Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board Decisions

Aug 26, 2015

362 NLRB No. 180 (N.L.R.B. 2015)

362 NLRB No. 180
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ozburn-Hessey Logistics, LLC and United Steel-
workers Union. Cases 26–CA–070471, 26–CA–
077572, and 26–CA–080141
August 26, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND MCFERRAN
On April 26, 2013, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
The judge found that the Respondent violated Section
8(a)(4), (3), and (1) of the Act when it suspended em-
ployee Renal Dotson, and Section 8(a)(3) and (1) when it
issued employee Keith Hughes a final written warning
and discharged Hughes and employees Deshonte John-
son and Kimberly Pratcher.3 We adopt the judge’s find-
ings, for the reasons she states, that Dotson’s suspension
and Johnson’s termination were unlawful.4 For the rea-

1 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.
2 We shall amend the judge’s Conclusions of Law and Remedy and
substitute a new Order and notice consistent with our findings here and
in accordance with Durham School Services, 360 NLRB No. 85 (2014).
3 There are no exceptions to the judge’s findings that the discharge
of employees Darrington Edwards and Udenise Martin did not violate
the Act.
4 In dissenting from the judge’s finding that Johnson’s discharge for
an alleged safety violation was unlawful, our colleague makes an ar-
gument that the Respondent does not make in exceptions and is there-
fore not properly before the Board for consideration. See, e.g., Avne
Systems, Inc., 331 NLRB 1352, 1354 (2000) (Board member’s dissent-
ing argument not made by excepting party itself is not procedurally
before the Board). Indeed, while the Respondent does except to the
judge’s finding that the General Counsel met the initial burden of proof
under Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), it makes no specific
argument at all in support of this exception. Its arguments on brief
contest the judge’s finding that the Respondent did not meet its rebuttal
sons set forth below, however, we reverse and dismiss
the allegations involving Pratcher and Hughes.
Facts
1. Kimberly Pratcher. For many years, the Respond-
ent accommodated employees who wished to adjust their
work schedules so they could work second jobs or attend
classes. In August or September 2011, Regional Vice
President of Operations Karen White concluded that
scheduling adequate staffing “had become a nightmare”
because so many employees were seeking work-schedule
adjustments. Consequently, she decided to end the Re-
spondent’s practice of granting these accommodations.5
Around the same time, employee Kimberly Pratcher,
who was pursuing a nursing degree, requested a schedule
change so that she could attend classes. For several
years, Pratcher had sought and received a schedule
change at the start of each semester to accommodate her
classes. This time, however, as a result of White’s
change of policy, the Respondent denied her request.
Pratcher’s supervisor, Nevatta Teague, offered Pratcher a
transfer to a position on second shift. Pratcher declined
the offer. She testified that moving to second shift would
not have helped her because she had a night class one
day a week and she would have still needed her schedule
adjusted on second shift to attend that class.
Pratcher began to arrive late to work or leave early to
attend class. Each time she did so, she received attend-
ance “points.” On September 21, 2011, Pratcher arrived
at work late, and Teague gave her a written attendance
notice stating that she had previously accumulated 13
points, which subjected Pratcher to termination under the
Respondent’s attendance policy. Pratcher asked Teague
if she was “fired now.” After speaking with Human Re-
sources, Teague informed Pratcher that she was not dis-
charged because Teague had not followed the Respond-
ent’s progressive discipline procedures. Teague gave
Pratcher a second written warning notice dated Septem-
ber 21. On September 22, Teague gave Pratcher a final
written warning stating that she had 16 attendance points,
including 3 points for her late arrival and early departure

burden under Wright Line of proving that it would have discharged
Johnson for jumping over a conveyor belt even in the absence of his
union activity. In this respect, we agree with the judge that the credited
evidence shows that at the time of Johnson’s discharge, the Respondent
had no specific rule against crossing conveyor belts and no history of
treating this conduct as a serious safety violation in spite of the fact that
employees and supervisors had been observed engaging in this conduct.
Further, we agree with the judge that the other safety violations for
which employees had been discharged prior to Johnson’s discharge
were not comparable.
5 The decision to stop adjusting work schedules was not alleged to
violate the Act, and the judge found nothing “suspect” about that deci-
sion.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the previous day. Pratcher told Teague that she had to
leave early for class again that day and would amass
even more points. Pratcher asked Teague what was the
point of her coming back to work if she was going to get
a discharge notice for the added points. Teague agreed,
consulted Human Resources, and returned with a termi-
nation notice stating that Pratcher had 19 points, adding 3
points for September 22.
Pratcher supported the Union, but not openly. She
once told Teague that she planned to vote for the Union,
but she testified that Teague was the only person who
knew how she felt about the Union. In May 2011,
Pratcher witnessed an exchange between Director of Op-
erations Phil Smith and employee Carolyn Jones, who
was passing out union flyers, and between Smith and
employee Linda Cotton, who was walking with Pratcher
from an employee meeting to their work area. Smith told
Jones she had better not conduct union business on
worktime, and he told Cotton the same thing. Jones re-
plied that she was on break. Later, Smith asked Pratcher
for a statement concerning what she had witnessed.
Pratcher told Smith that she did not want to get involved,
she just wanted to remain neutral, and she had only heard
what Smith said, not what Jones or Cotton said. None-
theless, Pratcher prepared a written statement at Smith’s
behest. Pratcher wrote that she had not heard what Jones
said to Cotton and that Jones had not said anything to her
(Pratcher). Pratcher also wrote that she wanted to remain
neutral and that she felt she had been pressured into writ-
ing the statement. Before she gave the statement to
Smith, Pratcher reiterated to Smith that she wanted to
remain neutral. Smith said that he understood, Pratcher
handed him the statement, and Pratcher testified that
Smith looked upset when he read it. When Teague gave
Pratcher the “13 points” notice on September 21,
Pratcher added a comment to the notice in which she
claimed that the Respondent was unwilling to accommo-
date her class schedule because she supported the Union.
“In support of this claim,” she added, “all this changed
when Phil Smith asked me to make a statement regarding
what happened between himself and Carolyn Jones back
in May of this year.”
2. Keith Hughes. Keith Hughes was an open and vo-
cal union supporter. He wore union shirts and buttons at
work and distributed authorization cards and union flyers
to other employees. Hughes also testified for the General
Counsel in unfair labor practice proceedings against the
Respondent.
Prior to August 2011, Hughes had amassed several
disciplinary actions in his personnel file. On August 25,
2011, Hughes received a final written warning for mak-
ing verbal threats. On October 10, 2011, he received
another final written warning and a 4-day suspension for
replying in a hostile and otherwise inappropriate manner
to a work-related inquiry from a supervisor. The judge
found the written warnings and the 4-day suspension
were lawful, and there are no exceptions to those find-
ings. The judge also observed that Hughes “did not have
a good working relationship with his supervisors and
managers.”
Throughout his employment with the Respondent,
Hughes worked a second job at Federal Express.
Hughes’ starting time at Federal Express was 12:15 a.m.
Although Hughes’ second job generally did not conflict
with his work schedule with the Respondent, the Re-
spondent occasionally required Hughes (and other em-
ployees) to work a 12-hour shift ending at 12:45 a.m.
For many years, and pursuant to its practice of adjusting
employees’ work schedules, the Respondent allowed
Hughes to leave early from 12-hour shifts so he could
report on time to his second job. As discussed above,
however, the Respondent decided to eliminate such
work-schedule accommodations in August or September
2011. In February 2012, the Respondent became aware
that Hughes and two other employees (Malcolm Boyd
and Ora McFadden) were continuing to leave early from
12-hour shifts to report on time for second jobs. On
March 5, 2012, all three employees were told in a meet-
ing with management that they would no longer be al-
lowed to leave early. Hughes asked on that and later
occasions if he could transfer to the first shift in order to
avoid a scheduling conflict, but was told he could not.
Hughes testified that a few days before the March 5
meeting, Operations Manager Robert Gray had told him
there were open positions on first shift. White’s testimo-
ny also confirmed that one of the options offered to em-
ployees who were affected by the change of policy in
scheduling was the transfer to a different shift.
On April 9, 2012, a day when Hughes was required to
work a 12-hour shift, he clocked out at 9:46 p.m. On
April 10, Hughes received a final written warning for a
total of 13 attendance points, with a handwritten note
stating that if there were any additional attendance issues
before April 27, his employment would be terminated.
On April 25, Hughes was again required to work a 12-
hour shift, but clocked out at 10:04 p.m. He received a
notice of termination for a total of 16 attendance points
the following day.
Analysis
The General Counsel contends that Pratcher was dis-
charged, and Hughes was issued a final warning on April
10, 2012, and subsequently discharged, because of their
union activities and sentiments. The Respondent con-
tends that it took the disputed actions because Pratcher
OZBURN-HESSEY LOGISTICS, LLC 3
and Hughes accumulated points for attendance infrac-
tions warranting the disputed actions under the Respond-
ent’s attendance policy. In dual-motive cases such as
this one, the Board applies the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). To prove a violation under Wright
Line, the General Counsel must make a showing “suffi-
cient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision.” 251
NLRB at 1089.6 If the General Counsel makes this ini-
tial showing, the burden shifts to the employer “to
demonstrate that the same action would have taken place
even in the absence of the protected conduct.” Id.7
Even assuming that the General Counsel met his initial
Wright Line burden with respect to Pratcher, we find that
the Respondent sustained its Wright Line defense burden
by showing that it would have discharged her even in the
absence of her prounion sentiments. The Respondent
followed its progressive discipline policy, and Pratcher’s
19 points were more than enough to warrant discharge
under the attendance policy.

6 For the reasons stated above in fn. 4, Member Johnson does not
address the issue of the General Counsel’s initial Wright Line burden
for Johnson’s discharge. He notes that the outcome of all other dis-
charge allegations discussed here turn on the Respondent’s proof in
meeting its Wright Line rebuttal burden. While not essential to the
analysis of any issues presented here, he notes that he adheres to the
views expressed in St. Bernard Hospital & Health Care Center, 360
NLRB No. 12, slip op. at 1 fn. 2 (2013), concerning the Wright Line
initial burden. Those views are consistent with the language of Wright
Line itself, as well as Chevron Mining, Inc. v. NLRB, 684 F.3d 1318,
1327–1328 (D.C. Cir. 2012), and the recently decided Nichols Alumi-
num, LLC v. NLRB, --- F.3d ----, 2015 WL 4760303 (8th Cir. 2015),
denying enforcement of 361 NLRB No. 22 (2014).
7 Member McFerran notes that, contrary to the suggestions of the
judge and Member Miscimarra, proving that an employee’s protected
activity was a motivating factor in the employer’s action does not re-
quire the General Counsel to make some additional showing of particu-
larized motivating animus towards the employee’s own protected activ-
ity or to further demonstrate some additional, undefined “nexus” be-
tween the employee’s protected activity and the adverse action. See,
e.g., Libertyville Toyota, 360 NLRB No. 141, slip op. at 5 fn. 10
(2014); Encino Hospital Medical Center, 360 NLRB No. 52, slip op. at
2 fn. 6 (2014); The TM Group, Inc., 357 NLRB No. 98, slip op. at 1 fn.
2 (2011); Mesker Door, Inc., 357 NLRB No. 59, slip op. at 2 fn. 5
(2011). In addition, although not necessary to this decision, Member
McFerran would find from the Respondent’s established history of
demonstrating its unlawful animus that the General Counsel has met his
initial Wright Line burden in this case with respect to both Pratcher and
Hughes, as well as Johnson. See Ozburn-Hessey Logistics, LLC, 357
NLRB No. 125 (2011), enfd. mem. 605 Fed. Appx. 1 (D.C. Cir. 2015)
(Ozburn I); Ozburn-Hessey Logistics, LLC, 357 NLRB No. 136 (2011),
enfd. 2015 WL 3369821, -- Fed. Appx. – (D.C. Cir. 2015) (Ozburn II);
Ozburn-Hessey Logistics, LLC, 361 NLRB No. 100 (2014) (incorporat-
ing by reference 359 NLRB No. 109 (2013)) (Ozburn III).
In finding that the Respondent did not sustain its
Wright Line defense burden regarding Pratcher’s dis-
charge, the judge relied on evidence that other employees
amassed more attendance points than Pratcher before
being discharged. This ignores the fact that Pratcher was
on course to amass more points than any of the
comparables cited by the judge in very short order.
Pratcher made it clear that she would continue to arrive
late and leave early to attend classes. She could not
avoid being charged with more points each work day.
Pratcher herself acknowledged the situation, telling her
supervisor there was no good reason for her to stay on
just to accumulate more points. Accordingly, we find
that the Respondent met its Wright Line defense burden,
and we dismiss the allegation that the Respondent violat-
ed Section 8(a)(3) and (1) by discharging Pratcher.
We reach the same conclusion regarding the final
warning and discharge of Keith Hughes. That is, assum-
ing the General Counsel met his burden of proving that
Hughes’ union activity was a motivating factor in his
April 10, 2012 final warning and his subsequent dis-
charge, we find that the Respondent demonstrated it
would have issued Hughes the final warning and dis-
charged him even in the absence of his union activities.
It is undisputed that Hughes accumulated attendance
points warranting both the final warning and discharge.
And, like Pratcher, Hughes was on course to continue
amassing attendance points. Hughes incurred the points
that resulted in his final warning and discharge following
the Respondent’s decision to stop granting requests to
adjust work schedules.
In finding that the Respondent did not sustain its
Wright Line defense, the judge relied solely on evidence
that the Respondent offered other employees transfers to
different shifts in order to accommodate their personal
schedules but denied Hughes’ request to transfer to the
first shift—a transfer that would have removed the con-
flict between Hughes’ work schedules for the Respond-
ent and for Federal Express.8 We agree with the Re-
spondent, however, that neither this theory of violation
nor any evidence supporting it was pled or adequately
litigated. The complaint alleged that the Respondent
violated Section 8(a)(3) and (1) by issuing Hughes writ-
ten warnings and by discharging him. The complaint did
not allege, however, that Hughes was unlawfully denied
a transfer; nor did it allege any of the facts related to such
a denial. Moreover, at the hearing, the General Counsel
did not advance the theory that the denial of a transfer
was relevant to Hughes’ warnings or discharge. Rather,

8 The judge also noted that Hughes was not allowed to use personal
leave time as he requested on the last occasion he left work early, the
day before his discharge.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the General Counsel relied on the Respondent’s decision
to stop granting to any employees the arrival and depar-
ture adjustments it had formerly permitted—a manage-
ment decision the judge found “reasonable” and not
“suspect.”9 Accordingly, although the Respondent cross-
examined Hughes on his testimony that a shift transfer
was available for him, the Respondent was not put on
notice of any theory that its denial of Hughes’ transfer
request constituted affirmative evidence of unlawful an-
imus, or that that denial was relevant to its burden of
showing that Hughes would have been discharged re-
gardless of his union activity. The Respondent therefore
had no reason to believe it had to present additional evi-
dence to refute Hughes’ testimony that Gray told Hughes
positions were open on first shift—or, if first-shift posi-
tions were in fact open, to establish that Hughes would
have been denied a transfer in any event regardless of his
union activities. On this ground, as a matter of due pro-
cess, the theory on which the judge relied must be reject-
ed. “‘To satisfy the requirements of due process, an ad-
ministrative agency must give the party charged a clear
statement of the theory on which the agency will proceed
with the case.’” Lamar Advertising of Hartford, 343
NLRB 261, 265 (2004) (quoting Yellow Freight System,
Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992)). This
notice must be provided in the complaint or on a timely
basis in the course of litigation. Because the Respondent
was given no reason to believe that the 8(a)(3) allega-
tions concerning Hughes’ final warning and subsequent
discharge would hinge on its denial of his transfer re-
quest until after the record was closed, the requirements
of due process were not met here.
Accordingly, for the reasons stated above, we reverse
the judge’s findings that the Respondent violated Section
8(a)(3) and (1) by issuing Hughes a final warning on
April 10, 2012, and by subsequently discharging Hughes,
and we dismiss those allegations.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 3:
“3. By terminating Deshonte Johnson, the Respondent
violated Section 8(a)(3) and (1) of the Act.”

