LWD, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1992

309 N.L.R.B. 214 (N.L.R.B. 1992)

214
309 NLRB No. 25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has excepted to the judge’s discrediting of its wit-
nesses Amos Shelton, Larry Howell, and Danny Burnett concerning
the reasons for selecting David Downs and Franklin Elkins for lay-
off, contending that the judge erred in stating that their testimony
was ‘‘without corroboration.’’ In affirming the judge’s finding that
the Respondent had not established by credible evidence that it
would have taken the same action in the absence of its employees’
protected activity, we do not rely on the judge’s statement concern-
ing lack of corroboration. Rather, we find that the other reasons stat-
ed by the judge for discrediting these witnesses are supported by the
record and provide a sufficient basis for affirming the findings.
Additionally, the Respondent alleges that the judge is biased in
favor of the Union and against the Respondent, and that because of
this the Respondent has been deprived of due process. After a care-
ful examination of the entire record, we are satisfied that this allega-
tion is without merit.
2 We shall modify the judge’s recommended Order and substitute
a new notice to conform to the judge’s findings and conclusions of
law.
LWD, Inc., LWD Sanitary Landfill, Inc. and LWD
Trucking, Inc. and District Lodge 154 of the
International Association of Machinists and
Aerospace Workers, AFL–CIO, CLC. Case 26–
CA–14376
October 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 9, 1992, Administrative Law Judge Richard
A. Scully issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, LWD,
Inc., LWD Sanitary Landfill, Inc. and LWD Trucking,
Inc., a single integrated enterprise and single employer,
with offices and facilities in Calvert City, Kentucky,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer David Downs and Franklin Elkins imme-
diate and full reinstatement to their former positions of
employment or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, plus interest. Backpay and
interest shall be computed in the manner described in
the remedy section of the judge’s decision.
2. Substitute the following for paragraph 2(c).
‘‘(c) Remove from its records any reference to the
unlawful disciplinary warning issued to David Downs
on December 4, 1990, and to the unlawful layoff of
David Downs and Franklin Elkins on February 26,
1991, and notify them in writing that this has been
done and that the warning and the layoff will not be
used against them in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT maintain a rule prohibiting our em-
ployees from discussing the amount of their paychecks
with other employees.
WE WILL NOT threaten our employees with retalia-
tion because they engage in union or other protected
activities.
WE WILL NOT lay off our employees in order to re-
taliate against them because they engage in union or
other protected activities.
WE WILL NOT issue disciplinary warnings to em-
ployees because of their union or other protected ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
215LWD, INC.
1 Hereinafter, all dates are in 1990 unless otherwise indicated.
WE WILL rescind the rule in our employee handbook
prohibiting employees from discussing the amount of
their paychecks with other employees.
WE WILL offer David Downs and Franklin Elkins
immediate and full reinstatement to their former posi-
tions of employment or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from their permanent layoff, plus interest.
WE WILL remove from our files any reference to the
disciplinary warning issued to David Downs on De-
cember 4, 1990, and the layoff of David Downs and
Franklin Elkins on February 26, 1991, and WE WILL
notify them in writing that this has been done and that
the warning and layoff will not be used against them
in any way.
LWD, INC., LWD SANITARY LANDFILL,
INC. AND LWD TRUCKING, INC.
Susan B. Greenberg, Esq. and Margaret G. Brakebusch,
Esq., for the General Counsel.
Grover C. Potts Jr., Esq., of Louisville, Kentucky, and Mark
H. Floyd, Esq., of Nashville, Tennessee, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On a
charge filed by District Lodge 154 of the International Asso-
ciation of Machinists and Aerospace Workers, AFL–CIO,
CLC (the Union) on March 20, 1991, and amended charges
filed on May 6 and July 8, 1991, the Regional Director for
Region 26, National Labor Relations Board (the Board),
issued a complaint on May 6 and an amended complaint on
July 9, 1991, alleging that the Respondent committed certain
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The Respondent filed timely answers
denying that it had committed any violation of the Act.
A hearing was held in Calvert City, Kentucky, on August
5 through 7, 1991, at which all parties were given a full op-
portunity to participate, to examine and cross-examine wit-
nesses, and to present other evidence and argument. Briefs
submitted on behalf of the General Counsel and the Re-
spondent have been given due consideration. On the entire
record and from my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
LWD, Inc., LWD Sanitary Landfill, Inc. and LWD Truck-
ing, Inc. (the Respondent) constitute a single-integrated busi-
ness enterprise and single employer with offices and facilities
in Calvert City, Kentucky, where it is engaged in the busi-
ness of transporting, storing, and disposing of hazardous and
nonhazardous liquid and solid waste. During the 12-month
period preceding May 1991, the Respondent, in the course
and conduct of its business operations, performed services
valued in excess of $50,000 for various enterprises located
outside of the Commonwealth of Kentucky and purchased
and received at its facilities products, goods, and materials
valued in excess of $50,000 directly from points located out-
side the Commonwealth of Kentucky. The Respondent ad-
mits, and I find, that at all times material it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the summer of 1990, employees of the Respondent
contacted two different unions concerning possible represen-
tation. Wade Parrent obtained authorization cards from the
Union at about the same time David Downs got cards from
the Operating Engineers in Paducah, Kentucky. After dis-
cussing it, they decided to go with the Union which already
represented employees of several plants in the Calvert City
area. Downs returned the cards to the Operating Engineers
and they began soliciting for the Union in mid-June. On June
22, 1990,1 the Union filed a petition with the Board in Case
26–RC–7289, seeking to represent the Respondent’s produc-
tion and maintenance employees. An election was held on
August 10 which the Union lost by a vote of 75 to 72. This
was the third unsuccessful attempt to organize the Respond-
ent’s employees, the next most recent having been in
1984/1985 by the United Auto Workers.
B. The 8(a)(1) Allegations
1. Prohibiting discussion of paychecks
The amended complaint alleges that the Respondent en-
forced a rule promulgated in its employee handbook which
prohibits the discussion of wages among its employees. The
Respondent’s handbook is given to each employee at the
time of hiring. The section of the handbook entitled ‘‘Your
Payday’’ contains the following statement:
The amount of your paycheck is a confidential matter
between you and the managers of LWD, Inc. Please do
not discuss it with any employee of the company other
than your supervisor or plant manager.
Counsel for the General Counsel presented no evidence con-
cerning this rule beyond the fact that it appears in the hand-
book.
