VOLVO GROUP NORTH AMERICA, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 30, 2019

15-CA-179071 (N.L.R.B. Apr. 30, 2019)

JD–39–19
Byhalia, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VOLVO GROUP Cases 15–CA–179071
NORTH AMERICA, LLC 15–CA–184912
Respondent 15–CA–195183
15–CA–204842
and
WALTER EVANS,
an Individual
William Hearne, Esq.
Counsel for the General Counsel
Charles P. Roberts, III, Esq.
Counsel for Respondent
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, ADMINISTRATIVE LAW JUDGE. This case was tried in
Memphis, Tennessee during 5 days in July, August, and September 2018. Charging Party
Walter Evans, an individual (Evans), filed charge 15–CA–179071 on June 27, 2016, and
amended the charge on August 17, 2016; General Counsel issued complaint on November 29,
2016. On September 23, 2016, Evans filed charge 15–CA–184912. General Counsel issued a
consolidated complaint and an erratum respectively on December 27 and December 28, 2016.
On March 21, 2017, Evans filed charge 15–CA–195183 and then filed first and second amended
charges respectively on May 30, 2017 and August 22, 2017. General Counsel issued a second
consolidated complaint on September 28, 2017. Evans filed charge 15–CA–204842 on August
22, 2017 and amended the charge on November 30, 2017. General Counsel issued a third
consolidated complaint on April 30, 2018. Respondent filed timely answers.
The ultimate complaint alleges that Evans engaged in protected and/or union activities,
for which Respondent gave him a written warning, suspension, and two terminations in violation
of Section 8(a)(1) and (3) of the Act. It also alleges that Respondent gave the termination in
retaliation for Evans filing charges with the Board, in violation of Section 8(a)(4). Lastly, the
complaint alleges that Respondent violated Section 8(a)(5) by unilaterally changing the buzzer
alert system that tells employees when to stop working in preparation for scheduled breaks,
lunches, and the end of the workday, decreasing the time in which employees had to prepare for
break.
The parties were given a full opportunity to participate in the hearing,1 to introduce
relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire

1Abbreviations in this decision are: “Tr.” for transcript; “GC Exh.” for General Counsel exhibit; R. Exh.”
for Respondent exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for General Counsel brief; and “R. Br.” for
Respondent brief. Tr. 362-363 misidentifies the speakers. The witness answers are labeled as “Judge
Steckler” but are the witness answers.
JD–39–19
2
record, including my observation of the demeanor of the witnesses, and after carefully
considering the briefs filed by the General Counsel and Respondent, I make the following
5
FINDINGS OF FACT2
I. JURISDICTION
Volvo Group North America, LLC, a limited liability corporation, with an office and place 10
of business in Byhalia, Mississippi, receives and ships automotive vehicle parts at its facility
where it annually purchased and received goods valued in excess of $50,000 from states other
than the State of Mississippi. Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find that the United
Automotive Workers and its local, Local 2406 (Union) are a labor organization within the 15
meaning of Section 2(5) of the Act.
II. RESPONDENT’S WAREHOUSE OPERATIONS
Respondent operates a central distribution warehouse for truck parts in Byhalia, 20
Mississippi. Respondent operated a warehouse in Memphis, Tennessee until 2014, when it
relocated to Byhalia. The Byhalia facility is approximately 1 million square feet and significantly
larger than the Memphis facility. Respondent also relocated other warehouse operations across
the country and a number of employees transferred from these locations to the Byhalia
warehouse. At the time of hearing, Respondent employed approximately 500 persons working 25
in this location.
The warehouse has main aisles that permit two-way traffic. The aisles on either side of
the main aisles, where parts are put away and retrieved, primarily have one-way traffic in
alternating patterns with aisles in the middle, or “tunnels,” to permit access to the adjacent aisle 30
traveling in the opposite direction. These aisles are numbered and coordinate with directions to
the industrial workers to put away or obtain parts.

2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather upon my
review and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety of
factors, including, but not limited to, the context of the witness testimony, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not
likely to be an all-or-nothing determination and I may believe that a witness testified credibly regarding
one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed to the party, an adverse
inference may be drawn regarding any factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988).
This is particularly true where the witness is the Respondent’s agent. Roosevelt Memorial Medical
Center, 348 NLRB 1016, 1022 (2006). Testimony from current employees tends to be particularly reliable
because it goes against their pecuniary interests when testifying against their employer. Gold Standard
Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961); Gateway
Transportation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972).
JD–39–19
3
Industrial workers operate various motorized vehicles in their duties. The equipment
includes standing counterbalances, reach trucks and operating platforms called order pickers.
Reach trucks have a forklift mechanism in the front and are used to put heavier parts away in
high level racks.5
Industrial workers receive training and certification for each piece of equipment they
operate. New employees receive 3 days of training. Industrial workers receive retraining or
refreshers every 3 years and may have additional training if they have had an accident or have
been out of the workplace for a period. (Tr. 651.) The training includes review of the equipment 10
safety rules and, if retraining from an accident, how the accident might have been avoided.
Employees are trained to operate the equipment in reverse. Workers are permitted to back in
and out of parking and charging spaces. However, employees also are instructed not to back in
and out of aisles. Part of the certification process requires a trainer to observe the individual
driving the equipment. 15
The warehouse has inbound and outbound distribution, a dock area and Mack truck
parts. Employees from the bulk area on the dock load trains pulled by tuggers. The tuggers
take the trains to the specific areas in the middle of the warehouse. (Braggs, Tr. 115.) The
trains carry in the oldest parts first. The trains are left in the staging area and the tuggers return 20
to the dock. The inbound personnel pick up parts from a staging area and puts parts away in
the shelves. Inbound team members, not the tuggers, pick parts from the same train in the
staging area at one time. Picking is performed with mechanized equipment, not by hand. The
inbound team members then drive the parts and place them in the appropriate location,
scanning each part as they go. The tugger and train return to the dock for reloading while the 25
inbound workers move to the next train. If a part is placed in wrong location, error reports and
multiple parts and location reports are generated. (Tr. 138.)
Outbound personnel select parts from the shelves. This work is frequently performed on
an order picker. Order pickers have a forklift mechanism in the back that the workers use with a 30
wooden crate known as an emballage, in which parts are placed after removal from the shelves.
The emballages are kept in two locations, with a standby area in the shipping dock. The
process starts with the industrial worker obtaining a three-sided wooden crate, or emballage.
The dimensions of the emballage may vary with order size. The employees are issued cards
with an order of items to be picked. The order picker also has a computer that identifies what 35
should be the most efficient route to obtain the items. However, the computer does not identify
when aisles are blocked or congested.
The workers pick the parts for the emballage and place them in the crate. Once the
emballage is complete, the worker travels to a staging area. The outbound industrial worker 40
finds a computer and scans the emballage to be shipped, then obtain the paperwork for it. The
worker then takes the emballage to the shipping dock with attached paperwork and binds a top
to the emballage.3 The sealed emballage is dropped off, and the outbound worker moves on to
preparing and filling the next emballage.
45
The warehouse additionally has a bulk area, in which large parts, transmissions and
engines are stored and shipped out to customers. The Mack truck parts are also kept
separately in the warehouse.

3 On occasion, a worker may need a second emballage to complete an order if the first emballage is
full.
JD–39–19
4
Respondent measures the efficiency of the workers through metrics. Employees, using
their individual identification codes, scan parts and packaging at every stage of production. The
information is kept in the DLX log, which supervisors and team leads may check to see whether
the industrial worker is productive or lagging. One measurement is gap time—the time between 5
scans. Increased gap time may reflect if a worker waiting for others in the aisle, which
decreases productivity. Another cause of gap time may be workers attending meetings or
working more slowly than able. Respondent stressed productivity to employees in meetings
weekly.
10
III. RESPONDENT’S MANAGEMENT TEAM FOR THE BYHALIA WAREHOUSE
During the relevant periods of events leading to Respondent’s disciplinary actions
against Evans, Onur Oncur was the director of the Byhalia warehouse. All managers, including
the inbound and outbound managers, reported to him. 15
Theresa “Tess” Thomas is Respondent’s human resources director for service market
logistics, located at Respondent’s North American headquarters in Greensboro, North Carolina.
She is responsible for the human resources team in North America, including the Byhalia facility.
She supervises several human resources business partners, including Curt Youngdale, the 20
labor relations manager.
From July 29, 2016 until October 30, 2016, Lonny Otto worked as a consultant human
resources business partner. He became the human resources (HR) director for the Byhalia
warehouse on October 31, 2016 through the first week of this hearing. (Tr. 897.) Otto did not 25
report directly to Youngdale but discussed matters with him. Before Otto held this position,
Leslie Thompson was the Human Resources (HR) director for the facility. Duties of the HR
director included ensuring the warehouse’s rules and regulations were followed, taking
disciplinary action when warranted, and acting as Respondent’s representative in step 2
grievance meetings. 30
Robert Buckingham has worked for Respondent since January 2015. He first worked as
an inbound supervisor on the first shift, then the third shift and changing back to first shift in
early 2016. While working third shift, he supervised Charging Party Evans.
35
Kevin Bush, Sr. began working at the Byhalia facility in November 2014, after
transferring from Respondent’s Baltimore facility. He first worked in Byhalia as the operational
support manager, which included maintenance and facility reconfiguration. (Tr. 1004.) He did
not work with Charging Party Evans until January 2016, while he worked as both acting inbound
and operational support manager. After April 11, 2016, Bush worked as the official inbound 40
manager. While working as the acting inbound manager, six supervisors reported to Bush:
Robert Buckingham, Arnold Ayikwei, Shanette Folsom and Max Sims, Lardell Shaw and Marino
Camarishi. (Tr. 1006.) While Bush was acting inbound manager, Derek Hare was the outbound
manager.
45
Bobby Clark, who worked for Respondent for 3 years, is a warehouse outbound
operations supervisor for the last 2 ½ years. In spring 2017, he reported to Derek Hare, the
outbound general manager. His prior position was team lead.
50
JD–39–19
5
IV. THE COLLECTIVE BARGAINING RELATIONSHIP
Local 2406, International Union, United Automobile Aerospace and Agricultural
Implement Workers of America (the Union) represents the industrial workers, including 5
warehouse and clerical workers, in the Byhalia facility. Team leaders are not included in the
bargaining unit.
Respondent and the Union entered into a collective-bargaining agreement, effective
December 17, 2010 through December 16, 2020. (Jt. Exh. 1.) The Agreement prohibits any 10
form of discrimination or restraint by either party against any employee due to membership or
lack of membership in the Union. (Id. at 51, Art. 27, Sec. 2.) Section 2 of the Agreement
provides that management has the right to hire, terminate, promote, or discipline for just cause
and to maintain discipline and efficiency of employees. Respondent documents discipline in
disciplinary action reports (DARs). Discipline for any employee who has seniority can only be 15
disciplined, suspended or discharge for just cause. Disciplinary actions taken 18 months before,
do not count for progressive discipline and “fall off.” (Jt. Exh. 1 at 37, Art. 19, Sec. 1.)
For violations of most of the Rules of Conduct, the parties agreed to 5 steps of
progressive discipline: First, a verbal reminder with a notation to the record; second, a written 20
reminder; third, a written warning; fourth, a 30-day suspension; and, the fifth step, termination.
(GC Exh. 57 at 1–2.) For certain other violations, such as threatening, harassing, intimidating,
or coercing other employees, insubordination, failure to perform job assignment in the
prescribed manner, and sleeping during working hours, an employee who completed probation
would receive at the least a 1 calendar week layoff without pay. (GC Exh. 57 at 2–3.) Serious 25
violations, including but not limited to, falsifying records, theft, and fighting, warrant immediate
discharge. (GC Exh. 57 at 3.)
When Otto joined the facility in January 2017, he directed that managers and supervisors
could issue verbal warnings, written warnings, and written reprimands; if the disciplinary action 30
involved suspension or termination, Otto and human resources would investigate and determine
the appropriate level of discipline. (Tr. 925.) To issue discipline at the appropriate step, a
supervisor or manager must request from HR information of where the individual stands with
progressive discipline. (Tr. 962.) If an employee has no disciplinary action for 18 months,
discipline is removed from progressive discipline. 35
The Agreement includes grievance and arbitration provisions. Article 20, Section 4
states an arbitrator can only deal with issue(s) presented to him if fully grieved. The arbitrator
does not have jurisdiction or authority to change the Agreement’s provisions “or to arbitrate
away in whole or in part any provision of the Agreement either directly or indirectly, under the 40
guise of interpretation.” The arbitrator’s decision is final and binding. The arbitrator also is
restricted to making certain findings:
In rendering a decision involving discipline or discharge because of an
alleged violation of a previously published company rule of employee conduct 45
and attendance, the arbitrator will be restricted to deciding only whether or not
the employee did in fact violate a reasonable rule.
(Jt. Exh. 1 at 40–41.)
50
JD–39–19
6
Respondent also stresses safety. Safety is supposed to come before quality and
production. Respondent and the Union maintain a joint safety committee, which should meet
monthly.
V. ARE TEAM LEADS SUPERVISORS AND/OR AGENTS?
5
General Counsel alleges that team leads are supervisors or agents. One team lead,
Arthur Braggs, allegedly demonstrated animus towards Charging Party Evans. Two current
team leads, Braggs and Deadrick Simelton, and one former team lead (now supervisor) Bobby
Clark, testified.
10
Braggs worked for Volvo since 2011 and became a team lead in 2016. He considered
the team lead, which was not in the bargaining unit, a higher position than industrial worker. His
pay increased approximately $3 or $4 per hour when he became a team leader. His team
usually consists of 15 people when working the third shift. As team lead, he initially worked on
either second or third shift in inbound. He oversees a put away team, the people who put freight 15
into racks, and ensure the right product is put away and promote safety. He monitors the team
by walking around and checking his laptop. (Tr. 108.) His desk is in the middle of the
warehouse; he shares the desk with other team leads and supervisors.
On the day shift, Braggs now has 65 or more industrial workers on his team. Robert 20
Buckingham and Max Sims have been his supervisors on day shift.
The collective-bargaining agreement prohibits “supervisors” from performing bargaining
unit work. Team leads are not permitted to perform bargaining unit work and Braggs was the
subject of a grievance when he did so. Some industrial workers received a monetary award for 25
Braggs’ work in the bargaining unit.
As a team lead, Braggs sometimes attends management meetings when the supervisor
is not present. He does not fill in for the supervisor. Inbound team leads have weekly meetings
with the inbound manager; supervisors do not attend these meetings. (Tr. 128.) The manager 30
gives the team leads information about current events and future developments, which the team
lead is expected to take back to the industrial workers. The information could be construction
work in the warehouse, upcoming town hall meetings, visitors coming to the plant, or changes in
practices. Braggs answers the industrial workers’ questions if he has the information.
35
Deadrick Simelton serves as team lead for Mack and bulk at different times. For a
period, he and another team lead had no supervisor, instead reporting directly to Kevin Bush.
Deadrick Simelton is a team lead on the first shift, 6 a.m. to 2:30 p.m., in the Byhalia
warehouse’s bulk area. He previously worked in the Memphis warehouse as an industrial
worker and served as a union chairman for 4 to 5 years. He moved to Byhalia when the facility 40
opened and became a team lead approximately 1 year later. In March 2017, he reported to
Supervisor Max Sims, who reported to Kevin Bush.
Bobby Clark also served 6 months as team lead before he became a supervisor. He
worked with a team of 12 parcel pickers in outbound. Clark characterized his team lead duties 45
as ensuring that the work was performed in a safety, productive and quality manner.
Respondent held pre-shift meetings each day; the meetings were usually conducted by
the shift supervisor, but sometimes managers conducted the meetings; team leads rarely
conducted meetings. The supervisor told employees generally what to do; the first shift 50
employees were the more seasoned and knew what to do, according to employee Roderick
JD–39–19
7
Simpson. (Tr. 37.) Braggs testified that he conducted daily pre-shift meetings with his team
instead of the supervisor, who was not present for the meeting. (Tr. 114.)
A. Supervisory Status
5
1. Applicable law
Supervisory status is not applied broadly because supervisors do not have rights within
the Act. Chevron Shipping Co., 317 NLRB 379, 381 (1995). Section 2(11) of the Act defines a
“supervisor” as:10
[A]ny individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the 15
exercise of such authority is not merely of a routine or clerical nature, but requires
the use of independent judgment.
Individuals are “statutory supervisors if: 1) they hold the authority to engage in any one of
the 12 listed supervisory functions, 2) their exercise of such authority is not of a merely routine 20
or clerical nature, but requires the use of independent judgment, and 3) their authority is held in
the interest of the employer.” NLRB v. Kentucky River Community Care, 532 U.S. 706, 713
(2001). Supervisory status may be shown if the putative supervisor has the authority either to
perform a supervisory function or to effectively recommend the same. If such authority is used
sporadically, the putative supervisor will not be deemed a statutory supervisor. Coral Harbor25
Rehabilitation and Nursing Center, 366 NLRB No. 75, slip op. at 17 (2018).
Any of the 12 listed supervisory functions require the use of independent judgment.
Independent judgment is defined by the ordinary dictionary meanings of the terms. The putative
supervisor at least acts or effectively recommends such action “without control of others and 30
form an opinion or evaluation by discerning and comparing data.” Oakwood Healthcare, 348
NLRB 686, 692–693 (2006). Judgment is not independent when the putative supervisor follows
detailed instructions (e.g., policies, rules, collective-bargaining agreement requirements). Id. at
693. Nor does independent judgment encompass those actions beyond a “routine or clerical
nature,” sporadic or perfunctory. Id. at 693, citing J.C. Brock Corp., 314 NLRB 157, 158 (1994). 35
If a choice is obvious, the judgment is not independent. Oakwood Healthcare, 348 NLRB at
693.