9 In his opening statement, counsel for the General Counsel stated:
“Respondent . . . discharged employee Keith Hughes on April 26th,
2012 after previously issuing him a written warning for attendance
issues based on its refusal to allow schedule adjustments for school or
second jobs after it allowed those schedule adjustments for years.”
The General Counsel did not contend that any other form of disparate
treatment of Hughes was material before filing his posthearing brief to
the judge.
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(4), (3), and (1) of the Act by suspending employee
Renal Dotson and Section 8(a)(3) and (1) by terminating
employee Deshonte Johnson, we adopt the remedies the
judge ordered for those unfair labor practices. Addition-
ally, we have decided to issue a broad order requiring the
Respondent to cease and desist from “in any other man-
ner” interfering with, restraining, or coercing employees
in the exercise of their Section 7 rights.10 A broad order
is warranted “when a respondent is shown to have a pro-
clivity to violate the Act or has engaged in such egre-
gious or widespread misconduct as to demonstrate a gen-
eral disregard for the employees’ fundamental statutory
rights.” Hickmott Foods, 242 NLRB 1357, 1357 (1979).
In Ozburn I, II, and III, the Board found that the Re-
spondent violated Section 8(a)(1) in numerous and vary-
ing ways,11 and Section 8(a)(3) and (1) by denying an
employee overtime opportunities and by warning, sus-
pending, and discharging employees because of their
union activities. And in the instant case, we have found
that the Respondent violated Section 8(a)(3) and (1) by
discharging one employee and Section 8(a)(4), (3), and
(1) by suspending a second employee. Although the ab-
sence of any independent 8(a)(1) violations from this
case is a positive development, the Respondent has vio-
lated the Act gravely, repeatedly, and in a wide variety of

10 The judge did not recommend such a remedy, and neither the
General Counsel nor the Union requested it. It is well settled, however,
that the Board has broad discretionary authority under Sec. 10(c) to
fashion appropriate remedies and that it may exercise this authority in
the absence of a party’s request or exceptions. See, e.g., Indian Hills
Care Center, 321 NLRB 144, 144 fn. 3 (1996).
11 In Ozburn I, the Board found that the Respondent violated Sec.
8(a)(1) by coercively interrogating employees, soliciting an employee
to persuade another employee to abandon her support of the Union,
telling an employee she would not work overtime because of her union
activities, and threatening an employee with unspecified reprisals if the
employee engaged in protected activity. In Ozburn II, the Board found
that the Respondent violated Sec. 8(a)(1) by coercively interrogating
employees, threatening employees with loss of benefits if they selected
the Union, telling employees who supported the Union that they should
find another job, confiscating prounion literature, threatening employ-
ees with job loss if they participated in a strike, threatening employees
that selecting a union would be futile, contacting the police to have
union agents removed from public property, and ordering offsite em-
ployees engaged in distributing union literature to leave the premises.
In Ozburn III, the Board found that the Respondent violated Sec.
8(a)(1) by threatening employees with discipline and other unspecified
reprisals if they engaged in union activities, coercively interrogating
employees, engaging in surveillance of union activities, creating the
impression that union activities were under surveillance, confiscating
union materials from employee break areas, and telling union support-
ers to resign.
OZBURN-HESSEY LOGISTICS, LLC 5
ways. Under the standard set forth in Hickmott Foods,
supra, we find a broad order warranted here.12
We shall also order, as in Ozburn III, that the Board’s
notice be read aloud to employees during working time
by Regional Vice President of Operations Karen White
and Director of Operations Phil Smith (or, if either or
both of them no longer hold those positions, by their re-
placements) in the presence of a Board agent or, at the
Respondent’s option, by a Board agent in the presence of
the regional vice president of operations and the director
of operations. We find this remedy warranted by the
serious and widespread nature of the Respondent’s unfair
labor practices in Ozburn I, II, and III and the fact that
the Respondent has committed additional violations of
the Act. See, e.g., Homer D. Bronson Co., 349 NLRB
512, 515 (2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir.
2008).
Additionally, we shall order the Respondent to com-
pensate employees Dotson and Johnson for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award and to file a report with the Social Securi-
ty Administration allocating the backpay award to the
appropriate calendar quarters for each employee. Don
Chavas, LLC d/b/a/ Tortillas Don Chavas, 361 NLRB
No. 10 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Ozburn-Hessey Logistics, LLC, Brentwood,
Tennessee, its officers, agents, successors and assigns,
shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against its employees for their activities in support of
the United Steelworkers Union or any other labor organi-
zation.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Deshonte Johnson full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Renal Dotson and Deshonte Johnson whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.

12 The Board also issued a broad order in Ozburn III.
(c) Compensate Renal Dotson and Deshonte Johnson
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file reports with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
(d) Within 14 days from the date of this Order, re-
move from its files any references to the unlawful sus-
pension of Renal Dotson and unlawful discharge of
Deshonte Johnson, and within 3 days thereafter, notify
them in writing that this has been done and that their
suspension and discharge will not be used against them
in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of the records if stored in electronic form,
necessary 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 Memphis, Tennessee facilities copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since October 6, 2011.
(g) Within 14 days after service by the Region, hold a
meeting or meetings at the Memphis facilities, during
working hours, which will be scheduled to ensure the
widest possible attendance, at which the attached notice

13 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.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
marked “Appendix” is to be read to the unit employees
by the Regional Vice President of Operations Karen
White and Director of Operations Phil Smith (or, if either
or both of them no longer holds those positions, by their
replacements) in the presence of a Board agent, or, at the
Respondent’s option, by a Board agent in the presence of
those officials.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 26, 2015
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I agree with my colleagues in all respects except one.
Unlike them, I would find that the General Counsel
failed to prove that Respondent violated Section 8(a)(3)
and (1) of the Act when it discharged employee
Deshonte Johnson for jumping over a conveyor belt. To
prove that Respondent violated Section 8(a)(3) in this
regard, the General Counsel must show that animus
against union activity was a motivating factor in John-
son’s discharge. I believe the General Counsel failed to
make this showing.
This issue involves several principles that control our
evaluation of discharges alleged to result from antiunion
discrimination in violation of Section 8(a)(3). Section
8(a)(3) makes it unlawful for an employer “by discrimi-
nation in regard to hire or tenure of employment or any
term or condition of employment to encourage or dis-
courage membership in any labor organization.” The
two prerequisites in Section 8(a)(3), which must both be
proven by a “preponderance” of the evidence,1 are (i)
“discrimination” with (ii) the intention “to encourage or
discourage” union membership. As the Supreme Court
stated in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,
33 (1967): “The statutory language ‘discrimination . . . to
. . . discourage’ means that the finding of a violation

1 Sec. 10(c).
normally turns on whether the discriminatory conduct
was motivated by an antiunion purpose” (emphasis add-
ed).
Our inquiry becomes more complicated when the em-
ployer might have dual motives (also sometimes called
“mixed motives”), one lawful and the other unlawful.
Under the Board’s decision in Wright Line,2 the General
Counsel has the initial burden to make “a prima facie
showing sufficient to support the inference that protected
conduct was a ‘motivating factor’ in the employer’s deci-
sion.”3 If the General Counsel satisfies this initial bur-
den, the Respondent must then “demonstrate that the
same action would have taken place even in the absence
of the protected conduct.”4
The Board’s role is to ensure that employees are pro-
tected from antiunion discrimination, especially when it
causes the termination of their employment, while recog-
nizing that the Act does not make it unlawful whenever
an employer treats employees differently from one an-
other. As the Supreme Court stated in Radio Officers’
Union v. NLRB, 347 U.S. 17, 42–43 (1954):
The language of Section 8(a)(3) is not ambiguous. The
unfair labor practice is for an employer to encourage or
discourage membership by means of discrimination.
Thus this section does not outlaw all encouragement or
discouragement of membership in labor organizations;
only such as is accomplished by discrimination is pro-
hibited. Nor does this section outlaw discrimination in
employment as such; only such discrimination as en-
courages or discourages membership in a labor organ-
ization is proscribed.
(Emphasis added.)
In this case, the General Counsel has proven several
aspects of his initial prima facie case under Wright Line.
However, in my view, ultimately it is not enough to es-
tablish that union considerations were a “motivating fac-
tor” in the decision to discharge Johnson.5

2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 251 NLRB at 1089 (emphasis added). As I have previously ob-
served, generalized antiunion animus does not satisfy the initial Wright
Line burden without evidence that the particular challenged employ-
ment action was motivated by antiunion animus. See, e.g., Starbucks
Coffee Co., 360 NLRB No. 134, slip op. at 6 fn. 1 (2014) (Member
Miscimarra, concurring). The Board’s task in all cases that turn on
motivation “is to determine whether a causal relationship existed be-
tween employees engaging in union or other protected activities and
actions on the part of the employer which detrimentally affect” their
employment. Wright Line, 251 NLRB at 1089.
4 Wright Line, 251 NLRB at 1089; see also NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
5 My colleagues contend that my dissent regarding Johnson’s dis-
charge, in which I find that the General Counsel failed to satisfy his
burden to prove unlawful motivation under Wright Line, improperly
OZBURN-HESSEY LOGISTICS, LLC 7
There is no question that Johnson engaged in union ac-
tivity. As the judge found, Johnson frequently wore a
prounion shirt, and he displayed prounion stickers on his
shirt almost every day. The openness of Johnson’s union
activity obviously permits a reasonable inference to be
drawn that Respondent knew Johnson was prounion.
And there is no shortage of evidence that Respondent
harbors generalized antiunion animus—not just in this
case, based on the unlawful suspension of employee Dot-
son, but also in prior cases, in which the Board found
that Respondent interfered in multiple ways with the ex-
ercise of Section 7 rights and discriminated against sev-
eral employees because of their union activities.6 See
Stark Electric, Inc., 327 NLRB 518, 518 fn. 1 (1999)
(relying in part on violations found in prior case to find
antiunion animus in subsequent case involving same em-
ployer).
However, union activity, employer knowledge of that
activity, and generalized antiunion animus are not neces-
sarily sufficient to establish the General Counsel’s initial
Wright Line case. Again, in Wright Line, the Board stat-
ed that the General Counsel must, as an initial matter,
make “a prima facie showing sufficient to support the
inference that protected conduct was a ‘motivating fac-
tor’ in the employer’s decision.” 251 NLRB at 1089.
Generalized antiunion animus does not satisfy the Gen-
eral Counsel’s initial Wright Line burden absent evidence

addresses an issue not properly before the Board, and they rely on the
fact that the brief supporting Respondent’s exceptions contained no
argument on this point. I respectfully disagree that this precludes the
Board from evaluating whether the General Counsel has sustained his
burden of proof here under Wright Line. As the majority acknowledg-
es, although the Respondent did not address this issue in its brief, the
exceptions filed by Respondent did challenge the judge’s finding that
the General Counsel established a Wright Line prima facie case. Nor is
there any question that Respondent challenges the conclusion that
Johnson’s discharge violated Sec. 8(a)(3), and this alleged violation
turns on whether there is adequate proof of unlawful motivation. The
Board may disregard an unargued exception, but it is not required to do
so. See Board’s Rules and Regulations Sec. 102.46(b)(2). Here, in
finding that the General Counsel met his burden of proof under Wright
Line, the judge merely referred to “the record evidence,” without any
explanation. I believe this warrants evaluating the sufficiency of the
evidence regarding unlawful motivation and whether the General
Counsel satisfied his burden of proof, and these determinations are
permissible under Sec. 102.46(b)(2). See Grand Canyon University,
362 NLRB No. 13, slip op. at 3 fn. 1 (2015), where I indicated that
unargued exceptions might be appropriately addressed by the Board in
certain circumstances. Cf. Kamen v. Kemper Financial Services, 500
U.S. 90, 99 (1991) (stating that “the court is not limited to the particular
legal theories advanced by the parties, but rather retains the independ-
ent power to identify and apply the proper construction of governing
law”).
6 See Ozburn-Hessey Logistics, LLC, 357 NLRB No. 125 (2011),
enfd. mem. 605 Fed. Appx. 1 (D.C. Cir. 2015); Ozburn-Hessey Logis-
tics, LLC, 357 NLRB No. 136 (2011), enfd. 2015 WL 3369821 (D.C.
Cir. 2015); Ozburn-Hessey Logistics, LLC, 361 NLRB No. 100 (2014).
that the challenged adverse action—here, Johnson’s dis-
charge—was motivated by antiunion animus.
Other than a broad reference to “the record evidence
described above,” the judge’s decision provides no ex-
planation whatsoever of her finding that the General
Counsel met his burden of proof under Wright Line re-
garding Johnson’s discharge. And after reviewing the
record evidence, I do not believe the General Counsel
established the necessary link or nexus between John-
son’s union activity and his discharge.
The judge’s decision recites evidence that Respondent
was inconsistent in its treatment of employees who, like
Johnson, jumped over a conveyor belt. In some instanc-
es, employees crossed the conveyor belt and were wit-
nessed doing so by a supervisor, and nothing happened to
them at all. In others, employees observed jumping over
the conveyor belt were told by Respondent’s operations
manager that this was not allowable behavior, but they
were not disciplined. And a supervisor testified that he
issued a verbal warning to an employee he witnessed
jumping over the conveyor belt. This evidence shows
that other employees were treated more leniently than
Johnson. However, the record contains no evidence re-
garding the union sentiments of these employees.
What the General Counsel had to show, and what is
missing from the record, is evidence that other conveyor-
belt jumpers were treated more leniently than Johnson
based on union considerations. There is no evidence
concerning the union activities or sympathies of employ-
ees who jumped the conveyor line and suffered lesser
consequences than Johnson. If all of these other employ-
ees, like Johnson, were open union supporters, one can-
not infer an antiunion motivation for Johnson’s discharge
based on their more lenient treatment. Nor is there evi-
dence that these employees were known to be antiunion,
which might warrant an inference that antiunion consid-
erations motivated Respondent to discharge the prounion
Johnson. There must be something more to transform
inconsistent treatment into evidence that links Johnson’s
discharge for jumping the conveyor belt to his union ac-
tivity. Under Board case law, this “something more”
would be evidence that employees who were treated
more leniently for committing the same safety violation
did not engage in union activity or were anti-union. See
Watkins Engineering & Constructors, 333 NLRB 818,
819 (2001) (inclusion of nonunion applicants on list of
qualified applicants and exclusion of qualified union
applicants from list is evidence that antiunion animus
motivated exclusion of union applicants from hiring pro-
cess).
There is no such evidence here. For all we know, em-
ployees treated more leniently than Johnson for jumping
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the conveyor belt might have supported the Union the
same as Johnson. To meet his burden under Wright Line,
the General Counsel had to show that was not the case.
Otherwise, there is simply insufficient evidence from
which to draw a reasonable inference that Johnson was
treated more harshly than others because of his union
activities.
Accordingly, I would find the General Counsel did not
meet his initial Wright Line burden to prove that anti-
union animus motivated Johnson’s discharge. In this
regard only, I respectfully dissent.
Dated, Washington, D.C. August 26, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of you for activities in support of
the United Steelworkers Union or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Deshonte Johnson full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Renal Dotson and Deshonte Johnson
whole for any loss of earnings and other benefits they
have suffered as a result of our discrimination against
them, less any net interim earnings, plus interest.
WE WILL compensate Renal Dotson and Deshonte
Johnson for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and WE WILL file
reports with the Social Security Administration allocat-
ing the backpay awards to the appropriate calendar quar-
ters for each of them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful suspension of Renal Dotson and unlawful dis-
charge of Deshonte Johnson, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that their suspension and discharge will not be used
against them in any way.
OZBURN-HESSEY LOGISTICS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/26-CA-070471 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
William T. Hearne, Esq. and Linda M. Mohns, Esq., for the
General Counsel.
Ben H. Bodzy, Esq., of Nashville, Tennessee, and Stephen D.
Goodwin, Esq., of Memphis, Tennessee, for the Respond-
ent.
Benjamin Brandon, of Nashville, Tennessee, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Memphis, Tennessee, on October 29, 30,
and 31, as well as on November 1, 2, and 30, 2012. The United
Steelworkers Union (the Union) filed the charge in Case
26‒CA‒070471 on December 9, 2011, and amended the charge
January 17 and April 2, 2012. The Union filed the charge in
Case 26‒CA‒077572 on March 27 and amended the charge on
April 5 and 17, 2012. The charge in Case 26‒CA‒080141 was
filed by the Union on May 2, 2012.1 The Acting2 General

1 All dates are in 2011 unless otherwise indicated.
2 For purposes of brevity, the Acting General Counsel is referenced
herein as General Counsel.
OZBURN-HESSEY LOGISTICS, LLC 9
Counsel issued the consolidated complaint on July 13, 2012.
The complaint alleges that during the period between August
24, 2011, and April 26, 2012, Ozburn-Hessey Logistics, LLC
(Respondent) unlawfully disciplined employees Darrington
Edwards, Keith Hughes, Kimberly Pratcher, Deshonte Johnson,
Renal Dotson, and Undenise Martin.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
I. FINDINGS OF FACT
Respondent, a Tennessee limited liability company, with an
office located in Brentwood, Tennessee, and a place of business
located in Memphis, Tennessee, has been engaged in the busi-
ness of transportation, warehousing, and logistics services for
other employers. During the 12-month period ending June 30,
2012, Respondent, in conducting its business operations, per-
formed services valued in excess of $50,000 for other employ-
ers located outside the State of Tennessee and received at its
Memphis, Tennessee facilities goods valued in excess of
$50,000 directly from points located outside the State of Ten-
nessee. Respondent admits, and I find, that it is an employer
within the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act (the Act) and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operation
Respondent is a provider of third party logistics services. It
provides warehousing and fulfillment services for different
companies that outsource these functions. Respondent main-
tains four warehouses in Memphis, Tennessee. Respondent’s
employees are grouped into “accounts” depending on the cus-
tomer for whom the service is provided. For each customer,
Respondent is contractually obligated to ship out a particular
number of items each day. The Memphis, Tennessee operation
is overseen by Regional Vice President Karen White and Direc-
tor of Operations Phil Smith. Prior to October 7, 2011, the
human resources department was under the direction of Re-
gional Human Resources Manager Evangelia Young (Young).
This position was held by Karen Kousbroek (Kousbroek) from
October 7, 2011, until January 1, 2012. Sara Wright began
working with Respondent in February 2011 as a human re-
sources generalist. In May 2012, she was promoted to human
resources manager for the Memphis facility. Since January 1,
2012, Shannon Miles (Miles) has functioned as both senior
employee relations manager and senior human resources man-
ager for the South Region. Miles maintains an office at Re-
spondent’s corporate headquarters in Brentwood, Tennessee.
B. Background
Prior to the hearing in the instant matter, three other hearings
were conducted in connection with prior charges filed by the

3 The complaint initially alleged that Respondent unlawfully sus-
pended and discharged Latoya Cox. This allegation was withdrawn at
hearing.
Union against Respondent and two representation elections
were conducted. The interaction between the Union and Re-
spondent began in May 2009 when the Union began an organ-
izing campaign at Respondent’s three facilities. On September
25, 2009, the Union filed a petition to represent Respondent’s
employees and an election was ultimately held on March 16,
2010. A majority of votes were not cast for the Union and the
Union subsequently filed objections to the results of the elec-
tion.
On January 27, 2010, Region 26 of the National Labor Rela-
tions Board issued a complaint against Respondent alleging that
Respondent had engaged in various acts in violation of Sections
8(a)(1) and 8(a)(3) of the Act.4 In February and March 2010,
Administrative Law Judge (ALJ) George Carson conducted a
hearing concerning these allegations. On May 20, 2010, ALJ
Carson issued his decision, finding that Respondent engaged in
various acts in violation of Section 8(a)(1) of the Act. ALJ
Carson also found that Respondent unlawfully suspended one
employee and unlawfully terminated two other employees.
One of the employees found to be unlawfully terminated is
Renal Dotson; an alleged discriminatee in the current case. On
December 9, 2011, the Board upheld ALJ Carson’s decision.5
On December 27, 2010, ALJ John West issued a decision,6
finding that Respondent engaged in violations of Section
8(a)(1) through its statements to employees and also violated
Section 8(a)(3) by unlawfully terminating one employee and
refusing to allow another employee to work overtime. ALJ
West also sustained the Union’s objections to the March 16,
2010 election and ordered a rerun election. On July 1, 2011,
the Board approved the Union’s request to withdraw its petition
in the outstanding representation case. The Board otherwise
affirmed ALJ West’s decision on November 30, 2011.7
On August 18, 2010, the Regional Director for Region 26 of
the Board filed a petition for a temporary injunction against
Respondent based on the unlawful conduct found by ALJ’s
Carson and West. The injunction was granted by United States
District Judge Samuel H. Mays Jr. on April 5, 2011. With re-
spect to the employees who were the subject of the ALJ deci-
sions, Judge Mays ordered reinstatement8 and the temporary
expungement of discipline records. Judge Mays’ order also
included a cease-and-desist order prohibiting further unlawful
conduct.
On June 14, 2011, the Union filed a petition seeking to rep-
resent Respondent’s employees and an election was held on
July 27, 2011. The Union won the election by a single vote.
There were 14 challenged ballots; 6 challenges by the Union
and 4 challenges by Respondent. On August 3, 2011, both the
Union and the Respondent filed objections to Respondent’s

