Kansas City Terminal Elevator Co.

National Labor Relations Board - Board Decisions

Feb 14, 1985

274 N.L.R.B. 46 (N.L.R.B. 1985)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kansas City Terminal Elevator Company and
Donald D . Spoeneman . Case 17-CA-10951
14 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 2 February 1983 Administrative Law Judge
Timothy D. Nelson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Union Party-in-Interest filed a reply
brief.
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, findings,' and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Kansas City Terminal Elevator Compa-
ny, Kansas City, Kansas, its officers , agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In agreeing with the judge's finding that the Respondent did not view
Spoeneman's card playing as a repeat offense, we note that the credited
testimony shows the only version of the suspension letter received by
Spoeneman prior to the hearing herein indicates that the conduct for
which he was suspended was a first offense, which according to the Re-
spondent's progressive disciplinary system should have been cause only
for a written disciplinary warning and not the 3-day disciplinary suspen-
sion meted out
We do not adopt the judge's recommendation that this proceeding be
referred to the U S Attorney's office to determine whether perjury pro-
ceedings should be brought against the Respondent's witnesses In our
view, based on a careful review of the record, the evidence falls far short
of establishing that any witness gave perjured testimony
In addition, it is Member Dennis' view that the dissent, in urging re-
versal of the judge and a finding that Spoeneman was discharged for
cause, minimizes the critical and flagrant inconsistencies in the Respond-
ent's position, suggests that Spoeneman's known union activities ceased
with the election, when in fact they continued for a considerable period,
and ignores the Respondent's unconcealed resentment of Spoeneman's
union activities, as evidenced by its postelection statement that Spoene-
man's "butt [was] as good as gone" When these facts are given due con-
sideration, as they were by the judge, the conclusion is warranted that
the Respondent would not have issued a 3-day disciplinary suspension
against Spoeneman for a first offense had he never engaged in union ac-
tivities
2 We find that a broad remedial order is not warranted in this case
See H,ckmott Foods, 242 NLRB 1357 (1979)
Furthermore, we shall modify the expunction order to conform to the
language set forth in Sterling Sugars, 261 NLRB 472 (1982)
"1. Cease and desist from discriminating against
employees with respect to their hire, tenure, or
other terms and conditions, or in any like or relat-
ed manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act."
2. Substitute the following for paragraph 2(b).
"(b) Expunge from Spoeneman's personnel
records and all other files any reference to his sus-
pension and notify him, in writing, that this has
been done, and that evidence of his unlawful sus-
pension will not be used as a basis for future per-
sonnel action against him."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
I do not agree with my colleagues that the Re-
spondent violated Section 8(a)(3) by issuing the 3-
day suspension to employee Spoeneman. The pas-
sage of time and the lack of any linkage between
the employee's union activities and the disciplinary
action is too remote to warrant a finding that the
Respondent's decision was motivated by the em-
ployee's concerted activities.
The Respondent operates two grain storage ele-
vators. It has a progressive disciplinary system for
safety rule infractions which includes a written
warning for a first offense and a written warning
with a 3-day suspension for a repeat of the same or
a similar violation.
Spoeneman operates scale equipment on the scale
floor at elevator no. 1 and beginning in June 1981
served as the Union's in-plant contact and solicited
authorization cards. In September of that year the
Union won a Board-conducted election, in which
Spoeneman was a union observer. He was later
elected steward.
In mid-October, Spoeneman received a "first of-
fense" written warning for leaving the scale room
unattended. The appropriateness of this warning is
not contested. However, several months later on 6
April 1982, the employee again left his assigned job
on the scale floor to play cards in the scale room
office. As a result of Spoeneman's action the next
morning he was notified of his suspension for 3
days for the card playing. Although the initial
warning letter issued to Spoeneman indicated that
the card playing was not viewed as a second safety
violation, according to the Respondent this letter
was in error and the card playing amounted to a
second safety violation similar to his October of-
fense.
The judge determined that Spoeneman's suspen-
sion resulted from his union activities. He found
that the card playing was not a repeat offense and
274 NLRB No. 10
KANSAS CITY ELEVATOR CO
the reason advanced for the suspension was pretex-
tual.
In my view, my colleagues have emphasized
form over substance in resolving the issues in this
case. Whether you view Spoeneman's second of-
fense as another safety violation or card playing,
the simple fact is that Spoeneman engaged in two
instances of improper conduct which warranted
disciplinary action. It is very possible that the Re-
spondent's initial determination that Spoeneman en-
gaged in a second safety violation was incorrect,
but there is no evidence in the record to show that
the Respondent's decision, whether it be right or
wrong, was based on discriminatory considerations.
The only factor left is the timing, and Spoeneman's
suspension is too remote in time from the campaign
and the election to find a violation. Here the sus-
pension occurred nearly 6 months after the em-
ployee's union activities and during this period
there is no evidence of a connection between the
disciplinary action and the employee's union in-
volvement. Rather the employee was disciplined
for cause, that is, for leaving his work area a
second time. Accordingly, for these reasons I
would dismiss the complaint.