Company President Amos H. Shelton Jr. testified that the
rule was instituted because some employees were exaggerat-
ing the amounts of bonuses they had received. He said the
rule simply means that the amount of an employee’s pay-
check is a personal matter which the employee is free to dis-
close if he chooses and that ‘‘supervisors are not to be telling
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or discussing someone else’s paycheck.’’ According to
Shelton, if an employee wants ‘‘to show and tell’’ others
what he makes, the Respondent has ‘‘no problem’’ with that.
The Respondent also argues that there was no proof that the
rule has ever been enforced.
The rule is a part of the handbook which all employees
are given when hired. They are required to read the hand-
book, to sign it, and to agree to observe the personnel poli-
cies and rules outlined therein as a condition of continued
employment with the Respondent. Regardless of whether any
action has been taken to enforce the rule, its existence ‘‘con-
stitutes a clear restraint on the employees’ Section 7 right to
engage in concerted activities for mutual aid and protection
concerning an undeniably significant term of employment.’’
Heck’s, Inc., 293 NLRB 1111, 1119 (1989); Triana Indus-
tries, 245 NLRB 1258 (1979). In the absence of any evi-
dence that it caused any significant disruption of the Re-
spondent’s operations, the mere fact that some employees
may have exaggerated the amounts of bonuses they received
cannot qualify as sufficient business justification for inter-
ference with their rights. Moreover, the rule, as written, ap-
plies to all wages not just the amount of bonuses and to all
employees not just supervisors. Thus, it is broader than is
necessary to achieve the alleged objective. Service Merchan-
dise Co., 299 NLRB 1125 (1990). There is no evidence that
employees were ever informed that the Respondent had ‘‘no
problem’’ with their discussing the amount of their pay-
checks. I find that by maintaining the employee handbook
provision requesting that employees not discuss their pay-
checks with other employees, the Respondent unlawfully re-
strained and interfered with the employees’ rights in viola-
tion of Section 8(a)(1) of the Act. Radisson Plaza Minneapo-
lis, 307 NLRB 1 (1992); Heck’s, Inc., supra.
2. Threats and coercive statements
David Downs was one of the leaders of the Union’s at-
tempt to organize the Respondent’s employees. He solicited
signatures on authorization cards, distributed handbills at the
plant, campaigned on the road outside the plant on the day
preceding the election and on the day of the election after
having been ordered to leave the company property that
morning by Shelton, attended the preelection conference, and
served as an alternative election observer for the Union. On
July 21, Downs was injured at work, apparently, as the result
of inhaling fumes from a chemical spill that occurred when
he was attempting to clear a malfunctioning pump. Downs
was hospitalized for 5 days. After he was released to return
to work by his physician, Downs so informed the Respond-
ent but was told he would have to be cleared by the com-
pany physician before he could return. The company physi-
cian wanted him to remain off for an additional period and
cleared him to return to work as of August 14.
Downs presented his release to Production Foreman Danny
Burnett who told him he would have to meet with Shelton
before he could return to work. At a meeting with Shelton
and other management personnel, Downs credibly testified
that he was told by Shelton that since he had a more severe
reaction to the chemical fumes than two other employees
who had inhaled them, he could not return to work until
Shelton was satisfied as to why their reactions had differed.
Downs responded that he had been cleared to return to work
and could no longer collect workmen’s compensation.
Shelton told him to consider himself laid off. Later the same
day, Shelton informed Downs that he had made a mistake
and that Downs should report for work the next morning.
Prior to his injury, Downs had been a Class A furnace op-
erator, but when he returned to work on August 15, he was
assigned to a labor gang, doing work such as sweeping
floors. Later, he was assigned to the landfill where he oper-
ated a weedeater. He was eventually moved back to the
plant, but continued to work as a laborer. When he was put
on the labor gang, Downs contacted the Union which filed
a charge with the Board on his behalf. Union Representative
Joe Sills testified that he subsequently withdrew that and
other charges after working out a agreement with Shelton
which provided, inter alia, that Downs would be returned to
his previous position as a Class A operator. After Downs in-
formed him that he had not been returned to the operator po-
sition, Sills contacted Shelton and said he would refile the
charges if the Respondent did not honor the agreement.
Downs testified that in October, while working on the
labor gang, he was summoned to meet with Shelton in the
office where management officials Larry Howell, Gautam
Trivedi, and Gary Metcalf were also present. Shelton entered
the office, put a tape recorder on the table, turned it on, and
said, ‘‘The first thing I’m going to ask you, just what kind
of fucking deal do you have with Joe Sills?’’ Downs re-
sponded that he understood that it was Shelton and Sills that
had the deal. Shelton then said that it had been brought to
his attention that Downs wanted to return to his job as a
Class A operator and that he could do so, but on Shelton’s
conditions. One condition was that Downs was going to be
watched and by his ‘‘first mistake,’’ he was ‘‘signing his
own resignation.’’ Downs was put back to work as a Class
A operator on October 22. The complaint alleges that
Shelton’s remark violated Section 8(a)(1) of the Act.
Shelton was not specifically asked about this meeting with
Downs but did testify that when Downs was moved back to
the furnace room he was told that ‘‘we was going to watch
him severely.’’ This was because Downs had stated that he
‘‘was taking some sort of breathing therapy’’ that did not
show up in the Respondent’s records and Shelton wanted to
be sure that he did not ‘‘have any kind of abnormal feelings,
dizziness or otherwise’’ which might result in injury to him-
self or others because of a reaction to something. Gautam
Trivedi testified that he did not recall hearing Shelton say
that Downs would be watched and that his first mistake
would result in his resignation or words to that effect at the
meeting. He also did not recall hearing Shelton ask Downs
‘‘what kind of fucking deal do you and Joe Sills have?’’
Gary Metcalf testified that at the meeting Shelton asked
Downs whether he was capable of doing the job of a furnace
operator and Downs responded that he was. Shelton said that
Downs could return to the furnace room but had to let them
know if he had any problems. He did not remember Shelton
making any other statements of any significance to Downs
at the meeting.