4 The underlying charges were Cases 26‒CA‒023497,
26‒CA‒023539, and 26‒CA‒023576.
5 Ozburn-Hessey Logistics, 357 NLRB No. 136 (2011).
6 The decision was based on the charges filed in Cases
26‒CA‒023675 and 26‒CA‒023734.
7 357 NLRB No. 125.
8 The order also directed Respondent to allow the employee who
had previously been denied the opportunity to work overtime to resume
working overtime when work was available.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct during the period between the first election and the
second election.
The third hearing that preceded this current matter was held
in October and November 2011 and was conducted by ALJ
Robert Ringler. This hearing involved the discharge of one
employee and the discipline of another employee. The hearing
also involved various allegations of 8(a)(1) conduct, as well as,
the union’s objections to the July 2011 election. Judge Ringler
ordered the reinstatement of the discharged employee and the
expungement of discipline for the discharged employee and the
employee who had been disciplined. Based on Judge Ringler’s
findings with respect to the alleged 8(a)(1) conduct, Judge
Ringler also found merit to 9 of the union’s 19 objections.
Judge Ringler did not find merit to Respondent’s objections.
He found that six of the challenged voters were eligible to vote
and recommended that their challenged ballots be opened and
counted. He also found that in the event that the union did not
win the election, a third election should be held. As of the date
of this decision, the Board has not ruled on ALJ Ringler’s 2012
decision.
C. Issues and Prevailing Legal Authority
The instant case involves separate discipline issued to six
employees.9 The circumstance for each employee’s discipline
is independent and unrelated to the discipline for other alleged
discriminatees. The General Counsel alleges that each of these
employees were disciplined because of their union activities
and sentiments and/or because they testified in an unfair labor
practice hearing. Because the Respondent’s motive is an inte-
gral factor in determining the lawfulness of the discipline is-
sued to each of these employees, it is necessary to use what has
come to be known as a Wright Line analysis.10 The Wright
Line analysis is based on the legal principle that an employer’s
motivation must be established as a precondition to finding an
8(a)(3) or an 8(a)(4) violation. American Gardens Manage-
ment Co., 338 NLRB 644, 645 (2002). In its decision in Wright
Line, the Board stated that it would first require the General
Counsel to make an initial “showing sufficient to support the
inference that protected conduct was a ‘motivating factor’ in
the employer’s decision.” Wright Line, above at 1089.
Under Wright Line, the General Counsel must establish cer-
tain elements by a preponderance of the evidence. The General
Counsel must show the existence of activity protected by the
Act and that the Respondent was aware that the employee had
engaged in such protected activity. In addition to showing that
the employee in question suffered an adverse employment ac-
tion, there must be some link or nexus between the employees’
protected activity and the adverse employment action.11 Track-

9 The consolidated complaint also alleged that Respondent unlaw-
fully suspended and terminated Latoya Cox. The General Counsel
withdrew these allegations at hearing.
10 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983).
11 In more recent decisions, the Board has observed that Board cases
typically do not include the fourth element as an independent element.
Praxair Distribution, Inc., 357 NLRB No. 91 slip op. at 1 fn. 2 (2011);
er Marine, L.L.C., 337 NLRB 644, 646 (2002). This nexus,
however, must rest on something more than speculation and
conjecture. Amcast Automotive of Indiana, Inc., 348 NLRB
836, 839 (2006). Although direct evidence of unlawful motiva-
tion is seldom available, it may be established by circumstantial
evidence; permitting an inference to be drawn therefrom. Ab-
bey Transportation Service, 284 NLRB 698, 701 (1987).
Specifically, the General Counsel must show that the pro-
tected activities were a substantial or motivating factor in the
decision to take the adverse employment action. See, e.g.,
North Hills Office Services, 346 NLRB 1099 (2006). In effect,
proving the established elements of the Wright Line analysis
creates a presumption that the adverse employment action vio-
lated the Act. To rebut such a presumption, the respondent must
persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the pro-
tected activity. Manno Electric, 321 NLRB 278, 281 (1996). If
the evidence establishes that the reasons given for the discipline
are pretextual, either in that they are false or not relied on, the
employer has failed to show that it would have taken the same
action absent the protected conduct, and there is no need to
perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382, 385 (2003); Limestone
Apparel Corp., 255 NLRB 722 (1981).
One need only to read through the history of prior litigation
detailed above to see that Respondent has not viewed the Un-
ion’s presence favorably. I don’t believe that Respondent
would dispute the fact that it has resisted the Union’s efforts to
organize its employees. In analyzing the Respondent’s disci-
pline of these six employees, I am also mindful of the fact that
an employer’s resistance to its employees’ organizing efforts
does not, of itself, establish the illegality of its actions toward
these employees. If an employee provides an employer with a
sufficient basis for discipline by engaging in conduct that
would, in any event, result in discipline, the employer’s wel-
coming the opportunity does not render the action unlawful.
Avondale Industries, 329 NLRB 1064 (1999); Klate Holt Co.,
161 NLRB 1606, 1612 (1966).
All of the alleged discriminatees were either known by Re-
spondent to be outspoken union supporters or known to have
otherwise engaged in some protected activity. For the reasons
that I have discussed below in addressing each alleged
discriminatee, I find that the General Counsel has met the initial
burden imposed by Wright Line for the alleged discriminatees
with the exception of Darrington Edwards and Undenise Mar-
tin. With respect to its discipline of Darrington Edwards,
Undenise Martin, and two incidents of discipline for Keith
Hughes, I find that Respondent met its burden in demonstrating
that it would have issued the discipline in the absence of these
employees’ protected activity. I do not find that Respondent
has met its burden to show that it would have suspended Renal
Dotson or that it would have terminated Deshonte Johnson,
Kimberly Pratcher, and Keith Hughes in the absence of their
protected activity.

Wal-Mart Stores, 352 NLRB 815 fn. 5 (2008) (citing Gelita USA, Inc.,
352 NLRB 406, 407 fn. 2 (2008)).
OZBURN-HESSEY LOGISTICS, LLC 11
D. Renal Dotson’s Discipline
Renal Dotson began working for Respondent in March 2009.
He worked as a lift truck operator in what was termed the
Fiskar’s department during his entire employment with Re-
spondent. As referenced above, he was a named discriminatee
in the case heard by ALJ Carson and he was reinstated at Re-
spondent’s facility in April 2011 pursuant to ALJ Carson’s
decision and order. After his reinstatement, Dotson testified for
the General Counsel in the hearing that was held from October
31 to November 4, 2011.
1. Dotson’s union activity
Respondent does not dispute that Dotson was a known union
adherent. The General Counsel submitted into evidence an
August 2009 email written by Regional Human Resources
Manager Young in which she described Dotson as one of the
disruptive individuals working hand in hand with the crew that
was trying to drive a union into Respondent’s Memphis facility.
In an August 2009 memo describing Dotson’s termination, as
well as the discipline of other employees, Young identifies the
Fiskars’ department as the hot spot for union organization. She
noted that since the initiation of the union activity at the facility
Dotson had become very aggressive and had acted completely
insubordinate to the account’s operation manager and the su-
pervisor. HR managers and the operations manager had spoken
to Dotson and advised him that the continuation of this behav-
ior would lead to his termination.
2. The events that led to Dotson’s 2011 suspension
a. The November 14, 2011 preshift meeting
In November 2011, it was the practice for the Fiskars’ de-
partment supervisor to conduct a meeting with employees at the
start of the shift beginning at 8 a.m. On November 14, 2011,
Director of Operations Phil Smith (Smith) attended the meeting
with Fiskars Supervisor Greg Harvey. Smith’s purpose for at-
tending the meeting was to announce to the employees that
Senior Manager Leroy Heath was no longer with Respondent
and that until the position was filled Smith would serve as the
operations manager for the account. During the meeting, em-
ployees stood in a semicircle facing Harvey and Smith. Dotson
estimated that the employees were approximately 3 to 16 feet
away from Harvey and Smith. Harvey began the meeting with
work instructions and assignments for the day. When he con-
cluded his announcements, he turned the meeting over to
Smith. Smith recalled that when he began speaking, Dotson
turned his back to Smith. Both Dotson and Smith testified that
Dotson was taking notes during the meeting. Dotson contends
that he was using a box on one of the racks in an aisle as a base
for his notebook.
Dotson and Smith’s recall of their interaction during the
meeting varies. Smith testified that when he noticed that Dot-
son was turned away from him, he said, “Renal. . . . Will you
please turn back and face me while I am addressing the group.”
Smith recalls that while Dotson briefly turned to face him, he
again turned away from Smith. Smith testified that he again
told Dotson, “Renal . . . You need to turn around and face for-
ward while I am speaking to the group. You need to pay atten-
tion.” Smith recalled the Dotson again turned to face him brief-
ly and then turned away again when Smith resumed speaking.
As Smith again addressed Dotson stating, “Renal,” Dotson
looked over his shoulder and said, “That’s Mr. Dotson to you.”
Smith told him “No, it is Renal. You need to turn and face for-
ward while I’m speaking to you.” Smith testified that when
Dotson replied that he did not have to turn around to look at
Smith, Smith told him to go to human resources while the
meeting concluded.
Dotson does not dispute that during the meeting he was fac-
ing away from Smith and Harvey while he was taking notes and
he testified that it was necessary for him to look over his left
shoulder to look at Harvey and Smith. Dotson testified that
Smith called out to him three times during the meeting. Dotson
asserted that each time Smith simply called out “Dotson” with-
out saying anything else and each time Dotson turned his head
to the left to look at Smith. Dotson recalled that when Smith
called out his name a third time, Dotson turned around and
threw up his hands. He described the gesture as conveying,
“what you want?” He contends, however, that he did not say
anything in response to Smith. He recalls that Smith simply
told him to go to human resources (HR.)
b. Dotson’s conduct in human resources
Smith stopped the meeting and telephoned Senior Human
Resources Manager Karen Kousbroek to let her know that he
was sending Dotson to HR for a meeting. On his way to HR,
Dotson walked through the breakroom and took his cell phone
from his locker. While still in the breakroom, Dotson tele-
phoned Union Organizer Ben Brandon. He continued talking
with Brandon as he entered the area outside Kousbroek’s of-
fice. Dotson continued his conversation with Brandon while he
was seated outside Kousbroek’s office. Dotson recalled that
while he was on the phone Kousbroek came out of her office
and told him “get off the phone.” He contends that he stayed
on the phone for approximately 10 more seconds and only long
enough to tell Brandon that he had to get off the call. Dotson
testified that Kousbroek told him only once to “get off the
phone.” Dotson recalled that he simply sat in HR for another 3
or 4 minutes before Smith and Harvey entered HR and went
into Kousbroek’s office.
Regional Vice President of Operations Karen White’s office
is located four offices away from the HR office. When she is
seated at her desk, she faces the area where Dotson was sitting
outside the HR office. White recalled that she looked up from
her computer when she heard Dotson speaking loudly on his
cell phone. White was looking at Dotson when Kousbroek
came out of her office to speak with Dotson. White heard
Kousbroek tell Dotson that he was on the clock and he needed
to turn off his phone. White testified that Dotson continued
talking and Kousbroek again stated that he was on company
time and he needed to turn off his phone. White estimated that
after 2 or 3 minutes Dotson laid his phone in his lap. Near that
same time, she saw Harvey and Smith come into the HR area.
HR coordinator Megan Ferrone testified that she observed Dot-
son enter the HR area talking loudly on his phone. She testified
that she heard Kousbroek tell him to turn off his cell phone.
When Harvey and Smith arrived in the HR area, they went
into Kousbroek’s office and told her what had occurred in the
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work area. When Dotson was called into Kousbroek’s office,
Smith, Harvey, Dotson, and Kousbroek seated themselves at a
round table. Smith and Kousbroek were seated directly across
from each other. When Dotson denied that anything occurred
during the employee meeting, Kousbroek asked Smith to detail
the events of the meeting. During the time that Smith spoke,
Dotson turned in his chair away from Smith and faced
Kousbroek. At the end of the meeting, Kousbroek told Dotson
that because he was insubordinate, he would be suspended for 2
days.
When Dotson left Kousbroek’s office, he went back down
the hall and into the break area. White recalled that about 20
seconds later Dotson came back into the HR area speaking
loudly on his cell phone. He stopped in the hallway and told
Kousbroek that he needed his paperwork. Kousbroek told him
that there was no paperwork and that he should simply come
back to work the following Wednesday. Continuing his tele-
phone call, Dotson stated, “It’s all good. We’ll just file another
charge.”
3. Conclusion concerning the lawfulness of
Dotson’s suspension
Respondent asserts that Dotson was suspended for 2 days
because he deliberately disregarded the instructions of man-
agement twice in one morning. Smith testified that Kousbroek
made the decision to suspend Dotson while he was in the office
and without consulting with Smith or any other manager.
There is no dispute that Respondent was aware of Dotson’s
union and protected activity. Dotson was a named
discriminatee in Case 26‒CA‒023497 where ALJ Carson found
his discharge to be unlawful. Respondent was required to rein-
state Dotson pursuant to the order of the United States District
Court. Thus, the first two elements of the Wright Line analysis
are fully met inasmuch as Respondent was well aware of Dot-
son’s protected activity. As early as August 2009, Regional
HR Manager Young described Dotson as a “real disruptive
individual” who was “working hand in hand with the crew that
is trying to drive a union into OHL12 Memphis.” Clearly there
was early animus toward Dotson and such animus could only
grow stronger after his discharge was found unlawful by ALJ
Carson and his reinstatement was ordered by the District Court
Judge. Thus, the General Counsel has clearly met his burden
under the initial prong of the Wright Line analysis.
Respondent asserts that there is no evidence that any em-
ployee has ever been insubordinate twice within an hour and
has not been suspended. Respondent maintains that Dotson
was insubordinate with two different managers in two separate
incidents within the first hour of the workday and that the sus-
pension was an appropriate sanction for his blatant insubordina-
tion. Dotson’s suspension notice cites Dotson’s behavior in the
pre-shift meeting as turning his back on Smith, refusing to pay
attention, and disrupting the meeting by his actions. The notice
further notes that Dotson continued to talk on his cell phone in
the office after he had been told to turn off his cell phone.
Certainly an employee’s insubordination is a behavior that
may arguably justify an employee’s discipline. Respondent’s

12 OHL refers to Ozburn-Hessey Logistics, LLC.
evidence concerning Dotson’s alleged insubordination, howev-
er, includes conflicting accounts. It is undisputed that Dotson
took his notebook to the meeting and took notes during both
Harvey’s comments and Smith’s comments to the group. There
is no evidence that Harvey raised any issues or made any com-
ments to Dotson for taking notes during his comments to the
employees. Dotson denies that he assumed a different position
when Smith spoke to the employees. He testified that he was
taking notes while Smith spoke, just as he had been doing dur-
ing Harvey’s remarks to the employees. Smith testified that as
Harvey and he spoke the employees were standing in a semi-
circle around them. Smith asserts that when he began to speak,
Dotson turned a quarter-turn away from him. Supervisor Har-
vey would have been the most likely person who could have
corroborated Smith. Neither Harvey nor any of the employees
present were presented as witnesses to corroborate Smith’s
testimony. The discipline notice to Dotson notes that other than
turning his back to Smith, Dotson refused to pay attention to
Smith and disrupted the meeting. Smith’s testimony, however,
reflects that the disruption in the meeting came when Smith
repeatedly stopped his presentation to the employees to call out
to Dotson. There was no evidence that Dotson made any com-
ments during the meeting other than to respond to Smith when
he continued to call Dotson’s name. Thus, the “insubordina-
tion” relied on by Respondent was Dotson’s nonverbal action in
writing in his notebook with his body turned a quarter turn
from his earlier position during Harvey’s comments.
Dotson did not deny that he obtained his cell phone on the
way to the HR office and that he telephoned Union Organizer
Ben Brandon as he walked into the area outside Kousbroek’s
office. Dotson admits that Kousbroek told him to get off the
phone. He testified that he did so as soon as he explained to
Brandon that he had to end the call. Rather than presenting
Kousbroek as a witness to testify about her conversation with
Dotson, Respondent presented Regional Vice President White
and HR Coordinator Megan Ferrone, who gave differing de-
scriptions of what occurred between Dotson and Kousbroek.
At the time of the incident, White was working at her computer
in her office. White observed Dotson sitting in a chair at the
end of a hallway; an area that is four offices further down the
hallway from her office. White asserts that she heard
Kousbroek ask Dotson twice to turn off his cell phone. HR
Coordinator Ferrone testified that when Kousbroek told Dotson
to turn off his phone, he quit talking and he told her that the cell
phone was off. Ferrone recalled that at that point, Kousbroek
called Dotson into the office.
Counsel for the General Counsel submits that Respondent
did not present evidence to show that employees who engaged
in conduct similar to Dotson had been suspended or even disci-
plined, especially where, as in the instant case, Dotson had no
prior related discipline. Respondent submits that it previously
suspended Tiffany Robinson for 3 days for refusing to drive to
another facility to report to work as instructed. Counsel for the
General Counsel submitted evidence to show that some em-
ployees used their cell phones in the warehouse work area after
they had already been warned for doing so. While the employ-
ees received warnings, they were not suspended for their viola-
tion of the cell phone policy. Counsel for the Respondent as-
OZBURN-HESSEY LOGISTICS, LLC 13
serts in brief that while Respondent has issued discipline to
employees for violating the Company’s policy on cell phone
use, no comparison can be made to those disciplinary actions
because Dotson was suspended for insubordination; not for
using his cell phone when he should not have been using it.
Counsel for the General Counsel submitted into evidence em-
ployee performance reports related to Respondent’s discipline
of employees for improper conduct. In January 2006, employ-
ee Ashley B. was given only a verbal warning for her conduct
during a team meeting. This employee is alleged to have used
profanity in a negative tone toward management. In September
2006, employee Marquita J. was given a final warning. She is
reported to have acted rudely when given work instructions.
She was reported to be overly aggressive in tone and she con-
tinued to talk after being instructed to hold any and all com-
ments until after the preshift meeting. Later in the day, the
same employee became angry when her supervisor asked her to
return to her work area. When the employee was asked to go
into the office, the employee refused stating “Hell No” and she
added that she would see the supervisor after her first break.
Although these employees’ behavior was not characterized as
insubordination in their disciplinary notices, it is apparent that
other employees have not only been disruptive in meetings, but
clearly defiant, rude, and noncompliant, and yet were not sus-
pended.
Overall, I do not find that Respondent has met its burden in
demonstrating that it would have suspended Dotson in the ab-
sence of his union and protected activity. As evidenced by his
parting words when he left Kousbroek’s office, Dotson has
demonstrated an attitude of invincibility based on his prior
reinstatement. I have no doubt that the working relationship
between Dotson and Smith is less than amiable and that Dotson
has openly displayed his disdain for Smith. Nevertheless, while
Dotson’s body language may have demonstrated a lack of def-
erence for Smith and his demeanor may have been surly, the
evidence does not support that Respondent would have sus-
pended him in the absence of his prior protected activity. Ac-
cordingly, I find that Dotson was unlawfully suspended on
November 14, 2011.
E. The Discipline Issued to Darrington Edwards
1. Background
Respondent suspended Darrington Edwards (Edwards) on
August 24, 2011, and later terminated her employment on
March 28, 2012. The General Counsel alleges that Respondent
violated the Act by issuing both disciplines and asserts that she
was disciplined only because of her union support and activity.
Respondent contends that Edwards was a miserable employee
who was constantly negative and complaining, starting rumors,
and cursing her coworkers. Respondent submits that Edwards’
discipline resulted only from her own conduct.
Edwards began working for Respondent in 2001. At the
time of her August 2011 suspension, Edwards worked in the
ALSAC department. At the time of her discharge, she worked
in the Waterpik department. Edwards was employed with Re-
spondent during the campaign periods for both elections. She
testified that she wore prounion shirts usually once a week and
that she also wore prounion buttons and pins every day on the
lanyard holding her employee badge. Edwards testified that on
the day of the July 2011 election, approximately 10 or 11 of the
12 employees in the ALSAC account department and “basical-
ly” the “whole” Easton-Bell account department wore pro-
Respondent shirts while she did not.
2. Edwards’ suspension
a. Edward’s interaction with other employees
Michelle Blaine (Blaine) was employed at Respondent’s fa-
cility for almost 2 years. She left her employment with Re-
spondent on November 24, 2011. Blaine trained Edwards when
Edwards transferred into the ALSAC department. I take judi-
cial notice that the American Lebanese Syrian Associated Char-
ities (ALSAC) is the exclusive fund-raising organization of St.
Jude Children’s Hospital. Blaine testified that Edwards made
her life at Respondent’s facility a “living hell.” Blaine ex-
plained that because her daughter was a patient at St. Jude the
ALSAC orders for St. Jude had a lot of meaning to her person-
ally and she had taken her job in ALSAC especially seriously.
Blaine proved herself in handling the large number of ALSAC
orders and she was usually assigned to handle the high volume
and last minute orders. Blaine testified that Edwards told other
employees that Blaine was getting all the orders because she
was the supervisor’s and the lead’s pick or favorite employee.
Edwards told employees that Blaine was “fucking” the depart-
ment lead in order to get a higher promotion in the job. Blaine
testified that Edwards not only made these kinds of comments
to others, but she also made them at times when Blaine could
easily overhear her. Blaine recalled that she went into the bath-
room several times to cry and to keep herself from responding
to Edwards. Blaine testified that Edwards not only used pro-
fanity toward her, but she also used profanity toward her super-
visors and others. On July 21, 2011, Blaine provided a 10-page
statement to management outlining her concerns about Ed-
wards. On this same day, Blaine asked if she could transfer to
another department to get away from Edwards. On August 23,
2011, Blaine gave management two additional statements con-
cerning Edwards. In one of the statements Blaine stated that
she didn’t want to cause Edwards to be fired, she simply want-
ed Edwards to leave her alone. Blaine stated, “I just need her to
leave me alone, please, that’s all I want.” In a statement written
on August 31, 2011, Blaine wrote about how stressful her job
had become dealing with Edwards and her feeling that she was
ready to resign. She ended the statement by stating, “How can
one person be so mean.”
Lauren Keele worked with Edwards in the ALSAC depart-
ment on a daily basis. She described Edwards as “horrible to
work with” and exhibiting a negative and unpleasant attitude.
Keele recalled that Edwards cursed her and others in the de-
partment and her favorite phrase was “shit, damn, fuck.” Nu-
merous times Keele overheard Edwards talking about Blaine
and their lead and telling employees that Blaine was “fucking
Robert.” In a meeting with Senior Employee Relations Manag-
er Shannon Miles, Keele reported that Edwards made her feel
uncomfortable. Keele related that Edwards became easily an-
gered and used profanity toward other employees. She told
Miles that Edwards talked negatively about supervisors and
other employees.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Management’s investigation
Miles testified that she met with Blaine on July 21, 2011, to
discuss Blaine’s concerns about Edwards. Blaine reported to
Miles that Edwards had harassed and cursed her and had made
comments about her to other employees that caused her to feel
uncomfortable at work. Miles recalled that Blaine cried
throughout the entire meeting. Miles followed up the meeting
by speaking with Edwards’ supervisor and manager, as well as
other witnesses identified by Blaine. Keele also reported to
Miles that Edwards used profanity, pitted employees against
each other, and seemed to always try to stir up trouble. Rose
Greer confirmed to Miles that Edwards was very negative and
said things to her coworkers to upset them. Miles met with
Manager Jim Windisch and Supervisor Jay Walker who both
confirmed that they had spoken with Edwards about the issues
raised by Blaine and Keele.
On August 17, 2011, Miles met with Edwards concerning the
employees’ complaints. Edwards testified that during the meet-
ing Miles told her that employees complained that she was
obnoxious and used a lot of profanity; including calling other
employees bitches. Miles told her that employees did not want
to work with her. Miles recalled that she told Edwards that
employees complained that she was negative and wouldn’t
leave them alone. She told Edwards that employees were espe-
cially concerned because she cursed them and spread rumors
about their personal lives. Edwards essentially denied that she
had engaged in such conduct, however, she acknowledged that
she believed that other employees were treated “special.” She
also admitted that she used the phrase “shit, damn, fuck” but
asserted that it was simply a joke.
When Miles had spoken with Edwards’ manager and super-
visor, they confirmed that this conduct had been going on for
some time and that they had multiple conversations with her
about these issues. They reported that when confronted with
these issues, Edwards had always said that she would stop or
she would deny that she had engaged in the behavior. When
Miles asked them why they had not disciplined Edwards, they
told her that HR had not approved it. After speaking with Ed-
wards, and based on the nature of the comments that she made
to the other employees, Miles decided to give Edwards a final
warning. Edwards received the warning on August 18, 2011.
During the following weeks, Miles received additional com-
plaints from employees about Edwards. Because of separate
incidents involving Edwards, Blaine spoke with Miles twice on
August 23, 2011, to share additional concerns. Keele observed
Edwards leaving the office area screaming and yelling. Keele
shared with Miles that she overheard Edwards yelling, “They
can’t get me out of here. I don’t need a bandwagon. Do you
hear me? They got to do better than that.” Keele was not cer-
tain, but Edwards may have said “Lauren, y’all got to do bet-
ter,” but she was not sure. Miles also met with Easton-Bell
account lead Michael Jamison who said that Edwards told him
that a few employees in ALSAC were trying to get her fired
and they had gone to HR telling lies about her. Laverne Harris
also gave Miles a statement on August 24, 2013, concerning
Edwards ‘comments to employees in the breakroom. Harris
recalled that Edwards described another employee as a “f-ing
white bitch” who told lies on her to HR.
On August 24, 2011, Miles, Supervisor Walker, and Manag-
er Windisch met with Edwards. Edwards denied that she told
anyone that employees in ALSAC were trying to get her fired
and she denied making any statements about the employees.
When Miles asked Edwards why other employees would make
up such comments, Edwards replied that they were simply jeal-
ous of her. After meeting with Edwards and talking with the
other employees, Miles decided that further discipline was
needed. Miles testified that she decided that a suspension
might help Edwards to see the seriousness of the situation and
that hopefully she would stop doing what she had done.
3. Edwards’ termination
a. The March 12, 2012 incident
After Edwards returned to work from her suspension, she
was transferred to the Waterpik department where she remained
until her discharge. Respondent submits that she was trans-
ferred in order to give her a fresh start with different employ-
ees. On Wednesday, March 12, 2012, Edwards was assigned to
the “blast station” where she was working near fellow employ-
ee Seth “Rocky” Gibson. A blast station is an area in which
packages are scanned, given shipping labels, and placed on
pallets for shipment to customers. The area in which Edwards
was working had two aisles of blasting stations with the sta-
tions on each aisle near each other. On March 21, 2012, Ed-
wards recalled working at a blast station and Gibson was work-
ing at the blasting station immediately next to her. There were
three radios blaring, and they were all on different stations.
Gibson testified that all of the radios were turned to high vol-
ume and he was beginning to get a headache. He asked Ed-
wards to turn her radio down. Edwards replied, “Fuck you.”
Although she added the words “I’ll do me and you do you,” he
didn’t understand what the random sounding words meant. He
confirmed that her first response “fuck you” was pretty clear,
however. Gibson told her that all he wanted was for her to turn
her radio down. Gibson testified that he was also having a bad
day and he decided not to respond or say anything explosive.
Employee Cobra Watkins testified that she was sitting at a desk
next to the blasting stations and overheard the conversation
between Edwards and Gibson. Watkins testified that she heard
Edwards curse Gibson and call him a “white mother fucker.”
Edwards recalled that Gibson asked her to turn down her music
and that he was tired of listening to the music. She testified
that she told him that if he were so tired of listening to the mu-
sic he could just “lay out and kick.” She denied that she cursed
him.
b. The March 23, 2012 incident
On Mach 23, Gibson was working in an area other than the
blasting station. Using his pallet jack, he picked up a pallet to
finish an order that he was filling. Before he could do so, how-
ever, he was stopped by the department manager and supervisor
and informed that the pallet that he intended to use was for a
different order. They directed him to a different pallet so that
he would not interfere with the inventory. As he did so, he
observed Edwards as she was starting to make the same mis-
take and pick up the wrong pallet. He recalled that he went
over to her and told her to be careful not to grab the wrong
OZBURN-HESSEY LOGISTICS, LLC 15
pallet because the supervisors had just cautioned him about
making the same mistake. He testified that she looked him
“dead in the eye” and said ‘If I wanted your fucking help, I
would have asked you for it.” To which Gibson responded
“What the fuck did I do?” Gibson recalled that Edwards re-
sponded, “Don’t play dumb with me. You know exactly what
you done.” Fellow employee Tara Neal was nearby and inter-
vened, telling them both to be quiet.
In describing her interaction with Gibson on March 23, 2012,
Edwards recalled that there had been an earlier discussion with
Gibson before the incident with the pallets. Edwards testified
that she had been working with Tara Neal and they were having
problems getting a product scanned. When Gibson came by
their work area and saw that they were having problems scan-
ning the product, he told them what they needed to do. Ed-
wards testified that she asked Gibson “Are you trying to tell me
what to do?” Edwards recalled that when he said “I’m just try-
ing to help you people,” she told him that she didn’t need his
help. Edwards contends that he responded, “Well, fuck you
then.” Edwards testified that the conversation ended when she
told him to get away and she left the aisle.
c. Management’s response to the Alert Line call
Respondent maintains an 800 telephone number for employ-
ees to anonymously report any serious issues or anything that
they might not feel comfortable taking personally to HR. The
line is known as the Alert Line and information on accessing
the number is posted throughout Respondent’s facility. The
calls initially go to the director of field services and then are
sent out to field operations for investigation. On March 22,
2012, an Alert Line call reported that employees Darrington
Edwards, Tara Neal, Anthony Stewart, Eric Collins, and Carol
Sorrell used vulgarity in the workplace. The complaint was
forwarded to Regional HR Manager Sara Wright to investigate.
Wright went to the Waterpik department on March 23, 2012, to
talk with the employees who had been named in the call.
Wright told them that there had been a complaint and reminded
them that professional language is to be used in the work place
at all times. She also told the five employees that she planned
to speak with all of the employees in the Waterpik department
to advise them of the same policy.
During Edwards’ conversation with Wright, Edwards told
Wright that Gibson had used the words “you people” when
talking with her earlier and she believed that it was a racist
comment. It was the end of the day when Wright finished
speaking with Edwards and it was Wright’s intention to return
to the Waterpik department on Monday, March 26, to continue
the investigation. On March 24, however, another Alert Line
call was received. The caller complained that Edwards had
confronted Gibson using profanity and offensive racial com-
ments. On March 26, Wright met with all of the employees in
the Waterpik department. She reminded them that everyone is
expected to use professional language in the workplace and she
told employees that they should notify management if anyone
said anything to them that is inappropriate. Following the
meeting, Wright met with not only Edwards and Gibson, but
also Cobra Watkins, Jill McNeal, Mashaundra Savage, Eric
Collins, Carol Sorell, Tara Neal, and Pat Nash.
Neal confirmed that she had been present on March 23 when
Gibson had offered advice on scanning the product. Neal re-
called that Edwards told Gibson that he could not tell her how
to do her job because she knew how to do her job. Gibson had
told her that he was not trying to tell her about her job, he was
trying to help her. Neal recalled telling them both to be quiet
and she asked Edwards not to say anything else.
When Wright spoke with the employees about what they
may have heard concerning the radio incident, the employees
had varying recall of the words that were used but essentially
confirmed Edwards’ use of profanity. Jill McNeal recalled that
when Gibson asked Edwards to turn down the radio, Edwards
told him that she didn’t care about him or give a damn about
what he thought and she told Gibson to “go fuck” himself.
Mashaundra Savage recalled hearing Edwards tell Gibson,
“Fuck you. Don’t bring your ass over here.” Cobra Watkins
overheard Edwards say “Fuck you. Don’t worry about me
mother fucker.” According to Eric Collins, Edwards said,
“Take your ass home if you don’t like it.” Collins also recalled
that Edwards called Gibson a “stupid motherfucker.” McNeal
and Savage confirmed that they did not hear Gibson curse in
response to Edwards’ statements. Carol Sorrels could not re-
member what Edwards and Gibson said to each other and Pat
Nash denied seeing or hearing any of the conversation.
d. Respondent’s decision to terminate Edwards
Wright testified that she had determined that there was not
sufficient evidence to show that Edwards cursed Gibson in the
aisle incident of March 23 because there were no witnesses to
support Gibson’s claim. Based on her interviews with witness-
es, she determined, however, that there was sufficient evidence
to show that Edwards cursed Gibson and acted unprofessionally
during the radio incident on March 21. Her investigation con-
firmed that there were witnesses that corroborated Gibson’s
version of what occurred with the radios. Wright testified that
she made the decision to terminate Edwards. She explained
that she did so because Edwards had previously been placed on
a final warning and given a suspension for disruptive behavior
in the workplace and inappropriate language. Because there
were witnesses who corroborated that she had again engaged in
the same conduct, Wright determined that termination was
appropriate.
e. Conclusions concerning the lawfulness of Edwards’
discipline
There is no evidence that disputes Edwards’ assertion that
she openly expressed her support for the Union. Crediting her
testimony that she routinely and openly wore the union buttons
and shirts, Respondent would certainly have known that she
supported the Union. Thus, the first part of the Wright Line
analysis is met. There is no evidence of direct animus toward
Edwards because of her union support and there is no clear
nexus from Edwards’ union activity and the discipline issued to
her. Thus, the evidence does not support a finding that animus
because of Edwards’ union activity was a substantial or moti-
vating factor in the decision to suspend her or discharge her.
Assuming for the sake of argument, however, that the General
Counsel had established a prima facie case that Wright’s disci-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pline was motivated by her union activity, the overwhelming
evidence supports a finding that Respondent would have sus-
pended and terminated Edwards in the absence of any union
activity.
With respect to Edwards’ suspension, I find that the credible
evidence supports that Respondent issued the discipline be-
cause of her disruptive behavior and not because she engaged
in any protected activity. Counsel for the General Counsel
contends that the complaints made by Blaine and Keele against
Edwards were petty and minor issues within the context of their
work and that they both overreacted to Edwards and grossly
exaggerated their claims against her. I find no merit to this
argument. Both individuals credibly testified in great detail
concerning their difficulties in working with Edwards. Even
though Blaine had not worked with Edwards for almost a year,
she nevertheless became tearful and distraught as she relived
her work experiences with Edwards in giving her sworn testi-
mony. She credibly described how Edwards had tormented her
day after day. It is reasonable that if she demonstrated this
same level of distress when she spoke with Miles and the other
managers, Miles had reason to conclude that Edwards was a
disruption on the work floor. In Blaine’s 10-page summary
given to Respondent, she urgently requested a transfer away
from Edwards and begged that Edwards would leave her alone.
At the time of her testimony, Blaine no longer worked for Re-
spondent and had no reason to fabricate her testimony to ingra-
tiate herself to Respondent. I credit Blaine’s testimony in its
entirety and the record reflects that she made Respondent aware
of Edwards’ continuing disruptive behavior. I also found
Keele’s testimony to be equally convincing. She told manage-
ment that Edwards made her uncomfortable and described in
detail Edwards’ behavior. Keele reported that Edwards
screamed at her and cursed her. She also described for Miles
how Edwards pitted employees against each other and told
negative things about her fellow employees.
It is apparent that Edwards did not easily accept the written
warning that she received. In response to the warning, she
launched a campaign that included cursing fellow employees
and accusing them of trying to get her fired. Her continued
disruptive behavior resulted in her suspension. Counsel for the
General Counsel contends that Edwards was thus suspended
because she raised complaints about fellow employees and her
discipline and thus she engaged in protected activity. While an
employer cannot lawfully prohibit employees from discussing
their terms and conditions of employment with other employ-
ees, there is not a blanket protection that allows an employee to
engage in accusations and attacks on fellow employees in re-
sponse to the employee’s discipline. In essence, counsel for the
General Counsel asserts that Respondent disciplined Edwards
because she talked about her discipline and thus disciplined her
for protected activity. Having considered the record as a
whole, I don’t find that Edwards’ behavior constituted protect-
ed activity. The record reflects that Edwards was not disci-
plined because she protested her discipline or because she
talked with other employees about the discipline that she re-
ceived. The behavior that triggered the additional discipline
was the verbal attacks and criticism of her fellow employees
and the continuation of the behavior for which she had received
the initial warning. Thus, I don’t find that she was suspended
or discharged because she engaged in protected activity.
Regional HR Manager Wright testified that Edwards had al-
ready received a final warning and a suspension for disruptive
behavior in the workplace and inappropriate language. Wright
testified that after talking with witnesses and investigating the
situation she determined that Edwards had again engaged in the
same behavior with respect to her interaction with Gibson on
March 21, 2013. Counsel for the General Counsel asserts that
Respondent has treated similar incidents between employees in
the Waterpik account in a more lenient manner. I find these
incidents distinguishable from the circumstances involving