In applying the Kentucky River 3-part test, the party asserting supervisory status, here
General Counsel, bears the burden of proof. Kentucky River, 532 U.S. at 711–712; Oakwood 40
Healthcare, Inc., 348 NLRB at 687. Lack of evidence is construed against the party asserting
supervisory status. Elmhurst Extended Care Facilities, Inc., 329 NLRB 535, 536 fn. 8 (1999).
Purely conclusory evidence is insufficient to establish supervisory status. Golden Crest
Healthcare Center, 348 NRLB 727, 731 (2006); Volair Contractors, Inc., 341 NLRB 673, 675
(2004); Sears, Roebuck & Co., 304 NLRB 193, 194 (1991). Similarly, supervisory status is not 45
demonstrated when evidence is in conflict or inconclusive. Entergy Mississippi, Inc. 367 NLRB
No. 109, slip op. at 2–3 (2019).
50
JD–39–19
8
General Counsel does not maintain that the team leads hire, transfer, suspend, lay off,
recall, promote, discharge or reward the industrial workers, nor does it maintain that they
effectively recommend such action. The primary functions examined are assigning, disciplining,
and responsibly directing.
5
2. Assign
The definition of assign, per Oakwood Healthcare, 348 NLRB at 689, requires the
individual in question to designate an employee to a place (e.g., location, department), time
(shift or overtime), or giving significant overall tasks to an employee. Entergy Mississippi, Inc., 10
357 NLRB 2150, 2153 (2011). “Responsibility for making work assignments in a routine fashion
does not make one a supervisor, nor does the assumption of some supervisory authority for a
temporary period create supervisory status.” Coral Harbor, 366 NLRB No. 75, slip op. at 17–19
(cites omitted).
15
Team leads conduct pre-shift meetings. On the third shift, Braggs reported to Robert
Buckingham. At the beginning of the shift, the employees understand their specific job duties; if
that duty is different, Braggs told that employee what the job duty would be. On occasion,
Braggs might determine that someone on the team needs to perform a special project, such as
restacking boxes in the warehouse. He selects an industrial worker to perform the task based 20
upon the worker’s temperament and experience and his assessment that the worker would
perform the task correctly. (Tr. 130–131.) If Braggs needs to send a team member to work with
another team, Braggs again selects based upon experience and who has obtained the
necessary cross-training. Simpson testified that he had little dealing with team leaders telling
him what to do. (Tr. 37.)25
Simelton, with another team lead, made assignments while Respondent searched for
another supervisor. They determined who would perform the work each day, based upon the
priorities; however, they kept Manager Bush apprised of what they did. In making the daily
assignments, the team leads based their determinations on what the workers did daily, knowing 30
their specialties, and how well the workers performed their tasks. However, Simelton also
stated that he treated all employees equally, without regard to performance. (Tr. 808–811.)
The question here is not whether team leaders designate the industrial workers to places
and tasks, but whether the team leaders do so with independent judgment. Lynwood Manor, 35
350 NLRB 489, 489–490 (2007). Sending a team member to work elsewhere requires that the
employee have cross-training. Knowing that requirement restricts independent judgment. A
and G, Inc., d/b/a Alstyle Apparel, 351 NLRB at 1304.
The substitution of the team leaders for a supervisor yet to be hired is not “regular.” 40
Regular is based upon a pattern or schedule instead of sporadic exercise. Oakwood, 348 NLRB
at 694.4 Simelton’s assumption of these duties was temporary and General Counsel provides
no evidence that it is likely to recur. St. Francis Medical Center – West, 323 NLRB 1046, 1046–
1047 (1997).
45
I therefore conclude that General Counsel did not demonstrate that the team leaders
assign industrial workers with independent judgment.

4 The standard for “regular” did not change with Oakwood, 348 NLRB at 694.
JD–39–19
9
3. Discipline
Braggs sometimes enters the DLX log with the employee user identification to track
industrial workers’ production. The DLX log shows where products are located, each scan 5
performed by a worker, the time the scan was performed for picking up the item. Braggs
estimates that he spends 3 non-consecutive hours per shift checking his team members’ DLX
logs.
When Braggs finds a lag in gap time, he prints the log and takes it to the specific 10
industrial worker, asking whether the worker was having problems and seeking an answer for
the gap time. His job is to coach the employee on excessive gap time. He writes down the
information from the employee (he then testified that he has the employee write the reason) but
does not always share the information with the supervisor, depending on the reason for the gap
time. Braggs puts the information into a file of coachings. He does not share with the 15
supervisor certain issues, such as times when the facility’s wi-fi is down or reception is bad and
the industrial worker may have to ride around the facility to find a location where the wi-fi is
active. If Braggs determines the employee’s reason is not legitimate, he reports the gap time to
his supervisor because he cannot issue discipline.
20
Braggs testified that he recommends discipline. The supervisor does not always follow
his recommendation. The supervisor sometimes discusses with him the reasons for and/or
against discipline. (Tr. 124.) In one situation, discussed below more fully, Braggs reported to
Buckingham that Evans allegedly took an early break and recommended discipline after he
previously documented Evans wasting time on at least two other occasions. In this instance, 25
Buckingham issued to Evans a disciplinary action report without discussing the matter further
with Evans.
Braggs documents and/or sends emails to his supervisor when he observes an industrial
worker not performing his job. In these instances, he does not make any recommendation for 30
discipline and whether he conversed with the worker about the issue. Braggs testified that this
seldom occurs. (Tr. 126.)
Braggs usually does not attend disciplinary meetings. He attended two regarding Evans.
Braggs also served as an acting supervisor in Ayikwei’s absence, likely for more than two 35
weeks. (Tr. 741.)
Clark ensured that orders flowed into his area, the parts were offloaded safety and
ensured correct packing. He monitored amounts packed per hour per employee per shift
through the DLX system at middle and end of shift. (Tr. 706.) If an employee’s production was 40
low, Clark checked that the employee was following processes and coach, without a
supervisor’s assistance, to improve production. (Tr. 706–707.) Clark did not document the
coaching session but continued to monitor the employee’s production. If production continued
to be a problem, the employee would be retrained. Only after a retraining attempt would Clark
notify the supervisor that the employee’s work was not efficient and further action was 45
necessary. However, during his time as a team lead, Clark did not recall sending any
notifications to supervisors about performance issues, nor doing so for a violation of the code of
conduct. Clark attended no meetings with managers and supervisors. However, team leads
now attend the daily start-up meetings.
50
JD–39–19
10
If a worker violates a rule of conduct, Simelton talks to the worker and notifies Bush of
what happened. Simelton does not document when he coaches industrial workers. (Tr. 831.)
Simelton recalled two specific incidents in which he coached employees. In the first incident,
Simelton coached a worker who ran through a stop sign, and then emailed Bush. Simelton did
not know whether the worker received any further disciplinary action for the incident. In the 5
second incident, two employees could not get along and argued during the workday. Simelton
coached them once and the matter did not resolve. He reported the matter to Bush, who met
with the employees twice. Simelton attended one of the meetings. The matter resolved after
the second meeting. Simelton did not know if the employees received discipline. Similarly, he
reports safety issues, such as improper storage of items on the rack, to the supervisor. 10
When he supervises the trains, Simelton monitors production and gap times. If he
notices unexplained gap time, Simelton asks the worker whether his day is okay and to explain
the gap time. If the worker does not have a good reason, Simelton provides coaching. Simelton
documents the reason for the supervisor and notes if he coached the worker. 15
General Counsel agrees that team leads provide coaching to employees but are not
permitted to give disciplinary action. Citing Children’s Farm Home, 324 NLRB 61 (1997) and
Hawaiian Telephone Co., 186 NLRB 1 (1970), General Counsel identifies the principle of
effective recommendation “generally means that the recommended action is taken without 20
independent investigation by superiors . . . .” (GC Br. at 28.) The team leads determine what
information to provide their supervisors and whether to make recommendations about additional
disciplinary action. However, General Counsel points to one incident in which Braggs reported
and made a recommendation of disciplinary action on Evans. This example allegedly proves
team leaders effectively recommend discipline. 25
Regarding coaching, nothing shows the coaching incidents necessarily lead to future
disciplinary action. Lucky Cab Co., 360 NLRB 271, 272–273 (2014). Like Ken-Crest Services,
335 NLRB 777, 777 (2001), an employee could receive an undetermined number counselings of
without any discipline imposed. The documented counselings usually describe offenses without 30
recommendations for discipline, which do not establish disciplinary authority. Schnurmacher
Nursing Home v. NLRB, 214 F.3d 260, 265–266 (2d Cir. 2000), enfg. in rel. part, 327 NLRB 253
(1998). Where reports of misconduct do not lead to discipline and contain no disciplinary
recommendations, the team leader cannot be a supervisor. Lucky Cab, 360 NLRB at 272, citing
Franklin Home Health Agency, 337 NLRB 826 (2002); Passavant Health Center, 284 NLRB 887, 35
889–890 (1987). As to the reportorial duties argued by General Counsel, referring problems to
the supervisor alone does not equal disciplinary authority. Coral Harbor, 366 NLRB No. 75, slip
op. at 20 (recommendations not effective or with use of independent judgment); Riverboat
Services of Indiana, Inc., 345 NLRB 1286, 1286 (2005).
40
Regarding Braggs’ report and recommendation, General Counsel is “generally” correct
Buckingham gave the discipline after Braggs’ report without further investigation. Otherwise,
Braggs admitted that in those instances where he made recommendations for disciplinary
action, the supervisor did not always follow his recommendation. One incident does not a
supervisor make.45
The additional incident in which Simelton tried to handle a squabble between two
employees does not constitute discipline and the supervisor ultimately resolved the matter. He
did not know whether the employees received discipline and apparently made no
recommendation. Simelton’s actions here are not disciplinary, nor are they a demonstration of a 50
statutory authority to adjust grievances. Coral Harbor, 366 NLRB No. 75, slip op. at 20
JD–39–19
11
(resolution of minor disputes not part of disciplinary process); St. Francis Medical Center West,
323 NLRB at 1048.
I therefore find that General Counsel did not demonstrate that team leads discipline or
effectively recommend discipline. 5
4. Responsibly to direct
Direction requires that the putative supervisor has “men under him”, and deciding what to
do next, but only if that direction is responsible and maintained with independent judgment. 10
Oakwood Healthcare, 348 NLRB at 690–691. Direction is responsible when:
[T]he person directing and performing the oversight of the employee . . .
[is] accountable for the performance of the ask by the other, such that some
adverse consequence may be befall the one providing the oversight if the tasks 15
performed by the employee are not performed properly . . . .
Thus, to establish accountability for the purposes of responsible direction,
it must be shown that the employer delegated to the putative supervisor the
authority to direct the work and the authority to take corrective action, if 20
necessary. It also must be shown that there is a prospect of adverse
consequences for the putative supervisor if he/she does not take these steps.
Oakwood Healthcare, 348 NLRB at 691–692 (relying upon previous court definitions in
Providence Hospital, 320 NLRB 717, 729 (1996),5 except if inconsistent with its decision in 25
Oakwood). In performing these duties in the interest of the employer, the putative supervisor
may have an adversarial relationship with the employees directed, to the “employees’ contrary
interests.” Oakwood Healthcare, 348 NLRB at 692. The putative supervisor must be held “fully”
accountable for the tasks, either through adverse actions, discipline, financial reward or loss, or
some authority to correct mistakes. Id. at 691–692, 694–695.30

General Counsel contends that Brags and Simelton, as part of the assignment function,
exercised discretion in selecting employees for work based upon their “estimation of the
employees work performance, experience and other factors.” (GC Br. at 28.) The missing
element, however, is the requirement of holding the team leaders accountable for the 35
performance of the team members. A and G, Inc. d/b/a Alstyle Apparel, 351 NLRB 1287, 1287
(2007). General Counsel presents no evidence that the team leaders are subject to adverse
actions for its interactions with the team and therefore has not demonstrated exercise of this
supervisory authority. Id.
40
5. Conclusion on 2(11) supervisory status for team leads
General Counsel does not demonstrate that the team leaders assign, discipline, or
effectively discipline, or responsibly direct within the Board’s definitions. It therefore did not
sustain its burden of proof that the team leads are supervisors.45

