National Propane Partners, L.P.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1006 (N.L.R.B. 2002)

1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Propane Partners, L.P. and Chauffeurs,
Teamsters, Warehousemen and Helpers, Local
Union No. 525, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Case 14–CA–25471
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On September 30, 1999, Administrative Law Judge
John H. West issued the attached decision. The Respon­
dent filed exceptions and a supporting brief. The Ge n­
eral Counsel filed cross-exceptions, a supporting brief,
and an answering brief. The Respondent filed a brief in
response to the cross-exceptions. The General Counsel
and the Respondent filed reply briefs.
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, cross-exceptions, and briefs 1
and has decided to affirm the judge’s rulings, findings,2
and conclusions3 and to adopt the recommended Order as
modified.4
1. The judge found that discriminatee Beckham at-
tempted to suborn perjury by asking Jack Stice to falsely
state in a Board affidavit that Beckham had never
brought a gun onto the Respondent’s property. The
judge therefore indicated that Beckham’s backpay could
be tolled as of the date of the attempted subornation
(leaving the precise date to be determined in the compli­
ance proceeding). In agreement with the General Coun­
sel’s cross-exceptions, we find that the evidence is too
ambiguous to establish Beckham’s intent to induce Stice
to lie, rather than truthfully to deny that Beckham had
1 The Respondent has requested oral argument. The request is de­
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 There are no exceptions to the judge’s conclusion that the Respon­
dent violated Sec. 8(a)(1) of the Act when its manager threatened em­
ployee Michael Beckham with discharge and plant closure.
4 We shall modify the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001) and subst itute a
new notice in accordance with Ishikawa Gasket America, Inc., 337
NLRB No. 29 (2001).
threatened Stice with a gun. For this reason, we find that
Beckham is entitled to full reinstatement and backpay.
We do not agree with our dissenting colleague that
Beckham has admitted in this case that he intended to
request Stice to lie when he asked Stice to tell a Board
agent that Beckham “never” brought a firearm onto the
Company’s premises. Although Beckham had occasion-
ally brought a gun in the locked trunk of his car into the
Respondent’s parking lot, Beckham specifically denied
asking Stice to lie, indicated that he viewed the Com­
pany’s premises as limited to its building, and wanted
Stice to rebut only the specific allegations of the Re­
spondent’s recent legal complaint allegation against him;
i.e., that on a specific day, Beckham had brought a
loaded gun onto Respondent’s premises and threatened
Stice or Branch Manager Denise Yates with it. This al­
legation was, in fact, untrue. Considering the entirety of
Beckham’s testimony, we find the evidence insufficient
to show that Beckham knew that the testimony he sought
from Stice would be a lie.
2. In adopting the judge’s recommendation of a reme­
dial bargaining order, we note that the sole basis for the
Respondent’s exception to this remedy is its underlying
claim that the discharge of employee Michael Beckham
did not violate Section 8(a)(3) of the Act. The Respon­
dent makes no claim in its exceptions or brief that if the
Board affirms the judge’s finding of an unlawful dis­
charge of Beckham—which we do—a bargaining order
is not an appropriate remedy, and it offers no mitigating
evidence with respect to the judge’s analysis under NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). Although
the Board has discretion to reach remedial issues not
raised by the parties,5 under all of the circumstances pre­
sented, including the reasons articulated by the judge and
the absence of argument from the Respondent, we agree
that the Gissel bargaining order is appropriate.6
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, National
Propane Partners, L.P., Moro, Illinois, its officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(e) of the
judge’s recommended Order.
“(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
5 Miramar Sheraton Hotel, 336 NLRB No. 123 (2001).
6 Member Bartlett would find that a Gissel bargaining order is un­
warranted under the particular circumstances of this case and that tradi­
tional remedies would suffice to erase the effects of the Respondent’s
unfair labor practices.
337 NLRB No. 160
NATIONAL PROPANE PARTNERS, L.P. 1007
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
CHAIRMAN HURTGEN, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent vio­
lated Section 8(a)(1) of the Act by threatening employee
Michael Beckham with discharge and threatening plant
closure, and Section 8(a)(3) and (1) of the Act by dis­
charging Beckham for his union activity. I also agree
with Member Liebman that a Gissel1 bargaining order is
warranted under the specific circumstances in this case.
Finally, although I agree with my colleagues that
Beckham is entitled to reinstatement, I disagree that he is
entitled to full backpay. I agree with the judge that
Beckham attempted to suborn perjury by asking em­
ployee Jack Stice to falsely state, in a Board affidavit,
that Beckham had never brought a gun onto the Respon­
dent’s property. Thus, like the judge, I would toll
Beckham’s backpay as of the time he attempted to sub­
orn perjury (leaving the precise date to be determined in
a compliance proceeding).
The facts are these. On March 2, 1999,2 the Respon­
dent filed a complaint and a motion for a temporary re-
straining order (T.R.O.) against Beckham in the circuit
court of Madison County, Illinois. The complaint stated
that Beckham entered the Respondent’s premises “with a
loaded firearm on January 28, 1999,” and that Stice and
Branch Manager Denise Yates “were assaulted or threat­
ened” by the armed Beckham.3
On March 9, Beckham gave an affidavit to the Board.
Beckham testified in the Board proceeding as to this af­
fidavit. Beckham testified that he asked Stice to give a
Board agent a statement confirming that Beckham “never
brought a firearm on the company’s premises.”
Beckham also testified that, on occasions, he did have
a gun locked in the trunk of his car parked on the Re­
spondent’s lot in front of the Respondent’s facility.
Beckham initially testified that this was not indicative of
his bringing a gun onto the Respondent’s premises.
However, subsequently, Beckham testified that since the
Respondent owned the parking lot, Beckham had brought
1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

2 All dates are in 1999 unless otherwise indicated.

3 The court granted the temporary restraining order on March 2.

a gun onto the Company’s premises. Indeed, Beckham
finally admitted that his request to Stice to tell the Board
agent that Beckham never brought a firearm onto the
Company’s premises was a request that Stice tell a lie.
The judge cited Beckham’s testimony about Beck-
ham’s request of Stice, and found that Beckham at-
tempted to suborn perjury “in that he attempted to have
Stice make a false statement in an affidavit that he (Stice)
was going to give the Board.” The judge thereby relied
on Beckham’s admission that he requested Stice to tell a
lie.
My colleagues disagree with the judge and find that
“the evidence is too ambiguous to establish Beckham’s
intent to induce Stice to lie, rather than truthfully to deny
that Beckham had threatened Stice with a gun.” I dis­
agree. As noted, the complaint seeking the T.R.O. stated
that (1) Beckham entered the Respondent’s property with
a loaded gun on January 28; and (2) Beckham threatened
Stice and Yates with his gun. My colleagues say that
Beckham asked Stice to deny 2 above, i.e., to truthfully
say that he was not threatened. It may well be that
Beckham asked Stice to deny 2 above. Be that as it may,
however, it does not contradict the fact that Beckham
also asked Stice to deny 1 above. As noted above, the
judge found that Beckham asked Stice to testify in re­
sponse to 1 above, i.e., to say that Beckham never
brought a gun onto the Respondent’s property. As also
noted above, Beckham knew that such testimony by
Stice would be a lie.
Based on the above, Beckham suborned perjury and is
not entitled to full backpay.4
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
4 I agree with the judge that Beckham is entitled to reinstatement be-
cause he did not threaten Stice when he asked Stice to lie to the Board
agent. Compare, Lear-Siegler Management Service, 306 NLRB 393
(1993). I also agree with the judge that Beckham’s backpay must be
tolled at the time he asked Stice to lie to the Board agent (the exact date
to be established in compliance). Lear-Siegler Management Service,
supra.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with discharge if you select
the Teamsters, Local Union No. 525 as your bargaining
representative.
WE WILL NOT advise you that other employees who
supported a union in the past were discharged.
WE WILL NOT threaten you with plant closure if you se­
lect the Union as your bargaining representative.
WE WILL NOT threaten you with discharge if the union
organizing efforts are successful.
WE WILL NOT discharge any employee because the em­
ployee formed, joined, and assisted the Union and en-
gaged in concerted activities, and WE WILL NOT discharge
any employee to discourage you from engaging in these
activities.
WE WILL NOT in any manner interfere with, restrain, or
coerce you in the exercise of your rights under Section 7
of the Act.
WE WILL within 14 days from the date of this Order,
offer Michael Beckham 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 make Michael Beckham whole for any loss of
earnings and other benefits suffered as a result of his
discharge, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis­
charge, and WE WILL within 3 days thereafter notify Mi­
chael Beckham in writing that this has been done and
that the discharge will not be used against him in any
way.
WE WILL, on request, recognize and bargain with the
Teamsters, Local Union No. 525 and put in writing and
sign any agreement reached on terms and conditions of
employment for our employees in the following bargain­
ing unit:
All route sales representatives employed by us at our
Moro, Illinois facility, EXCLUDING office clerical
and professional employees, guards and supervisors as
defined in the Act.
NATIONAL PROPANE PARTNERS, L.P.
Mary J. Tobey, Esq., for the General Counsel.

William F. Dugan, Esq. and John W. Powers, Esq. (Seyfarth,

Shaw, Fairweather & Geraldson), of Chicago, Illinois, for
the Respondent.
Thomas A. Pelot, of Alton, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. A charge was
filed on March 3, 1999 by Chauffeurs, Teamsters, Warehouse-
men and Helpers, Local Union No. 525, affiliated with Interna­
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO (Union)1. On April 27, a
complaint was issued which alleges that National Propane Part­
ners, L.P. (Respondent) (a) violated Section 8(a)(1) of the Na­
tional Labor Relations Act (the Act), by threatening employees
with discharge and with plant closure if they selected the Union
as their bargaining representative, by advising employees that
other employees who supported a union in the past were dis­
charged and by advising an employee that employees should
bring problems to Respondent instead of seeking union repre­
sentation, and (b) violated Section 8(a)(1) and (3) of the Act by
discharging Michael Beckham on February 18.2 Respondent
denies violating the Act as alleged.
A hearing was held on June 22 in St. Louis, Missouri. On
the record, including the demeanor of the witnesses, and after
due consideration of the briefs filed by counsel for the General
Counsel and Respondent on July 28 and 29, respectively, I
make the following
FINDINGS OF FACT
Jurisdiction
Respondent, a Delaware corporation, with an office and
place of business in Moro, Illinois, is engaged in the sale and
distribution of propane and related products. The complaint
alleges, the Respondent admits, and I find that at all times ma­
terial, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
Facts
Joint Exhibit 1 is Respondent’s employee handbook which
was in effect at all times material in this case. As here perti­
nent, pages 208 and 209 read as follows:
The following rules apply to employees while on company
property.
1. Theft, vandalism, or careless destruction of com­
pany property or property belonging to a fellow employee
will not be tolerated and will be a cause for immediate
termination.
2. Drinking, using, possessing, and selling intoxicants
or narcotics, are prohibited.
3. Use or possession of firearms/weapons is prohibited.
4. Making fraudulent statements on employment appli­
cations or job records is prohibited.
1 Unless indicated otherwise, all dates are in 1999.
2 On brief counsel for the General Counsel moves to withdraw com­
plaint allegation 5Di. Respondent, on brief, points out that the General
Counsel failed to present any evidence as to this allegation and requests
that it be dismissed in its entirety. The General Counsel’s above-
described motion is granted.
NATIONAL PROPANE PARTNERS, L.P. 1009
5. Performing work or activities of a personal nature
on company time is prohibited.
. . . .
10. Excessive absenteeism is grounds for dismissal.

. . . .