Edwards. In May 2011, Wright investigated a reported argu-
ment between employees Seth Gibson and Anthony Stewart.
Witnesses to the incident confirmed that the two employees
“play around all the time,” and the witnesses did not hear the
employees curse each other. When Wright spoke with the em-
ployees, they confirmed that the matter was resolved and that
everything was fine between the two of them. The employees
were cautioned to watch what they said to each other and that if
the issue arose again there would be discipline.
General Counsel also contends that in another instance em-
ployee Stewart was insubordinate to his supervisors, Ward and
Farmer, concerning his assignment to work mandatory over-
time. General Counsel relies on the testimony of employees
Edwards and employee Helen Herron. Although Herron testi-
fied that she overheard arguing and cursing between Supervisor
Ward and Stewart, she could not recall any curse words that
Stewart used. Edwards testified that Stewart said, “What the
fuck you mean I can’t go home. It is some bullshit fool.” Ward
testified that when he told Stewart that he needed to work over-
time Stewart had been upset because he needed to have notice
to get someone to take care of his son. Ward recalled that
Stewart had said something like “What the fuck is going on.”
Ward took Stewart in to talk with Operations Manager Quinn
Farmer. Farmer calmed Stewart down and the matter was re-
solved. Ward testified that although Stewart cursed during
their conversation he had not seen the curse words as directed
at him. Finally, General Counsel relies on the testimony of
employee Glenora Whitley who testified that on one occasion
she reported to Supervisor Ward that when she complained to
Seth Gibson that he had cut her off with the forklift he had
responded, “You don’t tell me what the fuck I can do.” She
recalled that Ward told her that he would speak with Gibson
and she was not questioned further by Ward. Based on the
testimony of employee and supervisory witnesses, it is apparent
that words such as “fuck” are used in the workplace. It is very
likely that the word was used as alleged in the examples above.
These situations, however, appear to be isolated instances when
employees used a curse word or words in the presence of other
employees and even supervisors in disagreements or in re-
sponding to circumstances. The situations are distinguishable,
however, from the sustained verbal attacks and profanity at-
tributed to Edwards against her fellow employees that disrupted
the workplace as described above. Thus, I do not find that
Respondent tolerated more serious misconduct by other em-
ployees or that Respondent disciplined Edwards because of her
support for the Union. I also note that Respondent gave Gibson
OZBURN-HESSEY LOGISTICS, LLC 17
a verbal warning in relation to his conversation with Edwards
on March 23. Accordingly, I do not find that Respondent un-
lawfully suspended Edwards on August 24, 2011, or unlawfully
terminated Edwards on March 28, 2012, as alleged.
F. The Discharge of Deshonte Johnson
Deshonte Johnson was employed by Respondent from Sep-
tember 2009 until October 6, 2011. During his employment,
Johnson was an operator on the second shift in the Hewlett-
Packard (HP) department. He was supervised by Operations
Supervisor Kila Walker and Operations Manager Darnell Flow-
ers. First Shift Operations Supervisor David Maxey was also
present for the first part of Johnson’s shift.
1. Issues
Respondent asserts that Deshonte Johnson was terminated
from his employment because he hurdled over a moving con-
veyor belt and violated Respondent’s safety policy. Johnson
does not dispute that he hopped over the moving belt, but he
asserts that he did so to retrieve a box that had fallen off the
line. Johnson testified that he, other employees, and supervi-
sors regularly crossed the conveyor line while performing their
job duties and that he has done so without incident during his
entire employment with Respondent.
2. Johnson’s union activities
Johnson testified that during his employment he wore a
prounion shirt twice a week and prounion stickers on his shirt
almost every day. He also testified that he raised the Union in a
meeting in September 2011 with Operations Supervisor Wilson
and Shift Operations Jim Cousino. The September meeting
involved his receiving a written warning. Johnson did not
agree with the warning and announced to the supervisors that
he would take his concerns to HR. If he did not get any satis-
faction, he would go the “Labor Board” or to his union repre-
sentative.
3. The October 5, 2011 incident
The packages or product in the HP department are moved
from the storage racks to the packing and shipping area by a
motorized conveyor belt. In October 2011, the conveyor belt
was set up with a few areas where employees can cross from
one side of the conveyor belt to the other of the belt. These
designated areas were the points where the belt was elevated
sufficiently for the employees to pass underneath or where
there were designated lift gates.
Approximately 30 minutes after Johnson began his shift on
October 5, he observed a box fall from the conveyor belt on the
opposite side of the belt from where he was working. In order
to recover the box and return it to the belt, Johnson sat on the
line and swung his legs over the line to get to the other side.
He recovered the box and returned it to the conveyor belt. Be-
fore he could return to work, Supervisor David Maxey called
Johnson over to where he was standing with Supervisor Darnell
Flowers. Maxey testified that he told Johnson that what he had
done was a serious safety violation. Johnson recalls that he told
Maxey that he didn’t know that it was a safety violation and
that he had been doing it for the last 2 years. In his email to HR
documenting the incident, Maxey stated when he told Johnson
the action was a serious safety violation, Johnson had respond-
ed that he knew and that he would not do it again. During
Maxey’s testimony, however, Maxey testified that Johnson told
him that he had not known that it was a violation. Maxey told
him that he didn’t want to see him doing that again. Maxey
recalled that Johnson said that he would not do it again.
Flowers did not see Johnson cross over the conveyor belt.
He recalled that he and Maxey walked toward Johnson who
was standing near the line. Flowers overheard Maxey tell
Johnson that jumping over the conveyor belt was a safety viola-
tion. Flowers testified that Johnson acknowledged it and said
that he wouldn’t do it again.
On October 6, 2011, Respondent terminated Johnson. For-
mer HR Manager Evangelia Young testified that he was termi-
nated for jumping over the conveyor belt and engaging in a
serious safety violation. She added that this was a serious safe-
ty violation because his conduct was willful and not just a mat-
ter of losing focus on his safety practices.
4. Conclusions concerning the lawfulness of
Johnson’s discharge
Johnson testified that during his employment he often
crossed the conveyor line for job related reasons and that he
saw other employees and supervisors, including Jay Walker,
Kila Wilson, and Jim Cousino, cross the conveyor line on a
daily basis. Employee Keith Hughes testified that he has also
crossed the conveyor line in the course of his job and that he
has done so in the presence of Kila Wilson without incident.
Hughes also testified that he has observed Supervisors Kila
Wilson and Jay Walker cross the conveyor line as well.
Johnson testified that when Supervisor Maxey questioned
him about crossing the conveyor line he did not deny doing so
and told Maxey that he didn’t know that it was a safety viola-
tion. He told Maxey that he had been doing this same thing for
the past 2 years. On direct examination, Maxey testified that
when he spoke with Johnson, Johnson acknowledged that he
knew that it was a safety violation and stated that he would not
do it again. On cross-examination and again on redirect exami-
nation, Maxey testified that Johnson told him that he didn’t
know that crossing the line was a safety violation. Later in his
testimony, Maxey again testified that Johnson admitted that he
knew that it was a safety violation.
Johnson testified that while he was employed at the facility
he was never aware of any written rules concerning the con-
veyor line and that he was never present in any training ses-
sions concerning the conveyor line. Respondent contends that
Johnson reluctantly admitted on cross-examination that em-
ployees must apply common sense in determining what consti-
tutes a safety violation. Furthermore, Respondent asserts that
just because Respondent did not have a flashing neon sign be-
side the conveyor belt that says “don’t jump over” does not
mean that Johnson’s conduct was permissible under Respond-
ent’s safety policies.
Employee Keith Hughes testified that Respondent first con-
ducted conveyor line safety training in February 2012, months
after Johnson’s discharge. Maxey testified that he had con-
ducted safety line training concerning the conveyor belt some-
time in the period of September and October 2011, however, he
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could not recall the dates of the training or whether Johnson
was present in the training session. Although Maxey testified
that sign-in sheets are kept for all safety training, Respondent
produced no sign-in sheets for conveyor safety training prior to
February 2012.
Respondent asserts that it has discharged nine other employ-
ees for safety violations since 2008 and six discharges were
within a year of Johnson’s termination. Seven of the discharges
involved the following infractions; (1) an employee’s termina-
tion in 2010 for standing on a forklift operated by another em-
ployee; two employees’ termination in 2011 for repeatedly
slamming on the breaks and turning the steering wheel of their
forklifts to make “donuts” in the warehouse area; (3) an em-
ployee’s termination in 2008 for striking a support column,
causing severe damage, and failing to report the incident im-
mediately; (4) an employee’s termination in 2009 for engaging
in horseplay by pulling down a dock door while another em-
ployee was trying to exit on a forklift; (5) an employee’s May
2011 termination for smoking a cigarette while operating a
propane forklift; and (6) an employee’s May 2011 termination
for sleeping on a running forklift. The remaining three dis-
charges cited by Respondent involved one incident in January
2012. An employee was discharged for photographing another
employee as she lay face down or what is known to the em-
ployees as a “planking” position on the conveyor belt. The
second employee was discharged for posting the planking pho-
tographs on Facebook. The third individual disciplined was the
employees’ supervisor who witnessed the incident, but failed to
address the conduct with the employees or to report the incident
to management. Furthermore, the supervisor was discharged
because he withheld information during the internal investiga-
tion. I note that the three discharges concerning the employees’
planking and the Facebook posting occurred after Johnson’s
discharge and there is no evidence that any employees were
discharged prior to Johnson for safety violations relating to the
conveyor belt. Almost a year following Johnson’s discharge,
an employee was terminated for sitting on the conveyor belt
after being warned not to do so.
Although Johnson was terminated for climbing over the con-
veyor, the record reflects that other employees have engaged in
the same conduct without discharge or even discipline. Super-
visor Jeremiah Walker testified that prior to Johnson’s dis-
charge he observed an employee jumping over the conveyor
belt. Walker issued a verbal warning to the employee. Opera-
tions Manager Cousino testified that he has observed employ-
ees jump over the conveyor line. When he saw this occurrence,
he immediately spoke with the employee and told them that it
was not allowable behavior. He did not testify that he disci-
plined the employees for having done so.
Based on the record evidence described above, I find that the
General Counsel has met the initial burden required under
Wright Line. I do not find that Respondent has demonstrated
that it would have terminated Johnson in the absence of his
union activity. There is no evidence that Johnson was trained
in conveyor safety prior to this incident or even that any em-
ployees were trained in conveyor safety prior to February 2012.
Furthermore, while Respondent may have terminated employ-
ees for safety violations prior to terminating Johnson, the con-
duct in issue was not similar to that of Johnson’s and was argu-
ably more egregious. Finally, the record reflects that manage-
ment has been aware of employees engaging in the same con-
duct as Johnson and yet the employees were either verbally
warned or not warned at all. Even the employee that was dis-
charged for a conveyor belt safety infraction was discharged
after Johnson’s discharge and had already been warned once for
sitting on the conveyor belt prior to her discharge. Accordingly,
I find that Deshonte Johnson was terminated in violation of
8(a)(3) of the Act.
G. The Termination of Undenise Martin
1. Background
Undenise Martin (Martin) worked for Respondent from Oc-
tober 25, 2007, to December 7, 2011. At the time of her dis-
charge, Martin worked as a customer service representative and
she was supervised by Greg Harvey. In December 2011, Direc-
tor of Operations Phil Smith was also serving as acting manag-
er over the Fiskars’ department in which Martin worked as a
customer service representative. Respondent asserts that Mar-
tin was discharged because she violated Respondent’s conduct
guideline regarding failure to cooperate in a company investi-
gation. Counsel for the General Counsel argues that the rea-
sons asserted for Martin’s discharge are pretextual and that
Martin was actually terminated because of her union activity
and in retaliation for her participation in a Board hearing.
2. Martin’s union and protected activities
Martin testified that she while she was employed by Re-
spondent she participated in the union campaign by wearing
union shirts twice a month and a union button every other
week. During the unfair labor practice trial in November 2011,
Martin was called by the General Counsel in its case-in-chief
and then again as a rebuttal witness by the General Counsel.
The unfair labor practice hearing occurred approximately a
month prior to her discharge.
3. The background incident
The circumstances that ultimately led to Martin’s discharge
involved Respondent’s employee LaToya Cox and temporary
employee Terry Johnson. On November 30, 2011, an argument
developed between these two individuals concerning whether
Johnson would provide work assistance to Cox. Employee
Leslie Freeman not only overheard the argument, but she also
attempted to intervene and separate the employees before their
supervisor arrived. Freeman testified that as Cox left the area
she told Johnson that she would have somebody waiting on him
“at the front.” Freeman not only told Supervisor Harvey what
she overheard, but she also gave a statement to Senior HR
Manager Karen Kousbroek concerning the incident between
Cox and Johnson. Freeman also testified that she received a
call on her cell phone from an unidentified caller. The female
caller briefly warned her that she did not see anything and did
not hear anything before disconnecting. Freeman went back to
Kousbroek and reported what the caller had said to her.
OZBURN-HESSEY LOGISTICS, LLC 19
4. Martin’s description of her involvement with Cox
and Johnson
Martin did not witness the altercation between Johnson and
Cox. She asserts that she first learned of it from Freeman and
from Supervisor Harvey. Martin testified that after she re-
turned from lunch on November 30 she spoke with Johnson
near the timeclock. She described Johnson as upset. She testi-
fied that he told her that Cox had been suspended and he didn’t
understand why. She recalled that he even asserted that per-
haps he should go home as well. Martin contends that she told
him that he should stay and go back to work. Martin testified
that during a second conversation that afternoon Johnson asked
for her telephone number. Martin denied that she obtained
Johnson’s telephone number at that time.
Martin testified that later that evening, Johnson called her
and left a message for her while her phone was turned off.
When she returned his telephone call, Johnson told her that he
was concerned because he didn’t want Cox to think that he had
done anything to cause her suspension and he asked for Cox’s
number. Martin asserts that she contacted Cox first to find out
if she could give the number to Johnson. After speaking with
Cox, Martin called Johnson and gave him Cox’s number. Mar-
tin testified that not only did she not speak again with Cox after
giving Johnson Cox’s number; she did not speak again with
Cox at any time during that same evening. As discussed later
in this section, Martin’s telephone records do not support her
testimony.
Martin testified that Johnson called her again on December 2
to tell her that he had heard that Cox had been terminated.
Because she was tired, she told him that she would call him
back the next day. Martin recalls that when she telephoned
Johnson on December 3 Cox was with her. Martin set the call
on the speakerphone function of her cell phone in order that
Cox could overhear Johnson. Martin asserts that Johnson again
discussed Cox’s termination and she denied that Johnson said
anything during the call about Cox’s threat to him. Martin
testified that she telephoned Johnson twice the following day.
She asserts that the first time she accidentally pressed his num-
ber on the touch screen of her phone and the second time she
telephoned him to explain that she had mistakenly telephoned
him. When Martin gave an affidavit to the Board prior to the
hearing, Martin acknowledged that when she spoke with John-
son on December 4, he told her that he felt strange about her
telephone call the previous day and that he felt that Martin had
tried to get information out of him and to set him up.
5. Respondent’s evidence concerning Martin’s contacts
with Johnson and Cox
The records for the phone in Martin’s work area document
three telephone calls from Cox’s cell phone to the work phone
on November 30, 2011. Freeman testified that she also has
occasion to use that same phone as her desk was next to desk
where the phone was located. She recalled after the incident
between Cox and Johnson, she answered this phone “a couple
of times.” Each time that she answered, the caller hung up and
the caller ID function reflected “private number.” Freeman
testified that possibly later in the day on November 30, Martin
answered the phone and spoke in such a way that Freeman
could not hear the conversation. During the investigation of
Martin’s involvement in the incident between Cox and Johnson,
Regional HR Manager Sara Wright spoke with Freeman, as
well as, Tarlicia Thomas, who worked in the area near Martin.
Thomas told Wright that she was present when Martin received
a telephone call in which Martin identified Cox as the caller.
Thomas told Wright that she overheard Martin comment, “You
want me to get whose number? Terry’s (Johnson’s) number?”
Freeman also testified that after the incident between Cox and
Johnson, she overheard a conversation between Johnson and
Martin. Freeman recalled that Martin asked Johnson for his
telephone number. Although she did not overhear his response,
she later asked Johnson if he were giving out his number and he
denied it. Later, however, Freeman observed Johnson giving
Martin a piece of paper.
Prior to November 30, 2011, Martin had never had any tele-
phone contact with Johnson. Her telephone records include
three telephone calls reflecting Johnson’s number on November
30. Two of the three calls were shown to be incoming calls.
Although Martin testified that she only spoke with Cox twice
on November 30, her telephone records reflect that there were a
total of 15 calls to and from Cox. One conversation with Cox
occurred after Martin spoke with Johnson and lasted as long as
47 minutes and a later conversation lasted another 20 minutes.
Martin testified that when Johnson telephoned her on De-
cember 2, she told him that she was too tired to talk and that
she would call him the next day. Martin’s telephone records
reflect that she initially telephoned Johnson on December 2,
and when he later telephoned her the conversation lasted for 12
minutes. Martin’s telephone records also document four tele-
phone calls involving Johnson’s telephone on December 3,
2011. The first call was shown to be a 2-minute call from Mar-
tin’s phone to Johnson’s phone at 10:22 a.m. Two 1-minute
telephone calls were made from Martin’s phone to Johnson’s
phone at 1:54 p.m. and 1:56 p.m. When Johnson apparently
returned Martin’s call at 1:58 p.m., the conversation lasted for
37 minutes. The telephone records corroborate Martin’s testi-
mony that two calls were made to Johnson on December 4,
2011. Approximately an hour after the last conversation with
Johnson, Martin received a telephone call from Cox and the call
lasted for 53 minutes.
Regional HR Manager Sara Wright testified that on Monday,
December 5, 2011, Johnson came to her to report that he had
received threatening phone calls on Saturday and Sunday.
Wright described Johnson as distraught and frightened. Wright
took photos of the phone registry of his recent calls showing the
calls received from Martin. Johnson described the telephone
calls from Martin on Saturday and Sunday as very threatening.
Wright recorded Johnson’s statement that he suspected that
Cox was with Martin when she talked with him as the call ap-
peared to be on a speakerphone. Johnson reported to Wright
that repeatedly during the conversation, Martin told him that he
needed to give a statement to HR denying that Cox had threat-
ened him. Johnson told Wright that Martin called him again on
Sunday morning; however, he had not answered the call. John-
son reported that later in the morning he had a missed call from
a blocked number. Then later he received a call from that same
blocked number. He did not recognize the voice to be either
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cox or Martin. The unidentified woman told him that he need-
ed to give a statement or he better watch his back.
6. Martin’s response to the investigation
On December 5, Martin was called to HR to speak with
Kousbroek, Wright, and Harvey. Kousbroek asked Martin for
her telephone number and Martin provided it. Kousbroek
asked if she had telephoned Johnson. Martin told her that she
had spoken with Johnson after he had telephoned her. She also
acknowledged that Johnson had given her his number on the
previous Thursday. Martin testified that Kousbroek told her
that Johnson reported that she had threatened him. Kousbroek
asked if she had spoken with Johnson about Cox and if she had
asked him about changing his statement about Cox. Martin
testified that she told Kousbroek that she had not spoken with
Johnson about Cox and she had not asked him to change his
statement. Martin recalls that she was then told that she was
suspended. The next day Wright contacted Martin and asked
her to come back to Respondent’s facility for an additional
meeting. When Martin reported back to the facility, Wright
and Kousbroek met with her and gave her a questionnaire to
complete. In completing the questionnaire, Martin stated that
she spoke with Johnson a total of four times and she did so
because he called her. The previous day she had told
Kousbroek, Wright, and Harvey that she had called him be-
cause he had called her and that she had only spoken with him
twice. She admitted on cross-examination that her telephone
conversations with Johnson on December 3 and 4 were as a
result of her calling him. When asked in the questionnaire how
she obtained Johnson’s phone number, she stated that he had
given it to her. When she spoke with Kousbroek, Wright, and
Harvey on December 5, she had told them that Johnson had
given her his number on Thursday morning and he had tele-
phoned her on Wednesday when he was upset. In her written
responses to the questionnaire, she stated that she had never had
conversations with Johnson previously and during her tele-
phone conversations with him they had discussed family,
church, and work. Martin admitted in her testimony that her
statement in the questionnaire was false because she spoke with
Johnson about Cox.
Respondent asserts that at the conclusion of the investigation
it was apparent that Martin had misled them in the investigation
about the number of telephone calls she had with Johnson.
Wright testified that she observed Johnson to be distraught and
upset and he appeared frightened by the threatening phone
calls. Wright took photographs of the call records for both
Johnson’s phone and Martin’s phone. Respondent factored in
the threat that was made to Freeman as well. Respondent also
relied on information from Tarlicia Thomas confirming that
Cox had asked Martin to obtain Johnson’s cell phone number.
Respondent contends that the overall evidence indicated that
Martin had not been truthful during the investigation and Re-
spondent had reason to believe that Martin was involved in the
threat to Johnson.
7. Conclusions concerning the lawfulness of Martin’s
discharge
Counsel for the General Counsel submits that Martin’s dis-
charge is suspect because it occurred approximately a month
after she testified in an unfair labor practice hearing. Respond-
ent, however, contends that after Martin demonstrated her sup-
port for the Union she was in fact promoted to the position of
customer service representative. During the hearing in Novem-
ber 2011, Martin testified in the General Counsel’s case-in-
chief concerning comments made by Director of Operations
Smith in preshift meetings. Martin was also recalled as a rebut-
tal witness in the same hearing to testify concerning an alleged
violation of the sequestration order, as well as, an allegation of
sexual harassment by a supervisor. Although the judge limited
Martin’s testimony to the allegation of the violation of the se-
questration order, the General Counsel was allowed to make an
offer of proof concerning the allegation of sexual harassment.
The supervisor in question was terminated on November 4,
2011, after he refused to answer questions during an investiga-
tion by Respondent into the allegations related to Martin’s tes-
timony. Respondent argues that if Respondent harbored any
animus toward Martin it would have protected the supervisor
and not terminated the supervisor as a result of Martin’s testi-
mony.
Respondent’s employee handbook includes a listing of con-
duct for which disciplinary action will be taken. The handbook
provides that “Failure to cooperate with an internal investiga-
tion, including a failure to be forthright, open or truthful; with-
holding information or evidence concerning matters under re-
view or investigation; fabricating information or evidence or
conspiring with another to do so” is grounds for discipline up to
and including termination. Based on the statements given by
Johnson, Freeman, and Thomas, as well as what appeared to be
inconsistent information provided by Martin, Respondent de-
termined that Martin had mislead Respondent in its investiga-
tion of the threats against Johnson. As Respondent points out,
Martin admitted in her testimony that she gave false infor-
mation to Respondent. Although Respondent did not have all
of Martin’s telephone records at the time of her discharge, the
records further support Respondent’s conclusions concerning
Martin’s interference in the investigation. Furthermore, the
telephone records contradict her testimony as well. Overall, I
did not find Martin’s testimony to be credible with respect to
her involvement with Cox and Johnson.
Counsel for the General Counsel asserts that Respondent did
not present sufficient evidence that it has discharged employees
for similar violations in the past. There is, however, no evi-
dence that any employee engaged in similar conduct prior to
Martin’s discharge and not discharged. As discussed earlier in
this decision, Supervisor Wilson was found to have engaged in
similar conduct and was terminated.
Thus, on the basis of the total record evidence, I don’t find
sufficient evidence of animus to show that Respondent termi-
nated Martin because of her union activity or because she was a
witness in an unfair labor practice hearing. Nevertheless, even
if there was sufficient evidence of animus, I find that Respond-
ent has established that it would have terminated Martin in the
absence of any protected activity.
H. The Discharge of Kimberly Pratcher
Kimberly Pratcher (Pratcher) worked for Respondent from
September 2000 to September 22, 2011. At the time of her
OZBURN-HESSEY LOGISTICS, LLC 21
discharge, Pratcher worked as a customer service representative
on first shift. Her usual work hours were 7:30 a.m. to 4:15 p.m.
Her immediate supervisor was Nevatta Teague.
1. Pratcher’s union activity
Pratcher worked at Respondent’s facility during both of the
union campaigns. She did not wear any union buttons, pins, or
anything else to openly display any support for the Union. She
recalled that during a casual conversation with Teague she
mentioned that she planned to vote for the Union. Teague told
her, “You cannot let Karen White hear you say that.” As a
result of Teague’ warning, Pratcher did not do anything to let
management know how she felt about the Union. She testified
that Teague was the only person who knew how she felt.
Teague denied that she ever told Pratcher that she should not let
White know that she planned to vote for the Union.
2. Pratcher’s involvement in the investigation of
Carolyn Jones
Based on the Union’s June 14, 2011 petition, the second
election was held at Respondent’s facility on July 27, 2011. On
May 26, 2011, and prior to the filing of the petition, employee
Carolyn Jones passed out union fliers by the timeclock during
her lunchtime. Pratcher testified that as she walked near to
Jones she overheard Director of Operations Smith yell out to
Jones that she had better not conduct union business on
worktime. Jones responded that she was on break. Pratcher
also heard Smith make the same statement to Linda Cotton;
another employee who was accompanying Pratcher as they
proceeded to their work area from an employee meeting.
Pratcher recalled that she told Jones that she was not on break
and she didn’t want Jones to say anything to her. Pratcher testi-
fied that she had not wanted anything to do with Jones at that
point. Jones was discharged on June 14, 2011, and her dis-
charge was found to be a violation of Section 8(a)(3) of the Act
by ALJ Ringler in his May 15, 2012 decision.
Later in the workday Cotton came to Pratcher and told her
that she could probably expect Smith to ask her for a statement
of what occurred with Jones as he had already asked her for a
statement. Sometime later Smith met with Pratcher. She re-
called that before he had a chance to ask her for the statement
she told him that she did not want to get involved; she just
wanted to remain neutral. She told him that she had not heard
what Jones or Cotton said. She had only heard his statement to
Jones and Cotton warning them that they had better not conduct
union business on the clock. Pratcher testified that because of
his comments, she felt pressured to give a statement and she did
so. In her written statement, Pratcher confirmed that she had
not heard what Jones said to Cotton. She had heard Smith ask
Cotton if she was on the clock. She included in the statement
that Jones had not said anything to her and that she told Jones
that she was on the clock. Pratcher added that she had told
Smith that she did not want to make a statement and that she
wanted to remain neutral. She added that she felt that she had
been pressured into writing the statement. Before she gave the
written statement to Smith, she again told him that she wanted
to remain neutral. Smith acknowledged that he understood.
Pratcher testified that when Smith read the statement, he looked
upset. He simply responded, “Okay, thanks.”
Although Pratcher was presented as a witness to testify about
this conversation during the October 2011 unfair labor practice
hearing in 26–CA–024057, Pratcher had already been dis-
charged. Pratcher did not indicate that there were any other
conversations with Smith or any other manager about the May
26, 2011 incident prior to her discharge in September 2011.
3. Background of Pratcher’s work schedule
Beginning in the fall semester of 2005, Pratcher began col-
lege courses to obtain her bachelor’s degree in nursing. Be-
tween 2005 and 2010, Pratcher attended courses at Southwest
Community College. In 2010, Pratcher was accepted as a stu-
dent at the Baptist College of Health Sciences. Pratcher testi-
fied that while she was employed at Respondent’s facility, she
tried to take her nursing classes in the evenings or on week-
ends. There were occasions, however, when the classes that
she needed were only offered during the usual workday. When
Pratcher knew that she was going to have a conflict between
her work schedule and her school schedule, she would meet
with Teague before the semester started. Teague would adjust
Pratcher’s work schedule in order for Pratcher to attend the day
classes that she needed. Pratcher and Teague would sit down
together and work out her work schedule to make sure that
Pratcher could work at least 30 hours per week and maintain
her status as a full-time employee. It was Pratcher’s practice to
draft the work schedule and submit it to Teague. It was
Pratcher’s understanding that Teague would then send the
schedule to Regional Vice President of Operations Karen White
for approval.
After receiving approval from Teague and White, Pratcher’s
work schedule changed each semester to coordinate with her
class schedule. These changes involved modifications in
Pratcher’s arrival time, as well as, her departure time. Pratcher
testified that as long as she worked the hours in her adjusted
schedule, she did not receive attendance points on the days she
left work early or arrived late because of her school schedule.
Employees are disciplined for their attendance when they ac-
cumulate increments of four points. While the accumulation of
13 points is grounds for termination, Respondent’s progressive
discipline policy provides that discipline must progress through
each step of the process that requires a first written warning,
second written warning, and final written warning before an
employee is terminated for attendance.
4. Respondent’s change in adjusted work schedules
White confirmed that when she first became Regional vice
president of operations for the Memphis facility 4 or 5 years
before her testimony, there was no policy prohibiting employ-
ees from working adjusted work schedules to accommodate for
attending school or other reasons. White was aware that ac-
commodations were being made to allow employees to work
modified schedules and she acknowledged that prior to 2011,
she had approved the adjusted work schedule for Pratcher.
White recalled that it seemed that more and more employees
were asking for alternate work schedules to attend school and
for other reasons. She explained that the practice had “gotten
out of hand” and from an administration standpoint it was be-
coming a nightmare trying to make sure that there was suffi-
cient coverage for employees who were leaving early or com-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing in late. White made the decision to change the practice and
notified her supervisors and managers in staff meetings in Au-
gust or September 2011. She identified for the record a number
of employees who thereafter asked for a schedule accommoda-
tion and who were denied the alternate schedules. There was
no general announcement to all the employees. White’s plan
was for her supervisors to meet with individual employees who
might be affected by this change in practice. The employees
were to be given a week to 2 weeks to work out their schedul-
ing conflicts and they would be given the option of moving to
another shift if necessary.
In early August, Smith was in the process of lining up cover-
age for a customer service representative who was on a leave of
absence for medical reasons. In his email contact with Teague,
he learned that Pratcher had cut back to 30 hours in order to
attend school. He passed along the information to White.
White responded on August 9, 2011, by telling him that she
thought that they were no longer allowing part-time schedules
and she suggested that HR needed to be involved. Senior Em-
ployee Relations Manager Shannon Miles received a copy of
the email response. On the same day, Miles left a telephone
message for Teague and sent an email to Sara Wright asking if
she were aware of Pratcher’s part-time schedule.
Wright testified that when she came to Respondent’s facility
in February 2011, she was not aware that schedule accommoda-
tions were allowed. She later found out, that some employees
had been allowed to have schedule accommodations. After
Miles brought the accommodation issue with Pratcher to her
attention in August 2011, Miles checked previous records. She
discovered emails from the previous year in which Pratcher’s
adjusted schedule had been approved by White.
5. Pratcher’s work schedule for September 2011
As Pratcher’s fall classes were to begin on September 7,
2011, she prepared her adjusted work schedule and emailed it
to Teague in August. A few days after doing so, Teague came
back to her nearly in tears and told her that her adjusted sched-
ule had not been approved. Teague told her that it had not been
White who had denied the schedule adjustment; it had been a
new person in the corporate office in Nashville. A few days
later Pratcher spoke again with Teague about her schedule.
Teague told her that while her position required her to work 40
hours, she had the option of transferring to second shift to work
as an operator in the warehouse. Pratcher also testified that
Teague made the comment that “they” denied the adjusted
schedule because of “all the union stuff going on there.”
Pratcher did not identify who “they” were or if Teague ex-
plained what she meant by the comment. Teague denied that
she made such a statement to Pratcher.
A few days later, Teague spoke again with Pratcher and
asked her what she had decided to do about taking the second-
shift position. Pratcher testified that she didn’t want to transfer
to the second-shift position because she still had a night class
each week. She was also reluctant to transfer because she had
never worked in the warehouse before and she knew that the
warehouse would be hot in the summer and cold in the winter.
6. Pratcher’s attendance
Once Pratcher’s classes started on September 7, 2011,
Pratcher attended classes and adjusted her work schedule ac-
cordingly. This involved her reporting late to work or leaving
early in order to make her scheduled classes. On September 9,
2011, Pratcher reported to work after attending a class. Teague
gave her an employee attendance notice showing that she was
receiving a first written warning for her attendance. The docu-
ment reflected that this was based on eight combined attend-
ance points for attendance infractions on October 4, 2010, Feb-
ruary 10, March 24, May 13, August 25–29, and September 2,
2011.
While Pratcher was at work on September 13, 2011, she re-
ceived notice that her brother had been shot and was in critical
condition in the hospital. She left work early to go to the hospi-
tal. Pratcher’s brother died and she took bereavement leave
from September 14–16, 2011.
On September 21, 2011, Pratcher reported to work late.
When she arrived, Teague gave her another employee attend-
ance notice. Although the form indicated that Pratcher had a
total of 13 combined attendance points, there was no discipli-
nary action noted. Pratcher asked Teague “So am I fired now?”
Teague stated that while she could not terminate her, Pratcher,
was at a level where she could be terminated. Teague said that
she would have to check with Wright first. Pratcher told
Teague that she wanted to add her comments as to why she felt
that she was receiving the discipline and Teague agreed.
Pratcher recalled that she went to Teague’s computer and typed
in her comments on the attendance notice. Pratcher added the
following comments:
I incurred this accumulation[s] of points because OHL
was unwilling to accommodate to my schedule for college
because I now support the Union. In support of this claim,
all this changed when Phil Smith asked me to make a
statement regarding what happened between himself and
Carolyn Jones back in May of this year. In conclusion,
thanks for the opportunity to serve your company for the
eleven[s] years I have been here.
Wright recalled that when Teague spoke with her about the
attendance notice that she had just given to Pratcher, Wright
explained that Pratcher could not be terminated and that she
had to be given a second written warning. Later in the day on
September 21, Teague came back to Pratcher and told her that
she was not terminated because Teague had not followed the
proper steps to terminate Pratcher. Teague testified that she
prepared a second employee attendance notice for Pratcher on
September 21. The notice reflected that Pratcher was receiving
a second written notice for the 13 combined attendance points.
The warning was based on two attendance points given for
September 12, 2011, and three attendance points given for Sep-
tember 13, 2011. Teague testified that she presented the notice
to Pratcher and she observed Pratcher sign the notice. Pratcher
testified that although the signature on the document looks like
her signature, she did not recall receiving it.
On September 22, 2011 Teague gave Pratcher an employee
attendance notice reflecting that Pratcher was receiving a final
OZBURN-HESSEY LOGISTICS, LLC 23
written warning. The document reflected that Pratcher had a
total of 16 combined attendance points and 4 points were spe-
cifically given for September 21, 2011. Pratcher did not ques-
tion the warning with Teague. She recalled that she had arrived
late on September 21. Pratcher added a handwritten comment
with the same wording that she had originally added to the
initial warning given to her on September 21. Pratcher recalled
that after receiving the attendance notice, she told Teague that
she was going to have to leave early that day because she had a
class and that was going to add more points for her. Pratcher
recalled that she commented to Teague that since she was going
to incur more points, “what’s the point of me having to come
back?” Teague agreed and said that she was going to speak
with Wright. When Teague returned, she had a termination
notice showing a combined number of 19 attendance points and
designating 3 attendance points for September 22. Pratcher’s
hand-written comments are shown on the comments section of
the notice. Pratcher testified that she had come in that day at
7:30 a.m. and she worked for 1 or 2 hours.
Wright testified that she spoke twice with Teague on Sep-
tember 22, about Pratcher’s attendance. The first time she di-
rected Teague to give Pratcher the final written warning notice.
The second conversation occurred when Teague reported that
Pratcher planned to leave and Teague asked if she could go
ahead and terminate Pratcher so that she would not have to
come back just to be fired. Wright testified that she told
Teague that she could not terminate Pratcher before Pratcher
actually accumulated the attendance points.
Pratcher testified that after receiving the termination notice,
she did not report back to work the following day. On Septem-
ber 27, 2011, Pratcher filed a claim for unemployment benefits
with the State of Tennessee. After a hearing before an unem-
ployment appeals hearing officer, Pratcher was granted unem-
ployment benefits. Respondent was represented by Wright
during the unemployment appeals hearing and Respondent took
the position that Pratcher’s employment was terminated be-
cause she failed to call in or report to work after September 22.
Wright testified that the first time that she became aware that
Pratcher received a termination notice on September 22 was
during the unemployment hearing. Wright testified that prior to
the unemployment hearing, she was of the impression that
Pratcher had simply quit her employment.
7. Conclusions concerning the Lawfulness of
Pratcher’s termination
Despite Pratcher’s attempts to remain neutral during the un-
ion campaign, she found herself embroiled in it when Smith
asked her to write the statement about the Carolyn Jones’ inci-
dent. Although she did not testify in an unfair labor practice
hearing about her interaction with Smith before her termination,
her comments in the statement would have likely engendered
Respondent’s displeasure with her. Thus, I find that the Gen-
eral Counsel has met the requisite burden in establishing a pri-
ma facie case of discrimination under Wright Line. Respondent
asserts that Pratcher made a conscious decision to violate Re-
spondent’s attendance policy; and as a result she is no longer an
employee of Respondent. Respondent contends that Pratcher’s
attendance points resulted from the elimination of a schedule
accommodation. While it is undisputed that Pratcher’s absenc-
es triggered attendance points, I find that Respondent has not
met its burden under Wright Line. Respondent has not only
failed to show that it would have terminated Pratcher in the
absence of her protected activity; Respondent has failed to
show that there was a legitimate basis for her termination under
the circumstances in which it was administered.
The record reflects that Pratcher received her notice of ter-
mination prior to her absence that would have triggered addi-
tional attendance points. While the termination appears to have
resulted from a communication gap between Wright and
Teague, the September 22, 2011 termination notice to Pratcher
was not supported by Pratcher’s existing attendance points.
Wright took the position at Pratcher’s unemployment hearing
that Pratcher had quit her employment with Respondent.
Wright testified that she had not been aware that Pratcher was
given a termination notice on September 22. Furthermore, even
if Pratcher had already accumulated enough attendance points
for her termination on September 22, 2011, the record evidence
reflects that other employees accumulated attendance points far
in excess of Pratcher before they were terminated. Pratcher’s
termination notice documents that her termination was based on
an accumulation of 19 combined points. The General Counsel
introduced evidence to show that employee M. Davis was is-
sued a second written warning in July 2011 at 15 points, was
issued a final written warning in September 2011 at 23 points,
and was not discharged until he reached 27 points in October
2011. Employee A. Faulkner was terminated in September
2009 for attendance, but only after he accumulated 29 com-
bined points. Employee J. Shaw was terminated for an attend-
ance violation in January 2009 after he accumulated 34.5 at-
tendance points. Respondent’s records also reflect that em-
ployee P. Shipp was given a second written warning at 19
points and she was not discharged until she reached 24 points in
November 2011. Respondent’s records also document that
employee T. Rhodes receiver her first attendance warning at 27
points, a final written warning at 29.5 points, an additional final
warning at 34 points, and was finally discharged at 33 points.
In June 2011, employee K. Watson was given a first written
warning after she accumulated 29 attendance points. On July 5,
2011, she was given a final written warning when she accumu-
lated a total of 46 attendance points. She was not discharged
until she failed to call in or to show up for work for over a
week. Finally, Respondent’s records document that employee
Q. Blade received a second written warning in May 2011 for 17
points and a final written warning in June 2011 for 22 points
before being discharged in July 2011 for 23 accumulated at-
tendance points.
Accordingly, I find that Respondent has not demonstrated
that it would have terminated Pratcher in the absence of her
protected activity and I find that Respondent unlawfully termi-
nated Pratcher on September 22, 2011.
Personnel Actions Involving Keith Hughes
Keith Hughes worked for Respondent from November 2004
to April 26, 2012. At the time of his discharge, he was working
on the HP account on the mid-shift; the shift that runs from 12
p.m. to 8:45 a.m. He was supervised by department Supervisors
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
David Maxey, Stacey Deal, Darnell Flowers, and Manager
Robert Gray.
1. Hughes’ union and protected activity
Hughes testified that he wore union shirts and buttons at
work and that he passed out union authorization cards and fliers
to employees on their breaktime. He also testified as a witness
for the General Counsel in the November 2011 hearing (Case
26–CA–024057) concerning threats and alleged unlawful
statements by Phil Smith.
2. Hughes’ August 25, 2011 final warning
Dawn Barnhill worked in the HP department in July 2011.
She testified that on July 19, 2011, she passed by the work area
where Hughes was preparing to load a truck. She was wearing
a shirt with lettering on both the front and back of the shirt. On
the front of the shirt were the words “I can speak for myself.”
On the back of the shirt were the words “No means no.” She
recalled that as she passed Hughes, he commented that he had
heard that she had purchased a shirt. She responded “What
difference does it make with you anyway?” Barnhill testified
that Hughes gave her an “ugly” look and told her ‘If I see you
wearing that shirt, I’m going to rip that shirt off of you.” Barn-
hill went to Supervisor David Maxey’s office and reported that
Hughes had threatened her. While in Maxey’s office, she pre-
pared a statement confirming the threat. At Maxey’s direction,
she took the statement to HR and met with Young and Miles.
As Barnhill described the interaction with Hughes, Miles took
notes. Barnhill reviewed the notes and signed them as well. In
talking with Young and Miles, Barnhill explained that she and
other employees had planned to wear the same shirt the follow-
ing Thursday, however, she was afraid to do so. She went on to
explain that she was afraid to do so because she believed that
Hughes might rip it off as he had threatened. Miles testified
that when Barnhill spoke with her she was visibly upset and
shaking. Miles instructed Barnhill not to work alone in any
area and to stay around other people. Miles told Maxey to
make sure that Barnhill did not work by herself and to keep her
near the front and near the office where the supervisors worked.
Hughes testified that he did not recall having any specific in-
teractions with employees that were out of the ordinary on July
19. He denied making any threats to Barnhill. On July 20,
2011, Miles met with Hughes in an office in the HP building.
Phil Smith, Supervisor Revo Thompson, and Senior Operations
Manager Leroy Heath attended the meeting. Miles told Hughes
that there had been a complaint that he had threatened someone
and she was conducting an investigation. Hughes testified that
he told Miles that he had no idea what she was talking about.
Neither Miles nor Hughes testified that Miles gave him any
specific information about the alleged threat. Although Hughes
asked her repeatedly who had complained about him, Miles did
not identify the individual who had made the alleged threat.
Miles asked Hughes not to be disruptive or to threaten anyone
on the work floor until she could investigate. Hughes recalled
that she told him not to conduct his own investigation. He told
her that he had no investigation to conduct because he had not
done anything.
Miles recalled talking with Hughes again the next day. As
she was leaving the facility in the evening and walking to her
car in the parking lot, she heard someone calling her name. She
turned to see Hughes standing in the doorway of a building. He
asked if he could speak with her. She returned to the facility.
Revo Thompson arranged for her to have an office to meet with
Hughes and he also accompanied her into the meeting with
Hughes. Once inside the office, Hughes told her “I thought that
you were going to do an investigation and then get back with
me.” Miles explained that it had only been 24 hours and that
she would talk with him, but not then. Miles described Hughes
as upset as he paced the floor. He continued to ask who had
made accusations against him. When Miles tried to tell him
that she would talk with him and get his side of the story, he
continued to talk over her. He argued that there was no side of
the story because he didn’t do anything or threaten anyone. At
one point in the meeting, Thompson had to stop Hughes and
tell him to stop talking over Miles so that she could say some-
thing. Then Miles told Hughes that she would conduct the
investigation and she would talk with any of his witnesses.
Hughes asserted that there were no witnesses because he didn’t
do anything. Finally, Hughes contended “This is a witch hunt.”
He added that people were lying on him and out to get him just
as people had been out to get and to kill Jesus. Miles recalled
that the managers were pretty stunned at that point and Hughes’
last comment ended the conversation.
Miles did not immediately start the investigation because she
wanted to wait until after the election. She returned to her
Nashville office for 2 weeks before returning to Memphis to
begin the investigation. Miles testified that she had not wanted
to cause more issues. She explained that Hughes was very
vocal about his support for the Union and tensions were quite
high at the facility. She said that she didn’t want anyone to
think that she was out to get him and she didn’t want to stir
things up right before the election.
When Miles resumed the investigation, she could not find
any witnesses who observed the incident between Barnhill and
Hughes and there were no video cameras in the area where the
incident was alleged to have occurred. On August 25, 2011,
Miles held another meeting with Hughes accompanied by
Smith and Heath. Miles told Hughes that he had been accused
of threatening to rip off someone’s shirt. Hughes asserted that
this accusation was a lie and that he had never threatened any-
one in his life. Hughes recalled that he asked Miles why he
would threaten to rip off a T-shirt from someone. Miles re-
called that he added that if someone wants to wear one of the
shirts that OHL (Respondent) gives them, it is their right to do
so. Miles asked him how he knew that it was a T-shirt because
she had never said that it was a T-shirt and she asked him why
he thought it was an OHL shirt.
Hughes testified that at this point in his meeting with Miles,
he began to talk about author Rico Machiavelli and the book
Forty-Eight Laws of Powers.13 Miles asked him what he meant