I credit the testimony of Downs concerning what Shelton
said during the meeting. None of the others present contra-
dicted Downs’ testimony that Shelton tape recorded what
was said at this meeting. The Respondent did not produce
the tape or offer any explanation why it could not do so. I
infer that the tape would not have supported the Respond-
ent’s version of what Shelton said at the meeting. More sig-
217LWD, INC.
nificant was Shelton’s failure to specifically deny the state-
ments attributed to him by Downs. His general testimony
concerning what Downs was told at the time he was returned
to the furnace room, including that he would be severely
watched, did not contradict Downs’ testimony about this in-
cident. His claim that he was concerned at the time because
Downs was undergoing ‘‘breathing therapy’’ appears to be a
fabrication. Downs denied ever receiving any such therapy
and neither Trivedi nor Metcalf testified to hearing Shelton
mention it. I do not find the lack of recollection by Trivedi
and Metcalf as to hearing the statements attributed to Shelton
by Downs equivalent to a denial that they were made or oth-
erwise sufficient to contradict Downs’ credible testimony
about the incident. Considering all of the circumstances, in-
cluding the fact that I find the evidence establishes that
Downs was not returned to the furnace room immediately on
being released to return to work by the Company’s physician
but was given a series of menial jobs and was given a dis-
ciplinary warning, all because of his support for the Union,
discussed infra, and the fact that at the same meeting Shelton
made a derogatory reference to Downs’ association with
Union Representative Sills, who had contacted Shelton con-
cerning returning Downs to the furnace room, I find that
Shelton’s statement that Downs would be watched and his
first mistake would constitute signing his resignation was a
threat of retaliation for his union support and violated Sec-
tion 8(a)(1). Larid Printing, 264 NLRB 369, 370 (1982).
On December 4, Downs was given a written correction for
an incident on November 21 in which a hose he had un-
hooked resulted in a spill. Kelly McMakin, who was the shift
leader at the time of the incident, was also given a written
correction. McMakin had been an active and visible sup-
porter of the Union prior to the election. Downs and
McMakin protested when given the corrections by Burnett
and refused to sign them. They went first to Howell and
eventually to Shelton when he came into the office. Downs
testified that after Shelton entered Howell’s office and they
began to discuss the matter McMakin said to Shelton, ‘‘if we
had had a job description here, I feel like this never would
have happened.’’ Shelton responded, ‘‘as long as I run this
fucking company, there will be never be job description[s],
union or no union.’’ He went on to say ‘‘and another thing,
about the union election, I hold no grudges at all about the
election, that election meant nothing to me.’’ Then he said,
‘‘I’m not going to sit here and say that. Yes, by God, I do
hold grudges.’’ The meeting ended with Shelton refusing to
rescind the written corrections. The complaint alleges that
Shelton’s comments violated Section 8(a)(1).
I find Downs’ testimony about what occurred at the meet-
ing to be credible and essentially uncontradicted even though
at least five supervisory or managerial employees were
present and all testified at the hearing. Most significant was
the fact that Shelton testified about the meeting and did not
deny making the statements attributed to him by Downs.
McMakin, who was promoted to a supervisory position prior
to the hearing, and Shift Supervisor Joe Payne appeared as
witnesses for the Respondent but were not asked about the
specific comments in question. I do not consider the fact that
they did not mention these statements in their descriptions of
what occurred to be evidence that Shelton did not make
them. Neither purported to give a verbatim account of what
was said at the meeting which, according to the testimony,
lasted over 2 hours. Interestingly, Payne did recall that
McMakin raised the subject of a ‘‘job description’’ with
Shelton which Downs testified led to Shelton’s comments
about the union election. Howell was asked if the Union was
mentioned during the meeting and said that it was not. I do
not credit his testimony as I did not find him to be a
believeable witness. Much of his testimony seemed to have
been rehearsed and in this instance he couldn’t even wait for
the question to be finished before speaking his denial. I find
that Shelton made the statements attributed to him by
Downs.
The Respondent argues that even if Shelton made these
statements there was no violation because he was merely ex-
pressing general hostility towards the Union. I do not agree.
By telling two employees he knew to be union supporters,
in the context of a meeting in which disciplinary warnings
were being issued, that he held ‘‘a grudge’’ because his em-
ployees had sought to exercise rights guaranteed them by the
Act, Shelton went beyond expressing his opposition to union-
ization, a subject which he interjected, and impliedly threat-
ened to retaliate against the employees for engaging in pro-
tected activity. His statement violated Section 8(a)(1). Tufts
Bros., Inc., 235 NLRB 808, 814–815 (1978).
During February 1991, David Downs was laid off for 2
days. Downs was working as a furnace operator and the fur-
naces were being shut down for maintenance. Downs testi-
fied that when he was informed of this layoff by Supervisor
Joe Payne he asked Payne why employees with less seniority
than himself and two others, who were being laid off, contin-
ued to work. Payne responded, ‘‘don’t tell me that you’re
that damn dumb that you don’t know what’s going on.’’ The
complaint alleges that Payne’s remark violated Section
8(a)(1).
Payne was not asked about the statement attributed to him
by Downs, but he did in effect deny it by describing what
he did say to Downs—that the reason for the layoff was a
reduction in force while the furnaces were down—and by
saying that he had said nothing else. While I credit Downs’
testimony about this incident based on the demeanor of the
two witnesses, I do not find that Payne’s remark violated the
Act. There was no evidence that this layoff was the result
of anything other than normal maintenance operations. There
was no allegation in the complaint that it was discriminatory
or done in retaliation for protected activity. Payne made no
reference of any kind to the Union, Downs’ activity during
the campaign, or anything that had occurred since his return
to work. The evidence indicates that the furnaces were being
shut down for cleaning and that the three persons who were
being laid off were furnace operators for whom there would
be nothing to do when they were out of service, while those
who were not laid off were laborers who were to do the
cleaning. Considering all the circumstances, I find no reason-
able basis for concluding that Payne’s answer to Downs’
question meant or implied that he was selected for layoff be-
cause of protected activity on his part. There was nothing to
indicate that Payne’s remark was anything but an expression
of his personal opinion as to the merits of the question. It
may have been rude, but it was not unlawful. See Gorman
Machine Corp., 257 NLRB 51, 52 (1981). I shall recommend
that this allegation be dismissed.