A violation of any of the above is grounds for discipli­

nary action up to and including termination.
Michael Beckham was hired by Respondent to work as a
driver and sales representative at its Moro facility in January
1998.3 At the time two other people worked at Respondent’s
Moro facility, namely, Denise Yates, who is the branch man­
ager, and Jack Stice, who is a driver and sales representative
who services residential customers with a bobtail truck appar­
ently towing a tank trailer. Beckham delivered propane cylin­
ders to commercial customers, collected on accounts, main­
tained the cylinders in working order, and solicited new busi­
ness. At first he drove a large 1-ton stake-bed truck which held
up to 80 cylinders. Yates testified that she did not believe that
the truck Beckham drove when he was hired held up to 80 cyl­
inders; 4 and that Stice, who was hired 2 years before Beckham,
complained that Beckham started out at a higher wage rate than
Stice did and that this angered Stice.
In May 1998 Beckham received a $.30 an hour raise.
Beckham testified that he complained to Yates about the
backstabbing by Stice regarding how Beckham handled his
route; that he asked her how bad was she going to let it get
before she did something about it; and that he told Yates that he
and Stice were going to end up fighting and he asked her rhet­
orically if he was going to have to “kick . . . [Stice’s] ass.”
Stice testified that in the summer of 1998 he kept seeing
Beckham’s vehicle parked where his girlfriend worked 1 to 1-
1/2 hours a day and he complained to Yates about Beckham;
that subsequently Beckham told him that he should mind his
own business or he would “[b]eat my f’ing head in”; and that
this occurred before Beckham met with the representatives of
Local Union 525.
In June or July 1998, according to the testimony of
Beckham, Donald Brinkman, who is the district manager for
Hazelwood and the area manager for four other plants including
the Moro plant, came to the Morro facility to try to resolve the
personality problems. Beckham testified that Stice complained
that Beckham was hired in at more money than him and he only
received a $.27 raise in May while Beckham received a $.30
raise; that Stice also complained that Yates was “no kind of a
manager” and she was unprofessional and Beckham agreed;
and that he complained that he was sick and tired of Stice sec­
ond guessing him regarding how he was handling his route.
Beckham also testified that after Brinkman listened to the com­
plaints he told him, Yates, and Stice that there were only three
of them at the facility and the Company could replace any of
them or all of them; and that Brinkman also said that if they all
wanted to keep their jobs, they were going to have to work
3 Respondent also has facilities at Hazelwood and Washington, Mis­
souri. Local 610 of the Teamsters represents the employees at both of
these facilities.
4 Yates was not subsequently asked to give her opinion as to how
many cylinders the truck did hold.
together to make the place go. Beckham further testified that
Stice later apologized to him; and that he and Stice then got
along well together. Stice testified that he and Beckham agreed
to put their problems behind them.
In August 1998, Beckham received a raise from $9.30 to
$11.70 an hour when he resigned from Respondent to accept a
higher paying job and Respondent gave him the raise to retain
him.
In early August 1998, Beckham contacted the Teamsters Un­
ion. Beckham testified that at the behest of Stice he contacted
Respondent’s employee John Schulte at Respondent’s Hazel-
wood facility to get information about the Union; that he then
telephoned Teamsters Local 610 and was told that he should
contact Teamsters Local 525 in Alton; and that he spoke with
Tom Pelot at Local 525 and set up a meeting for August 3,
1998. Stice testified that the idea to meet with the Union was
“[a] little bit of both” he and Beckham; and that he did not have
a conversation with Schulte about unionization.
On August 13, 1998, Beckham and Stice met with Pelot,
who gave them union authorization cards.5 Beckham testified
that he read the card that evening and he then signed the card,
General Counsel’s Exhibit 3.
On August 14, 1998, Beckham saw Stice fill out his union
authorization card and sign it, General Counsel’s Exhibit 4.
Stice asked Beckham to mail his card with Beckham’s card to
Teamsters Local 525.
Several weeks later Beckham telephoned Pelot who indi­
cated that he had not forgotten but he was very busy.
Yates testified that on October 13, 1998, Beckham stormed
into the office and told her that “if Stice did not get out of his
face, he was going to beat his fucking head in”; that the week
before this, on October 7, 1998, Beckham called in sick and on
October 9, Friday, when she telephoned Beckham to find out if
he was coming in to work Beckham told her he would be in;
that he did not come in on October 9, 1998, and about 1 p.m.
that day Beckham called her and apologized, indicating that he
and his girlfriend got married; and that she reported what
Beckham said about Stice to Brinkman. On cross-examination
Yates testified that Brinkman came to Moro in October after
she telephoned him and they all had a discussion; and that
5 T he card reads as follows:
AUTHORIZATION TO TEAMSTERS LOCAL 525
Date……………..

I the undersigned employee of

…………………………………………………….authorize

Name of Company

Teamsters Local 535 to represent me in collective bargaining

(Please print) ……………………………….