5 Also see Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997), enfg. 321 NLRB
No. 100 (1996) (test of certification case).
JD–39–19
12
B. Agency Status
1. Applicable law5
Section 2(13) of the Act defines an agent:
Agency must be established regarding the specific conduct that is alleged to be unlawful.
Ace Heating and Air Conditioning Co., 364 NLRB No. 22, slip op. at 3 (2016); Station Casino, 10
supra, citing In re Cornell Forge Co., 339 NLRB 733 (2003). Common law agency principles
determine whether an individual is an employer's agent. SAIA Motor Freight, Inc., 334 NLRB
979 (2001). The question is whether the person in question demonstrates either actual or
apparent authority. Station Casinos, Inc., 358 NLRB 637, 645 (2012). The burden of proof of
agency status is upon the party asserting it—here, General Counsel. CNP Mechanical, Inc., 347 15
NLRB 160, 169 (2006).
For apparent authority to exist, a third party “must have a reasonable basis . . . to believe
that the principal has authorized the alleged agent to perform the acts as to which agency is
alleged.” Poly-America, Inc., 328 NLRB 667, 677 (1999), enfd. in rel. part, 260 F.3d 465 (5th Cir. 20
2001). If employees would reasonably believe that the person in question reflects company
policy and acts upon the employer's behalf, “[a]n employer may properly be held responsible” for
that person's conduct. CNP Mechanical, 347 NLRB at 169. Also see Tortillas Don Chavas, 361
NLRB 101, 108 (2014). Even in the absence of specific instructions, agency status may be
properly found. Poly-America, Inc. v. NLRB, 260 F.3d at 486–487. 25
2. Parties’ positions
General Counsel contends that the team leaders become agents because of apparent
authority. General Counsel contends an agency finding is mandated because of several of the 30
same tasks already discussed result in such a finding: conducting pre-shift meetings; assigning
work; reporting rule infractions and performance issues; monitoring work for completeness. (GC
Br. at 29–30, citing D&F Industries, Inc., 339 NLRB 618, 618–619 (2003).) The rationale is that
the bargaining unit employees would reasonably believe team leads reflected company policy
and spoke and acted for management. (GC Br. at 29–30.) General Counsel’s brief particularly 35
emphasized Braggs’ role in recommending discipline and maintaining animus against Evans.
Respondent’s short discussion contends that team leads are not agents “in any sense
that has legal significance in this case.” (R. Br. at 35.) The team leads play no role in
grievances and “are under no obligation to report union activity by employees. Not do they 40
make disciplinary decisions.” Id. Respondent then states, “At most, the leads are agents only
insofar as they carry out their assigned work responsibilities.” Id.
Neither party raises that the collective-bargaining agreement prohibits “supervisors” from
doing bargaining unit work and Respondent settled grievances when Braggs performed 45
bargaining unit work.
3. Analysis on agency
Braggs was not Respondent’s agent when recommending discipline for Evans. Although 50
Braggs took it upon himself to recommend certain disciplinary action, he did not do so
JD–39–19
13
consistently. Like the analysis of supervisory authority, Braggs had no apparent authority to
discipline, only counsel. This single incident does not create an appearance of authority to
employees.
VI. MEET MR. WALTER EVANS, CHARGING PARTY5
Evans had disciplinary actions that the complaint alleges as violations of Section 8(a)(3)
and (1). The first was a written warning for allegedly going to break early, resulting in wasting
time. The second was dropping windshields, for which Respondent suspended Evans for 30
days. Immediately after meeting with Respondent about the suspension, Evans allegedly 10
threatened and cursed at Manager Bush. Respondent terminated Evans. The Union and
Respondent settled the two grievances, allowing Evans to return to work after a 30-day
suspension with the alleged threat and cursing remaining on his record. In March 2017, after
Evans backed out of an aisle on a forklift, Respondent terminated him. The Union took the
matter to arbitration, where the arbitrator upheld the termination. General Counsel maintains 15
that Respondent’s actions violated Section 8(a)(3) and the termination for backing out also
violates Section 8(a)(4). Respondent contends it did not violate the Act, and even if its actions
were motivated by union and/or protected activities, the Board should defer to the grievance
settlement and the arbitrator’s decision. This section will cover Evans’ history as an industrial
worker until the disciplinary actions in 2016 at issue here. 20

Respondent employed Evans until March 2017, when Respondent terminated him. He
was employed in Respondent’s Columbus, Ohio facility from August 2014 until May 2015, when
he transferred to the Byhalia facility as an industrial worker. His duties included operating
equipment, such as forklifts, to put away parts or to remove parts from shelving. As in 25
Columbus, he operated reach trucks and order pickers. He worked inbound on the third shift
from June 2015 until May 2, 2016. His supervisor at first was only Robert Buckingham; later
Arnold Ayikwei was assigned as a supervisor to the area. Six months later, Dave Quarles also
supervised him on the third shift. Evans’ team lead on the third shift was Arthur Braggs. The
inbound manager at the beginning was Don Mouledoux. 30
In August 2016, Evans began working a first shift outbound forklift position. He was
working in that area when he was terminated for the second time in March 2017. Evans
primarily operated a reach truck but also operated the order picker. For Evans’ outbound day
shift assignment, Brad Horncut was the team lead; Mark Leftwich was the supervisor and the 35
secondary outbound supervisor was Bobby Clark.
A. Evans’ Union and Protected Concerted Activities in 2015-2016
Since transferring to the Byhalia facility, Evans participated in numerous union activities. 40
He was a member of the Union. He filed grievances regarding holiday overtime (GC Exh. 4,
dated July 6, 2015) and weekend overtime hours (GC Exh. 5, dated November 15, 2015).
Management responded to each of the grievances. (GC Exh. 4, 6.) The latter grievance,
labeled 2015–17, also included allegations that management, particularly supervisor Robert
Buckingham, gave disciplinary sanctions in an arbitrary matter and alleged safety rule violations. 45
Evans hand-delivered this grievance to Manager Mouledoux. (GC Exh. 5; Tr. 188.)
Buckingham denied the grievance on January 6, 2016. (GC Exh. 6.) However, the grievance
eventually settled, with two persons receiving a monetary award for the overtime. Regarding the
safety issues, Respondent assigned three persons to move heavier items to certain racks with
more appropriate weight ratings. In grievance 2015–10, Evans was one of the grievants 50
JD–39–19
14
primarily claiming that Respondent did not assign overtime by seniority. Only two persons
received payment for the grievance, one of whom was Braggs, who became the team lead.
In 2015 and 2016, Evans distributed union-related materials to employees at the Byhalia
facility. No supervisor said anything to him about the materials or the distribution. (Tr. 505.)5
Evans became a third shift alternate committeeman in October 2015. The list of elected
officials was posted on the employee bulletin board near the break rooms in the Byhalia facility.
(Tr. 179; GC Exh. 3.) His duties included filing grievances on behalf of other employees. Evans
always included himself in the grievances he filed. (Tr. 503.)10
In pre-shift meetings and round table meetings, Evans frequently raised employee
concerns with management and other employees. By August 2015, Evans frequently raised
safety as an issue. He told Buckingham in pre-shift meetings and individual conversations that
heavier items should not be stored on higher racks because of the potential for killing someone 15
if they fell and the heavy items made the racks’ steel beams bow. He also told Mouledoux about
the same safety concerns and reasons during round table meetings, when other employees
were present. Buckingham’s responses varied. He said it was beyond his pay grade and he
emailed management. He once told Evans that if the items fell, they fell. Evans was not the
only employee who raised this issue. Buckingham found the suggestions helpful, leading to 20
changing the rack system for heavy parts. Manager Bush, who was the operations support
person at the time, maintained he was not involved with any changes to the racking system and
was not informed of any. (Tr. 1110.)
In round table meetings with Mouledoux, Evans also raised that he and other employees 25
the third shift wanted shift differential pay. (Tr. 202.) Mouledoux said he would contact
Respondent’s corporate office and suggested the Union should do the same. (Tr. 203.)
Evans’ speeches in pre-shift meetings caused employees in the meeting to become riled
up.6 Buckingham found Evans’ behavior disruptive and that Evans later twisted statements. 30
Some of these issues were related to the collective-bargaining agreement. (Tr. 762–763, 879.)
Buckingham and Braggs discussed Evans’ conduct in the meetings, saying Evans was “cutting
up” in the meeting, getting loud and speaking out, and interrupting the meeting. (Tr. 878.)
Braggs testified that Evans was always complaining about employee rights and would talk about
it to anyone who listened. Evans participated in round table discussions with the same sort of 35
results: His managers expressed displeasure that their meetings were interrupted.
B. Evans’ Counseling and Disciplinary History in 2015 and Early 2016
On December 17, 2015, Evans, while operating a reach truck, heard a thump. The 40
thump was an engine falling off the truck’s forks. Evans maintained the engine was secured but
did not get off the truck before loading it to inspect it. Evans reported the event to Buckingham.
No physical injury occurred. On December 23, 2015, Evans received retraining on the reach
truck. After the retraining, Buckingham gave Evans a verbal reminder for failing to comply with
safety rules, regulations and failure to wear personal protective equipment. (Tr. 213–214; GC 45
Exh. 10.) Evans told Buckingham he objected to the discipline, but apparently did not file a
grievance.

6 “Rile,” a verb, means “to make agitated and angry,” or roil. See https://www.merriam-
webster.com/dictionary/rile#learn-more.
JD–39–19
15
On December 28, 2015, Buckingham documented, by email, that he observed Evans in
the break room at 1:46 a.m., about 15 minutes before the scheduled break time. Evans again
did not receive any discipline for this incident. For January 7, 2016, Buckingham, after 5
reviewing the inbound department’s productivity in the DLX system, emailed Braggs and Ayikwei
about Evans having only 2 scans in DLX for a period, indicating lack of productivity.
Buckingham did not discipline Evans. (Tr. 734–735.) On January 21, 2016, Buckingham and
Ayikwei coached Evans about wasting time, which was not considered discipline. (Tr. 733.)
10
On February 24, 2016, Supervisor Ayikwei issued a written reminder to Evans
“performing careless or poor workmanship.” (GC Exh. 11.) Evans allegedly placed an item in
the wrong place, known as a mispick, which Evans denied in writing. Evans testified that these
errors occurred all the time. (Tr. 218.) Evans did not file a grievance on this disciplinary action.
At a round table discussion, Evans raised the problem of two different systems that did not 15
recognize each other that he maintained caused the mispick error.
VII. MARCH 2016: EVANS RECEIVES A WRITTEN WARNING FOR ALLEGEDLY WATCHING TELEVISION
IN BREAK ROOM BEFORE BREAK TIME
20
Braggs testified that, on March 22, at 1:35 a.m., he observed Evans in the front break
room. Braggs notified Buckingham and the eventual result was that Evans received a written
warning. To better understand the alleged basis of the discipline, I review charging the vehicles
and traveling on motorized vehicles in the warehouse, then the incident leading to the discipline,
the grievance process and evidence regarding disparate treatment.25
A. Vehicle Charging and Traveling in the Byhalia Warehouse
During a shift, an industrial worker may need to recharge the battery on the vehicle. The
vehicle operator should observe how quickly the battery is depleted. The only charging area is 30
approximately 20 to 30 feet away from the warehouse entrance, lined up against the wall, and
about 20 steps away from the main break area. From a far spot in the warehouse, it may take 3
to 6 minutes to reach the charging stations. (Tr. 673.) Not all vehicles in need of charging might
have an available charging station during break. For a reach truck or an order picker,
connecting to a charger takes less than 1 minute. The closest charging spot is approximately 20 35
seconds from the break room and 2 minutes for the furthest. Employees are supposed to wait
until the pre-break or pre-lunch buzzer to prepare for break, including charging the vehicle. This
practice has not changed since 2015. If no charge is needed, employees may park vehicles in
parking spots around the inbound break room the outbound break room, the main charging
area, and additional spots near the main break room. At the end of shift, the vehicles are either 40
in the charging stations or parked in the area near the charging stations. (Tr. 681.)
Traveling from the far end of the warehouse to the main break room requires traversing
one of the main aisles. (Tr. 682.) The middle of the main aisles has stop signs, which would
make a trip longer; traffic may stack up at the stop sign, making the trip even longer. (Tr. 683.) 45
the top speed for some reach trucks is up to 7.8 miles per hour. (Tr. 683–684.) However, if the
truck is carrying an emballage, the vehicle should be operated at a slower rate for safety.
50
JD–39–19
16
B. Team Lead Braggs Observes Evans in the Break Room before Scheduled
Break on March 22
On March 22, Braggs, starting at an unknown time, looked for Evans to discuss
mislocated parts. An email, dated March 14, was sent to Braggs about the topic and Braggs 5
apparently waited about 6 workdays to address the issue with Evans. (Tr. 867.) Braggs
claimed he could not find Evans in the system. Braggs testified that he rode around the
warehouse until he found Evans in the break room at 1:35 a.m. Traffic on the third shift at that
time would have been light because only 15 to 20 employees worked inbound at that time. (Tr.
888–889.) For that night, break time did not start until 2 a.m.10
Braggs testified that this incident was not the first time he found Evans in the break room
watching television. (Tr. 137.) Braggs also denied that anyone else was in the break room with
Evans. (Tr. 160, 888.) At 2:07 a.m., after returning to his desk, Braggs emailed Buckingham
that he observed Evans, sitting, relaxing, and watching television in the break room at 1:35 a.m. 15
and that Evans had no regard for the rules. Braggs testified during 2016 and 2017, workers
commonly stopped work before the first buzzer to head for the break room. Evans agreed that
this incident was not the first time that Braggs observed him in the break room before his normal
break time. (Tr. 527.) Workers were supposed to wait for the first buzzer before making any
preparations for break. (Dobson, Tr. 668.)20
Shortly after 2 a.m., Evans emailed his report to Supervisor Buckingham, who was
working the last segment of the third shift to cover for another supervisor. At about 2 a.m.
Buckingham arrived at work. While making his initial review of emails and walking around
Buckingham spoke with Braggs and received the email about Evans. Braggs told Buckingham 25
that Evans needed disciplinary action. (Tr. 749.) Buckingham reviewed the DLX reports, which
Buckingham interpreted to show Evans had a large gap time before the lunch period, starting at
2 a.m., and was not on the warehouse floor. (Tr. 724–725.) Buckingham testified that he knew
warehouse traffic during 1:30 a.m. to 2:00 a.m. was light because only a few people were
working the third shift and the trip on a forklift from Evans’ previous location to the main break 30
area, including time to park the vehicle, would have taken only 3 minutes. (Tr. 728–729.)
C. Evans Receives a Written Warning
Buckingham determined to issue the discipline without interviewing Evans.7 On the 35
following day, March 23, Buckingham issued a written warning to Evans. (GC Exh. 12; Tr. 755.)
Buckingham and Evans met in a conference room, where Buckingham handed Evans the
disciplinary action report, which stated Evans violated Rule 8 for wasting time and received a
written warning. (GC Exh. 12.) The initial written warning, dated March 22, 2016, reports a Rule
8 violation; the description of misconduct states: “8. Wasting time during scheduled work hours. 40
[Industrial Worker] was in the front break room 25 minutes before Lunch sitting down watching
TV.” (Jt. Exh. 3 at Volvo 000036.) Buckingham stated Evans declined union representation at
the disciplinary meeting.8
Evans disputed the report and said Buckingham was not present that night. Buckingham 45
told Evans the report was based upon Braggs’ report. Evans said the report could not be true