The complaint alleges that Supervisor Nathan Salyers told
an employee that he would not be considered for a wage in-
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 While Salyers did not actually say that Elkins ‘‘would not be
considered for a wage increase’’ because of his support for the
Union, what he did say was equally coercive and unlawful. The
complaint allegation was sufficient to put the Respondent on notice
as to the nature of Salyers’ coercive remarks, the matter was fully
litigated and the violation found is closely related to that alleged in
the complaint.
crease because of the employee’s membership in and support
of the Union. Franklin Elkins was employed in the furnace
room during the election campaign. He testified that he
signed a union authorization card, attended meetings, wore
union insignia and stickers on his uniform and hardhat while
on the job and while attending antiunion films shown at the
plant. During the campaign he had played on the company
softball team in a championship game wearing a union shirt
and cap. He was shown in a team photograph which ap-
peared in the local newspaper wearing that shirt and cap. On
the day preceding the election, he participated in a union
rally held on the road outside the plant. On the same day,
he was told by Burnett to leave a parking lot at the plant
where was walking and holding a prounion sign. The Union
filed a charge with the Board as a result of that incident. On
the morning of the election, he attempted to hand out union
pamphlets at the plant near the timeclock, but was ordered
to leave by Shelton. Elkins testified that in late July he was
called to Howell’s office where Howell, Metcalf, and Shelton
were present. Shelton told him that he wanted to talk to him
about something he ‘‘had been saying at the Union’’ and that
he was going to tape-record the conversation. Elkins said he
did not object and Shelton turned on the recorder. Shelton
first questioned him about having gone to the medical clinic
for treatment of a rash Elkins said he thought was work re-
lated. He then began discussing ‘‘rumors’’ and said that he
had heard that Elkins had been talking in public about things
that went on at the plant. Shelton said that he did not appre-
ciate it and that Elkins was not supposed to be talking about
such things ‘‘out to the open public.’’ He described Shelton
as being ‘‘pretty mad’’ based on his looks and tone of voice.
He testified that the only comments about the plant he had
made outside it involved safety concerns he had voiced at a
closed meeting at the union hall when they were trying to
get the Union to organize the employees. Elkins also testified
that after the election he was called outside the control room
by his supervisor, Nathan Salyers, who told him that he was
a good worker but that Shelton ‘‘is going to be out to get
you over the election.’’
The foregoing testimony by Elkins was credible and
uncontradicted. It is against this background that the com-
plaint allegation concerning a remark that Salyers made to
Elkins must be evaluated. Elkins credibly testified that some
time after he received a scheduled wage increase in Septem-
ber he asked Salyers to recommend him for another raise.
Salyers told him that his name ‘‘was real hard to bring up
because of all the stuff [he] was involved in.’’ When asked
what Salyers meant by this, Elkins said: ‘‘He was just talk-
ing about my activity with the Union, you know, because I
was real active with that and he said my name would be hard
to bring up.’’ It is not clear from this whether Salyers actu-
ally mentioned Elkins’ activity on behalf of the Union or not.
However, under the circumstances, I find it makes no dif-
ference. For his part Salyers testified that Elkins had ap-
proached him about pay raises and they had discussed the
subject on more than one occasion. While he said that he did
not remember all of the conversations, he failed to describe
any of them. Consequently, his testimony does not contradict
that of Elkins or serve to clarify what he said. It was Salyers
who had told Elkins a short time before that he considered
him to be a good employee but that Shelton was out to get
him ‘‘over the election.’’ Since he had no problem with Elk-
ins’ work, Salyer’s statement obviously referred to Shelton’s
hostility towards Elkins because of his activities on behalf of
the Union during the election campaign. There is no other
reasonable explanation. These factors clearly distinguish the
present case from those cited by the Respondent, J. S. Dillon
& Sons Stores v. NLRB, 338 F.2d 395, 399 (10th Cir. 1964),
and Alchris Corp., 301 NLRB 182 (1991), where the alleg-
edly coercive remarks were held to not relate to protected ac-
tivity. Here, telling Elkins that he was an unpopular subject
to bring up with management because he had engaged in
protected activity, disparaged his involvement with the Union
and impliedly threatened him with retaliation in violation of
Section 8(a)(1). Precision Founders, 278 NLRB 544, 549
(1986).2
C. The 8(a)(3) Allegations
The complaint alleges that a disciplinary warning given to
David Downs on December 4 and the layoff of Downs and
Franklin Elkins in February 1991 were in retaliation for their
having supported the Union and violated Section 8(a)(1) and
(3) of the Act. The Respondent contends that it did not dis-
criminate against them, that the warning given to Downs was
the result of a rules violation, that the layoff was the result
of circumstances completely unrelated to the Union’s orga-
nizing campaign, and that Downs and Elkins were selected
for layoff based on their work records and without regard to
any protected activity on the part of either.
In cases such as this, where the employer’s motivation for
taking certain actions is in issue, those actions must be ana-
lyzed in accordance with the test outlined by the Board in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under Wright Line, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once that has been done, the burden shifts to the
Respondent to demonstrate that it would have taken the same
action even in the absence of protected conduct on the part
of its employees.
The evidence is clear that both Downs and Elkins openly
actively supported the Union during the election campaign
and that the Respondent was aware of their support. Shelton
admitted that he knew that they were prominent supporters
of the Union, that he had asked both to leave company prop-
erty when they attempted to demonstrate for the Union there
on the morning of the election, and that he knew that Downs
was an election observer for the Union.
1. Additional evidence of union animus
The record contains ample evidence of union animus on
the part of the Respondent. The handbook given to all em-
ployees before at the time they start to work informs them
that the Respondent does not feel that a union could help its
219LWD, INC.
3 Downs testified that Howell also referred to his not being the
same ‘‘since the union election.’’ In an affidavit Downs gave the
Board he did not mention Howell’s reference to the union election
in this conversation. He said he remembered the conversation and
thought he had mentioned it to the Board agent, who had not written
it down. I do not credit this part of Downs’ testimony.
employees and pledges to oppose any attempt to organize
them. Immediately on learning that the Union was attempting
to organize the employees, Shelton sent a letter to all em-
ployees stating the Respondent’s opposition to that effort. In
addition to the violations of Section 8(a)(1) found, there were
several other incidents which demonstrate the Respondent’s
union animus.
While not alleged as violations in the complaint, since
they occurred more than 6 months before the charges on
which the complaint is based were filed, they provide persua-
sive background evidence of the Respondent’s willingness to
violate the Act in its efforts to keep the Union out. I find
that the uncontradicted evidence, discussed above, concern-
ing Shelton’s comments to Elkins about discussing things
that happened at the plant in public, constituted interference
with protected activity and also gave the impression that the
employees’ activities were under surveillance inasmuch as
Elkins made the statements Shelton was referring to at a
closed union meeting.
In September, shortly after David Downs returned to work
after being injured and was assigned to work as a laborer,
he was told by his supervisor, Bennie Turner, that Howell
had heard that Downs ‘‘was still discussing union and that
he wasn’t going to put up with it.’’ On the following day,
Downs was given a written disciplinary warning, the first he
had ever received during his employment with the Respond-
ent. Downs testified that he and some other employees had
been assigned to sweep an area near the control room on a
morning when visitors were expected at the plant. After
working for about 2-1/2 hours, they took a break because
they had gone beyond the usual morning breaktime by over
30 minutes. While they were taking their break in the control
room, Turner came in and told them to leave and that they
were not supposed to be taking a break. They went out and
started a new job painting bricks. That afternoon Downs and
the other employees were given the warnings for ‘‘lack of
efficiency and effort.’’ They were given the warning notices
by Supervisors Dennis Tynes and Steve York, who told them
to read and sign the forms. Downs refused to sign because
he felt that he had been doing his job. A short time later,
Howell came and talked to Downs about the warning. Downs
told him that he didn’t think the warning was warranted be-
cause they had worked past the time they were due for a
break and that if they wanted to get rid of him because he
was active for the Union he should tell him. Howell said that
was not the reason for the warning, that it was because they
had been overlapping their brooms—they had 36-inch
brooms and they were only sweeping 30-inch spots at a time.
Downs again said that if Howell wanted to get rid of him,
he should just say so. Howell said they were not trying to
get rid of him but that Downs had not been the same since
his accident.3
Turner was called as a witness by the Respondent. He did
not specifically deny telling Downs that Howell had heard
that Downs was still talking about the Union but did say he
never talked to Downs about the Union while he was work-
ing on Turner’s shift. Downs’ testimony about this incident
was credible and persuasive and I credit it over Turner’s
monosyllabic answer to a leading question by the Respond-
ent’s counsel. Turner testified that Downs and the others
were assigned to sweep up near the control room where the
visitors were expected about 8 a.m. After Turner left them
to do something else, he returned to find them gone and the
job unfinished. He found them taking a break and asked
them why they couldn’t finish the job before taking a break
since visitors were coming in. After about 5 minutes, they
went back out and finished sweeping. He reported the inci-
dent to his supervisor, Tynes, who issued written corrections
to each of the employees involved. He was present when the
correction notice was given to Downs, who was told that the
reason was for leaving the work area before the job was
done. The copy of the written correction in the record issued
to Downs, dated September 18, is signed by Burnett and
Howell and not by Tynes or Turner. Burnett first testified
that he was not involved in this matter. When shown the
form with his name on it, he said that he did not recall what
had happened.
Howell was also called as a witness by the Respondent
and gave a completely different account of how and why this
warning was issued to Downs. According to Howell, Downs
and others on the labor gang had been working on a cleanup
project and Turner had complained to him that three men
were doing the work of one. Howell observed them working
‘‘for two or three days’’ and found that ‘‘they probably were
not covering an area four feet wide with nine feet of
broom.’’ He determined that they should be given a writeup
in order to get their attention. Howell also said that Turner
complained that Downs would not stay on the job and every
time he looked Downs was back in the furnace room. Turn-
er’s testimony fails to corroborate this.
The evidence presented by the Respondent to justify this
warning to Downs cannot be reconciled. I find that Howell
or Turner, or both, fabricated their testimony about the rea-
sons for the disciplinary action taken against Downs. The
evidence convinces me that the warning was part of what has
been shown to be a continuing effort on the part of the Re-
spondent to harass Downs in retaliation for his activity in
support of the Union.
As was discussed above, when Downs went back to work
in August after his work-related injury he was not returned
to his regular position as a furnace operator notwithstanding
the fact that he had been unconditionally released by both his
own and the Company’s physicians. The written release
given Downs by Colburn, the company physician, specifi-
cally stated that Downs was released ‘‘to return to work as
an operator on 8–14–90.’’ He was first told by Shelton that
he was to be laid off, then was allowed to return but was
assigned to work as a laborer. The Respondent’s justification
for this was Shelton’s alleged concern that Downs ‘‘did not
react in a normal fashion’’ to the material to which he was
exposed in the spill, that at his return interview Downs first
disclosed that he was taking a thyroid medication that the
Respondent had not previously known about, that he was
‘‘taking some sort of breathing therapy,’’ and that additional
investigation and a ‘‘complete medical report’’ were needed.
None of these reasons can withstand scrutiny. As noted
above, the ‘‘breathing therapy’’ reason was a fabrication. The
evidence shows that Colburn was aware that Downs had a
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 It appears that the fact that the Union had been in contact with
Shelton about putting Downs back as an operator had as much to
do with that happening as this medical report. Downs was informed
that he was being returned to his job as an operator at his October
14 meeting with Shelton, which began with Shelton asking Downs
a question about what kind of deal Downs had with union represent-
ative Sills. Sills testified that he had contacted Shelton and the Re-
spondent’s attorney to insist that the Respondent honor its agreement
that Downs be put back to work as an operator or the Union would
refile charges and that the Respondent eventually complied.
thyroid condition nearly a year before the accident. In any
event, the Respondent was informed by Colburn on August
16 that the medication Downs was taking for that condition
was not responsible for his reaction at the time of the acci-
dent. That leaves the self-serving testimony of Shelton that
he needed further assurance that Downs would not be in dan-
ger if he returned to work as an operator. There was no evi-
dence that Shelton has any medical training or any other ex-
pertise which would qualify him to question Downs’ medical
release. Nor was there any credible evidence to support the
Respondent’s contention that the release Downs was given
by Colburn was not ‘‘complete.’’ There was nothing about
the release that was conditional or to suggest that the physi-
cian felt that further investigation was necessary. I do not
credit the testimony of Trivedi that he was told by Colburn
to keep Downs in a ‘‘low exposure job’’ until there was a
final report. According to Trivedi, he could not recall why
he contacted Colburn after he had given Downs the release,
but he proceeded to testify as to what ‘‘might’’ have been
the reasons. When asked by him if Downs was ‘‘okay to go
back [to work,]’’ Colburn said, ‘‘we don’t know yet.’’ I sim-
ply did not believe this testimony, primarily, because I can-
not believe that any qualified physician would so casually
contradict and in effect revoke a written release he had just
issued without either putting it in writing or informing the
individual involved, but also because it was the Respondent,
not the physician, who raised the issue of Downs’ fitness to
return to work. Not surprisingly, Colburn did not as appear
as a witness to corroborate Trivedi’s testimony. Finally,
Trivedi testified that he did not actually speak to Colburn
personally, but to an office worker at his clinic. I do not find
this double hearsay evidence to be probative.