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 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, loin, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discriminate against employees,
including by singling them out for harsh discipli-
nary treatment, because they are involved in activi-
ties on behalf of American Federation of Grain
Millers, AFL-CIO, Local Union No. 16, or any
other union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
47
WE WILL make Donald Spoeneman whole by
paying him backpay, with interest, for the wages
he lost as a result of our unlawful suspension of
him without pay in April 1982.
WE WILL rescind and expunge from our records
the suspension notices which we issued to Spoene-
man at that time and we will take no further action
in the future against Spoeneman based on those no-
tices or the incident to which they refer.
KANSAS CITY TERMINAL ELEVATOR
COMPANY
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge.
Donald D Spoeneman, an employee of Kansas City Ter-
minal Elevator Company (Respondent), filed unfair labor
practice charges in this matter against Respondent on
April 20, 1982 1 Following an investigation, the Regional
Director for Region 17 of the National Labor Relations
Board issued a complaint and notice of hearing against
Respondent on May 20. The complaint, substantially
adopting the charge which spoeneman had filed, alleged
that Respondent issued a 3-day disciplinary suspension to
Spoeneman because of his activities on behalf of Ameri-
can Federation of Grain Millers, AFL-CIO, Local
Union No. 16 (Union) and because he engaged in other
concerted activities protected by the National Labor Re-
lations Act (Act), all in violation of Section 8(a)(3) and
(1) of the Act.
Respondent answered through counsel, admitting that
its operations properly rendered it subject to the Board's
jurisdiction, that certain persons named in the complaint
and referred to hereinafter were its supervisory agents,
and that it issued the disciplinary action against Spoene-
man, all as alleged. Respondent denied only the allega-
tions in the complaint that it was motivated by unlawful
considerations in taking such disciplinary action.
I heard the matter in trial at Kansas City, Kansas, on
December 16, at which time all parties appeared as indi-
cated above and were given full opportunity to present
evidence and be heard. I have considered timely posttrial
briefs filed by all parties.
The Issue and the Applicable Legal Tests
The sole issue is whether Respondent was motivated
by unlawfully discriminatory considerations when it
issued a 3-day disciplinary suspension without pay to
Spoeneman, ostensibly because Spoeneman had been
playing cards with a state inspector during scheduled
working time, but during a lull in the production proc-
ess
Where, as here, Respondent has urged that nondis-
criminatory grounds (employee misconduct) prompted
the discipline challenged by the complaint, a "causation"
I Unless otherwise specified, all dates hereinafter are in 1982
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analysis may be necessary, prescibed in Wright Line2 as
follows.
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision Once this is es-
tablished, the burden3 will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct-
ed. [251 NLRB at 1089.]
On the entire record, I make these
FINDINGS OF FACT
A. General Background
Respondent, a Missouri corporation, operates grain
elevators at two facilities in Kansas City, Missouri, in-
cluding the one involved herein, a riverside facility serv-
icing mostly barge traffic, known as Elevator No. 1 4 At
all times material herein, Lloyd McDaniel has been the
superintendent over operations at Elevator No. 1. Louis
Barrack has been the assistant superintendent since April
12, 1982 There are roughly 17 nonsupervisory employ-
ees at the elevator. These include Charging Party Spoen-
eman who has been employed since November 1979 as a
weighmaster, responsible for weighing inbound and out-
bound grain traffic as it passes through his scale room.
The Union began an organizing campaign at the eleva-
tor in June 1981, using Spoeneman as its principal in-
plant contact and authorization card solicitor. Pursuant
to a representation election petition, an election was con-
ducted under Board auspices on September 4, 1981,
which the Union won.-5 Spoeneman was the Union's ob-
server during that election. Spoeneman was later elected
as the Union's observer during that election Spoeneman
was later elected as the Union's steward. Respondent
concededly knew of these activities
During the period June 1, 1981, to September 1, 1982,
responsibility for the overall management of Elevator
2 Wright Line, 251 NLRB 1083 (1980), enfd (expressing reservations as
to allocation of burdens) 662 F 2d 899 (1st Cir 1981), cert denied 455
US 989 (1982) And see NLRB v Transportation Management Corp, 674
F 2d 130 (1st Cir 1982), cert granted 459 U S 1014 (1982)
2 In addition to the "burden shift" language in the quoted passage
above, see also Wright Line, supra, 251 NLRB at 1088 in 11, in which
the Board emphasizes that the "ultimate burden " of proving a violation
by a preponderance of the evidence remains with the General Counsel I
note also that the Board and some courts of appeal are in disagreement as
to the precise nature of the employer's burden after a prima facie case of
unlawful discrimination has been made out, and that these issues are the
subject of certiorari review by the Supreme Court in Transportation Man-
agement, supra
4 Respondent annually purchases goods and services valued in excess
of $50,000 directly from outside Missouri
5 The Board certified the Union as the exclusive collective-bargaining
representative , but, as the parties further stipulated, Respondent has re-
fused to recognize or bargain with the Union as such pending a judicial
test of the certification As a historical postscript, I note that Respond-
ent's challenge to the certification was unsuccessful See Kansas City Ter-
minal Elevator Co v NLRB, 697 F 2d 269 (8th Cir 1983), in which the
United States Court of Appeals for the Eighth Circuit sustained the
Board's certification and enforced the Board's subsequent bargaining
order issued in connection with its finding that Respondent had violated
Sec 8 (a)(5) of the Act
No. 1 had been contracted by Respondent to a manage-
ment company called FAR-MAR-CO. Chuck Finch, op-
erations manager for that company, was effectively in
overall charge of the management of Elevator No. 1 and
two other elevators. McDaniel reported directly to
Finch on a regular basis . Finch was , in turn , responsible
to Dwight Fenton, FAR-MAR-CO's vice president of
operations. One operational innovation introduced by
FAR-MAR-CO was a written set of safety policies con-
tained in a "Safety Handbook " issued to all employees.