7 Buckingham testified that Respondent’s practice does not always include an investigatory interview
with the individual before giving disciplinary action. (Tr. 755.)
8 Buckingham was aware that Evans had disputes with the union representatives working the third
shift, as the shop steward advised Buckingham the union did not agree with Evans’ desire to file “frivolous
grievances.” Buckingham did not know whether he was aware of these concerns in March 2016.
JD–39–19
17
because the DLX records showed he could not possibly be in the break room at the time Braggs
stated. Upon Evans’ request, Buckingham pulled up the DLX report (GC Exh. 13), which
showed Evans had no transactions after 1:31:58 a.m.9 The next scan registered at 2:57 a.m.
Evans protested the impossibility to transverse the warehouse from the last scan location, at
almost 1:32 a.m. to arriving and sitting in the break room 3 minutes later.10 Evans also said he 5
went to the bathroom and then got a cup of water. He was standing in the break room, not
sitting as Braggs claimed. Evans acknowledged that he saw Braggs come into the break room
about 1:55 a.m. but denied that Evans said anything to him. Evans testified that 10 to 15 others
were in the break room with him.11
10
Evans asked Buckingham to rescind the disciplinary action, given it was not true.
Buckingham said he could not rescind it because Kevin Bush instructed him to give Evans the
discipline. Buckingham further testified that Evans could have traversed the long distance in 3
minutes, particularly riding a fork truck. (Tr. 728.)
15
Buckingham testified that, during the meeting, Evans did not tell him it was not physically
possible for him to be in the break room when Braggs stated. Buckingham testified
contradictorily about when he first learned of Evans’s reasons for disputing the discipline: He
first testified that Evans later made loud comments in the warehouse about it, which is how he
first discovered Evans’ complaints; he later testified that he read Evans’ comments on the 20
disciplinary action report the same night Evans wrote it, the same shift in which Evans received
the discipline. Buckingham also made no further efforts to investigate whether Evans had
legitimate reasons for disputing the timing of the events.
Within the next few days after receiving discipline, Evans confronted Braggs and said he 25
had seen the email to Buckingham. This conversation lasted approximately 30 minutes. Evans
said he was not in the break room for 25 minutes before break. Evans also told Braggs that
fostering hostility between management and the workers was not good for Respondent. Evans
asked Braggs why Braggs singled him out. Evans said Braggs stated, “I don’t have any problem
with you, Evans, except when you start talking like Union stuff. You seem to go crazy when you 30
start talking about that Union stuff.” Evans told Braggs he was only talking about matters raised
in the pre-shift meeting and he had a right to do so to “join in discussions about Union stuff or
anything else that has been brought up by the management or the employees.” (Tr. 244.)
Braggs denied making any statement about the Union to Evans. (Tr. 157.)12

9 Evans also would have had to drive the reach to a designated parking area, back into the spot and
plug cables into the reach’s battery for recharging. (Tr. 232.)
10 Evans estimated the length of the warehouse is about the same as 4 football fields. (Tr. 229.)
11 When asked if he saw Evans at the location where he scanned an item at 1:31:58 a.m. on platform
17, Braggs became defensive, although he admitted he did not check at that location for Evans. (Tr. 148–
149.) According to Braggs, if Evans traveled in his reach truck from platform 17, aisle 621 to the other
end of the warehouse for the changing area and break, with one stop at the main aisle for a stop sign,
Evans would have still had to park his truck and plug it in to charge it. (Tr. 151–152.) Evans then would
have had to walk to the break room. Braggs insisted that it was possible to make the trip in less than 3
minutes. (Tr. 152.) Braggs had no reports, however, that Evans was speeding or failed to stop at the stop
sign. Given the size of the warehouse, the distance of the break room from Evans last scan, and other
tasks Evans had to perform before entering the break room, I cannot credit Braggs’ belief that he saw
Evans about 3–4 minutes after Evans’ last scan.
12 Apparently, Evans and Braggs had some disputes. In August 2015, someone reported Braggs
performed bargaining unit work. (Tr. 248–249.) On August 20, 2015, at a pre-shift meeting, Braggs
raised the subject during the pre-shift meeting, stating if employees did not perform their jobs, or caused
problems, he would see that people would be forced to leave and “we will lay paper on you.” “Laying
JD–39–19
18
Evans testified that, at a minimum, the trip would take 5 minutes to perhaps 15 minutes.
(Tr. 233.) Union Committeeman Glenn Dobson, who also worked inbound, testified that
employees were supposed to charge their vehicles during breaks and lunches, if needed. (Tr.
642.) However, the charging station was located at the entrance door to the warehouse near 5
the main break room for the outbound employees; the inbound employees’ break room was on
the other side of the warehouse.
Evans requested union committeeman Simpson, working first shift, to represent him for
filing and pursuing a grievance. On about March 30, 2016, Evans and Simpson attended a10
meeting with Volvo management to discuss the written warning for Evans allegedly wasting time
in Inbound Manager Bush’s office. 13 Supervisors Ayikwei and Robert Buckingham also were
present. Buckingham also denied attending this meeting.
In a meeting with Bush and Simpson14 on March 31, Evans stated that it was impossible 15
for him to have been in the break room at 1:35 a.m., as Braggs claimed, based upon the DLX
records Buckingham provided. Evans again explained that he waited to go to the bathroom
before his break time and, up until that point, was busy with putting away parts. Simpson and
Evans also argued that Respondent had not performed any investigation. Simpson asked for a
copy of the investigation. Simpson also asked Respondent to rescind the discipline, which Bush 20
said he would not do so. Bush then accused Evans of having unexplained gap times in his logs,
which Evans denied. Bush cited particular dates, such as March 11. Evans asked for the
records for the entire month. Bush said he would give the records to Simpson and the Union.
On cross-examination, Bush testified that Evans admitted to being in the breakroom 25
early, but at 1:54 a.m. Bush reviewed the DLX logs for that time frame in question. (Tr. 1055–
1056; GC Exh 13.) He followed up with Buckingham.15
D. Disparate Treatment Evidence
30
In a third-step meeting on June 30, 2016, regarding Evans’ May 2016 suspension and
discharge, Hayes confirmed that she investigated Evans’ claim that others were in the break
room with him. Hayes not only confirmed that 8 others were in the break room, she also
confirmed that Evans was the only person who received discipline. (Tr. 281–282; GC Exh. 36 at
2.) Despite this revelation, Respondent took no action to change Evans’ discipline. (Tr. 282.) 35
Nor does Respondent show any of the others received coachings or other forms of discipline.
Throughout the hearing, Respondent’s witnesses admitted that it had continuous
problems with employees taking break early or lining up outside the break room before the
appropriate times. Dobson testified that, since he became a union officer, he reviewed 40
disciplinary records to determine whether anyone was disciplined for a violation of the buzzer
system. He recalled several employees who were so disciplined.

paper” is the warehouse’s colloquial term for subjecting an employee to a barrage of discipline. Braggs
also expressed dissatisfaction that he was written up for performing bargaining unit work. (Tr. 249–250.)
Braggs denied threatening to “lay paper.” Evans seemed to assume that Braggs knew he was involved.
13 Evans first testified Braggs was present, then testified Braggs was not present. (Tr. 303, 538.)
14 Buckingham and possibly Braggs were in attendance, but they denied any recollection of the
meeting.
15 General Counsel questioned about employees who might be working without completing scans.
This possibility must be physically witnessed to determine that the worker had not completed the scan into
DLX. No evidence supports this hypothetical scenario.
JD–39–19
19
Buckingham recalled coaching other employees for Rule 8 violations but could not recall
when he did so. Buckingham also testified that industrial workers would not receive discipline
for wasting time or out of the area unless it became a pattern. Beyond counselings, Respondent
issued a volume of disciplinary action for violation of Rule 8. Most of the disciplinary actions 5
were verbal reminders for gap time violations. A few received written warnings. One employee
incurred a written warning, followed by a 30-day suspension issued on May 16, 2016. (GC Exh.
38 at 26, 36.) One received a 5-day suspension and another a 7-day suspension. The union
activities and/or sympathies of these employees, except for Roderick Simpson, were unknown.
Simpson handled a number of grievances regarding gap time. Gray handled one or two gap 10
time grievances.
A few employees received verbal reminders for early breaks or staying after the break
room after the end of break. Two verbal reminders, to different employees, were issued on
November 19, 2015. (GC Exh. 38 at 23, 24.) Another was issued on October 12, 2016. 15
On March 4, Braggs observed and reported to his supervisors that Tavares King for
staying in the break room over his scheduled break time.16 (Tr. 848–849; R. Exh. 3.) Braggs
admitted he previously observed King staying the break room too long but had not reported it;
he also did not include prior observations when he reported King to management. (Tr. 875–20
876.) Braggs said that he reported only King and Evans for this violation because they had
developed patterns. (Tr. 887.)17 Another employee, Dewayne Johnson, was given a verbal
reminder on December 5, 2017 for excessive breaks. Johnson had union activity on the same
day in which he took; the union time was excused. (GC Exh. 38 at 63–64.)
25
E. Credibility
Evans admitted he received previous verbal reminders and counseling about going to
the break room before break time. Throughout the hearing, Evans had difficulty limiting his
answers to the questions asked. Even without a question on the floor and regardless of who the 30
questioner was, Evans added facts he believed relevant. He was reminded repeatedly to limit
his answers to what was asked and to stay off rambling tangents. At one point, when no
question was before him and Evans completed his previous answer, Evans said he wanted to
add more information to his answer; the judge, General Counsel and Respondent in unison said
no. Whether on the stand or at his seat next to General Counsel, Evans was prone to muttering. 35
Although I could not always hear the specific words in the mutterings from the judge’s bench,
the tone sometimes was angry. This sort of behavior lent credence to Respondent’s witnesses’
exasperation with Evans’ speeches at meetings and observations in the workplace.
Roderick Simpson, who worked for Respondent until 2017, in April and May 2016 was 40
working first shift inbound as a picker/put away industrial worker. Some of his testimony
included hedging phrases, such as “I want to say.” He could not recall supervisors exactly, but
believed Kevin Bush was inbound manager at the time. He also had difficulty recalling the team
leads at the time.
45
I discredit much of Braggs’ testimony, which was contradicted by himself or others. For
example, regarding the circumstances surrounding why he was searching for Evans, Braggs

16 King was also late for his shift and had a safety violation reported on the same email.
17 General Counsel points out that on February 24, 2016, King filed a grievance alleging Braggs and
Ayikwei created a hostile work environment and acted in a retaliatory manner. (GC Br. at 33 fn. 10, citing
R. Exh. 1 at 13).
JD–39–19
20
first stated he received an email about Evans making a put away error and he wanted to discuss
it with Evans. He did not act on the email sooner because they did not work the weekend. (Tr.
842–844.) He then could not recall whether he read the email on March 14 or a few days later.
Braggs said he must have been instructed to discuss the matter with Evans about March 22, but
he previously testified that he was not sure whether he had been instructed to do so by Ayikwei, 5
but Ayikwei had been on vacation as Buckingham was covering. When he reported Evans,
Braggs did not include Ayikwei on the email. (Tr. 870–871.) Braggs never spoke with Evans
about the put away issue because he saw Evans in the break room and worked on that issue
instead. (Tr. 845–846.) He also reported that Evans was alone, when both Respondent’s and
Union’s subsequent investigations revealed eight other workers were in the break room with 10
Evans.
In another instance, in which General Counsel questioned Braggs about whether he was
required to stop performing bargaining unit work, Braggs admitted he was aware a grievance
had been filed about the issue. He denied that he violated the contract by performing the work, 15
but then testified:
Q: [H]ow did you know that you weren’t allowed to help them with their work anymore if
no one had told you, don’t do that?
20
A: Because it’s in the contract.
Q. But you had been doing it? Yes?
A. Yes.25
Q: So you had been violating the contract?
A: No.
30
Q: Yes?
A: No.
Q: Okay. If there isn’t a contract violation, then why didn’t you keep doing it?35
A: Because I wasn’t supposed to do it.
Q: Who told you not to do it?
40
A: The contract says it.
(Tr. 860–861.)
Braggs, who also attended pre-shift meetings in which Evans spoke, denied any 45
recollection of what Evans complained about. He then admitted that Evans raised complaints
about the assignment of overtime and still denied that Evans raised issues of safety. (Tr. 863.)
Regarding other workers raising issues about possible violations of the collective-bargaining
agreement, Braggs testified that “mostly all of them have said something at one point or
another” but denied any recollection of anyone else raising a specific issue. (Tr. 865.) 50
JD–39–19
21
Braggs testified that no other employees were in the break room with Evans. Hayes’
report on June 30 confirms that others were in the break room with Evans. Braggs therefore is
discredited that no one else was with him when he saw Evans in the break room. With the
corroborating evidence and the bargaining notes from Hayes, I credit that Evans was not in the
break room alone.18 5
Supervisor Buckingham testified openly about his dislike for Evans’ interruptions of his
meetings. He clearly recalled the events on the night/early morning when he arrived at the
Byhalia warehouse and when he learned of Braggs’ report. I therefore credit Buckingham’s
admission and that he conducted no investigation. 10
Manager Bush had his memory refreshed about the step 2 grievance meeting with
Simpson and Evans. (Tr. 1011.) He recalled that the Union provided a list of the employees
allegedly in the breakroom with Evans when he was early and who did not receive discipline.
Bush stated Human Resources would have performed the investigation. (Tr. 1082.) Absent 15
from the discussion is if Bush raised the inconsistency and asked to have the disciplinary action
rescinded.
Thomas admitted adverse information about Respondent’s failure to act upon learning
that Evans was the only person disciplined while others were present in the break room. I 20
generally credit her testimony about this information.
F. Discussion
1. Applicable law25
General Counsel contends this disciplinary action is the result of discrimination for
Evans’ union activities. Respondent provides possible legitimate business reasons for its
actions. In determining whether adverse employment actions are attributable to unlawful
discrimination, the Board applies the analysis set forth in Wright Line, 251 NLRB 1083 (1980), 30
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line
framework requires proof that an employee's union or other protected activity was a motivating
factor in the employer's action against the employee. 251 NLRB at 1089. The elements required
to support such a showing are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer. Fremont-Ridout Health Group, 357 NLRB 35
1899, 1902 (2011); Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467
(2d Cir. 2009).
Proof of animus and discriminatory motivation may be based on direct evidence or
inferred from circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 40
(2004); Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428–1429 (11th Cir. 1985). Because
direct evidence of unlawful motivation is seldom available, the General Counsel may rely upon
circumstantial evidence to meet the burden. See Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999). A showing of animus need not be specific towards an employee’s union or protected
concerted activities. Colonial Parking, 363 NLRB No. 90, slip op. at 1, fn. 3 (2016). Animus can 45
be inferred from the relatively close timing between an employee’s protected concerted activity
and his discipline. Corn Brothers, Inc., 262 NLRB 320, 325 (1982) (timing of discharge within a