Although Shelton testified that one of the reasons he was
concerned was that Downs had never been given ‘‘a full al-
lergy test,’’ there was no evidence that the Respondent
sought to have such testing done or received the results be-
fore it finally put Downs back to work as an operator. There
was also no evidence that the ‘‘complete medical report’’
concerning Downs that the Respondent was supposedly wait-
ing for was ever made. No such report was introduced by the
Respondent. What it did introduce was a computer printout
of the results of a blood test for Downs, dated October 12,
on which, according to Trivedi, Colburn has written: ‘‘OK
to work, check liver enzymes in 3 mos.’’ The words ‘‘Final
Report’’ have also been written in on the form by an uniden-
tified hand. The Respondent claims that the blood test form
was the ‘‘complete medical report’’ that it had been waiting
for since August. Clearly, the so-called report answers none
of the questions Shelton claims to have been concerned about
when he refused to let Downs return to work at his regular
job as an operator. Apart from the blood test results, there
is no evidence that any additional testing was done nor any
suggestion that Colburn had any more information than at the
time he gave Downs his original release. If anything, it is
less complete than the original release which specified that
Downs was released to work as an operator.
I find the foregoing evidence creates the inference, which
I draw, that the Respondent’s alleged concern about Downs’
reaction to the chemical spill and its requirement that it get
a more complete medical report explaining his reaction and
assuring that he was fit to work as an operator was a
pretextual attempt to justify its putting Downs in a menial
job in retaliation for his activity in support of the Union.4
Considering all of the foregoing, I find that there is ample
evidence that the Respondent knew that Downs and Elkins
were prominent supporters of the Union and that the hostility
and opposition toward the Union manifested by the Respond-
ent was ‘‘strong enough to support a conclusion that the Re-
spondent was willing to violate the law, by discriminating
against its employees, in order to keep the Union out.’’
Raysel-IDE, Inc., 284 NLRB 879, 880 (1987).
2. Disciplinary warning to David Downs
In December, Downs was given a written correction as a
result of a spill which occurred on November 21, after he
had returned to the position of furnace operator. Downs testi-
fied that while running the furnace he had to change from
one tank to another at about 10:30 a.m. He went to the tank
farm where he unhooked a hose in the middle of the line and
attached to another tank. He took the other part of the hose
which was attached to the first tank and threw it over next
to the barge, a large container where waste water is stored.
At about 3:30 p.m., he was told by another operator that
there had been a spill at the tank farm and that it was
Downs’ fault. The evidence indicates that the valve at the
tank was defective and that Downs had not put a cap on the
hose which resulted in the spill. Downs testified that Burnett
told him to go out to the tank farm to see Shelton, who
asked him if he had unhooked the hose and thrown it over
the wall. When Downs said that he had, Shelton said that he
had done it intentionally, that he was not doing his job as
an A operator, and that he was fired. Trivedi arrived and told
Shelton that there was nothing in the tank but rainwater and
that it was not a reportable spill. Shelton then told Downs
to go back to whatever he was supposed to be doing. He
heard nothing more about it until December 4, the day he
and McMakin were given written corrections because of the
spill.
I find the evidence is sufficient to support an inference
that this disciplinary action was taken against Downs because
of his activity in support of the Union. That activity and the
Respondent’s knowledge of it are well established as is the
fact that Downs had previously been a target of retaliation
because of it. There was evidence that spills such as this
were not uncommon, but that no similar disciplinary action
had been taken against anyone before. During the course of
the discussion at the time the warnings were presented to the
employees, Shelton made the statement about holding a
grudge because of the union campaign.
I also find that the Respondent has not established that it
would have taken the same action in the absence of protected
activity by its employees. Although Downs testified that he
had taken the same action in unhooking hoses on numerous
221LWD, INC.
5 The Respondent argues that the fact that only rainwater was
spilled is irrelevant. It may well be, as it contends, that it treats all
spills as ‘‘a problem’’ regardless of their severity. It still has to pro-
vide some basis for exercising its ‘‘business judgment’’ to treat this
‘‘problem’’ differently than the others. The severity of the spill is
clearly a factor to be considered in assessing the Respondent’s moti-
vation where the action taken differs significantly from that in the
cases of previous spills.
occasions, the evidence establishes that he did not put a cap
on the hose as he should have and had he done so there
would not have been a spill even if the valve on the tank
was defective. The Respondent has established that the re-
quirement that all hoses be capped was in effect at the time
of this incident. Also, although caps were on back order at
the time, there was no evidence that no cap was available
to Downs. These facts notwithstanding, the Respondent has
presented no convincing evidence as to why it chose to start
taking disciplinary action in this case, which involved a rel-
atively minor spill of rainwater caused at least in part by a
defective valve, when numerous other spills had gone
unpunished.5 Shelton’s self-serving testimony that prior to
this spill he and Trivedi had decided that there were too
many spills and that they had to do something ‘‘of a serious
nature’’ to get the employees’ attention and that the next
spill would be punished was not credible. If such a decision
had been made, it is difficult to understand why the employ-
ees were not informed about it and why 2 weeks went by
before the discipline was issued, when Downs had admitted
at the time of the spill that he had thrown the uncapped hose
over the wall. Moreover, given the harassment and threats
that Downs had been subjected to since the election, it is a
little too convenient that this unannounced policy change was
invoked for the first time in an incident involving Downs.
Considering all of the circumstances, the Respondent’s expla-
nation that it had to start somewhere and Downs was in the
wrong place at the wrong time is not credible and does not
serve to overcome the inference that it was motivated by ani-
mus toward the Union and Downs’ activity in support there-
of. Accordingly, I find that the written correction issued to
Downs on December 4 was discriminatory and violated Sec-
tion 8(a)(1) and (3) of the Act.
3. Layoffs of Downs and Elkins
David Downs and Franklin Elkins were both permanently
laid off by the Respondent on February 26, 1991. The com-
plaint alleges that their layoffs also violated Section 8(a)(1)
and (3). The Respondent presented credible evidence that it
had learned as early as September that it was facing the
possibilty of reduced business or even closing down some of
its operations when the Kentucky Department of Natural Re-
sources gave it notice of intent to deny the operating permit
for its incinerators. Although it pursued legal action to pre-
vent the loss of the permit, it was also faced with a normal
reduction in business around the first of the year, as well as
the loss of some of its regular customers because of the un-
certainty concerning its continued operation. Consequently, it
reviewed its manpower requirements in order to determine
the minimum number of people needed to operate each de-
partment. It does not appear that the General Counsel con-
tends that the resulting layoffs did not have business jus-
tification and there was no evidence to establish that they
went beyond what business conditions dictated.
The General Counsel does contend that the selection of
Downs and Elkins for layoff over other less experienced em-
ployees was discriminatory. As is discussed above, I find
there is ample evidence to support an inference that the Re-
spondent was motivated by union animus in selecting Downs
and Elkins, two of the most active and prominent supporters
of the Union and two of only three furnace department em-
ployees to be laid off. I also find that the Respondent has
not established by credible evidence that it would have taken
the same action in the absence of protected activity on its
employees’ part. The evidence it presented amounts to little
more than self-serving testimony by Shelton, Howell, and
Burnett, without corroboration or supporting evidence, that
Downs and Elkins were not as good workers as others who
were not laid off, that they did not consider the employees’
support for the Union in making the decision to lay them off,
and there were other union supporters who were not laid off.
The fact that other employees who were supporters of the
Union were not laid off or that, as in the case of McMakin,
a supporter was subsequently promoted by the Respondent,
is not sufficient to dispell the inference of unlawful motiva-
tion found here since ‘‘it is well established that a discrimi-
natory motive, otherwise established, is not disproved by an
employer’s proof that it did not weed out all union adher-
ents.’’ Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir.
1964).
Howell testified that in anticipation of the layoff he was
asked by Shelton to go through each department and deter-
mine the bare minimum of employees needed to operate a
shift. At the same time, he asked each department supervisor
to rate each of his employees based on ‘‘their abilities and
their job performance’’ and to pick the weakest ones to be
laid off. Each supervisor provided him with a list of employ-
ees to be laid off. In the furnace department, it was Burnett
who made the final decisions as to who would be laid off.
Howell presented Burnett’s recommendations to Shelton who
‘‘gave the okay.’’
In the case of Elkins, the evidence shows that since being
employed in August 1989 he never had any disciplinary ac-
tion taken against him, he received a series of scheduled
wage increases during his first year of employment and was
recommended for and recived an additional wage increase in
October when he was promoted to the position of materials
handler, notwithstanding the expressed reluctance of his su-
pervisor, Salyers, to bring his name up to Shelton. Burnett,
who determined that Elkins should be laid off, testified that
he was a Class C operator. After he evaluated the four or
five operators in that classification according to the same cri-
teria, Elkins ranked last. He said that the criteria he used in-
cluded an employee’s job performance, how he got along
with people, how he picked up on his job and any written
warnings or corrections he had received. However, the only
specific detail of this rating process that he mentioned with
respect to Elkins was that he did not listen and thought he
already knew things while the others ‘‘would listen and
would try to learn something.’’ I do not credit Burnett’s tes-
timony. After first denying it, Burnett admitted that he knew
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 While claiming ignorance of the union involvement of Downs
and Elkins, two of its most prominent supporters during the election
campaign, Burnett was able to identify several employees who were
not laid off as known to him to be supporters of the Union. I find
such selective knowledge is suspect and detracts from his credibility.
7 On cross-examination by counsel for the General Counsel,
Salyers was asked to comment on Elkins’ work. While I found his
answers generally non-responsive and evasive, he said nothing criti-
cal of Elkins.
8 Shelton and Burnett claimed that they reviewed the warnings and
other disciplinary actions in the employees’ files as a part of the
process they employed in determining who should be laid off. Ac-
cording to Shelton a warning is a serious matter, a ‘‘last resort,’’
which he must personally ‘‘scrutinize’’ and approve before it goes
into the file. Counsel for the General Counsel introduced numerous
warnings for absenteeism and other offenses taken from the files of
furnace department employees who were not laid off. While I do not
find these warnings sufficient to establish that Elkins, who had none,
was the victim of disparate treatment in this regard, I do find the
failure of both Shelton and Burnett to explain in any significant de-
tail the part these warnings played in arriving at their decisions as
to who the ‘‘weakest’’ employees were casts doubt on the credibility
of their testimony concerning the process that led to those decisions.
Elkins was a supporter of the Union.6 He had at one point
ordered Elkins off the Company’s property when he had at-
tempted to demonstrate for the Union there with a sign.
While he said that other unnamed supervisors had the same
criticism of Elkins, several were called as witnesses by the
Respondent, but none testified about Elkins’ work perform-
ance. The credible and uncontradicted testimony of Elkins
establishes that his immediate supervisor, Salyers, had
praised his work after the election while at the same time
warning him that the Respondent was out to get him.7 Fur-
ther, the evidence shows that Elkins was classified as a ‘‘ma-
terial handler’’ not as an operator, although he was being
trained to run the furnace. The evidence shows he was pro-
moted to the position of material handler, effective October
29, and was paid $8.50 per hour. The rate for a Class C op-
erator was $9 per hour. It appears that Burnett either didn’t
really do any rating of the furnace room employees or that
he grouped Elkins with a more skilled classification in order
to put him at a disadvantage. Among the employees in the
department who were not operators, there were at least eight
with less experience than Elkins, six of whom were hired
after the Respondent says that it began planning for the lay-
off.
Howell testified that he agreed with Burnett’s decision that
Elkins should be laid off. When asked about his observations
of Elkins’ work, he stated that Elkins’ supervisors had told
him that Elkins, was ‘‘bugging’’ them and ‘‘getting smart.’’
He did not elaborate or indicate how this resulted in a deter-
mination that Elkins was among the ‘‘weakest’’ employees.
He also testified that even though he observed Elkins wear-
ing union insignia and demonstrating for the Union near the
Company’s property and knew that he had been ordered off
the property on the day of the election, he did not know that
Elkins was a union supporter because he didn’t know how
anybody had voted. I did not find him to be a credible wit-
ness.
Shelton testified that he made the final decisions as to who
would be laid off. He also testified that before he approved
any layoff recommendation he talked to the employee’s su-
pervisors about his work, he personally observed his work
performance, and he reviewed any warnings or disciplinary
action in his personnel file, particularly, those relating to ab-
senteeism.8 Like Burnett, Shelton testified that Elkins was a
Class C operator. He articulated none of the specific reasons
or observations on which he relied in reaching his determina-
tion that Elkins should be laid off. He did make a reference
to seeing Elkins in other areas of the plant when he was sup-
posed to be in the furnace room. There was no evidence that
Elkins was ever reprimanded or otherwise disciplined for
being away from the furnace room at any time and Shelton’s
comment appears to be nothing more than an afterthought.
I find the Respondent has not overcome the inference that
Elkins was laid off because he engaged in protected activity
and that his layoff was a violation of Section 8(a)(1) and (3).
Wright Line, supra.
David Downs was a Class A furnace operator, the highest
classification, denoting one who has advanced through the C
and B classifications and by training and experience can take
charge and handle ‘‘any and all operations’’ of the furnace.
He had been an A operator since May 1989 and had trained
several other operators. Prior to the union election he had
never been the subject of any disciplinary action during his
employment by the Respondent.
Unlike with Elkins, Burnett was able to provide some spe-
cific reasons for his decision that Downs should be laid off.
He testified that Downs had a problem with not completing
jobs. His examples of this were the incident in which Downs
was warned for not capping a hose and the July spill that
had resulted in his hospitalization where, according to Bur-
nett, he failed to follow procedures by not reporting back to
the shift supervisor. He said that Downs would start a job
and then quit and go over and talk to someone, that Downs
didn’t get along with other employees and ‘‘had a smart re-
mark to say every time somebody said something to him,’’
and that he sometimes needed closer supervision than others
and cited the uncapped hose incident as evidence of this.
Shelton testified that he agreed with the recommendation that
Downs be laid off after observing his work on several occa-
sions. He said that Downs was responsible for other people
getting hurt in the July spill, that he had severe problems
communicating and following instructions, as evidenced by
the hose incident.
Burnett did not specify when he observed these alleged de-
ficiencies in Downs’ work performance. It is clear that they
were never considered serious enough for the Respondent to
do anything about them until after the Union appeared on the
scene and Downs actively supported it, since his disciplinary
record up until after the election was spotless. While both
Burnett and Shelton stated that Downs was at fault in the
case of the July spill, no disciplinary action was taken
against him because of it and a report about the incident pre-
pared by Metcalf, before Downs’ union activity became ap-
parent, placed no blame on him. Apart from the testimony
of Burnett and Shelton, the Respondent offered no evidence
suggesting that Downs was at fault for causing the spill or
the injuries to the other employees. It appears that they sim-
ply siezed on this incident after the fact in order to justify
Downs’ layoff. The same is true of the spill in November.
From all that appears, it was a minor incident, one of many
spills that had occurred without disciplinary action being
taken. It had no effect on the fortunes of McMakin, who re-
223LWD, INC.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 Sterling Sugars, 261 NLRB 472 (1982).
11 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
Continued
ceived an identical written correction but was promoted a
short time later, yet was used by the Respondent to effec-
tuate Shelton’s self-fulfilling prophesy that Downs’ first mis-
take after returning to the furnace room would be his last.
I do not credit the testimony of Burnett and Shelton as to
why Downs was laid off. Considering the history of threats,
harassment, and pretextual disciplinary action by the Re-
spondent against him following the election campaign and
his open support for the Union, coupled with its failure to
provide a reasonable basis for the layoff of Elkins, another
prominent union activist, and Shelton’s statement that he
held ‘‘a grudge’’ because of the union election, I find that
the Respondent has not established by a preponderance of the
credible evidence that Downs would have been laid off in the
absence of protected activity on his part. Accordingly, I find
that his layoff violated Section 8(a)(1) and (3).
CONCLUSIONS OF LAW
1. The Respondent, LWD, Inc., LWD Sanitary Landfill,
Inc., and LWD Trucking, Inc., a single employer within the
meaning of the Act, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act:
(a) By maintaining an illegal rule prohibiting employees
from discussing wages.
(b) By telling an employee that he would be watched and
that his first mistake would be his last.
(c) By telling an employee that it held a grudge because
the Union attempted to organize its employees.
(d) By telling an employee that he was an unpopular sub-
ject to bring up to management because of his protected ac-
tivity.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act:
(a) By issuing a disciplinary warning to David Downs on
December 4, 1990, in retaliation for his having engaged in
activity in support of the Union.
(b) By permanently laying off David Downs and Franklin
Elkins on February 26, 1991, in retaliation for their having
engaged in activity in support of the Union.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent did not engage in any unfair labor
practices alleged in the amended complaint not specifically
found.
THE REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
Having found that the Respondent permanently laid off
employees David Downs and Franklin Elkins on February
26, 1991, in retaliation for their having engaged in protected
activity and support of the Union, I shall recommend that the
Respondent be required to offer them immediate and full re-
instatement to their former positions of employment or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges previously enjoyed, and make them whole for
any loss of earnings or benefits suffered by reason of the dis-
crimination against them, plus interest. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in accord-
ance with New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, LWD, Inc., LWD Sanitary Landfill, Inc.,
and LWD Trucking, Inc., a single employer, Calvert City,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule prohibiting employees from discuss-
ing the amount of their paychecks with other employees.
(b) Threatening to retaliate against employees because of
their union or other protected activities.
(c) Issuing disciplinary warnings to employees because of
their union or other protected activities.
(d) Permanently laying off or otherwise discriminating
against employees because of their union or other protected
activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its rule prohibiting employees from discussing
the amount of their paychecks with other employees.
(b) Offer to David Downs and Franklin Elkins immediate
reinstatement to their former positions of employment, or if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole for
any loss of wages or benefits they may have suffered as a
result of the discrimination against them, plus interest. Back-
pay and interest due hereunder shall be computed in the
manner described in the remedy section of this decision.
(c) Expunge from its records any reference to the unlawful
disciplinary warning issued to David Downs on December 4,
1990, and notify him that this has been done and that the
warning will not be used against him in any way.10
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facilities in Calvert City, Kentucky, copies
of the attached notice marked ‘‘Appendix.’’11 Copies of the
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
notice, on forms provided by the Regional Director for Re-
gion 26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.