That handbook contained an "Enforcement Policy" in-
volving progressive discipline, as follows (emphasis
added):
Enforcement of the FAR-MAR -CO Safety Pro-
gram will be the direct responsibility of the Super-
intendent at each facility , assisted by other plant
personnel and the Safety Committee.
Procedure for action to be taken for violation of
safety rules:
First offense for violating a rule will consist of a
written warning to the employee , with a copy to be
kept in the employee personnel file.
Second violation for the same or similar act, a writ-
ten warning issued with a copy to be kept in the
employee personnel file. This is to be followed by a
3-day No Pay suspension.
Third violation of the same or similar act will
result in immediate termination.
Violation of a serious nature or any deliberate
action by an employee that willfully committed
causes personal injury to a fellow employee or em-
ployees or deliberate destruction to company prop-
erty will call for immediate termination.
Any action by an employee that creates a hazardous
condition to fellow employees or to company prop-
erty will also call for immediate termination.
Example: Smoking inside a grain elevator.
Crediting the undenied testimony of Rodney Baxter,
Spoeneman 's assistant in the scale room , Superintendent
McDaniel approached Baxter near the timeclock during
a morning break about 2 weeks after the Union's election
victory6 and said , "Well, Don don't know it yet, but his
butt is as good as gone "
On October 16, 1981, Spoeneman received a written
warning signed by McDaniel relating to an event of the
previous day in which Spoeneman assertedly had been
6 If Baxter 's initial estimate of the timing is correct , this would have
been in late September Elsewhere, however, Baxter indicated the vague
impression that the conversation may not have happened until after
Spoeneman had received a warning on October 16, discussed next If it
were necessary to the outcome to identify the timing of McDaniel's state-
ment to Baxter (and I do not believe that it is) I would rely on Baxter's
initial estimate that it happened about 2 weeks after the election Not
only does Respondent appear implicitly to have adopted that estimate (R
Br 17), but Respondent 's failure to obtain from McDaniel any denial of
any aspect of Baxter 's account here warrants the inference adverse to Re-
spondent-that McDaniel made these remarks relatively near the election
date
KANSAS CITY ELEVATOR CO
careless in leaving the scale floor unattended for some
period of time during which a "choke-down" occurred
in a garner (a type of receiving bin for grain before it
passes through the scale), thereby causing an overflow
and then the automatic shutoff of the flow of grain
through the elevator. This was characterized by McDan-
iel as a "serious safety violation" on Spoeneman's part 7
From the mutually harmonious or uncontradicted fea-
tures of Spoeneman's and Finch's testimony, I find that
Spoeneman protested after receiving this warning he had
left the scale room to discuss a loading schedule discrep-
ancy with a foreman and only after so advising his assist-
ant, Baxter Spoeneman surmised before Finch and
McDaniel that Baxter must not have heard him due to
the background din of the machinery, that this is why
the garner had been left unattended, and therefore that
Spoeneman had not truly been negligent. McDaniel re-
plied to this that Spoeneman was "lucky," commenting
that management was planning to issue a 3-day discipli-
nary suspension to another employee, Ronnie Shelton,
for a safety violation becuase he had failed to cover a bin
opening with a protective grating Hearing this, Spoene-
man protested the plan to give Shelton a suspension
without having first issued a warning letter to him; and
Spoeneman vowed to "grieve" any such suspension
After Spoeneman left, Finch advised McDaniel that,
under the above-quoted company rules, a 3-day suspen-
sion would be premature in Shelton's case because no
prior written warning had been issued to Shelton; and
Shelton received only a written warning for his "safety"
violation
Crediting Spoeneman's undenied testimony (well cor-
roborated by Baxter), about a week after October 16,
Spoeneman had occasion to ask McDaniel to come to
the scale floor to assist in settling complaints involving
an outside contracting crew which was relining the
scale, using power equipment. Spoeneman first said that
as a "member of the safety committee,"8 he wished to
protest a violation of safety policy in the use by the re-
lining contractor's workmen of a power saw which was
emitting visible sparks within the dust-filled scale room
(dust explosions notoriously being the principal safety
hazard in a grain elevator). McDaniel replied that he
"couldn't help that," and that Spoeneman should "quit
playing private detective and mind [his] own business."