Signature of Employee
…………………… ………………………..
Name of Employee Phone
…………………. ………………………………………
Home Address ………………… ………………
City State
…………………….. ………………………………………
Classs of Work Shift Badge No.
This card is for use in support of the demand of Teamsters Local
Union 525 for recognition or for an N.L.R.B. Election.
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brinkman told them all to get along. Subsequently Yates testi­
fied that Stice’s girlfriend saw Beckham at the gas station all
dressed up with his girlfriend on October 9, about 1 hour after
Beckham said that he would be in, and Stice’s girlfriend tele­
phoned him at work; and that Stice then told Yates about the
sighting and Yates told Beckham that is how she knew of his
whereabouts.
According to the testimony of Stice, approximately 2 months
before Beckham’s termination, which would place it about
December 18, Beckham told him that he wanted to get Yates
fired and he wanted to allege sexual harassment on the part of
Yates. More specifically, Stice testified that Beckham wanted
to indicate that Yates fondled one of them and the other would
verify this; and that he told Beckham “no.” On cross-
examination Stice testified that he did not tell Yates about this
scheme at this time because he thought it was a joke. On re­
buttal Beckham testified that he never asked Stice to collabo­
rate on any sort of sexual harassment charge against Yates and
he did not ever ask him to sign a statement that she had grabbed
anyone’s privates.
On cross-examination Beckham testified that after the New
Year’s holiday he told Yates that he was not going to do any
more service work that he had not been trained to do; that Yates
said “I’ll tell you to do it and you will go do it”; that he ex­
plained to Yates that he was not going to because there was too
much liability involved; that the issue arose when Yates sent
him out to look at a job and he told her that the customer
wanted to drill an 8 inch hole in the foundation to run the flue
through; and that the working relationship with Yates was not
so good after the first of the year.
Beckham testified that he waited until after the holidays to
telephone Pelot again; that when he telephoned in January Pelot
was out of town; that he left the telephone number of Respon­
dent’s Moro facility for Pelot to call him with instructions that
he should telephone the number in the early morning before
Beckham went out on his route; that a few days after he tele­
phoned the Teamsters hall to speak to Pelot, Yates called him
on his company-wide radio while he was out on his route and
told him that he had a call from a fellow from the Teamsters
Union and she did not know if it was important and maybe he
should return the call; and that later at the shop when he asked
Yates how she knew that caller was from the Union, Yates told
him that although the caller did not identify himself she dialed
*69 after he hung up and the person answering the telephone
answered “Teamsters.” Yates testified that she used *69 and
the woman answering the telephone said “Teamsters”; and that
she probably told Beckham on the radio that someone from the
Teamsters telephoned him.
About 1 week later, according to the testimony of Beckham,
Yates was handing out daily tickets to him and Stice in the
drivers’ room and she said, while focusing on him, “I guess you
know that anybody who has ever tried to get the union in here,
ended up being fired for one reason or another.” Beckham
testified that he replied that he had not done anything to get him
fired and he had a perfect work record; that he told Yates
“you’ve never written me up . . . , I’ve gotten no reprimands in
my file . . .”; and that Yates said “well, there is [sic] some of­
fenses that you don’t have to be written up for.” Stice testified
that Yates did not, in his presence in the drivers room, tell him
and Beckham or Beckham that other employees had tried to get
the union in and had been fired. Yates testified that she had
been at the Moro facility since 1992 and there has never been
any other attempt to organize that facility that she was aware
of; that she never told Beckham or anyone else that other peo­
ple who had pushed for or supported the union had been fired;
that she was not aware of anyone else that had ever sought to
organize that facility or any of Respondent’s other facilities;
and that she is aware that Respondent’s Peoria, Illinois and
Hazelwood facilities have union contracts.
On January 28 the Union filed a petition in Case 14–RC–
12018 to represent the drivers and sales representatives at Re­
spondent’s Moro facility. The parties stipulated that the peti­
tion was faxed to Respondent’s Moro facility on January 28.
Subsequently, according to the testimony of Beckham, Yates
told him “the company can’t afford to hire a service man. We
didn’t make enough money last year. The company will proba­
bly close this plant. We can’ pay union wages.” Beckham also
testified that Yates “continued with her statements about . . .
You’ll probably lose your job if you guys go through with the
union thing. We can’t afford to pay the union wages. The
company will probably close this plant”; and that Stice was
present on at least two occasions when Yates made these state­
ments. On cross-examination Beckham testified that in Febru­
ary before he was terminated Yates said that he would proba­
bly lose his job if he went ahead with the union. Stice testified
that Yates did not, in his presence in the drivers room, tell him
and Beckham or Beckham that the Company would close the
plant if the Union came in or that they would probably lose
their jobs if they went ahead with the Union. Yates testified
that she never had a conversation with Beckham or in
Beckham’s presence that the company would probably close
the plant because it could not afford union wages; and that she
never told Beckham or Stice that they would probably lose their
job if they went ahead with the union.
Stice testified that “in. .. . February, something like that”
Beckham displayed a gun to him at the workplace; that he did
not remember the exact date; that Beckham “just pointed a gun
at me and he said, what do you think of this. I said, yeah, it’s a
gun. He said, yeah, I carry this for protection when I do my
East St. Louis route. And that was basically it”; that when this
occurred he was motor fueling his truck at the plant; that he
thought that in describing the East St. Louis route Beckham
used the word “niggers”; that the weapon was a little silver gun
with a white handle and it was either a 22 or a 25 caliber but he
was not sure; that Beckham had the gun in a little black holster
that clipped on the back of his pant belt loop in the back; that
he waited 24 hours and then he told Yates about the gun inci­
dent, indicating that if she did not do something about it he was
going to have to look for other employment; and that he
thought that he told Yates about the gun incident the day
Brinkman came to the plant, February 2, or the day after. Sub­
sequently Stice testified that he did not report the alleged gun
incident to the police either at that time or later. On rebuttal
Beckham testified that he does not own a holster.
Beckham testified that he never brought a weapon on his
East St. Louis route; that he never told anyone at work that he
NATIONAL PROPANE PARTNERS, L.P. 1011
brought a weapon on his East St. Louis route; that he never
threatened anyone with a gun at work; that he never pointed a
gun at anyone at work; that he never brought a loaded gun to
work; that he did bring an unloaded, cased, small-caliber, semi-
automatic handgun in the trunk of his car to the Moro facility in
September 1998, when Stice expressed an interest in purchas­
ing a handgun; that Stice looked at the handgun while it was in
the trunk of the car and the weapon was not removed from the
trunk while on company property; that at the time Beckham’s
car was parked on company property where retail customers
normally park; and that he did not point the gun at Stice and the
gun was not removed from the case. On redirect Beckham
testified that Stice asked him if he could bring the handgun
where Stice could see it. When asked the following question
“Mr. Beckham has testified that in September 1998, that he
brought a gun to work in order to show it to you for the pur­
poses of selling a 25 caliber pistol to you. Did that event ever
occur?” Stice answered “I don’t remember that, no.” Stice
testified that he has owned a 12 gauge shotgun and a 22 semi-
automatic pistol probably for 10 to 15 years; that he has not
purchased a handgun since September 1998; and that he has
never had a discussion with Beckham about purchasing a hand-
gun from him or anyone else from September 1998 to the pre-
sent. On rebuttal Beckham testified that the gun he showed
Stice is small, very compact, and would fit in the palm of the
hand. Subsequently Beckham testified that he would not want
to carry a 25 in his waistband.
On February 2, as stipulated by the parties, Brinkman was in
Moro. Brinkman works out of Hazelwood. Beckham testified
that Brinkman came to Respondent’s Morro facility on Febru­
ary 2; that Brinkman met with him, Yates and Stice, in the
drivers’ room indicating that Respondent had not turned a big
profit in the forth quarter and that there were three entities look­
ing at purchasing Respondent, including two competitors and a
utility type company; that Brinkman, in answering a question of
Beckham indicated that he did not know the identity of the
potential purchasers; that Stice asked if the Moro facility might
be closed and Brinkman indicated that it was a possibility; that
when Stice then asked if they all should go out an look for jobs
Brinkman said that they should not jump to any conclusions,
just stay put and he would keep them informed; that Stice was
then dismissed by Brinkman and told to go on his route; that
Yates then told him that he had to stay behind because she
wanted to discuss his performance with Brinkman; that Yates
said that his performance was down from 6 months ago; that he
explained that the big stake-bed truck he had been driving had
broken down in November 1998, and since then he had been
working out of the back of a little pickup truck and he could not
transport the number of cylinders he needed;6 that he explained
6 Beckham testified that the engine on the stake-bed truck was
throwing about 4 or 5 quarts per 100 miles and it was decided that it
was not worth repairing; that the pickup he had to use since November
1998 was a service vehicle with a utility bed, and he could only trans-
port 24 cylinders at a time on it; and that this meant he could not give
all of his customers the number of cylinders that they could use when
he was on his rout and this sometimes necessitated catching them on
another route day or, if it was crucial, going back that same day or
having Yates take some cylinders out herself.
to Brinkman that he needed a bigger truck or a trailer; that he
complained to Brinkman about Yates performing specified
personal matters on comp time and Brinkman said that Respon­
dent does not have comp time; that he mentioned that Yates’
husband left the facility with a tank trailer on the back of his
personal truck and Brinkman said that he was not there to wit­
ness it, there were a lot of personal problems at the Moro facil­
ity and they were all going to have to make the Moro facility
work; that he went to load his truck and Brinkman approached
him and said “I wish you guys would have got a hold of me
sooner and let me know about these problems over here before
you went to the union with it”; and that he replied to Brinkman
that he guessed that it was too late for that now and Brinkman
shook his head to signify yes. Stice testified that Brinkman told
them that they were not going to lose their jobs and they should
hang in there and ride it out; that Brinkman identified the buyer
of the Company as Columbia Propane; and that during this
meeting Brinkman did not say anything about the Union or the
union petition which had been filed. On cross-examination
Stice testified that he never complained about Beckham’s rate
of pay; that he went to lunch with Brinkman on February 2;
that he had been to lunch with Brinkman several times before
when Brinkman took them all out to lunch; that Yates did not
accompany them to lunch on February 2; and that after lunch he
spoke to Yates about the gun incident and the sexual harass­
ment scheme. Yates testified that at this meeting Brinkman
basically outlined the content of a managers’ conference call
which she was not available for the day before regarding the
possible buy-out of the company; that during the meeting
Beckham asked Brinkman how it was going to affect getting
the Union in there and Brinkman answered that he was not at
liberty to discuss that; that Brinkman did not say anything else
about the Union petition or the union organizing; that during
her subsequent meeting with Brinkman and Beckham she indi­
cated that (a) she had been having productivity problems with
Beckham in that a lot of cylinder accounts were running out of
gas and she was getting telephone calls from the accounts, and
(b) Beckham was seen leaving the plant at approximately 3
p.m. the day before7 and Beckham did not notify her of this;
that the truck which Beckham normally used to transport pro-
pane cylinders had broken down and it was beyond repair; that
in January she was told that the corporate office was going to
be ordering a new vehicle to transport the propane cylinders;
that although he gave it as an excuse, the fact that Beckham had
to use a service utility vehicle without a lift gate, which vehicle
was only capable of carrying 24 cylinders (vis-a-vis 80 cylin­
ders on the cylinder truck with a lift gate which was normally
used), did not have anything to do with Beckham’s ability to
transport sufficient product to his accounts; that Brinkman indi­
cated to Beckham that he preferred that Beckham fill the cylin­
ders at the end of the day and not in the morning; that after
Brinkman left Stice asked her if Brinkman said anything else to
her about the buy-out and if they were still going to have jobs;
that she told Stice she did not know; and that she and Stice then
had the following conversation;
7 The normal working hours are 8 a.m. to 4:30 p.m.
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He said, do you believe that Beckham . . . [has] been
hounding me . . . to . . . he wants to write up a letter, send
it to the corporate office saying that at two different times
you havegrabbed each of our crouches [sic] and he wants
me to signit and go along with him and he’s been bugging
me andbugging me about it to sign it.
He said, well, I have something else to tell you and
youcan’t tell anybody. And I said, I won’t. He said, yeah,
hesaid , he pulled a gun on me. And I go what do you
mean. He said, yeah, he said last week he walked up to
me, I was standing by ... the truck and he pointed a gun at
me. And Iasked him—he said that he asked him what’s
that for and Beckham told him that he uses it—he carries it
when hegoes on the East St.— goes to the East St. Louis
Schnuck’s Store. And then he showed him how he keeps
it in back—keeps it in the back of his belt in a little holder.
Yates further testified that when she told her husband that
evening about what Stice said regarding Beckham, her husband
told her that she needed to tell somebody. On cross-
examination Yates testified that on February 2 she did not
know who was going to buy the company; that Stice did not
make a comment about a competitor might close the facility;
that at the meeting with Brinkman and Beckham, Beckham
complained to Brinkman about her behavior in that Beckham
complained that she stole his overtime, and he had to make
service calls on the weekends that he was on duty; that
Beckham did not speak to Brinkman in her presence about her
use of comp time or doing personal errands on company time;
that after Stice told her about the gun and sexual harassment
she told him for the first time that Beckham was trying to get
Stice’s bobtail (tanker) route; and that she told Beckham that
the company ordered a new truck in January. On redirect Yates
testified that at the time of the hearing herein, June 22, she had
a trailer for delivering propane cylinders; and that Beckham
could have just worked a little harder to get those cylinders
delivered using whatever vehicle Respondent had. Subse­
