the Act by its discharge of Union
Chief Steward Marcus Hedger. In affirming the judge’s denial of the
motion to dismiss, we note in particular that the Union was prepared to
go forward with the arbitral proceeding even if the arbitrator concluded
that his authority was limited to deciding the contract-breach issue. In
these circumstances, the Region properly resumed these proceedings
after the Respondent withdrew from arbitration.
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.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 We have modified the judge’s recommended Order consistent with
this decision and to comport with the Board’s standard remedial provi-
sions. The remedy section of the judge’s decision includes tax-
compensation and Social Security documentation remedies. Because
the relief imposed by the judge would involve a change in Board law,
however, we believe that the appropriateness of these proposed reme-
dies should be resolved after full briefing by the affected parties, and
1. Threats Against Marcus Hedger. In 2010,
4
the Re-
spondent and the Charging Party Union were negotiating
for a successor collective-bargaining agreement. On
June 3, the unit employees voted to reject the Respond-
ent’s contract proposal, consistent with their bargaining
committee’s recommendation. The next day, the Re-
spondent’s representatives met with the union bargaining
committee, which included Chief Steward Hedger, to
continue negotiations for a successor agreement. During
the meeting, the Respondent’s senior vice president for
operations, William Johnstone, repeatedly accused the
Union of misconduct, i.e., the use of company copy ma-
chines to produce a flyer urging unit employees to reject
the Respondent’s proposal, and the presence of union
agents putting flyers on car windshields in the Respond-
ent’s parking lot. Johnstone told Hedger that he was
tired of the “union circus” and that “we’re watching you,
we are going to catch you, and we are going to fire you.”
The judge found no violation because it was not clear
whether Johnstone was referring to catching and firing
Hedger for unprotected activity or for protected activity.
We think the judge missed the point. Johnstone’s gen-
eral frustration with the Union was apparent to all at the
bargaining table. Immediately after communicating his
aggravation with the “union circus,” Johnstone made an
undisputed threat to watch, catch, and discharge Hedger.
Johnstone appeared to be saying that the Respondent
would watch Hedger more closely and find a reason to
discharge him because of his protected union activity.
Viewed in this light, the statement reasonably tended to
interfere with Hedger’s exercise of his Section 7 rights.
See American Freightways Co., 124 NLRB 146, 147
(1959). Accordingly, we reverse the judge’s decision in
relevant part and find that the Respondent threatened
Hedger with closer scrutiny and discharge in violation of
Section 8(a)(1).
2. Hedger’s Suspension and Discharge. About 2
months later, the Respondent followed through on its
threat by suspending and then discharging Hedger, osten-
sibly for allowing an unauthorized visitor to access the
production area of the plant and for not truthfully an-
swering questions during the Respondent’s ensuing in-
vestigation of the incident. We agree with the judge that
Hedger’s discharge violated Section 8(a)(3) and (1) of
the Act.
5
Despite finding that Hedger’s discharge was

there has been no such briefing in this case. Accordingly, we decline to
order this relief at this time. See, e.g., Ishikawa Gasket America, Inc.,
337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and
cases cited therein.
4 All subsequent dates are in 2010, unless otherwise specified.
5 In affirming the judge’s finding that the Acting General Counsel
proved union animus was a motivating factor in Hedger’s discharge, we
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

unlawful, the judge found, without explanation, that
Hedger’s suspension was lawful. Inasmuch as the sus-
pension was one of the steps taken as part of the Re-
spondent’s unlawfully motivated efforts to discharge
Hedger, we find that the suspension also violated Section
8(a)(3) and (1) of the Act. See Beverly California Corp.,
326 NLRB 153, 154 (1998), enfd. in relevant part 227
F.3d 817 (7th Cir. 2000).
ORDER
The Respondent, Fort Dearborn Company, Niles, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from