This caused Spoeneman to protest that, as a member of
the safety committee, this was his "business." When
McDaniel repeated that he could not "help that," Spoen-
eman pulled a union shop steward's buttons from his
pocket, saying, "Well, if being on the safety committee
won't get it, maybe this will, we'll write a grievance
over this safety violation." McDaniel then became florid
and shouted, "You son of a bitch, those mother fuckers
' I assume hereafter, without deciding, that Spoeneman' s alleged mis-
conduct in this instance is properly characterizable as a "safety" viola-
tion
9 The above-described "Safety Handbook" contemplates establishment
of a safety committee which consists, inter alia, of employee-members It
is not disputed that Spoeneman was one such member
s The button, about 2 inches in diameter, contained the legend "Ameri-
can Federation of Grain Millers Shop Steward" in red lettering on a
white background
49
aren 't running this elevator," causing Spoeneman to
close the conversation with the statement. "I hope you
don't blow it up while I'm up here."
B. Spoeneman'c Suspension
No one disputes that on the afternoon of April 15,
during a routine lull in the flow of grain through the
scale room, i ° Spoeneman left the floor of the scale room
and went into his office a few steps away, leaving Baxter
on the floor Spoeneman then joined a state inspector' i
who was already seated at Spoeneman's desk playing sol-
itaire, whereupon the state inspector dealt out a hand of
cards. Almost immediately, Assistant Superintendent
Louis Barrack walked into the scale room office and, no-
ticing the card players, casually asked Spoeneman: "He
beatin' you?" Barrack then left the office and Spoeneman
returned to the floor.
Spoeneman does not dispute that card playing during
working hours was a discouraged practice, but Spoene-
man also insists-and he is well corroborated by
Baxter-that the practice is common during production
lulls, occurring several times each week Spoeneman also
testified that he had seen McDaniel himself playing cards
during worktime with another state inspector. McDaniel
denied this latter testimony. McDaniel also admitted,
however, that in early January, he found Ronnie Shelton
and Rodney Baxter playing cards in the scale room and
that he merely instructed Shelton to get back to his work
area in another department, scolding him for "being out
of his assigned work area." McDaniel also explained in
his testimony at this point, "Since that was a first occa-
sion I witnessed them playing cards, I just chewed them
out rather than writing them up." I credit Spoeneman's
and Baxter's testimony that card playing, while discour-
aged, was a relatively common phenomenon. And, al-
though I do not believe it is critical to the outcome, I
readily credit Spoeneman's testimony that McDaniel
himself had engaged in the practice For reasons elabo-
rated below, I found McDaniel to be an untruthful
and/or unreliable witness on many material points. I
cannot, therefore, credit his denial that he had ever
played cards during worktime.
It is not disputed, and I find from McDaniel's testimo-
ny, that Barrack reported to McDaniel shortly after the
event that he had seen Spoeneman playing cards with
the state inspector. I also find from McDaniel's and
Finch's harmonious testimony that McDaniel then called
Finch, informed the latter of Spoeneman's card playing,
and indicated to Finch his disposition to issue a 3-day
disciplinary suspension. Further, from the same harmoni-
ous sources, I find that Finch told McDaniel that he
wished to check first with his superior, Fenton, that
Finch then did so, and that Finch then called McDaniel
back, about 4:30 p.m., saying that Fenton had approved
the issuance of such a suspension. Beyond that, the testi-
10 Such lulls, often occasioned by the need to reposition barges so that
grain may be drawn from or loaded into a different hatch, or to bring a
new barge into position, are common in the daily operation of the eleva-
tor
i1 State inspectors are regularly on hand at the elevator to ensure
compliance with weight and measurement standards
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of McDaniel and Finch about these and related
matters is highly unreliable 12
I do not believe that McDaniel and Finch ever dis-
cussed during their conversations on the afternoon of
April 15 that Spoeneman's card playing was essentially
"similar" (within the meaning of the quoted "Enforce-
ment Policy") to the matter for which Spoeneman had
received a written warning 6 months earlier. While
McDaniel sought at one point vaguely to make that
claim, and although he was virtually implored during
questioning from the bench to amplify that claim,
McDaniel utterly failed to provide any reliable account
of when or how this matter was discussed. Indeed, every
account of his conversations with Finch on April 15 pur-
porting to recall the words used by the participants con-
tradicts every other account; and each account fails to
include any specific exchange suggesting that Spoene-
man's card playing was then viewed as a "repeat" viola-
tion.
Finch was present during McDaniel 's testimony under
adverse examination and therefore had an opportunity to
observe the failings alluded to above Finch purported to
recall that he raised the "repeat" character of Spoene-
man's conduct in his first discussion with McDaniel, then
also with Fenton, and then specifically again in his
second conversation with McDaniel Fenton did not tes-
tify, despite the evident value to Respondent of corrobo-
ration on this point after McDaniel's dismal performance.
Finch presented a more plausible testimonial demeanor
than McDaniel, but I do not believe him either.13 The
additional findings below, reflect, inter alia, that the sus-
pension notice which was prepared by McDaniel in ac-
cordance with Finch's authorization still failed to charac-
terize Spoeneman's card playing as anything other than a
kind of "first offense." Moreover, those findings reflect
that the suspension notice was not "revised" until sub-
stantially later.
