LHoist North America of Alabama, LLC, a subsidiary of LHoist North America

National Labor Relations Board - Administrative Judge Opinions

May 21, 2020

10-CA-221731 (N.L.R.B. May. 21, 2020)

JD–23-20
Calera, Alabama
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LHOIST NORTH AMERICA OF
ALABAMA, LLC, A SUBSIDIARY
OF LHOIST NORTH AMERICA
Respondent
and Case 10-CA-221731
UNITED STEEL, PAPER AND
FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL
UNION, LOCAL 5631
Charging Party
Joseph W. Webb, Esq. and Nathan K. Gilbert, Esq.
for the General Counsel
M. Jefferson Starling, Esq. and Irving Jones, Esq.
for Respondent
Richard P. Rouco, Esq.
for Charging Party Union
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, ADMINISTRATIVE LAW JUDGE. This case was tried in
Birmingham, Alabama on February 4 and 5, 2020. Charging Party United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International
Union, Local 563 (Union) filed the charge on June 7, 2018 against LHoist North America of
Alabama, LLC, a Subsidiary of LHoist North America (Respondent). The Union filed first and
second amended charges respectively on June 13 and October 1. General Counsel issued the
complaint on November 15, 2019 and Respondent filed its Answer on November 27, 2019.
1 The name of Charging Party reflects the name listed in the unfair labor practices charges rather than
the name on the Complaint and Answer.
JD–23-20
2
On the entire record,2 including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the parties, I make the following
FINDINGS OF FACT35
I. JURISDICTION
Respondent, a limited liability company, is engaged in mining and processing limestone at
its facilities throughout the State of Alabama, where it annually sold and shipped from its Alabama 10
facilities goods valued in excess of $50,000 directly to points outside the State of Alabama.
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The parties stipulate, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
15
II. COMPLAINT ALLEGATIONS
The Complaint alleges that employee Desilynn “Floyd” Avery (Avery) engaged in union
and protected concerted activities when he participated in an unemployment hearing on behalf of
a discharged former coworker. Respondent, on June 5, 2018 and June 11, 2018 respectively, 20
suspended Avery pending investigation and then discharged him. General Counsel alleges violated
2 The parties filed a Joint Motion to Correct the Transcript, which included numerous errors. That
motion is hereby granted.
3 Citations to the record are included to aid review and are not necessarily exclusive or exhaustive.
Indeed, although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather upon my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony,
evidence presented, and logical inferences. The credibility analysis may rely upon a variety of factors,
including, but not limited to, the context of the witness testimony, the weight of the respective evidence,
established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Lincoln-Mercury-Mitsubishi, Inc., 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not likely to be an all-
or-nothing determination and I may believe that a witness testified credibly regarding one fact but not on
another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed to the party, an adverse inference
may be drawn regarding any factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is
particularly true where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006). Testimony from current employees tend to be particularly reliable because it
goes against their pecuniary interests when testifying against their employer. Gold Standard Enterprises,
Inc., 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961); Gateway Transportation
Co., Inc., 193 NLRB 47, 48 (1971); Fed. Stainless Sink Div. of Unarco, 197 NLRB 489, 491 (1972). Where
a witness was not questioned about potentially damaging statements attributed to him or her by an opposing
witness, it is appropriate to draw an adverse inference and find the witness would not have disputed such
testimony. L.S.F. Transp., Inc., 330 NLRB 1054, 1063 (2000) n. 11 (2000); Asarco Inc., 316 NLRB 636,
640 (1995) n. 15 (1995), modified on other grounds 86 F.3d 1401 (5th Cir. 1996).
-
JD–23-20
3
Section 8(a)(1) in retaliation for Avery’s protected concerted activity and Section 8(a)(3) of the
Act for Avery’s union activities.
The Complaint also alleges that Respondent violated Section 8(a)(1) of the Act regarding
Respondent’s reliance upon Section 16.3 of the implemented terms and conditions of employment5
in its suspension and termination of Avery:
Employees attending union conventions or meetings, third step grievance
meeting(s), arbitration hearing(s) and labor negotiations will be allowed unpaid
leave of absence at the Company’s discretion and within limitations of its operating 10
needs and requirements without pay provided that no more than five (5) total
employees are absent at the time and the request for leave shall be in writing by
either an international or local Union officer provided one (1) week’s notice is given
to the Company in advance of leave. The Union will be responsible for paying
these employees their wages for this union leave of absence.15
General Counsel further contends that Respondent’s actions violate Section 8(a)(1) by enforcing
the above rule and in response to Avery’s protected concerted activities to suspend and terminate
Avery.
20
III. FACTS
A. Background
Respondent operates 2 quarries and 3 lime manufacturing plants in the State of Alabama. 25
(Jt. Stip. ¶1.)4 It has approximately 200 employees. (Tr. 256.) The events at issue primarily
occurred at Respondent’s Montevallo plant, located in Calera, Alabama. The Montevallo plant
receives raw materials to produce lime and lime products, then ships the products. (Tr. 368.)
Approximately 50 hourly employees work at the Montevallo plant. (Tr. 407.)
30
The Montevallo production manager is Grant McCallum, who reports to Plant Manager.
Craig Gordinier. Four persons report to McCallum, including Terry Beam, the loading supervisor.
Stacey Barry is HR Director for the East Region, which covers the Alabama facilities, including
Montevallo. Barry is the ultimate decision-maker for terminations. (Tr. 230.) Barry reports to the
vice-president for human resources for Lhoist North America. Emily Berkes5 is Respondent’s 35
senior human resources manager, east lime and reports to Barry. (Tr. 298.) Berkes’ office is
located at the Alabama Regional Office in Calera. (Tr. 410.)
The Union represents the bargaining unit at Respondent’s facilities. The bargaining unit
covers the production and maintenance employees, including mine and quarry employees, truck 40
drivers and heavy equipment operators. After October 30, 2017, following an impasse in
4 The following abbreviations are used in this decision: Jt. Stip. for Joint Stipulation; Jt. Exh. for Joint
Exhibit; GC Exh. for General Counsel exhibit; GC Br. for General Counsel brief; R. Exh. for Respondent
exhibit; R Br. for Respondent brief; U Exh. for Union exhibit; and, U Br. for Charging Party Union brief.
5 Berkes is now known as Emily Kelley and testified under that name. For consistency with the
documents, Berkes is the name used throughout the decision.
JD–23-20
4
bargaining, Respondent and the Union operated under unilaterally implemented terms and
conditions of employment. (Jt. Stip. ¶8; Jt. Exh. 3.) The Union filed unfair labor practice charge
over the implementation but the charge was withdrawn. (Tr. 77-78.)
The implemented terms and conditions included two provisions about union leave: 5
Section 4.1(c), Section 4.1 Union Committee and Meetings
The Company will compensate employees for time lost from scheduled work when
it calls a general interest meeting (excluding third step grievance meeting(s), 10
arbitration hearing(s), union meeting(s) and conference(s), and labor negotiations)
to meet with employee(s) in accordance with this Article.
Section 16.3, Union Leave (under Article 16, Leaves of Absence):
15
Employees attending union conventions or meetings, third step grievance
meeting(s), arbitration hearing(s) and labor negotiations will be allowed unpaid
leave of absence at the Company’s discretion and within limitations of its operating
needs and requirements without pay provided that no more than five (5) total
employees are absent at the time and the request for leave shall be in writing by 20
either an international or local Union officer provided one (1) week’s notice is
given to the Company in advance of leave. The Union will be responsible for
paying these employees their wages for this union leave of absence.
The Union did not agree to Respondent’s changes in Section 16.3 of the implemented 25
terms and conditions, which were significantly different than the section in the expired collective-
bargaining agreement. Under the previous collective-bargaining agreement, effective from
January 2014 until December 1, 2016, Section 16.3 provision stated:
Employees attending union conventions or meetings with be allowed leave of 30
absence without pay, provided that no more than five total employees are absent at
the time, provide one week’s notice as given to the company by the union in
advance.
Employees on Union Leave will receive their regular pay for the period of the leave. 35
The Company will be reimbursed by the Union for wages paid during Union Leave.
(R. Exh. 10 at 18.) Thus, Section 16.3 in implemented terms and conditions expanded to include
third step grievance meetings, arbitration hearings, and negotiations, and no pay for those events,
with the requirement of one week’s notice upon these additional union activities and relied upon 40
Respondent’s discretion.
In addition to the charge about Respondent’s unilateral implementation, the local union
filed a number of charges in 2017 and early 2018. Wilson testified that, in early 2018 during a
third step grievance meeting that was not going well, with HR Director Stacey Barry told them 45
they could go file a labor board charge. Avery and business representative Michael Smith were
present. (Tr. 198-200.) Barry made a similar comment a few months later in another third step
JD–23-20
5
grievance meeting. (Tr. 201-202.) Wilson could not recall which grievances were discussed at the
third step meeting. A number of Board charges were pending at the time. (Tr. 206-207.)
Barry was present when these employees testified. The following day, he denied making
these statements but presented a different situation at the third step grievance meeting on March 7,5
2018. Barry contended that the Union’s business representative, Mike Smith, was not happy when
Barry said Respondent would provide an answer to the grievance in 10 days. Barry maintained
that Smith was the person who said he would file a Board charge, to which Barry replied, “You
have to do what you got to do.” (Tr. 319-320.) Barry testified that Smith made the same statement
at a later meeting. 10
IV. RESPONDENT SUSPENDS AND TERMINATES EMPLOYEE AND UNION VICE PRESIDENT AVERY
A. Background
15
Respondent employed Avery for 27 years at the Montevallo facility before it terminated
him in 2018. Avery’s supervisor was Terry Beam, the loading supervisor. In this facility, Avery
was the only slurry operator. The slurry operator job entails mixing hydrated lime and water, then
sampling it and loading the finished product onto a truck. (Tr. 24.) Slurry is usually mixed once
or twice each week. The mixing process alone takes approximately 4-6 hours with samples 20
checked during the mixing process. After approximately one hour of mixing time, Avery usually
fills a water truck, then drives the water truck while spraying the plant down. (Tr. 25-26.)
McCallum testified that Avery was known to help out in other areas of the plant, including
driving the water truck. (Tr. 388.) The water truck runs all day during the summer months. (Tr. 25
162.) Avery testified, without contradiction, that the laborers, who are in the same bargaining unit,
are assigned specifically to the water truck duties. (Tr. 46, 94-95.) The slurry operator also
occasionally loads trucks with product. He also may assist with bagging lime and stacking 50-
pound bags in the bagging shed. (Tr. 137-138.) The job description does not list the water truck
or helping with bagging lime as job duties. (R. Exh. 11.)6 If Avery is not present for a shift, two 30
possible laborers may fill in for him for the slurry duties. (Tr. 93-94.)
Avery usually worked Monday through Friday on the day shift. Avery, like the other
employees in the plant, clocked in when arriving at work and clocked out if leaving the facility.
Lunch was a non-paid 30 minute break, which was automatically deducted from pay. For a regular 35
8-hour shift, employees received a 15-minute paid break. Employees did not clock out for lunch
or break unless they left the plant. (Tr. 412.)
Avery was a union member for as long as he worked at the facility and held a number of
union offices during his tenure. Avery served as a shop steward. He served as the local union 40
vice-president, a position he held for 8 years, including the period involved here. (Tr. 27, 73.) In
2018, he also served as acting president. (Tr. 33.) In his role as vice president, Avery attended all
arbitrations. (Tr. 34.) He also was involved with negotiations for collective bargaining agreements
6 The slurry operator’s job description lists two essential functions: Performing duties related to safe
and efficient operation of the aglime and slurry machines; and, Performing all other tasks not specifically
indicated. (GC Exh. 3.)
JD–23-20
6
at least 3 times. (Tr. 75.) Avery was outspoken about Respondent’s proposed contract changes
during the negotiations that started in the fall of 2016. McCallum testified that Avery was known
as a strong employee advocate who frequently challenged management.
Avery also received telephone calls from Barry and Berkes to discuss union matters during 5
his working time. (e.g., Tr. 49, 140-141.) When Avery received such calls, Respondent did not
require him to change his working time or to clock in and out. One such topic Avery discussed
with Barry was that the bargaining unit employees were unhappy with the implemented terms and
conditions of employment. (Tr. 71.)