18 I refrain from deciding an exact time when Braggs saw Evans in the breakroom. Evans admits he
was early, at a time before the first buzzer, and Braggs was not credible about the time necessary to
travel from one end of the warehouse to the opposite end.
JD–39–19
22
week of union organizing meeting evidence of antiunion animus); Sears Roebuck & Co., 337
NLRB 443, 451 (2002) (timing of discharge, several weeks after employer learned of protected
concerted activities, indicative of retaliatory motive); La Gloria Oil & Gas Co., 337 NLRB 1120
(2002) (timing of discipline imposed 4 months after service on bargaining team and unfair labor
practice hearing appeared suspect). 5
Factors which may support an inference of antiunion motivation include employer
hostility toward unionization, other unfair labor practices committed by the employer
contemporaneous with the adverse action, the timing of the adverse action in relation to union
activity, the employer's reliance on pretextual reasons to justify the adverse action, disparate 10
treatment of employees based on union affiliation, and an employer's deviation from past
practice. Purolator, 764 F.2d at 1429; W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995),
denying rev. 311 NLRB 1118 (1993).
An employer does not satisfy its burden merely by stating a legitimate reason for the 15
action taken, but instead must persuade by a preponderance of the credible evidence that it
would have taken the same action in the absence of the protected conduct. Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996); T&J Trucking Co., 316 NLRB 771 (1995). When the General
Counsel’s showing of a discriminatory motivation is strong, the employer bears a substantial
defensive burden. East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 2 (2018). If the 20
employer’s reasons are found to be pretextual—reasons that are false or not in fact relied
upon—the employer fails to sustain its burden and the inquiry is terminated. See, e.g.: Lucky
Cab Co., 360 NLRB 271, 275–276 (2014) (“finding of pretext defeats an employer’s attempt to
meet its rebuttal burden”); Servicios Santiarios de Puerto Rico d/b/a AA-1 Portable Toilet
Services, 321 NLRB 800, 804 (1996); Caruso & Ciresi, Inc., 269 NLRB 265, 268 (1984). When 25
pretext is found to be the case, dual motive no longer exists. La Gloria Oil, 337 NLRB at 1124.
2. Analysis of March 22, 2016 incident and written warning
General Counsel presents a prima facie case. Evans had union activities and 30
complaints about safety and other working conditions, such as overtime assignments. He
invoked the rights provided by the collective-bargaining agreement in the meetings with other
employees present, which is considered protected concerted activity. S. Freedman & Sons,
Inc., 364 NLRB No. 82, slip op. at 1 (2016). He interrupted meetings with his concerns, causing
consternation for Buckingham. 35
Buckingham’s concerns about Evans interruptions and “cutting up” show knowledge and
animus. Respondent’s annoyance with Evans does not mean he did not present concerns
rooted in the collective-bargaining agreement: Buckingham testified that Evans raised many
different concerns, some of which were rooted in the collective-bargaining agreement. Union 40
Carbide Corp., 331 NLRB 356, 361 (2000), enfd. 25 Fed.Appx. 87 (4th Cir. 2001); Springhill
Services, 295 NLRB 1021, 1025 (1989) (supervisor’s animus attributable to respondent
employer).
Respondent failed to conduct a meaningful investigation before issuing discipline to 45
Evans. Respondent initially failed to investigate the allegation that others were in the break
room and received no discipline. Respondent blindly went forward with the discipline, even after
it discovered Evans was not the only person in the break room early but was the only one who
received discipline. Respondent let the discipline stand and took no action to step back from the
written warning. Respondent refused to correct its error, showing discriminatory intent. See 50
generally Andronico, Inc. d/b/a Andronaco Industries, 364 NLRB No. 142, slip op. at 14 (2016).
JD–39–19
23
If Buckingham’s animus towards Evans was not enough by itself, this chain of events
demonstrates disparate treatment. Respondent reminds us:
. . . [I]t is well settled that the Board “‘cannot substitute its judgment for 5
that of the employer’ and decide what constitutes appropriate discipline.” Detroit
Paneling Systems, Inc., 330 NLRB 1170, 1171 n. 6 (2000); see George L. Mee
Memorial Hospital, 348 NLRB 327, 332 (2006). Absent proof of pretext, the
General Counsel’s burden is to establish actual disparity, i.e., that “similarly
situated” employees received lesser discipline. Pacific Maritime Assoc., 321 10
NLRB 822, 824 n. 7 (1996). In circumstances where cause for discipline has
been established, the Board does not question management’s exercise of
discretion in deciding the appropriate level of punishment, at least absent “blatant
disparity.” Fluor Daniel, Inc., 304 NLRB 970, 970-971 (1991), enf’d, 980 F.2d
1449 (11th Cir. 1992) (Table). A “blatant” disparity is a disparity of such 15
proportion “as to admit of no other interpretation than that the employer bore
animus against the protected activity.” Tomatek, Inc., 333 NLRB 1350, 1364
(2001). It is disparity that is “completely obvious, conspicuous, or obtrusive
especially in a crass or offensive manner.” Merriam-Webster’s Online Dictionary.
20
(R. Br. at 30.)
In applying the law of “blatant” disparity here, Evans received discipline while eight
others received no discipline or counseling. This disparity is obvious and conspicuous, leading
to the conclusion that animus led to Respondent’s decision to discipline Evans. Respondent, 25
having uncovered exculpatory evidence, decidedly ignored it. NLRB v. Future Ambulette, Inc.,
903 F.2d 140, 143–144 (2d Cir. 1990), enfg. as mod., 293 NLRB 884 (1989) (disparate
treatment and lack of action support inference of an illegal motive). See generally Escambia
River Electric, 265 NLRB 973, 985–986 (1982), enfd. 733 F.2d 830 (11th Cir. 1984).
30
Based upon Evans’ activities in support of the collective-bargaining agreement,
Respondent’s knowledge of those activities, and animus evident through disparate treatment,
poor investigation and Buckingham’s statements, General Counsel presents a strong prima
facie case. I examine Respondent’s defenses. “A finding of pretext necessarily means that the
employer’s advanced reasons either did not exist or were not in fact relied on, thereby leaving 35
intact the inference of wrongful motive established by the General Counsel.” United Rentals,
Inc., 349 NLRB 190, 198 (2007).
Respondent argues that Evans was disciplined not only for being in the break room
early, but also for wasting time. True, the DLX scan report reflects no scans for Evans after 40
break for almost 30 minutes and a number of other employees have been disciplined for wasting
time. However, what triggered the review was Braggs’ report that Evans was in the break room
early. Braggs reported the incident before break shortly after 2 a.m., and the break was over at
2:30 a.m. Respondent still relied upon the early break for the discipline and Bush did not raise
the issue of unexplained gap times of March 11 until the grievance meeting, which constitutes a 45
shifting defense. The Board has long held that a shifting defense is persuasive evidence of
pretext. See, e.g.: Rainbow Medical Transportation, LLC, 365 NLRB No. 80, slip op. at 15
(2017); Airport 2000 Concessions, LLC, 346 NLRB 958, 978 (2006); Kudzu Productions, Inc.,
295 NLRB 82, 90 (1989). Respondent cannot rely upon only one prong of the disciplinary
action, the claimed delay in working after the break, when it did nothing to remove the discipline 50
it knew to be incorrect and disparate. I therefore find that Respondent’s reliance on a false
JD–39–19
24
reason for the written warning was pretextual. Tecmec, Inc. d/b/a T.M.I., 306 NLRB 499, 504–
505 (1992), enfd. 992 F.2d 1217 (6th Cir. 1993); Future Ambulette, 903 F.2d at 143.
Respondent therefore violated Section 8(a)(3) and (1) by giving Evans a written warning for
taking his break early and allegedly wasting time.
5
VIII. AFTER RECEIVING THE WRITTEN WARNING EVANS CONTINUED TO
PROTEST HIS DISCIPLINE AND OTHER WORKPLACE ISSUES
Evans sent Bush a 7-page letter, dated April 12, 2016, with attachments. (R. Exh. 1.)
Evans delivered the letter to the office, requesting that the secretary give it to Manager Bush. 10
The letter noted Bush provided the work reports, then stated he had no gaps in his performance.
Evans raised that management did not establish “just cause” on the recent disciplinary action
and violated Section 8(a)(1) and (3) of the Act. He further noted that Braggs was having
problems with targeting associates who he had problems with and those who challenged his
authority. Bush never contacted Evans about the letter; he never read it and said he gave the 15
letter to HR Manager Thompson. (Tr. 1032, 1080.) Thompson never discussed the letter with
Bush. (Tr. 1080.)
Evans also sent to HR Director Thomas a copy of the April 12 letter and attachments.
She read Evans’ letter and believed the letter was about past grievances and complaints 20
regarding grievances. Thomas testified she did not respond to the letter because she thought
he should follow the processes described in the collective-bargaining agreement and she was
not a step in that process. On cross-examination, Thomas reluctantly agreed that the letter
included complaints about Braggs’ treatment of third shift workers and himself, which Evans
characterized as a hostile work environment. She also agreed that Evans stated he was being 25
retaliated against in a way that might violate Section 8(a)(1) and (3). Evans requested an
investigation into such conduct. Evans later asked that his discipline be rescinded and removed
from files. Thomas did not attempt to find out whether a grievance was filed nor did she speak
to Youngdale or Bush about it. She also did not contact Human Resources in Byhalia because
the HR person was likely on leave and Thomas herself would have been in charge of the 30
Byhalia facility Human Resources functions. She did not forward the letter to anyone in Byhalia
and instead filed the letter until 2 weeks before this hearing, when she forwarded the letter to
Byhalia HR Manager Otto.
IX. MAY 2016: EVANS RECEIVES A 30-DAY SUSPENSION FOR ALLEGED VIOLATION OF SAFETY 35
RULES AND SUBSEQUENTLY IS TERMINATED FOR ALLEGED THREATS
A. Events Leading to May 2016 Disciplinary Actions
On April 21, 2016, while working inbound, Evans dropped windshields from his pallet. 40
The crates were double-stacked and the top crate fell off. Evans reported the incident to
Supervisor Ayikwei. Evans again asked Simpson to represent him in this matter before
Respondent issued discipline. Simpson, who did not witness the event, conducted his own
investigation. Simpson found that Respondent did not conduct a proper investigation because
the investigative report on the incident was not present. Simpson concluded the incident was a 45
“freak accident”; sometimes manufacturers do not strap down the product properly or sometimes
employees do not sore properly. It would be impossible to inspect pallets or skids because
pallets could be in the air. Ayikwei told Simpson that he did not believe Evans should receive
severe discipline. (Tr. 99.)
50
JD–39–19
25
Supervisor Ayikwei did not document whether Evans improperly lifted the crates. (Tr.
1075.) Ayikwei prepared documentation and recommended a 5-day suspension based upon
previous steps of discipline. (GC Exh. 65.) Respondent considered what level of discipline
Evans required for a safety rule violation (Rule 5). On April 26, 2016, Byhalia HR Manager
Leslie Thompson emailed Youngdale, Bush, Ayikwei, and Thomas about what level of discipline 5
to give Evans:
Because of his other steps of discipline the next step would be a
suspension. . . . .
10
Continued behaviors are posting a lot of disruption on 3rd but I still want to
ensure that we have all the documentation needed before he is suspended.
I advised the supervisor that I would like to run these through you once
we get to the point of suspension and beyond. Arnold Ayikwei is the supervisor. 15
I am copying [Thomas] so she is aware of the multiple incidents involving
[Evans].
(GC Exh. 66.)
20
Youngdale responded the same day:
The 4th step of progressive discipline is a 30-day suspension. Where is
the 5-day suspension coming from? We need to be consistent with what is
published in the written work rules. 25
Aside, since you have the documentation of his accident, then by all
means write him up and suspend him for the 30 days.
The key to this discipline, as with all other disciplines, is consistency i.e. I 30
assume we have been writing up other employees for similar incidents? This will
be especially important with [Evans], because as you know he has claimed that
he is being targeted and retaliated against. So, we do not want to end up in a
situation where [Evans] or the union is able to show that we ignored similar
incidents with other employees but discipline [Evans] for the same thing.35
(GC Exh. 66.)19
Despite Youngdale’s reminder on consistency in writing up other employees, Bush, who
had been on vacation during the incident itself, did not check with Thompson to determine 40
whether Respondent had disciplinary consistency. (Tr. 1079.) At some point, Youngdale
advised Bush that Ayikwei had not performed a proper accident investigation. (Tr. 1117.)
B. After Receiving Discipline, Evans Makes Angry Statements, for which
He is Terminated45
On May 3, Evans and Simpson met with Manager Bush and Supervisor Ayikwei in an
office in the front of the facility. The door was closed. Bush credibly testified that the delay in
giving the discipline to Evans was because he was on vacation when the incident occurred.