'I McDaniel testified first and at greatest length under adverse exami-
nation by the General Counsel , during the General Counsel 's case-m-
chief, about the details surrounding the issuance of a suspension notice to
Spoeneman (and the subsequent "revisions" of that notice) Respondent's
counsel also pursued with McDaniel at this time the subject areas opened
by the General Counsel McDaniel also testified under examination from
the bench at this time , following Respondent ' s questioning McDaniel
proved to be so blatantly self-contradictory , vague, evasive , and utterly
unimpressive during these examinations-particularly as to the timing of
the sequence of events resulting in the preparation of the various incarna-
tions of the suspension notices for Spoeneman and the nature of the con-
versations among management which preceded them-that I am persuad-
ed that he was attempting , albeit vainly, to conceal guilty knowledge
Respondent urges on brief that McDanel's difficulties were understand-
able and , in any case , of no import because they dealt with merely "tan-
gential" matters To the contrary, as is further detailed in the main text,
they go directly to the question of management's actual motives in issu-
ing a suspension to Spoeneman More particularly, they go to whether or
not management agents truly believed on April 15 that Spoeneman's card
playing amounted to a "repeat" violation , i e, one which was essentially
"similar" within the meaning of Respondent 's written "Enforcement
Policy" to the matter for which he had received a warning on October
16, 1981
11 Finch was called during Respondent ' s case His "recollection" of
the mention of Spoeneman 's card playing as a "repeat " offense seemed to
be a contrived afterthought and did not emerge naturally in his account
of the intramanagement discussions on April 15
A copy of what everyone now concedes was the origi-
nally prepared suspension notice to Spoeneman14 is re-
produced on the following page [omitted from publica-
tion]. 15
It is evident from the text of that suspension notice,
and I find, that McDaniel, the admitted author, treated
Spoeneman's card playing as a first offense, unrelated to
any previous rule violation which Spoeneman might
have committed.16 And McDaniel's testimony clearly
entered the zone of invention when he testified that this
warning was prepared by his secretary at his direction
and was even given to Spoeneman later on the afternoon
of April 15, after the second communication with Finch.
Not only does the date (April 16) which he placed in his
own hand next to his signature contradict this, but the
story is inherently implausible and is contradicted by
other testimony of McDaniel and Finch 17 as well as by
14 That is, G C Exh 7 G C Exh 4 is the copy which McDaniel
states (falsely, as I find below) was prepared only shortly after G C Exh
7 was prepared, after the so-called clerical error was detected by Finch
on that latter document G C Exh 3 is an intermediate version, essential-
ly, a less substantially doctored version of the original notice than G C
Exh 4 is Why G C Exh 3 was prepared by Respondent's agents is un-
clear on this record I infer that it merely reflects a first stab by Respond-
ent's agents at altering the original document-one which was quickly
abandoned as obvious and useless upon the realization that Spoeneman
had an undoctored copy of the original
15
Letters in the left-hand margin have been darkened for legibility,
due to the faintness of the photocopy in evidence as the "original" of
G C Exh 7
16 Specifically, see McDaniel 's concession on the form that the "em-
ployee" had not been "warned previously," coupled with the insertion of
Barrack 's name under the "First Warning" column I reject as the purest
dissemblance McDaniel 's unworthy attempts to blame his secretary (who
was not called to testify ) for what he termed mere "clerical errors" in the
manner in which the form was completed McDaniel admittedly dictated
the text of, and subscribed to, the completed form, and if, in fact, Finch
had specifically told McDaniel to treat Spoeneman's card playing as a
"repeat" violation , McDaniel would not have dictated the "Company Re-
marks" without some mention of that fact and would not have over-
looked the contradictory entries noted above That this is the case is
borne out further by the ultimate doctoring with the form which Re-
spondent eventually resorted to (G C Exh 4), in which the "Company
Remarks" are amended, inter alia, to include the new sentence "This is
your second violation of negligence ," and the other entries are changed
to accord with the notion that Spoeneman 's card playing was a type of
"repeat" offense These emendations , reflecting Respondent 's recognition
of a need to "repair," speak louder than anything they uttered from the
witness stand about McDaniel's and Finch 's original view of the card
playing incident
17 In order to buttress Respondent 's currently maintained position-
that the text of the original warning was flawed simply due to the error
of a clerical employee, and was immediately corrected when the "clerical
error" was promptly discovered by Finch-Respondent 's agents found
themselves obliged to square this position with another undisputed fact
that Spoeneman somehow had received a copy of the original unamend-
ed suspension notice In order to do this, McDaniel claimed variously to
the effect that the notice was prepared on the afternoon of April 15 and
was given to Spoeneman that same afternoon, as he was leaving work
(see Tr 24 3, 26 16-21), and that the notice was prepared on the after-
noon of April 15 Spoeneman was told of his suspension at that time, but
Spoeneman did not receive the notice until the next morning (See Tr
20 18-21 2) (Why Spoeneman would come in the next morning under
such a scenario is not explained) In order to explain how it was that
Finch was able, as early as the next morning (i e, April 16) to detect
from his office located at some distance from Elevator No I that there
were "clerical" errors on the original writing, McDaniel was required to
"recall" a hand-delivery messenger system which he claimed was the
process used to transmit the completed original notice to Finch's office
on the afternoon of April 15 This was inherently unlikely and Finch ap-
Continued
KANSAS CITY ELEVATOR CO
Respondent's records, as I relate below Spoeneman's
testimony, on the other hand, contains an entirely plausi-
ble scenario, and was sincerely given
Spoeneman credibly testified-and I find-that he was
not informed of his suspension until 6 o'clock on the
morning of April 16, when he reported for work and
found his timecard missing and was then informed by
McDaniel and Barrack directly that he was being sus-
pended Spoeneman states that he protested that his card
playing was a "first offense" and did not warrant a sus-
pension under the Company's rules-a statement which,
Spoeneman says, was not contradicted by either wit-
ness. i 8 Spoeneman also testified that he then asked
McDaniel for a copy of the suspension letter, but that
McDaniel replied:
You'll have to wait around until the girls come in
because I don 't have a letter.