10
For 25 years before January 2017, Respondent did not claim that Avery had any
disciplinary action. Overall, Avery was known as a hard worker and one who did not have an
absenteeism problem. McCallum testified that he had no problem with Avery’s work ethic.
In January 2017, Avery received an occurrence counting towards absences and a final 15
written warning. The two disciplinary actions were incurred for one incident: Avery had a no-
call, no-show shift on January 4, after his vacation when he was confused about his return date.
Under “Attendance Expectations,” the rule states:
It is your responsibility to contact your Supervisor as soon as you know or 20
think that you cannot report to work, will be late for work, or must leave early. This
is necessary so that adjustments can be made to the schedule and an appropriate
replacement can be notified. Your Supervisor should be contacted as soon as
possible or at least 1 hour before your starting time. In all cases, actual reasons for
absences are expected to be given. Failure to report for work without notifying your 25
Supervisor may result in termination of employment . . . .
(R. Exh. 1.)
In the section for “Intervention Steps,” Respondent’s rules provide that a no-call, no-show30
warrants a final written warning and a second offense “may result in termination of employment
without any additional interventions.” (Tr. 27-28; Jt. Exh. 4.) The Employee Handbook, in effect
since 2016, states the rule differently:
The first instance of a “no call/no show” will typically result in a 35
written/formal reminder. The second separate offense may result in progressive
disciplinary action leading up to and including termination of employment . . . .
(R. Exh. 5, p. 16.)
40
Avery filed a written response with Plant Manager Gordinier, but apparently did not file a
grievance. (Tr. 30-31; Jt. Exh. 5; GC Exh. 2.)
Whether this final written warning was supposed to “fall off” Avery’s disciplinary history
after 1 year was controverted. Most disciplinary actions are removed one year after receipt of 45
discipline if the employee incurs no further disciplinary actions. Attendance occurrences “are
initially counted in a 6-month rolling period from the date of the first occurrence. Occurrences
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7
expire as indicated in the Intervention Steps Procedure.” In addition, any “shift interruption” is
accrues a ½ occurrence. (R. Exh. 1.) Avery incurred no further disciplinary action until an event
on January 22, 2018.
B. January 26, 2018: Respondent Presents Avery with a Last-Chance Agreement for Taking 5
Off Work for an Arbitration
On January 26, over a year after Avery incurred the written warning for a no-call/no-show,
Avery signed a last chance agreement after he attended an arbitration hearing on behalf of the
Union. (Tr. 32.) Respondent contended that Avery’s no-call/no-show occurred when Avery failed 10
to report to work and instead attended an arbitration hearing in his capacity as union vice president
and acting president. (Tr. 33.) He did not advise his supervisor that he would be attending the
arbitration because he never informed the supervisor before; the company representatives
previously told his supervisor. (Tr. 33-34.) Present for the Union, in addition to Avery, were union
staff representatives Michael Smith and Kevin Johnson. Present for Respondent were HR Director 15
Barry, HR Manager Berkes and Attorney Starling. No management representative commented on
Avery’s presence at the arbitration. Avery’s supervisor did not contact him on his cell phone about
his absence from the plant. (Tr. 34.)
When Avery returned to work the following day, January 23, Supervisor Beam directed 20
Avery to Production Manager McCallum’s office. (Tr. 36.) Avery provided to management a
written statement about why he did not notify management about attending the arbitration hearing.
In his statement, Avery stated he believed as acting president the company would inform his
supervisor that he was excused from work. He closed the statement with the promise to provide
Respondent with something in writing for arbitration hearings he intended to attend. (R. Exh. 4.) 25
On January 26, Avery attended a meeting in the facility’s conference room with HR
Director Barry, HR Manager Berkes, Production Manager McCallum, and shop steward Robert
Lacey. Barry told him that the meeting was about the no-call/no-show. Barry stated that the
“higher-ups” wanted Avery terminated but Barry did not, so he was presenting him with a last 30
chance agreement.
Avery said he did not think it was right because he never gave notice to a supervisor before
needing to attend an arbitration.7 Barry read to Avery Section 16.3 of the implemented terms and
conditions of employment. Barry told Avery that, if he did not sign, Avery was agreeing to resign35
voluntarily. Avery signed the last chance agreement because he needed his job. (Tr. 39-41.)
The last chance agreement stated that Respondent’s attendance policy requires employees
to notify their supervisor of an absence at least one hour before the scheduled start time; further,
Section 16.3 of the implemented terms and conditions required a union official to provide 40
Respondent, in writing, at least 1 week’s notice in advance of need for union leave. The letter
7 Respondent presented two documents, purporting that Avery emailed for time off for arbitration, albeit
not a week’s notice. However, one exhibit reflects Avery advising Respondent of extra time needed for
witness preparation, and not the arbitration itself; the other, about a third step grievance meeting, involved
no notification from Avery but instead was Berkes asking the names of the grievance committee members
attending to secure the 1-week advanced notice. (R. Exhs. 2-3.)
JD–23-20
8
body stated the last chance agreement remained in effect for 12 months from the date of the letter.
In the acknowledgement and agreement, the letter stated, “I understand that if I violate any policies,
rules or regulations during the next twelve (12) months my employment will be terminated
immediately and that I will not receive any further warnings.” The letter required Avery to waive
his right to file a grievance on the matter. (Jt. Exh. 5.) 5
Avery told Supervisor Beam that he was required to sign a last chance agreement. Beam
said he did not know that Avery attended the arbitration because normally management sent him
emails about the times Avery had arbitrations and grievance meetings. (Tr. 153.)
10
C. June 1, 2018: Avery Participates in a State Unemployment Compensation Hearing
Involving Respondent’s Terminated Employee
Avery’s usual 15-minute morning break begins about 9:00 a.m. and lasts until 9:15 a.m.
Employees do not clock out or clock in for breaks or lunches unless they leave the facility. The 15
supervisors’ offices are next to the break room and the supervisors normally take their breaks at
the same time as the employees. (Tr. 480.)
On this day, Avery ran late and began his break about 9:12 a.m. (Tr. 44.) At 9:21 a.m.,
Avery received a call from a hearing officer with the Alabama Unemployment Office. The 20
unemployment hearing officer stated he was calling Avery about a case involving a terminated
fellow employee, Willie May. (Tr. 41.) The hearing officer asked whether Avery could sit in the
meeting and Avery agreed to do so. (Tr. 42.) Avery denied expecting a call at that time. (Tr. 43.)
Avery testified that he had not discussed with May previously whether he was going to be a
witness, nor had he discussed acting as his representative. (Tr. 127.) He further testified he 25
received no written notification from the unemployment compensation department about the call.
However, because the unemployment office was a government agency, Avery believed he had to
cooperate with the call.
Avery walked outside to take the call. Although Avery remained on the call after his break 30
time elapsed, he walked outside to his water truck and stayed outside the truck. He did not drive
the truck. While the call took place, Avery testified without dispute that the plant was already
watered down and the grounds were wet. Avery had no trucks to load during that time. During the
call, no slurry was running. At the time, no employees were required to wear respirators. (Tr. 404-
405.) 35
During the telephonic unemployment hearing, HR Director Barry served as a witness for
Respondent. Avery testified that his own hearing participation was limited to asking Barry a
question and, towards the end of the hearing, stating that Respondent did not usually terminate
employees for accidents. The hearing officer stated she could not use Avery’s last point in the 40
decision. (Tr. 44.) Barry said nothing to Avery during the hearing.
Once the call finished, Avery resumed work activities with the water truck. Although
Avery’s supervisor, Beam, was not present that day, his supervisor of the day was Joey Hemphill,
who made no complaint about Avery to McCallum. (Tr. 383.) 45
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9
Avery’s portion of the unemployment call lasted 31 minutes, of which 25 minutes lapped
into Avery’s worktime.8 After the call completed, Avery did not report the time to anyone because
he thought it was work related, particularly with Barry on the line, and that he was required to
respond when the government called.
5
After the unemployment hearing call concluded, Barry notified Berkes that Avery was on
the unemployment hearing call and asked her to investigate whether he was present at work that
day.9 Barry did not direct Berkes on how to perform the investigation. Human Resources then
directed McCallum to speak with Avery about the call and whether Avery alerted anyone about
the call. (Tr. 397.) 10
On June 5, Production Manager McCallum spoke with Avery about his participation in the
unemployment hearing. McCallum first approached Avery in this copy room and the discussion
continued in McCallum’s office. Other than Avery and McCallum, no one else was present for the
conversation. (Tr. 51.) McCallum first asked Avery whether he was familiar with what happened 15
on Friday. Avery was not sure what McCallum was talking about, then McCallum asked him about
participating in the call and whether he let anyone know he was participating in the call. (Tr. 51.)
Avery said he was on his break. Avery also showed the phone log to McCallum. Avery told
McCallum that the call initially came in during his break and that he was not expecting the call.
(Tr. 395-396.) McCallum said, “You were on your break?” Avery again said yes. McCallum said20
he was unaware of that and would notify Berkes.10 McCallum testified that he had no reason to
doubt Avery’s representation that the call came in during break. (Tr. 395.)
On the following day, June 6, McCallum again spoke with Avery. (Tr. 52.) McCallum
said he told “them” what Avery said and asked Avery to write a statement. Avery said he could 25
not immediately because his shift was ending, but he would bring a statement the following day.
McCallum agreed. As promised, at about 7:30 a.m. on June 7, Avery provided McCallum with
this handwritten statement:
On Friday June 1, 2018 while on my break I received a phone call at 9:21 30
a.m. from an Agent of the Unemployment Office. The call was in regards to Willie
May filing for unemployment. The Agent said that Willie told him to call me. He
then told me that he had Willie, Stacey Barry and someone else from the company
who I don’t recall her name on the other line waiting to be conferenced in for a
hearing on the matter of Willie’s unemployment. I assumed that I was supposed to 35
8 This calculation is based upon the call time on Avery’s cell phone. The record’s math starts off
“fuzzy,” with Respondent implying Avery did not work for 40 minutes. That 40-minute period included
break time, which is not working time. The transcript from the unemployment office shows that the call
ended at 9:52 a.m., making the non-break time 25 minutes. (Tr. 131.) Respondent’s position statement to
the Board agent during investigation states that Avery was on the call until 9:52 a.m., 25 minutes after his
break. (GC Exh. 7 at 4.)
9 Berkes denied that Barry directed her to conduct an investigation and instead maintained that she
started the investigation after Barry asked if Avery was off work during May’s unemployment hearing. She
also denied that Barry implied for her to start an investigation. (Tr. 444-445.)
10 McCallum’s testimony about his first two meetings with Avery were confusing as to dates and
sounded rehearsed, without much detail. (Tr. 374.)
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10
participate being that Human Resources was involved and that I was called. I’ve
never been involved in this before.
(GC Exh. 4.)
5
Avery told McCallum at one of the two meetings that he would be willing to have his pay
docked for the telephone call. McCallum had the power to do change Avery’s time but did not do
so. During the meetings with McCallum, Avery did not act like he was hiding his actions.
Besides the unemployment action, May and Avery had a scheduled for a termination 10
grievance meeting on June 7, 2018. (Tr. 58.) Respondent canceled that grievance meeting because
it suspended Avery. (Tr. 58-59.)
D. June 7, 2018: Respondent Suspends Avery Pending Investigation
15
About 9:00 a.m. on June 7, Avery received a call from his supervisor to come to the office.
When Avery arrived in the office, Shop Steward Lacey and Supervisor Beam were present. Beam
stated Avery needed to go to McCallum’s office and he probably should take Lacey with him. (Tr.
54.)
20
McCallum testified that the human resources department, person unknown, directed him to
suspend Avery pending investigation. (Tr. 381.) When Avery and Lacey arrived in McCallum’s
office, McCallum stated that the company looked over “everything” and Avery’s statements and
intended to investigate further. McCallum told Avery he was suspended pending an investigation.