quently, Yates testified that when Beckham was making deliv­
eries with the stake-bed truck she could not recall that there
was ever a problem with Beckham making sure that his ac­
counts had sufficient cylinders on hand; and that she never
spoke to Beckham about his accounts not having sufficient
cylinders on hand while he drive the specialized truck. Subse­
quently Yates testified that Brinkman never took the three peo­
ple at the Moro facility out to lunch when he made his visits to
the facility; that once she and Brinkman went to Burger King;
that she was not aware that Brinkman and Stice went to lunch
together on February 2; and that Stice told her that
Beckham walked up to him and said, look what I got and
pointed a gun at him. And Stice said what’s that for. And
Beckham said, I use it—I carry it with me when I go on my
East St. Louis Schnuck’s route and he proceeded to show
Stice how he neatly tucks it back behind his—behind his
pants in his belt
Yates further testified that Stice did not tell her that
Beckham said that “this is for niggers in East St. Louis or any-
one else who gives me any problems.” On recross Yates testi­
fied that Stice did not say anything about a holster and Stice
“said he showed me where he keeps it in the back of his pants
on his waistband is exactly what he said.” Brinkman testified
that the conference call the day before was company-wide and
not limited to district managers; that it was the purpose that the
information would be distributed to all hourly employees as
well; that he went to the Moro plant to tell the people there
about the sale of National Propane to an unknown company at
that time; that the question of the sale with regard to the Union
was raised but he indicated that he was not at liberty to discuss
that matter; that the previous Friday Yates faxed a petition,
General Counsel’s Exhibit 2, to him which had been filed with
the National Labor Relations Board (Board); that Yates asked
him to sit in on a subsequent meeting that she was going to
have with Beckham; that during this second meeting Yates told
Beckham that he was not delivering as many cylinders as she
felt he was capable of delivering to several accounts on the day
she had expected him to do it; that Beckham indicated that
with the equipment he was assigned it was impossible; that he
told Beckham that he knew that they were short a vehicle but
he would have to work the best that he could with the equip­
ment that they had at the time; that Beckham felt that he was
doing a good job, as much as he could with the equipment he
was assigned; that he thought, in honesty to Beckham, it would
have been a little harder for him to make the deliveries; that on
February 2 he had lunch with Stice at Hardee’s Restaurant; that
during lunch Stice asked about the Union and the possible sale
of the company and he told Stice he was not at liberty to dis­
cuss anything about the Union; that following his meeting with
Yates and Beckham, he did not, to the best of his knowledge,
tell Beckham that he should not have gone to the Union and he
should have contacted him first; and that he never told
Beckham that he should take his problem to him instead of
seeking union representation. On cross-examination Brinkman
testified that he was aware that there was a lot of personality
problems at the Moro facility.
Beckham testified that after this meeting with Brinkman he
spoke to Stice about going over Brinkman’s head and writing a
letter to Don Ellis complaining about Yates; and that the letter
was not going to refer to sexual harassment.8 On redirect,
Beckham testified that Stice said if Beckham wrote the letter,
he would sign it; and that he never did write the letter because
he decided that he had stuck his head out too far by going to
Brinkman.
Stice testified that, after the meeting with Brinkman, he told
Yates about the gun incident and about Beckham’s proposal
that he say that Yates fondled him and Beckham was going to
be his witness and back him up. On cross-examination Stice
testified that several times Yates told him that Beckham wanted
his bobtail (tanker) route and while he thought this was funny it
disturbed him.
Yates testified that on February 3 she telephoned Brinkman
and told him that she had some confidential information she
wanted to fax to him; and that she then faxed a letter to Brink-
man, Respondent’s Exhibit 3, which, among other things, de-
8 Beckham denied that he ever asked Stice to falsify a report against
Yates indicating that she had sexually harassed them by grabbing their
private parts.
NATIONAL PROPANE PARTNERS, L.P. 1013
scribes her conversation with Stice on February 2 and which
requests that Beckham be removed before further problems
escalate.9 Brinkman testified that he received the fax from
Yates; that he telephoned his supervisor, Ellis, and faxed Yates’
memorandum to him; that subsequently Jim Schreiber, who
was Respondent’s director of human resources and who at the
time of the hearing herein no longer worked for Respondent,
told him that they would need a written statement from Stice;
that he spoke to Stice about needing a written statement but he
could not recall the dates of these conversations; that initially
Stice was not willing to give a written statement but Schreiber
indicated to Brinkman that a written statement was necessary;
and that, as set forth below, on February 12 Stice signed a
statement. On cross-examination Brinkman testified that when
he first asked Stice for a written statement Stice refused; that
later he received a telephone call from Stice “wanting to know
. . . what action we were going to take because he was becom­
ing more concerned”; that he told Stice that he needed a signed
statement; that he did not draft the statement and he did not
know who did; and that he received the statement by fax.
Schreiber testified that he was given a copy of the letter Yates
faxed to Brinkman; and that he then discussed the matter with
corporate counsel C. David Watson, and general manager Ellis,
and it was decided that they needed a signed statement from
Stice. When asked why did they think it was important to have
a signed statement Schreiber testified as follows:
A. Well, everybody signs papers, signs checks, signs mort­
gages, there is more weight and we certainly determined that
it was appropriate to give more weight to a statement that was
signed by somebody as opposed to having a third- hand ac­
count by the manager.
Schreiber further testified that at the time he was not aware
of the personal issues between Yates, Stice, and Beckham; that
he never became aware of the so-called history of issues be-
tween them; and that he had a conversation with Brinkman
about the importance of a signed statement by Stice.
Stice testified that the day after he told Yates about the gun
incident and the sexual harassment proposal he spoke with
Brinkman who told him that if he wanted the Company to do
anything about the matter he would have to sign an affidavit or
give a signed statement; that he did not immediately agree to
sign a statement for Brinkman, telling Brinkman that he would
have to think about it; that he signed the statement in less than a
week; and that he signed the statement 9 days later. On cross-
examination Stice testified that when he met with Brinkman
about the handgun incident and the sexual harassment allega­
tion Yates was present; that he told Brinkman what he knew
and Brinkman wrote it down in front of him and said that he
had to have it typed; and that when he gave Brinkman the in-
formation for the statement he gave the approximate date of the
28th for the incidents. Although specifically asked who was
9 The letter reads in part as follows:
Jack Mike Stice also told me that 1 day last week , Michael
Beckham showed him a real gun and had pointed it at him saying
See what I got.’ Jack Mike Stice was startled and asked what it
was for and Michael Beckham told him it was for when he went
on his cylinder route to the East St. Louis Schnucks store.
the person who interviewed Stice, Brinkman did not specifi­
cally testify about a face-to-face interview with Stice with
Yates present regarding the alleged gun incident where Brink-
man took notes and he said that he had to have it typed. Brink-
man did testify that he was talking to Stice and he passed the
information on to the home office and a statement was written
based on the “discussion I had with Mr. Stice and” also Yates’
letter received herein as Respondent’s Exhibit 3. Schreiber
testified that Brinkman made him aware of Stice’s
unwillingness to sign a statement; and that he subsequently
discussed the situation with Watson and Ellis and then told
Brinkman that they “were very hesitant at that point to take
verbal information we received second-hand from Denise Yates
and make a decision regarding termination of employment.
And we said, its very important at this point to get a signed
statement from Mr. Stice.” On cross-examination Schreiber
testified that he certainly had concern as to whether or not
Stice was telling the truth about these accusations and that was
the reason “we requested that he sign his name to the allega­
tions.”
On February 3 Beckham stopped at Andy’s True Value
Hardware Store in Worden, Illinois on his way home from
work and made a cash payment for a handgun that he wanted to
order. Yates testified that at the end of April she was invento­
rying the mileage of the utility truck and in it she found a re­
ceipt made out to Beckham dated “2-3-1999” for “1 CZ50
32ACP Pistol,” Respondent’s Exhibit 4.
On or about February 5 Beckham, while using a company
vehicle, stopped at Wal-Mart in Wood River, Illinois and pur­
chased three boxes of cartridges for the handgun he ordered on
February 3. Beckham testified that the ammunition was in the
factory cartons and in a Wall-Mart bag; that he brought the
ammunition into the Morro facility and placed it on his desk;
that Stice asked him what he had in the bag; that he told Stice
that he stopped and picked up some “shells for my 32”; and that
he never showed the bullets to Yates. On cross-examination
Beckham testified that the ammunition was on his desk for
about 10 minutes at the end of the day; that the ammunition
was not placed on the countertop; that he was passing the Wal-
Mart and purchased it at that time to save a trip back down to
Wal-Mart later; and that the hardware store where he ordered
the handgun had just started to sell guns and did not sell am-
munition. On redirect Beckham testified that he buys ammuni­
tion at Wal-Mart because it is cheaper. Stice testified that on
one occasion Beckham brought some “bullets” into the plant
and he placed them on his desk and on the counter; and that the
“bullets” were in a clear plastic bag and the white boxes were
marked “Winchester.”
On cross-examination Stice testified that he did not ask
Beckham what was in the bag, he did not ask him if he had
gone shopping that day and he did not talk to him about the bag
at all. Yates testified that at the end of the day on February 8
Beckham placed “little bullets to a pistol” up on the counter in
front of her desk; that she “could tell it was bullets . . . [she]
could see them”; that the “bullets” were in a Wal-Mart bag; and
that she could see the “bullets” so the container inside the Wal-
Mart bag was clear plastic. Subsequently Yates testified that
the “bullets” were in a blue plastic bag; that the “bullets” were
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
packaged in what looked like a clear container which she could
see through because she could see the “bullets”; that she could
not see all of the packaging; and that what she saw of the inner
packaging was clear. On rebuttal Beckham testified that the
“bullets” were in three white cardboard boxes with Winchester
in red printed on the box; and that he did not have any “bul­
lets” in a plastic see-through container.
On February 12 Stice signed a statement, Respondent’s
Exhibit 2, which reads as follows:
STATEMENT OF JACK MILE STICE
1. On or about January 28, 1999 I was approached by
Michael Beckham who requested that I verify and legitimize a
false story that Denise Yates (the Bethalto, IL District Man­
ager) had grabbed both his and my privates so he could file a
sexual harassment charge against Denise Yates. I told Mi­
chael Beckham that Idid not want any part of falsifying a
story for a sexual harassment charge.
2. While at work and while on company property, on or
about January 28, 1999 Michael Beckham showed me a gun
which was pointed at me. I asked him what the gun was for
and he indicated that he took the gun with him when he went
to the East St. Louis Schnucks area. He indicated that he
placed the weapon on his back inside his belt.
3. I told District Manager Denise Yates about theseincidents
on or about February 3, 1999.
4. Since these incidents, particularly the weapon incident, I
have a great concern for my personal safety and well being.
The statement is typed except for the signature, the date of
the signature, and the handwritten, underlined numbers “28” in
paragraphs 1 and 2. On cross-examination Stice testified that
he was not sure of the date when Beckham requested that he
legitimize a false story; that this request was made several
different times; that the third time occurred on January 28
which was the same day Beckham showed him the gun; that
Beckham made the sexual harassment proposal about 8:30 a.m.
on January 28 and later that day at 10:30 or 11 a.m. Beckham
pointed a gun at him; that he was sure that January 28 was the
day Beckham showed him the gun; that he knew that Beckham
went to East St. Louis on Thursdays since he himself used to
drive that route; that he felt threatened by Beckham pointing
the gun at him and saying “this is for them niggers in East St.
Louis or anybody else that gives me any problems”; that he felt
that Beckham was referring to him since he told Yates that
Beckham was goofing off and it caused a problem for
Beckham; that Beckham spent at least a couple of hours a day
at Carrol Supply where his girlfriend works; that it was an on-
going problem during the last 6 months Beckham was em­
ployed at Respondent;10 that he complained to Yates a lot about
10 GC Exh. 8 is a subpoena duces tecum which requests, among
other thin gs, “1. Route sheets or other documentation showing al pro-
pane deliveries to . . . Carrol Supplies in Roxana, Illinois and any time
during the period November 1, 1998 through Feebruary 18, 1999,
including, but not limited to, the date cylinders were delivered and the
identity of the employee delivering cylinders.” Counsel for Respondent
did not dispute General Counsel’s representation that he advised her
that there was no route cards for this customer for the above-described
period and that she did not receive from Respondent any documents
it; that he told Yates about it twice; that Yates did not tell him
that she had spoken to Beckham about this problem; and that it
was long before the gun incident that he told Yates about
Beckham goofing off. Stice further testified that blank spaces
were left in paragraphs 1 and 2 of his statement as set forth
above for him to fill in the date, viz., 28th. On cross- examina­
tion Brinkman testified that he brought the statement which was
faxed to him to Stice at the Moro plant; that there were blanks
for date of January 28; that Stice determined the date; that pre­
viously Stice told him that the incident occurred in the latter
part of January; that previously he had discussed the gun inci­
dent with Stice; and that the statement was based on informa­
tion he gave the home office from his discussion with Stice and
from Yates’ memorandum. Schreiber testified that he prepared
the statement based on conversations that he had with Yates
and Brinkman and the information that was contained in Yates’
above-described letter; that he faxed the statement to Brink-
man; that he left the actual date in January blank because “the
statement wasn’t real clear when the incident occurred and so
he worded it with a blank there so Stice could fill it in”; and
that he did not go to Moro and speak to Stice because “[t]he
letter that Ms. Yates wrote was pretty detailed in terms of what
occurred. I also had some subsequent conversations with her
and Mr. Brinkman.”
According to the testimony of Schreiber, the decision to ter­
minate Beckham was made on Monday, February 15 after they
received the statement of Stice. Schreiber testified that he,
Watson, and Ellis made the decision to terminate Beckham;