Spoeneman testified that he then left the plant, rather
than wait until the office employees ("the girls") were
scheduled to arrive for work Crediting that undenied
testimony of Spoeneman, and considering as well the
April 16 date which McDaniel placed on the original
suspension notice, it is clear that McDaniel could not
have caused that notice to be prepared until , at the earli-
est, some point on April 16 after Spoeneman had left the
elevator to begin to serve out his suspension.
Crediting Spoeneman further, after leaving the plant
he telephoned office employee Vicky Guyer the same
day and asked her to mail him a copy of the suspension
notice. Guyer promised to do so, but when Spoeneman
had still not received a copy of the letter by Monday,
April 19, he again called Guyer, this time asking for not
only the letter, but also for a photocopy of the "Enforce-
ment Policy" in the Company's safety handbook. Guyer
asked Spoeneman to wait on the line, then returned after
a brief delay to state that Spoeneman would get a copy
of the suspension letter, but that McDaniel had advised
that Spoeneman already had a copy of the safety en-
forcement policy.
On April 20, Spoeneman received the above-quoted
original suspension letter in an envelope bearing an April
19 postage meter date.19 This strongly shows-and I
find-that even as late as April 19, Respondent's agents
were still content with the original suspension notice
which treated Spoeneman's card playing as a "first of-
fense." It further suggests that it was not until sometime
after the letter was mailed to Spoeneman on April 19
that someone in Respondent's management finally decid-
ed to examine the original writing for consistency with
the published safety enforcement policy. And, quite evi-
dently, it was the discovery of the discrepancy between
parently recognized this By the time Finch testified, Finch "recalled"
that he had obtained the text of the original notice through the medium
of a telephone call on the morning of April 16 to Louis Barrack Barrack
never testified None of these versions is belie"able on this record as a
whole
18 McDaniel never directly addressed this testimony , and Barrack was
not called as a witness
18 G C Exh 8 Despite this, McDaniel continued to insist that a "cor-
rected " version of the suspension notice was mailed to Spoeneman on
April 16
51
the treatment of Spoeneman's card playing as a first of-
fense and the imposition of a suspension which, under
the published policy, was reserved only for "similar"
second offenses which accounts for Respondent's eventu-
al development of the doctored (or "amended" records)
which appeared in Spoeneman's personnel file.20
What is clearest of all, however, from the credited
record, is that McDaniel's and Finch's accounts were
concoctions-all geared to attempt to mislead the trier of
fact into believing that it had always been the intention
of Respondent's agents to treat Spoeneman's card play-
ing as a "repeat offense" which warranted the imposition
of a disciplinary suspension; and that the "clerical error"
on the original writing was promptly detected and cor-
rected on April 16, only shortly after it had been pre-
pared .2 t
C. Analysis, Ultimate Findings, and Conclusions
I have no difficulty in concluding that the record con-
tains strong prima facie indications that Spoeneman was
given a 3-day disciplinary suspension (rather than, at
most, an oral reprimand for card playing) because of his
union activities as they manifested themselves during the
Union 's organizing campaign and later, when Spoeneman
clearly attempted in various ways to maintain a continu-
ing union "presence" at the elevator during the period
that Respondent has tested the Board's certification
Thus, it is clear not only that Respondent knew of such
activities, but also that Spoeneman was the target of con-
siderable resentment for engaging in such activities, as
evidenced by McDaniel's statement to Baxter after the
election that "Don['s] . . butt is as good as gone."22
20 It may be that this discovery was made on April 19, prompted by
Spoeneman 's specific request to receive not only the suspension letter,
but also a copy of the safety enforcement policies Such a finding would
be consistent with the cover memo placed on Respondent's copy of the
ultimate revision of the suspension notice (i e, G C Exh 4) which cover-
ing memo is itself dated "April 19, 1982" and states
TO AMMEND [SIC] PREVIOUS WARNING WHICH WAS A
MISSTATEMENT DUE TO CLERICAL ERROR
If this is so, then it would be probable that the discovery of the damaging
discrepancy (or "misstatement due to clerical error") was not made until
after someone had already placed the original writing in the mail to
Spoeneman I would not place great stock in the date on that covering
memo , however, given the virtually indisputable evidence that McDaniel
back -dated his own signature on the "revised " notice to "April 16 " It is
just as possible that all of this fiddling with the records did not take place
until sometime later , perhaps triggered by Respondent 's receipt of Spoen-
eman's unfair labor practice charge in the instant case, which he filed on
the same date that he received Respondent's suspension letter , April 20
21 McDaniel's various versions are so internally contradictory and im-
probable' that there is every reason to believe that he was consciously at-
tempting to fabricate Particularly on the question when the alleged
"clerical error" was discovered on the original suspension notice and
then corrected, the stories told by both McDaniel and Finch are so mutu-
ally inconsistent and at odds with Respondent 's own records to warrant
the inference that each was lying It is not within my province to judge
