Toll Mfg. Co.

National Labor Relations Board - Board Decisions

May 4, 2004

341 N.L.R.B. 832 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Toll Manufacturing Company and Leslie R. Pardue.
Case 9–CA–37449
May 4, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The issues in this case are whether the Respondent vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act by discharging employee Leslie R. Pardue and,
if so, whether Pardue is entitled to a full backpay remedy
notwithstanding the fact that he repeatedly lied under
oath during Board proceedings.1 We agree with the ad-
ministrative law judge that the Respondent unlawfully
discharged Pardue. However, for the reasons set forth
below, we find that Pardue’s entitlement to backpay
should be tolled as of the date that he first lied under
oath.2
I. BACKGROUND
A. The Judge’s Initial Decision
On July 5, 2001, Administrative Law Judge John T.
Clark issued his attached initial decision in this proceed-
ing. He found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Pardue on Feb-
ruary 23, 2000, because of his union or other concerted
activities. The judge found that the inference of discrimi-
nation was supported by the facts that Pardue was the
leading union activist, that the Respondent was clearly
opposed to the Union and knew of Pardue’s leadership
role, that the discharge came without warning on the
heels of the union campaign instigated by Pardue, and
that Pardue was assertedly discharged for failing to call
in to report absences caused by his medical condition and
explained by doctor’s notes that had been received before
the termination.
The judge also found that the reasons offered by the
Respondent for the discharge were pretexts. The Re-
spondent claimed that it discharged Pardue for incidents
on February 2 and 3, 2000, in which he failed to properly
clock in after lunch and for violating its no-call/no-show
rule by not notifying the Respondent within 2 hours of
the start of his shifts on the mornings of February 21 and
23, 2000, that he would not be at work. The judge spe-
cifically credited the testimony of Pardue and his wife
that they had called in to Plant Manager Chad Donley
from their home on those two mornings to report that

1 As discussed below, reinstatement is not in issue in this proceed-
ing.
2 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Pardue was sick and would not be reporting to work. The
judge also found that the warnings given to Pardue for
the alleged lunchtime violations were not validly issued
and should not have resulted in any discipline pursuant to
the Respondent’s attendance policy. In addition, the
judge found that the no-call/no-show rule had not been
enforced as strictly against other employees. The judge
recommended that Pardue be offered reinstatement with
backpay.
No exceptions were filed to the judge’s decision. Ac-
cordingly, in an unpublished Order dated October 26,
2001, the Board adopted the judge’s recommended Or-
der. Thereafter, the Respondent reinstated Pardue.
B. The Motion to Reopen
During the compliance investigation, Pardue provided
an affidavit dated October 25, 2001, stating that he was
unable to work anywhere, due to the mental and physical
incapacity allegedly caused by the Respondent’s dis-
crimination against him, from the date of his discharge
on February 23, 2000, until mid-September 2000. On
November 8, 2001, he submitted paystubs indicating that
he had worked for another employer during February
2000. The Regional Office then obtained timecards
showing that Pardue had clocked in at 7:32 and 7:36 a.m.
on February 21 and 23, 2000, respectively, at Zoom
Products, an employer located in the Cincinnati, Ohio
area.
In a March 6, 2002 deposition taken by the General
Counsel in connection with compliance proceedings,
Pardue estimated that his residence was “about 60 some
miles” from Zoom Products and that it took 45 minutes
to 1 hour to drive there. At the deposition, he initially
denied working for Zoom Products on February 21 and
23, 2000, stating that he could not be at two places at one
time. After being confronted with documents that
showed that he had worked for Zoom Products, he still
claimed that, to the best of his knowledge and belief, he
did not work on those 2 days and that he had called the
Respondent from his home on those two mornings. Ul-
timately, Pardue admitted that “I guess I couldn’t have
made the call.” However, he continued, “[I]n my mind, I
thought I did make the call, you know. I mean I–I feel
that I wasn’t even working that day.”
Faced with the timecards from Zoom Products and the
discrepancies in the deposition, the General Counsel filed
a motion with the Board on July 10, 2002, requesting that
the record be reopened and the case remanded to the
judge. The Board granted the motion and issued, by di-
rection, an unpublished Supplemental Order dated Sep-
tember 3, 2002, vacating its earlier Order, and remanding
the case to the judge to reopen the hearing and take addi-
341 NLRB No. 115
TOLL MFG. CO. 833
tional testimony concerning the call-ins on February 21
and 23, 2000.
C. The Judge’s Supplemental Decision
On April 23, 2003, the judge issued the attached sup-
plemental decision in this proceeding.3 He found that
Pardue and his wife lied at the original hearing about
calling in on February 21 and 23, 2000, that their testi-
mony at the supplemental hearing was an attempt to per-
petuate the falsehood, and that they did not offer any
creditable mitigating circumstances to excuse or justify
the false statements. Although the judge determined that
Pardue did not call in on those two mornings in February
2000, the judge nevertheless concluded that the Respon-
dent had unlawfully discharged Pardue. The judge found
that the Pardues’ false testimony did not affect, among
other things, the facts that the warnings Pardue received
for the alleged timeclock violations on February 2 and 3,
2000, were inconsistent with the Respondent’s progres-
sive discipline system and that the Respondent had
treated him disparately. Thus, the judge concluded that
the discrediting of the Pardues did not disturb his finding
in his initial decision that the reasons that the Respondent
offered for discharging Pardue were pretexts.
The judge again recommended awarding full backpay
to Pardue. Although he found that the Pardues’ false
testimony was a “flagrant affront” to the Board’s proc-
esses and should not be condoned or rewarded, he found
that it was not material to the outcome of the case and
probably did not fall within most statutory definitions of
perjury. The judge concluded that it would not effectuate
the purposes of the Act to require forfeiture of the tradi-
tional backpay remedy.
II. ANALYSIS
We have carefully considered the judge’s initial and
supplemental decisions and the record in light of the ex-
ceptions and briefs and have decided for the reasons
stated below to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified and set forth in full below.
A. The 8(a)(3) Violation
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) of the Act when it discharged
Pardue. The General Counsel satisfied his initial burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), of showing that Pardue’s union activity was a
motivating factor in the Respondent’s decision to dis-
charge him. As the judge pointed out in his initial deci-

3 The Respondent filed exceptions and a supporting brief, and the
Charging Party filed an answering brief.
sion, Pardue was the leading union activist among the
Respondent’s employees, the Respondent was opposed
to the Union and knew of Pardue’s leadership role, and
the discharge came precipitously and without prior warn-
ing on the heels of the union campaign that had been
instigated by Pardue. “The abruptness of the discharge[]
and [its] timing are ‘persuasive evidence’ that the com-
pany had moved swiftly to eradicate the . . . prime
mover[] of the union drive.” Abbey’s Transportation
Services v. NLRB, 837 F.2d 575, 580 (2d Cir. 1988)
(quoting NLRB v. Montgomery Ward & Co., 242 F.2d
497, 502 (2d Cir. 1957), cert. denied 355 U.S. 829
(1957).4
The dissent posits that the judge “assum[ed]” in his
supplemental decision that the General Counsel satisfied
his Wright Line burden simply because the Board ini-
tially adopted the judge’s original decision. The dissent
is incorrect. In the third paragraph of his supplemental
decision, the judge correctly noted that the Board vacated
its October 26, 2001 Order adopting the judge’s original
decision. What the judge did in his supplemental deci-
sion was to reaffirm his initial decision, thereby incorpo-
rating his analysis of the evidence of unlawful motivation
that we have summarized above. In addition, as dis-
cussed infra, the judge correctly relied on the Respon-
dent’s failure to follow its own progressive discipline
system and the Respondent’s failure to notify Pardue of
the timeclock warnings as further evidence of unlawful
motivation. Under these circumstances, the dissent ele-
vates form over substance in arguing that the judge was
“obligated to begin his Wright Line analysis anew.”
In addition, Pardue was treated disparately from other
employees who were similarly situated. As discussed
more fully below, Pardue was assertedly discharged for
failing to call in on 2 days. However, another employee
(Jet Reese) engaged in similar conduct and was given
only a warning. Similarly, the Respondent’s written
warnings and suspension of Pardue, assertedly for not
4 In finding that the General Counsel met his burden of showing
unlawful animus, Chairman Battista does not rely on the judge’s find-
ing that the Respondent’s holding of a pizza lunch to celebrate the
withdrawal of the union petition, and its teasing of Pardue for wearing a
union message on his hat, support an inference of union animus. With
respect to the pizza lunch, a party is permitted to sponsor, during an
organizational campaign, inexpensive meals. A fortiori, it can do so
after the campaign is over. As to the other matter, even if the “teasing”
were a means of expressing disapproval of the Union, such an expres-
sion is protected by Sec. 8(c).
Member Walsh adheres to the Board’s long-held position that con-
duct not rising to the level of an unfair labor practice may still be used
to show antiunion animus. See Ross Stores, 329 NLRB 573, 576
(1999), enfd. in pertinent part 235 F.3d 669 (D.C. Cir. 2001); Affiliated
Foods, 328 NLRB 1107 (1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
timely clocking in, were inconsistent with the Respon-
dent’s own procedures.
With respect to the disparate treatment, we note that
employee Reese had two no-call/no-shows in August
2000. The writeup of these violations states: “Further
absenteeism will result in suspension or termination.”
Thus, Reese received only a warning for his second no-
call/no-show. At the hearing, Donley confirmed that
Reese had not been discharged for these violations, but
Donley did not credibly offer any circumstances to ex-
plain the disparity in applying the Respondent’s no-
call/no-show rule.
The record also establishes that the only other applica-
tions of the no-call/no-show policy were in situations
when employees simply did not show up for work and
were not heard from again.5 By contrast, Pardue main-
tained communication with the Respondent. On the af-
ternoon of his second no-call/no-show, the Respondent
received a fax with a notification from Pardue’s doctor
stating that Pardue was not yet ready to return to work.
Further, the other employees were not terminated imme-
diately after the no-call/no-show violations, as was Par-
due, and these employees were not terminated while un-
der a doctor’s care, as was Pardue.
Our dissenting colleague says that “Pardue was absent
from work repeatedly.” However, the Respondent as-
sertedly discharged Pardue for violating its “no-call/no-
show” policy. That policy provides for termination if
there are two violations within a 12-month period. As
shown, that policy was disparately enforced.
With respect to the alleged failure to timely clock in
after lunch, the Respondent failed to follow its own pro-
gressive disciplinary procedures. To begin with, the re-
cord fails to establish that employees were required to
punch in and out for their lunchbreaks. Further, even
assuming that Pardue was required to punch back in
when returning from lunch, the written warnings and
suspension that he received were inconsistent with the
Respondent’s attendance rules. Under those rules, Pardue
should not have been assessed written warnings and a
suspension for a first and second attendance occurrence.
The rules provided for a written warning after the fourth
occurrence and a suspension after the eighth occurrence.
In addition, the Respondent did not impose the written
warnings and suspension until the date of discharge, Feb-
ruary 23. The failure to clock in occurred on February 2
and 3. Donley’s explanation for this discrepancy was
specifically discredited by the judge.

5 The record indicates that the policy was applied in this manner to
the following employees: Erick White, Chris Nesby, Patricia Mollet,
Chris Bowman, Sonya Nelloms, Ankido Twitty, Charles Lindamood,
David Melendez, and Lonnie Miracle.
The dissent argues that the judge’s credibility determi-
nations concerning Donley’s testimony must be reevalu-
ated. We disagree. Under any version of the facts, there
is no question that Donley did not impose the warnings
and suspension until they were used to support Pardue’s
discharge. The termination letter Donley sent to Pardue
stated: “Since Mr. Pardue had not returned to work since
that time, his warnings were never passed on to him.”
However, under any version of the facts, Pardue was at
the Respondent’s facility on February 11 to pick up a
check and could have been provided with the warnings
then if the Respondent were truly interested in determin-
ing whether misconduct had actually occurred.
Our colleague asserts that the warnings are not at issue
because they were not alleged to be independent viola-
tions of the Act. We disagree. The fact that the warnings
were not independently alleged to have violated the Act
does not preclude the conclusion that the trumped-up
nature of the warnings supports the judge’s finding that
the reasons the Respondent gave for discharging Pardue
were not in fact relied on, but were pretexts for taking
action against a leading union adherent. “There is clearly
no obligation on the Board to accept at face value the
reason advanced by the employer.” NLRB v. Buitoni
Foods Corp., 298 F.2d 169, 174 (3d Cir. 1962).
Based on the General Counsel’s initial showing of dis-
crimination and on the pretextual nature of the Respon-
dent’s defenses, we conclude that the Respondent dis-
charged Pardue for his union activities.
B. Tolling of Backpay
The judge’s recommended Order provides for full
backpay for Pardue. As we have indicated, we disagree
with this recommendation and find instead that Pardue’s
entitlement to backpay should terminate as of December
12, 2000, the first day of the unfair labor practice hearing
and the date that he first lied under oath. As we explain
below, this remedy is within our authority, is consistent
with Board precedent, and best effectuates the policies of
the Act.
The Board is authorized under Section 10(c) of the Act
to remedy unfair labor practices with “such affirmative
action including reinstatement of employees with or
without backpay, as will effectuate the policies” of the
Act. A court may set aside the Board’s remedial order
only when “it can be shown that the order is a patent at-
tempt to achieve ends other than those which can fairly
be said to effectuate the policies of the Act.” Virginia
Electric & Power Co. v. NLRB, 319 U.S. 533, 540
(1943).
The Supreme Court reaffirmed this principle in ABF
Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994).
In that case, the Court upheld the Board’s discretion to
TOLL MFG. CO. 835
decline to adopt a rigid rule precluding reinstatement of
and backpay for a discriminatee who committed perjury
while testifying before an administrative law judge. Al-
though the Court stated that false testimony in a formal
proceeding is intolerable, it found that there were coun-
tervailing considerations. The Court stated: “Most im-
portant is Congress’ decision to delegate to the Board the
primary responsibility for making remedial decisions that
best effectuate the policies of the Act when it has sub-
stantiated an unfair labor practice.” Id. at 323–324. The
Court concluded:

Notwithstanding our concern about the seriousness of
[the discriminatee’s] ill-advised decision to repeat un-
der oath his false excuse for tardiness, we cannot say
that the Board’s remedial order in this case was an
abuse of its broad discretion or that it was obligated to
adopt a rigid rule that would foreclose relief in all com-
parable cases. Id. at 325.

In exercising its broad remedial discretion in cases
where a discriminatee has made false statements or has
otherwise engaged in misconduct during Board proceed-
ings, the Board conducts a “balancing” analysis and as-
sesses the impact of the discriminatee’s transgression on
the integrity of the Board’s processes. Thus, the Board
has found that a discriminatee’s lie about an issue pe-
ripheral to the hearing (i.e., his age), although deliberate
and willful, was not “a malicious abuse of the Board’s
processes under circumstances which require forfeiture
of remedy to effectuate the purposes of the Act.” Service
Garage, Inc., 256 NLRB 931 (1981), enf. denied on
other grounds 668 F.2d 247 (6th Cir. 1982) (lie did not
go to the heart or even to the periphery of the Board’s
processes).
The Board also looks to the overall veracity of the dis-
criminatee as well as the scope of the false testimony.
Thus, where the major portion of a discriminatee’s testi-
mony at an unfair labor practice hearing was credited and
relied upon, the discriminatee was given a full remedy
even though she gave some false testimony at the hear-
ing. Owens Illinois, Inc., 290 NLRB 1193 (1988), enfd.
mem. 872 F.2d 413 (3d Cir. 1989). Similarly, the Board
found that the public interest in vindicating the Act out-
weighed the evil to be contemplated from a discrimina-
tee’s “insignificant trespass on the truth” in a case in
which an administrative law judge found that a discrimi-
natee’s false testimony constituted a very small part of
his otherwise credible testimony and played no part in
the outcome of the case. Lincoln Hills Nursing Home,
Inc., 288 NLRB 510, 512 (1988).
On the other hand, when a discriminatee’s conduct is
more serious and has a greater impact on the Board’s
processes, the Board crafts a remedy that accords with
the magnitude of the transgression. Thus, a discriminatee
who interfered with the Board’s processes by attempting
to influence and manipulate a witness forfeited the right
to backpay beyond the date of the impermissible interfer-
ence. The Board stated:

[T]his remedy strikes a balance between the competing
and equally important interests of protecting the
Board’s judicial processes and remedying unfair labor
practices. Denying backpay after the date of the threat
protects the integrity of the Board’s processes by pro-
viding that those who abuse the process cannot turn
around and use the process to reap a full remedy.
Granting backpay until that date also ensures that a re-
spondent’s unlawful discrimination does not go unre-
medied.

Lear-Siegler Management Service Corp., 306 NLRB 393,
394 (1992) (footnote omitted).6
The Board has also applied these balancing principles
in the context of discriminatees who conceal earnings
during backpay proceedings. Thus, “[d]iscriminatees
found to have willfully concealed from the Board their
interim employment will be denied backpay for all quar-
ters in which they engaged in the employment so con-
cealed.” American Navigation Co., 268 NLRB 426, 427
(1983). The Board stated:

We find that a remedy which denies backpay for the
quarters in which concealed employment occurred will
discourage claimants from abusing the Board’s proc-
esses for their personal gain and will also deter respon-
dents from committing future unfair labor practices. Id.
at 428.
More recently, the Board applied Lear-Siegler and
American Navigation in a compliance case to deny back-
pay at a higher busboy rate to a discriminatee (Baute)
who had offered a reward to coworkers for testimony
that Baute had worked as a busboy. Victor’s Cafe 52,
Inc., 338 NLRB 753 (2002). The Board found that
Baute’s conduct effectively made it “impossible to con-
sider the question of Baute’s employment as a busboy
separately from his offer of payment for testimony to that
effect.” 338 NLB at 756 fn. 9. In denying Baute backpay
at the busboy rate, the Board concluded:

We find that our remedy here is consistent with the bal-
ance struck by the Board in Lear-Siegler and American
Navigation between the equally important policies of
discouraging unfair labor practices by remedying them

6 See also O’Donnell’s Sea Grill, 55 NLRB 828 (1944).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
and protecting Board processes from manipulation by
denying Baute any benefit that might have flowed from
his interference with Board processes. [Id. at 756.]

Applying these principles to the facts of this case, we
find that Pardue’s conduct—i.e., abusing the Board’s
processes by repeatedly lying under oath as to a central
issue in the hearing—falls within the rationale of the
Lear-Siegler and American Navigation line of cases. Ac-
cordingly, we conclude that Pardue’s egregious conduct
requires tolling of his entitlement to backpay as of the
date of his first lie under oath.
Pardue lied under oath on no less than four occasions.
First, at the initial unfair labor practice hearing, he falsely
testified that he had his wife call the Respondent from
their home on both mornings in question, and that she
and he both told the Respondent’s plant manager that he
was sick and would not be in. Second, in his October 25,
2001 affidavit, he stated that he was not able to work
anywhere from the date of his discharge until the middle
of September 2000, yet the record establishes that he
worked for several employers during this period. Third,
at the March 2002 deposition, he untruthfully said that he
did not work for the Cincinnati employer in February
2000. Finally, at the second unfair labor practice hearing,
he attempted to perpetuate the falsehoods, altered his
story, and said that he spoke with the Respondent’s plant
manager for a minute or two before leaving to go to the
Cincinnati job.
It is clear that Pardue abused the Board’s processes for
his own benefit, that his transgressions were repeated,
and that his testimony was generally untrustworthy. Al-
though we ultimately have determined that Pardue’s lies
were not dispositive as to the lawfulness of his discharge,
they went to a central issue in the case (including rem-
edy) and unnecessarily prolonged the litigation. Indeed,
Pardue’s false testimony resulted in the necessity to re-
open the record and to hold the second unfair labor prac-
tice hearing.
Under these circumstances, we conclude that tolling
backpay as of the date of Pardue’s first lie under oath
strikes an appropriate balance between the two equally
important interests of protecting the Board’s adjudication
processes and remedying unfair labor practices. Under
this balance, Pardue will not be able to abuse Board
processes to obtain a full remedy, and the Respondent’s
unlawful discrimination will not go unremedied.
Accordingly, we find that Pardue is entitled to backpay
only from the date of his unlawful discharge on February
23, 2000, until the date of the initial unfair labor practice
hearing on December 12, 2000.7
AMENDED REMEDY
We will order the Respondent to make whole Leslie R.
Pardue for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him, from
the date of his discharge until December 12, 2000, the
date of his first lie under oath, such amounts to be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Toll Manufacturing Company, Dayton,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees
because of their support for Teamsters Local Union No.
957, affiliated with the International Brotherhood of
Teamsters, or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Leslie R. Pardue whole for any loss of earn-
ings and other benefits he may have suffered as a result
of the discrimination against him, from the date of his
discharge until December 12, 2000, such amounts to be
computed in accordance with the amended remedy sec-
tion of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Leslie R. Pardue, including the warnings served on him
at the time of his discharge, and within 3 days thereafter
notify him in writing that this has been done and that the

7 As stated above, after the issuance of the Board’s October 26, 2001
Order, the Respondent reinstated Pardue. In addition, the record indi-
cates that the Respondent took other affirmative actions to remedy the
unfair labor practice it committed.
Inasmuch as reinstatement is no longer in issue, we shall delete the
reinstatement provision from the judge’s recommended Order. We shall
otherwise provide the Board’s standard remedies. Any issue regarding
the Respondent’s remedial obligations under our Order may appropri-
ately be addressed in compliance.
We shall also modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001). We
shall substitute a new notice in accordance with our decision in Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534
(6th Cir. 2004).
TOLL MFG. CO. 837
discharge and warnings will not be used against him in
any way.
(c) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Dayton, Ohio, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 23, 2000.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER SCHAUMBER, dissenting.
1. Introduction
The issue in this case is whether Respondent violated
Section 8(a)(3) and (1) of the Act by discharging em-
ployee Leslie Pardue because of his union activities. In
his original decision, the judge found the violation pri-
marily on the ground that Respondent’s asserted reason
for discharging Pardue, his failure to call in or report to
work on 2 days within a 12-month period, was false and
therefore pretextual. In reaching this conclusion, the
judge credited Pardue’s testimony that he had called in
on the days in question and he discredited the testimony
of Chad Donley, Respondent’s plant manager, that Par-
due had not called in.

8 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.”
In his supplemental decision, however, the judge found
that Pardue had lied and that Donley had told the truth
when he testified that Pardue had not called in on the
days in question. But instead of finding that Respon-
dent’s reason for discharging Pardue was true and there-
fore not pretextual, the judge simply reaffirmed his find-
ing in his original decision that General Counsel had met
his burden of persuasion and then found other reasons to
reaffirm his finding of the violation, i.e., that Respondent
applied its no-call/no-show policy in a disparate manner
and that two warnings which Respondent had issued Par-
due prior to his discharge, which were neither alleged nor
found to be unlawful, evidenced that Respondent’s rea-
sons for discharging Pardue were pretextual. My col-
leagues adopt the judge’s finding of the violation.
In my view, after having found that Pardue did not call
in, as he had testified that he did, and that Donley, whose
testimony the judge had thoroughly discredited, had in-
deed told the truth when he testified that Pardue had not
called in, the judge should have reevaluated his credibil-
ity resolutions and only then undertaken an analysis of
whether General Counsel and Respondent met their re-
spective Wright Line burdens.1 The judge failed to do
this. He then failed to engage in a proper Wright Line
analysis of the issue presented and therefore reached the
wrong result. My colleagues only compound the judge’s
error by adopting his decision.
For the reasons set out below, I find, first, that Re-
spondent’s reasons for discharging Pardue were not pre-
textual and that therefore Pardue’s discharge was not
unlawful. Second, I further find that even assuming ar-
guendo that Respondent’s reasons for discharging Pardue
were pretextual, his discharge was not unlawful because
the evidence does not support a finding that Respondent
was motivated by antiunion animus. Accordingly, I
would reverse the judge’s finding of the violation and
dismiss the complaint.
2. Facts
The facts are fully set out in the judge’s original deci-
sion. In brief, Pardue began working for Respondent as a
machine operator in training on October 19, 1999. On
December 20, 1999, Pardue was promoted to regular
machine operator with a 50-cent-an-hour raise. From
late December through early January 2000,2 Pardue had
a dispute with Plant Manager Chad Donley (Donley)
over the amount of his raise and his failure to obtain a
bonus based on attendance incentives. To determine
1 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). For the General Counsel’s and Respon-
dent’s respective burdens under Wright Line, see fn. 6 below.
2 All dates are in 2000 unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
whether he was entitled to a bonus, Pardue requested and
received from Donley certain time records. Not satisfied,
Pardue filed a charge with the Board on January 25 alleg-
ing that Respondent’s denial of a bonus was unlawful.
The charge was subsequently dismissed and Pardue’s
appeal of the dismissal denied.
Also in January, Pardue contacted a representative of
the Union. Pardue signed an authorization card on Janu-
ary 10 and sought to organize his fellow employees.
Supervisor Scott Butera observed Pardue passing out
authorization cards in Respondent’s parking lot. On
January 19, the Union filed an election petition with the
Board and the petition was served on Respondent.3 On
about January 20 or 21, Butera and Donley noticed Par-
due wearing a Tommy Hilfiger hat at work on which he
had written “union, vote yes” with a check mark. Donley
commented “Look at Lester, he has got him a new
Tommy Hilfiger hat.”
During the same time period, Respondent posted in the
plant a document signed by Gerry Donley (Chad Don-
ley’s father and Respondent’s president) that notified
employees of the Union’s election petition. Gerry Don-
ley stated in the document that he was “surprised and
deeply disappointed that some employees are seeking
union representation.” The document set out Respon-
dent’s opposition to unionization, emphasized the bene-
fits that had been secured without a union, and reminded
employees that it needed to “remain a viable business in
a competitive marketplace.” There was no allegation that
the document contained statements unlawful under the
Act.
On the morning of January 26, Pardue asked for a
meeting with Chad Donley and Butera concerning what
Pardue claimed was a threat against him by another em-
ployee. Pardue told Donley and Butera that he was being
threatened because of his union activities. Pardue was
not mollified when Donley told him that both employees
had the right to express their views about unionization.
Although the judge did not make specific findings re-
garding the nature of the threat or the details of the meet-
ing, he did find that “it [was] quite clear . . . that, after
the threat and the meeting, Pardue was shaken and be-
came incapacitated by stress and anxiety, for which he
required medical attention.”4
After the meeting, Pardue called his longtime compan-
ion, Dianne Langford. She picked him up at work and
took him to a hospital emergency room, where he re-
ceived treatment. Langford called Donley later that day

3 The Union withdrew its election petition on February 1.
4 As explained below in the “Analysis” section, another employee
had threatened to file a lawsuit against Pardue if Pardue’s actions
harmed the employee’s family.
and informed him of Pardue’s medical condition. Pardue
delivered a doctor’s note to Donley at the plant on Fri-
day, January 28. The note indicated that Pardue should
be off work for 3 days. At Pardue’s request, Donley
signed the note and gave Pardue a copy. Donley also
gave Pardue a blank copy of a medical leave form and
told Pardue that if his condition were serious, he might
“need more time.” Also on January 28, Donley sent a
letter to Pardue. The letter referred, inter alia, to Par-
due’s request for time card reports concerning his pend-
ing bonus claim and to their earlier meeting that day.
Donley enclosed with the letter a copy of Respondent’s
attendance policy. Pardue did not report to work on ei-
ther Monday, January 31, or Tuesday, February first.
On February 1, Donley sent Pardue another letter that
included requested time card information. Donley re-
minded Pardue in the letter that Donley needed to hear
from Pardue regarding whether Pardue wanted to take
extended medical leave. Donley closed the letter by
telling Pardue that if he did not hear from Pardue “this
week,” he would have to conclude that Pardue “voluntar-
ily resigned” from Respondent.
Pardue returned to work on Wednesday, February 2.
At that time, he submitted a February 1 doctor’s note that
cleared him to return to work. The note also stated that
Pardue “may need occasional brief breaks to relieve
anxiety.” Pardue worked February 2 and 3. On February
2, Respondent provided pizza to the employees and ex-
tended the lunch period by having the employees attend,
on company time, a 15-minute speech by Donley an-
nouncing the Union’s withdrawal of its election petition.
On February 3, Pardue again complained to Donley
about being mistreated by other employees for his union
views.
On Friday, February 4, Pardue, or someone acting on
his behalf, called Respondent to report that he would be
absent that day. On Monday, February 7, Pardue came
to the plant and delivered the completed medical leave
form to Donley. On that form (GC Exh. 8), Pardue’s
doctor requested leave for Pardue through February 20
for “acute anxiety.” Donley accepted the document and
granted the request. Pardue never returned to work.
Although there was a dispute over whether Pardue no-
tified the Respondent on the mornings of Monday, Feb-
ruary 21, and Wednesday, February 23, that he would be
absent on those days, on the afternoon of February 21,
the Respondent did receive a faxed doctor’s note that
Pardue would be off work until February 23 (GC Exh. 9).
Donley apparently relied on this note to excuse Pardue’s
February 22 absence. The Respondent received another
note from Pardue’s doctor on the afternoon of February
TOLL MFG. CO. 839
23 explaining that Pardue would not be able to return to
work for an “undetermined” time (GC Exh. 10).
On the afternoon of February 23, and after he had re-
ceived the February 23 doctor’s note, Donley sent a letter
to Pardue terminating his employment (GC Exh. 11).
The letter stated that Pardue had violated Respondent’s
no-call/no-show policy by failing either to call in within
2 hours of his starting time or report to work on February
21 and 23. The letter also gave as reasons for termina-
tion Pardue’s clocking in 19 minutes late after lunch on
February 2 and his failure to clock in after lunch on Feb-
ruary 3. Warnings for those incidents were enclosed in
the letter. The warnings were described as first and sec-
ond warnings for “attendance occurrences.” The first
said that Pardue must return to work within the break
period or he would be subjected to suspension “and up to
termination.” The second noted Pardue’s failure to clock
in after lunch and set out a suspension for the failure.
3. The Judge’s decisions and Board proceedings
a. The original decision
In his original decision, the judge found that Respon-
dent violated Section 8(a)(3) and (1) by discharging Par-
due because of his union activities. In finding the viola-
tion, the judge first relied on his finding that Respon-
dent’s asserted primary reason for its discharge of Par-
due, i.e., that he twice violated its no-call/no-show pol-
icy, was not the real reason for his discharge. Crediting
the testimony of Pardue and Langford over that of Don-
ley, the judge found that they had called the Respondent
before 8 a.m. on the mornings of February 21 and 23 and
notified Respondent that Pardue would not be at work on
those days. On this basis, the judge found that Respon-
dent’s primary reason for discharging Pardue was false.
Quoting Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966) (emphasis added), the
judge explained that “it has long been recognized that
where an employer’s stated reasons are false, it can be
inferred ‘that the [real] motive is one that the employer
desires to conceal—an unlawful motive—at least where
. . . the surrounding facts tend to reinforce that infer-
ence.’” Relying on the following factors, the judge
found that the record “fairly support[ed]” the inference
that Pardue’s discharge was for his union activities: (1)
Pardue was the leading union activist and Respondent
knew of his role; (2) Respondent was opposed to the Un-
ion; (3) Donley teased Pardue for wearing a union mes-
sage on his hat; (4) according to Pardue, Donley failed to
assuage Pardue’s concerns over a fellow employee’s
threat concerning his union activities, and this led to Par-
due’s extended medical leave; (5) on one of the only 2
days that he worked thereafter, Respondent held a pizza
party to celebrate the Union’s withdrawal of its election
petition, and on the other Pardue reported further har-
assment by fellow employees to Donley; (6) the dis-
charge was precipitous and without prior warning, and
“on the heels of the union campaign instigated by Par-
due;” and (7) Respondent discharged Pardue despite be-
ing aware of his medical condition and after receiving the
February 21 and 23 doctor’s notes.
The judge further found that the inference of discrimi-
nation was strengthened by his finding that Respondent’s
proffered reasons for discharging Pardue were pretextual.
The judge discredited Donley’s testimony that Pardue
had not called in on the mornings of February 21 and 23
and, therefore, found that Respondent’s primary reason
for discharging Pardue was false, a pretext to hide the
real reason for the discharge, his union activity. The
judge supported this finding by further finding that Re-
spondent had treated Pardue more severely than other
employees who had violated its no-call/no-show policy.
The judge also found pretextual Respondent’s other
reason for discharging Pardue as set out in its February
23 termination letter, his violation of its attendance pol-
icy on February 2 and 3. In reaching this conclusion, the
judge again discredited Donley’s testimony concerning
his preparation of these warnings, found that the “surrep-
titious way” Donley prepared the warnings indicated that
he was looking for a way to be rid of the leading union
adherent, and that Pardue’s “only ‘mistake’ on these oc-
casions was to punch out for lunch when he was not re-
quired to do so.”
b. The Board’s supplemental order
The Respondent filed no exceptions to the judge’s de-
cision, which essentially turned on credibility. On Octo-
ber 26, 2001, the Board adopted the judge’s recom-
mended Decision and Order. Thereafter, Respondent
immediately reinstated Pardue. The amount of backpay
owing was set for a compliance hearing. During the
compliance proceeding, a question arose as to whether
Pardue had, in fact, called the Respondent on the morn-
ings of February 21 and 23, as he had testified he had
done during the original hearing.
On September 3, 2002, the Board, by direction, issued
a supplemental order vacating the judge’s decision and
remanding the case to the judge to reopen the hearing
and take additional testimony concerning the February
21 and 23 call-ins. The Board further directed the judge
to issue a decision with findings, conclusions, and rec-
ommendations.
c. The supplemental decision
On April 23, 2003, the judge issued his supplemental
decision in this case. In that decision, the judge discred-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
ited the testimony of Pardue and Langford that they had
called Respondent on the mornings of February 21 and
23, found that their testimony at the original hearing con-
cerning the telephone calls was false, and that their tes-
timony at the supplemental hearing was “an attempt to
perpetuate the falsehood.” The judge further found that
there were no “mitigating circumstances which would
tend to excuse or justify the false statements, given under
oath, at both hearings.”5 Nevertheless, the judge still
found the violation.
Applying a Wright Line analysis,6 the judge found “the
fact that the General Counsel has met [his initial] burden
by a preponderance of the evidence was established in
the initial decision and adopted by the Board.” He then
went on to analyze whether the Respondent had rebutted
the General Counsel’s prima facie case. The judge found
that Respondent’s reliance on the February 2 and 3 at-
tendance warnings was a pretext to get rid of the leading
union adherent and that Respondent’s disparate enforce-
ment of its no-call/no-show policy against Pardue further
evidenced that its reasons for terminating Pardue were
pretextual. Quoting Key Food, 336 NLRB 111, 112
(2001), for the proposition that “[a]n employer cannot
simply present a legitimate reason for its actions but

5 Based on these findings by the judge, and assuming I were to find a
violation here, I would join my colleagues in finding that backpay
should be cut off on December 12, 2000, the date of Pardue’s first lie
under oath at the original hearing.
6 251 NLRB 1083. As the Board explained in Manno Electric, 321
NLRB 278, 280 fn. 12 (1996):
The Board has traditionally described the General Counsel’s burden of
demonstrating discriminatory motivation as one of establishing a
prima facie case. Wright Line, 251 NLRB 1083, 1089 (1980)[.] . . .
The D.C. Circuit has suggested that in light of Office of Workers’
Compensation Programs v. Greenwich Collieries, 114 S.Ct. 2551,
2557–2558 (1994) (the General Counsel’s burden of proof is a burden
of persuasion, not merely of production), “it will no longer be appro-
priate to term the General Counsel’s burden that of mounting a prima
facie case; his burden is to persuade the Board that the employer acted
out of antiunion animus.” Southwest Merchandising Corp. v. NLRB,
No. 93-1859, slip op. 9 fn. 9 (May 12, 1995). This change in phrase-
ology does not represent a substantive change in the Wright Line test.
Under that test, the Board has always first required the General Coun-
sel to persuade that antiunion sentiment was a substantial or motivat-
ing factor in the challenged employer decision. The burden then shifts
to the employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in pro-
tected activity.
As to the employer’s burden of persuasion, as explained in Saginaw
Control & Engineering, Inc., 339 NLRB 541, 567 (2003):
Once the General Counsel has made a prima facie case, the burden
shifts back to the employer. That burden requires a respondent “to es-
tablish its Wright Line defense only by a preponderance of the evi-
dence.” The respondent’s defense does not fail simply because not all
of the evidence supports it, or even because some evidence tends to
negate it. Merillat Industries, 307 NLRB 1301, 1303 (1992).
must persuade by a preponderance of the evidence that
the same action would have taken place even in the ab-
sence of the protected conduct,” the judge found that
Respondent had not met its burden of persuasion and, as
noted above, again found the violation.
d. The majority decision
My colleagues adopt the judge’s finding of the viola-
tion. In doing so, they rely on the judge’s findings in his
supplemental decision that the February 2 and 3 atten-
dance warnings were pretextual and that Respondent
enforced its no-call/no-show rule more strictly against
Pardue than it did against other employees. On these
bases, my colleagues conclude that the real reason for
Pardue’s discharge was his union activity, and that the
reasons proffered by Respondent were only pretextual. I
disagree.
4. Analysis
As an initial matter, I find that the judge erred by as-
suming in his supplemental decision that the General
Counsel satisfied his initial burden of persuasion under
Wright Line because “[t]he fact that the General Counsel
has met the burden by a preponderance of the evidence
was established in the initial decision and adopted by the
Board.” As explained above, by its supplemental order
of September 3, 2002, the Board vacated the judge’s
original decision in this case and directed that the judge
reopen the hearing to address the issue of the February
21 and 23 call-ins, and to issue a new decision with find-
ings, conclusions, and recommendations.
Since the judge found in his original decision that Par-
due had called in on February 21 and 23, and that there-
fore Respondent’s termination of Pardue for violating its
no-call/no-show policy was false and a pretext by which
to get rid of the leading union supporter, the judge was
obligated to begin his Wright Line analysis anew when
he found in his supplemental decision that Pardue had
not, in fact, called in on the days in question and that
therefore Respondent’s reasons for discharging Pardue
were not false. I will now undertake what the judge
failed to do.
In determining whether the General Counsel has satis-
fied his initial burden of persuasion, one must begin with
the fact that the judge erred in crediting Pardue’s and
Langford’s testimony regarding the February 21 and 23
call-ins and by discrediting Donley’s testimony regarding
same. This error has two effects. First, it removes the
primary reason the judge relied on to find Pardue’s dis-
charge was pretextual and therefore unlawful. Pardue
did not call in, after all, on February 21 and 23 and there-
fore, as the judge himself admits, the Respondent was
justified in discharging him under its attendance policy
TOLL MFG. CO. 841
for two violations of its no-call/no-show policy within a
12-month period.
The second effect of the judge’s erroneous credibility
finding as to Pardue and Donley is that it raises a ques-
tion as to whether the judge’s other credibility resolu-
tions regarding the testimony of these two witnesses are
correct. This is especially significant as to Donley. For,
as explained below, the judge bolstered his finding that
the February 2 and 3 warnings for clocking in late and
failing to clock in at all after lunch were pretextual by
discrediting Donley’s testimony regarding the events
surrounding their preparation. The judge then further
bolstered his finding that the February 2 and 3 warnings
were pretextual by attacking Donley’s credibility in gen-
eral as “suspect because of his demeanor. . . . a notice-
able defensiveness and lack of candor.” Yet, on the only
credibility issue so far resolved by fact, the February 21
and 23 call-ins, it was Donley who testified truthfully. In
these circumstances, I find that the judge’s general dis-
crediting of Donley’s testimony cannot stand, and that
the judge’s credibility findings as to Donley, especially
in footnote 6 of his original decision, are entitled to less
weight, if any at all, than they were prior to the determi-
nation that Donley testified truthfully. With these two
points in mind, I will now examine the judge’s—and my
colleagues’—remaining reasons for finding Pardue’s
discharge both pretextual and unlawful.
Although the judge and my colleagues must now find
that Respondent’s primary reason for discharging Par-
due, his violation of its no-call/no-show policy, was true,
they nevertheless still maintain that it was pretextual.
They find pretext by insisting that Respondent applied its
no-call/no-show policy more strictly to Pardue than it did
to other employees whom it discharged for violation of
this policy. However, as counsel for the General Coun-
sel pointed out in her postsupplemental-hearing brief to
the judge (GC Br.), given the finding that Pardue’s dis-
charge was for a valid reason, “the remaining supporting
factors fade in significance. Even the Employer’s
method for handling prior no-call/no-show violations
does not reveal such disparate treatment in the new con-
text of Pardue’s failure to call in. In that regard, Pardue
had been absent from work for about 20 days (including
his medical absence) before he submitted his last minute
(faxed) excuses.” (GC Br. at 11, fn. 8)
I agree with counsel for the General Counsel that Re-
spondent’s application of its no-call/no-show policy was
not so disparate as to warrant a finding that it was pretex-
tual where prior to Pardue’s discharge for violating its
no-call/no-show policy, Pardue was absent from work
repeatedly. Since it has not been shown that other em-
ployees whom Respondent discharged for violation of its
no-call/no-show policy had been absent to such an extent
prior to their discharges, it cannot be said that those em-
ployees were similarly situated to Pardue, and therefore
any finding of disparate treatment based on a comparison
of their cases with Pardue’s would be necessarily mis-
leading and erroneous. In sum, I find that it has not been
shown that Respondent treated Pardue disparately from
other employees when it discharged him for violating its
no-call/no-show policy. Accordingly, I find Respon-
dent’s discharge of Pardue for violating the policy to be
lawful. I would there dismiss the complaint on this basis.
In dismissing the complaint, I would not find it neces-
sary to consider whether Respondent’s February 2 and 3
warnings to Pardue were pretextual. This is so because,
as counsel for General Counsel noted in her brief to the
judge, it was not alleged that these two warnings were
independently violative of the Act, and therefore they are
not in issue here. Further, since, as shown above, Re-
spondent’s discharge of Pardue for violation of its no-
call/no-show policy was lawful, that finding cannot sub-
sequently be found erroneous on the basis of these two
warnings, which Respondent may have referred to in its
letter to Pardue informing him of his termination, but
upon which it did not rely in finding that discharge was
warranted. Respondent’s “Separation Notice” that sets
out the reason for the discharge states as the only reason
for termination Pardue’s failure to report or call within 2
hours of shift start on February 21 and 23 (GC Exh. 12).
In sum, after concluding that Respondent’s reason for
discharging Pardue, his violation of its no-call/no-show
policy, was lawful, any analysis of the warnings is mis-
placed because it cannot change the result. Respondent
lawfully relied on the no-call/no-show violations, not the
warnings, to terminate Pardue.
Having said this, I would only make two observations
regarding the judge’s and my colleagues’ reliance on the
warnings to help justify their finding that the reasons for
Pardue’s discharge were pretextual and therefore unlaw-
ful. First, for the reasons explained above regarding the
judge’s credibility findings, I would not discredit, with-
out more, Donley’s testimony regarding his preparation
of the February 2 and 3 warnings. Donley, after all,
proved to be a credible witness regarding the central is-
sue in the case and, given this, the judge should have
reconsidered in his supplemental decision his original
finding that Donley’s testimony was not to be credited.
Thus, it is difficult to accept without further explica-
tion—wholly lacking here—the judge’s original finding
that Donley’s testimony regarding his preparation of the
warnings, as set out at footnote 6 of the judge’s original
decision, is not credible and that “[t]he surreptitious way
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
Donley handled these warnings shows that he was look-
ing for a way to be rid of the leading union adherent.”
Second, the judge’s finding that Donley prepared the
warnings in a “surreptitious way” seems to derive from
the judge’s further findings that “employees were not
even expected to punch in and out for lunch” and that
“Pardue’s only ‘mistake’ on these occasions was to
punch out for lunch when he was not required to do so.”
By such statements, the judge seems to imply that Re-
spondent singled Pardue out to sign out and in for lunch
and thereby, in effect, set him up for violations of the
attendance policy and the February 2 and 3 warnings.
Pardue, however, testified without contradiction at the
original hearing in this case, in response to a question
from counsel for General Counsel as to why he clocked
out if he did not have to, that he clocked out “[d]ue to the
fact that my union rep had advised me to clock in and
out, for my union activities going on, in case something
happened, to protect my job.” (Tr. 64:21–23.) Given
that Pardue opted to clock out, Respondent can hardly be
said to have singled Pardue out for violation of its atten-
dance policy on February 2 and 3. Having clocked out,
Pardue was then further obligated to clock back in after
lunch so that Respondent could maintain a record of Par-
due’s hours and fairly determine his wages. In these
circumstances, if I were to consider the February 2 and 3
warnings relevant to the issue of whether Pardue’s dis-
charge were unlawful, I would find that the warnings
were justified. They support, rather than undermine,
Respondent’s reason for discharging Pardue.
For all these reasons, I find that Respondent’s reasons
for discharging Pardue were valid, and not pretextual,
and that therefore the judge’s finding of the 8(a)(3) viola-
tion should be reversed and the complaint dismissed.
Further, for the reasons explained below, I would find
that the complaint should be dismissed even if it were
shown that Respondent’s reasons for discharging Pardue
were, in fact, pretextual.
As explained above, in his original decision, the judge
relied on Shattuck Denn Corp. v. NLRB, 362 F.2d at 470,
for the proposition that “where an employer’s stated rea-
sons are false, it can be inferred ‘that the [real] motive is
one that the employer desires to conceal—an unlawful
motive—at least where . . . the surrounding facts tend to
reinforce that inference”’ (emphasis added). In finding
that the record in this case “fairly support[ed]” the infer-
ence that Pardue’s discharge was for his union activities,
the judge relied, in effect, on seven factors.7 For the

7 As set out above, these seven factors are: (1) Pardue was the lead-
ing union adherent and Respondent knew of his role; (2) Respondent
was opposed to the Union; (3) Donley teased Pardue for wearing a
union message on his hat; (4) according to Pardue, Donley failed to
reasons set out below, I find that these seven factors do
not support an inference that Respondent discharged
Pardue because of his union activity.
Initially, I agree with the judge that Pardue was the
leading union activist and that Respondent knew of his
role. And I agree with the judge that Respondent op-
posed the Union. Gerry Donley’s notice to employees of
the Union’s filing of an election petition evidences Re-
spondent’s opposition. However, as explained above, it
was not alleged that that document contained any state-
ments unlawful under the Act. Further, while Donley
“teased” Pardue about his hat, and Respondent celebrated
the Union’s withdrawal of its election petition with a
pizza party, I agree with Chairman Battista, for the rea-
sons set out at footnote 4 of the majority decision, that
such conduct does not evidence antiunion animus. Fur-
ther, while the judge seems to imply that Respondent
purposely held the pizza party on February 2 when Par-
due would be at work, the fact is that, as noted above, the
Union withdrew its petition on February first. In these
circumstances, Respondent’s holding of the pizza party
the next day cannot be used to suggest, as the judge ap-
pears to do, that Respondent purposely held the pizza
party on a day that Pardue would be working. For these
reasons, I find that this factor does not support an infer-
ence that Respondent discharged Pardue because of his
union activity.
The next factor fares no better. Here, “according to
Pardue,” Donley failed to assuage Pardue’s concerns
over a fellow employee’s threat arising from Pardue’s
union activities. Initially, since the judge appears to have
credited Pardue’s version of events by his use of the
phrase “according to Pardue,” I am wary of assigning
any weight to this factor for the reasons set out above
regarding the judge’s credibility resolutions. However,
an examination of the testimony shows no dispute as to
what happened on January 26, the date of Pardue’s first
meeting with Donley and Butera over alleged harassment
of him because of his union activity, or on February 3,
the date of the second meeting with Donley over such
alleged harassment.
The record shows that Pardue met with Donley, But-
era, and employee Alan Hulsey on the morning of Janu-

assuage Pardue’s concerns over a fellow employee’s threat concerning
his union activities, and this led to Pardue’s extended medical leave; (5)
on one of the only two days that Pardue worked thereafter, Respondent
held a pizza party to celebrate the Union’s withdrawal of its election
petition, and on the other Pardue reported further harassment by fellow
employees to Donley; (6) the discharge was precipitous and without
warning, and came “on the heels of the union campaign instigated by
Pardue”; and (7) Respondent discharged Pardue despite being aware of
his medical condition and after receiving the February 21 and 23 doc-
tor’s notes.
TOLL MFG. CO. 843
ary 26 after Pardue had complained to Donley about be-
ing threatened by Hulsey because of his union activities.
Pardue testified as follows about the meeting (Tr. 60:6–
11):

At that point in time in the meeting, I stated to
Mr. Donley and to Scott Butera that Alan Hulsey is
threatening me over my union activities.
At that point in time, Mr. Chad Donley stated
that Alan Hulsey has a right to express his feelings,
that it is called freedom of speech.

Pardue went on to testify that it was shortly after this
meeting that he called Langford and that she came to the
plant to pick him up and take him to the hospital.
Donley’s testimony about this meeting does not con-
tradict Pardue’s, but it does provide more information
about what happened at the meeting. Donley’s testimony
stands uncontradicted. In response to a question about
what Donley and Pardue said at the meeting, Donley
testified as follows (Tr. 247:21–249:6):

I basically said, “Okay, Les, what is the problem”, and
I gave him a chance to share, and Les was very
charged, saying, “This employee, he threatened me on
the floor, and I’m not going to take it. It’s just because
of my Union affiliation that I’m being harassed”. And
I talked to him right there and I said, “I don’t know
what you’re talking about. I don’t want harassment,
but until this point I’ve never heard anything to the ef-
fect of Union affiliation, but what did he say”, and he
basically said, “He threatened me, he threatened me”.
And I said, “is that it?”, and he sort of accepted that
yes, and I said, “Okay, Allen [Hulsey], what is your
version of what happened. You tell me what hap-
pened.”
. . . .
[Hulsey] said, “I didn’t threaten you. What I said was
that if you caused harm to my family because of what
you’re doing, I’m going to sue you”. And I said,
“Well, I don’t see that as threatening in a sense. You
guys are obviously entitled to your opinion, but I don’t
want it to be personal. If it gets personal, then it be-
comes a matter for me or the supervisor, but if it’s just
opinion, you’re entitled to that, but when it gets per-
sonal, then I become involved or we become involved.”
And I basically closed the conversation—or the meet-
ing with ‘you both don’t have to like each other, but
you do have to work together. If this continues or there
is a problem beyond this, then we’ll deal with it at that
time, but right now you guys need to learn—need to
understand that you need to work together’.

Donley went on to testify that Pardue left the plant
about an hour after the meeting ended, and after inform-
ing Donley that “he didn’t feel well.” (Tr. 249:15–16.)
I have set out Pardue’s and Donley’s testimony con-
cerning the January 26 meeting at some length because I
believe that this testimony itself contradicts the judge’s
statement that “[o]n the present record, I am unable to
make specific findings as to the nature of the threat or the
details of the meeting” (Decision at II.A. 2, last para-
graph). The judge made this finding after earlier stating
that Pardue’s and Donley’s versions of the events “are
generally compatible . . . but their versions differ some-
what on the details” (Id). In fact, Pardue’s and Donley’s
versions of the events are indeed compatible. Further, to
the extent that they differ as to details, that difference
does not arise from testimony that is contradictory, but
only from Donley’s fuller account of what happened at
the meeting, an account that has not been contradicted.
In declining to rely on Donley’s testimony to further
explain what happened at the January 26 meeting, the
judge apparently discredited Donley’s testimony sub
silentio. In my view, the judge erred by discrediting this
testimony, and only compounded that error in his sup-
plemental decision by failing to revisit the issue when, as
explained above, it was proven that Donley’s testimony
at the original hearing, explicitly discredited by the
judge, was, in fact, truthful.
Relying on both Pardue’s and Donley’s testimony, I
find that the “threat” at issue in the January 26 meeting
concerned Hulsey’s statement to Pardue that he would
file suit against Pardue if what he was doing caused harm
to Hulsey’s family. Even assuming that Hulsey was re-
ferring to Pardue’s union activities when he spoke of
“what [Pardue was] doing,” I find that Respondent acted
lawfully. Granted that Pardue might, indeed did, find
Hulsey’s statement harassing, such harassment, consist-
ing of a promise to file suit rather than threat of bodily
harm or intimidation, is not the type of harassment that
the Board finds unlawful. Rather, in the analogous con-
text of employee complaints regarding harassment by
union supporters, the Board routinely finds attempts by
employers to enjoin such harassment unlawful. See, e.g.,
Niblock Excavating, Inc., 337 NLRB 53, 61 (2001), enfd.
59 Fed.Appx. 882 (7th Cir. 2003) (Board found unlawful
an employer letter that stated, inter alia, “If you feel
threatened or harassed during your working hours we
urge you to report this to your foreman, and the problem
will be immediately addressed”). Finally, as to the al-
leged “harassment” of February 3, Pardue testified that
he wanted a meeting with Donley and Butera because
another employee had called him “names.” (Tr. 71:18–
23.) Enough said. In these circumstances, Respondent’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
failure to “assuage” Pardue does not support an inference
that Pardue was discharged because of his union activity.
I agree with the judge that Pardue’s discharge was
“precipitous and without prior warning,” but I do not
agree that it came “on the heels of the union campaign”
to the extent that the phrase suggests that one event
caused the other. Just because Pardue’s union activities
and the union campaign preceded the discharge, it does
not necessarily follow that Pardue’s union activities were
the reason for his discharge. That is especially true here
where the union campaign ended with the Union’s with-
drawal of its election petition on February 1, several
weeks before the discharge and where, as explained
above, there is no evidence of hostility on the Respon-
dent’s part toward Pardue for his role in the union cam-
paign, nor evidence of antiunion animus generally. This
factor, therefore, does not support an inference that Par-
due was discharged because of his union activity.
Finally, as to the judge’s statement that Pardue was
discharged “despite” Respondent’s knowledge of Par-
due’s medical condition, and after receiving the February
21 and 23 doctor’s notes, I can only observe here that
Pardue’s discharge followed hard upon Respondent’s
receipt of the February 23 doctor’s note which stated,
inter alia, that Pardue was unable to return to work on
that date, that Pardue would see the doctor again on
“2/28/00,” and that it would then be determined when
Pardue could return to work (GC Exh. 10).
In sum, all these factors, aside from Pardue’s role as
the leading union adherent and Respondent’s knowledge
of that role, are either neutral or support an inference that
Respondent discharged Pardue not because of his union
activity in January, but because of his frequent absences
in February, absences which the doctor’s February 23
note showed would only continue into the future. If any-
thing, I believe that these factors support an inference
that it was this note, and not union activity, that caused
Respondent to discharge Pardue for an infraction of its
no-call/no-show policy that occurred on the same day
that it received the note.
As the Board explained in Precision Industries, 320
NLRB 661, 661 (1996), enfd. sub nom. Pace Industries
v. NLRB, 118 F.3d 585 (8th Cir. 1997), cert. denied 523
U.S. 1020 (1998) (footnote omitted):

Having discredited the Respondent’s explanations for
its actions, the judge was entitled to infer that there was
another reason, but it does not necessarily follow that
the real reason was grounded in antiunion animus.
Those explanations might have been offered in an at-
tempt to conceal a violation of some other statute in-
stead of the Act, or a motive that may have been base
but not unlawful at all.

Assuming, arguendo, that Respondent’s reasons for
discharging Pardue are pretextual, it does not necessarily
follow “that the real reason was grounded in antiunion
animus.” The judge, and my colleagues, rely on certain
inferences to argue that Pardue’s discharge was caused
by his union activity and was therefore unlawful. But, as
shown above, the inferences suggested by the judge ac-
tually support a finding that the real cause lies elsewhere,
and that, especially in the absence of any antiunion ani-
mus on Respondent’s part, one cannot simply assume
that Respondent’s discharge of Pardue was unlawful be-
cause it followed his union activities and the union cam-
paign. The issue here is what motivated Pardue’s dis-
charge. I do not find that the General Counsel has shown
by a preponderance of the evidence that the discharge
was motivated by antiunion animus.
5. Conclusion
For the reasons explained above, and assuming that the
General Counsel satisfied his initial burden of persuading
that Pardue was discharged because of his union activity,
it is clear that Respondent successfully rebutted the pre-
sumption that the discharge was unlawfully motivated by
showing that it discharged Pardue for a lawful reason, his
violation of its no-call/no-show policy. Further, and as-
suming, again only arguendo, that it can be shown that
Respondent’s reasons for discharging Pardue were pre-
textual, it is also clear that the General Counsel has not
satisfied his ultimate burden of showing that Pardue was
discharged for his union activities because, as explained
above, the factors the judge, and now my colleagues,
relied on to support an inference that Pardue was dis-
charged because of his union activities do not, in fact,
support that inference and, indeed, undercut it. For all
these reasons, I would reverse the judge’s finding of a
violation and dismiss the complaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
TOLL MFG. CO. 845
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 or otherwise discriminate
against any of you for supporting Teamsters Local Union
No. 957, affiliated with the International Brotherhood of
Teamsters, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you as set forth above.
WE WILL make whole Leslie R. Pardue for any loss of
earnings and other benefits he may have suffered as a
result of the discrimination against him, from the date of
his discharge until December 12, 2000.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discharge of
Leslie R. Pardue, including the warnings served on him
at the time of his discharge, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge and warnings will not be used
against him in any way.
TOLL MANUFACTURING COMPANY
Engrid Emerson Vaughan, Esq., for the General Counsel.
Michael Glassman, Esq., for the Respondent.
Dianne Pardue, for the Charging Party.
SUPPLEMENTAL DECISION
JOHN T. CLARK, Administrative Law Judge. I initially heard
this case in Dayton, Ohio, on December 12, 2000. On July 5,
2001, my recommended decision issued finding that Toll
Manufacturing Company (Respondent) violated Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act) by dis-
charging employee Leslie R. Pardue on February 23, 2000,
because of his union or other concerted activities. The Board,
in the absence of exceptions being filed by any party, adopted
the recommended Decision and Order in an unpublished Order
dated October 26, 2001.
On July 10, 2002, counsel for the General Counsel, pursuant
to Section 102.28(d)(1) of the Board’s Rules and Regulations,
filed a motion requesting that the record be reopened and the
case remanded to me for further hearing. The basis for the
motion was newly discovered evidence that cast doubt on the
testimony of Charging Party Leslie R. Pardue, and inferentially,
on the testimony of his corroborating witness Dianne Langford
Pardue, regarding a material fact. The material fact concerned
the Pardues’ credited testimony, over the Respondent’s denial,
that Leslie Pardue telephoned the Respondent from their home
in Dayton, Ohio, between 7 and 9 a.m. on February 21 and 23,
2000, to report off from work. The Board granted the motion
and issued, by direction, an unpublished Supplemental Order
dated September 3, 2002.
The Board’s Supplemental Order vacates its October 26,
2001 Order, remands the case to me for the purpose of reopen-
ing the hearing, taking additional testimony concerning the call-
ins on February 21 and 23, 2000, and issuing a decision with
findings, conclusions, and recommendations. Pursuant to the
Board’s Order and my Order, the Regional Director for Region
9 on October 1, 2002, issued an intent to issue notice of sup-
plemental hearing, and on October 17, 2002, issued the Order
scheduling the hearing. Accordingly, the supplemental hearing
in this matter was held on November 19, 2002, in Dayton,
Ohio.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel1 and the Respondent, I
make the following2
FINDINGS OF FACT
I. BACKGROUND
The findings of fact are more fully set forth in the attached
initial decision, to which no exceptions were filed. The com-
plaint alleges that the Respondent discharged Leslie Pardue on
February 23, 2000, because of his union or other concerted
activities. The Respondent argues that Pardue was discharged
for two incidents where he failed to properly clock in after
lunch and for failing, on February 21 and 23, 2000, to notify the
Respondent that he would not be at work within 2 hours of the
start of his shift.
I found that neither timeclock incident should have resulted
in discipline, that the Respondent never investigated either
incident, did not inform Pardue about the discipline until it was
used as a basis for his discharge, and that the discipline was
excessive, even when compared with the Respondent’s written
policy of progressive discipline. Regarding the contention that
Leslie Pardue failed to show up or report off work within the
allotted time I credited his, and Dianne Pardue’s testimony, that
he had notified the Respondent by telephone sometime after 7
a.m., on both days, that he would not be at work. The Respon-
dent denied receiving either call.
Neither the above findings, nor any portion of the decision,
was contested by any party. The Board adopted the recom-
mended Decision and Order on October 26, 2001, and the Re-
spondent complied with the nonmonetary provisions of the
Order. As part of a compliance investigation to determine the
amount of backpay owed to Pardue, Pardue provided an affida-
vit, dated October 25, 2001, stating that he was unable to work
anywhere, from February 23, 2000, until mid-September 2000.
(GC Exh. X, Deponent’s Exh. 4 at 1–2.) On November 8,
2001, Pardue submitted another affidavit, and pay stubs, indi-
cating that he had worked for Crown Temporary Services dur-
ing February 2000. Eventually the Region obtained timecards
showing that Pardue clocked in at 7:32 and 7:36 a.m. on Febru-

1 Counsel for the General Counsel’s unopposed motion to correct the
transcript, dated December 23, 2002, is granted except that “Diane” is
changed to “Dianne,” based on Ms. Pardue’s spelling in her brief.
2 D. Pardue filed a document entitled “brief,” on behalf of the Charg-
ing Party. The document was untimely filed and I served it on the par-
ties. The document argues facts not in evidence, and generally is of no
probative value. It was obvious at the hearing that D. Pardue is not
legally trained and is unfamiliar with labor law. The document is in-
cluded solely to complete the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
ary 21 and 23 respectively, at Zoom Products, an employer
located in the Cincinnati, Ohio area. In a March 6, 2002 depo-
sition, Pardue estimated that his residence was “about 60 some
miles” from where he worked at Zoom Products. He further
estimated that it took him from 45 minutes to an hour to drive
that distance. (GC Exh. X at 22–23.) Faced with the newly
discovered timecards, and the obvious discrepancies, the Gen-
eral Counsel moved to reopen the record and remand the case.
II. SUPPLEMENTAL HEARING
At the original hearing Pardue testified that he had Dianne
Pardue call the Respondent “a little after 7 a.m.” on February
21 from their residence in Dayton, Ohio. (Tr. 85, 127.) He
estimated that he and Dianne Pardue spoke with Plant Manager
Chad Donley for a total of “approximately ten minutes,
maybe.” (Tr. 128.) Regarding the call-in on February 23, his
testimony was more specific. Pardue stated that he knew that
Dianne called Donley at 7:20 a.m. because he “looked at the
clock,” and that the call lasted approximately 10 minutes. (Tr.
78, 128.)
In his March 6, 2002 deposition, Pardue initially denied be-
ing at Zoom Products on February 21 and 23, however, after
being confronted with his timecards he admitted that he could
not have called the Respondent. (GC Exh. X at 22–23, 59.)
Pardue also estimated that it took him at least 45 minutes to
drive from his residence to Zoom Products. (GC Exh. X at 22.)
Pardue does not deny the authenticity or accuracy of the time-
cards.
At the supplemental hearing Pardue contended that the con-
versation between himself, Dianne Pardue, and Donley lasted
no longer than 2 minutes. He estimated that he only drove 30
miles to work at Zoom and that it took only 27 to 30 minutes.
Pardue further stated that the route he drove was entirely on
two lane roads, consisted of at least seven turns and “a couple”
of stop signs, and was driven at speeds in excess of 60 miles
per hour. (Supp. Tr. 69, 86–89.)
Assuming, for the sake of argument, that his statements do
not defy the laws of physics, Pardue’s current version of the
events on February 21 might be mathematically possible. Re-
garding the morning of February 23, 2000, however, not only
must it be believed that his travel time took not 45 minutes to
an hour, but 27 to 30 minutes, that the entire conversation
lasted not 10 minutes, but only 2 minutes, and last, but not
least, that the conversation occurred not at 7:20 a.m., but at 7
a.m. This last fact is the most disconcerting. In his sworn tes-
timony at the initial hearing he not only testified to the specific
time that the call was made, 7:20 a.m., but that the reason he
knew the exact time was because he had “looked at the clock.”
The only generalized explanation Pardue offered regarding his
contradictory statements is that he was taking medication at the
time of the initial hearing, as he was at the time of the supple-
mental hearing. Pardue offered no corroborating evidence to
demonstrate that any medicine he was taking was capable of
causing this great a memory lost or state of confusion. Based
on my observations of him during both hearings, he did not
appear to be under the influence of any substance, prescribed,
or otherwise.
At the supplemental hearing Dianne Pardue, once again, at-
tempted to corroborate her husband’s testimony. Thus, she
testified that the calls were made around 7 a.m., and that Pardue
drove himself to Zoom Products in only 27 or 30 minutes. At
the initial hearing Dianne Pardue testified that the telephone
call on February 21 was made approximately around 7 a.m. and
the call on February 23 was “approximately between 7:15 and
7:20.” She also recalled the time of the calls because she
looked at the clock each time she called. (Tr. 177, 180.) When
asked to explain these, and other contradictory statements in
her testimony, she stated that emotional stress caused her to be
psychologically sick.
Based on the foregoing obvious and unexplained contradic-
tions I do not credit the testimony of Leslie Pardue or Dianne
Pardue regarding the alleged telephone calls to the Respondent
on February 21 and 23, 2000. I find that their testimony at the
original hearing concerning the telephone calls is false, and that
their testimony at the supplemental hearing is an attempt to
perpetuate the falsehood. Additionally, I find that neither Par-
due has offered any creditable, mitigating circumstances which
would tend to excuse or justify the false statements, given un-
der oath, at both hearings. Accordingly, I find that Leslie Par-
due did not notify the Respondent that he would not be at work
on February 21 or 23, 2000, within 2 hours of the start of his
shift.
III. ANALYSIS
Although Pardue’s lack of truthfulness is a factor which must
be weighed, the ultimate question where discrimination is al-
leged, and that was I addressed in the initial hearing, is the
actual motivation of the Respondent. See Schaeff Inc., 321
NLRB 202, 210 (1996), enfd. 113 F.3d 264 (D.C. Cir. 1997),
and cases cited therein. Thus, even if a discriminatee is lacking
in credibility, a preponderance of the credible testimony and
other evidence could lead to a conclusion that there has been
unlawful motivation—that the respondent took disciplinary
action against that employee which would not have been taken
had the employee not been active on behalf of, or at least sym-
pathetic toward, a union. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
Under the Wright Line methodology the General Counsel has
the initial burden to persuade that antiunion sentiment was a
substantial or motivating factor in the challenged decision. The
fact that the General Counsel has met the burden by a prepon-
derance of the evidence was established in the initial decision
and adopted by the Board. Once the unlawful motivation is
established, the burden of persuasion shifts to the Respondent
to prove its affirmative defense that the alleged discriminatory
conduct would have occurred even in absence of the protected
activity. The test applies regardless of whether the case in-
volves pretextual reasons or dual motivation. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984). “A finding
of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied upon,
thereby leaving intact the inference of wrongful motive estab-
TOLL MFG. CO. 847
lished by the General Counsel.” Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
The prior decision found that both reprimands for the alleged
timeclock violations were prepared based solely on Donley’s
review of the employee timesheets. There was no attempt to
notify Pardue of the reprimands before they were used as a
basis for his discharge. Donley never attempted to question
Pardue about the incidents or to conduct any independent inves-
tigation. Donley’s conduct is an objective indication of unlaw-
ful motivation. See Handicabs, Inc., 318 NLRB 890, 897
(1995), enfd. 95 F.3d 681, 685 (8th Cir. 1996). An additional
objective indication of unlawful motivation is that the issuance
of the warnings was inconsistent with the Respondent’s pro-
gressive discipline system. Tubular Corp. of America, 337
NLRB 99 (2001). Thus, as found in the initial decision, it was
evident from the outset that the Respondent “was looking for a
way to be rid of the leading union adherent,” and the Respon-
dent was ordered to remove the unlawful disciplinary actions,
dated February 2 and February 3, from its files. It follows that
the subsequent discharge, which was based in part on those
warnings, also violates the Act.
I disagree with counsel for the General Counsel’s current po-
sition that “the Employer’s method for handling prior no-
call/no-show violations does not reveal such disparate treatment
in the new context of Pardue’s failure to call in.” (GC Supp.
Br. 11, fn. 8.) Pardue’s lack of credibility does not negate the
Respondent’s disparate treatment of him. As counsel for the
General Counsel correctly argued in the initial hearing “assum-
ing arguendo that Pardue did not call in on the days in question,
the record establishes Donley’s disparate treatment of Pardue in
discharging him for a violation of a policy which Respondent’s
records show normally was applied to employees who just sim-
ply did not show up for work and were not heard from thereaf-
ter.” (GC Br. 8.) The Board has repeatedly stated that evi-
dence of “blatant disparity is sufficient to support a prima facie
case of discrimination.” Sears, Roebuck & Co., 337 NLRB
443, 443 (2002), and cases cited therein.
“The Board has long held that ‘[a]n employer cannot simply
present a legitimate reason for its actions but must persuade by
a preponderance of the evidence that the same action would
have taken place even in the absence of the protected con-
duct.’” Key Food, 336 NLRB 111, 112 (2001). (Citations
omitted.) The “mere existence of valid grounds for a discharge
is no defense to a charge that the discharge was unlawful,
unless the discharge was predicated solely on those grounds,
and not by a desire to discourage union activity.” (Citation
omitted.) NLRB v. Symons Mfg. Co., 328 F.2d 835, 837 (7th
Cir. 1964). Accord: Singer Co. v. NLRB, 429 F.2d 172, 179
(8th Cir. 1980).
IV. CONCLUSION
Based on the foregoing I reaffirm the initial Decision and
Order issued on July 5, 2001 (JD–91–01) (attached), finding
that the Respondent violated Section 8(a)(3) and (1) of the Act
by unlawfully discharging Leslie Pardue.
REMEDY
The Respondent has complied with all aspects of the reme-
dial order except the backpay award. The Board has broad
remedial discretion in fashioning an appropriate remedy. The
Supreme Court concluded that, despite an employee’s false
testimony, the Board’s decision not to make a categorical ex-
ception to the usual remedy of reinstatement with backpay was
within the Board’s broad discretion. ABF Freight System, Inc.
v. NLRB, 510 U.S. 317, 325 (1994). The Board will withhold
the usual remedy of reinstatement with backpay from a dis-
criminatee who makes false statements at a hearing when the
discriminatee’s conduct “amount[s] to a malicious abuse of the
Board’s processes under circumstances which require forfeiture
of remedy to effectuate the purposes of the Act.” Service Ga-
rage, Inc., 256 NLRB 931 (1981). When possible the Board
seeks to find a balance “between the equally important policies
of discouraging unfair labor practices by remedying them” and
protecting the Board’s processes. Victor’s Café 52, Inc., 338
NLRB 753, 756 (2002).
Certainly the false testimony of Leslie and Dianne Pardue, is
a “flagrant affront” to the Board’s processes, that should not be
condoned nor rewarded. ABF, above at 323. Their false testi-
mony is not, however, material to the outcome of the case and
probably does not fall within most statutory definitions of “per-
jury.” Service Garage, above at 935 fn. 4. I have also consid-
ered the fact that to deny Pardue backpay would, in essence, be
rewarding the Respondent-wrongdoer. See generally Airport
Park Hotel, 306 NLRB 857, 858 (1992), and cases cited therein
(applying the principle, in the context of a backpay proceeding,
that uncertainties are resolved against the Respondent-
wrongdoer). Under the circumstances of this case I find that it
will not effectuate the purposes of the Act to require forfeiture
of the traditional remedy of backpay as set forth in the “rem-
edy” section of the initial decision.

[Recommended Order omitted from publication.]

Engrid Emerson Vaughan, Esq., and Earl Ledford, Esq., for the
Acting General Counsel.
Michael Glassman, Esq., of Cincinnati, Ohio, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. I heard this case
in Dayton, Ohio, on December 12, 2000. The charge was filed
March 1, 2000,1 and the complaint was issued on May 30,
2000. The complaint alleges that Toll Manufacturing Company
(Respondent) violated Section 8(a)(3) and (1) of the National
Labor Relations Act (Act) by discharging employee Leslie R.
Pardue on February 23, 2000, because of his union or other
concerted activities. The Respondent denies violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the Acting General Counsel and the Respondent,
I make the following

1 All dates are in 2000 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, repackages pet food at its fa-
cility in Dayton, Ohio, where, within the past 12 months, it has
performed services valued in excess of $50,000 for nonretail
enterprises located within the State of Ohio, each of which, in
turn, annually sells and ships goods valued in excess of $50,000
from points within the State of Ohio, directly to points outside
the State of Ohio. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that Teamsters Local Un-
ion No. 957, affiliated with the International Brotherhood of
Teamsters (Union), is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Leslie Pardue began his employment with Respondent as a
machine operator in training on October 19, 1999. He worked
on the first shift, which began at 6 a.m. and ended at 2:30 p.m.,
with a 45-minute lunch period from 11:15 to 12 noon. On De-
cember 20, 1999, Pardue was promoted to regular machine
operator and given a 50-cent-an-hour raise. Pardue was not
issued any disciplinary warnings during his employment, until
the date of his discharge on February 23, 2000. The reasons
given by Respondent for his termination were failing to call in
on 2 occasions and failing properly to punch in and out for
lunch on 2 occasions.
Beginning in late December and through early January, Par-
due had a dispute with Plant Manager Chad Donley over the
amount of his raise and his failure to obtain a bonus based on
attendance incentives. Pardue asked Donley for time records so
that he could determine if he was entitled to the bonus. Donley
provided some records, but Pardue was not satisfied with what
he was provided. On January 25, Pardue filed a charge with the
Board’s Regional Director alleging that Respondent’s denial of
a bonus to him was unlawful. The charge was dismissed by the
Regional Director on May 25, 2000; Pardue appealed the dis-
missal but the appeal was denied.
2. Pardue’s union activities and Respondent’s reaction
At about the same time he was pursuing his claim to a bonus,
and in response to other employee complaints about working
conditions, Pardue contacted a representative of the Union. He
signed a union authorization card on January 10, 2000, and
sought to organize the employees. Pardue passed out blank
union authorization cards to his fellow employees, collected
signed cards, and submitted them to the Union. He was ob-
served by Supervisor Scott Butera while he was passing out
cards in Respondent’s parking lot. On January 19, the Union
filed an election petition with the Board and that petition was
served on the Respondent.2

2 The petition was withdrawn by the Union on February 1, 2000.
Thereafter, on about January 20 or 21, Pardue wore a
Tommy Hilfiger hat to work, on which he had written “union,
vote yes” with a check mark. Butera and Plant Manager Chad
Donley noticed him wearing the hat and Donley commented,
“look at Lester, he has got him a new Tommy Hilfiger hat.”
Sometime later, Butera told Pardue that he and Donley thought
that another employee had “organized” the Union until they
saw Pardue’s hat. According to Pardue, none of the 20 to 25
other hourly employees wore such a hat.3
At about this time, Respondent posted a document in the
plant notifying the employees of the Union’s election petition.
The document was signed by Gerry Donley, Chad’s father and
the president of Respondent. President Donley stated that he
was “surprised and deeply disappointed that some employees
are seeking union representation.” The document, which has
not been alleged to contain anything unlawful under the Act,
also set forth Respondent’s opposition to unionization, empha-
sizing the benefits that had been secured without a union and
reminding employees that it needed to “remain a viable busi-
ness in a competitive marketplace.”
On the morning of January 26, Pardue asked for a meeting
with Donley and Butera about what Pardue described as a
threat against him by another employee. Pardue told his super-
visors that he was being threatened “over my union activities.”
Donley tried to resolve the matter by stating that both employ-
ees had the right to express their views about unionization, but
Pardue was not mollified. Only Donley and Pardue testified
about this meeting and their versions are generally compatible
to the extent set forth above, but their versions differ somewhat
on the details. On the present record, I am unable to make spe-
cific findings as to the nature of the threat or the details of this
meeting. It is quite clear, however, that, after the threat and the
meeting, Pardue was shaken and became incapacitated by stress
and anxiety, for which he required medical attention.
3. Pardue’s medical leave
After the meeting with Donley, Pardue called his companion,
Dianne Langford,4 and had her pick him up at work and trans-
port him to a hospital emergency room where he was treated
and received a prescription for medication. Langford testified
that she called Donley both later in the day on January 26 and
on the morning of January 27, and told him about Pardue’s
medical condition. In the latter call, she told Donley that Par-
due had a doctor’s note to remain home for 3 days. Donley
supported Langford’s testimony that she called him the day
Pardue left work and went to the emergency room. Indeed, he
did not dispute that Pardue, or someone on his behalf, called in
to the plant to report his absences on January 27 and 28 (Tr.
250). This is significant because Respondent has a rule, which
it would later use in support of its termination of Pardue, that an
employee who intends to be absent from work must call in
within 2 hours of his starting time. According to the rule, any 2
3 The above is based on Pardue’s uncontradicted testimony. Butera
did not testify in this proceeding. He was no longer employed by Re-
spondent at the time of the hearing.
4 D. Langford was identified by Pardue as his long-time companion,
with whom he lived. Langford testified in this proceeding and identi-
fied herself as D. Pardue, his wife.
TOLL MFG. CO. 849
no call/no shows within a 12-month period are “grounds for
termination.” (R. Exh. 2.)
It is undisputed that Pardue delivered his doctor’s note to
Donley, at the plant, on the afternoon of January 28. That note
indicated that he should be off work for 3 days. Pardue asked
that Donley sign the note and give him a copy. Donley did so.
Donley also testified that he gave Pardue a blank copy of a
medical leave form, telling Pardue that if his condition were
serious he might “need more time.” Donley also testified that
Pardue did not work on Monday, January 31,but he called in
that day to report his absence. Nor did Pardue work on Febru-
ary 1. Although Donley acknowledged in his testimony that
Pardue did not work on February 1 he said nothing about Par-
due calling in that day; he apparently assumed that the doctor’s
note delivered on January 28 excused his absence on that day.
Also on January 28, Donley wrote a letter to Pardue and sent
it to his address (R. Exh. 4). The letter referred to Pardue’s
request for timecard reports concerning his still-pending claim
to a bonus. Donley included some information on the bonus
plan and promised to obtain more timecard information as soon
as possible. The letter also referred to their meeting earlier that
day and the fact that Pardue had also picked up his check. The
letter included, as an enclosure, Respondent’s attendance pol-
icy, which will be discussed in more detail later in this decision.
On February 1, Donley sent Pardue another letter including
the requested timecard information and reminding Pardue that
Donley needed to hear from Pardue as to whether he wanted to
take extended medical leave. Donley also wrote, contrary to
his testimony set forth above that Pardue called in on January
31, that “we have not seen or heard from you since Friday
1/28/00.” Donley closed his letter by stating that if he did not
hear from Pardue “this week,” he would have to consider that
Pardue “voluntarily resigned” from Respondent (R. Exh. 5).
Pardue returned to work on Wednesday, February 2. At that
time, he submitted a doctor’s note, dated the day before, clear-
ing him to return to work, but stating that he “may need occa-
sional brief breaks to relieve anxiety.” (GC Exh. 7.) Pardue
worked that day, February 2, and the next, February 3. On
February 2, Respondent provided pizza to the employees and
extended the lunch period by having the employees attend, on
company time, a 15-minute speech by Donley announcing and
celebrating the Union’s withdrawal of the election petition.
According to Pardue’s uncontradicted testimony on February 3,
Pardue again complained to Donley about being mistreated by
other employees for his union views.
According to Donley, Pardue or someone on his behalf,
called in on the morning of February 4 to say that he would be
absent that day (Tr. 256). According to Pardue, he also told
Donley that he would return the completed medical leave form
next week (Tr. 72).
On the morning of Monday, February 7, according to Don-
ley, Pardue came in to the plant and delivered the completed
medical leave form personally to him (Tr. 256). On that form
(GC Exh. 8), Pardue’s doctor requested leave for Pardue
through February 20 for “acute anxiety.” Donley testified that
he “accepted the document as given” and granted the request
(Tr. 256).
Pardue never again reported for work prior to his discharge
on February 23. There is a dispute, however, as to whether he
called in to report his absences on Monday, February 21 and
Wednesday, February 23. Pardue and Langford testified that
they called to report his absences, before 8 a.m., on each of
those days, as required under Respondent’s no call/no show
policy. Donley denied that the calls were received. I credit
Pardue and Langford rather than Donley on this issue, for rea-
sons set forth later in this decision.
It is undisputed, however, that Respondent did receive, on
the afternoon of February 21, by fax, a doctor’s notification that
Pardue would be off work until February 23 (GC Exh. 9). Don-
ley apparently accepted this notification and relied on it to ex-
cuse Pardue for his absence on February 22. It is also undis-
puted that another fax was received by Respondent on the af-
ternoon of February 23 with a notification from Pardue’s doctor
that Pardue would not be ready to return to work for an “unde-
termined” time. The doctor’s note is difficult to decipher, but it
seems to state that the doctor, the same one whose request that
Pardue be off through February 20 was approved by Donley,
would determine, after another examination, when Pardue
could return to work (GC Exh. 10).
4. Pardue’s termination
On February 23, Donley sent a letter to Pardue terminating
his employment (GC Exh. 11). The letter stated that Pardue
had violated the no call/no show policy by failing either to call
within 2 hours of his starting time or to report to work on Feb-
ruary 21 and 23. The letter also gave as grounds for the termi-
nation Pardue’s clocking in 19 minutes late after lunch on Feb-
ruary 2 and his failure to clock in after lunch, having previously
clocked out for lunch, on February 3. Warnings for those inci-
dents were enclosed in the letter. It is undisputed that Pardue
had never before seen those warnings or been told about them.
Nor did any supervisor approach him on February 2 or 3 and
tell him he had done anything wrong. Indeed, employees are
not expected to punch in and out for their 45-minute lunch pe-
riod.5
The warnings were described as first and second warnings
for “attendance occurrences.” The first said that Pardue “must”
return to work “within the break period” or he would be subject
to suspension “and up to termination.” The second noted Par-
due’s failure to clock in following lunch and set forth a suspen-
sion for this dereliction.6

5 It is undisputed that Respondent underpaid Pardue for working on
February 2, even after having deducted the time he was allegedly late
returning from lunch (Tr. 270 ;and GC Exh. 17).
6 Donley testified that the warnings were prepared when he noticed
the punch time discrepancies during payroll preparation for the week
that included February 2 and 3. According to Donley, that would have
been on February 7. Donley also indicated that he did not serve the
warnings on Pardue, at that time, because Pardue was on medical leave.
I do not believe Donley’s testimony on this issue. Pardue personally
delivered the completed medical release form to Donley during the
morning of February 7. Although the record is silent as to the exact
time on February 7 that Donley prepared the warnings, Donley admit-
ted that Pardue came into the plant on February 11 to pick up his pay-
check. It is inconceivable to me that, if indeed those warnings were
prepared on February 7, they would not have been served on Pardue
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
Pursuant to the Respondent’s policy (GC Exh. 13), these in-
cidents should not have resulted in discipline, let alone a sus-
pension or discharge, even assuming that they were validly
issued, which, as I find, they were not. Respondent’s atten-
dance policy states that employees are permitted 12 so-called
“attendance occurrences”—which include tardiness, early
leave, and absences—within a rolling 12-month period. The
policy provides for a progressive disciplinary procedure. After
a fourth occurrence a written warning is to be issued; an eighth
occurrence results in a suspension; and a twelfth occurrence
results in discharge. Each attendance occurrence is required to
be documented in writing and contain the employee’s and the
supervisor’s signature.
The termination letter also states that a written warning was
drafted after the alleged failure to call in on February 21. The
warning, which was enclosed with the letter, was never given
or shown to Pardue or discussed with him before the letter was
sent. It indicated that this was a second warning and suspen-
sion. Additionally, it is unclear if Pardue is being suspended
for a total of 2 days, as indicated on his first warning for failing
to call in, dated February 21. Or if the suspensions are to be
served concurrently, as stated in his second suspension for fail-
ing to clock in, dated February 3. What is clear is that the Re-
spondent’s progressive discipline policy does not mention, let
alone require, written warnings or suspensions for either only 2
attendance occurrences or the first incident of not calling or
reporting for work. A fourth document, a termination notice
dated February 23, the same date as the letter, and setting forth
the alleged February 23 no call/no show, was also enclosed.
Donley admitted that before he sent the termination letter he
had received the February 23 doctor’s notification requesting
further time off for Pardue, due to his medical condition (GC
Exh. 11; and Tr. 260).
Record evidence of comparable violations of Respondent’s
no call/no show policy illustrates that the policy was not as
strictly enforced against others as it was against Pardue. Em-
ployee Jet Reese was simply issued a warning even though he
violated the policy on 2 consecutive days in August 2000.7
Other employees were not immediately terminated as was Par-
due, but were terminated only after some time had elapsed be-
tween their last day of work and the termination actions. For
example, employee Eric White was terminated on April 17,
2000, for failing to report for work or call in since March 8,
2000; Sonya Nellons last worked on August 14, 1998, but she
was not terminated until 1 week later; Akieto Twitty last
worked on August 21, 1998, and he was terminated on August
26, 1998; Charles Lindamood last worked on March 3, 2000,
and was a no call/ no show until March 10, 2000, when he was
separated as a voluntary quit; and David Melendez last worked

when he came into the plant on February 7 or, if the warnings were not
available on February 7 at the very latest on February 11, when Pardue
arrived to get his check. Moreover, the record shows that Donley sent
letters to Pardue on January 28 and February 1 about work-related and
indeed attendance matters. Donley offered no believable explanation as
to why he did not even attempt to notify Pardue by mail of the warning
and the suspension.
7 On the second day, Reese apparently called in at 8:20 a.m. and re-
ported to work 20 minutes later.
on October 22, 1999, but the separation notice was not issued
until November 1, 1999 (Tr. 43–47).
B. Discussion and Analysis
To sustain a discrimination violation, the General Counsel
must initially prove that a substantial or motivating factor in the
employer’s decision was the employee’s union or other pro-
tected activity. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even absent the union activity. See
Techno Construction Corp., 333 NLRB 75 (2001), and cases
there cited. As part of meeting his initial burden, the General
Counsel may show that the employer’s reasons for the chal-
lenged personnel decision are false or pretextual. See National
Steel & Shipbuilding Co., 324 NLRB 1114, 1119 fn. 11 (1997).
Indeed, it has long been recognized that where an employer’s
stated reasons are false, it can be inferred “that the [real] motive
is one that the employer desires to conceal—an unlawful mo-
tive—at least where . . . the surrounding facts tend to reinforce
that inference.” Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966). See also Union-Tribune Pub-
lishing Co. v. NLRB, 1 F.3d 486, 491–493 (7th Cir. 1993); and
Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).8
The record fairly supports the inference that Respondent dis-
charged Pardue for his union activities. Pardue was the leading
union activist among the Respondent’s employees. Respondent
was clearly opposed to the Union and knew of Pardue’s leader-
ship role. Donley teased him for wearing a union message on
his hat. According to Pardue, Donley failed adequately to as-
suage Pardue’s concerns that an employee had threatened him
over his union activities. This led to Pardue’s extended medical
leave. He worked only 2 days after the threat and the meeting
with Donley over the threat, until his discharge about 4 weeks
later. On one of those days, Donley met with employees to
celebrate the Union’s withdrawal of its election petition and, on
the other, Pardue reported to Donley further harassment by
fellow employees. The discharge itself came precipitously and
without prior warning, on the heels of the union campaign in-
stigated by Pardue. Moreover, despite being well aware of
Pardue’s continuing medical condition, Respondent discharged
him for failing to call in to report absences caused by his medi-
cal condition and explained by doctor’s notes that had been
received by Respondent before the termination. These circum-
stances tend to support an inference of discrimination.
The inference is strengthened because the reasons offered by
Respondent—actually by Donley, who effectuated the dis-
charge and was Respondent’s only witness—are pretexts. Don-
ley was not a credible witness, as shown by an analysis of his
testimony concerning the warnings to Pardue attached to the
termination letter. His testimony concerning the timecard
warnings was not credible, as indicated at footnote 6 above.
Moreover, those warnings were issued in absentia, so to speak.
No one told Pardue he had done anything wrong at the time and
employees were not even expected to punch in and out for
8 Obviously, if a pretext is shown, the employer has failed to meet its
burden of proving that the personnel action would have taken place
even without the union activity. See National Steel, above.
TOLL MFG. CO. 851
lunch. The surreptitious way Donley handled these warnings
shows that he was looking for a way to be rid of the leading
union adherent. Had Donley bothered to investigate the under-
lying facts, he would have found that the failure to punch in
after lunch on February 3 did not mean Pardue overstayed his
lunch period, as shown by Pardue’s uncontradicted testimony.
Had he bothered to investigate the alleged extra 19 minutes for
lunch on February 2, Donley would also have learned that that
was likewise not a violation that required a warning and a sus-
pension. According to Pardue’s uncontradicted testimony, he
came back from lunch on time, was told by his supervisor not
to punch in but to attend Donley’s union-related speech, and he
was no more late returning to work than the rest of the employ-
ees who attended the speech. Pardue’s only “mistake” on these
occasions was to punch out for lunch when he was not required
to do so. Indeed, Donley’s reliance on these incidents not only
shows their pretextual nature, but reflects adversely on his
credibility, which was also suspect because of his demeanor. I
detected in Donley’s testimony, particularly in his responses to
the General Counsel’s questioning of him as an adverse witness
early in the trial, a noticeable defensiveness and lack of candor.
The infraction most heavily relied upon by Respondent is
Pardue’s alleged failure to call in before 8 a.m. on February 21
and 23. That too was a pretext. First of all, Pardue did call in
on those occasions, as reflected in the mutually corroborated
testimony of Pardue and Langford. I have duly considered that
their testimony understandably did not match on all details and
they have a close personal relationship. But I find it more sig-
nificant that they steadfastly insisted that they both talked to
Donley on both dates, as required under Respondent’s call in
rule. Their testimony on this issue survived vigorous cross-
examination and they both impressed me, unlike Donley, with
their candor. Moreover, it is undisputed—indeed admitted by
Donley—that Pardue, or someone on his behalf, called in, ap-
propriately and on time, to report his absences on January 27,
28, 31, and February 4. On other occasions, Pardue took pains
to provide Donley with doctor’s notes excusing his absences,
including on February 21 and 23, the very dates he allegedly
failed to call in. Pardue’s consistent efforts to adhere to Re-
spondent’s rule on these occasions, particularly his previous
call ins, makes it likely that he also called in on February 21
and 23, as both he and Langford testified. Thus, I discredit
Donley’s denial that he received such calls on February 21 and
23.9

9 In its brief, Respondent attacks the credibility of Pardue and Lang-
ford on several grounds, none of which would cause me to reject their
testimony in favor of Donley’s on this issue. For example, contrary to
Respondent, I find it plausible that both Pardue and Langford would
both speak on the phone with Donley. Pardue was suffering from acute
anxiety, according to his doctor, and after the threat concerning his
union activity and his view that Respondent did not do enough to neu-
tralize that threat, he was cautious in his dealings with Respondent. It is
understandable that he would want his companion’s support. She, after
all, had called Donley at least once before on Pardue’s behalf, accord-
ing to Donley’s own testimony. Langford impressed me as assertive
and very protective of Pardue; it is thus likely that she would have
participated in the calls.
My finding of pretext is supported by other factors. Donley
made no effort to notify Pardue of the warning he issued after
Pardue’s first alleged no call violation. The statement on the
warning that Pardue would be terminated for his next violation
is thus meaningless and more than slightly disingenuous.
Moreover, Donley knew why Pardue was off work. He ac-
cepted the February 21 doctor’s note to excuse the February 22
absence and he knew from the note provided on February 23
that Pardue was still ill and under a doctor’s care. Despite hav-
ing received both notes before he mailed his termination letter,
Donley went ahead and mailed it. Finally, Pardue was treated
differently and more strictly than other no call/no show viola-
tors. None was discharged so precipitously after alleged call in
violations and under circumstances where the employee was
under a doctor’s care, as was Pardue. Additionally, save for the
termination for the alleged second no call/no show violation,
none of the written warnings or suspensions were consistent
with the Respondent’s written policy and the Respondent has
offered no creditable explanation for its actions.
In these circumstances, I have no difficulty in finding that
the false reasons Donley gave for Pardue’s discharge were an
effort to mask the real reason, Pardue’s effort to bring a union
into the plant. That finding, together with the other surround-
ing facts that tend to support the inference of discrimination,
lead to the further finding that Respondent’s termination of
Pardue violated the Act.
CONCLUSION OF LAW
By discharging employee Leslie Pardue, Respondent vio-
lated Section 8(a)(3) and (1) of the Act. That violation is an
unfair labor practice within the meaning of the Act.
REMEDY
Having found that Respondent engaged in an unfair labor
practice, I also find that it must be ordered to cease and desist
from its unlawful conduct and to take certain affirmative action
designed to effectuate the policies of the Act.
Having unlawfully discharged Leslie Pardue, Respondent
must offer him full reinstatement to his former job or, if the job
no longer exists, to a substantially equivalent position, without
prejudice to his previous rights and privileges. It must also
make him whole for any loss of earnings and other benefits he
may have suffered because of the discrimination against him,
with backpay and interest computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]

I also find without merit the Respondent’s contention that Pardue
faxed the last two doctor’s notes because he feared that if he appeared
in person he would have been disciplined. The Respondent’s written
no call/no show policy does not state that any discipline will be forth-
coming after only 1 no-call/no-show. Thus, at the very least Pardue
had no cause to believe that he would be subject to discipline had he
personally delivered the February 21 note. Moreover, unlike the absen-
teeism policy which states that the 12th occurrence will result in termi-
nation, the no call/no show policy merely states that the second incident
will be grounds for termination.