13 I take judicial note that “The 48 Laws of Powers” is a book writ-
ten in 1998 by Robert Greene. It has been described as a distillation of
3000 years of power, drawing on the lives of strategists and historical
figures and intended to show people how to gain power, to preserve
power, and to defend themselves against power manipulators. Wikipe-
dia 2013.
OZBURN-HESSEY LOGISTICS, LLC 25
by bringing up the 48 rules. Hughes told her that people don’t
like change and he stood for change. Miles recalled that he said
something about the need to have change to overcome oppres-
sion and then he just seemed to ramble in his comments.
Hughes continued to ask Miles who had accused him of the
threat. She told him, “If you didn’t threaten anybody, it doesn’t
matter who said it because then you could go out and confront
them and make the situation worse.” Hughes recalled that
Miles accused him of being angry. Hughes denied being angry
and told her, “See, I’ve got a smile on my face. I’m really
calm.” Hughes recalled that Miles told him that someone can
have a smile and still be angry. Hughes told Miles, “I don’t get
mad; I get even.” Miles recalled that as he made the statement,
he leaned forward toward her. Smith recalled that as Hughes
made the comment, he changed position in his chair and looked
Miles directly in the eye. When Miles told him that statement
sounded liked a threat, Hughes responded that it was not a
threat; it was just the truth.
Following the meeting, Miles made the decision to give
Hughes a final written warning. She testified that she did so
because of his threat to Barnhill and also his threat to her. She
testified that Hughes already had several disciplinary actions on
file and she could have terminated him. Because he was so
vocal for the Union, she knew that he would file an unfair labor
charge if she fired him. She thought that it would avoid another
unfair labor practice hearing if she gave him only a final warn-
ing rather than terminating him. She said that she didn’t want
Hughes to think that she was persecuting him.
3. October 10, 2011 final warning and suspension
On October 4, 2011, Hughes was assigned to load trucks in
the HP account dock area. Hughes’ job was to pull boxes from
the conveyor line and place them on the line to be moved to the
trucks. Supervisor Maxey received a report from fellow Super-
visor Eric Diaz concerning a complaint about Hughes. A Span-
ish speaking employee reported to Diaz that Hughes was sitting
in the truck and not pulling his weight with loading the truck.
Maxey assumed the complaint was made to Diaz because he is
bilingual and it may have been easier for the employee to
communicate this information to Diaz.
After speaking with Diaz, Maxey went to Hughes’ work ar-
ea. Maxey testified that he began the conversation by asking
Hughes if everything was okay. Maxey could not recall
Hughes exact words; however, his best recollection of the
comment was, “You guys just don’t have a clue.” Maxey testi-
fied that he told Hughes that it had been reported that he was
not pulling his weight. He added that he could get another em-
ployee to help but first he needed to make sure that everything
was okay. Maxey recalled that Hughes responded, “You guys
are treating me just like you did Jesus.” When Maxey asked
what he meant by “you people,” Hughes responded, “You Gen-
tiles and Romans, you’re trying to kill me like Jesus.” Because
Hughes was becoming increasingly louder, Maxey took Hughes
into the office.
Hughes’ description of the initial conversation with Hughes
was similar to Maxey’s description. Hughes recalled that
Hughes told him that he had heard that he was not carrying his
weight. Hughes recalled that he had told Maxey that the em-
ployees in that area were really busy and could use some help.
Hughes recalled that he demanded to know who had com-
plained about him and that they needed to “get to the bottom”
of the complaint. Hughes testified that he told Maxey, “You
know how it is David. They lied on Jesus.”
Maxey took Hughes into Department Manager Jim
Cousino’s office. Both Maxey and Cousino testified that when
Hughes sat down in the office, he turned his back to Maxey.
When Maxey attempted to question Hughes about why some-
one would have reported that he was not carrying his weight,
Hughes became increasingly agitated. Maxey described
Hughes as moving his arms around and becoming more excit-
ed. Hughes again brought up Jesus in response to Maxey’s
questions. Cousino testified that Hughes told the supervisors,
“This is a bunch of crap.” Hughes testified that when Maxey
told him to explain to Cousino what he had said in the work
area, he told them that he had nothing to say because he had not
done anything. Hughes recalled that he told Cousino, “He
came out on the floor and embarrassed me and harassed me in
front of my coworkers and told me to come and sit in here.
And you told me that I wasn’t Jesus.” Hughes acknowledged
that he then began to look away from Maxey. Hughes recalled
that Maxey asked him, “You’re not going to look at me? You
are going to sit there with your head turned and you’re not go-
ing to look at me?” Hughes testified that he again told Maxey
that he had insulted him, harassed him, and intimidated him on
the floor for no reason. Hughes recalled that when he finally
looked toward Maxey, he raised his arms to shoulder level.
Maxey testified that because he could see that things were
getting out of hand, he didn’t want Hughes to return to the work
floor and disrupt the warehouse. He told Hughes to punch out.
As Hughes started out the office door, he told the supervisors
“I’ll see you in court.”
Later on the same day, Maxey sent an email Gloria Thomp-
son, Sara Wright, Shannon Miles, and Evangelia Young in HR.
Miles testified that she also reviewed witness statements from
those involved. Miles recalled that Maxey, Cousino, and Karen
White recommended that Hughes be terminated. Miles ex-
plained that she knew that if he were terminated, he would file
an unfair labor practice charge and the company would be right
back in a hearing as they are now. Rather than terminating
Hughes, she prepared a final written warning and sent it to the
Memphis facility to be issued to Hughes. The warning that was
given to Hughes on October 10, 2011, described his offense as:
On Monday, October 3, Keith spoke inappropriately and
hostilely to a supervisor, and this conduct was witnesses by a
manager. During this incident, he turned his back on his super-
visor who was trying to speak with him, and he threw his arms
into the air.
Counsel for the General Counsel argues that even though the
warning is worded as a final written warning, Hughes was not
paid for the work that he missed from October 4–7, thus result-
ing in a 4-day suspension in addition to the warning.
4. Hughes’ final warning and discharge
When Hughes was first employed with Respondent in 2004
he was also working for Federal Express. He has, in fact, been
employed with Federal Express for 17 years. His work hours at
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Federal Express usually ran from 11:30 p.m. to 3:30 a.m. His
hours with Federal Express have also run from 12:15 p.m. to 4
a.m. Because Hughes initially worked second shift at Re-
spondent’s facility, his hours for Respondent ran from 2 until
10:30 p.m. In 2010, Hughes was transferred from second shift
to mid-shift at Respondent’s facility. On this shift, Hughes
initially worked from 11 a.m. to 7:45 p.m. On occasion,
Hughes worked as long as 9 to 10 hours. Even when he did so,
he was still able to get to his second job at Federal Express
without any difficulty. Hughes testified, however, that
throughout his entire employment, he was allowed to leave his
shift early on nights when employees were required to work
mandatory 12-hour shifts. He asserted that he had been given
this schedule accommodation on both the second shift and the
midshift and he had never been assessed attendance points for
the nights when he had to leave early to attend his Federal Ex-
press job.
Hughes testified that in early 2012, Senior Operations Man-
ager Robert Gray told him that in order for employees to re-
ceive night differential pay, he had to move back the start time
for midshift to 12 p.m. His midshift hours were then changed
from 12 p.m. to 8:45 p.m. Gray was a relatively new manager
and had not been employed with Respondent before October
17, 2011, when he took the position of Senior Operations Man-
ager for the HP account. Gray testified that on the evening of
February 27, 2012, there was a new supervisor working alone
in the department. As Gray walked through the department, he
saw Hughes working. He asked Hughes if he was aware that he
was supposed to be working 10 hours that night. Hughes told
Gray that he was not supposed to work 10 hours as he had a
special arrangement. Not knowing what Hughes meant, Gray
told him okay but he would have to check on it.
Gray testified that he checked first with Supervisors David
Maxey and David Spates, as well as the leads in HP. None of
the individuals knew about Hughes’ arrangement. On February
28, Gray sent an email to Gloria Thompson in HR. He told
Thompson that when he had spoken with Hughes the day be-
fore, Hughes had insisted that he had a special arrangement to
leave work at 9:45 p.m. to go to his job at Federal Express. He
asked if HR had any documentation of the arrangement and he
asked Thompson to review Hughes’ file. He also suggested
that employees Ora McFadden and Malcolm Boyd, who also
work at Federal Express, would have the same terms as
Hughes. Thompson forwarded the email to Sara Wright and
asked if she would check Hughes’ file. When Wright checked
Hughes’ file, she did not find any documentation of the special
accommodation.
Miles testified that the email chain started by Gray on Febru-
ary 28 was the first time that she learned that Hughes had been
leaving work early. When Miles began to look into the matter,
she also learned that there were other employees who had se-
cond jobs. Miles directed Sara Wright to meet with those indi-
viduals to explain that they could no longer be accommodated
to leave work early for their second job. Wright and Gray met
with individually with Hughes, Ora McFadden, and Malcolm
Boyd as Miles directed.
Both Wright and Gray testified that Hughes was upset when
they met with him on March 5, 2012, to tell him that he could
not leave his scheduled work shift early to go to his second job.
Hughes maintained that he had been allowed to do so in the
past. Wright testified that she told Hughes that if they accom-
modated his schedule, they would have to do it for everyone
else. Wright and Gray told him that he would be given a two-
week grace period to make the necessary arrangements.
Hughes testified that when he spoke with Gray and Wright, he
asked if he could move to a position on the first shift because
that would not conflict with his Federal Express job. Hughes
recalled that Wright told him that he could not do so because
there were no positions available. Hughes asserted that he had
heard Gray comment a few days earlier that there were jobs on
the first shift. Hughes did not indicate in his testimony whether
Gray responded. He testified, however, that Wright had con-
tinued to tell him that there were no jobs available for him to
transfer into on the first shift. In their testimony, neither
Wright nor Gray addressed or rebutted Hughes testimony that
he asked for a transfer to the first shift and was told by Wright
that he would not be allowed to do so.
The day after meeting with Gray and Wright, Hughes sent an
email to Andrew Tidwell, the person that Hughes believed to be
the corporate head of HR. In the email Hughes contended that
he had been allowed to leave work early for the last 7 years to
begin his work with Federal Express and he had been told that
he would no longer be allowed to do so. Hughes told Tidwell
that he had a meeting with his manager at Federal Express to
discuss the situation. He also asked Tidwell if he could have a
letter from Respondent to give to his manager at Federal Ex-
press confirming that Respondent would no longer allow him to
leave early to begin his job at Federal Express at 11:30 p.m.
Tidwell responded that he was traveling and did not know
enough about the situation that Hughes had described to com-
ment. Tidwell provided his office telephone number and of-
fered to speak with anyone at Federal Express if he needed to
do so. On March 7, 2012, Hughes again emailed Tidwell. He
told Tidwell that he had spoken with his Federal Express man-
ager and Federal Express had agreed to change his starting time
to 12:15 p.m. Hughes explained that even with this change, he
was concerned that he might continue to be in a position in
which he could not stay for a full 12-hour shift. He added that
if this situation resulted in his termination, he was asking that
his paperwork be given to him with a full detail of the reason
for the termination.
5. Hughes attendance points
On December 27, 2011, Hughes was given a second written
warning for his attendance. The attendance notice showed that
Hughes had a combined total of eight points for absences and
tardiness covering the period between March 11 and December
26, 2011. On April 3, 2012, Hughes was given a second writ-
ten warning for 10 combined attendance points. The points
were given for absences and tardiness between April 27, 2011,
and January 9, 2012. The notice contained a handwritten note
stating that the next step progression for 12 points would be a
final written warning.
On April 9, Hughes was scheduled for a 12-hour shift start-
ing at 12 p.m. Hughes clocked out at 9:46 p.m. On April 10,
2012, Hughes received an employee attendance notice confirm-
OZBURN-HESSEY LOGISTICS, LLC 27
ing a final written warning. The warning was given for a total
of 13 combined attendance points including 3 points that were
given to Hughes on April 9, 2012, for leaving early. The notice
contained hand-written notes stating that if there were any at-
tendance issues prior to April 27, 2012, he would be terminat-
ed. On April 11, 2012, Hughes again emailed Tidwell. Hughes
reiterated his circumstances with his requirement to be at Fed-
eral Express at 12:15 and the difficulty in doing so when he
was needed for a 12-hour shift. Hughes stated in the email that
he had asked for a change in his shift and been told that a shift
change was not possible. Hughes also explained that even
though Gray had told him that everyone was to be treated
equally, he was aware of other employees who had accumulat-
ed 30 attendance points and were still employed. Hughes as-
serted that he believed that he was being forced into termina-
tion and that it was in retaliation for his support for the Union.
Hughes appealed to Tidwell to investigate Respondent’s mo-
tives and to abide by Respondent’s mission statement.
On April 25, Hughes and the other HP account employees
were informed that they would be required to work a mandato-
ry 12-hour shift. Hughes went to Gray and asked if he could be
allowed to leave work early for his Federal Express job. Gray
denied his request. Hughes also spoke with his supervisor Dar-
nell Flowers and asked if he could use personal time (PTO) to
allow him to leave early for his Fed Ex job and Flowers denied
his request. Flowers also told him that if he left before 12:45
that evening he would get three additional attendance points.
On April 26, 2012, Hughes received his notice of termination
based on a total of 16 combined attendance points.
6. Conclusions concerning the lawfulness of
Hughes’ discipline
Three separate disciplinary actions are in issue with respect
to Hughes. Clearly, Hughes engaged in union activity that was
known to Respondent. Miles, in fact, testified that in two in-
stances she gave Hughes a lesser discipline simply because of
his vocal support for the Union and her concern that he would
file unfair labor practice charges. There is no dispute that
Hughes was well known as a union supporter. On the basis of
the record evidence, there is a logical nexus between his disci-
pline and Respondent’s animus toward Hughes. The overall
evidence supports a finding that the General Counsel has met
its initial burden under Wright Line with respect to all three
disciplinary actions.
a Hughes’ warning of August 25
Hughes received the third written warning on August 25,
2011, because of his threats to fellow employee Barnhill and to
Senior Employee Relations Manager Miles. Miles testified that
even if Hughes was not disciplined for the threat to Barnhill, he
would have been disciplined for his threat to her. Hughes does
not deny that in his meeting with Miles on August 25, he told
her “I don’t get mad, I get even.”
General Counsel argues that Hughes’ admitted threat must
be viewed in the entire context of the meeting. General Coun-
sel submits that Hughes was provoked because Miles ques-
tioned him about the alleged threat to his coworker without
telling him who had accused him. Counsel for the General
Counsel describes Miles’ conduct as “goading” Hughes and
thus Hughes was justifiably provoked. Counsel for the General
Counsel also asserts that even an inappropriate comment by an
employee, when provoked, does not justify discipline.
The General Counsel’s attempts to put a positive spin on
Hughes’ statement arguing that what he meant by his comment
was that he was going to defend himself against false accusa-
tions and file an unfair labor practice charge. This was not,
however, what he said. Hughes did not testify that he clarified
his statement by explaining what he would do to get even. I
credit Miles and Smith’s testimony in their description of
Hughes’ behavior during this meeting. I do not doubt that
Hughes changed position in his chair, leaned forward, and look-
ing directly at Miles told her that he did not get mad, he got
even. While Miles questioned him about comments that he
may have made to another employee, I do not find that she
goaded him or provoked him as the General Counsel asserts. In
giving his testimony about the meeting with Miles and Smith,
Hughes was articulate and appeared quite self-confident. Hav-
ing observed his demeanor, I am doubtful that he would have
been anything other than calm and controlled. Accordingly, I
find that Respondent has met its burden in demonstrating that it
would have disciplined Hughes on August 25, 2011, in the
absence of his union activity.
b. Hughes October 10, 2011 warning
Hughes received his fourth final warning for his behavior
toward Maxey on October 4, 2011. Counsel for the General
Counsel asserts that even though Miles credited Supervisors
Maxey and Cousino about Hughes’ behavior during the meet-
ing, these supervisors differed in their testimony about the inci-
dent. While both supervisors recalled that Hughes turned away
from Maxey, they had different recall as whether Hughes was
sitting or standing for the majority of the meeting. Hughes
admitted, however, that he refused to look at Maxey and he
only turned to look at Maxey long enough to accuse him of
harassment and intimidation. Cousino testified that Hughes
kept turning the conversation away from the subject at hand.
Finally, Hughes stood up quickly, threw his hands in the air,
and proclaimed “This is a bunch of crap.”
Counsel for the General Counsel submits that even assuming
that Hughes was upset and engaged in the conduct ascribed to
him, Hughes was provoked into doing so. The General Counsel
argues that Hughes did not threaten Maxey verbally or physi-
cally, and did not make any grossly profane or vulgar com-
ments to him and thus his conduct did not justify discipline. I
agree that Hughes is not alleged to have engaged in gross or
outrageous conduct or that he used profanity or made threats to
Maxey. I do not, however, find merit to the General Counsel’s
argument that Hughes was provoked. Hughes testified that
Maxey embarrassed him by accusing him of not doing his work
in front of his coworkers. Even though Maxey may have done
so and then proceeded to question Hughes concerning his work,
such conduct is not tantamount to provocation that would justi-
fy Hughes’ behavior. The credible record evidence demon-
strates that Hughes’ behavior was such that Respondent had a
valid basis for its discipline. Respondent has demonstrated that
it would have disciplined him in the absence of his union activi-
ty.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. Hughes’ discharge
Hughes was given a final warning on April 10, 2012, and
later discharged on April 26, 2011, because of his accumulation
of attendance points. Just as with Pratcher, Hughes accumulat-
ed the extra points because of absences resulting from a change
in his previously adjusted schedule. Respondent argues that in
2011, it made an effort to eliminate all schedule accommoda-
tions for its employees at the Memphis facility. Respondent
asserts that it did so because the schedule accommodation to
allow employees to attend school or work other jobs had be-
come an administrative burden for staffing purposes. Respond-
ent further argues that the change in practice was implemented
gradually and without making a companywide announcement.
Counsel for the General Counsel argues, however, that even
though Respondent asserts that it implemented this policy in
2011, it was not applied to Hughes until March 2012.
Respondent did not present any evidence that Hughes was
made aware of this change in policy prior to March 2012. Alt-
hough Supervisor Robert Gray testified that he first learned on
February 27, 2012, that Hughes was occasionally leaving work
early to go to another job, Respondent does not deny that
Hughes had been allowed to do so.
Karen White testified that in August to September 2011, she
began eliminating the practice of allowing employees to have
special accommodations in their required shifts. She testified
that she told her managers in her meetings with them of this
decision. She also asked her managers to determine how many
employees would be affected by this change in practice. She
explained that the plan was for the managers and supervisors to
sit down individually with the affected employees to inform
them of the new policy. In the one-on-one meetings, the super-
visors would discuss the options that would be available to the
affected employees. She testified that one of the options of-
fered to employees would be the transfer to a different shift.
White’s testimony is consistent with Pratcher’s testimony.
Pratcher testified that when Teague informed her that she no
longer had the schedule adjustment accommodation, Teague
suggested that she might move to second shift in the ware-
house. Pratcher declined because she had evening classes that
would not allow her to work second shift.
After Hughes was informed on March 5, 2012, that he would
no longer be allowed to leave early from his 12-hour shifts, he
asked to be allowed to transfer to the first shift to eliminate any
need for him to leave before the end of his shift in order to
work the second job. Hughes testified that he specifically asked
Wright if he could move to the first shift and she told him that
he could not do so. Although Wright testified at length about
her discussions with Hughes prior to his termination, she did
not deny that Hughes asked to move to first shift or that she had
refused him as he asserts. In an email to Andrew Tidwell on
April 11, 2012, Hughes mentioned that he had requested a
change in his shift, but had been denied the earlier shift.
Hughes testified that when he asked Wright for if he could
move to first shift, he told her that only a few days earlier, Gray
had told him that there were positions open on the first shift.
Hughes also testified that during a meeting with employees on
April 26, 2012, Gray again mentioned that there were variable
positions on first shift and he explained that employees would
have to apply for the positions. Although Gray confirmed that
he gave Hughes a 2-week grace period to work out a solution,
Gray did not deny that he had told Hughes that there were posi-
tions open on the first shift.
Counsel for the General Counsel questions the coincidence
in Respondent’s implementing the change in its attendance
policy after the July 2011 election. This change is not, howev-
er, alleged as an independent violation and there is nothing in
the record to indicate that it was unlawfully implemented. It is
reasonable that it became an administrative headache to keep
the facility adequately staffed when employees were coming
late and leaving early to attend school and other jobs. Thus, I
don’t find anything suspect in the change in practice that White
implemented after the July 2011 election.
Despite the fact that Hughes was warned and then terminated
under an otherwise valid attendance policy application, I do not
find that Respondent has demonstrated that it would have ter-
minated him in the absence of his union activity. Based on the
testimony of the various supervisors, as well as the testimony of
Hughes, it is apparent that Hughes did not have a good working
relationship with his supervisors and managers. As evidenced
by the other two disciplines issued to him in August and Octo-
ber 2011, Hughes’ behavior was sometimes erratic, disruptive,
and viewed as threatening by managers and other employees.
Accordingly, I would expect that his accumulation of attend-
ance points would have been a welcome result of the change in
accommodating schedules. Although Respondent asserts that it
treated Hughes just as it treated other employees in implement-
ing this change in accommodating schedules, the evidence re-
flects that it did not. Hughes credibly testified that when he
first learned that he could no longer leave before the end of his
scheduled shift, he asked to move to first shift and he was de-
nied the opportunity. His doing so is further evidenced in his
written email to Tidwell. Although Wright testified, she did
not rebut Hughes’ assertion. Although Gray testified, he did
not rebut Hughes’ assertion that he had talked about the jobs
open on first shift. Respondent did not rebut Pratcher’s testi-
mony that she was encouraged to move to second shift when
she was told that her schedule would no longer be adjusted. By
denying Hughes the opportunity to change shifts, Respondent
guaranteed that Hughes would have to accumulate attendance
points and thus provide Respondent with a reason to terminate
him. Flowers testified that Hughes came to him on the day
before his termination and told him that he would not be able to
work a 12-hour shift. Flowers did not rebut Hughes’ testimony
that Hughes asked to take PTO or personal time off in order to
avoid accumulating attendance points. Accordingly, having
found that Respondent has not shown that it would have termi-
nated Hughes in the absence of his protected activity, I find that
Respondent unlawfully issued Hughes a warning on April 10,
2012, and unlawfully terminated him on April 26, 2012.
CONCLUSIONS OF LAW
1. The Respondent, Ozburn-Hessey Logistics, LLC, is an
employer within the meaning of Section 2(6) and (7) of the Act.
2. The United Steel Workers Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By terminating Kimberly Pratcher, Deshonte Johnson, and
OZBURN-HESSEY LOGISTICS, LLC 29
Keith Hughes, Respondent violated Section 8(a)(3) and (1) of
the Act.
4. By suspending Renal Dotson, Respondent violated Section
8(a)(3), (4), and (1) of the Act.
5. Respondent did not in any other manner violate the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily
discharged employees Kimberly Pratcher, Deshonte Johnson,
and Keith Hughes, and having discriminatorily suspended Re-
nal Dotson, must offer reinstatement to Kimberly Pratcher,
Deshonte Johnson, and Keith Hughes and make these employ-
ees and Renal Dotson whole for any loss of earnings and other
benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest, at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB No. 8 (2010).
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatees
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC, Memphis,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminating
against any employee for their activities in support for any
labor organization or for their testifying in National Labor Re-
lations Board hearings.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Kimberly Pratcher, Deshonte Johnson, and Keith Hughes full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(b) Make Kimberly Pratcher, Deshonte Johnson, Keith
Hughes, and Renal Dotson whole for any loss of earnings and
other benefits suffered as a result of the discrimination against

14 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
them, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from their files any reference to the unlawful discipline
and, within 3 days thereafter, notify Kimberly Pratcher,
Deshonte Johnson, Keith Hughes, and Renal Dotson that this
has been done and that the discipline will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, Social Security payment rec-
ords, timecards, personnel records 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.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Memphis, Tennessee, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative; shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily post. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 22, 2012.
(f) 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.
Dated, Washington, D.C. April 26, 2013
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

15 If this Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discipline or fire you for supporting the United
Steelworkers Union or any other labor organization or for testi-
fying in National Labor Relations Board hearings.
WE WILL NOT in any other like or related manner interfere
with, restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the National Labor Re-
lations Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Kimberly Pratcher, Deshonte Johnson, and Keith Hughes
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority o any other rights or privileges previously en-
joyed.
WE WILL make Kimberly Pratcher, Deshonte Johnson, Keith
Hughes, and Renal Dotson whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, plus interest compounded daily.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Kimberly Pratcher, Deshonte Johnson, and Keith Hughes, as
well as the unlawful suspension of Renal Dotson and, within 3
days thereafter, notify them in writing that this has been done
and that the discipline will not be used against them in any way.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate quarters.
WE WILL compensate Kimberly Pratcher, Deshonte Johnson,
and Keith Hughes for the adverse tax consequences, if any, of
receiving one or more lump-sum awards coverings periods
longer than 1 year.
OZBURN-HESSEY LOGISTICS, LLC