whether perjury was committed It is my recommendation, however, that
the Board , acting through its traditional agent for such purposes, the
office of the General Counsel, refer the record in this proceeding to the
appropriate United States Attorney for a determination whether to initi-
ate perjury proceedings against either McDaniel or Finch or both
22 On brief (at 17) Respondent 's counsel argues that McDaniel 's state-
ment to Baxter " is too vague to prove anything " In this regard , counsel
asks rhetorically "Who is Don? What does `as good as gone' mean's
Gone where?" As Respondent admits, there was only one "Don" at Ele-
Continued
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These features, coupled with the subsequent "second-
step" disciplinary action against Spoeneman, allow the
inference that the former prompted the latter. Of course,
as Respondent stresses, if one focuses on the substantial
passage of time between the election and the point in the
following April when Spoeneman received the discipli-
nary suspension, this would tend to weaken or attenuate
the inference that Spoeneman' s union activities were
causative factors in the disciplinary action. This is espe-
cially so, as Respondent argues, when it is not disputed
that Spoeneman was, in fact, engaged in a recognized
form of employee misconduct by playing cards during
worktime. With matters in this posture, and assuming, ar-
guendo, that those latter factors would tend to bring the
record back to, or near, a state of "equipoise" on the ul-
timate question of discrimination, 23 I am nevertheless
persuaded that Respondent's purported reliance on
Spoeneman's card playing as the cause for the discipli-
nary suspension was simply a pretext to mask an unlaw-
fully discriminatory purpose.
There is, first of all, the strong evidence that Respond-
ent's agents have found it necessary to lie about the cir-
cumstances leading to the issuance of the suspension
notice to Spoeneman and have also found it necessary
belatedly to "amend" their records to conform to their
current legal position that Spoeneman was guilty of a
"repeat" or "similar" violation involving "safety." These
attempts to restructure the facts are, in themselves,
highly suggestive of an attempt to conceal evidence of
an unlawful purpose.24 Certainly, those efforts reflect an
implicit admission by Respondent that the original sus-
pension notice was inconsistent with Respondent's pub-
lished safety enforcement policies. And, even absent such
an admission , I would have no difficulty finding on this
record that Spoeneman's card playing was not genuinely
viewed by Respondent 's agents as either a "safety" viola-
tion or a violation which was " similar" in character to
the matter which had occasioned his receipt of a warn-
ing notice 6 months earlier As to the question whether
Spoeneman's card playing involved a "safety" issue,
Finch effectively conceded that it did not involve a
safety threat for Spoeneman to be playing cards in his
office (a regular worksite for him in any case) so long as
Baxter was on the scale room floor
As to Respondent 's treatment of the card playing as
"similar" to the type of violation attributed to Spoene-
man 6 months earlier, there are plain indications that Re-
spondent's agents did not in other circumstances treat
card playing as "similar" to a previous "safety" infrac-
tion. The clearest example is in Respondent's admitted
treatment of Rodney Shelton Finch testified that an "ob-
vious safety hazard" had been brought to his attention by
the "safety manager" who reported that "several times"
valor No I And if counsel truly believed that there was some innocuous
alternative meaning to McDaniel's reference to Don's "butt" being "as
good as gone," he would have been well advised to invite McDaniel at
trial to spell it out For, absent a convincing alternative explanation, I
find McDaniel's statement to be the plainest kind of expression that Re-
spondent had determined by that early date to rid itself of Spoeneman
23 See the First Circuit's discussion in NLRB v Wright Line, supra, 662
F 2d at 904-905
24 Shattuck Denn Mining Corp, 151 NLRB 1328, 1336 (1965), enfd
362 F 2d 466, 470 (9th Cir 1966)
grates were not being placed over holes on the tops of
bins.25 In response, Finch stated that he instructed
McDaniel to deal with it, and that McDaniel had, in
turn, "brought that to the attention" of Rodney Shelton,
the responsible employee Explaining further, Finch
states that he received an additional report thereafter
from the "safety manager" that the holes in the bins
were still uncovered, causing Finch to make a personal
inspection to verify this fact and then to query McDaniel
and verify that McDaniel had earlier "instructed this
man to put the grates over the holes." Upon receiving
McDaniel's certification that Shelton had been warned
about the matter beforehand, Finch states that he then
authorized Shelton to receive a written warning (but not
a disciplinary suspension) 26
It is significant that, Shelton's previous record of plain
"safety"-related violations on more than one occasion
notwithstanding, Finch and McDaniel did not view Shel-
ton's later card playing infraction with Baxter as being
"similar" in character to those earlier violations. Rather,
as noted, McDaniel merely viewed this as a "first occa-
sion" causing him to decide to "just chew them out,
rather than writing them up." This is one more indica-
tion that McDaniel had ulterior purposes in treating
Spoeneman in a markedly different way when Spoene-
man was similarly detected in a "first occasion" card
playing infraction. And it gives the lie to any claim that
Respondent's agents genuinely were inclined to treat
card playing as "similar" in character to "safety"-type
violations.