(Tr. 55.) Avery told McCallum that he thought he was supposed to take that call and asked why 25
he was suspended. McCallum said Avery performed union business on company time.11 Avery
said he thought he was supposed to take the call and that Barry was on the line. (Tr. 56.) McCallum
said he could see Avery’s side. Avery clocked out and went home. (Tr. 56.)
Around 11:50 a.m. that same day, HR Manager Berkes called Avery and requested that he 30
meet her in the regional office at 3:00 p.m. Avery, with Union President Jon Wilson, attended the
meeting with Berkes and another person working in sales in the regional office’s conference room.
(Tr. 56.-57.) They met for about 35 minutes.
Berkes asked Avery whether he knew about the call with the unemployment office ahead 35
of time. Avery said no. Berkes also asked about Avery’s communications with terminated
employee May. Avery said May called him about 3 days before the telephonic hearing for some
information about the equipment he ran and asked questions about his pending termination
grievance. (Tr. 58.) Berkes also asked Avery if he was acting as a representative in the
11 McCallum’s testimony here lacked detail about the conversation. McCallum testified he told Avery
that he was handling personal business on company time. In response to leading questions, he denied telling
Avery that he was involved in personal business. (Tr. 375.) McCallum also testified that he did not consider
union business to be work and instead union business was personal business when conducted on company
time. (Tr. 393.) I therefore give little credence to McCallum’s version and his denial.
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11
unemployment hearing, to which Avery said he did not know. (Tr. 59.)12 Avery also testified he
did not know whether he was a witness. Berkes asked how the unemployment office was able to
contact him. Avery said Mays gave the officer his telephone number. (Tr. 59.) Berkes asked
Avery whether he received anything in the mail that notified him about the hearing, to which he
said he had not. Berkes wanted to know whether the unemployment office called him. Avery 5
provided Berkes with a screenshot of the phone call via email (Tr. 60-61; GC Exh. 5.) The
screenshot showed a 31-minute call.
Avery asked Berkes what all the questioning was about. Berkes stated that he took the
phone call from the unemployment office, doing union business on company time. (Tr. 62.) Avery 10
told her he thought he was supposed to take the call. Avery told her, “[I]f it was all about the time,
then dock it, dock my time . . . .” (Tr. 62.) Berkes said it was too late and stated that his attendance
at the January 2018 grievance arbitration was the same type of conduct.
Respondent maintained that it continued its investigation into Avery’s participation in the 15
unemployment hearing. During Respondent’s direct examination, Barry testified to a number of
leading questions that employees are not allowed to take personal breaks of 20 to 30 minutes. (Tr.
305.) If an employee finishes a task, an employee is supposed to help out in other areas.
Berkes testified that she took notes no notes of her interviews with Barry, McCallum and 20
Avery. (Tr. 468-469.) Berkes developed a summary of the investigation, which apparently was
an email. (Tr. 355, 468.) Respondent did not present the email, for reasons which are unknown.
Berkes reported her findings to Barry. Barry’s summary of Berkes’ report was that Avery
did not have authorized approval to be away from work for the unemployment call. Barry could 25
not recall if Berkes told him that Avery completed his work for the day. (Tr. 284.) Barry could
not recall discussing Avery’s job performance with Avery’s direct supervisors before deciding to
terminate him, nor could he recall Berkes reporting any such information. (Tr. 282-284.)
Berkes developed a summary, which was not presented at hearing. Before deciding to 30
terminate Avery, Barry, apparently in a conference call, received input from a number of managers:
Berkes; Gordinier; McCallum; Dan Brock, the vice-president of Human Resources; Grant Nintzel,
the operations director for the region; and, Chris Burr, the in-house counsel. (Tr. 310.) McCallum
confirmed he was on a call about Avery. McCallum could not recall who led the meeting, certain
or specifics about who was on the call. He testified that he took no notes of the meeting, nor did 35
he know who organized the meeting. (Tr. 376, 394.) McCallum testified that his understanding
of why Avery was to be terminated was he was not working while on an unemployment call for 31
minutes, which he did not report or received prior approval to do, and then did not report it after
the call to correct his time. Barry testified about the reasons for termination, except that he said
that the call was unauthorized for 40 minutes. McCallum also recalled that they discussed Avery 40
was a representative on the call and likely knew about it ahead of time. (Tr. 377.)
Barry testified that he made the ultimate decision to terminate Avery. Barry assumed Avery
had advance notice of the call from the unemployment office. When Barry made his decision to
12 Avery at first testified he told Berkes that he was not May’s representative and then changed the
answer to that he did not know. (Tr. 59.)
JD–23-20
12
terminate, he was not aware that Avery told Berkes he would be willing to have his pay docked for
the time.
E. June 11, 2018: Respondent Terminates Avery
5
Berkes drafted the termination letter, which was reviewed by legal counsel and the vice-
president of human resources. Berkes, in agreement with Barry’s conclusion, decided that Avery
had been notified by the unemployment office in sufficient time before the hearing to notify
Respondent. Although the termination letter states that the call exceeded Avery’s break and he
never reported the non-working time to his supervisor, the letter also stated that the investigation 10
indicated that, at the unemployment hearing, Avery was not a witness but was acting as May’s
representative.13 Berkes testified that Avery failed to provide documentation of why he needed to
be on the unemployment hearing call. Berkes testified Avery was participating in union business
and should have notified Respondent 7 days before the hearing. This requirement is consistent
with the Section 16.3 of the implemented terms and conditions. Berkes also testified that, she 15
included in the letter that Avery stated he was not sure whether he was called as a witness or
representative, but Respondent’s investigation showed he was a representation, and he could have
requested time off for union business. (Tr. 475-476.)
On June 11, Berkes contacted Avery and told him to report to her office in the regional 20
offices. Besides Berkes and Avery, Union President Jon Wilson and Anastasia attended the
meeting. (Tr. 65.) Berkes told Avery the company looked over everything and decided to terminate
his employment. Berkes gave Avery his termination letter. Berkes told Avery that she hated to
end this way and it had been nice working with him. (Tr. 65-66.)
25
The termination letter read, in relevant part:
. . . Based on our investigation, it appears that you failed to properly notify
your leadership of your intentions of participating in an unemployment hearing call
on June 1, 2018 while still on work time. You admitted that you never made an 30
effort prior to or immediately after the call to notify your supervisor that you never
made an effort prior to or immediately after the call to notify your supervisor that
you were on this call when you were supposed to be working.
Avery denied falsifying time records. Respondent’s time records are kept biometrically by35
fingerprint. Avery testified he clocked in when he started work and clocked out at the end of the
day. (Tr. 67.) No one clocks out from breaks or lunches except when leaving the premises. He
13 At hearing, Respondent relied upon the Employee Handbook provision for Time Reporting for Non-
Exempt Employees: “All non-exempt Employees are required to record all hours they work. Time worked
is all the time actually spent on the job performing assigned duties . . . .” It additionally states:
“Misrepresenting working hours or tampering with the time clock or other Employees’ time record are
extremely serious offenses. Employees found to have engaged in any of these prohibited activities are
subject to immediate discipline, up to and including termination of employment.” (R. Exh. 5, p. 29; Tr.
104.) Respondent also relied upon the General Conduct and Safety Rules, which state that an employee
could be immediately terminated for falsifying records. (Tr. 107-108, R. Exh. 7, p. 25-26.)
JD–23-20
13
denied violating the general conduct and safety rules provision of misrepresenting his work hours.
(Tr. 156.)
Barry testified that the reasons for Avery’s termination were listed in the termination letter.
Berkes testified why she wrote certain sentences in the termination letter:5
A: [citing the letter, Jt. Exh. 6] “You claimed that you were not sure if
you were called as a witness or a representative.”
Q: No, why did you write that sentence?10
A: Because that is exactly what he told me in the - - - in my
investigation. And I asked him that because, as a representative, he could have
requested the time off under union business.
15
Q: Okay. Now the next sentence.
A: “However, our investigation in a case that you are not sworn in as a
witness, did not act as a witness [. . .] and instead acted as a representative for Willie
May during hearing.”20
Q: Now why did you write that sentence?
A: Again, to say that if he was acting as a representative during the
hearing, he should have requested the time off as union business, like he normally 25
had.
(Tr. 475-477.) On recross-examination, Berkes confirmed that Avery needed to request union
leave for the call. (Tr. 478.) Berkes testified that, instead of proceeding, Avery should have asked
the hearing officer to wait for him to check with his supervisor at the end of his break before he 30
continued with the call. (Tr. 480.)
At the time of this unemployment hearing, Respondent did not have a policy prohibiting
employees from using their telephones for personal use during working time. (Tr. 148-149.)
However, Avery denied that the call was a personal call. He testified that he thought he was 35
supposed to take the call as it came from a government agency and could not refuse to participate.
(Tr. 161.) Both Barry and Berkes testified that they were not aware of any policy prohibiting
cooperation with a government call.
F. Respondent Receives the Transcript of the Unemployment Hearing40
After Avery’s termination, Respondent received the unemployment hearing transcript,
which was certified on June 26. (R. Exh. 8.) Berkes denied requesting the transcript. (Tr. 446-
447.) Barry did not know why he did not wait for the transcript before deciding to terminate Avery.
(Tr. 356.) 45
JD–23-20
14
The transcript’s first page listed Avery as a claimant witness. The hearing officer called
upon May first, before May was sworn in and before Barry was on the call. Upon questioning
from the hearing officer, May stated that Avery would be appearing with him, should be on break
about 9:15 a.m., and was his union steward. When the hearing officer asked whether Avery was a
witness or representative, May said, “Well, uh, I guess rep, I guess . . . . ‘Cause, because he’s my 5
union steward at the, at the job. Like I said, he’s been trying to work with this thing, the reason I
got fired.” (R. Exh. 8 at. 3.) The hearing officer asked May to confirm Avery’s telephone number.
When the hearing officer contacted Avery, the hearing officer asked whether Avery was
“potentially going to be serving as a representative today.” Avery answered, “Yes, sir. Yes, sir.”
(Tr. 128-129; R. Exh. 8 at 6.) The hearing officer identified Avery as May’s union vice-president 10
and representative. The unemployment hearing office later contacted Barry, and swore in May and
Barry. (R. Exh. 8 at 10-11.) Avery asked one question of Barry and none of May. Avery also
made a statement on May’s behalf. (R. Exh. 8 at. 25-26.)
Barry stated that based upon the unemployment hearing transcript, he concluded that Avery 15
had advanced notice of the unemployment hearing from May. (Tr. 354-355.) Berkes received the
unemployment hearing transcript but did not read it in its entirety. She could only recall the first
page where Avery was listed but seemed confused as to what was on the first page. (Tr. 476-477.)
Berkes did not know whether the unemployment office had any form that representatives were
required to complete. (Tr. 482.) Berkes testified that she has experience making entries of20
appearance at unemployment hearings. However, she did not know whether representatives were
required to complete forms for the unemployment office. (Tr. 482.) She provided a phone number
and, in her experience, one would be required to notify the unemployment office ahead of time to
be able to participate. She had no recollection that Avery’s phone number was at issue before the
witnesses were sworn in. (Tr. 477-478.) 25
G. Respondent’s Cell Phone and Break Memorandum to Employees
On November 20, 2018, after Avery’s termination and subsequent labor board charge,
Respondent issued a memorandum to all hourly employees. The memorandum was entitled 30
“Important Cellphone and Returning from Break Timely Memo.” (GC Exh. 6.) The memorandum
opened with this paragraph:
In support of some recent labor charges, the Union has alleged that the
Company does not uniformly enforce its guidelines and policies prohibiting the use 35
of cellphones during working time and requiring employees to return to work from
breaks in a timely manner. The company wants to make sure everyone fully
understands expectations related to cellphone use at the plants and the need to
follow break policies. In addition, the Company wants to make sure these
guidelines and policies are enforced in a consistent manner.40
(GC Exh. 6; Tr. 180-181.)