19 Bush testified that 5-day suspensions could be used only for attendance. (Tr. 1068.)
JD–39–19
26
Bush explained that after this last incident and the previous steps of discipline, he had to give
Evans a 30-day suspension. (Tr. 48–49; GC Exh. 18.) Bush gave Evans and Simpson a copy
of the discipline. Simpson asked to speak on Evans’ behalf. Bush said his decision was final
and he did not need to hear what Simpson has to say.20 Simpson said the meeting was very
short, somewhere between 2 and 5 minutes.5
According to Bush, Bush opened the door and Evans said to Bush, “You have no fucking
integrity.” (Tr. 1025.) As they exited the room, Bush testified that Evans repeated that he had
no “fucking integrity.” (Tr. 1025.)
10
A contract security guard and security supervisor, Candid Patino, was waiting outside the
door and followed them. Bush testified that the standard practice was to have the security
supervisor on duty outside for an escort for suspensions and discharges. (Tr. 1021–1022.)
Evans and Simpson walked out of the room, with Evans ahead of Simpson into a hallway, past
some open cubicles. As they left the conference room, Evans testified that he asked Bush if 15
Bush intended to respond to his April 12 letter; Bush said if he had time, he would, but if he did
not have time, he would not. (Tr. 611.)
Bush and Ayikwei were behind Patino; Bush was approximately 8 to 10 feet from Evans.
(Tr. 54, 561, 1090) Patino walked Evans, with Simpson, along a hallway with cubicles. Per 20
Bush, along approximately 50 feet of hallway were two offices and two cubicles. (Tr. 1027.)
Simpson noted Evans was as upset as someone who just incurred a 30-day suspension, but
Evans was not in “a rage.” Simpson denied that he heard Evans say to Bush, “I’m going to get
your ass” or “I will see you in 30 days and we will handle it then.”
25
Bush testified that, as they walked through the hallway in about 1-minute maximum time,
Evans loudly said he would be back, this isn’t over, and I’ll see you in court. Evans made no
effort to come towards Bush. (Tr. 1089.) Simpson tried to drag Evans to keep going as people
in the office started watching what was happening. Bush could not understand everything
Evans said because Patino was in front of him and Simpson kept saying to Evans, “Come on, 30
man, come on man.” (Tr. 1091.)21 However, Bush testified that Evans’ demeanor and attitude
made him feel threatened. (Tr. 1089.) Bush left the processional until it reached a corner.
Bush stayed in the HR office until the escort was completed. Bush denied hearing the additional
threats because he was too far away from Evans when the statements were made.
35
Evans testified he said to Bush that the company would not make it with people like him
in leadership; Bush had no integrity and if you think this is over, you will see me and my lawyer.
Simpson could not recall specifically what Evans said and “it could have been more words but
that was the main points that he made when he was making his statements.” (Tr. 54.)
40
Patino positioned herself at the exiting door and Simpson walked Evans to his car.
Simpson asked Evans if he wanted to file a grievance, which Evans did.
Bush requested Patino write a statement. He denied telling Patino what to write. Patino
testified her normal practice was to document each incident. Patino wrote the same day as the 45
incident:

20 Bush needed to attend another meeting immediately after meeting with Evans and Simpson.
21 Although Bush’s statement does not reflect Simpson saying, “come on man”, Simpson testified he
was trying to get Evans out of the building.
JD–39–19
27
I am writing this statement on the suspension on today of Walter Evans. I
witnessed Kevin Bush having a meeting with Walter Evans explaining to him his
suspension. Upon dismissal Walter Evans became very upset. He started
cursing and pointing his finger at Mr. Bush. Walter Evans stated that this isn’t
over, you think you can get away [with] this, no I’m going to get your ass. You 5
think you can do this shit and get away with it. I will see you in court. Better yet I
will see you in 30 days and we will handle it then. I’m going to get your ass. He
was asked to leave the property. He continue[d] to say these thing as he walked
out and [that] he wanted to file a grievance now. He was very upset and in a
rage. He left the property and stated this is over again while leaving.10
On May 4, Bush emailed HR Director Thomas, Labor Relations Manager Youngdale and
Director Oncur a statement about the incident with Evans as he left the facility:
. . . Mr. Evans was issued a Rule Of Conduct #5 for working unsafe 15
yesterday. This step of discipline caused him to receive a 30 Day Suspension.
After ending the meeting all parties stepped out of the Main Office Conference
Room and while security was escorting Mr. Evans he told me “I had no fucking
integrity”, stated “this was not over and that he would see me in court” and
continued this type of behavior while being escorted from the building in the 20
presence of his union representation. Statement from security has been given to
Local HR, also the supervisor involved with the discipline will also provide a
statement. This was an interruption to work in the main office as other
employees in their cubicles stood up to see and hear Mr. Evans. . . . [S]ince
using profanity and threatening managers is a Rule Of Conduct violation, are we 25
ok to prepare termination paperwork before this employee returns to work on
June 6th, 2016.
(GC Exh. 48.)
30
Thomas testified that Respondent only had 2 statements—from Patino and Bush. On
May 11, 2016, Respondent determined to terminate Evans based upon his alleged violation of
Rule 20.22 This rule prohibits threatening, harassing, intimidated, interfering, or coercing an
employee and includes brandishing any instrument with intent of causing body harm. Byhalia
HR Manager Leslie Thompson discussed the matter with Thomas. Thomas could not recall 35
whether she saw written statements before or after she agreed to terminate Evans nor how
many written statements were present.
Respondent sent a letter to Evans, dated May 11, 2016, that he was terminated effective
May 3 based upon violations of Rules 9 and 20. The Union began the grievance process on 40
Evans’s termination on May 12.
About mid-June 2016, post-termination, Evans filed complaints with the Occupational
Safety and Health Administration (OSHA) about certain warehouse practices. These practices
included storing heavy items on shelves, forklift drivers using cell phones and forklifts blocking 45
traffic in aisles. (GC Exh. 24.) OSHA found no violations. Evans also filed a whistleblower
complaint regarding his discharge, the result of which Evans was not sure. No manager or

22 The Disciplinary Action Report, initially dated May 3, 2016, states Evans violated Rules 9 and 20.
Bush signed the report on May 10, 2016, the day before the official determination to termination Evans.
(GC Exh. 20.)
JD–39–19
28
supervisor discussed Evans’ OSHA complaints. Similarly, Evans testified no manager or
supervisor ever raised his unfair labor practice charges.
C. Disparate Treatment Evidence
5
1. dropping parts from vehicles
Before this incident, Respondent had not disciplined anyone for dropping parts. Bush
could not recall “off the top of [his] head” anyone receiving discipline for dropping items before
Evans. (Tr. 1075–1076.) Simpson testified that, in 8 years with Respondent, he had dropped 10
items but never received even a reprimand or written warning in his file. (Tr. 52, 62.) He stated
supervisors must have seen him and supervisors had to come where he dropped the items.
When a worker drops an item, the supervisor is supposed to complete a report to submit to
management. Simpson had not had grievances before on any reprimands or other disciplines
before Evans, but after Evans, more people received discipline for dropping items. (Tr. 64.) 15
Simelton reported a recent incident where a worker driving a forklift placed a
transmission on top of a lighter part and the transmission flipped of the forklift. Simelton did not
witness the event and questioned the employee. He also called the supervisor and notified
operations to clean up the area. The worker remained employed two weeks after the incident. 20
Simelton did not know whether the employee received discipline. (Tr. 820–822.)
Specific to dropping an item, however, Respondent did not discipline an industrial worker
before Evans did so. (GC Exh. 39.)
25
2. cursing and threats
Employee/union steward Andrew Gray testified he was terminated for allegedly making
threatening comments to a supervisor. He grieved the termination, which settled for a 30-day
suspension, reinstatement and a last chance agreement. Gray’s events occurred after Evans’ 30
termination.
General Counsel points out that Evans was the first person in the facility to be terminated for
such an offense. However, no one testified that any supervisor or manager heard employees
cursing or verbalizing threats, much less failed to discipline for it. Bush testified that he did not 35
hear such language in the Byhalia facility.
X. RESPONDENT AND UNION RESOLVE EVANS’ SUSPENSION AND TERMINATION
THROUGH A GRIEVANCE SETTLEMENT
40
On June 30, 2016, HR Director Thomas participated in a third-step grievance meeting
regarding Evans’ suspension and termination in Byhalia. In preparation for the meeting,
Thomas reviewed Patino’s statement but could not recall reviewing others. Also present were
HR Generalist Cynthia Hayes and Manager Bush. Present for the Union were UAW Business
Representative Davenport and Rod Simpson. Hayes took notes for the meeting. (GC Exh. 36.) 45
Thomas estimated that the meeting lasted an hour.
Davenport raised that eight or nine more people had dropped items but only Evans
received discipline. Davenport stated the information was requested and, since Respondent
had not provided the information, the Union would continue to request it. (GC Exh. 36, p. 2.) 50
Davenport later said that Respondent was picking and choosing who would receive discipline.
JD–39–19
29
The Union raised the break room incident as an example of treating Evans differently than
others. Davenport talked about the lack of investigation into the break room incident and
explained how the lack of proper investigation into the metrics was troublesome. Davenport and
Bush discussed the matter for approximately 15 minutes. Returning to the alleged Rule 20
violation, Davenport and Simpson stated they interviewed a consultant who was in the area at 5
the time and that consultant heard no disturbance.
Also at issue during the meeting was Evans’ alleged attempt to access the facility after
he was notified by letter of his pending termination. Bush called the police. The officer
suggested that he file a restraining order but Bush did not. Bush did not file a police report 10
either.23
Simpson raised that Respondent had no investigative reports on the matter and did not
have the proper documentation to discipline him. According to Simpson, Bush got mad and
stormed out. (Tr. 95.) The Union contended that Evans’ statements were not as serious as15
Respondent claimed. (Tr. 262.) Thomas contended the witness statements confirmed what
they believed occurred. The meeting ended without resolution.
Thomas later discussed the situation with Labor Relations Director Youngdale, who
proposed they reinstate Evans back to the step 4 of discipline (30-day suspension) and put 20
aside the discipline for the accident because the information did not show the accident was
serious or intentional. (Tr. 263.) On July 8, 2016, the Union was presented with this proposal,
which it accepted. The terms specifically stated:
In resolution of both grievances . . ., the Company offers to rescind the 25
Work Rule #5 violation administered to [Evans] on 5/3/16 and reduce the penalty
for the Work Rule #9 and #20 violations to a thirty calendar day suspension as the
fourth step in the progressive discipline process. [Evans] official date of
reinstatement would be 6/3/16, and he will be provided backpay from that date
until he physically returns to work. 30
This grievance settlement is offered without prejudice to the issues
involved and without setting precedent.
Evans received backpay, less the 30-day suspension and was given an effective
reinstatement date of June 3, 2016. 35
On July 22, although the grievances were settled, Thomas called the contractor
mentioned by the Union in the third step meeting to verify the Union’s investigation. The
contractor verified that Evans was upset and stated, “You think you can do this shit and get
away with this. I will see you in court,” and “I will see you in 30 days and we will handle it then.” 40
The contractor further confirmed Evans said “you have no integrity” without any cursing. He did
not confirm that Evans was in a rage; instead the conversation confirmed that Evans cooperated
with security and asked for Simpson to file a grievance. (GC Exh. 50.) Thomas forwarded this
information to Youngdale.
45
Thomas testified the contractor was not present for the entire chain of events in the
hallway; she said the statement was incomplete and did not contradict Patino’s statement. (Tr.

23 Evans testified that, on May 18, 2016, he went to an area near the warehouse to meet with
Simpson and obtain a copy of the Disciplinary Action Report, which Respondent did not provide with the
termination letter. (Tr. 347.) He denied attempting to conceal his identity. (Tr. 348.)
JD–39–19
30
296.) Thomas testified that the only reason to contact the contractor was to determine whether
Patino’s statement was influenced. (Tr. 299.) Thomas also called Patino, who denied she was
influenced in writing her statement. (Tr. 301; Jt. Exh. 3.)
On Thursday, July 27, 2016, Union International Representative Davenport telephoned 5
Evans with the news the grievance was settled. The Union did not contact Evans about the
possible terms of settlement until the matter was complete. Davenport told Evans that the Rule
5 discipline (for safety and tipping the crate) was removed, but the other discipline, for the
threats and obscenities, remained on his record. HR Generalist Hayes also called Evans to tell
him to report to work on the following Monday at 7:00 a.m. When he returned to work, Evans 10
worked in outbound because he previously bid on a job there.
XI. DISCUSSION AND ANALYSIS OF MAY 2016 SUSPENSION AND TERMINATION
AND POSSIBLE DEFERRAL TO GRIEVANCE SETTLEMENT
15
A. Credibility
Bush’s email statement corroborates Evans, which said he would see him in court. Bush
alone testified Evans said he had no “fucking integrity.” Bush’s statement does not corroborate
the accusations that Evans said “I’m going to get your ass” or “I’ll be back in 30 days in we’ll 20
handle it then.” (GC Exh. 48.) Evans denied making such a statement. Bush admitted that he
was too far away to hear Evans’ entire diatribe. Bush denied that he ever heard employees in
the Byhalia facility use profanity. Interestingly, General Counsel’s witnesses did not testify that
employees used a modicum of profanity in the workplace. I therefore credit Bush that he had
not heard shop language. 25
Simpson’s testimony was too vague to rule out that Evans used the f-bomb towards
Bush or tell Bush he would get his ass. He was trying to hurry Evans out of the building. He
also did not present his own written statement for his investigation into what happened. I credit
his statement that Bush stormed out of the grievance meeting, having been confronted about 30
the validity of the discipline causing the suspension.
Patino, the contract security guard, stated she had difficulties recalling the events due to
her medical condition. She was brutally honest about what she could not recall. She
recognized Evans, but could not recall the actual event. (Tr. 985–987.) She did not have any 35
independent recollections and stated she would have written the statement for an incident report
as her usual practice. She did not recall whether anyone asked her to write it. Because of her
memory issues, she would not have been able to explain what the phrase “in a rage” meant
when she wrote it. Rage, as a noun, can mean violent anger or an intense feeling, without
necessarily indicating volume. See www.merriam-webster.com/dictionary/rage. 40
Patino disputed the statement that she was not in the meeting and never attended any
disciplinary meetings; instead her practice was to stay in the hallway and wait to provide the
escort, which I credit and is consistent with other testimonies. She also had no recollection of
talking with Thomas about the alleged coercion in her statement. I partially credit her written 45
statement as witnesses establish she was closest to Evans, putting her in the best position to
hear what Evans was saying. Some of her statement was corroborated by the contractor
working in that area. As a security guard, Patino had little incentive to create facts that could
make more work for her.
50
JD–39–19
31
Evans’ statements about integrity occurred as he exited the meeting. In hearing, Evans
became angry and verbally hostile with a slight increase in volume and I infer he exhibited the
same sort of conduct in this situation. As demonstrated in hearing, Evans has difficulty allowing
others to have the last word. Based upon Simpson’s investigations and Bush’s testimony, it is
clear that Evans was loud enough to cause at least one contractor to come out of offices or rise 5
from his cubicle to see what was happening. Based upon Thomas’s discussion with the
contractor, he heard at least part of Evans’ statements, but perhaps not all.
Bush and Thomas admitted they received Evans’ April 12 letter. Both claim they spent
no time looking at it and either threw it in a file or passed it along. Evans (?) testified that Bush10
would read the letter if he had a chance, which obtusely corroborates Bush’s claims that he
spent no time looking at the letter. I also credit that Thomas threw the letter into a file. I
therefore determine Respondent received Evans’ April 12 letter, failed to read it and more likely
chalked it up to Evans’ usual complaints, of which Respondent’s human resources staff were
acutely aware per emails. 15

I give some weight to Thomas’ conversation with the contractor despite the hearsay
nature. What Thomas reported was against the interest of Respondent. Administrative
agencies are not required to follow the technical rule of exclusion and are permitted to give
weight to hearsay “‘if rationally probative in force and if corroborated by something more than 20
the slightest amount of other evidence.’” West Texas Hotels, Inc., 324 NLRB 1141 fn. 1 (1997),
citing Alvin J. Bart & Co., 236 NLRB 242 (1978) and quoting RJR Communications, 248 NLRB
920, 921 (1980).
B. Parties’ Positions25
General Counsel contends that the suspension was unlawful due to several factors. For
the termination, General Counsel analyzes the situation as protected activity and whether Evans
lost the protection of the Act under Atlantic Steel Co., 245 NLRB 814 (1979). General Counsel
also contends that a Wright Line analysis demonstrates the termination was motivated by 30
animus because no other employees were discharged for using “harsh language” to a
supervisor or manager during or after a disciplinary meeting. (GC Br. at 39, citing GC Exh. 42.)
Regarding the suspension, Respondent admits Ayikwei’s investigation did not
“adequately document any unsafe or negligent conduct by Evans.” (R. Br. at 35.) This fact 35
made Respondent willing to rescind this discipline and make Evans whole in the grievance
settlement for that portion of the disciplinary action. Regarding the termination, Respondent
contends Patino’s statement is the most accurate of what Evans stated as she was the closest
to Evans. Respondent’s position is that General Counsel did not prove a prima facie case
regarding the termination and, even so, the grievance settlement should be controlling. 40
C. Discussion
1. Suspension for tipping crates
45
General Counsel presents a strong prima facie case. I do not rely upon Evans’ April 12
letter to show knowledge and animus. Youngdale acknowledged Evans’ claim he was targeted
for his activities. Knowledge and animus are shown in Thompson’s email in which she states
Evans was still “disruptive” on the third shift. Given similar conduct at the hearing, Evans
undoubtedly did not stop talking about his concerns under the collective-bargaining agreement 50
after the discipline for the claimed early break, whether in meetings or on the warehouse floor.
JD–39–19
32
Evans’ history reflects that the “disruptions” sometimes were related to collective-bargaining
issues and employee rights. No one receiving Thompson’s email denied Evans continued his
“disruptive” behavior, which is her euphemism for his activities. This euphemism has a
connotation for disliked union activities or “a code word for unhappiness with the employees’
propensity to talk to other people and to stir other employees and to, essentially, try to get them 5
interested in discussing the working conditions . . . .” Giant Prideco, L.P. d/b/a Tubular Corp. of
America, 337 NLRB 99, 105 (2001). See also: Boddy Construction Co., 338 NLRB 1083 (2003)
(“disruptive” influence as code for union support and activities); United States Steel Corp., 279
NLRB 16 fn. 1 (1985).
10
Respondent seized upon the incident to send Evans further down the progressive
disciplinary path. It relied upon a prior unlawful disciplinary action, which it knew to be incorrect.
Relying upon a prior unlawful discipline taints the subsequent disciplinary action. Relco
Locomotives, Inc., 358 NLRB 298, 311–312 (2012), rev. denied, enf. granted 734 F.3d 764 (8th
Cir. 2013).24 Respondent admits that it withdrew the discipline in the grievance settlement due 15
to Ayikwei’s insufficient investigation. The discipline was inconsistent with Respondent’s past
practice in which it did not discipline for tipping or dropping crates; this failure also raises an
inference of discriminatory motive. Giant Prideco, 337 NLRB at 99. General Counsel has
developed a strong prima facie case.
20
Worse, apparently no one in Byhalia heeded Youngdale’s sage advice to ensure
Respondent gave discipline consistently for this offense. I find that Respondent’s 30-day
suspension for tipping over crates was pretextual, particularly because Respondent treated
Evans disparately and gave disciplinary action when its investigation was obviously insufficient.
Respondent violated Section 8(a)(3) and (1) by issuing the 30-day suspension. 25
2. Termination for alleged threats in the hallway
Respondent contends that it was within its rights to terminate Evans and the grievance
settlement reduced the violation to a 30-day suspension. Respondent argues for deferral to the 30
grievance settlement. General Counsel contends that Evans did not lose the protection of the
Act during his promenade down the hall after the disciplinary meeting. I analyze this section
under Atlantic Steel, supra, to determine whether Evans lost the protection of the Act. I find that
Evans made the documented threats, noted by Patino, and that Evans told Bush he had “no
fucking integrity” exiting the conference room. The statements were made after the disciplinary 35
meeting concluded.
The Atlantic Steel analysis is applied to determine whether “an employee engaged in
concerted protected activity can, by opprobrious conduct lose the protection of the Act.” Id. at
816. Employees are given some leeway in their protected activities as labor relations may 40
trigger heated and angry disputes. Inova Health System v. NLRB, 795 F.3d 68 (D.C. Cir. 2015),
enfg. 360 NLRB 1223 (2014); Consumer Power Co., 282 NLRB 130, 132 (1986). At the same
time, employee rights are balanced with the employer’s interest in maintaining order in its
workplace. Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB 308, 311, (2014);
See Plaza Auto Center, Inc., 355 NLRB 493, 494 (2010), enfd. in part 664 F.3d 286 (9th Cir. 45
2011), decision on remand 360 NLRB 972 (2014). To ascertain whether an employee lost

24 The Board decision in Relco, supra, was decided by a Board panel that included two persons whose
appointment to the Board were held invalid. See NLRB v. NLRB Canning, 134 S.Ct. 2550 (2014). The
Eighth Circuit enforced the Board’s Order before Noel Canning and there is no question regarding the
validity of the court’s judgment.
JD–39–19
33
protection of the Act, four factors, which must be “carefully balance[d],” are examined: (1) the
place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor
practice. Atlantic Steel, 245 at 816.
5
For the first factor, the place of the discussion was in the hallway, exiting the conference
room. General Counsel contends, and I agree, that this factor favors Evans as it did not occur
on the warehouse floor and did not disrupt Respondent’s production. I find the only employee
hearing the matter was Simpson, who was present as the union steward. This factor favors
protection. AdvoServ of New Jersey, Inc., 363 NLRB No. 143, slip op. at 36 (2016). 10
The second factor is the subject matter of the discussion. The meeting itself was about
the disciplinary action. Simpson and Evans had no opportunity to explain or discuss it. Evans
obviously was displeased and angered. However, the meeting was over when Evans started
into his statements. While a discussion of the discipline would have been protected, Evans 15
shifted the discussion to accusations about integrity and what he planned to do about it.
Although the matter concluded with Evans telling Simpson to file a grievance and leaving the
building, this factor tips towards loss of protection.
For the nature of the outburst, I consider three points: One is whether Evans created a 20
loud disturbance; another is the statement to Bush about “no fucking integrity”; and third, Evans’
threats, contained in Patino’s written statement.
Regarding the volume of Evans’ statements, Thomas, who had heard that Patino’s
statement may have been coerced, spoke with the contractor mentioned in the third step 25
grievance meeting after Evans’ termination. The contractor partially confirmed what the Union
representatives said: Evans had not caused any disturbance and he heard no threats. Here, I
take the contractor’s version with a grain of salt, because the outburst was loud enough for him
to hear at least part of what happened.
30
The statements—the “no fucking integrity” comments to Bush and the alleged threats—
are examined for whether the outburst possibility “could undermine an employer’s authority . . .
.” NLRB v. Starbucks Corp., 679 F.3d 70, 79 (2d Cir. 2012). For obscenities, the Board
assesses the level of risk of other employees hearing the obscenities. Id. at 79–80 and cases
cited therein. For the “no fucking integrity” statements to Bush, save Simpson, the risk of 35
warehouse employees hearing it were low. No evidence shows anyone in the cubicles heard
Evans verbalize obscenities. Although certainly disrespectful, Evans did not undermine Bush’s
authority to the warehouse employees. See Winston-Salem Journal, 341 NLRB 124, 126
(2004), enf. denied sub nom. Media General Operations, Inc. v. NLRB, 394 F.3d 207 (4th Cir.
2005) (Board finds obscenities, calling manager racist, and pointing finger at manager 40
insufficient to lose protection). If it had been the only part of the events, it may have been
considered a “single verbal outburst of insulting profanity” would not cause loss of protection.
Plaza Auto Center, 355 NLRB at 495.25 However, Evans treated Bush with disrespect, which
tips this factor towards losing protection of the Act. Felix Industries, Inc. v. NLRB, 251 F.3d
1051, 1055 (D.C. Cir. 2001) (employee called supervisor “fucking kid” three times); Stanford45
New York, LLC d/b/a Stanford Hotel, 344 NLRB 558, 558–559 (2005) (this factor favored lost
protection when employee called general manager “a fucking son of a bitch”).

25 The Ninth Circuit remanded Plaza Auto Center for rebalancing of the Atlantic Steel factors, because
the nature of the employee’s outburst was not protected. On remand, the Board still found that the
employee did not lose protection of the Act but accepted that this factor favored loss of protection. 360
NLRB 972.
JD–39–19
34
The other consideration is Evans saying, more than once, that he was going to “get
[Manager Bush’s] ass.” This statement is different than the employee who told his boss to get
his ass” back in the office. United States Postal Service, 251 NLRB 252, 256-257 (1980), enfd.
652 F.2d 409 (5th Cir. 1981). The question arises whether the threats are sufficient to make 5
Evans unfit for service:
[t]he Board draws a line between “cases where employees engaged in
concerted actions that exceeded the bounds of lawful conduct in a moment of
animal exuberance or in a manner not motivated by improper motives and those 10
flagrant cases in which the conduct is so violent or of such character to render
the employee unfit for further service.”' Kiewit Power Constructors Co., 355
NLRB 708, 711 (2010), enfd. 652 F.3d 22 (D.C. Cir. 2011), citing Prescott
Industrial Products Co., 205 NLRB 51, 51–52 (1973). In Kiewit, the Board found
protected remarks that were “intemperate” but simple, brief, and spontaneous 15
reactions, distinguishing them from premeditated, sustained personal threats, or
unambiguous or outright threats of personal violence. Id. [additional cites omitted]
United States Postal Service, 360 NLRB 677, 683 (2014).
20
Here, Evans impliedly threatened Bush. Thus, Evans’ conduct was somewhere in
between conduct with improper motive and explicit personal threats. Threatening “see you in
court” is permissible. Impliedly threatening harm is not. Given the current work environments,
with sensitivity towards workplace violence, these statements cannot be taken lightly. The
situation is not analogous to Consumers Power Co., 282 NLRB at 137. The employer “blew up” 25
an incident with the alleged discriminatee’s hand brushing against a supervisor’s chest. The
incident did not include any additional striking blows, threatening gestures, or other threats. Id.
Here, harm was impliedly threatened. This factor strongly favors losing protection of the Act.
The fourth factor, whether the outburst was in response to an unfair labor practice, 30
supports finding protection. As previously discussed, Evans had just received a 30-day unpaid
suspension, which I found was unlawful. Had Respondent followed Youngdale’s advice about
checking for consistency in disciplinary action or not proceeded because of Ayikwei’s insufficient
documentation, the disciplinary meeting would never have taken place. No other unfair labor
practice occurred with the disciplinary action. This factor favors protection. 35
In balancing the factors, the location and response to an unfair labor practice favor
protection. The subject matter and the nature of the outburst point towards no protection. Given
the implied threats, I conclude that Evans lost the protection of the Act. I recommend that this
allegation be dismissed. 40
D. Defer to the Grievance Settlement?
In cases with merit, the Board may defer a grievance settlement as long as it meets the
standard set forth in Alpha Beta Co., 273 NLRB 1546 (1985), rev. denied sub nom. Mahon v. 45
NLRB, 808 F.2d 1342 (9th Cir. 1987) and Independent Stave, 287 NLRB 740, 743 (1987). See
Babcock & Wilcox, 361 NLRB 1127, 1139 (2014), rev. denied sub nom. Beneli v. NLRB, 873
F.3d 1094 (9th Cir. 2017). Before applying the 4 Independent Stave factors, the settlement is
examined to show that: the parties intended to settle the unfair labor practice issue; that they
addressed it in the settlement agreement; and that Board law reasonably permits the settlement 50
agreement. Id.
JD–39–19
35
As a policy, non-Board settlements that do not provide a full remedy is part of the
Board’s policy to encourage “nonlitigous resolution of disputes.” Id. at 741. The Board recently
reaffirmed these principles in UPMC, 365 NLRB No. 153 (2017) (reversing United States Postal
Service, 364 NLRB No. 116 (2016)). The remedy does not have to be identical to a full Board 5
remedy, as that requires the parties incur the litigation risks and costs. Id. at 742–743.
Independent Stave, 287 NLRB at 743, explains further:
Each of the parties to a non-Board settlement recognizes that the
outcome of the litigation is uncertain and that he may ultimately lose; thus, the 10
party in deciding to settle his claim without litigation compromises in part,
voluntarily foregoing the opportunity to have his claim adjudicated on the merits
in return for meeting the other party on some acceptable middle ground. The
parties decide to accept a compromise rather than risk receiving nothing or being
required to provide a greater remedy. When we reject the parties' non-Board 15
settlement simply because it does not mirror a full remedy, we are consequently
compelling the parties to take the very risks that they have decided to avoid, as
well as depriving them of the opportunity to reach an early restoration of
industrial peace, which after all is a fundamental aim of the Act. See International
Harvester Co., 138 NLRB 923, 926 (1962).20
As noted above, the testimony does not demonstrate that the parties intended to settle
the unfair labor practice issue. The unfair labor practice was not addressed in the settlement
agreement. The Union did not have the power to settle the unfair labor practice because Evans,
as an individual, filed the unfair labor practice charge. In addition, the Union did not confer with 25
Evans until after the settlement was a done deal. These factors alone make deferral
inappropriate and the Independent Stave analysis is unnecessary. Therefore, deferral to the
grievance settlement is not warranted. See Midwest Television, Inc., 343 NLRB 748, 763 (2004)
(incomplete monetary settlement and charging party did not sign agreement did not preclude the
Region from proceeding); Alpha Beta, supra, at 1547–1548. 30
XII. AFTER REINSTATEMENT, EVANS CONTINUES HIS UNION ACTIVITIES
Evans returned to work on August 1, 2016, in outbound on first shift. His supervisors
were Mark Leftwich and Bobby Clark. Evans testified he had no problems with either of those 35
supervisors.
After Evans returned to work, about August 2016 through January 2017, Evans
purchased and distributed union t-shirts. (GC Exh. 27; Tr. 505–506.) The shirts had on the front
the slogan, “In solidarity there’s unity. There’s solidarity in strength,” and the back with the UAW 40
logo. Evans and other bargaining unit employees distributed to union members during breaks
and before and after work. (Tr. 366.) No supervisor or manager ever commented to Evans
about the t-shirts or their distribution. (Tr. 506.)
From August 2016 until March 2017, Evans also distributed printed materials to 45
employees during break times or before and after shifts. (See, e.g., GC Exh. 28.) In January
2017, Evans requested the Union file a grievance about overtime and the seniority list. After
Respondent investigated the grievance, a number of employees, including Evans, received
compensation. (Tr. 370–371.) From the time of his reinstatement in August 2016 until his
termination on March 17, 2017, Evans testified that he could not recall any management actions 50
JD–39–19
36
that could be characterized as hostile or retaliatory. (Tr. 565.) No evidence shows Respondent
was aware of any of these union activities.
XIII. RESPONDENT NOTIFIES EMPLOYEES IT WILL ENFORCE BREAK BUZZER TIMES
5
A. Orcun Meets with Employees
In March 2017, Evans was still working in the outbound area on the first shift. The
outbound department was divided into four operating units and each usually held its own pre-
shift meeting. 10
In 2017, Respondent shortened the preparatory buzzer time from 5 minutes to 3
minutes. The buzzer had been in place at 5 minutes since 2015. The change came after
managers complained that industrial workers lined up to take break or waited in the breakroom
even before the 5-minute buzzer rang. (Tr. 1047.) This change was announced at a meeting 15
with all outbound employees on March 16, 2017.26
Typically, Mark Leftwich or Bobby Clark conducted the outbound pre-shift meeting. That
day, however, Onur Orcun, Kevin Bush and Bobby Clark attended the meeting. The meeting
lasted approximately 15 to 20 minutes. Orcun had not attended a pre-shift meeting before this 20
time. Early in the meeting, Orcun27 announced that Respondent was implementing a different
procedure for employees taking breaks. The buzzer to announce lunch times already rang at 10
minutes before break. During that time, employees would be allowed to prepare for breaks by
walking to the break room, or parking and charging their vehicles. Orcun announced that the
buzzer instead would ring at 5 minutes before break time and employees would have to line up 25
at the warehouse door until official break time before entering the break room.28 Per Bush, no
employees would be allowed in the break room until the second buzzer. Bush also talked about
implementing the new system. He told employees that failure to follow the system would result
in disciplinary action under the Code of Conduct, Rule 5, Wasting Company Time.
30
Several employees asked questions. Oncur explained that half the warehouse
employees wasting 2 to 3 minutes per day added up to a significant amount of wasted
production time. When asked whether the rule would be enforced equally or up to management,
Oncur said that management would have discretion over who received discipline. After
approximately 15 minutes, Evans asked Orcun if the new system was a change in terms and 35
conditions of employment. When Orcun asked for an explanation of the question, Evans stated,
“[U]nder the collective bargaining agreement isn’t this a material item that needs to be bargained
for, and that a request to bargain needs to be filed or should be filed in regard to this change of
past practices and policies.” (Tr. 378.) Orcun testified that he recalled Evans raising the terms
and conditions of employment. (GC Exh. 63 at 2.) Another employee then asked why this 40
change was happening, especially with the overcrowded conditions in the bathrooms. Others
commented that the break rooms did not have enough microwaves.29 Bush said the change