that Rule 3 of the employee handbook, as set forth above, spe­
cifically states use of or possession of firearms/weapons is pro­
hibited on company property and it is grounds for disciplinary
action up to and including termination; and that at the time of
the termination he had been in human resources with Respon­
dent for approximately 4 years and during that time he had
never had a situation where an employee brought a weapon
onto company property for any reason. When asked why Re­
spondent did not give Beckham some other form of discipline
Schreiber responded as follows:
A. I think it is appropriate in today’s environment particu­
larly with workplace violence that companies have a zero tol­
erance policy relative to weapons. That was our position rela­
tive to use of alcohol while somebody was driving our com­
pany vehicle. It was our policy relative to possession of
weapons, zero tolerance.
Schreiber also testified that Beckham would have been terminated
if Respondent was aware that he brought a gun onto company
property to show it for sale.
On the morning of February 18 Beckham made a service call
with the service pickup truck at Florissant, Missouri. Upon his
return to the Morro facility he noticed that the taillights on the
service truck were not working. He told Yates and she told him
to take the Ranger assigned to her. Beckham testified that it
responsive to that portion of her subpoena. Counsel for General Coun­
sel requested that I infer from the lack of documents that there were no
deliveries to Carrol Supplies from November 1998 through February
18, 1999
NATIONAL PROPANE PARTNERS, L.P. 1015
was a Thursday; that his Thursday route included East St.
Louis; that when he returned to the Moro facility about 4:20
p.m. that day he saw a Madison County Sheriff’s car parked in
the company parking area with another car with an Iola license
plate; that when he got out of the truck the Madison County
Sheriff, accompanied by Schreiber, asked him to identify him-
self and whether he was carrying any guns or weapons; that the
Sheriff frisked him; that the Sheriff searched the Ranger and
then the service truck at the behest of Schreiber but found noth­
ing; that he, Brinkman and Schreiber went into the driver’s
room in the facility; that Schreiber then said “today is your last
day at National Propane . . . [and] I want your keys and I want
your pager”; that he asked why pointing out that they did not
find anything; that Schreiber said that they could not take that
chance; that Schreiber asked him if he ever had a gun in the
company truck to which he answered no; that Schreiber asked
him if he ever had a gun in his personal car out in the parking
lot and he replied maybe on one occasion; that Schreiber asked
him what occasion that would be and he replied “if . . . he] was
going to the gun shop after work to sell it or to try to trade it or
if .. . [he] was going to the shooting range. . . .”; that he ex­
plained to Schreiber that it would have been cased, unloaded
and locked in the trunk of his car which is a legal carry in Illi­
nois; that Schreiber said that he was terminated irregardless
because they could not take that chance; and that Schreiber told
him that they were going to file an order of protection against
him because they did not want any trouble out of him. On
cross-examination Beckham testified that if he had the time he
goes shooting twice a week after work—sometimes using
weapons supplied at the range—and on more than one occasion
he would have a weapon in the trunk of his car at work; and
that he did not explain this to Schreiber on February 18. On
cross-examination Yates testified that February 18 was chosen
to discharge Beckham because that was the day that he was
supposed to go on his East St. Louis route, she had agreed with
Schreiber to have a sheriff there to search Beckham, and
Schreiber said that he wanted to be in Moro when the sheriff
came to see if Beckham was carrying a gun in his company
vehicle; that the purpose of having the sheriff there was to see
if Beckham was carrying a gun in his company vehicle or on
his person; that she was present in the drivers room when
Schreiber terminated Beckham and Schreiber never said any-
thing to Beckham about the sexual harassment accusation; that
she never said anything to Beckham about the sexual harass­
ment accusation; that she never asked Beckham for his side of
the story; that she never confronted Beckham with Stice’s accu­
sation about the gun either; and that at the time of Beckham’s
discharge Stice was making $10.25 an hour. Brinkman testified
that he did not participate in the decision making process to
terminate Beckham; that he was present when Schreiber told
Beckham that he was being terminated and he heard Schreiber
ask Beckham if he ever had a gun on company premises; that
he heard Beckham reply that “he may or may not have had to
stop by a shop sometime and pick up a gun because he did own
several guns, but, you know, during the course of the day”; and
that Beckham did not reply that he’d brought a gun to work one
day to show to Mr. Stice because he was interested in selling
that gun to Mr. Stice. On cross-examination Brinkman testified
that after the above-described statement was signed on Febru­
ary 12, he discussed with Schreiber that since Beckham was
going to be making his East St. Louis delivery on February 18
that would be the date to bring the sheriff to the office to search
Beckham’s vehicle; that the date of February 18th was chosen
because that was the date that Beckham was going to do his
East St. Louis route; that the sheriff was going to search
Beckham and the vehicle to see if Beckham was carrying a gun;
that the sheriff was also there for the safety of the people in­
volved who knew “of the gun incident or the alleged gun inci­
dent” (emphasis added),11 that campaign literature was distrib­
uted to employees encouraging them to vote against the Union
and it was a fair assumption that Respondent was not in favor
of the Union representing the employees at Moro; and that no
gun was found on February 18. Schreiber testified that on
February 18 in the drivers’ room he asked Beckham if he ever
had a gun on company property and Beckham denied it; that he
told Beckham that he had information to the contrary and
Beckham’s employment was being terminated; that Beckham
“did say something, he might have had one in his vehicle when
he was selling it or something to that effect” but he never said
that he had actually brought one on the premises to show Stice;
that he was partly responsible for asking the sheriff’s office to
send an officer to Respondent’s Moro facility explaining to the
Sheriff’s Department “that we were terminating an employee
that we had a written statement, had carried a weapon on com­
pany property, and asked for them to be present”; that “they
were there because of our concern for our safety, not to find a
weapon on Mr. Beckham; that he told Beckham that there was
going to be a request for a restraining order; that the weapon
issue was the significant issue and the alleged sexual harass­
ment charge paled in comparison; that February 18 was picked
as the day to have the termination meeting with Beckham be-
cause there was some discussion that that was the day that he
made his visit to East St. Louis; that also the decision was made
on Monday, he had commitments on Tuesday and Wednesday
morning and he drove to St. Louis on Wednesday afternoon so
he could take the action on Thursday; that Respondent thought
it was important for somebody from the Cedar Rapids, Iowa
corporate office to be at the facility and manage the termination
process; that Thursday was the first available day that he had
that week; that in reaching the decision to terminate Beckham
he did not have any knowledge that Beckham had any particu­
lar role one way or the other in the union’s representation peti­
tion; and that Yates had told him about Beckham bringing am-
munition into the Moro plant immediately after it happened on
February 8. On cross-examination Schreiber testified that in
1998 Respondent gave out a high powered rifle as a perform­
ance premium to an employee; that he was not interested in
trying to catch Beckham in the act; that the decision that
Beckham was going to be terminated was made on Monday,
February 15 in Cedar Rapids; that the sheriff was there just to
11 Interestingly, while Brinkman testified on cross-examination that
it would be normal to be concerned with wanting to determine whether
or not Stice was telling the truth, and while he discussed the “alleged”
gun incident with Stice, neither he nor Schreiber, nor Yates asked
Beckham about the “alleged” incident before the decision was reached
to terminate Beckham.
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
insure the safety of the of the employees and himself; that he
knew that Thursday was the day Beckham generally made the
East St. Louis run “but it was not a given on any week”; and
that it made no difference that there was no substantiation of
Stice’s story as it turned out. Subsequently Schreiber testified
that notwithstanding the fact that Stice’s statement reads “I
asked him what the gun was for and he indicated that he took
the gun with him when he went to the East St. Louis Schnucks
area,” the fact that Beckham did not have a gun on the day he
was supposed to go to East St. Louis did not make him ques­
tion the allegation even though the sentence does not read
“sometimes.”
Respondent’s Exhibit 1 is a temporary restraining order filed
March 2 which, as here pertinent, contains the following lan­
guage:
NOW THEREFORE, IT IS HEREBY ORDERED THAT:
1) That Defendant Michael Beckham is enjoined from
going about any premises owned by Plaintiff, National
Propane, a limited partnership, in the State of Illinois and
that he is further enjoined from coming about or going
upon any of the property owned by any of National Pro-
pane’s agents, servants, and employees provided further
that he is specifically enjoined from going upon the prop­
erty of Denise Yates in Dorsey, Illinois or coming about
her person and also the property of Jack “Mike” Stice in
South Roxana, Illinois or anywhere near his person.
2) That this Temporary Restraining Order is given
without notice and that the Court finds that Defendant
could be armed and dangerous and due to his termination
from his employment with National Propane, vengeful and
filled with malice so as to act immediately to the harm of
the property and the individuals from which he is enjoined
from.
General Counsel’s Exhibit 5 are the documents pertaining to
the temporary restraining order. One, the complaint, contains,
as here pertinent, the following:
4) That because, Defendant Michael Beckham came
upon the premises owned by National Propane with a
loaded firearm on January 28, 1999, Plaintiff has a sub­
stantial fear that Defendant, Michael Beckham may come
upon its premises with said firearm for the purposes of do­
ing bodily harm and or property damage. [Emphasis
added.]
5) That specifically, Jack “Mike” Stice and Denise
Yates were assaulted or threatened by the presence of Mi­
chael Beckham at the facility while carrying said firearm.
There is no evidence of record in this proceeding that
Yates was directly “assaulted or threatened by . . .
Beckham at the facility while carrying ... a firearm.”
Yates testified that the restraining order was her idea; and
that she suggested it to Schreiber. Schreiber testified that
Yates suggested the restraining order in a telephone con­
versation before he went to Respondent’s Moro plant.
On cross-examination Beckham testified that in his March 9
affidavit to the Board he indicates that he asked Stice if he
would give a Board agent a statement confirming that he never
brought a firearm on the company’s premises; that he did not
believe that this was a lie because having it locked in the trunk
of his car “was not bringing it in the company’s premises . . .
[in that] it was a public parking lot on Route 140”; that the
Company owns the parking lot but everyone parks there that
comes there for business; that it would not have been a true
statement that he never brought a firearm on company prem­
ises; and that Stice told him that he would not lie for either
side. On further redirect Beckham read the following portion
of his March 9 affidavit which he gave to the Board:
I’m sure that I was working on January 28, 1999, and I never
brought a weapon to work. This is the first time I had heard
that I had brought a firearm to work on 1/28/99. I had never
done anything remotely close to what the company is alleging.
It is completely ludicrous. If I really did bring a firearm to
threaten anyone on January 28, 1999, then why would the com­
pany wait until February 17, which should have been the 18,
1999, to terminate me for this alleged offense. It just doesn’t
make any sense that they would wait almost 3 weeks to report it
to the authorities.
On March 15, 1999 Stice gave an affidavit to the Board,
General Counsel’s Exhibit 6. As here pertinent, it reads as
follows:
4. Sometime in late January (Jan. 28, 1999) I was fu­
eling my truck in the parking lot at work. Then, Beckham
came up to me and pointed a gun at me. The gun was
about one foot away from me. It was a silver 25 semi-
automatic.
5. Beckham said, ‘what do you think of this?’ while
he pointed it at me. I said, ‘yeah, well it’s a gun.’ He
said, ‘I carry on my East St. Louis route because there’s a
lot of crime and I don’t trust them niggers over there’
was scared and in shock. He walked away. I took his ac­
tion as a form [of] intimidation.
6. About 1 week earlier, I had informed Yates that I
had seen Beckham’s truck parked at Carol Supplies, the
place where Beckham’s girlfriend works, on many occa­
sions. I didn’t think he should be wasting work time there.
. Several days later, Yates told me that she’d spoken
to Beckham and told him to stop goofing off.
8. At . . . [the] time, Beckham approached me in the
parking lot and said, ‘I’m going to beat your fucking head
in if you don’t mind your own business.’ I didn’t say any-
thing. He was screaming and hollering at me when he said
this. I figured he was going to hit me.
Stice testified on cross-examination, with respect to the affi­
davit, that a week before the gun incident he probably had
again informed Yates about seeing Beckham’s truck parked at
Carrol Supply, that he told her two different times; that this was
the second time and this time Yates told him that she had spo­
ken to Beckham and told him to stop goofing off; that this was
when Beckham approached him in the parking lot and told him
and said that he was going to beat his “f’ing head in” and this
was within days of the gun incident, within the week of the gun
incident and that is why he felt so threatened; that he did not
know if the gun was a 25 caliber or a 22 and he told the person
taking the affidavit he did not know; and that the affidavit does
not refer to a black holster.
I
NATIONAL PROPANE PARTNERS, L.P. 1017
Yates gave the following testimony on cross-examination:
Q. Okay, now did you have a problem with Stice at—
concerning GM Scrap?
A. I didn’t have a problem, he had forgotten to—there
are certain accounts where they will pay cash and he had
forgotten to turn the money in and I just had to remind
him.
. . . .
A. I confronted him immediately and he turned in the
money.
Q. Didn’t he give— didn’t you have to call GM Scrap
—didn’t he tell you initially that he had not made delivery
there?
A. He didn’t know what I was talking—he told me
that he didn’t know what I was talking about.
Q. Okay, and then you had to call GM Scrap?
A. Yes.
Q. And they confirmed that he had made a delivery?
A. Yes, that was the next day, yes.
Q. Okay, and then you asked Stice for the money?
A. Correct.
. . . .
A. No, he brought it, I didn’t have to ask him for the
money, he offered it to me.
Q. Okay, you reminded him that he had made a deliv­
ery—or you told him that you had talked to GM Scrap and
they had said that he had made a delivery?
A. I had walked outside and asked Stice if he deliv­
ered to GM Scrap. This was—they always turn in the re-
port and the money that—either that day or the very next
day, and I had asked him and he had a puzzled look like,
no. And then I said well you always collect and they usu­
ally pay you on delivery, well then I went inside and
called and maybe an hour later he came in and gave me
the money.
Q. Okay, didn’t you report this to Brinkman?