For all of those reasons, and not being required in
these matters to be a naif,27 I conclude that Respond-
ent's professed reasons for suspending Spoeneman were
not its true reasons. Clearly, a more probable explanation
for those actions on this record was Respondent's unlaw-
fully prompted desire to hasten Spoeneman's advance-
ment through its progressive disciplinary system, all in
accordance with a fixed determination reached after the
Union's election victory ultimately to get rid of Spoene-
man, as evidenced by McDaniel's admission more than 6
months earlier that Spoeneman's "butt is as good as
gone."
Where, as here, a single, unlawful purpose has been
found to have influenced the discipline visited upon a
union activist, Wright Line-type analyses do not even
come into play 28 Even if, arguendo, Respondent could
be said to have been influenced by "dual motives," how-
ever, the same considerations set forth above require me
to conclude that Respondent failed in its Wright Line
burden of demonstrating that it would have taken the
same action against Spoeneman even if he had never en-
gaged in protected activities. Since Respondent has not
come forward with enough evidence of innocent motiva-
25 As Finch explained "A man could fall down in there and hurt
himself "
26 Even though, by Finch's admission, Shelton's violation was a repeat
of a safety violation about which he had been "verbally" warned earlier,
Finch did not permit Shelton to receive a disciplinary suspension upon
discovery of that repeat violation because it somehow made a "differ-
ence" to Finch that the first warning was merely "verbal " Tr 169
27 Shattuck Denn Mining v NLRB, supra, 362 F 2d at 470
28 251 NLRB at 1083-84
KANSAS CITY ELEVATOR CO
tion even to bring the record back to a state of "equi-
poise" on the ultimate issue of discrimination , I need not
concern myself with the more subtle questions pending
certiorari review by the Court in Transportation Manage-
ment v. NLRB, supra, as to the precise nature of an em-
ployer's burden after the General Counsel has made a
prima facie case.
CONCLUSIONS OF LAW
1, Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and its unfair practices described below affect commerce.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By imposing a 3-day suspension from work without
pay on its employee Donald Spoeneman, Respondent has
discriminated against an employee with respect to the
hire, tenure, or other terms and conditions of employ-
ment of employees in order to discourage membership in
a labor organization and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent violated the Act as al-
leged in the complaint, I shall recommend that Respond-
ent be ordered to cease and desist from unlawful behav-
ior,29 that it make Donald Spoeneman whole, with inter-
est, for the wages he lost as a result of his suspension
without pay,30 that Respondent rescind and expunge
from its records all copies of the disciplinary suspension
notices which it issued 31 and take no further action
against Spoeneman based on those notices or the incident
to which they refer,32 and that Respondent post an ap-
propriate notice and comply with its provisions.
29 Respondent 's conduct directed at the Union 's most visible in-plant
representative , and occurring during a period when Respondent was re-
fusing to honor the Board 's certification of the Union as the unit employ-
ees' bargaining representative, appears to have been cynically calculated
to discourage further employee sympathy for or activities on behalf of
the Union , as well as to move Spoeneman a critical second step down the
path to eventual termination For these reasons , and because such viola-
tions strike directly at the heart of employee rights under the Act, 1in-
clude "broad" cease -and-desist language in my recommended Order
30 All amounts necessary to make Spoeneman whole are to be comput-
ed in accordance with the formulas and policies established in F W
Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB
651 (1977) See aslso Isis Plumbing Co, 138 NLRB 716 (1962)
31 That is, all copies , including the variously "amended" versions
32 This is not to be construed as preventing Respondent from evenhan-
dedly implementing and applying rules or restrictions on the use of work-
time by employees
53
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed33
ORDER
The Respondent, Kansas City Terminal Elevator Com-
pany, Kansas City, Kansas, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from discriminating against em-
ployees with respect to their hire, tenure, or other terms
and conditions of employment in order to discourage
membership in a labor organization , or in any other
manner or by any other means interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act
2 Consistent with the "The Remedy," take the follow-
ing affirmative action which is necessary to effectuate
the purposes of the Act
(a) Make its employee Donald Spoeneman whole, with
interest , for wages he lost as a result of Respondent's un-
lawful suspension of him without pay for 3 days
(b) Rescind and expunge from its records all copies of
disciplinary suspension notices which it issued against
Spoeneman linked to his having played cards on April
15, 1982, and take no further action against Spoeneman
based on those notices or the incident to which they
refer.
(c) Preserve and, on request, make available to the
Board or its agents all payroll and other records neces-
sary to compute the amounts necessary under this Order
to make Spoeneman whole.
(d) Post at its Elevator No. I the attached notice
marked "Appendix."34 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent 's authorized representa-
tive, shall be posted by the 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 the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
33 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
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 pur-
poses
34 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "