Vintage Pharmaceuticals

National Labor Relations Board - Administrative Judge Opinions

Mar 19, 2003

10-CA-033427 (N.L.R.B. Mar. 19, 2003)

JD(ATL)–21–03
Huntsville, AL

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

VINTAGE PHARMACEUTICALS, INC.

and CASES 10–CA–33427
10–CA–33920

CHARLES TALKINGTON, AN INDIVIDUAL

John D. Doyle, Esq.
for General Counsel.
John A. Wilmer, Esq. And
George M. Beeson,Jr., Esq.
for Respondent.

Decision

A hearing was held in these proceedings in Huntsville, Alabama on January 8
and 9, 2003. I have considered the full record as well as briefs filed by General Counsel
and Respondent.

Jurisdiction:

Respondent Vintage Pharmaceuticals, Inc. admitted the jurisdiction allegations. It
is an Alabama corporation with an office and place of business in Huntsville, Alabama.
At material times it has engaged in the business of manufacturing pharmaceuticals.
During the past 12 months in the conduct of those business operations Respondent
sold and shipped goods valued in excess of $50,000 directly to customers outside
Alabama. During all material times Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.

The Alleged Unfair Labor Practices:

An Order Vacating Settlement Agreement, Consolidating Cases, Consolidated
Complaint and Notice of Hearing issued on October 31, 2002. The complaint includes
allegations that Respondent maintained a rule prohibiting employees from discussing
their pay; that Respondent discharged three employees because those employees
violated that rule; Respondent maintained a rule prohibiting solicitation; that Respondent

JD(ATL)–21–03

changed the terms and conditions of employment of its three employees after
reinstating them pursuant to a settlement agreement; that Respondent again discharged
one of the three employees; that Respondent failed to grant wage increases to those
three employees; that Respondent issued a written warning to one of the three
employees; and that Respondent’s actions constitute unfair labor practices. 5
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Respondent admitted that it issued and maintained the following rules in its
employee handbooks on September 1, 2001:

All employee’s pay is a matter, which shall be kept confidential and only
discussed between the employee and their immediate supervisor who has
responsibility for that area.

Employees are not permitted to solicit other employees for funds, contributions,
sales, membership, or other purposes during the employee’s working time or at
any other time if such solicitations interfere with other employees who are on
working time, lunch, or breaks. In addition, distribution of literature, documents or
any other type of written material is not permitted on company property at any
time.

Employees Charles Ray Stanley and Darrell Wade Hancock asked employee
Charles Talkington if he had received his raise. Those employees discussed
Talkington’s pay. Respondent then discharged Talkington, Stanley and Hancock on
November 16, 2001 because those three employees violated its rule against talking
about employees’ pay. The parties stipulated that Respondent returned Talkington,
Hancock and Stanley to work with full back pay in March 2002.

General Counsel and Respondent entered into an informal settlement agreement
in case number 10–CA–33427 on June 4. That agreement was approved on June 20,
2002. The complaint included allegations which Respondent denied, that since June 20,
2002 Respondent has refused to rescind its no–talking about wages or its no–
solicitation rules; it has changed terms and conditions of employment of employees
Talkington, Stanley and Hancock; and that it unlawfully warned and subsequently
unlawfully discharged employee Charles Talkington.

Talkington testified that on March 18, 2002 when he, Stanley and Hancock
returned to work, Judy Upton1 told the three of them that James Higdon would no longer
be their supervisor and that Higdon wouldn’t have anything to do with them. Instead
their supervisor would be Tim Miller. Moreover, the three would no longer be allowed in
the buildings. All their work was outside.

Darrell Hancock testified that Tim Miller told them they were not allowed to enter
the buildings and they were not to socialize with other employees. After March 18
Hancock along with Stanley and Talkington were required to clock out and back in after
lunch. At the time of their March reinstatement none of the other maintenance

1 Upton testified that she is Respondent’s human resources manager.
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employees were required to do that and Hancock, Stanley and Talkington had no such
requirement before being fired in November.

Before November 16 Talkington had an access card for admittance to the liquid
building and he visited that building every workday. Darrell Hancock testified that he too
had an access card to enter the liquid building but he was not given an access card to
that building after he returned to work in March 2002. Hancock testified the three
employees routinely worked in buildings before their discharge.
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The maintenance shop is located in the liquid building. Before November
Talkington used the liquid building break area. He talked with production employees
about personal matters in both the liquid and pill buildings. His job before November 16
included maintenance work, which was routinely in the liquid building, the pill building,
the warehouse and outside. Before November 16 he was never told to confine his
activities to one area of the facility or to avoid talking with other employees. Before
November 16 Talkington did not mow grass.

The call–in rule:

A couple of months after returning to work Talkington called Tim Miller to report
that he was sick and would not be in to work. Miller was not in and Talkington left word
with the receptionists. Later that day, Miller phoned Talkington and told him that he must
talk with Miller when he called in sick and he was not allowed to leave word with anyone
else. Hancock recalled Miller telling him, Talkington and Stanley they must talk with him
when absent from work.

Talkington was scheduled to start work at 7:00. He complained to Miller that he
could not call within an hour of his shift starting if he was required to talk with Miller
since Miller was not available during that hour. Miller told him he would have to talk with
Miller and could do so when Miller was available. Miller said that he was in a meeting
every morning until 8:30 but that he could be called at 8:30.

Miller also told Talkington that he would have to bring a doctor’s excuse when he
returned to work the next day. Charles Talkington heard from other employees they
had not had to bring in doctor’s excuses for being out sick. He had a doctor’s excuse,
which he gave to Tim Miller but he complained that he should not have to go see a
doctor and bring in an excuse if the other maintenance employees were not required to
do the same. Miller said all right.

The May 17 write–up:

Charles Talkington received a write–up (GCExh. 2) dated May 17. Maintenance
supervisor James Higdon testified that he gave the warning to Talkington. After issuing
instructions to cut along the railroad Talkington asked Higdon why they2 were stuck with
that job. Higdon responded they were not stuck with that job; it just had to be done.

2 Talkington was referring to himself, Stanley and Hancock.
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Higdon felt that Talkington was argumentative and he issued the warning. That was
Higdon’s only occasion to award that type warning.

Hancock’s pay raises:
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Hancock received only one raise before his discharge. Subsequently he received
one more raise on January 6, 2003. Talkington received a pay increase before his
November discharge but he did not receive an increase after his March 18
reinstatement.

Talkington’s injury and his discharge:

In June Talkington hurt his back trying to start a weed–eater. Initially he didn’t
realize his back was hurt even though he had pain in his shoulder and neck. He filled
out an accident report on the day after the injury. After first telling Upton that he didn’t
need a doctor, pain from his neck, shoulder and lower back increased and James
Higdon took him to see a doctor. After returning from the doctor Higdon assigned
Talkington to do bush–hog work in order to enable Talkington to avoid any lifting.
Talkington did the bush–hog work the remainder of Thursday and all day Friday. When
he woke on Saturday, the pain had increased. On Sunday the pain was even worse.
Talkington returned to the doctor on Monday but was directed to another facility. The
doctor took him off work for three days and told Talkington to return and see him on
Wednesday.

Talkington never returned to work after June 24. Respondent wrote the following
letter dated July 15, 2002:

Vintage Pharmaceuticals, Ins. is accepting July 15, 2002 as your effective
date of resignation.
According to our handbook you are required to call and speak to your
immediate supervisor or a member of management within 1 hour of your shift if
you are not reporting to work for the day. According to our records you did not
call in and report off within the time frame on July 15, 2002 according to company
policy.
Therefore, in accordance with your Receipt of Handbook signed we
accept your voluntary resignation effective July 15, 2002. (GCExh. 8)

Conclusions:

The no talking about wages rule:

As shown above, Respondent’s handbook in effect before January 2003,
included the following:

All employee’s pay is a matter, which shall be kept confidential and only
discussed between the employee and their immediate supervisor who has
responsibility for that area.
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Credibility:

There is no dispute regarding the no talking about wages rule.
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Findings:

The Board has held that an employer may not lawfully prohibit employees from
talking about their wages. I find that Respondent did maintain a rule against employees
discussing their wages in violation of Section 8(a)(1) of the Act. Triana Industries, 245
NLRB 1258 (1979): Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3rd Cir.1976).

The no–solicitation rule:

Before January 2003 Respondent’s employees’ handbook included the following
rule:

Employees are not permitted to solicit other employees for funds, contributions,
sales, membership, or other purposes during the employee’s working time or at
any other time if such solicitations interfere with other employees who are on
working time, lunch, or breaks. In addition, distribution of literature, documents or
any other type of written material is not permitted on company property at any
time.

Credibility:

There is no dispute as to the facts. Respondent admitted that it maintained the
above–cited rule during November 2001.

Findings:

It is well established that an employer violates Section 8(a)(1) when it prohibits its
employee’s solicitation during nonwork time. An employer’s rule prohibiting solicitation
on the employees’ own time has consistently been found to be unlawful. Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Peyton Packing Co., 49 NLRB 828,
829 (1943); Ingram Book Co., 315 NLRB 515 (1994). I find that Respondent engaged
in a violation of Section 8(a)(1) by maintaining its rule which prohibited employees from
soliciting “at any other time if such solicitations interfere with other employees who are
on * * lunch, or breaks.”

The November 16, 2001 discharges:

As shown above, Respondent discharged employees Charles Talkington,
Charles Ray Stanley and Darrell Wade Hancock on November 16 because they violated
its rules against discussing wages.

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In November 2001 employees Hancock and Stanley asked Talkington if he had
received his raise. Talkington replied that he had but that the raise was not what he
thought it should have been.

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At that time Respondent had a rule against talking about wages. That rule was
set out in its employees’ handbook:

All employee’s pay is a matter, which shall be kept confidential and only
discussed between the employee and their immediate supervisor who has
responsibility for that area.

Respondent stipulated that it discharged Talkington, Hancock and Stanley in
November 2001 because they talked about wages.

Credibility:

There are no credibility disputes regarding the November discharges.
Respondent admitted that it discharged Stanley, Hancock and Talkington because they
discussed Talkington’s wage raise.

Findings:

It is well established that an employer engages in conduct in violation of section
8(a)(1) when it prohibits its employees from discussing their wages. By
promulgating and enforcing the above rule and by discharging Talkington, Stanley and
Hancock on November 16, 2001, Respondent engaged in conduct in violation of
Section 8(a)(1) of the Act. Automatic Screw Products, Inc., 306 NLRB 1072 (1992);
Scientific–Atlanta, Inc., 278 NLRB 622 at 625 (1986); Triana Industries, 245 NLRB
1258 (1979).

Respondent refused to comply with its settlement agreement:

General Counsel and Respondent entered into an informal settlement agreement
on June 4 in 10–CA–33427 (GCExh. 19). That agreement was approved on June 20,
2002. Among other things the settlement agreement provided that Respondent agreed
to be bound by the terms of the Notice. The Notice included provisions that Respondent
would not make, maintain or enforce and would rescind or revise any rule that prevents
employees from discussing pay rates and any overly broad solicitation or distribution
rule; that Respondent will not terminate employees for talking about pay and benefits;
that Respondent would reinstate and make whole employees Talkington, Hancock and
Stanley and remove references from its files of the termination of Talkington, Hancock
and Stanley; and that Respondent would not in any like or related manner interfere with,
restrain or coerce its employees.

The parties stipulated that Respondent returned Talkington, Hancock and
Stanley to work with full back pay in March 2002.

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An Order Vacating Settlement Agreement, Consolidating Cases, Consolidated
Complaint and Notice of Hearing issued on October 31, 2002. Respondent allegedly
violated the terms of that agreement in the following particulars:

By continuing its rules against talking about wages and no
solicitation or distribution:
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As shown above from September 1, 2001 Respondent maintained the following
rules in its employee handbooks:

All employee’s pay is a matter which shall be kept confidential and only
discussed between the employee and their immediate supervisor who has
responsibility for that area.

Employees are not permitted to solicit other employees for funds, contributions,
sales, membership, or other purposes during the employee’s working time or at
any other time if such solicitations interfere with other employees who are on
working time, lunch, or breaks. In addition, distribution of literature, documents or
any other type of written material is not permitted on company property at any
time.

Billy Smith was hired as a groundskeeper on July 29, 2002. Judy Upton gave the
orientation lecture to Billy Smith. She told Smith and the others attending that lecture
that the rule in the employee handbook against talking about their wages would not be
enforced.

Other evidence including the testimony of Charles Talkington and Darrell
Hanover shows that Respondent never said anything to them, or distributed a new or
revised no talking rule or no–solicitation rule, or issued a new handbook during 2002
showing a change in either its rule against talking about wages or its no–solicitation
rule. Moreover, there was no evidence that Respondent advised any employees in 2002
that it had rescinded its no–solicitation rule.

Credibility:

I found the testimony of Billy Smith and Darrell Hancock was credible regarding
Respondent’s actions after the settlement regarding its no talking about wages and no
solicitation rules. Their testimony was not seriously contested and was supported by the
record as a whole.

Findings:

The record evidence shows that Respondent maintained unlawful no talking
about wages and no solicitation rules before the November 2001 discharges of

3 The complaint alleges that Respondent, by maintaining the no talking about wages and no solicitation rules
after entering into the settlement agreement, (1) refused to comply with the terms of the settlement
agreement; and (2) engaged in violation of Section 8(a)(1) of the Act.
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Talkington, Stanley and Hancock. After entering into the June 2002 settlement
agreement four things occurred:

(1) Respondent posted an official NLRB notice that stated, among other
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WE WILL NOT make, maintain, or enforce any rule that prevents you
from discussing pay rates with each other.
WE WILL NOT make, maintain, or enforce any overly broad solicitation or
distribution rules.
WE WILL rescind our rule prohibiting employees from discussing their
wages with one another, and WE WILL revise our solicitation and
distribution policies to insure that they comply with the National Labor
Relations Act.

(2) Respondent did not immediately change its existing employee handbooks
nor did it notify its incumbent employees of changes in that handbook.

(3) Respondent did immediately advise all incoming employees during
orientation lectures that its handbook rule regarding no talking about
employees wages was no longer in effect and should be disregarded.
According to the credited testimony of Billy Smith, when he was hired in
July 2002 Respondent gave him a handbook that had the section
prohibiting talking about employees’ pay, crossed out.

(4) Respondent issued a new handbook in January 3003 which rescinded its
rule prohibiting employees from discussing their wages with one another
and which revised its no solicitation rule to comply with the National Labor
Relations Act.

Counsel for General Counsel contended that Respondent violated the Act and
the terms of its settlement agreement by refusing to immediately advise incumbent
employees as well as all new employees, of its rescission its broad no solicitation rule.
After the June settlement it did nothing regarding that rule until a new handbook issued
in January 2003. As to the no talking about wages rule, the credited record shows that
Respondent did nothing other than post the NLRB notice, to show incumbent
employees that it had rescinded its rule, until it issued its new handbook in January
2003. Respondent did advise new employees during the time between its June 2002
settlement and the end of 2002, they should disregard the handbook rule prohibiting
employees from discussing their pay. General Counsel argued that failure to act in full
accord with the settlement for a period 6 months constitutes a violation of the settlement
(Twin Cities Concrete, Inc., 317 NLRB 1313 (1995).

In find that Respondent failed to notify its incumbent employees that it had
rescinded the no talking about wages rule within a reasonable time after its June 2002
settlement. I find that Respondent failed to notify any of its employees that it had
rescinded its no solicitation rule within a reasonable time after its settlement. By failing
to notify all its employees of those changes Respondent violated the terms of its
settlement agreement and violated Section 8(a)(1) of the Act.
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By changing the terms and conditions of the employment of the
reinstated employees:4

Talkington recalled that Judy Upton spoke when him, Stanley and Hancock when
they returned to work on March 18, 2002. Upton told the three of them that James
Higdon would no longer be their supervisor and that Higdon wouldn’t have anything to
do with them. Instead their supervisor would be Tim Miller. Moreover, the three would
no longer be allowed in the buildings. All their work was outside. Darrell Hancock did not
recall everything that happened in the March 18 meeting with Upton. He did recall her
saying that Tim Miller would be their supervisor.
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Judy Upton testified that she met with Hancock, Talkington and Stanley when
they were reinstated in March and she told them their supervisor would be Tim Miller.
She denied that she said anything about James Higdon. She did not say that Higdon
had been taken out of supervision. Indeed, according to Upton, Higdon maintained his
supervisory duties and he occasionally directed the work of Hancock, Talkington and
Stanley after March 18. Upton testified that Hancock, Talkington and Stanley were
assigned to work solely outside because spring was coming on.5 Those three were the
only ones assigned to work exclusively outside at that time.6

Hancock recalled Tim Miller told them they were not allowed to enter the
buildings and they were not to socialize with other employees. Hancock had engaged in
friendly conversations with other employees before his November 2001 discharge.

Charles Talkington testified that before their November discharge, the three
employees had been allowed to enter all Respondent’s buildings and they had never
been told not to socialize with other employees.

Tim Miller admitted that he told the three that he did not want them going into the
buildings. He denied that he told them they could not talk with other employees but he
admitted that he told them he did not want them standing around socializing with other
employees while they were on the time clock. Miller testified that he tells that to all the
employees he supervises.

After March 18 Hancock along with Stanley and Talkington were required to
clock out and back in after lunch. At the time of their March reinstatement none of the

4 The complaint alleges that Respondent, by changing the terms and conditions of employment of the
reinstated employees, (1) refused to comply with the terms of the settlement agreement; (2) discriminated
against the reinstated employees because of their involvement in the unfair labor practice charge in 10–CA–
33427; and (3) engaged in violation of Section 8(a)(1) of the Act.
5 In that regard it must be noted that all three of the alleged discriminatees were hired in the spring of 2001
(i.e., May, 2001) but none of the three were employed exclusively to outside maintenance at that time.
6 Eventually Bill Smith was assigned to work outside maintenance. Smith was hired on July 29, 2002. At that
time he was assigned both inside and outside maintenance work. Upton testified that was because of lack of
communications and that Smith was subsequently assigned to work only on outside maintenance. After
being assigned to do outside maintenance Smith worked under the same conditions as other outside
maintenance employees.
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other maintenance employees were required to do that and Hancock, Stanley and
Talkington had no such requirement before being fired in November.

Before November 16 Talkington had an access card for admittance to the liquid
building and he visited that building every workday. Darrell Hancock testified that he too
had an access card to enter the liquid building but he was not given an access card to
that building after he returned to work in March 2002. Hancock testified the three
employees routinely worked in buildings before their discharge.
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Subsequently, the employees asked Tim Miller how they would get their
equipment out of the building without being allowed inside. Miller said he would get back
to them. Miller came back and told the three they would be allowed to go in and get their
mowing equipment but they could not go farther in the building or socialize with other
employees. Talkington testified that he was never given an access card to any of the
buildings after his reinstatement. Eventually, when the gate into the facility became fully
operational, Talkington was given a scan card solely for admission through the gate.

Miller testified that the three employees complained about being limited to use of
the restroom in the guardhouse and Miller arranged for them to use one of the restroom
in the tablet building when that restroom happened to be closer to where they were
working at the time. He also permitted the three to use the tablet building vending
machines and water fountains for breaks when that location was more convenient than
the guardhouse. After a complaint from the three Miller arranged for tables and chairs in
the vending machine area of the guardhouse. Miller testified that all employees under
his supervision have access to the tablet building but not to the other buildings. Miller’s
employees are all required to clock out for lunch.

Billy Smith was hired as a groundskeeper on July 29, 2002. At first Smith was
assigned both indoor and outdoor work but now he is strictly outdoor. No one has told
him that he could not socialize with other employees.

The maintenance shop was located in the liquid building. Before November
Talkington used the liquid building break area. He talked with production employees
about personal matters in both the liquid and pill buildings. His job before November 16
included maintenance work, which was routinely in the liquid building, the pill building,
the warehouse and outside. Before November 16 he was never told to confine his
activities to one area of the facility or to avoid talking with other employees. Before
November 16 Talkington did not mow grass.

Darrell Hancock testified that he has observed two other employees, Kevin
Castle and Donnie Batts, doing outside grounds maintenance work including mowing
and he has also observed both of them regularly going into various buildings at
Respondent’s facility.

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James Higdon testified there are currently two groundskeepers7 and he
supervises them. He testified they are allowed to take breaks including lunch breaks
anywhere including in the tablet building. Both those employees are required to clock
out for lunch.
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A couple of months after returning to work Talkington called Tim Miller to report
that he was sick and would not be in to work. Miller was not in and Talkington left word
with the receptionists. Later that day, Miller phoned Talkington and told him that he must
talk with Miller when he called in sick and he was not allowed to leave word with anyone
else. Hancock recalled Miller telling him, Talkington and Stanley they must talk with him
when absent from work.

Miller told Talkington that he would have to bring a doctor’s excuse when he
returned to work the next day. Charles Talkington heard from other employees they
had not had to bring in doctor’s excuses for being out sick. He had a doctor’s excuse,
which he gave to Tim Miller and he asked Miller how come he had to bring a doctor’s
excuse when other maintenance employees did not. He complained that he should not
have to go see a doctor and bring in an excuse if the other maintenance employees
were not required to do the same. Miller said all right.

Credibility:

There are instances where testimony is not in dispute. I credit the testimony of
Charles Talkington and Darrell Hancock regarding their meeting with Judy Upton on
March 18 and their first meeting with Tim Miller, to the extent Upton or Miller did not
dispute their testimony. Moreover, as noted below, I have made credibility findings as to
specific points where there is a dispute.

Findings:

The credited testimony shows that Talkington, Hancock and Stanley were not
assigned to their former jobs when they were reinstated in March 2002. For example the
three employees were assigned to work exclusively outside even though before their
discharge they worked both inside and outside. Moreover, the three were assigned to
work under a different supervisor and Tim Miller instructed the three employees they
were not to go into the buildings and they were not to socialize with other employees
while on the clock. Before their November discharges the three were not restricted from
going into buildings and they were not prohibited from socializing while on the clock.
Employee Billy Smith was hired as a maintenance employee after the three were
reinstated and Smith was not restricted in socializing with other employees. Hancock
observed employees Kevin Castle and Donnie Batts doing outside grounds
maintenance work including mowing and he observed both of them regularly going into
various buildings at Respondent’s facility.

7 When reinstated on March 18, 2002 Hancock, Stanley and Talkington were all assigned the jobs of
groundskeepers.
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The three were required to clock out and in for lunch break after their
reinstatement. That was not the practice before their November discharges. Neither
Talkington nor Hancock was given an access card to the liquid building after their
reinstatement although each had an access card before their discharge. The three were
not restricted to going no farther into the building than necessary to get their equipment
before November 2001. That was the practice after their reinstatement. The three were
not restricted to using only the guardhouse restrooms nor were they restricted to any
other restrooms before November 2001. As shown above, the three were restricted to
the guardhouse restrooms for a time after their reinstatements.
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The three were not restricted to using only specified break areas before
November 2001. They were restricted to using only the guardhouse break area after
their reinstatement. James Higdon testified there are currently two groundskeepers and
he supervises them. He testified they are allowed to take breaks including lunch breaks
anywhere including in the tablet building.

Talkington was not required to bring a doctor’s excuse for absence due to illness
before his November discharge and Tim Miller did not dispute Talkington’s assertion to
him that other employees were not required to bring a doctor’s excuse for absence due
to illness, after he was reinstated.8

As shown above, Respondent agreed in its settlement, that it would be bound by
the terms of the Notice. As to reinstatement, the notice provides,

WE HAVE reinstated Charles Talkington, Darrell Hancock, and Charles Ray
Stanley to their former jobs without prejudice to their seniority or other rights and
privileges enjoyed.

The credited evidence shows that Respondent did not reinstate Talkington,
Hancock and Stanley to their former jobs. I find that Respondent violated the terms of its
settlement agreement and continued its violation of Section 8(a)(1) of the Act by failing
to reinstate Talkington, Hancock and Stanley to their former jobs.

8 In making the above finding, I distinguish that from the situation that subsequently developed after
Talkington complained about injuring himself on the job. After his injury he was asked to supply Respondent
with doctor’s excuses regarding his absences and there was no evidence showing that was not
Respondent’s routine practice following on the job injuries. Therefore, I specifically find that Respondent did
not violate the terms of its settlement agreement and it did not commit unfair labor practices, when it
required Talkington to supply excuses from his physicians after he complained about an on the job injury.
Moreover, I specifically find that Respondent did not violate the terms of the settlement agreement and it did
not engage in unfair labor practices by requiring Talkington to abide by its notice of absence rule to the
extent that rule had been modified by Talkington’s supervisor. His supervisor had directed him to call one
and a half hours after his shift started as opposed to one hour after his shift started.
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By discharging Charles Talkington:9

There is no dispute but that General Counsel must prove that Respondent was
motivated to discharge Talkington because of its animus against him for his protected
activity which may include his action in unfair labor practice charges settled by
Respondent in June 2002. If General Counsel successfully satisfies that requirement,
Respondent may defend by showing that it would have discharged Talkington in the
absence of those protected reasons (Manno Electric, 321 NLRB 1, fn. 12 (1996);
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899(1
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st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393
(1983)).

The situation that led to Talkington’s second discharge started when he was
allegedly injured at work in June 2002 while trying to start a weed–eater. He didn’t
realize his back was hurt even though he had pain in his shoulder and neck. He filled
out an accident report on the day after the injury. After first telling Judy Upton that he
didn’t need a doctor, pain from his neck, shoulder and lower back increased and James
Higdon took him to see a doctor.10 After returning from the doctor Higdon told Talkington
to do some bush–hog work.11 Talkington did the bush–hog work the remainder of
Thursday and all day Friday. When he woke on Saturday, the pain had increased. On
Sunday the pain was even worse. Talkington returned to the doctor on Monday June
24. The doctor took him off work for three days and told Talkington to return and see
him on Wednesday.

Talkington phoned Upton and reported what the doctor has told him. Upton
phoned back and told Talkington he had been released to see his family doctor.12 After
some difficulty Talkington saw another doctor and eventually started treatment with Dr.
Charles Bradford. Talkington testified that he routinely phoned Upton and reported each
time he saw a doctor. His last call was to Ms. Upton on July 15.

Upton denied that she told Talkington he had been released for treatment by his
family physician. However, she had a conversation with the physician that Talkington
was referred to by Respondent. That physician told her that he mentioned to Talkington
that he may need to have his back injury treated by his family physician because it was
not included in the workman compensation claim.

On July 15 Talkington told Upton that his doctor had taken him off again for that
week. Upton said that Talkington was fired. She said that he ran out of leave time on
Wednesday of the week before and had not called in on Thursday or Friday. Talkington
protested that he didn’t know he was taking leave and that his doctor’s excuses should
have covered his time off. Upton replied that his doctor’s excuse was saying that he was

9 The complaint alleges that Respondent, by discharging Talkington, (1) refused to comply with the terms of
the settlement agreement; (2) discriminated against Talkington because of his involvement in the unfair
labor practice charge in 10–CA–33427; and (3) engaged in violation of Section 8(a)(1) of the Act.
10 The evidence is in dispute as to when Talkington first mentioned his back injury.
11 This assignment was made for light duty purposes. Talkington was not required to do any lifting while
operating the bush hog.
12 Upton denied this testimony.
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supposed to return to work on July 8 but he had not returned to work and his leave time
had expired. He said that she should have received the doctor’s excuses faxed from the
doctor’s office and if they had not received those excuses he would check with the
doctor. Upton said there was no use in his checking and that he was fired.
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Nevertheless, Talkington went to his doctor’s office that same day, July 15, and
had them fax his excuses to Respondent (GCExh. 7). He made several more phone
calls to Upton but Upton never told him anything about the reason for his discharge
other than he ran out of leave. Talkington also raised a question as to whether he was
accorded rights under the Family Medical Leave Act. Upton replied that she was familiar
with that act.

Talking testified that Upton never mentioned anything about the time of day
Talkington phoned on July 15 being a problem. Talkington subsequently received a
letter from Upton (GCExh. 8) stating:

Vintage Pharmaceuticals, Ins. is accepting July 15, 2002 as your effective
date of resignation.
According to our handbook you are required to call and speak to your
immediate supervisor or a member of management within 1 hour of your shift if
you are not reporting to work for the day. According to our records you did not
call in and report off within the time frame on July 15, 2002 according to company
policy.
Therefore, in accordance with your Receipt of Handbook signed we
accept your voluntary resignation effective July 15, 2002. (GCExh. 8)

Judy Upton testified that she received notice that Talkington had a doctor’s
excuse for absence thought June 26. However, Talkington did not show up for work and
he did not phone regarding his absence on June 27, 28 or 29. According to Upton
Talkington could have been discharged for absence for failure to call in on June 27 and
on several occasions thereafter. However, due to the circumstances of his being
reinstated Respondent did not discharge him.

She denied that Talkington phoned her on July 1. Upton testified that she was
out of town on July 1, 2 and 3.

Upton testified that Talkington next phoned her on July 8. Talkington told her that
the doctor had written him off for another week. She replied that she had not heard from
him. Talkington responded that he had his doctor’s excuses in his lunch pail. Upton told
him that she needed those excuses. Talkington said that he would have the doctor fax
the excuses to her.

Judy Upton identified a July 11 note in Charles Talkington’s file (RExh. 14) to the
effect that she had received a doctor’s phone call stating Talkington was free to return
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to work on July 8. She also received a faxed doctor’s excuse (RExh.15) stating that
Talkington was free to return to work on July 8.13

During the week of July 8 employee Paul Higdon reported to Upton that he had
seen Charles Talkington working on his house. He said that he had seen Talkington
carrying sheet rock. Upton initiated an investigation and an investigator was hired.
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Jerry McDaniel is a private investigator. He was hired by Respondent to check
out Charles Talkington. Paul Higdon accompanied him to Talkington’s house on July 10,
2002. Two individuals were working on an addition to the house. Higdon pointed out
Charles Talkington.14 McDaniel saw Talkington carrying a ½ piece of sheetrock or wall
paneling. McDaniel returned to Talkington’s house the following day. On that occasion
he saw Talkington cleaning an aboveground swimming pool. Talkington had what
appeared to be a long brush and broom with a vacuum hose attached which he used in
cleaning the bottom of the pool.

Upton next received a phone call from Talkington about 9:20 a.m. on July 15.
She told him she had not received his doctor’s excuses and also that he had not called
in within the time frame and that he was being terminated (RExh.16). Upton told
Talkington that the only excuse she had for him showed that he could return to work on
July 8. Judy Upton denied that she ever received the doctor’s excuses identified as
General Counsel Exhibits 3, 4 and 5.15 After Talkington was terminated Upton received
a doctor’s excuse showing that he could return to work on July 23 with restrictions
(RExh.19).

Judy Upton made the decision to terminate Charles Talkington. She testified that
she relied on his failure to phone in violation of Company policy, Talkington’s failure to
supply Respondent with appropriate doctor’s excuses and the information she received
regarding Talkington working on his home.

Credibility:

There were some concerns about the testimony of Judy Upton. Her testimony is
in dispute as to several material points. Moreover, it is apparent that she gave different
reasons for Talkington’s terminations at different times. Nevertheless, there was
evidence that Charles Talkington failed to give notice for several absences in June and
July; supporting probative testimony was lacking as to many of the instances where
Talkington alleged he had been supplied with doctor’s excuses; and Talkington did not
dispute testimony that he lifted material while working on his home after he had
requested absences due to an alleged on the job injury and at least one doctor had

13 As shown herein, GCExh. 3 was purportedly signed by Dr. Charles R. Bradford, is dated 7–1–02 and states
that Charles Talkington is under his care and is able to return to work on 7–8–02.
14 McDaniel identified Talkington in court.
15 GCExh. 3 is a July 1 excuse purportedly signed by Dr. Charles R. Bradford that states that Charles
Talkington is able to return to work on 7–8–02. GCExh. 4 is a July 6 excuse purportedly signed by Dr.
Charles R. Bradford that states that Charles Talkington is able to return to work on 7–15–02. GCExh. 5 is a
July 12 excuse purportedly signed by Dr. Charles R. Bradford that states that Charles Talkington is able to
return to work on 7–22–02.
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instructed him to avoid lifting anything heavier than 15 pounds. Therefore, the record as
a whole supported the three reasons Upton gave at the hearing for her discharge of
Talkington.

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Counsel for General Counsel argued among other things that Upton’s
inconsistency in stating why Talkington was discharged illustrated that she was not
truthful and that Talkington was actually discharged for protected activity. I have
considered those arguments and agree that Upton’s inconsistency in stating why
Talkington was discharged does tend to show that she was not completely truthful.
However, as shown herein, the record shows that Talkington failed to comply with
Respondent’s rules regarding both call–ins on days of absence and supplying excuses
from physicians. Therefore, I am convinced on the basis of that other evidence that
Talkington’s actions were grounds for discipline including discharge. As to what effect
that should have on the credibility of Ms. Upton, I am convinced that she did give
different reasons at different times for Talkington’s discharge. Nevertheless, I am not
convinced that she was testified untruthfully.

In reaching that conclusion, I have in large measure, looked to the other issue
raised by General Counsel. That was that Upton was hiding the true motivation behind
Talkington’s discharge and the actual motivation was based on his protected activity. In
that regard General Counsel argued that it was Talkington’s threat to go back to the
Labor Board about his discharge that actually prompted Respondent to go through with
the discharge. I am convinced that was not what happened. Instead the evidence
showed that Respondent had made the decision to discharge Talkington before he
allegedly threatened to go back to the Labor Board. Even Talkington testified that Upton
told him he was terminated before he threatened to go to the Labor Board. Moreover,
there was an occurrence that overshadowed other events in the discharge incident.
That occurrence was Respondent’s discovery during the week before July 15 that
Talkington was working on his home while absence allegedly because of on–the–job
shoulder, neck and back injuries.

The record established without contest that Respondent learned Talkington was
working on his house during the week of July 8 and that it hired an investigator and
received a report showing that Talkington was indeed working on his house and that he
had engaged in lifting in apparent violation of doctor’s orders.

Therefore, I credit Upton’s testimony despite the problems noted above.

Findings:

I must first question whether General Counsel proved that Respondent was
motivated to discharge Talkington because of animus against his protected activity. The
record shows that Talkington engaged in protected activity by discussing his wage
increase with two other employees in November 2001. There is no question but that
Respondent learned of that activity. Nor is it disputed that Respondent took adverse
action by discharging Talkington because he engaged in protected activity. As shown
above there is evidence that Respondent refused to abide by the terms of its settlement
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agreement by assigning Talkington, Hancock and Stanley to a different job when they
were reinstated on March 18, 2002.

Additionally, Counsel for General Counsel argued that Respondent’s failure to
discharge or caution Talkington before July 15, regarding his alleged absences without
proper notification and without providing all appropriate doctor’s excuses, supported its
case against the discharge. However, there was no showing that anything occurred in
the nature of unlawful motivation, on or shortly before July 15, which caused
Respondent to change from a policy of leniency to one of violation of law. The only
factor shown to have happened proximate to Talkington’s discharge was the discovery
that Talkington was working on his home while out with an alleged injury. However,
such activity is not protected under the Act and there was no showing that Respondent
engaged in unlawful activity by learning of Talkington’s work at home or in using that
information to justify Talkington’s discharge. Therefore, I reject that argument by
Counsel for General Counsel.
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Nevertheless, if view of the full record I am convinced that General Counsel
made a prima facie showing that Respondent was motivated to act out of animus
against the protected activities of those three employees.

Under the applicable law I shall consider whether Respondent proved that it
would have discharged Talkington in the absence of his protected activities. Judy Upton
testified that Respondent relied on three factors in deciding to discharge Talkington.
First, he was in violation of its rule requiring notice of absence within one hour of the
start his shift. Two, Talkington failed to supply Respondent with several doctor’s
excuses even though he was claiming injury under workmen’s compensation. Three,
evidence illustrated that Talkington was engaged in fraud by performing heavy labor on
his residence at the very time he was claiming he was unable to work for Respondent
due to a workmen’s compensation injury.

The employee handbook introduced by Counsel for General Counsel
(GCExh. 9)16 states as follows:

Anytime personal circumstances are such that you the employee will be
late or miss work for an acceptable reason, you must contact your SUPERVISOR
OR A DISIGNATED MEMBER OF MANAGEMENT within one hour after the
beginning of your shift. MESSAGES LEFT WITH OTHERS WILL BE
CONSIDERED A “NO CALL”. Failure to call within this one hour will result in
loss of pay for the day or termination.
Should absence due to illness occur, a physician’s statement may be
required. For prolonged illness, illness where emergency room treatment has
been rendered, minor surgery is involved, injury requiring crutches, braces or
supports or an illness requiring a hospital stay, a written physician’s statement of

16 There was a dispute as to which was the applicable handbook in effect on July 15. One of the disputed
handbooks showed that failure to call in would result in termination while the other disputed handbook
showed that a failure to call in might result in termination or loss of pay.

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complete release (NO special circumstances, light duty, etc.) must be provided
before you may return to work.

The evidence regarding Talkington’s July discharge showed that he was subject
to both the above rules. He, like all employees, was subject to the one–hour call–in rule.
In his case he had been told by Tim Miller that he could call Miller an hour and a half
after his shift started in view of the fact that Miller was routinely in a meeting and
unavailable to answer calls until 8:30 a.m. However, that extension of time to call played
no part in Talkington’s discharge. There was never a question of him calling–in during
the period leading up to his discharge within the hour and a half permitted by Miller.
Instead the evidence showed that Talkington failed to notify Respondent by calling
within one and a half hours of his shift start time on several occasions including on July
15 when he called Upton at 9:10. That was well over 1 and half hours after his shift
started.
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Additionally, the record is undisputed that Upton advised Talkington to provide
doctor’s excuses for his absences after his June 20 injury. Despite several request from
Judy Upton several excuses were not supplied until after Talkington’s July 15 discharge,
and the excuses supplied to Upton showed that the physician certified that Talkington
was able to return to work on July 8. The credited evidence showed that Talkington did
not provide a doctor’s excuse for missing work on July 8 or thereafter until long after he
was told of his discharge.

I find that Respondent was correct in its contention that Talkington was required
to satisfy both the call–in rule and to provide doctor’s excuses for the time he was
absent after his injury and that he frequently failed to satisfy both those rules in June
and July.

In consideration of the fact that Talkington was required to give notice before
8:30 a.m., the evidence does show that Talkington failed to show up for work on June
26, 27 and 28, 2002 without calling in. Talkington testified that he did phone Judy Upton
on July 1 to report that he would be out that week at the directions of a physician.
However, Upton testified and provided supporting documentation, that she was out or
town and not in her office on July 1, 2 or 3, 2002 and that she did not receive a call from
Talkington. She testified that Talkington missed July 1 through July 5 without proper
notice. In view of her testimony and the supporting documentation and the fact that I
have credited the testimony of Judy Upton, I find that she was out of town from July 1
through July 3 and that she did not receive a July 1 notification phone call from
Talkington.

Talkington called Upton on July 8 and Upton received a doctor’s excuse showing
that Talkington was able to return to work on July 8. Talkington did not phone in as
required on July 9, 10, 11 or 12.

Charles Talkington next phoned Upton on July 15. At that time Upton told him
that he had been discharged.

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Respondent proved that it has routinely discharged employees and a supervisor
for failing to call in absent under its rule. With the exception of Charles Talkington, there
was no showing that Respondent has ever permitted anyone to miss several days
without calling in as required by its rules.
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Next, there was a question of Talkington supplying doctor’s excuses. I credited
the testimony of Judy Upton that she told Talkington that she needed those excuses.
Talkington missed work from June 26 through 28, from July 817 through 12 and on July
15 without providing Respondent with a doctor’s excuse. As shown above he was
required to supply those excuses under Respondent’s rules.

Finally, there was no dispute that first one of Respondent’s management
employees, then an investigator hired by Respondent, saw Talkington engaged in labor
at his home while he was out due to an alleged workmen’s compensation injury.18 As
shown above, that evidence showed that Talkington worked at his home during the
week of July 8 at the time when he was absent from work allegedly because of his
work–related injury.

As shown above, Counsel for General Counsel argued that Judy Upton gave
conflicting reasons for Talkington’s discharge. He pointed to Talkington’s version of his
July 15 phone conversation with Upton; Upton’s note regarding that phone call (GCExh.
16); the termination letter and Respondent’s failure to call William Pannell to corroborate
Upton’s version of the July 15 phone call. I have considered General Counsel’s
argument and I do note that while Upton did not give conflicting reasons for discharging
Talkington, she did fail to give all the reasons for his discharge on any one
correspondence with Talkington. Instead she gave three reasons for the discharge but
those were first given together at the hearing. That tends to show that Upton was
concerned about a claim that Talkington was being discharged because of protected
activities. After all, Talkington had successfully made that same claim when he,
Hancock and Stanley were discharged in November.

Nevertheless, I am not persuaded that Upton’s different accounts of why
Talkington was discharged discredited Respondent’s point that it would have
discharged Talkington in the absence of his protected activities. The credited evidence
does show that Talkington engaged in all the activities ultimately claimed as bases for
his discharge. He did miss several days’ work without giving notice before 8:30 on the
day he missed work. He did fail to provide Respondent with several excuses by
physicians even after Upton specifically asked for those excuses. He was shown to
have engaged in physical labor including lifting at a time when he was claiming to
Respondent that he was unable to work.

I find the evidence is convincing that Respondent was lenient toward Talkington
until it discovered that he was working at home while claiming to be unable to work for
Respondent.

17 Both General Counsel and Respondent offered statements from Dr. Charles Bradford showing that
Talkington was able to return to work on July 8, 2002.
18 Talkington did not deny that he worked on his home while off work because of an alleged injury.
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In view of the above and the full record, I am convinced that Judy Upton was
justified in discharging Talkington on July 15 despite his earlier participation in protected
activities. I find that Respondent proved that it would have discharged Charles
Talkington in July 2002 in the absence of his protected activity and I find that
Respondent did not engage in unfair labor practices by discharging Talkington on that
occasion.
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19 (Yuker Construction Co., 335 NLRB No. 28 (2001)

Failed to grant wage increases in May 2002:

Charles Talkington started working for Respondent around May 2001. He
received a pay raise in November.

Darrell Hancock received one raise in 2001. He received that wage increase
before his discharge. Subsequently he received one more raise on January 6, 2003.

Credibility:

In view of my below findings, I am convinced that Judy Upton’s testimony more
accurately reflects Respondent’s policy regarding pay increases and I fully credit her
testimony in that regard.

Findings:

General Counsel argued that Human Resource Manager Steve Spray told
Charles Talkington and Darrell Hancock when they were initially hired in May 2001; they
would receive wage increases after 90 days, 6 months and 1 year from the date of hire.
There was no testimony in conflict regarding what Spray said to Hancock, Stanley and
Talkington. Steve Spray did not testify.

However, Judy Upton testified that Respondent’s policy was to give evaluate
employees within 6 months of hire and thereafter, to evaluate that employee one year
from the date of his or her first evaluation.

Testimony and documents in evidence show confusion as to Respondent’s
actual policy. As pointed out by Counsel for General Counsel, five employees received
pay increases within one month of hire. Thirty employees were hired after April 9, 2001,
and all 30 received some wage increase within the first year of hire. Twenty–nine of the
30 received a wage increase within 6 months of hire. Counsel for General Counsel
pointed out that 13 of those 30 received another wage increases within one calendar

19 As shown above, Respondent engaged in unfair labor practices by failing to reinstate Talkington, as well as
Hancock and Stanley, to his former job as required in the settlement agreement. However, that action had
no proximate relationship to Talkington’s discharge. I find that Respondent did not commit an unfair labor
practice by discharging Talkington on July 15 even though it had failed to properly reinstate him.
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month of their first wage increase. Twelve of the 30 received no wage increase other
than their initial wage increase.

In view of the full record I am not convinced that Respondent discriminated
against Talkington, Hancock or Stanley by denying a wage increase. There was no
evidence that the three failed to receive a wage increase before their November 2001
discharge. In fact the testimony clearly established that Hancock and Talkington at
least, did receive a wage increase before their discharge in November.
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Moreover, there was no showing of animus against the three at any time before
their November discharges. Therefore, there was no proof that Respondent acted
unlawfully in failing to grant a wage increase to Talkington, Hancock or Stanley before
the end of their first 6 months of employment. Moreover, the November increases for
Hancock and Talkington support Judy Upton’s version of Respondent’s policy. As
shown above she testified that employees receive their first evaluation within 6 months
of hire. That evidence tends to refute the reported comments by Steve Spray.20 During
the time when Respondent had no reason to discriminate against them, Hancock,
Stanley and Talkington did not receive a 90–day pay increase. Instead two and perhaps
all three, received wage increases within 6 months of hire. That was in accord with the
policy explained by Upton.

The record showed that although Darrell Hancock did not receive notice of his
next pay increase until January 2003, his wage increase was retroactive until December
1, 2002.

According to Upton’s version of Respondent’s policy, Hancock should have
received an evaluation within a year of his November 2001 pay increase. Even though
he did not receive a raise until January 2003, Upton testified that he was evaluated in a
timely manner and it was because she was burdened with work due in part to personal
problems, that Hancock’s raise did not come through until January. Nevertheless, the
raise was made retroactive to December 1.

In view of that evidence I am not convinced that Respondent discriminated
against any of the three alleged discriminatees by depriving them of a pay increase,
which would have been granted in the absence of their protected activity. Therefore, I
find that Respondent did not act unlawfully in failure to grant wage increases to
Talkington, Hancock or Stanley.

20 In that regard I find it is not necessary to determine whether Steve Spray actually made those comments to
Talkington, Hancock and Stanley. If he made the comments, my findings herein show his comments were
inaccurate and in view of the evidence showing Respondent’s actual practice, Spray’s comments, if made,
would not be binding on Respondent.
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Issued a written warning to Charles Talkington in May 2002:21

Charles Talkington received a write–up (GCExh. 2) dated May 17. James Higdon
testified that he gave the warning to Talkington. After issuing instructions to cut along
the railroad Charles Talkington asked Higdon why they were stuck with that job. Higdon
responded they were not stuck with that job; it just had to be done. Higdon felt that
Talkington was argumentative. That was Higdon’s only occasion to award that type
warning.
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The incident started while Charles Stanley was weed–eating. Stanley requested
that Talkington ask James Higdon if it was all right for Talkington to get the bush–hog
because the grass where they were at the railroad track was too high to handle with the
weed–eaters. Talkington went to Higdon and Higdon said that he would get with Mr.
Proach to see if it would be all right to take the tractor and bush–hog down there.
However, Higdon did not return.

Talkington, Stanley and Hancock then went over to the pill plant to see their
supervisor, Tim Miller. They asked Miller if he wanted them to go on with the work at the
railroad track. Miller said that he knew nothing about that and for them to go back to
their other work until he got with Proach or Higdon.

That afternoon Stanley told Talkington that Higdon was bringing the tractor.
Talkington went over and asked Higdon how the three of them got stuck doing that work
at the railroad when they had all they could do with their regular work. Higdon raised his
voice and told Talkington that he didn’t get stuck doing that and that his men had all
they could do too. Charles Talkington admitted that he then raised his voice with Higdon
but he denied that he argued with Higdon.

While Talkington was back at the guard shack that afternoon to clock out, Tim
Miller came to him and said they were going to have a meeting in the pill plant. When
they arrived Judy Upton and James Higdon were sitting in the pill plant conference room
and Upton gave Talkington a write–up (GCExh. 2). Miller told Talkington that it was a
write–up for using argumentative language with Mr. Higdon. Talkington said to Upton
that she had told him that Higdon would no longer be their supervisor and that when he
had been Talkington’s supervisor Higdon had told Talkington not to take orders from
another supervisor. Upton replied, “If any supervisor told us to do a job, for us to go and
do it.” Upton told Talkington to write comments on the write–up and sign it.

21 This matter occurred before the June 2002 settlement and is not alleged to involve a refusal to abide by the
terms of that settlement. Instead it is alleged simply as an unfair labor practice on two grounds. First General
Counsel alleged that Talkington was engaged in protected concerted activity by questioning the work
assignment to all three employees. Second, General Counsel alleged that Talkington was warned because
of his involvement with the earlier unfair labor practice charges.
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Judy Upton was present when Talkington was given the warning (GCExh. 2).
She testified that Talkington denied that he had argued with Higdon.

Credibility:
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I credit the testimony of Charles Talkington to the extent his testimony was
confirmed by the testimony of James Higdon. Talkington, as well as Higdon, testified
that Talkington was warned after he raised his voice in questioning Higdon as to why
were “we stuck with that job.” I also credit Talkington’s testimony that he did not argue
with Higdon. Higdon did not dispute that testimony.

Findings:

Counsel for General Counsel argued among other things, that Talkington was
acting on behalf of himself, Stanley and Hancock, when he questioned Higdon on May
17 about how they were stuck with that job. He also argued that Respondent
discriminated against Talkington because of Talkington’s past activities including his
involvement in the filing of unfair labor practice charges, his discussions with others
regarding his wage increase in November 2001 and Respondent’s need to reinstate
Talkington, Stanley and Hancock pursuant to its settlement with the NLRB. I agree with
General Counsel. The full record, as shown above, did show that Respondent was
motivated by animus against Talkington after his March 2002 reinstatement. As shown
above Respondent failed to comply with terms of the settlement and it engaged in
additional unfair labor practices. I find that Respondent was fully aware of all
Talkington’s activities including his speaking on behalf of Hancock and Stanley as well
as himself, when he spoke with James Higdon on May 17.

Moreover, the evidence shows that Talkington was treated in an unusual
manner. James Higdon admitted that he has never before or since, disciplined any
other employee as he did Talkington on May 17. Finally, the evidence clearly illustrated
that Talkington was not argumentative. Not even the testimony of James Higdon shows
him to be argumentative. Nevertheless, that was why he was warned on May 17
according to the warning notice (GCExh. 2).

Finally Counsel for General Counsel argued that where an employee is engaged
in protected activity,22 an employer violates the Act by disciplining that employee unless
the employee’s allegedly protected activity is shown to be “so egregious as to take it
outside the protection of the Act, or of such character as to render the employee unfit for
further service.” Anheuser Busch, Inc., 337 NLRB No. 2, slip opin. p. 16 (2002).

22 I find that Talkington was questioning a supervisor about his and his co–worker’s working conditions and
that is protected concerted activity.
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I find that I need not reach the issue argued by General Counsel involving the
citation of Anheuser Busch, Inc. Instead, I find that Talkington was engaged in
protected activity when he questioned the work assignment to Hancock, Stanley and
himself. As shown herein and throughout this decision, the evidence illustrates that
Respondent was motivated to discipline Talkington because of his protected activity
including his concerted activity on May 17, and Respondent failed to prove that it would
have warned him in the absence of his protected activity (Wright Line, 251 NLRB 1083
(1980), enfd. 662 F. 2d 899(1
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st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983)). Moreover, should I reach
the point argued by General Counsel, I find there was no evidence showing that
Talkington engaged in egregious conduct sufficient to take him outside the Act’s
protection.

Therefore, I find that Respondent engaged in conduct in violation of Section
8(a)(1) by warning Talkington.

Conclusions of Law

1. By unlawfully maintaining and refusing to immediately notify its employees
after settlement of an unfair labor practice charge, that it rescinded its rule against
soliciting on company time, or that it rescinded its rule against talking about wages; by
discharging employees Charles Talkington, Hancock and Stanley in November 2001
because they talked about wages; by failing to reinstate Talkington, Hancock and
Stanley to their former jobs after the settlement; by changing the terms and conditions
of employment of Talkington, Hancock and Stanley after the settlement; and by issuing
a warning to Talkington in May 2002; the Respondent, Vintage Pharmaceuticals, Inc.
has engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.

Although I find that Respondent discriminatorily discharged employees Charles
Talkington, Darrell Hancock and Charles Stanley in November 2001 in violation of
Section 8(a)(1) the record illustrated that Respondent reinstated all three of those
employees with full backpay. Therefore, I shall not recommend that Respondent be
ordered to reinstate the Talkington, Hancock and Stanley with backpay.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:23

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
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JD(ATL)–21–03

ORDER24

The Respondent, Vintage Pharmaceuticals, Inc., its officers, agents, and
representatives, shall 5
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1. Cease and desist from

(i) Maintaining rules prohibiting its employees from talking about
wages or engaging in solicitation during work time or, after settlement of an unfair labor
practice charge, failing to immediately notify all its employees that it rescinded its rules
prohibiting talking about wages or engaging in soliciting during work time.

(ii) Warning, discharging, failing to reinstate to their former jobs after
settlement, changing the terms and conditions of employment of employees involved in
unfair labor practice charges and involved in discussing employees’ wages, or
otherwise discriminating against any employee for discussing employees’ wages.

(iii) In any like or related manner restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of
the Act.

(i) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful November 2001 discharges and the unlawful March 2002
reinstatements, of Charles Talkington, Darrell Hancock and Charles Stanley, and within
3 days thereafter notify the Talkington, Hancock and Stanley in writing that this has
been done and that the discharges will not be used against them in any way.

(ii) Within 14 days after service by the Region, post at its facility or
office in Huntsville, Alabama copies of the attached notice marked “Appendix.”25 Copies
of the notice, on forms provided by the Regional Director for Region10, after being
signed by the Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. 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

24 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
25 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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JD(ATL)–21–03

own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since November 2001.

(iii) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C

___________________________________
Pargen Robertson
Administrative law Judge
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JD(ATL)–21–03

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the 5
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National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board had found that we violated Federal labor law and
has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge, warn, or fail to properly reinstate or otherwise discriminate
against any of you for discussing employees’ wages or because you become involved in
unfair labor practice charges with the National Labor Relations Board.

WE WILL NOT change working conditions of our employees because of their protected
concerted activities or because of their involvement in unfair labor practice charges.

WE WILL notify all our employees immediately upon settlement of an unfair labor
practice charge that we have complied with all requirements of that settlement.

WE WILL immediately rescind a warning issued to Charles Talkington in May 2002,
because of his protected concerted activity and his involvement in an unfair labor
practice charge.

WE WILL NOT maintain a rule against employees discussing their wage rates and WE
WILL NOT maintain a rule against employees soliciting while at work.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

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JD(ATL)–21–03

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges in November 2001 of Charles Talkington, Darrell
Hancock and Charles Stanley and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the discharges will not be used against
them in any way. 5
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25

VINTAGE PHARMACEUTICALS, INC.
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(Employer)

Dated: ________________________ By: _________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret–ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
40
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233 Peachtree Street NE, Harris Tower, Suite 1000, Atlanta, GA 30303–1531
(404) 331–2896, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (404) 331–2877.
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JD(ATL)–21–03

The National Labor Relations Board had found that we violated Federal labor law and
has ordered us to post and obey this notice.
5
10
15
20
25
30
35
40
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge, warn, or fail to properly reinstate or otherwise discriminate
against any of you for discussing employees’ wages or because you become involved in
unfair labor practice charges with the National Labor Relations Board.

WE WILL NOT change working conditions of our employees because of their protected
concerted activities or because of their involvement in unfair labor practice charges.

WE WILL notify all our employees immediately upon settlement of an unfair labor
practice charge that we have complied with all requirements of that settlement.

WE WILL immediately rescind a warning issued to Charles Talkington in May 2002,
because of his protected concerted activity and his involvement in an unfair labor
practice charge.

WE WILL NOT maintain a rule against employees discussing their wage rates and WE
WILL NOT maintain a rule against employees soliciting while at work.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges in November 2001 of Charles Talkington, Darrell
Hancock and Charles Stanley and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the discharges will not be used against
them in any way.

29