Barry testified that he investigated the unfair labor practices allegations, which included
speaking with the plant and quarry managers. (Tr. 287.) At hearing, Barry maintained that 45
everyone understood the guidelines and policies and the policies were uniformly applied; however,
Barry initially testified the memo was “a refresher.” (Tr. 288-290.) Upon later questioning
JD–23-20
15
whether Respondent relied upon unfair labor practice charges for “refreshers,” Barry testified, “It
depends. I don’t know.” (Tr. 328.) Barry also testified the earlier cell phone policy was not a
policy but an unpublished guideline. (Tr. 300-301;14 329-331.)15 Respondent’s position
statements, issued before November 2018, stated no cell phone policy existed. (Tr. 250-251; GC
Exh. 8 at 7; GC Exh. 7 at 10.) 5
Despite the memo’s intent, employees continued to use their cell phones for personal use.
(Tr. 181.) Wilson testified that, even after the November 2018 memorandum, he took personal
calls in front of his supervisors and received no discipline. To his knowledge, no employee
received discipline for personal cell phone use during working time. (Tr. 182.) Barry testified that 10
employees must obtain permission from their supervisors before engaging in personal business at
work, but then testified that in Wilson’s situation, it was an exception. (Tr. 329.)
H. Disparate Treatment Evidence
15
On many occasions, while working his slurry job, Avery received calls about union
business from Berkes and Barry; he received pay for his job while taking these calls. Avery also
was called to represent employees in meetings, without prior notification.
Avery and employee Jon Wilson16 testified that they and other employees took personal 20
phone calls outside of break time and never received discipline. (Tr. 66, 178.) A plant manager
at the facility where Wilson worked told employees to limit time on personal calls. (Tr. 204.)
Wilson further testified that he sometimes would need to work on a machine while talking on a
cell phone, depending upon the circumstances. (Tr. 210-211.)
25
Respondent’s policy at that time prohibited using personal cell phones when operating
equipment. (Tr. 176.) McCallum testified that Respondent’s cell phone policy is that employees
could only use their personal cell phones for quick personal emergencies and cell phones should
not be allowed in the plant area as a major safety risk. (Tr. 369.)17 McCallum testified that he
would just tell employees to get off the phone if he saw them.30
McCallum testified that a temporary employee was released after “multiple offenses”18 for
being on the cell phone and not performing work, including sitting down in the bagging section
14 Barry’s initial testimony about the unpublished guideline was to leading questions and “just put into
writing at that point. (Tr. 300-301.)
15 McCallum also testified that he had not seen any written cell phone policy before November 2018.
(Tr. 380.)
16 Although Wilson works at different plant, his plant is part of the same bargaining unit and
implemented terms and conditions of employment.
17 McCallum also testified to what Beam said he told employees about the cell phone policy. McCallum
was not present when Beam told employees about the cell phone policy. I now find that the statement is
hearsay. McCallum was not present when Beam spoke to his employees and is submitted for the truth of
what Beam did and told his employees, making the statement classic hearsay. Even if the hearsay is
admissible, I cannot rely upon this self-serving statement as Respondent could have called Beam himself to
testify about what he told employees.
18 After testifying to “multiple incidents,” McCallum then testified that the temporary employee was
JD–23-20
16
and “surfing the web.” He did not know how long the temporary employee was on the phone. (Tr.
390-391.)
Other than Avery and the unnamed temporary employee, Respondent issued no other
discipline for cell phone use. (Tr. 253.) In January 2017, while driving a rubber tire loader,5
employee Cameron unbuckled his seat belt to answer his cell phone. The result was the loader
stopped suddenly, with Cameron smacking his head into the windshield. (Tr. 251-252; GC Exh.
11.) Cameron had no previous discipline. (Tr. 303.) He received a 2-day suspension and a final
written warning. Respondent issued to employees a reminder that, if talking on a cell phone while
operating equipment, the phone should be in the “hands free” mode. Respondent also posted 10
signed saying “hands free or stop.” (Tr. 205.) Barry testified, to a leading question, that he was
“not aware” that employees could use a hands-free mobile device while operating company
equipment within a plant; however, if driving rental cars, employees were expected to use phones
in a hands-free manner. (Tr. 303.)
15
Regarding returning to work after breaks, Wilson testified that employees did not need to
obtain supervisory approval for an additional break or unscheduled break, as long as it did not
interfere with the work. Barry testified that he was unaware of anyone receiving discipline for
taking an unscheduled break without notifying the supervisor. (Tr. 339.) McCallum testified that
he was not aware of anyone taking too long for breaks, nor anyone disciplined. (Tr. 397-398.) He 20
further testified that the supervisor is usually in the breakroom at the same time as employees
taking breaks because Supervisor Beam usually conducts a safety meeting before break. (Tr. 399.)
Respondent presented no additional examples of employees who were terminated for taking
extended breaks.
25
Respondent discussed one employee who received two last chance agreements. Employee
Thomas incurred a last chance agreement on October 14, 2016. In his first last chance agreement
Respondent documented that Thomas had a number of altercations involving verbal abusive and
threatening language plus productivity issues. This last chance letter stated Thomas would be
terminated immediately for a violation of the policies, rules, regulations or attendance policies, and 30
“[n]o further allowance will be made . . . .” (Tr. 245-256; GC Exh. 9.) In the second last chance
agreement, dated June 18, 2017, less than a year after Respondent gave Thomas the first last chance
agreement, Respondent noted that Thomas falsified records on truck weights: The documents
reflected the truck weights were beyond “the gross legal limit” and Thomas made the
documentation appear to be within the correct legal limits. Further, the trucks were between 433 35
and 2853 pounds overweight. (GC Exh. 10.) The second last chance agreement was not limited
to a 12-month period but for the duration of the employee’s employment with Respondent but was
limited to falsification of records. (Tr. 249; GC Exh. 10.) Other than Thomas, five others received
confidential agreements, with similar language about falsely entering truck weights appear to be
within the legal limits. Those letters threatened termination for any falsification of company 40
records for the duration of their employment, but not for other violations. (GC Exh. 13.)
Respondent maintained that it did not terminate Thomas in the second instance in which Thomas
falsified records of truck weights because other employees and supervisors were involved in
told to get off the phone once, and later was caught again. (Tr. 390.) I credit McCallum’s admission of
“multiple incidents” instead of the latter as McCallum appeared to be covering his tracks.
JD–23-20
17
falsification of weights and because Thomas had outstanding EEO claims. Respondent had no
examples of terminating employees for falsification of records in its Alabama facilities. (Tr. 326.)
IV. CREDIBILITY
5
A. General Counsel’s Witnesses
Avery testified that he had a good understanding of the collective bargaining agreement.
He also demonstrated an adequate understanding of the attendance policy and that he knew he
could be terminated for falsifying time records. (Tr. 78-79, 106; R. Exh. 1.) He testified 10
consistently that he thought he was supposed to cooperate with the government call. I find credible
Avery’s statements that he had no written notice of the upcoming unemployment hearing.
Certainly Respondent could have checked with the unemployment office or its third party
representative for such information, but did not present any efforts to obtain any information other
than receiving the transcript after the termination.19 I therefore discredit Respondent’s assumptions 15
that Avery received a written notice before the unemployment hearing or that Avery had advance
notice.
Avery credibly testified that, at the last-chance meeting in January 2018, when Avery
attended an arbitration hearing without a 7-day notice to Respondent, Barry told him that the 20
“higher ups” wanted him terminated. Barry, who attended the entire hearing, did not deny this
statement during his testimony. This statement is an admission against interest, not an opinion
protected by Section 8(c) as Respondent proposes, and I credit it fully.
Wilson testified as a current employee and is credited. He was forthright and testified 25
before his employer. Respondent contends he should be discredited because Wilson never worked
in the Montevallo plant and has no first-hand knowledge. (R. Br. at 21.) However, Wilson
exhibited familiarity on the stand. With his special perspective as union president for a bargaining
unit that includes Montevallo, I credit his testimony, particularly regarding Respondent’s practices
across the bargaining unit. 30
B. Respondent’s Witnesses
I generally discredit the testimony of Respondent’s witnesses unless it is an admission
against interest or corroborated by other reliable evidence. Throughout the hearing, Respondent 35
used leading questions for its witnesses during direct examination. A leading question is defined
as one phrased in such a way as to hint at the answer the witness should give.” United States v.
Cephus, 684 F.3d 703, 707 (7th Cir. 2012) (cite omitted). Leading questions should not be used
on direct examination except when the witness is called as a “hostile witness, an adverse party or
a witness identified with an adverse party. . .” Fed. R. Evid. 611(c)(2). 40
Respondent relied upon a number of leading questions for Barry, particularly about the
November 2018 cell phone policy publication. (Tr. 300.) I therefore give little weight to this
19 General Counsel contends that the portion of the transcript in which May was not sworn in is
impermissible hearsay. I do not rely upon that portion for the truth of the matter asserted but to show
Respondent’s tardy reliance upon it.
JD–23-20
18
testimony as Respondent’s earlier position statement during the investigation of the charge reflects
that no such policy existed. Barry testified that Avery was terminated for a 40-minute call, yet the
termination letter correctly states he only was on the call for 31 minutes and some of that time was
break time. Respondent’s reliance upon the 40-minute time is also misleading because, crediting
Avery’s explanation of when he went to break, it fails to subtract the 6 minutes remaining in 5
Avery’s break. Respondent states a supervisor normally is in the break room when employees are
taking their breaks and here provides no indication that a supervisor was not in the break room,
much less that the investigation revealed anything different than Avery’s explanation that he went
to the break room at 9:12 a.m.
10
Barry also testified that nothing in the attendance policy supported a no-call/no-show was
only valid for one year. (Tr. 306-307.) Barry also testified that the cell phone policy issued in
response to the unfair labor practice charge was merely a “reminder,” but was contradicted by
Respondent’s position statement, dated July 18, 2018, a month after Avery’s termination: No cell
phone policy existed. (GC Exh. 7 at 10.) Four months after Respondent provided this answer, it 15
shifted to issuing its written policy “reminder.” I therefore do not credit Respondent witnesses that
a cell phone policy existed before November 2018.
McCallum’s testimony was frequently generalized and sometimes incorrect. McCallum
testified that the water truck duties were added to the job description for the slurry operator. 20
However, this answer is inconsistent with the 2015 job description, which only states the slurry
operator performs other duties as assigned. (R Exh. 11; Tr. 401-402.) He shifted testimony about
the temporary employee, who was terminated for “multiple incidents” and then backtracked to only
two incidents. I therefore credit that the temporary employee incurred “multiple incidents” before
he was sent packing to the employment agency. He also generalized that employees were told to 25
get off their cell phones if caught. General Counsel correctly points out McCallum provided no
examples of who Respondent told to get off the phone. Again, Respondent did not call any
supervisor who could provide examples or corroborate his testimony. I therefore find that
McCallum’s generalized testimony about telling employees to get off their phones has little, if any,
weight.30
McCallum first testified that he did not consider union business to be personal business,
then testified that personal business during work hours is anything not work and included union
business in the category of personal business. (Tr. 392-393.) McCallum weakly denied that he
told Avery, during the suspension meeting, that he was suspended for conducting union business. 35
Further, McCallum’s denial is externally inconsistent with Berkes’ admissions about the
termination letter, in which she wrote a number of details because she believed Avery was
conducting union business. I credit Avery’s detailed discussion that McCallum told him he was
suspended because he was on union business.
40
A significant amount of Berkes’ direct examination testimony was to leading questions.
General Counsel objected repeatedly to the leading questions Respondent posed to Berkes, who
was not a hostile witness or adverse party. The record does not establish that these answers related
to undisputed preliminary matters or that Berkes’ memory was exhausted. Because a number of
these questions stated the answer and Berkes answered before an objection could be lodged or 45
before I could rule on the objection, the answers are entitled to “minimal weight.” Desert Cab,
JD–23-20
19
Inc. d/b/a ODS Chauffeured Transportation, 367 NLRB No. 87, slip op. at 1 (Feb. 8, 2019) fn. 1
(2019).
In one example, Berkes testified to the following:
5
Q: On June 1, 2018, did Avery participate in a telephone conference regarding
Willie May’s unemployment:
A: Yes.
10
Q. And did you receive an email with a screenshot of that telephone call?
A. Yes.
Q: And did that screen shot indicate that the telephone call lasted 31 minutes?15
A: Yes.
Q: Do you understand Avery’s break time to be between 9 to 9:15?
20
General Counsel objects as leading.
Judge: If you know. What are -----
A: Yes---9 to 9:15. 25
(Tr. 427-428.)
In another instance Respondent questioned Berkes about break times and what time the
unemployment call started, but did not ask whether Berkes knew what time the call ended. 30
Respondent then asked:
Q. So if my math is correct - - - and I’m not a mathematician but this
one seems pretty easy---it seems like the time from 9:12 to 9:52 which is when the
telephone call would’ve ended is 40 minutes; is that right?35
A: Yes.
(Tr. 428.)
40
In this example Berkes merely capitulated to the proposition presented by Respondent’s
counsel, which was leading and conclusionary. I therefore cannot credit it. Ajax Tool Works, Inc.,
257 NLRB 825, 826 fn. 2 (1981) enfd. 713 F.2d 1307 (7th Cir. 1983); Sheet Metal Workers Local
20, 253 NLRB 166, 168 (1980). Also see: Richfield Hospitality, Inc. as Managing Agent for
Kahler Hotels, LLC, 368 NLRB No. 44, slip op. at 15 fn. 16 (2019) (testimony to direct questions 45
that have broad hints and suggestions about answers or answers are not credible); Woodline Motor
Freight, Inc., 305 NLRB 6 (1991), affd. 972 F.2d 222 (8th Cir. 1992).
JD–23-20
20
Berkes denied that Respondent’s clock in/clock out policy was limited to when employees
leave the facility. Then she hedged: “It’s not only, I guess.” (Tr. 448.) The policy actually limits
clocking out when an employee leaves the facility. (Tr. 449-450; R. Exh. 5 at 29.)
5
Berkes also testified that she participated in the telephone conference call in which
Respondent determined to terminate Avery. However, Berkes could not recall if the group
discussed whether Avery was serving as a union representative or as a witness in the employment
hearing; she then denied that that the group considered Avery’s role in deciding to terminate him.
(Tr. 452-453.) McCallum also testified vaguely about the meeting and took no notes. He could 10
not recall who attended the meeting. Berkes’ own testimony about Avery’s termination letter
undermines those contentions.
Berkes admitted drafting the termination letter, which cites Avery’s role in the
unemployment hearing. (Tr. 453.) Berkes’ testimony indicates that at a number of junctures in 15
the letter, Respondent considered Avery’s activity in the hearing was union activity. (Tr. 475-478.)
Therefore, it is difficult to believe Berkes’ testimony that the group meeting did not consider
Avery’s role at the unemployment hearing.
In addition, Berkes’ admissions about the information included in the termination letter are 20
externally inconsistent with Barry’s testimony about Avery’s role in the unemployment hearing.
Berkes admits that she included the statements due to Avery’s union activity, but Barry testified
Avery’s role in the hearing, whether as a witness or representative, made no difference. Barry’s
testimony therefore is not credited as to the significance of Avery’s role in the hearing.
25
Lastly, Respondent did not explain why it did not call two potentially favorable witnesses,
which may create an adverse inference. Michael Cetta, Inc. d/b/a Sparks Rest., 366 NLRB No. 97,
slip op. at 9-10 (May 24, 2018). Respondent did not call Supervisor Beam to testify about practices
in his area. Nor did Respondent call Supervisor Hemphill as a witness to when Avery was at break
on the day of the unemployment hearing. As discussed further in the Analysis section, several 30
adverse inferences arise from these failures.
V. ANALYSIS
This section will explore whether Respondent unlawfully terminated Avery under different 35
theories. I first examine the alleged disciplinary actions for protected concerted activity and union
activities with shifting burdens of proof. I conclude with examination of whether Respondent
applied Section 16.3 of the applied terms and conditions to Avery in an overly broad manner.
A. Wright Line Applies to the Suspension and Termination Allegedly Due to Protected 40
Concerted Activity and Union Activity
1. Applicable law
Much of this case turns on whether Respondent had an unlawful motive to take the actions 45
described above. In mixed-motive situations for both protected concerted activity cases under
Section 8(a)(1) and those arising for possible anti-union animus under Section 8(a)(3), the standard
JD–23-20
21
applied is found in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Also see Tortillas Don Chavas, 361 NLRB 101 (2014) and
Signature Flight Support, 333 NLRB 1250 (2001). Under this framework, General Counsel must
prove by a preponderance of the direct and/or circumstantial evidence that the employee’s
protected concerted activity or union activity was a substantial or motivating factor in taking the5
adverse employment action, i.e., that a causal relationship existed between that activity and the
adverse action. This inquiry includes establishing that the employee engaged in protected
concerted and/or union activity, that the employer knew or suspected it, and that the employer had
animus against such activity. If General Counsel makes a sufficient showing of causation, the
burden shifts to the employer to establish by a preponderance of the evidence that even absent the 10
protected concerted activity or union activity. Tschiggfrie Properties, Ltd., 368 NLRB No. 120,
slip op. at 5–8 (2019).20
An employer does not satisfy its burden merely by stating a legitimate reason for the action
taken, but instead must persuade by a preponderance of the credible evidence that it would have 15
taken the same action in the absence of the protected conduct. Manno Electric, Inc., 321 NLRB
278, 280 fn. 12 (1996); T & J Trucking Co., 316 NLRB 771 (1995). If the employer's reasons are
found to be pretextual--reasons that are false or not in fact relied upon-- the employer fails to
sustain its burden and the inquiry is terminated. See, e.g., Lucky Cab Co., 360 NLRB 271, 275-276
(2014) (“finding of pretext defeats an employer's attempt to meet its rebuttal burden”); Servicios 20
Sanitarios De Puerto Rico d/b/a A-1 Portable Toilet Servs., 321 NLRB 800, 804 (1996); Caruso
& Ciresi, Inc., 269 NLRB 265, 268 (1984). When pretext is found to be the case, dual motive no
longer exists. La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002).
2. Protected concerted activity and union activity25
In assessing whether Avery was terminated for protected concerted activity, I first explore
whether the activity was concerted and protected. I examine whether Respondent had knowledge
and animus. Finding that General Counsel presented a prima facie case, I then explore whether
Respondent meets in burden to rebut General Counsel’s prima facie case. 30
a. Avery’s participation in the unemployment hearing was protected
concerted activity
i. General principles of protected concerted activity35
Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.
Section 7 guarantees employees the right to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted 40
activities for the purpose of collective bargaining or other mutual aid or protection. Section 7
20 General Counsel and the Union suggest that an alternative route is found in NLRB v. Burnup & Sims,
Inc., 379 U.S. 21 (1964). The standard, in part, requires finding of employer’s good faith and a showing
that misconduct never occurred. Because Respondent relies upon a number of reasons for terminating
Avery and I do not find that Respondent’s reasons are based upon good faith, I do not analyze the facts
under Burnup & Sims.
JD–23-20
22
protects the right of employees to “seek to improve working conditions through resort to . . .
channels outside the immediate employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565-566 (1978).
Activity is “concerted” if it is engaged in with or on behalf of other employees, and not 5
solely by and on behalf of the employee. Meyers Industries (Meyers I), 268 NLRB 493 (1984),
remanded sub nom Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), on remand Meyers Industries
(Meyers II), 281 NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). Concerted activity includes “where individual employees seek
to initiate or to induce or to prepare for group action, as well as individual employees bringing 10
truly group complaints to the attention of management.” Meyers II, 281 NLRB at 887. See also
Phillips Petroleum Co., 339 NLRB 916, 918 (2003); and Whittaker Corp., 289 NLRB 933 (1988).
Notably, the requirement that activity must be engaged in with the object of initiating or inducing
group action does not disqualify merely preliminary discussion from protection under Section 7.
Inasmuch as almost any concerted activity for mutual aid or protection starts with some kind of 15
communication between individuals, it would come very near to nullifying the rights of
organization and collective bargaining guaranteed by Section 7 of the Act if such communications
are denied protection because of lack of fruition. Mushroom Transportation Co. v. NLRB, 330 F.2d
683, 685 (3d Cir. 1964).
20
In examining the matter before us, I first discuss whether a former employee is an employee
under the Act. Finding that the former employee is an employee, I next discuss that employee
involvement in an unemployment hearing is a protected concerted activity.
ii. Status of the former employee25
A former employee involved in a dispute relating to former employment remains an
employee pursuant to Section 2(3) of the Act. MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort
& Casino, 365 NLRB No. 76, slip op. at 1 fn. 1 (2017);21 Andronaco Industries, Inc., 364 NLRB
No. 142, slip op. at 12 (2016) and cases cited therein. Section 2(3) defines an employee as 30
[A]ny employee, and shall not be limited to employees of a particular employer,
unless this Act explicitly states otherwise, and shall include any individual whose
work has ceased as a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice . . . . 35
The principle that “members of the working class generally” are statutory employees is not
a novel one. Thomas Steel Co., 281 NLRB 389, 392 (1986); Little Rock Crate & Basket Co., 227
NLRB 1406, 1406 and fn. 4 (1977), citing Briggs Mfg Co., 75 NLRB 569, 570, 571 (1947) and in
accord with Oak Apparel, Inc., 218 NLRB 701 (1975). The purposes of the “broad definition” 40
include promoting freedom of association, as stated in Section 1 of the Act, and mutual aid and
protection in Section 7 of the Act. Ellen Dannin, Not a Limited, Confined or Private Matter ---
21 Chairman Miscimarra concurred that the former employee remained an employee as defined in the
Act. Grand Sierra, supra, slip op. at 3 and fn. 2, citing Briggs Mfg. Co., 75 NLRB 569, 570-571 (1947) and
Eastex, Inc. v. NLRB, 437 U.S. 556, 564 (1978).
JD–23-20
23
Who is an “Employee” Under the National Labor Relations Act, 59 LAB. LAW J. Vol. 1, available
in Westlaw, 2008 WL 10920315 (March 2008). May, the former employee, remained an employee
as defined because he had a labor dispute over unemployment compensation, which relates to one’s
employment and is an aspect of national labor policy. Supreme Optical Co., Inc., 235 NLRB 1432,
1432 (1978), enfd. 628 F.2d 1262 (6th Cir. 1980), cert. denied 451 U.S. 937 (1981).225
iii. Participation in an unemployment hearing is protected concerted
activity
“Employees are not protected merely for activities within the scope of their employment 10
relationship and may engage in other activities for mutual aid or protection.” Andronaco
Industries, 364 NLRB No. 142, slip op. at 12. The “mutual aid or protection” portion of Section 7
permits employees to improve working conditions by seeking assistance through administrative
channels. Eastex, supra. Unemployment hearings are included in those administrative channels.
15
Participation in unemployment hearings on behalf of a terminated employee is a concerted
activity. M K Laboratories, Inc., 261 NLRB 152, 158 (1982). The Board reiterated, “‘[I]t is
traditional for employees to help each other and make common cause so that each one of them
assures himself, in case his turn ever comes, of the support of the one whom they are all then
helping.’” Supreme Optical, 235 NLRB at 1433, citing Washington Forge, Inc., 188 NLRB 90, 20
97 (1971). In NLRB v. Faulkner Hospital, 691 F.2d 51, 54-55 (1st Cir. 1982), enfg. 259 NLRB
364 (1981), an on-duty guard, without leaving his post, gave a statement to a terminated employee
for use in an unemployment compensation hearing, which was protected concerted activity.
Here, former employee May reached out to Avery, a fellow employee, through the 25
governmental office, to assist with the unemployment hearing. Avery’s presence in the telephonic
hearing is lawful protected concerted activity in support of a former employee.
b. Knowledge
30
McCallum testified that Avery was known to be a strong advocate on behalf of the Union.
Barry and Berkes had numerous dealings with Avery, including negotiations, arbitrations and
grievances.
For this particular call, knowledge of the protected concerted activity and union activity are35
evident and undisputed. Barry was on the unemployment hearing call when Avery appeared on
behalf of May. Berkes and McCallum both stated Avery was involved in union activity on the
call.
40
22 The Sixth Circuit found that this situation, in which the employer gave permission for employees to
attend the unemployment hearing and rescinded permission after they attended, “had a sufficiently close
nexus to the terms and conditions of employment to be ‘protected concerted activity.’” Supreme Optical
Co., Inc. v. NLRB, 628 F.2d at 1263.
JD–23-20
24
c. Animus
Proof of animus and discriminatory motivation may be based upon direct evidence or
inferred from circumstantial evidence. Robert Orr/Sysco Food Services, LLC, 343 NLRB 1183,
1184 (2004); Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428-1429 (11th Cir. 1985). 5
Regarding direct evidence, Berkes admitted she drafted portions of the termination letter because
Respondent believed Avery engaged in union activity. The credited evidence also finds McCallum
told Avery that he was suspended due to his union activity. These statements alone are
“independently sufficient to demonstrate unlawful discrimination.” See Tito Contractors, Inc.,
366 NLRB No. 47, slip op. at 4 (2018), enfd. 774 Fed. Appx. 4 (D.C. Cir. 2019) (respondent 10
employer’s statements and actions reveal true reasons). However, additional factors demonstrate
animus.
This situation is unusual because direct evidence is available. As Respondent presents
additional defenses and because direct evidence of unlawful motivation is seldom available, 15
General Counsel may rely upon circumstantial evidence to meet the burden. See Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999). Factors supporting an inference of anti-union motivation
include employer hostility towards unionization, timing of the adverse action in relation to union
activity, the employer’s reliance on pretextual reasons to justify adverse action and deviations from
past practice. Roemer Industries, Inc., 367 NLRB No. 133, slip op. at 16 (2019). A number of 20
these factors examined here.
i. Expressions of hostility towards union activities
Certain expressions can support a finding of animus. Advanced Masonry Associates, LLC 25
v. NLRB, 781 Fed. Appx. 946 (11th Cir. 2019), enfg. 366 NLRB No. 57 (2018) and 366 NLRB
No. 164 (2018). In addition to the direct statements as evidence of animus found above, Berkes
also verbalized to Avery that he engaged in the same conduct as when he attended the January
2018 arbitration hearing, which implies that he was engaged in union activity. With the January
2018 discipline, Barry undisputedly told Avery that the “higher ups” wanted him terminated for 30
the contractual violation. These statements indicate more animus.

ii. Evidence of animus outside the 10(b) period
Respondent contends that the its disciplinary actions, occurring before termination, cannot 35
be considered because they are new allegations and barred by Section 10(b). (R. Br. 14, fn. 12.)
On the contrary: Actions that do not violate the Act, although not independently alleged, may be
used to establish union animus. American Packaging Corp., 311 NLRB 482 fn. 1 (1993). Incidents
that occur before the six-month 10(b) period may still serve as evidence of animus. SCA Tissue
North Am., LLC, 338 NLRB 1130, 1135-1136 (2003), enfd. 371 F.3d 983 (7th Cir. 2004); Jack in 40
the Box Distribution Center Systems, 339 NLRB 40, 52 (2003).
One instance is that both Avery and Wilson discussed Barry’s statements about filing a
charge, which is general proof of animus. However, more specifically, Barry’s admission against
interest that the “higher ups” wanted Avery terminated in January 2018 also demonstrates animus. 45
JD–23-20
25
iii. Incomplete investigation
A “truncated” investigation provides evidence of unlawful animus. Mondelez Global, LLC,
368 NLRB No. 46, slip op. at 2 (2020). Respondent contends it did not have an obligation to
investigate Avery’s actions and it would not have resulted in a different outcome. (R Br. at 16.) 5
Factually Respondent admittedly did not know whether Avery was not at work while taking the
governmental call and used that as a springboard for the remainder of its actions.
Respondent’s lack of documentation of its investigation is questionable. Neither Berkes
nor McCallum took notes. Berkes prepared a summary, which was not presented at hearing. It 10
did not have the unemployment hearing transcript in hand before it decided to terminate Avery,
yet relied upon that information at hearing. Additionally, “Human Resources” directed McCallum
to determine whether Avery alerted anyone about the call ahead of time. McCallum and Berkes
only spoke with Avery and did not check with any supervisors. None of the participants in the
group management call allegedly took any notes. Only Respondent’s termination letter 15
conveniently represents Respondent’s findings in the investigation; even then, Berkes’s testimony
was needed to explain Respondent’s rationale for terminating Avery.
Respondent admits that it failed to question supervisors during the investigation itself,
which shows an incomplete investigation. First, Respondent never questioned Supervisor 20
Hemphill about Avery’s break that morning and whether his break affected his work. Cordua
Restaurants, Inc., 368 NLRB No. 43, slip op. at 23 (2019) (failure to question supervisor who
could exonerate employee shows lack of concern about investigation). Secondly, Respondent
never questioned Supervisor Beam at hearing about the break and cell phone practices in his area
and instead relied upon hearsay evidence. Failure to call these supervisors to testify to such matters 25
creates an adverse inference that they would testify contrary to Respondent’s position.
Presuming evidence of misconduct does not render Respondent’s actions lawful. Kidde,
Inc., 294 NLRB 840, 840 fn. 3 (1989); Champion Parts Rebuilders, Inc., Northeast Div., 260
NLRB 731 fn. 1 (1982), enfd. in rel. part, 717 F.2d 845 (3d Cir. 1983).23 Respondent’s 30
investigation assumed that Avery received some written notice about the unemployment hearing.
It also presumed that Avery had some notice about when he would receive a call from the
unemployment office. None of these assumptions are supported in the record. Respondent also
relies upon the unemployment hearing transcript to show that Avery had knowledge of the
upcoming call. The section it relies upon is before Barry and Respondent’s representative were 35
included in the telephonic unemployment hearing. (R. Exh. 8 at 2-4.) Because Respondent did
not have the transcript when it terminated Avery, it does not prove it knew about May’s statements
about Avery’s involvement or could have relied upon this information when it terminated Avery.
Berkes admitted she did not read the entire transcript even when she received it. As Respondent
relies upon information that was unavailable prior to discharge, it cannot rely upon it now to justify 40
its actions at that time.24 As Respondent’s actions are based upon speculation, I find them
unreliable. J-H Rutter-Rex Mfg. Co., 206 NLRB 656 fn. 2 (1983) (not crediting speculations).
23 Also see Continental Radiator Corp., 283 NLRB 234, 250 and fn. 35 (1987) (not bothering to warn
employee is evidence of unlawful motive).
24 General Counsel argues that the portion of the unemployment hearing transcript before the witnesses
JD–23-20
26
Respondent admittedly relied upon Section 16.3 of the implemented terms and conditions
that Avery had to give previous written notice to Respondent. However, the plain meaning of that
section is specific to what is included. It does not include a protected concerted activity like
participation in unemployment hearings on behalf of a terminated employee. When Respondent 5
investigates alleged misconduct, it cannot change the implemented terms and conditions to suit its
needs. Respondent mistakenly relied upon Section 16.3 to warrant Avery’s suspension and
termination.

iv. Shifting explanations10
Respondent shifted regarding how long Avery was involved in the unemployment call and
its application of the cell phone policy.
Respondent shifted explanations about why the first no call/no show discipline did not fall 15
off Avery’s disciplinary record after 1 year. The disciplinary process in the attendance policy
offers termination when the employee incurs another half or full occurrence in a 12-month period.
Although Avery did not incur another point for over a year after his 2017 no call/no show, over a
year later Respondent required Avery to sign a last chance agreement in order to retain his job or
face “voluntary resignation.” It did not allow the prior discipline to “fall off” after 1 year, as the 20
absenteeism policy dictates. Respondent did not present any information that shows it
administered its absenteeism policy in such a way that it did not make exceptions.
Respondent contends that Avery went to break at 9:00 a.m. and therefore spent 37 minutes
on the call. (R. Br. at 7.) Later, citing the termination letter, Respondent maintains Avery should 25
have been working for 30 minutes. McCallum testified that one of the reasons for terminating
Avery, discussed in the call apparently, was that Avery was in a personal call for 31 minutes. The
time of 31 minutes matches the amount of time of the call listed on Avery’s phone; however, it
does not account for time during which Avery was on break. As noted above, Respondent provided
no supervisor testimony to contradict Avery’s testimony about when he went to break, and I 30
credited Avery’s statement that he went on break at 9:12 a.m. According to McCallum’s testimony
and parts of Respondent’s brief, Respondent relied upon the incorrect amount of time Avery was
not working. Respondent therefore shifts the amount of time Avery spent on the call. Also of
import here was that McCallum admitted he could have changed Avery’s time but declined to do
so. 35
Respondent further contends that Avery violated its cell phone policy. Its position paper,
however, denied the existence of a cell phone policy. It belatedly issues a written cell phone policy
approximately 5 months after Avery’s discharge and in response “to unfair labor practice charges.”
Such action is closing the barn door after the cows are out to pasture and demonstrates 40
Respondent’s shifting positions.
were sworn in is hearsay, making it unreliable and inadmissible. I agree the transcript cannot be used for
hearsay purposes. That portion of the transcript is relevant and admissible only to the extent that it
demonstrates Respondent’s belated reliance upon the transcript for its disciplinary actions against Avery.
JD–23-20
27
v. Timing
Animus can be inferred from the relatively close timing between an employee's protected
concerted activity and his discipline. Corn Bros., Inc., 262 NLRB 320, 325 (1982) (timing of
discharge within a week of union organizing meeting evidence of antiunion animus); Sears 5
Roebuck & Co., 337 NLRB 443, 451 (2002) (timing of discharge, several weeks after employer
learned of protected concerted activities, indicative of retaliatory motive); La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002) (timing of discipline imposed 4 months after service on bargaining
team and ULP hearing appeared suspect). Timing here is undeniable: Respondent started the
investigation into Avery’s conduct based upon his attendance in the unemployment hearing, 10
believing he was engaged in union activity and knowing he was representing an employee. When
on the telephone line with Avery, Barry did not ask whether Avery was at work.
vi. Disparate treatment
15
Respondent maintains no evidence of disparate treatment exists. For example, Respondent
argues it did not discipline employee Wilson, who is currently the union president. “[A]n
employer’s failure to take adverse action against all union supporters, or employees who engaged
in other protected activity, does not disprove discriminatory motive, otherwise established, for its
adverse action against a particular employee.” Tito Contractors, 366 NLRB No. 47, slip op. at 22, 20
citing: NLRB v. Nabors, 196 NLRB F.2d 272, 276 (5th Cir. 1952); Volair Contractors, Inc., 341
NLRB 673, 676 fn. 17 (2004); Master Security Services, 270 NLRB 543, 552 (1984). Thus,
Respondent’s restraint towards Wilson does not translate into a lack of animus. Several other
instances point to disparate treatment.
25
For one, Respondent relies upon McCallum’s testimony that Respondent returned a
temporary employee. McCallum’s credited testimony reflects “multiple offenses” of cell phone
use during working time, including surfing the web. Therefore, presuming that the temporary
employee was returned due to multiple offenses of cell phone use, Respondent comparatively
terminated Avery for a single incident. The temporary employee was given more chances than 30
Avery and McCallum did not know how long the temporary employee was using his cell phone.
Respondent therefore treated the union vice president talking with a government agency more
stringently than a temporary employee. Ozburn-Hessey Logistics, LLC, 362 NLRB 1532, 1549
(2015), enfd. 689 Fed. Appx. 639 (D.C. Cir. 2016) (others violated safety rules but not disciplined
similarly to union adherent). When an employer is otherwise lax about enforcement and targets a 35
union supporter, such as Avery, the employer has not neutrally applied its disciplinary rules.
Advanced Masonry Associates v. NLRB, 781 Fed. Appx. at 959.
Disparate enforcement of a policy also demonstrates animus. Mountain View Care and
Rehabilitation Center, LLC, 368 NLRB No. 128, slip op. at 1 fn. 1 (2019). Respondent suspended 40
employee Cameron after an accident in which Cameron unbuckled his seat belt to reach for his
personal cell phone while operating a loader. However, General Counsel correctly points out that
Cameron’s discipline was not for using the cell phone per se, but for using the cell phone while
operating equipment. (GC Br. at 12-13.)
45
Further, if the cell phone policy existed when Cameron received discipline, as Respondent
maintains, it failed to rely upon it to give Cameron discipline. Instead it posted signs that
JD–23-20
28
employees were permitted to use cell phones while operating equipment as long as it was “hands
free.” Now it applies the requirement to Avery. As Respondent’s admits the alleged “refresher”
on cell phones was due to the unfair labor practice charges, I find, in combination with the treatment
of Cameron and no other disciplinary actions, that Respondent disparately relies upon a cell phone
policy that did not exist at the time of Avery’s discharge. 5
An additional factor in the cell phone discipline is that when he saw employees on the
phone, McCallum generally stated he told them to get off the phone, without discipline.
Respondent does not demonstrate how long these employees were on the phone when McCallum
caught them. Barry instead permitted Avery to continue on the call without asking whether he was 10
off work, then instructed Berkes to find out that information.
Respondent contends that it does not show animus when compared to employee Thomas,
who was on a last chance agreement for poor production and other problems when it issued a
second last chance warning for falsification of information about weights for trucks. Respondent 15
excuses its failure to terminate Thomas for the falsification of truck weights because he filed
numerous EEOC charges and supervisors also had falsified weights. This situation is differentiated
from T.V. Cable of Savannah, 218 NLRB 838, 840 (1975): The complaint there was dismissed
because the employer consistently terminated employees for falsifications of records, compared to
here, where Respondent did not.20
Respondent also argues that Avery violated more rules than Thomas. However, the
comparison is not accurate: Respondent’s reasoning omits what it admitted in the letter to Thomas
and the others: The weights the employees falsified went beyond the “legal” limits. Falsification
of truck weight documentation not only violates Respondent’s code of conduct, it also violates25
reporting requirements for truck weights under state and possibly federal statutes. See, e.g.: 23
USC § 127 regarding vehicle weight limitations on interstate highways; Ala. Code § 32-9-20(a)(4)
(1975), describing state weight limitations. Thomas violated the legal documentation requirements
at least twice. (GC Exh. 10; compare GC Exh. 13.)
30
With Thomas and the supervisors, Respondent gave lesser discipline for conduct unlawful
under state and/or federal statutes. Because these offenses violated both Respondent’s code of
conduct and were unlawful, Thomas’s conduct was more grievous than Avery’s yet Respondent
chose to suspend and terminate Avery. In this light, Respondent disparately treated Avery.
35
d. Pretext
Respondent must show it would have taken the same action for legitimate reasons even in
the absence of protected activity. Roemer Industries, Inc., 367 NLRB No. 133, slip op. at 17. “. .
. [A] finding of pretext necessarily means that the reasons advanced by the employer either did 40
not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive
established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). When pretext is found, dual motive no longer exists. La Gloria Oil,
337 NLRB at 1124. When General Counsel makes a strong showing of discriminatory motive,
Respondent’s rebuttal burden “is substantial.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 45
936 (D.C. Cir. 2011), enfg. 355 NLRB 1319 (2010).
JD–23-20
29
General Counsel made a strong showing of discriminatory motive with direct and
circumstantial evidence. A number of factors discussed as animus also demonstrate that
Respondent’s reasons are pretextual. An employer does not prove a Wright Line defense when the
terminated employee has a clean record and long tenure with the employer but treats other
employees with similar violations or worse with more leniency. SCA Tissue North America LLC 5
v. NLRB, 371 F.3d 983, 990-991. Until 2017, Avery had a clean record. Despite its own policies,
Respondent carried over the 2017 no-show discipline past 1 year and issued a last chance
agreement. Thomas, who did not have a clean record when he falsified weight records, was treated
more leniently by giving him an additional chance. Respondent disparately treated Avery
regarding falsification of records. Respondent’s lax treatment of Thomas and others are particularly 10
compelling compared to the unlawful falsifications of truck weight records. Respondent’s
treatment and failure to give “clear, consistent and credible explanation for discipline supports a
finding of pretext.” Airgas USA, LLC v. NLRB, 916 F.3d 555, 565-566 (6th Cir. 2019) (internal
quotes and cites omitted), enfg. 366 NLRB No. 104 (2018) and cases cited therein.
15
“[L]ack of an objective and complete investigation is circumstantial evidence of pretext.”
St. Paul Park Refining Co., LLC. d/b/a Western Refining, 366 NLRB No. 83, (2018), enfd. 929
F.3d 610 reh’g and reh’g en banc denied (8th Cir. 2019) (citing Woodlands Health Center, 325
NLRB 351, 364-365 (1998) and Sheraton Hotel Waterbury, 312 NLRB 304, 322 (1993)). As
described above, the investigation was incomplete and serves as evidence of pretext.20
Shifting explanations for Respondent’s actions are strong evidence that Respondent’s
asserted reasons are pretextual. Roemer Industries, supra; also see E.C. Waste, Inc. v. NLRB, 359
F.3d 36, 44 (1st Cir. 2004), enfg. 399 NLRB 252 (2003) (shifting explanations for discharge may
serve to ground or reinforce a finding of pretext). Respondent’s explanations at hearing for much 25
of the termination letter are not about falsification of time records, but about performing perceived
union activities after his break time. In other words, they “furnished the excuse rather than the
reason for the discharge.” SCA Tissue, 371 F.3d 991-992 (internal quotation marks and citation
omitted). In these circumstances, Respondent cannot rely upon the violation of the falsification of
time records when it is a pretext to discipline Avery for his union and protected concerted activities. 30
Southwire Co. v. NLRB, 820 F.2d 453, 459 (D.C. Cir. 1987).
The lack of a cell phone policy at the time of Avery’s suspension and discharge is
problematic for Respondent’s rebuttal burden and actually weakens its argument. Bally’s Park
Place, Inc., 646 F.3d at 936, citing Ross Stores Inc. v. NLRB, 235 F.3d 669, 675 (D.C. Cir. 2001). 35
While having a written rule is not required, Respondent’s reliance upon a cell phone policy before
November 2018 is suspect for the reasons discussed above. NLRB v. Spotlight Co., 440 F.2d 928,
933 (8th Cir. 1971), enfg. in rel. part 181 NLRB 641 (1970).
These explanations show that the reasons given for Respondent’s actions are pretextual and 40
Respondent did not meet its substantial rebuttal burden. Respondent fails to show it would have
taken the same action for the reasons, absent the protected conduct. The next portion of the Wright
Line analysis is unnecessary. Flex-N-Gate Texas, LLC, 358 NLRB 622, 633 (2012); La Gloria,
supra.
45
JD–23-20
30
3. Conclusion regarding protected concerted activity and alleged 8(a)(1) violation
Section 8(a)(1) is violated when an employer disciplines or discharges and employee
because the employee is engaged in, or believed to have engaged in, concerted activity for the
purpose of mutual aid or protection. Marburn Academy, Inc., 368 NLRB No. 38, slip op. at 105
(2019). The employee’s protected conduct does not need to be the sole motivating factor, only “a
substantial or motivating factor.” Adams & Associates, Inc. v. NLRB, 871 F.3d 358, 370 (5th Cir.
2017). The right of an employee to attend an unemployment hearing is balanced against the
employer’s interest in efficiently operating the business. M K Laboratories, 261 NLRB at 158,
citing Supreme Optical, supra, at fn. 9. Respondent suspended and disciplined Avery with 10
knowledge of his participation in the unemployment hearing. Avery’s participation in the call is
protected concerted activity. Respondent acted because of Avery’s participation. Avery does not
deny that he spent some time after his break on the call. As shown above, Respondent’s actions
and explanations demonstrate animus as well as pretext.
15
General Counsel has demonstrated the elements of protected concerted activity and
Respondent’s knowledge. The record supports a finding of animus for a number of reasons. Many
of the factors supporting animus also support a finding of pretext. Cordua, supra, slip op. at 24.
Similarly, in NLRB v. Faulkner Hospital, 691 F.2d at 56, the employer terminated the guard for a
number of stated reasons, which included leaving his post without authorization to do so while 20
giving a statement for an unemployment hearing. The evidence showed, however, that other
guards left duty stations for personal matters longer than the 8-10 minutes in which the terminated
guard remained at his post and the other guards were not disciplined or terminated. Id;25 see also
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers,
AFL-CIO v. NLRB, 127 F.3d 1300, 1308 (11th Cir. 1997), enfg. in rel. part sub nom. H.B. Zachry 25
Co., 319 NLRB 967 (1995) (treating union supporter disparately for breaks). Here, Avery was at
his post. Wilson and Avery testified about break times and increased allotments for breaks.
Because Respondent did not question the supervisors about Avery’s break or whether he was at
his post, Avery’s testimony is uncontradicted. Respondent does not demonstrate that Avery’s
participation affected production. In particular, Respondent did not present the supervisor who 30
would have known whether Avery was supposed to be working on certain projects. M K
Laboratories, supra. I find that Respondent treated Avery differently for this particular break
because he was engaged in protected concerted activity during an unemployment hearing.
Respondent relies heavily upon Vokas Provision Co. v. NLRB, 796 F.2d 864 (6th Cir. 1986). 35
However, that case is differentiated upon its facts. The employer was charged, inter alia, with a
Section 8(a)(3) violation after it terminated 6 employees who wanted to attend a representation
case hearing pre-conference. The employer employed 12 employees. The 6 employees had
expectations of receiving subpoenas at the hearing the following day but did not have them at the
time they advised the employer. The employer asked to see the subpoenas before excusing the 40
employees. Because no employee had a subpoena in hand, the employer stated it would allow one
employee to attend as a representative but could not allow all 6 to attend without subpoenas. On
the morning of the pre-conference, the employer reiterated his request and told the 6 employees
that he would terminate them for insubordination if they left without presenting the subpoenas. Id.
25 Also see Loyalhanna Health Care Associates, 332 NLRB 933, 941 (2000) regarding animus towards
an employee’s participation in an unemployment hearing.
JD–23-20
31
at 866-867. The employer terminated the employees. The court stated the employer did not violate
Section 8(a)(3) because the meeting was an informal conference at which attendance was not
required. Id. at 871. Citing NLRB v. Mylan-Sparta Co., 166 F.2d 485, 491 (6th Cir. 1948), the
court further noted that the employees’ attendance was not shown to be necessary, advisable or
that the information could not have been obtained either through correspondence or telephone 5
conversation. Vokas, 796 F.2d at 871.
Vokas is distinguished on a number of levels. Avery absented himself from work for 25
minutes as opposed to an entire day. Additionally, Avery’s actions are not similar to the 50 percent
of the work force in Vokas that took off for an entire day: In Vokas, half the work force leaving 10
would have a significant effect upon an employer’s interest in operating the business efficiently.
Respondent provides no proof that Avery’s actions actually affected his working duties that day
and instead surmises what Avery could have been doing in that time. Thirdly, Avery’s call was a
direct request from a government agency whether he could participate on behalf of employee May.
Lastly, the court in Vokas stated that the information or attendance could not have been obtained 15
through correspondence or a telephone conversation. Avery participated by telephone, which is
what Vokas prescribed.
Avery’s participation in protected concerted activity on the phone unemployment hearing
is a reason on which Respondent determined to suspend and discipline him. Therefore, I find that 20
Respondent violated Section 8(a)(1) when it suspended and discharged Avery for his participation
in the unemployment hearing call.
4. Conclusion regarding union activity and alleged 8(a)(3) violation
25
An employer may discipline pro-union employees or other engaged in protected activities
so long as the employer has not engaged in the conduct with anti-union animus. E.C. Waste, Inc,
359 F.3d at 41-42. In addition to the circumstantial evidence, animus is strongly established by
Berkes’ admissions against interests that Avery was engaged in union activity and reinforced with
disparate treatment and pretext. McCallum’s statement that he was suspended for union activity 30
also demonstrates animus. Disparate enforcement of policies, even presuming they exist,
demonstrate animus. Mountain View Care Center, supra.
The situation is similar to Ryder Truck Rental v. NLRB, 401 F.3d 815, 826-287 (7th Cir.
2005), enfg. 341 NLRB 761 (2004). There the employer terminated an employee for falsification 35
of a preventive maintenance report. Like here, the employee admitted to the alleged violation.