A. Yes.

Q. Okay, but no action was taken against Stice, correct?

A. It wasn’t something that—

. . . .
THE WITNESS: It wasn’t something that was uncom­
mon.
The guys put it in their wallet and forget.
Analysis
Paragraph 5A of the complaint alleges that in mid-to-late
January 1999 Respondent, by branch manager Yates, at Re­
spondent’s Moro facility, threatened employees with discharge
if they selected the Union as their bargaining representative,
and advised employees that other employees who supported a
union in the past were discharged. Paragraph 5B of the com­
plaint alleges that in mid-to-late January 1999 Yates threatened
employees with plant closure if they selected the Union as their
bargaining representative. And paragraph 5C of the complaint
alleges that in early-to-mid February 1999 Yates threatened an
employee with discharge if the union organizing efforts were
successful.
On brief Counsel for General Counsel contends that where
conflict exists between the testimony of Beckham and the tes­
timony of Respondent’s witnesses Beckham should be credited;
that while Beckham testified in a straightforward manner, Stice,
among other things, fabricated testimony about seeing
Beckham’s truck at Carrol Supplies on or about January 21,
1999 because, as demonstrated by Beckham’s testimony, the
lack of any documents showing deliveries to Carrol Supplies
after October 1998, and the testimony of Beckham’s wife that
she did not work at Carrol Supplies after the beginning of
November 1998, there would have been no reason for the truck
to be there; that Yates was not a credible witness in view of her
testimony about (a) being able to see the actual “bullets” which
were in a cardboard box, (b) Beckham receiving a dispropor­
tionately large wage increase because he needed it and not be-
cause he was a valued employee, and (c) Beckham’s alleged
lower productivity not being due to the breakdown of his stake
body truck; that to the extent that Respondent argues that Yates
was simply making a prediction based on Respondent losing
money, the Board has recognized the right of an employer to
make predictions as to the precise effects he believes unioniza­
tion will have on his company but the predictions must be care-
fully phrased on the basis of objective fact to convey an em­
ployer’s belief as to demonstrably probable consequences be­
yond his control, Engineered Control Systems, 274 NLRB
1308, 1313 (1985); and that Yates’ statements contain no such
objective fact and are simply threats of discharge and plant
closure if employees unionize.
Respondent on brief, argues that the complaint should be
dismissed in its entirety because the sole witness offered by the
General Counsel to support every allegation in the complaint is
an admitted liar who attempted to suborn perjury; that it is
axiomatic that “[t]he testimony of a perjurer is inherently unre­
liable and, absent corroboration, should not be the basis for
finding a violation of the Act”, McCotter Motors Co., 291
NLRB 764, 768 (1988); that as pointed out by the Board in
Lear-Siegler Management Service, 306 NLRB 393, 394 (1992),
“threats to induce a witness to testify in a certain way in a
Board proceeding constitute serious misconduct . . . [and] the
integrity of the Board’s judicial process depends on witnesses
telling the truth, as they see it, without fear of reprisal or prom­
ise of reward”; that Beckham lied at the hearing herein about
the handgun sale to Stice, he lied when he claimed that he only
brought a gun to work on one occasion, and he lied to the
Board when he claimed the Company’s allegations were “com­
pletely ludicrous”; that Beckham attempted to have Stice com­
mit perjury and Beckham thereby showed a flagrant disregard
and disrespect for the integrity of the Board’s process; that
General Counsel’s attack on Yates’ and Stice’s credibility
failed to demonstrate that the company violated the Act; that
even if General Counsel were successful in calling into ques­
tion the accuracy of Stice’s and Yates’ testimony, at best Gen­
eral Counsel could only establish that these two employees
were motivated by personal animosity and not anti-union ani­
mus; that even if a story was concocted to get a coworker fired
it would not be a violation of the Act in that an employer does
not violate the Act as long as its actions were not motivated by
union animus, Borin Packing Co., 208 NLRB 280 (1974); that,
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at best, General Counsel demonstrated that Yates and Stice had
a personal vendetta against Beckham which resulted in
Beckham’s termination which, even if true, failed to show the
Company violated the Act; that assuming arguendo that Yates
told Beckham that the plant may close and that they may lose
their jobs if the Teamsters become their bargaining representa­
tive, the Company still did not violate the Act; that since NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), the Board has con­
sistently ruled that an employer may inform its employees
about the possible consequences of union activity; that employ­
ers may lawfully discuss the possibility of plant closure, Som­
erset Welding & Steel, Inc., 314 NLRB 829 (1994), and the
possibility of job loss, CPP Pinkerton, 309 NLRB 723, 724
(1992); that even if Beckham’s uncorroborated allegations
could stand on their own, there is still no violation of Section
8(a)(1) since General Counsel offered no evidence to refute the
fact that the Moro facility was not making money; and that
Yates alleged statements are legitimate possible consequences
union representation may have on a company in a fragile finan­
cial state.
All three of the people who worked at the Moro facility at
the involved time have lied at one time or another. The differ­
ence between Beckham, on the one hand, and Yates and Stice,
on the other hand, is that Beckham, while under oath, attempted
to tell the truth. The other two, on the other hand, decided, in
my opinion, that it was not necessary to even attempt to tell the
truth while under oath. As noted by Counsel for General Coun­
sel above, both Yates and Stice were caught being less than
truthful under oath about material facts on more than one occa­
sion and neither one thought that it was necessary to attempt to
explain, backpedal or recant. In my opinion Yates made the
statements she is alleged to have made in paragraph 5 of the
complaint. Some of the statements were outright threats of
discharge, with some made in terms of probable discharge.
Others were made in terms of what would probably happen to
the plant. While an employer may inform its employees about
the consequences of union activity, as pointed out by Counsel
for General Counsel, the predictions must be carefully phrased
on the basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences beyond his control.
Yates’ statements, however, were made in a coercive context in
that the first time she engaged in this type of conduct her state­
ments were not couched in terms of probable consequences
beyond the employer’s control. With respect to Respondent’s
above-described argument that General Counsel offered no
evidence to refute the fact that the Moro facility was not mak­
ing money, it was not established on the record herein that the
Moro facility was not making money. Indeed, the evidence of
record indicates that Yates said that “the company can’t afford
to hire a service man. We didn’t make enough money last year.
(Emphasis added.) How much is “enough” was never estab­
lished. But “enough” is not the same as “not making money.”
In any event, Yates’ statements were not predictions which
were carefully phrased on the basis of objective fact to covey
Respondent’s belief as to demonstrably probable consequences
beyond its control. Respondent violated the Act as alleged in
paragraphs 5 A, B, and C of the complaint.
Paragraph 5D of the complaint alleges that on or about Feb­
ruary 2, 1999 Respondent, by area manager Brinkman, in the
parking lot of Respondent’s Moro facility advised an employee
that employees should bring problems to Respondent instead of
seeking union representation.
General Counsel on brief contends that Brinkman’s state­
ment implies that Brinkman would have resolved Beckham’s
problems and still might in the absence of the Union and, in the
context of a union organizing campaign, therefore constitutes
an unlawful solicitation of grievances and implied promise of
benefits.
On brief, Respondent argues that since Brinkman denied
making the statement, it is Beckham’s word against Brink-
man’s; that for the reasons described above Beckham was not a
credible witness; that, on the other hand, there is nothing in the
record which questions Brinkman’s credibility or supports any
assertion that he is opposed to unions; that during the February
2 meeting Brinkman told the employees present that he was not
at liberty to discuss the Union with the employees; and that it
would defy common sense to conclude that Brinkman would
then approach Beckham to talk about the Union a short time
later.
Both General Counsel and Respondent focus on the verbal
communication to the exclusion of the nonverbal portion of this
conversation. Brinkman was frustrated with the situation at the
Moro facility. Earlier he had indicated that if the three people
at this facility did not learn how to work together and make the
operation run, they all might be fired. It is understandable how,
while he would not discuss the Union in a formal setting in
response to an employee’s question, he would, out of frustra­
tion or something else, make the statement he is alleged to have
made. But for our purposes, the nonverbal portion of the al­
leged statement is more important than the verbal portion. As
noted above, Beckham testified that Brinkman approached him
and said, “I wish you guys would have got ahold of me sooner
and let me know about these problems over here before you
went to the union with it”; and that he replied to Brinkman that
he guessed that it was too late for that now and Brinkman
shook his head to signify yes. The head shake said it all. Coun­
sel for General Counsel takes the position that Brinkman’s
statement implied that he still might resolve Beckham’s prob­
lems in the absence of the Union. This is contrary to the non-
verbal communication with which Brinkman acknowledged
that it was too late for that now. Brinkman agreed that the door
was closed and not open. Respondent did not violate the Act as
alleged in paragraph 5D of the complaint. In my opinion,
Brinkman was still trying to get a read on Beckham. While
Beckham asked a question about the Union during the meeting,
Brinkman still wanted to see if Beckham, in a private conversa­
tion, would back off in his attempt to bring in the Union. When
Beckham indicated that he guessed that it was too late to dis­
cuss the problems Brinkman agreed. It was too late for
Beckham.
Paragraph 6 of the complaint alleges that about February 18,
1999 Respondent discharged its employee Beckham because he
formed, joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities.
NATIONAL PROPANE PARTNERS, L.P. 1019
General Counsel on brief contends that the evidence clearly
establishes Respondent’s knowledge of Beckham’s union ac­
tivities as well as Respondent’s animus toward those activities;
that since the Union telephoned Beckham at work Yates would
have logically concluded that Beckham was the driving force
behind the subsequent union organizing; that Yates directed her
threats of discharge to Beckham; that Yates pointed out to
Beckham that a good work record was not an obstacle to dis­
charge because there are offenses which do not require prior
warnings before discharge; that the actions of Stice and
Beckham are consistent with the fact that Stice fabricated the
story and Beckham never did point a gun at Stice in that (1) no
gun was found on Beckham or in his truck on a day when
Beckham, according to Stice, would be carrying a gun, (2) Stice
did not (a) contact the police even though he had allegedly been
directly threatened with an apparently loaded gun or (b) imme­
diately tell Yates, (3) Stice refused to sign a statement concern­
ing the incident for 10 days, and (4) if Beckham had threatened
Stice with a gun, he would never have telephoned Stice after
the termination and asked Stice to step forward and say that the
threats and assault did not occur;12 that the superficial investi­
gation of Stice’s allegations belie Respondent’s assertions as to
the true reason for the discharge; that the investigation was
conducted not to find out what actually occurred, but rather, to
support Beckham’s discharge; that no representative of Re­
spondent confronted Beckham with the accusations before the
decision was made to terminate him; that Respondent’s lack of
interest in the truth is further evidenced by the fact that Schrei­
ber never even spoke directly to Stice about the incident, rely­
ing instead on second and third-hand accounts to draft the state­
ment for Stice to sign; that Respondent’s lack of interest in the
truth is then capped by Schreiber’s utter indifference to
Beckham’s denials and to the fact that Stice’s story was not
substantiated by the sheriff’s search; that Respondent was sim­
ply interested in getting rid of the lead union supporter and
fulfilling its threat made to Beckham back in January; that
Beckham was a valued employee as evidenced by his wage
history; that Beckham had a perfect work record and no evi­
dence of discipline in his file; that although the Board has held
that a discriminatee can forfeit his right to reinstatement for
misconduct discovered after termination, it is Respondent’s
burden to establish that the conduct would have provided
grounds for termination based on a preexisting policy and any
ambiguities will be resolved against the employer; that while
Schreiber emphasized that Respondent had a zero tolerance
relative to possession of weapons he conceded that Respondent
issued a high-powered rifle to an employee as a part of an in­
centive program; that the handbook only states that a violation
of the weapons rule is grounds for disciplinary action up to and
including termination; that, in contrast, two of the other rules
are specifically designated as dischargeable offenses; and that
the evidence establishes that Respondent does not have a pro­
pensity to discharge employees for any type of misconduct at
the Moro facility and Respondent has failed to establish that it
12 Beckham testified that he asked Stice if he would give the Board
agent a statement confirming that he never brought a firearm on the
Company’s premises.
would have discharged Beckham for storing an unloaded, cased
gun in the locked trunk of his car. On brief Respondent argues
that regardless of an employer’s knowledge of an employee’s
union activity and/or its union animus, a company faced with
unlawful or possibly unlawful activity can discipline or dismiss
the worker; that in GHR Energy, Corp., 294 1011, 1012 (1989),
the Board found suspensions lawful because the Respondent
reasonably believed that the employees had engaged in serious
misconduct endangering other employees; that an employer’s
investigation of misconduct which is not thorough is insuffi­
cient to show a violation of the Act; that the Act only requires
that the employer have a good-faith belief the employee com­
mitted an act of misconduct, Goldtex, Inc., 309 NLRB 158 fn. 3
(1992), enfd. 16 F. 3d 409 (4th Cir. 1994); that Beckham’s
denial of pointing his gun at Stice and threatening him is simply
not credible in that Beckham lied (1) to Schreiber at his termi­
nation, and (2) to the Board agent when he stated that it was
“completely ludicrous” that he ever brought a gun to work,13
and he tried to get Stice to lie and testify that Beckham never