additionally rely on the above finding that Johnstone unlawfully threat-
ened to watch, catch, and fire Hedger in retaliation for his union activi-
ty. Unlike the judge, we find it unnecessary to rely on the following as
evidence of animus: (1) Plant Manager Robert Kester’s statements to
Hedger that “if we keep making big issues over little things, manage-
ment isn’t going to continue to deal with it” and “you’re punching
management in the face, and you’re going to cause the place to close
[if] you keep punching us in the face”; (2) Kester’s statements to Hedg-
er, during a conversation about the death of a coworker’s husband, that
“we don’t see eye to eye on everything, but this really puts things in
perspective,” and that “[l]ife is way too short for the bickering between
you and I,” which the judge found conveyed a veiled threat of dis-
charge; (3) Kester’s testimony that he had spoken to Hedger regarding
Hedger’s “aggressive behavior” towards management; and (4) Kester’s
testimony as to how long Hedger and the unauthorized visitor were
together in the plant.
In light of our finding that the Acting General Counsel established
that union animus was a motivating factor in Hedger’s discharge, we
find it unnecessary to pass on his and the Charging Party’s additional
exceptions contending that the judge failed to rely on other statements
that the Respondent made throughout 2009–2010 as evidence of ani-
mus.
As noted above, the Respondent stated that it discharged Hedger be-
cause he let an unauthorized person into the plant. For the reasons
given by the judge, we find this justification to be pretextual. In so
finding, however, we do not rely on the judge’s observation that the
Respondent failed to discipline three leadmen who saw Hedger and the
unauthorized visitor walking through the facility.
Finally, we agree with the judge that the Respondent’s assertion that
it discharged Hedger because he was not forthcoming during the disci-
plinary process was also pretextual. Even assuming that Hedger’s
failure to cooperate could have constituted a legitimate basis for disci-
pline, the Respondent failed to show that it actually would have disci-
plined Hedger for this reason in the absence of protected conduct.
Notably, the Respondent took no disciplinary action against other em-
ployees who refused to cooperate with the investigation. In adopting
the judge’s finding, we do not rely on his rationale that the Respondent
already had all of the information it needed to investigate the matter.
Member Hayes disagrees that Hedger’s untruthfulness during the in-
vestigation preceding his discharge was pretextually asserted as a rea-
son for the discharge. Member Hayes finds, however, in agreement
with the judge and his colleagues, that the Respondent’s claim to have
discharged Hedger for letting an unauthorized visitor into the plant was
pretextual. And as the Respondent does not contend that it would have
discharged Hedger for untruthfulness alone, its pretextual claim pre-
cludes the Respondent from establishing a Wright Line defense. Ac-
cordingly, he concurs in finding that the Respondent violated Sec.
8(a)(3) by suspending and discharging Marcus Hedger.
(a) Threatening employees with closer scrutiny if they
engage in activities on behalf of the Union.
(b) Threatening employees with discharge if they en-
gage in activities on behalf of the Union.
(c) Suspending employees because of their support for
and activities on behalf of the Union.
(d) Discharging or otherwise discriminating against
employees for supporting District Council Four, Graphic
Communications Conference of the International Broth-
erhood of Teamsters, or any other labor organization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Marcus Hedger full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Marcus Hedger whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharge, and within 3 days thereafter, notify the
employee in writing that this has been done and that the
suspension and discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Niles, Illinois facility copies of the attached notice
marked “Appendix.”
6
Copies of the notice, on forms
provided by the Regional Director for Region 13, after

6 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.”
FORT DEARBORN CO. 201

being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means.
7
Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 4, 2010.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with closer scrutiny be-
cause you engage in activities on behalf of the Union.
WE WILL NOT threaten you with discharge because you
engage in activities on behalf of the Union.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting District
Council Four, Graphic Communications Conference of

7 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
the International Brotherhood of Teamsters, or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Marcus Hedger full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Marcus Hedger whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Marcus Hedger, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discharge
will not be used against him in any way.

FORT DEARBORN COMPANY
Helen Gutierrez, Esq., for the General Counsel.
Richard L. Marcus, Esq. (SNR Denton US, LLP), of Chicago,
Illinois, for the Respondent.
Thomas D. Allison, Esq. (Allison, Slutsky & Kennedy, P.C.), of
Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chicago, Illinois, on October 13–14, 2011. District
Council Four, Graphic Communications Conference of the
International Brotherhood of Teamsters (the Union) filed the
initial charge on September 30, 2010, and the General Counsel
issued the complaint on December 10, 2010. The principal
issue here is whether Respondent violated the Act by suspend-
ing and then, on September 14, 2010, terminating the employ-
ment of employee and Chief Union Steward Marcus Hedger.
The Deferral Issue
On January 18, 2011, the Region deferred this case to the
grievance/arbitration procedures of the collective-bargaining
agreement between Respondent and the Union. On July 11,
2011, Respondent withdrew from the arbitration. The Region
revoked the deferral and issued a new complaint on August 8,
2011.
Respondent asserts that the Region improperly ordered the
resumption of the processing of this matter and that the com-
plaint should be dismissed. The Company has not cited any
binding authority for this proposition.1 Respondent asserts that

1 At pp. 8–9 of its brief, it is not clear whether Respondent’s refer-
ence to “the cited case” is to United Technologies Corp., 268 NLRB
557 (1984), or an Advice Memo in Veolia Water. Assuming it is the
latter, a General Counsel’s Advice Memo is not binding on an adminis-
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

it withdrew from the arbitration due to the Union’s insistence
that the arbitrator decide whether it violated the Act, as opposed
to simply determining whether Respondent violated the collec-
tive-bargaining agreement.
The Union, by Hedger, filed two grievances regarding his
termination (GC Exhs. 17, 18). Respondent denied both. The
Union’s grievances came before Arbitrator Martin H. Malin,
Professor of Law at Chicago-Kent Law School on June 13,
2011 (R. Exh. 2). The Union contended that Arbitrator Malin
should consider whether the Hedger discharge violated the Act,
in addition to whether it violated the parties’ collective-
bargaining agreement. Respondent refused to proceed with the
arbitration if Professor Malin also addressed the statutory issue.
I find that this case is properly before me. Given Respond-
ent’s refusal to proceed with the arbitration, it is unclear what
standard Arbitrator Malin would have applied to the contractual
issue. Since the case on its face involves a claim of employer
animosity to Hedger’s exercise of protected rights, deferral to
arbitration would only have been appropriate if the arbitrator
would have determined whether Hedger would have been dis-
charged in the absence of his activities as union steward.2
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Fort Dearborn Company, a corporation, prints
labels for food and other product containers and at its facility in
Niles, Illinois, where it annually purchases and receives goods
valued in excess of $50,000 from outside of the State of Illi-
nois. Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act) and that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) and (1) by suspending employee Marcus Hedger on

trative law judge. On the other hand, United Technologies is complete-
ly irrelevant to the instant case. There the union refused to go to arbi-
tration. I would also note that the Board in United Technologies dis-
missed the complaint provided that the matter either be resolved or be
submitted to an arbitrator. Thus, to dismiss this case and send it back to
the arbitrator would, at a minimum, unduly delay resolution of the
merits of this case.
2 It strikes me that the arbitrator could have made such a determina-
tion by reference to art. 26.2 of the parties’ collective-bargaining
agreement, GC Exh. 6, which forbids disciplinary action against a shop
steward for performing his normal duties. However, one cannot deter-
mine whether the arbitrator would have applied the standards applied
by the Board in deciding an 8(a)(3) case due to Respondent’s refusal to
go forward with the arbitration.
3 Tr. 216, L. 24 should read: “Feeder was Tony Sass.”
The parties’ November 22, 2011 joint motion to substitute a correct
copy of GC Exh. 1(j), the January 18, 2011 deferral letter signed by the
Regional Director, is granted.
August 18, 2010, and then discharging him on September 14,
2010. He also alleges that Respondent, by William Johnstone,
senior vice president for operations, violated Section 8(a)(1) of
the Act by threatening Hedger with closer scrutiny and termina-
tion during contract negotiations on June 4, 2010.
Hedger worked for Respondent as a pressman for 9 years.
At the time of his termination Hedger was working on the se-
cond shift, 3 to 11 p.m. Hedger had been a union steward for 6
years at the time of his termination and chief steward for two of
the three bargaining units; the lithography unit and bindery
(finishing), shipping and sheeting unit, for about 1 year.4 In
this capacity, Hedger filed and processed grievances and partic-
ipated in collective-bargaining negotiations.
At the time of Hedger’s termination, there were usually no
management personnel present for the second half of the se-
cond shift. Pressroom Manager Thomas Vlahos usually left
work between 6 and 7 p.m. After Vlahos left, the ranking em-
ployee at the plant was Robert Schmitt, a “working foreman”
and bargaining unit member.
The 8(a)(1) Allegations
On June 4, 2010, Respondent and the Union met to negotiate
a successor collective-bargaining agreement. This was the first
negotiating session after employees in the “litho” unit had vot-
ed against accepting Respondent’s contract proposal by a vote
of 41–19. At this meeting, Respondent’s vice president, John-
stone, held up a union flyer and asked who had been using Re-
spondent’s copying equipment for noncompany business. Ac-
cording to Hedger, he denied the flyer had been copied on
company equipment. Then Hedger testified that Johnstone
said, “[W]e’re watching you, we are going to catch you and we
are going to fire you.” Hedger’s testimony was corroborated by
David Ishac, who still works for Respondent.
Johnstone denied telling Hedger that Respondent was going
to watch him, catch him, and fire him, or anything similar.
Johnstone testified that he threatened to discipline any employ-
ee using company property for noncompany business.
The Board gives great weight to the fact that current em-
ployees who testify adversely to their employer do so at con-
siderable risk of economic reprisal. This plus the fact that Re-
spondent terminated Hedger 2 months later under very ques-
tionable grounds, leads me to credit Hedger and Ishac. Howev-
er, as Respondent argues in its brief, it is not clear whether or
not Johnstone was referring to catching Hedger using company
copying equipment, as opposed to conduct that is protected.
Therefore, I dismiss complaint paragraph V.
The Events of August 12, 2010, which Led to
Hedger’s Termination
Some time after 8 p.m. on August 12, 2010, an employee in
Respondent’s warehouse paged Hedger. Hedger ignored the
page until he was finished with the task on which he was work-
ing, the washup after a production run. Kis Kako, the leadman
in the shipping/warehouse department, apparently sent employ-

4 The terms bindery and finishing are used interchangeably, Tr. 242.
The third unit was the cutting unit, Tr. 73.
FORT DEARBORN CO. 203

ee Daniel Nevins to get Hedger (Tr. 179).5 Hedger then left his
press at about 8:40 p.m. and went to the warehouse/shipping
department. A friend of Hedger’s, Peter Schmidt, who is also a
member of the Union, was waiting for Hedger in the shipping
department. Peter Schmidt had a bicycle (not a motorbike)
with him.
Hedger and Schmidt walked through the plant. Schmidt
walked with his bicycle; he did not ride it inside the plant. At
some point they encountered Leadman Robert Schmitt. Hedger
and Schmitt testified at hearing that Robert Schmitt gave Hedg-
er permission to walk Peter Schmidt through the plant. How-
ever, Robert Schmitt denied this when interrogated by man-
agement 2 weeks after the incident.6 The leadman in the finish-
ing department, Marcin Golifit, also saw Hedger and Peter
Schmidt. Golifit told management that Hedger and Peter
Schmidt looked into the finishing room and then proceeded out
of the plant.
The preponderance of the evidence is that Hedger and Peter
Schmidt spent no more than 11 minutes in the plant from the
time Hedger met Schmidt in the shipping department until
Schmidt left the plant.7 Peter Schmidt left the plant at 8:51
p.m. None of the three leadmen at the plant on the second shift
on August 12, Robert Schmitt, Marcin Golifit, and Kis Kako
objected to Hedger’s walking Peter Schmidt through the plant
or reported it to management.8
On August 17, 2010, Plant Manager Robert Kester reviewed
a videotape which showed Peter Schmidt leaving the plant with
his bicycle on August 12. Hedger was with Peter Schmidt
when he exited from the plant. Kester met with Pressroom
Manager Thomas Vlahos, who apparently was unaware of this
incident. Kester and Vlahos then interviewed Robert Schmitt,
Marcin Golifit, and several other employees. One of the em-
ployees, Robert Hayden, told Kester that the individual who
walked through the plant with Hedger was Peter Schmidt and
that Peter Schmidt was a member of the Union.
Kester then contacted Vice President William Johnstone and
Corporate Human Resources Director William Samuels. On
August 18, Kester summoned Hedger to a meeting with him-
self, Samuels, and Evelyn Vasquez, the human resource direc-
tor for the Niles plant. At the start of the meeting, Kester
warned Hedger that he could be terminated if he did not coop-

5 Kako, Nevins, and Marcin Golifit, the leadman in the bind-
ery/finishing department, did not testify at this hearing. Thus, all testi-
mony as to the truth of what they said is hearsay.
6 I find that whether Robert Schmitt gave Hedger permission to take
Peter Schmidt through the plant makes no difference to the outcome of
this case. However, I would note that at the start of its interrogation,
Respondent advised Robert Schmitt, who was close to retirement, that
he could be discharged on the basis of the answers to its questions.
Thus, it would not be surprising if Schmitt denied giving Hedger per-
mission even if he did so.
7 Plant Manger Robert Kester estimated that Hedger and Peter
Schmidt walked through the plant for about 50 minutes, however, there
is no support in the record for this testimony. Kester was not present at
the plant on August 12 and his investigation, if anything, corroborates
Hedger’s testimony as to the brevity of the incident.
8 While Kako was aware that somebody came to the warehouse door
to see Hedger, it is not clear that he was aware that Hedger walked
Peter Schmidt through the plant.
erate in the investigation. There was a discussion as to who
would be an acceptable union representative for the meeting.
Hedger insisted that Frank Golden, a union business agent,
serve as his representative. When Golden was contacted by
telephone, he asked that the meeting be postponed until he
could participate in person; Respondent refused. Golden partic-
ipated in the interview via speakerphone.
William Samuels interrogated Hedger from a prepared text.
He asked Hedger if he brought somebody into the plant on
August 12, the name of the person who was with him in the
plant on August 12, and whether he knew Martin Fletcher9 or
Peter Schmidt. Hedger replied that he did not recall to all of
these questions. After the interview, Kester sent Hedger home.
Hedger has not worked for Respondent since August 18, alt-
hough he was paid through September 14, when he was termi-
nated.
Kester and Samuels met again with Hedger on August 23.
Frank Golden, the union business agent, attended this meeting
in person. Samuels again threatened to discipline or discharge
Hedger if he failed to cooperate with the inquiry. This time
Hedger acknowledged that a man with a bicycle came to see
him. He recounted that he had been paged and that later an
employee from the shipping department came to get him.
Samuels asked Hedger if he knew Martin Fletcher. Hedger
responded that he did not. Then Samuels asked for the name of
the person who was with him on August 12. Golden objected
to the relevance of the question and directed Hedger not to
answer. Samuels asked if the person was Peter Schmidt. Gold-
en again directed Hedger not to answer. Samuels asked if the
man was a union member; Hedger said that he was. Samuels
asked if the person was a union official and Hedger answered
that he was not. Golden corrected Hedger and stated that the
visitor held a union position10 and was unemployed on August
12. Respondent concedes that on August 23, Hedger answered
all of its questions except identifying Peter Schmidt.
Respondent never asked the Union for permission to inter-
view Peter Schmidt and made no attempt to do so. It apparent-
ly made no other effort to determine why Peter Schmidt came
to the plant and walked through it on August 12. Respondent
never asked the Union where Peter Schmidt had worked in the
past.
On September 7, 2010, Kester called Hedger to inform him
that he was being terminated effective September 14. The same
day Kester sent Hedger a letter informing him that he was being
terminated because “you brought an unauthorized person into
the plant on August 12, 2010, and that you did not respond
truthfully to the Company’s questions regarding events on that
date of which you were fully aware” (GC Exh. 16).
The record does not establish who made the decision to ter-
minate Marcus Hedger or why he was terminated as opposed to
being given a lesser penalty pursuant to Respondent’s progres-
sive discipline policy. Robert Kester testified that he was “in-
volved” in the decision to terminate Hedger, that he recom-
mended termination and that he consulted with Johnstone and

9 Warehouse Leadman Kis Kako told Kester that Peter Schmidt told
Kako that his name was Martin Fletcher.
10 Peter Schmidt is the Union’s sergeant at arms.
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Samuels (Tr. 307). There is no evidence as to the nature of
these deliberations. For example, there is no evidence as to
whether any of those involved in the decision knew or consid-
ered the fact that Hedger had no disciplinary record in his 9
years as an employee, other than perhaps a verbal warning for
being tardy on one occasion.
Analysis
In order to establish a violation of Section 8(a)(3) and (1),
the Board generally requires the General Counsel to make an
initial showing sufficient to support an inference that the al-
leged discriminatee’s protected conduct was a “motivating
factor” in the employer’s decision. Then the burden shifts to
the employer to demonstrate that the same action would have
taken place even in the absence of protected conduct, Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403
(1983); American Gardens Management Co., 338 NLRB 644
(2002).
The General Counsel’s initial showing usually requires him
to prove that (1) the employee was engaged in protected activi-
ty; (2) the employer was aware of the activity; and (3) that ani-
mus towards the protected activity was a substantial or motivat-
ing reason for the employer’s action. The National Labor Rela-
tions Board (the Board) may infer discriminatory motive from
the record as a whole and under certain circumstances, indeed
not uncommonly, infers discrimination in the absence of direct
evidence.
Marcus Hedger engaged in activity protected by Section 7 of
the Act in his capacity as union steward. As the Board stated in
Tillford Contractors, 317 NLRB 68 (1995):

When an employee makes an attempt to enforce a collective
bargaining agreement, he is acting in the interest of all em-
ployees covered by the contract. It has long been held that
such activity is concerted and protected under the Act, Inter-
boro Contractors, 157 NLRB 1295 (1966). An employee
making such a complaint need not specifically refer to the col-
lective-bargaining agreement. As long as the nature of the
complaint is reasonably clear to the person to whom it is
communicated, and the complaint does, in fact, refer to a rea-
sonably perceived violation of the collective-bargaining
agreement, the complaining employee is engaged in the pro-
cess of enforcing that agreement. Bechtel Power Corp., 277
NLRB 882, 884 (1985); Roadway Express, 217 NLRB 278,
279 1975); NLRB v. City Disposal Systems, 465 U.S. 822,
840 (1984).

There is no question that Respondent was aware of Hedger’s
activities as union steward. Moreover, the record is replete
with evidence that establishes substantial animus on the part of
management towards those activities. Respondent in its brief
argues that the record establishes that it does not have animus
towards the Union and that there is no evidence of any animus
tied to any particular protected act engaged in by Hedger. Nev-
ertheless, the record does establish substantial animus towards
Hedger’s activities in general as a union steward.
In mid-2008, Respondent attempted to unilaterally forbid
smoking at the Niles plant. Hedger requested a meeting be-
tween management and employees who smoked. At this meet-
ing Hedger told Kester that management could not unilaterally
change the policy. As a result the policy did not change as it
did at another of Respondent’s facilities. At this meeting, Kes-
ter testified:

I said something as simple as a smoking policy we can’t even
come to an agreement on? I thought it was kind of ridiculous.
It was a very small issue. We were trying to comply with the
state new regulation. The company was changing a policy. I
explained that if we keep making big issues over little things,
management isn’t going to continue to deal with it. That’s
what I said.

(Tr. 226–227.)
Employee David Ishac recalled Kester saying, “Marcus,
you’re punching the management in the face, and you’re going
to cause the place to close [if] you keep punching us in the
face.” (Tr. 100–101.)
Also in 2010, Kester went to Hedger’s machine to inform
him that the husband of employee Linda Gonzalez, a friend of
Hedger’s, had died suddenly. Kester testified:

. . . my comment to Marcus was we don’t see eye to eye on
everything, but this really puts things in perspective. Life is
way too short for the bickering between he and I. And that’s
all I said. And I turned around and went back to my office.

(Tr. 233.)11
The Union’s counsel asked Kester if he was aware of any
other discipline that Hedger had received, other than a verbal
warning for tardiness. Kester responded:

I know that I’ve had several conversations with Marcus re-
garding aggressive behavior towards management and other
associates.

(Tr. 263.)
Kester’s testimony as to how long Peter Schmidt and Hedger
were together inside the plant, for which there is no foundation,
is also indicative of Kester’s animus towards Hedger as a result
of his activities as union steward.12

11 Hedger’s testimony is that Kester took this opportunity to convey
a veiled threat that he could be terminated suddenly and without warn-
ing, just as Gonzalez’ husband had died suddenly, Tr. 33–35. I credit
Kester’s account of the conversation.
12 Respondent relies heavily on Robert Schmitt’s testimony that he
first saw Hedger and Peter Schmidt “a little bit after 8:00 o’clock,” Tr.
119, 144. I do not view this as an attempt by Schmitt to pin point the
time in question and do not see it as inconsistent with Hedger’s testi-
mony.
Respondent continues to argue that Hedger was away from his press
for between 50 minutes to over an hour, R. Br. at pp. 23–24; Tr. 191. It
has no credible evidence to support this assertion, see, e.g., Tr. 289.
None of the employees, including Robert Hayden, who clearly disliked
Hedger, indicated that this was so. Respondent never even bothered to
ask Michael Naylor and Tony Sass, the other members of Hedger’s
crew, as to how long Hedger was gone, Tr. 244–247. The timesheet
filled out by Naylor, R. Exh. 10, is consistent with Hedger’s testimony
at Tr. 47. Hedger testified he left his press after finishing the “washup”
FORT DEARBORN CO. 205

When the Respondent’s stated reasons for its actions are
found to be false (i.e., “pretextual reasons”), discriminatory
motive may be inferred. In turn, “pretext” is sometimes, if not
often, inferred from a blatant disparity in the manner is which
an alleged discriminatee is treated as compared with similarly
situated employees with no known union sympathies or activi-
ties (i.e., disparate treatment), New Otani Hotel & Garden, 325
NLRB 928 fn. 2 (1998); Fluor Daniel, Inc., 304 NLRB 970
(1991); Citizens Investment Services Corp., 342 NLRB 316,
330–331 (2004). I conclude that Respondent’s stated reasons
for Hedger’s discharge are pretextual and on this basis conclude
that Hedger’s termination was discriminatorily motivated and
violates the Act.
First of all, to the extent Respondent relies on Hedger’s vio-
lation of company policy, it is clear that policy was not en-
forced on the second and third shifts. Secondly, Respondent
has utterly failed to show that it did not apply its progressive
discipline policy to Hedger for violating a policy that was not
enforced. Respondent’s reliance on its assertion that Hedger
was away from his press for over an hour and its failure to ade-
quately investigate this concern is another factor on which I
rely in concluding that the stated reasons for discharge are pre-
textual. Finally, Respondent’s disparate treatment of Hedger is
an additional basis upon which I infer discriminatory motive.
Respondent fired Hedger, but imposed no discipline on three
leadmen, who failed to report Hedger’s alleged violation of its
policy prohibiting unescorted nonemployees through the plant.
Moreover, after Hedger’s termination, employees who allowed
a former employee into the plant, after being told this was pro-
hibited, were suspended for 1 day, not terminated as was Hedg-
er (Tr. 109–113, 264).
I conclude that this evidence is sufficient to shift the burden
to Respondent to prove that it would have discharged Hedger in
the absence of his protected activities as union steward. This
involves scrutiny of the stated reasons for Hedger’s termina-
tion.
Respondent’s Affirmative Defenses
The termination letter Respondent sent to Marcus Hedger
states two reasons for his discharge: (1) bringing an unauthor-
ized person into the plant; (2) not responding truthfully to Re-
spondent’s inquiries (GC Exh. 16). As this record shows, unau-
thorized persons often came into the Niles plant after 6 p.m.
due to the laxity or nonexistence of Respondent’s security
measures. Hedger certainly displayed a lack of candor when

which according to R. Exh. 10 took place between 7:45 and 8:40 p.m..
Respondent’s video shows that Peter Schmidt left the plant at 8:51
p.m., 11 minutes after Hedger left his press. To contradict this testimo-
ny, Respondent relies on Kester’s notes of his interview of Hedger on
August 23, CP Exh. 1. I credit Hedger that he left the press when the
washup phase ended at 8:40 p.m..
Robert Kester testified that Tony Sass didn’t want to get involved,
Tr. 246–247. However, Respondent could have threatened Sass with
discharge if he did not answer its questions truthfully, just as did with
Hedger and Schmitt. Finally, the record clearly shows that Schmidt
came to the warehouse door sometime before Hedger went to meet him.
Thus, the timeframes of how long Schmidt was in the facility and how
long Hedger was with him are different.
Respondent interviewed him on August 18, 2010. However, he
truthfully answered all the Company’s questions on August
23—other than the name of his visitor. Moreover, he had been
directed not to answer this question (the answer to which Re-
spondent already knew) at the direction of the Union.
I conclude that Respondent has not proved its affirmative de-
fense that it would have fired Hedger in the absence of its ani-
mus towards his activities as a union steward. Thus, I find that
Respondent violated Section 8(a)(3) in discharging him, alt-
hough not in suspending him with pay during its investi-gation.
Respondent has not satisfactorily established that its failure to
apply it progressive discipline policy under the circumstances
was nondiscriminatory.
While Hedger’s lack of cooperation during the August 18 in-
terview strikes me as foolish and unnecessary, Respondent had
all the information it needed to investigate whether its confi-
dential business information had been compromised. Respond-
ent knew that Hedger had walked through the plant with Peter
Schmidt, a member of the Union. Through its interviews with
the employees present on August 12, it had the means to deter-
mine where Schmidt went in the plant and how long he was
there. Respondent already had information sufficient to deter-
mine whether Peter Schmidt gained access to confidential busi-
ness information.
I also find the Union’s resistance to identifying Peter
Schmidt to be unwise and unnecessary. However, Robert Hay-
den had already identified Schmidt to management as the per-
son walking through the plant on August 12. Respondent’s
failure to followup on the reasons for Peter Schmidt’s visit in
conjunction with the lack of security, leads me to believe that it
did not discharge Hedger for compromising confidential busi-
ness information.
Respondent also contends that one of the valid nondiscrimi-
natory reasons it terminated Marcus Hedger was that he violat-
ed its confidentiality policy by walking Peter Schmidt through
the Niles plant. Respondent’s confidentiality policy which was
adopted in 2006 states that all knowledge and information ac-
quired by an employee, such as policies, procedures, designs,
know-how, trade secrets, and technical information shall be
regarded as strictly confidential and held in trust (R. Exhs. 7,
8).
It is unclear how this policy is relevant to Hedger’s conduct
on August 12, 2010. Insofar as Respondent relies on Hedger’s
purported violation of policy regarding unauthorized visitors,
this policy was not enforced on the second and third shifts.
Robert Kester testified as to the uniqueness of Respondent’s
processes and its concern that these not become known to its
competitors, particularly the two to three competitors in the
Chicago area. The difficulty with Respondent’s argument in
this regard is that it did absolutely nothing to prevent anyone
from walking into its plant after 6 p.m. Prior to 6 p.m. visitors
were required to sign in at the front desk and be escorted.
However, after 6 p.m. the desk was unmanned. There was no
gate around the Niles plant, no security and the doors to the
facility were often open. Virtually anyone could walk into the
plant.
I would note in this regard that there is no evidence that any-
one in authority made any attempt to prevent Peter Schmidt
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

from walking through the plant. This includes all three lead-
men, Schmitt, Golifit, and Kis Kako.13
Moreover, the record establishes that many people came into
the plant after 6 p.m. when the front desk was not manned.
These included food delivery people, former employees, and
truckdrivers.14 Individuals delivering food were free to walk
through the plant and deliver food to employees at their work-
station and they did so. Nonemployee truckdrivers had been
observed by management at vending machines located in the
interior of the plant (Tr. 260, 328). Unlike Peter Schmidt, who
was escorted through the facility by Hedger, these individuals
walked into the interior of the plant unescorted. No employee,
prior to Marcus Hedger, had ever been disciplined for allowing
unauthorized persons into the plant.
It is also unclear as to what Peter Schmidt could have learned
from his walk through the plant. Respondent made no attempt
to talk to Peter Schmidt to determine what he was doing at the
plant. It appears that the most unique aspects of Respondent’s
production process are its layout for the labels and cutting
equipment (Tr. 161–162), Respondent’s brief at pages 2–3.
There is nothing in the record to indicate that Schmidt observed
or learned anything pertaining to layout or cutting.15
Respondent attempts to draw a distinction between the unau-
thorized presence in the Niles facility of Peter Schmidt, who
had experience in the printing business, and other unauthorized
visitors (R. Br. at pp. 19–20). However, Respondent had no
way of knowing whether other unauthorized visitors also had
such experience. If Respondent’s confidential business pro-
cesses are as valuable as it asserts, it would not take much im-
agination for a competitor to get a person knowledgeable about
the printing process inside the plant on the second and third
shift, knowing that the plant had no security after 6 p.m.
Management’s discussion with employees who were present
on the evening on August 12, confirmed that Schmidt was in
the plant for a very brief time. Marcin Golifit, the leadman in

13 Since Kako did not testify it is unclear whether he knew that
Schmidt walked through the plant or what he said to Schmidt. Kester’s
hearsay testimony at Tr. 179–180 as to what Kako told him is very
implausible. According to this account Kako told Schmidt he had to
wait outside but then sent Daniel Nevins to get Hedger. Afterwards,
Hedger and Schmidt walked through the plant without any interference
from Kako or Nevins.
14 Thomas Vlahos testified that pizza delivery people do not enter
the plant. However, since he normally leaves by 6 or 7 p.m., he has no
basis for testifying as to what occurs after he leaves. I therefore credit
the testimony of employees who are in the plant the entire second shift
that it was not uncommon for food delivery people to come to the ma-
chines. This is all the more likely since the press crews do not get a
lunch break and eat at their machines, Tr. 336–338.
15 Respondent interviewed Mike Kuznierez, a cutter, and Nina Abo,
a die cutter, Tr. 177–178. Neither of these individuals testified at the
hearing. However, neither the testimony of Robert Kester about his
discussions with Kuznierez and Abo, nor Tom Vlahos’ notes of his
discussion with Abo, GC Exh. 3, suggests that Peter Schmidt observed
Respondent’s confidential information regarding its cutting techniques.
bindery/finishing, apparently told Kester that Schmidt and
Hedger “looked around and proceeded out of the building” (Tr.
176). Robert Hayden, a pressman known by management to be
unfriendly to Hedger, told management nothing other than the
visitor’s name was Peter Schmidt and that he was a member of
the Union. Hayden did not indicate that Peter Schmidt lingered
anywhere in the interior of plant (Tr. 272).
Robert Schmitt, who had been advised that his job depended
on his answers, told management that Peter Schmidt had been
in the plant for 10 minutes (Tr. 362). It is doubtful that Schmitt
would lie to Respondent under the circumstances given that, if
contradicted, he could have been fired. I infer that Respondent
knew that Robert Schmitt’s answer to this question was truth-
ful.
According to Kester’s hearsay testimony, Mike Kuznierez
told him that Schmidt and Hedger spent a couple of minutes in
the finishing department. However, his notes and/or memoran-
dum dated August 18, 2010, state that Kusnierez recalled see-
ing Hedger stop at the bindery entrance with a man with a bicy-
cle (GC Exh. 4). This is consistent with Hedger’s testimony
that they did not enter the bindery or sheeting department (Tr.
50–51).
In summary, Respondent’s lack of security after 6 p.m. be-
lies its stated degree of concern concerning the presence of
unauthorized individuals in its facility and visual observation of
its equipment and processes. It had left itself wide open to
potential industrial espionage. This was patently obvious after
it investigated the August 12 incident, which also failed to dis-
close any evidence that Peter Schmidt was in the Niles facility
to acquire information about Respondent’s confi-dential pro-
cesses. This contributes to my conclusion that Respondent
would not have ignored its progressive discipline policy and
fired Marcus Hedger in the absence of its animus towards his
activities as union steward. The same hold true for his lack of
candor during the August 18, 2010 interview. Candid and
truthful answers by Hedger on August 18 would not have pro-
vided Respondent with any information of which it was not
already aware (Tr. 199–201 CP Exh. 2).
CONCLUSION OF LAW
Respondent violated Section 8(a)(3) and (1) by terminating
Marcus Hedger’s employment on September 14, 2010.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Marcus
Hedger, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest com-
pounded daily, Kentucky River Medical Center, 356 NLRB 6
(2010), as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
FORT DEARBORN CO. 207

Respondent shall reimburse Marcus Hedger in amounts
equal to the difference in taxes owed upon receipt of a lump-
sum backpay award and taxes that would have been owed had
there been no discrimination. Respondent shall also take what-
ever steps are necessary to insure that the Social Security Ad-
ministration credits Marcus Hedger’s backpay to the proper
quarters on his Social Security earnings record.
[Recommended Order omitted from publication.]