Like here, the employee was a leading union activist and the employer had knowledge of his
activities. Like here, the employer never terminated anyone for falsification of a report. Indeed, it
appears that here, like in Ryder, the supervisors were complicit in falsification of records. To
paraphrase the court, Respondent used Avery’s actions as an excuse rather than the actual reason. 40
401 F.3d at 837. Respondent therefore violated Section 8(a)(3) and (1) by suspended and
terminated Avery.
45
JD–23-20
32
B. Respondent’s Use of Section 16.3 to Avery’s Suspension and Termination
1. Applicable law
An employer violates Section 8(a)(1) if it maintains workplaces rules that would reasonably 5
tend to chill employees in the exercise of their Section 7 rights. See Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If an employer applies a rule to restrict
the exercise of Section 7 rights, the application of the rule violates Section 8(a)(1) of the Act.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 fn. 4 (2004) (in third prong of test,
disparate enforcement of rule against union or other protected concerted activity violates the Act). 10
Any ambiguity in the rules must be construed against the drafter. T-Mobile USA, 369 NLRB No.
50, slip op. at 14 (2020).
2. Respondent overbroadly applied Section 16.3 to Avery’s activities
15
Respondent argues that Avery’s violation exists regardless of whether his activity was
union activity, but in the same sentence states it “bears on whether he had advance notice and his
compliance with Section 16.3 of the CBA.” (R.Br. at 13.)
Respondent’s implemented rule specifies the types of activities that a union official must 20
provide a week’s notice and is subject to Respondent’s approval based upon operating needs. The
testimony makes it clear that Respondent applied Section 16.3 to Avery’s participation in the
unemployment hearing, presuming that his activity was union activity. Section 16.3 does not
include participation in unemployment hearings or other governmental activity as part of the union
activities that require a week’s notice. 25
Giving the rule its plain meaning, Section 16.3’s terms specifies what union events are
included and an unemployment hearing is not one of them. As Respondent drafted the rule and
implemented it over the Union’s objections, it cannot now complain that the rule should cover
governmental hearings, such as an unemployment hearing. Respondent discriminatorily applied 30
Section 16.3 due to Respondent’s perceived belief that Avery engaged in union activity with his
participation in the unemployment hearing.
Respondent argues that the parties agreed to Section 16.3 in a collective-bargaining
agreement in 2019. (R. Br. at 19.) Respondent contends that Section 16.3 was “lawfully negotiated 35
between the Company and the Union . . . . Notably, Section 16.3 of the prior CBA also required
one week’s advance notice for employees to attend meetings. (R. Ex. 10).26 The current CBA
merely added specific types of meetings which the provision already covered.” (R. Br. at 4 fn. 5.)
This contention does not help Respondent’s analysis.
40
The “collective-bargaining agreement” at the time of these events was the implemented
terms and conditions. The record shows that the Union opposed Section 16.3. Respondent’s
contention that the implemented terms and conditions applied here is limited to the plain language
26 In support of its proposition that the Union could not complain about the terms and conditions now,
Respondent cites NLRB v. US Postal Service, 8 F.3d 832 (D.C. Cir. 1993). That case involves alleged
Section 8(a)(5) violations.
JD–23-20
33
of that provision, which does not include governmental meetings on the phone. Section 16.3 and
the implemented terms and condition do not Respondent license to add more types of meetings in
response to union activity or protected concerted activity.
Respondent alternatively argues that the unscheduled absence rules are present so that 5
Respondent has ample time to find a replacement. (R.Br. at 19.) Respondent’s reasons are
unavailing because it had no need for a replacement on the day of May’s unemployment hearing
and during Avery’s participation.
I therefore find that Respondent unlawfully suspended and terminated Avery when it over 10
broadly applied Section 16.3 to Avery’s participation in the unemployment hearing. See generally
American Tara Corp., 242 NLRB 1430, 1244-1245 (1989) (non-existent policy applied to
terminate union adherent found unlawful).
C. Respondent’s Additional Affirmative Defenses15
Respondent’s Answer puts forth several additional affirmative defenses, which are
unsupported by the record. However, I specifically address whether the charges fell within the 6-
month statute of limitations. Section 10(b) does not bar an otherwise untimely complaint allegation
if the allegedly unlawful conduct occurred within 6 months of a timely-filed charge and is closely 20
related to the allegations in that charge. Charter Communications, LLC, 366 NLRB No. 46, slip
op. at 2 (2018), citing Alternative Energy Applications, Inc., 361 NLRB 1203, 1203 (2014). To
determine if an otherwise untimely allegation is closely related to the timely charge, the Board
considers: (1) whether the otherwise untimely allegation and the allegations in the timely-filed
charge are of the same class, “i.e., whether the allegations involve the same legal theory and usually 25
the same section of the Act”; (2) whether the otherwise untimely allegation and the allegations in
the timely-filed charge arise from the same factual situation or sequence of events; and (3) whether
the respondent would raise the same or similar defenses to the otherwise untimely allegation and
the allegations in the timely-filed charge. Redd-I, Inc., 290 NLRB 1115, 1118 (1988). To
sufficiently plead a 10(b) defense, Respondent’s answer or statement at hearing must specify the 30
allegations it asserted were untimely. United Government Security Officers of America
International, 367 NLRB No. 5, slip op. at 1 fn. 1 (2018).
Respondent did not specify the complaint paragraphs subject to its affirmative defense.
(GC Exh. 1(i), Answer, Affirmative Defenses ¶¶2 and 3.) On that basis alone, Respondent does 35
not demonstrate a sufficient affirmative defense. Further, the Union’s charges were within the six-
month statute of limitations. On June 7, the same day Respondent suspended Avery, the Union
filed its initial charge. (GC Exh. 1(a).) The Union filed a first amended charge regarding Avery’s
termination on June 13, 2018, two days after Avery’s discharge. (GC Exh. 1(c).) The Union filed
a second amended charge, stating Respondent terminated and/or suspended Avery due to an overly 40
broad rule on October 1, only about 5 months after Avery’s suspension. (GC Exh. 1(e).) The time
elapsed is still within the six-month statute of limitations.
45
JD–23-20
34
CONCLUSIONS OF LAW
1. Respondent LHoist North America of Alabama, LLC, a Subsidiary of LHoist North
America (Respondent), is an employer within the meaning of Section 2(2), (6) and (7) of
the Act.5
2. Charging Party United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, Local 563 is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following are Respondent’s supervisors within the meaning of Section 2(11) of the Act
and/or agents within the meaning of Section 2(13) of the Act:10
a. Craig Gordinier Montevallo Plant Manager
b. Grant McCallum Montevallo Production Manager
c. Stacey Barry Vice President, Human Resources
d. Emily Kelly f/k/a Emily Berkes Human Resources Manager—East Lime
e. Terry Beam Loading Supervisor15
4. On June 7, 2018 and June 11, 2019 respectively, Respondent violated Section 8(a)(1)
when it suspended and terminated its employee Desilynn “Floyd” Avery based upon its
overly broad application of Section 16.3 of the implemented terms and conditions.
5. On June 7, 2018 and June 11, 2019 respectively, Respondent violated Section 8(a)(1)
when it suspended and terminated its employee Desilynn “Floyd” Avery for protected 20
concerted activity.
6. On June 7, 2018 and June 11, 2019 respectively, Respondent violated Section 8(a)(3) and
(1) when it suspended and terminated its employee Desilynn “Floyd” Avery for union
activity.
7. The Act has not been violated in any other way.25
REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall order it to
cease and desist and to take certain affirmative actions designed to effectuate the policies of the 30
Act. Specifically, having found that Respondent violated Section 8(a)(1) and Section 8(a)(3) and
(1) by suspending and discharging employee Desilynn “Floyd” Avery, I shall order Respondent to
offer him 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, and to make him whole for any loss of earnings and other benefits suffered as a result of 35
the discrimination against him. Benefits shall be computed in accordance with F.W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d
23 (D.C. Cir. 2017), Respondent is ordered to compensate Avery for his reasonable search-for-40
work and interim employment expenses regardless of whether those expenses exceed interim
earnings. Search-for-work and interim employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
45
Additionally, Respondent is ordered to compensate Avery for the adverse tax
consequences, if any, of receiving lump-sum backpay awards, and to file with the Regional
JD–23-20
35
Director for Region 10 within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay award to the appropriate calendar years
for him. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Respondent is also ordered to
remove from its files any references to the unlawful suspension and discharge of Avery and to
notify him in writing that this has been done and that the unlawful suspensions and discharges will 5
not be used against them in any way.
Because of the length of time since Avery’s discharge, I order that Respondent mail the
notices to bargaining unit employees who left Respondent’s employ after June 7, 2018. Because
Avery was the union vice president for a bargaining unit beyond the Montevallo facility, 10
Respondent should also post the notice at its other unionized facilities in Alabama.
Upon the findings of facts and conclusions of law and upon the entire record, I issue the
following recommended27
15
ORDER
LHoist North America of Alabama, LLC, a Subsidiary of LHoist North America
(Respondent) shall
20
1. Cease and desist from
a. Discharging, suspending or otherwise discriminating against employees because
of their Union activities or because they have otherwise engaged in protected
concerted activities.
b. In any like or related manner interfering with, restraining, or coercing employees 25
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 Desilynn “Floyd” Avery 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 30
privileges previously enjoyed.
b. Make Desilynn “Floyd” Avery whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the manner set forth in the
Remedy section of this decision.
c. Compensate Desilynn “Floyd” Avery for the adverse tax consequences, if any, of 35
receiving a lump-sum backpay award, and file the Regional Director for Region
10, within 21 days of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to the appropriate calendar
years for each of them.
d. Within 14 days from the date of this Order, remove from its files any references to 40
the unlawful suspension and discharges, and within 3 days thereafter, notify
Desilynn “Floyd” Avery in writing that this has been done and the suspension and
discharge will not be used against him in any way.
27 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings conclusions and recommended Order shall, as provided in Section 102.48 of the Rule, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–23-20
36
e. 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 designed
by the Board or its agents, all payroll records, social security payment records,
time records, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze 5
the amounts of backpay due under the terms of this Order.
f. Within 14 days after service by the Region, post at its unionized Alabama
facilities copies of the attached notice marked “Appendix.” 28 Copies of the notice,
on forms provided by the Regional Director for Region 10, after being signed by
Respondent’s authorized representative, shall be posted by Respondent and 10
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, the notice shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by such means. 15
Reasonable steps shall be taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. Respondent also shall mail, at
its own expense, the notice to former employees who left Respondent’s employ
after June 7, 2018. If Respondent has gone out of business or closed the facility
involved in these proceedings, Respondent shall duplicate and mail, at its own 20
expense, a copy of the notice to all current and former employees employed by
Respondent at its Montevallo facility at any time since June 7, 2018.29
g. Within 21 days after service by the Region, file with the Regional Director for
Region 10 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to comply.25
Dated: Washington, DC May 21, 2020
30

Sharon Levinson Steckler
Administrative Law Judge35
28 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
29 Posting provisions during the COVID-19 pandemic are subject to the qualifications stated in Danbury
Ambulance Service, Inc., 369 NLRB No. 68, slip op. at 3 (May 6, 2020).
•
JD–23-20
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 representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, suspend or otherwise discriminate against you for engaging in Union
activities or other protected concerted activities.
WE WILL NOT discharge, suspend or otherwise discriminate against you because you
participated in an unemployment hearing on behalf of another employee.
WE WILL NOT over broadly apply rules to your actions as a basis to discipline you.
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 Desilynn “Floyd” Avery 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.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful suspension and discharge of Desilynn “Floyd” Avery 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.
WE WILL make Desilynn “Floyd” Avery whole for any loss of earnings and other benefits
resulting from his suspension and discharge, less any interim earnings, plus interest, and we will
also make him whole for any reasonable search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Desilynn “Floyd” Avery for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and we will file with the Regional Director for Region 10,
within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate calendar years for each employee.
JD–23-20
LHOIST NORTH AMERICA OF ALABAMA, LLC, A
SUBSIDIARY OF LHOIST NORTH AMERICA
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
Harris Tower, 233 Peachtree Street, N.E., Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-221731 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1943.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (470) 343-7498.