brought a gun to work; that Schreiber testified that the fact that
the Union filed a representation petition played no part in the
decision to terminate Beckham and Schreiber has no reason to
lie as he is no longer employed by the Company; that the fact
that the termination occurred 3 weeks after the Union filed the
representation petition, standing alone, is insufficient to estab­
lish an unlawful motive; that the fact that no representative of
Respondent interviewed Beckham regarding the gun incident
does not demonstrate that Beckham was terminated for unlaw­
ful reasons; that in light of the information available and the
lack of union animus ‘failure to interview other employees
present or involved in the [incident] . . . and the decision to
discharge [Beckham] before speaking with him’ does not sup-
port a finding that the discharge was motivated by union ani­
mus, Society to Advance the Retarded & Handicapped, 324
NLRB 314, 315 (1997),14 that Beckham’s termination is still
lawful even if his version of the events surrounding his encoun­
ter with Stice and the handgun is true for “Beckham not only
admitted that he brought a handgun to work on several occa­
sions, but he also admitted to removing it from his car at work
for the purpose of selling it to Stice” (emphasis added);15 that
either way, he violated the Company’s no weapons policy
“which results in automatic termination of employment”16 (em-
13 As noted above the involved affidavit reads as follows:
I’m sure that I was working on January 28th, 1999, and I never
brought a weapon to work. This is the first time I never brought
a firearm to work on 1/28/99. I had never done anything remotely
close to what the company is alleging. It is completely ludicrous.
If I really did then why would the company wait until February
17th, which should have been the 18th, 1999, to terminate me for
this alleged offense.
Beckham was referring to a specific date and a specific allegation. It
is misleading to assert that by this language Beckham was claiming that
he never brought a gun to work.
14 R. Br. at 32.
15 R. Br. at. 33. The record does not support this assertion. Indeed
Beckham testified that he would not let Stice lift the handgun out of the
trunk because he “did not want anybody calling in on us . . . . Tr. at 2.
16 R. Br. at 33.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
phasis added); that Beckham is not entitled to reinstatement or
full backpay even if it is determined that the Company violated
the Act by discharging him because “[a]fter acquired evidence
of a nondiscriminatory reason for discharge pretermits back pay
and eliminates reinstatement as a remedy,” Cook Family Foods,
Inc., 323 NLRB 413, 420 fn. 41 (1997); that even if Beckham
did not point a gun at Stice and threaten him, Beckham admit­
ted at the hearing herein that he did have weapons in the trunk
of his car while it was on Company property and he would have
been terminated if the Company knew of the attempted sale to
Stice; that therefore Beckham is not entitled to reinstatement
should his termination be found to be unlawful; that Beckham
should be barred from collecting backpay after June 21 since
the Company learned of his misconduct at the June 22 hearing
herein; that Beckham admitted in his March 18, 1999 affidavit
that he attempted to sell a gun to Stice on Company property in
1998; that the Company should not have to compensate
Beckham for the extra months of backpay due to the Board’s
refusal to release the information until the date of the hearing;
and that also Beckham is precluded from receiving backpay
after March 9, 1999, the date he asked Stice to give false testi­
mony to the Board agent for as pointed out in Lear-Siegler
Management Service, 306 NLRB 393, 394 (1992) ‘a discrimi­
natee who interferes with the Board’s processes by attempting
to influence . . . a witness in a Board proceeding will forfeit his
right to backpay beyond the date of the impermissible interfer­
ence.’
As set forth in Wright Line, 251 NLRB 1083, 1089 (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),
[W]e shall henceforth employ the following causation test in
all cases alleging violation of Section 8(a)(3) or 8(a)(1) turn­
ing on employer motivation. First we shall require that the
General Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a ‘motivating
factor’ in the employer’s decision. Once this is established,
the burden will shift to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. [Footnote omitted.]
Beckham engaged in union activity and Respondent knew
this. Yates made it a point to broadcast over the radio used
company wide by Respondent that someone from the Team­
sters had telephoned Beckham at work. There were only two
eligible employees at the Moro facility. And when the Union
representation petition was received by Respondent on January
28, Respondent has not shown that it had a reason to believe
that Stice was responsible for what was occurring. With Yates’
above-described threats, Respondent provided the needed anti-
union animus. The fact that the decision to discharge Beckham
was made just 18 days after Respondent received the Union’s
representation petition also supports a finding of antiunion
animus. Counsel for General Counsel has made a prima facie
case sufficient to support the inference that protected conduct
was a motivating factor in the employer’s decision.
Has Respondent shown that it would have taken the same ac­
tion against Beckham in the absence of his engaging in union
activity? Did Respondent have a sufficient business justifica­
tion for taking the action which it took? In my opinion the
above-described statement which Stice gave to the Respondent
is false and Respondent knew this.
Stice had lunch with Brinkman on February 2. This was un­
usual and Stice knew this. That is why he testified that the
three people at the Moro facility had together lunched with
Brinkman in the past. The witnesses were sequestered at the
hearing herein. When Yates took the stand she testified that
Brinkman never took the three people at the Moro facility out
to lunch when he visited the Moro facility. Also Brinkman
testified that during lunch Stice asked him about the Union and
he told Stice that he was not at liberty to discuss the Union.
The problem with this testimony is that Beckham asked this
same question and received this same reply at the meeting at
the Moro facility just minutes (after the Yates, Brinkman and
Beckham meeting and Brinkman’s statement to Beckham) be-
fore Brinkman had lunch with Stice. Stice did not corroborate
Brinkman on this point. Stice did not ask this question during
the lunch. Apparently Brinkman was attempting to show that
the lunch was nothing more than a continuation of the meeting
at the Moro facility. Both Stice and Brinkman were not com­
fortable about this lunch when they testified. This was an un­
precedented lunch meeting. We do not know for sure, how-
ever, exactly what was said during this lunch meeting. We do
know that immediately upon his return from this Tuesday lunch
meeting Stice allegedly told Yates for the first time that
Beckham had pointed a gun at him on the prior Thursday.
Stice’s story is a fabrication, and a poor one at that. As can
be seen above, he was caught a number of times in lies about it.
Beckham never pointed a gun at Stice and threatened him. If
he had, with Stice’s proclivities there is no doubt in my mind
that Stice would have reported it to the police. If he was will­
ing to report the fact that his girlfriend saw Beckham out and
around when he was supposed to be sick, one would have to
conclude that if Beckham did in fact threaten his life with a
gun, he would not have hesitated to report it to the police.
What kept Stice from taking such action is the fact that he
would be criminally liable on an apparently less forgiving state
level for filing a false police report. The statement Stice gave
to Respondent does not make it clear that the pointing was not
accidental. The statement that Stice signed for the Respondent
does not include what Stice allegedly understood to be a verbal
threat accompanying the pointing of the gun at him. Yates’
letter to Brinkman also does not include the alleged verbal
threat. Yates testified that Stice did not tell her that Beckham
said that “this is for niggers in East St. Louis or anyone else
who gives me any problems.”
In the circumstances extant here could Respondent have a
good faith belief that Beckham committed the alleged act of
misconduct without anyone from Respondent asking him if he
did it before the decision was made to terminate him. In view
of the fact that Yates reported the above-described GM Scrap
incident to Brinkman, notwithstanding Yates’ assertions to the
contrary, Stice’s integrity was already in question. There were
problems between Beckham and Stice. Stice resented the fact
that Beckham, who was hired after him, received more money
then him when he was hired. Stice resented the fact that
NATIONAL PROPANE PARTNERS, L.P. 1021
Beckham received more of a wage increase then he did. Stice
resented the fact that on occasion he had to deliver to
Beckham’s accounts because Beckham was not able to service
them properly with the replacement truck he was using. Stice
complained about the way Beckham did his route. Stice com­
plained about seeing Beckham’s truck at Carrol Supply alleg­
edly even when there was no reason for it to be there. Stice
complained about Beckham misusing sick leave. And Yates
told Stice that Beckham wanted to take Stice’s route. Her tes­
timony that she did not tell Stice this until after Stice told her
about the gun incident is not credited. Stice testified that Yates
told him this on more than one occasion. The situation got so
bad in the past that Brinkman had to come to the Moro plant
and tell the three that they all could be fired if they did not get
along.
If Respondent wanted to determine whether it could rely on
Stice’s allegation, the situation cried out for a thorough investi­
gation. But Respondent was not interested in making this de-
termination for, in my opinion, it knew that the allegation was
false. The cases cited by Respondent on brief to support its
argument that an employer’s investigation of misconduct which
is not thorough is insufficient to show a violation of the Act are
not on point. In Society to Advance the Retarded and Handi­
capped, 324 NLRB 314, 315 (1997), three females complained
about a male and some of the complaints concerned alleged
sexual harassment. There the Board concluded that the em­
ployer’s sudden decision to discharge the employee after a less
than thorough investigation was suspect but the evidence was
not substantial enough regarding whether the employer knew of
the union activity of the involved employee and antiunion ani­
mus so it did not rise above the level of mere suspicion. Here it
is one employee’s allegation. Here there is a history of prob­
lems between the two employees. Respondent is aware that the
integrity of the one person who is making the allegation has
been put in question in the past. Respondent is aware of the
union activity of Beckham and there is antiunion animus.
These two cases are quite different. In Goldtex, Inc., 309
NLRB 158 (1991), there was a thorough investigation of the
charges against the involved employee and he was confronted
and suspended before the decision was made to terminate him.
There it was determined that General Counsel failed to prove
that the employer did not reasonably believe that the involved
employee engaged in the misconduct alleged. There a hand-
writing expert found that the employee engaged in the miscon­
duct alleged. There a state bureau of investigation was in­
volved. Here only Stice was involved and in my opinion Re­
spondent knew that Stice’s allegation was false. That is why
there was not a thorough investigation. In GHR Energy Corp.,
294 NLRB 1011 (1989), the employees accused of misconduct
were confronted with the accusations and offered a polygraph
test to prove their innocence. Lucky Stores , 269 NLRB 942
(1984), did not involve one employee’s allegation of miscon­
duct on the part of another employee. There various members
of management caused the termination of the involved em­
ployee because they mistakenly believed she was revealing
confidential information. There the Judge pointed out that
while the belief was mistaken it was more than conjectural.
Here Respondent would not have been acting reasonably if it
had relied solely on the word of Stice in the circumstances ex­
tant here. But in my opinion Respondent was not relying on the
allegation of Stice. And Frierson Building Supply Co., 328
NLRB 1023 (1999), is not on point for there a supervisor ob­
served the conduct in question, antiunion animus was not dem­
onstrated and the employee involved there did not have a good
work record.17
Did Respondent know that Stice’s allegation was false? In
my opinion it did. As noted above, the witnesses were seques­
tered at the hearing herein. While Yates and Brinkman testified
that February 18 was chosen for Schreiber’s visit to the Moro
facility because this was the day that Beckham was going to
East St. Louis and this fact was discussed with Schreiber,
Schreiber emphasized that he came to Moro on February 18
because this was the first time he had available after deciding to
terminate Beckham. There was no real need for Schreiber to
come to the Moro facility. It was done for “show and tell.” It
was done to show that Respondent put enough faith in Stice’s
statement that it would contact the Sheriff’s department and
have Beckham frisked and the truck he was operating searched.
The decision to terminate Beckham had been reached days
before and Schreiber testified that he was not concerned that no
gun was found. Schreiber still had the same faith in Stice’s
statement after the search as he had in it before the search.
Schreiber knew the statement was false so it did not matter that
no gun was found.
Beckham did show Stice a small, cased, unloaded semi-
automatic handgun Beckham had in the trunk of his car. Con­
trary to an assertion of Respondent on brief, there is no reliable
evidence of record that the weapon was removed from the trunk
of the car. Stice’s testimony, namely, “I don’t remember that
[Beckham bringing a 25 caliber pistol to work to show it to him
for the purpose of selling it], no” is not credited. It was not
shown that such conduct was unlawful. But since this occurred
on Company property there is a question whether it is a viola­
tion of a rule in Respondent’s handbook, namely, “[u]se or
possession of firearms/weapons is prohibited.” On brief Re­
spondent contends, in addition to the erroneous assertion that
Beckham removed the gun from the trunk of the car, that a
violation of the Company’s no weapons policy results in an
“automatic” termination of employment. As noted above, a
violation of the rule regarding “[u]se or possession of fire-
arms/weapons is prohibited” while on company property indi­
cates that “[a] violation of any of the above is grounds for dis­
cipline up to and including termination. Also as noted above, a
violation of two other rules specifically “will be a cause for
immediate termination” and “is grounds for dismissal.” If a
violation for the rule involved here was grounds for automatic
termination, why does not the rule specify such? This is espe­
cially perplexing in the light of the fact that other of Respon­
dent’s rules, in effect, do specify automatic termination. Re­
spondent did not introduce any evidence that it had automati­
cally terminated any employee for violating the rule in ques­
tion. It is asserted that to Schreiber’s knowledge no employee
had previously violated the involved rule. I did not find
17 On September 20, 1999, the Respondent filed a supplemental
pleading for the purpose of bringing this recent case to my attention.
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schreiber to be a credible witness so I do not credit his testi­
mony regarding what Respondent would do with respect to a
violation of the involved rule. Additionally, if Schreiber’s
testimony is accurate, why hasn’t Respondent amended the
involved rule to indicate “automatic termination?”18 Respon­
dent violated the Act as alleged in discharging Beckham.
In Lear-Siegler Management Service, 306 NLRB 393
(1992), the Board tolled the backpay of an employee because
that employee threatened a prospective witness to induce the
witness to testify in a certain way in a Board proceeding. At
394 of its decision therein the Board held “that a discriminatee
who interferes with the Board’s processes by attempting to
influence and manipulate a witness in a Board proceeding will
forfeit his right to backpay beyond the date of the impermissi­
ble interference.” Here Beckham attempted to suborn perjury
in that he attempted to have Stice make a false statement in an
affidavit he was going to give the Board. This came to light in
an affidavit Beckham gave to the Board on March 9, 1999. The
specific date on which the attempted subornation of perjury
occurred is not specified. For our purposes on or about March
9, 1999 is sufficient. This matter can be “fine tuned” in a back-
pay compliance specification. As pointed out by the Board in
footnote 6 in Lear-Seigler, supra, the dictum in D. V. Copying
& Printing, 240 NLRB 1276 fn. 2 (1979), to the extent that it
suggests that interference with the Board’s processes (in that
case subornation of perjury) alone, without accompanying
threats, not only warrants tolling of backpay but also compels
denial of reinstatement is overruled. Consequently, since there
were no accompanying threats here, Beckham did not lose his
right of reinstatement.
Paragraph 7 of the complaint describes the involved unit,19
alleges that on August 14, 1998 a majority of the Unit desig­
nated and selected the Union as their representative for the
purpose of collective bargaining and that at all material times
since August 14, 1998, the Union, by virtue of Section 9(a) of
the Act, has been, and is, the exclusive representative of the
Unit for the purposes of collective bargaining with respect to
wages, hours and other conditions of employment. Paragraph 8
of the complaint alleges that the conduct described above in
paragraphs 5 and 6 is so serious and substantial in character that
the possibility of erasing the effects of these unfair labor prac­
tices and of conducting a fair election by the use of traditional
remedies is slight, and the employees’ sentiments regarding
representation, having been expressed through authorization
cards would, on balance, be protected better by issuance of a
bargaining order than by traditional remedies alone. And para-
graph 9 of the complaint alleges that the conduct described
above in paragraphs 5 and 6 is so serious and substantial in
character as to warrant the entry of a remedial order requiring
Respondent as of mid or late January 1999 to recognize and
bargain with the Union as the exclusive collective-bargaining
18 Obviously the fact that such a violation had not occurred before
would not be a justification for not amending the rule if respondent
were so inclined.
19 The unit is a s follows:
All route sales representatives employed by the Respondent at its
Moro, Illinois facility, EXCLUDING office clerical and profes­
sional employees, guards and supervisors as defined in the Act.
representative of the unit. General Counsel, on brief, contends
that both employees in the unit executed authorization cards
which are ‘single-purpose’ cards that state the union is author­
ized to represent the card signer for purposes of collective bar-
gaining and therefore unambiguously designate the Union as
the employees’ collective-bargaining representative; that an
employee’s purpose in signing such a card is conclusively pre­
sumed to be authorization of the union to represent him in the
absence of evidence that the employee was clearly told that the
sole purpose of the card was to bring about an election to de­
termine the Union’s status, Eastern Steel Co., 253 NLRB 1230,
1240 (1981); that no such evidence was offered in this case and
the cards were properly authenticated and admitted into evi­
dence; that the Union’s majority status was clearly established
as of August 14, 1998; that a bargaining order is appropriate to
protect employee sentiments and to remedy Respondent’s mis­
conduct; that the Board and courts have long held that the dis­
criminatory discharge of leading union adherents has an espe­
cially pervasive effect on other employees, and serves to ac­
complish the destruction of employee support for unionization
as would a greater number of unfair labor practices which indi­
vidually have a lesser impact; that in a small unit the impact of
such discharges has a far greater effect than in a larger one and
practically makes a fair election impossible, Eastern Steel Co.,
supra; that Respondent’s threatening employees with discharge
and plant closure are ‘hallmark’ violations and are among the
most flagrant of unfair labor practices, Q-1 Motor Express, 308
NLRB 1267, 1268 (1992); that the evidence establishes that the
possibility of erasing the effects of the Respondent’s extensive
and serious violations is slight and the holding of a fair election
unlikely; and that a bargaining order in the circumstances ex­
tant here is appropriate.
On brief, Respondent argues that while the Board has found
a bargaining order appropriate in small unit cases, Bonham
Heating & Air Conditioning, Inc., 328 NLRB 432 (1999), the
alleged unfair labor practices here do not warrant such a rem­
edy; that bargaining orders should only be a remedy if the ‘co­
ercive effects [of the unfair labor practices] cannot be elimi­
nated by the application of traditional remedies, with the result
that a fair and reliable election cannot be had, ‘NLRB v. Gissel
Packing Co., 395 U.S. 575 614 (1969); that a fair and reliable
election can be had with the traditional remedies for violations
of the Act; that the only alleged unfair labor practice involving
the senior management of the Company is Beckham’s termina­
tion; that the main decisionmaker in Beckham’s termination,
Schreiber, is no longer with the Company; that therefore the
likelihood of further terminations is highly unlikely; that Yates
alleged threats of plant closure cannot be the basis for a bar-
gaining order because she only reasonably predicted the finan­
cial consequences union representation would have on the
Moro facility; and that if the Company is found to have violated
the Act, traditional remedies (excluding backpay and reinstate­
ment for Beckham) should be imposed and the bargaining order
requested should be denied in its entirety. This is a highly un­
usual case. The only other employee in the unit allowed him-
self to be used in Respondent’s attempt to rid itself of the Un­
ion at the Moro facility. Yates is still with the Company. And
while Schreiber is no longer with the Company, two thirds of
NATIONAL PROPANE PARTNERS, L.P. 1023
the group who made the decision to unlawfully terminate
Beckham are still with the Company. Stice is not a credible
witness so I cannot credit his testimony that he continues to
support the Union. As a practical matter if a bargaining order is
issued, once the period during which a decertification petition
cannot be filed is up, such petition could be filed by Stice alone
and the Union would no longer enjoy a majority if the unit still
consists of two employees. In the circumstances extant here a
bargaining order is the proper remedy. No evidence was of­
fered in this case that the sole purpose of the above-described
cards was to bring about an election. The cards were authenti­
cated and received in evidence, I find that the cards unambigu­
ously designated the Union as the employees’ collective-
bargaining representative. Before Respondent began violating
the Act all of the employees in the unit had signed the Union
authorization cards. As indicated by Judge Sherman in Eastern
Steel Co., supra,
Under such circumstances, a bargaining order should issue
not only in the ‘exceptional’ case of ‘outrageous’ and ‘perva­
sive’ unfair labor practices, which are of ‘such a nature that
their coercive effect cannot be eliminated by the application
of traditional remedies, with the result that a fair and reliable
election cannot be held.’ but also in ‘less extraordinary cases
marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and impede
the election process.’ Gissel, supra, 395 U.S. at 613-614, In
view of Respondent’s action in destroying the bargaining unit
by discriminatorily discharging all but one of the employees
in the unit, I conclude that the instant case calls for, at the very
least, a ‘second category’ bargaining order. [footnote omit­
ted] Whether . . . such a ‘second category’ case . . . calls for a
bargaining order turns on whether the possibility of erasing
the effects of past unfair labor practices and insuring a fair
election by the use of traditional remedies is slight and em­
ployee sentiment would on balance, be better protected by a
bargaining order. Among the factors material in making such
an assessment are the extensiveness of the employer’s unfair
labor practices in terms of their recurrence in the future. Gis­
sel, supra, 395 U.S. at 614-615. [Other citations omitted.]
. . . . The discharge of employees because of union activity is
one of the most flagrant means by which an employer can
hope to dissuade employees from selecting a bargaining rep­
resentative because no event can have more crippling conse­
quences to the exercise of Section 7 rights than the loss of
work.’ Ethan Allen, Inc., 247 NLRB 552 (1980); see also At­
lanta Blue Print & Graphics Co., 244 NLRB 634 (1979).
‘Moreover, in a small unit, the impact of such discharges has
a far greater effect than in a larger one and practically makes
a fair election impossible.’ Pay ‘N Save, . . . 247 NLRB No.
184 (1980).
Respondent committed “hallmark” violations in that Re­
spondent unlawfully terminated 50 percent of the unit, and it
threatened to close the plant and discharge employees if the
employees went union. Respondent’s director of human re-
sources came from Cedar Rapids to Moro to personally termi­
nate Beckham and he had a Sheriff’s deputy frisk Beckham. In
view of this and the absence of any real effort to counteract
this, I conclude that the mere issuance of a cease-and-desist ,
reinstatement/backpay, and notice posting order will likely be
insufficient to deter Respondent from future unfair labor prac­
tices which would impede a fair election. I find that Respon­
dent’s conduct is so serious and substantial in character as to
warrant the entry of a remedial order requiring Respondent as
of January 15, 1999, the approximate date when Respondent
began to violate the Act, to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the Unit.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 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. Respondent violated Section 8(a)(1) of the Act by threat­
ening employees with discharge if they selected the Union as
their bargaining representative, advising employees that other
employees who supported a union in the past were discharged,
threatening employees with plant closure if they selected the
Union as their bargaining representative, and threatening an
employee with discharge if the union organizing efforts were
successful.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging Michael Beckham because he formed,
joined and assisted the Union and engaged in concerted activi­
ties, and to discourage employees from engaging in these
activities.
5. The following unit of Respondent’s employees is appro­
priate for collective-bargaining purposes within the meaning
of Section 9(b) of the Act:
All route sales representatives employed by the Respondent at
its Moro, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.
6. The Union has been at all times since January 15, 1999,
and still is, the exclusive bargaining representative of the em­
ployees in said unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
7. Respondent’s unfair labor practices described above af­
fect commerce within the meaning of Section 2(6) and (7) of he
Act.
8. Respondent did not otherwise violate the Act in the man­
ner alleged.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that Respondent be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act.
Having found that Respondent unlawfully discharged Mi­
chael Beckham, it will be recommended that Respondent be
ordered to reinstate him to his former position and make him
whole for any loss of earnings and benefits he may have suf­
fered as a result of the Respondent’s unlawful conduct, in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1950), with interest as computed in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987). The recommended Order will
also provide that Respondent bargain in good faith with the
Union as the exclusive collective bargaining representative of
the above-described unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, National Propane Partners, L.P., Moro, Illi­
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge if they selected
the Union as their bargaining representative, advising employ­
ees that other employees who supported a union in the past
were discharged, threatening employees with plant closure if
they selected the Union as their bargaining representative, and
threatening an employee with discharge if the union organizing
efforts were successful.
(b) Discharging its employee Michael Beckham because he
formed, joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities.
(c) In any manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action designed to effectu­
ate the policies of the Act.
(a) Within 14 days form the date of this Order, offer Michael
Beckham 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 previ­
ously enjoyed.
(b) Make Michael Beckham 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 the
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify Michael Beckham in writing that this has
been done and that the discharge will not be used against him in
any way.
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(d) Upon request, recognize and bargain with the Union as
the exclusive collective-bargaining representative of the em­
ployees in the following appropriate unit, concerning wages,
hours, and other terms and conditions of employment and if an
understanding is reached, embody the understanding in a signed
agreement:
All route sales representatives employed by the Respondent
at its Moro, Illinois facility, EXCLUDING office clerical and
professional employees, guards and supervisors as defined in
the Act.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec­
essary to analyze the amount of backpay due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at its
Moro, Illinois facility copies of the attached notice marked
“Appendix.”21 Copies of the notice, on forms provided by the
Regional Director for Region 14, after being signed by the Re­
spondent’s authorized agent, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon­
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em­
ployed by the Respondent at any time since January 15, 1999.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso­
far as it alleges a violation of the Act not specifically found.
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”