26 Orcun, whose affidavit served as his testimony, could not recall when the meeting took place. Bush
could not recall specifically when the time was changed and thought it may have occurred in 2017. (Tr.
1046.) This would have been the inbound meeting as Bush denied conducting the outbound meeting.
(Tr. 1101.) Because Bush was unclear on the dates, I do not credit that he was conducting the outbound
meeting.
27 Gray testified that Bush announced the new buzzer system. (Tr. 435.)
28 Evans testified that Bush already implemented this system in inbound. (Tr. 376.)
29Although Evans testified that Gray asked about changes in past practices and whether management
could make such changes, Gray denied making any statements. (Tr. 437.)
JD–39–19
37
was within management discretion. Evans then said, “Who told you that? Who told you that?”
(Tr. 380.) Bush did not answer Evans but argued with another employee.
When the employees were dismissed from the meeting, Evans went into the warehouse,
carrying his equipment. Before Evans reached his equipment, Oncur and Bush walked up to 5
him. Bush said Evans should not be carrying his equipment but have it on.
B. Discussion
The complaint specifically alleges Respondent unilaterally changed the enforcement time 10
in which employees could prepare for breaks.
1. Parties’ positions
General Counsel contends that Respondent did not enforce rules regarding the buzzer 15
system before March 16, 2017, and multiple employees so testified. Four employees were
disciplined after Respondent made the change. According to General Counsel:
The Board has held that a change to more strict enforcement of pre-
existing rules constitutes a change in employees’ terms and conditions of 20
employment over which an employer has an obligation to bargain. Hyatt Regency
Memphis, 296 NLRB 259, 263-4 (1989); see also Vanguard Fire & Supply Co.,
Inc., 345 NLRB 1016, 1017 (2005). Here, the evidence in this case clearly
establishes that Respondent unilaterally shifted from a prolonged phase of non-
enforcement of the buzzer system rules to a phase of strict enforcement that was 25
ushered in on March 16 without providing the Union with the legally requisite
notice and an opportunity to bargain.
Respondent maintains General Counsel did not carry its burden of proof. Respondent
points out the record has little evidence that Respondent issued more discipline to employees 30
for abuse of the buzzer system. The complaint does not challenge the rule itself. The Union did
not file a grievance over the rule, nor did it file the underlying charge over this matter. (R. Br at
41–42.)
2. Analysis35
General Counsel is correct that Respondent cannot more stringently enforce the rules
without notifying and bargaining with the Union. In Hyatt Regency Memphis, 296 NLRB at 263–
264,30 the employer enforced the sign-in/sign-out sheet violations erratically, if at all, before an
election. After the election in which employees selected union representation, the employer 40
suddenly enforced the rule. The evidence there showed in the 7 months before the election, no
employee had been disciplined at all for violations despite supervisors “tolerat[ing] and
condon[ing]” employee violations. Id. at 264.
As noted, Respondent operates buzzers to notify staff of preparing for any break time, 45
including lunches, and the actual start of break time. Respondent also operates buzzers to
notify employees when the break period is about to end and again at the actual end of break
period. Orcun told the employees that the amount of time to prepare would change from 5

30 The Sixth Circuit affirmed the Board decision in 939 F.2d 361, 373 (6th Cir. 1991) and granted
enforcement in 944 F.2d 904 (6th Cir. 1991) (unpub.).
JD–39–19
38
minutes to 3 minutes. Orcun expressed concern that the employees were losing too much time
to break preparation. The evidence as early as 2016, with Evans’ discipline and others
receiving counselings and warnings, shows Respondent enforced its rules, albeit inconsistently.
The enforcement could have been in the form of counseling (being in the break room before the
buzzers) to progressive discipline. 5
The disciplinary actions relied upon by General Counsel is unlike the evidence in Hyatt
Regency, supra, in that it does not draw a consistent comparison pre- and post-announcement.
To threaten discipline is one thing; to execute the threat is another. Four disciplinary actions
between March 2017 and August 2018 does not demonstrate Respondent more stringently 10
enforced the rule. The record on Evans demonstrates that Respondent gave counseling and
other discipline for early entrance into the break room, violating the buzzer system even before
the length of time was shortened. I therefore recommend that this complaint allegation be
dismissed.
15
XIV. ON MARCH 20, 2017, RESPONDENT TERMINATES EVANS AFTER HE BACKS OUT OF AN AISLE ON
MARCH 17, 2017
Safety rules for operating equipment in the warehouse include not backing into or out of
aisles. (Tr. 82; GC Exh. 58 at 1.) These rules have been in place since 2015. 20
The day after the outbound meeting about the break buzzer, Friday, March 17, 2017, at
about 8:30 a.m., Evans admittedly backed out of an aisle while working on an order picker. The
three main aisles allow traffic, both mechanical and foot, in two directions. A number of the
aisles, used for picking, can be traversed only in one direction and bisect the main aisles. The 25
aisles for picking have racks where the merchandise is stored. Some of the aisles have cross
tunnels to cut across the racks without going into the main aisles. Near the area where Evans
backed up was a managers’ desk, where the managers and supervisors were conducting a
meeting.
30
A. Events Leading to Evans’ March 2017 Termination
Evans testified that he needed to pick an item in aisle 127. Aisles 126 and 128 travel in
the same direction and allowed entry from the main aisle B; aisle 127 travels in the opposite
direction. Aisle 129 allows two-way traffic. Evans pulled into aisle 126 from main aisle B. He 35
testified that he backed out of aisle 126 because the aisle was blocked by a safety cone and
other pieces of equipment in the aisle, including another order picker and a reach truck. Evans
sat in the aisle for approximately 1 minute, observing that the reach truck operator flipped his
emballage upside down and the emballage’s sides came apart. Evans did not want to block the
aisle and was further concerned about the safety cone. Evans could not reach the cross tunnel 40
to cut through to another aisle. He backed the order picker into main aisle B for about 20 feet to
straighten out and prepared to go forward. The order picker had no mirrors and Evans had to
look around to back up. As he backed up, Evans testified that he blew his horn.
At about 8:30 a.m., the management team in the outbound area began its daily 45
operational meeting in the main aisle, approximately 80 feet from aisles 126–128. Manager
Bush, Supervisor Bobby Clark, Operational Support/Safety Supervisor Burt Barton, inbound
team lead Deadrick Simelton, Quality Supervisor Randy Sheeley were present in the meeting.31

31 Clark testified to leading questions regarding others at the meeting. He credibly raised that the
personnel changes made it difficult to recall each person at the meeting. (Tr. 696–697.) Sheeley and
JD–39–19
39
During the meeting, Bush pointed out that someone on a truck was backing out into the aisle
and pointed at the person backing out. (Tr. 1035.) Bush could not see who was on the vehicle.
Bush said the person started to back up again. Clark, who had his back to the aisle in question,
immediately turned around and saw the person backing out of the aisle into the main aisle.
Barton, in charge of safety, started to move towards the truck. Clark also went to the truck. 5
Clark testified that Evans was backing out of aisle 128.
According to Evans, Supervisor Clark walked up to him as he prepared to drive forward.
Evans testified that Clark asked to speak with him but went to speak with two other drivers first.
Evans testified that he drove toward a cross aisle into aisle 127 and obtained his item. (Tr. 413–10
414; GC Exh. 29, DLX log.) When Clark and Evans were able to converse, Clark told him he
should not be backing out of the aisle.
Clark testified that he reached Evans while Evans was still backing up. He told Evans
that he incurred a safety violation, which Bush had pointed out, and that they would need to talk 15
about it later. Clark further testified that Evans admitted he knew it was a safety infraction but
he had to get out of the aisle. Clark told him the issue would be addressed later in the day but
would allow him to complete the back out. The main aisle was clear, and Clark allowed him to
continue because Evans was already at least half-way into the aisle. (Tr. 699, 715.) By that
time, Barton was at the site, taking cell phone photographs of the incident. Clark and Barton 20
returned to their meeting and discussed the safety violation. (Tr. 700.) Clark could not recall
whether Evans had an emballage.
At about 9:30 a.m., Orcun, Otto and the managers met for the management escalation
meeting to review the previous day’s production and deal with any issues. Usually, personnel 25
issues were not discussed at these meetings, but safety issues were. Shortly before the
meeting, Bush, with Clark present, advised Otto that Evans had a safety issue after the meeting.
At about 10 a.m., the three discussed what they observed with Evans. Otto asked Bush to have
each witness send him an email and the photographs taken by Barton. Bush sent his statement
and had no further involvement as Evans did not report to him. (Tr. 1038.) 30
At 10:45 a.m., Simelton sent an email to Otto and Bush stating only that he saw Evans
backing out of a location. He testified he did not know whether Evans sounded his horn, but he
was 60 to 70 feet away. He also could not recall specifically whether the main aisle had traffic
but at that time of the morning, traffic was usually present in the main aisle. 35
After hearing from Bush and Clark, Otto notified Labor Relations Manager Youngdale,
HR Director Thomas, and Director Orcun because Evans’ unfair labor practice hearing was
scheduled for March 27 (10 days later).
40
At about 10:45 a.m., HR Manager Otto met in his office with Evans and the first shift
union committeeman, Richard Green. (Tr. 408, 913–914.) Otto testified that, before this
incident, he would not have recognized Evans. Evans admitted backing out of the aisle because
others were in the aisle and to prevent an individual from being trapped in the aisle without
egress. Evans said to block would have violated OSHA standards. Evans further said he was 45
careful when he backed out and honked his horn while doing so. Otto asked Evans to write a
statement and permitted Evans to write the statement after lunch.

Barton, who were present at the meeting, had since been terminated for various reasons. (Tr. 913.) They
did not testify.
JD–39–19
40
Evans’ recollection of what Otto specifically said was somewhat fuzzy. He recalled Otto
raised that he backed out of an aisle and allowed the two employees during their lunch to return
to aisle 126 to document what happened. Evans stated he and Green used their phones to take
pictures of the mess in aisle 126, which was still there. These pictures were not available for
hearing. After lunch, Evans provided Otto with a handwritten statement. (GC Exh. 30.) At the 5
time he wrote the statement, Evans claimed he could not recall the exact location of the item
and later completed it. (Tr. 574, citing Jt. Exh. 2 at 301.)32 Evans provided his DLX log at some
point. Evans continued to work in the warehouse for the rest of his shift.
At 11:25 a.m., Clark sent Otto an email to document what he observed. (Tr. 701, 718; Jt. 10
Exh. 3, Company Exh. 16.) The email only stated Clark witnessed Evans backing up and
includes no details, such as which aisle or whether Evans sounded his horn. The failure to
sound the horn would be another safety violation.
After receiving the emails, Otto conducted further investigation, comparing aisle 128, 15
where the supervisors said Evans was backing out, and aisle 126, where Evans said he backed
out. He tried to discover whether a safety cone was present, as Evans said one was in the area.
He also reviewed Evans’ DLX logs for Evans’ picks. (Tr. 951; GC Exh. 29.) The record reflects
that Evans had been making a pick in aisle 127 at approximate 8:39 a.m., a few minutes after
the managers observed Evans. Otto did not go back to Evans to clarify that the pick records 20
were not consistent with Evans’ recollection of which aisle he was in. (Tr. 952–954.)
Otto reviewed Evans’ disciplinary logs to determine Evans’ stage of discipline. Otto
discovered that Evans was a step 4 in his discipline and the next step was step 5, termination.
Otto, per his usual practice, drafted a report. He then submitted the report to Youngdale and 25
Thomas on Monday, March 20. (GC Exh. 51.) According to Otto, Bush was not consulted about
the decision to terminate Evans. (Tr. 924.) Otto testified that he was unaware that no one
received discipline at any level for backing out of an aisle before Evans. (Tr. 968.) Otto credibly
testified that the upcoming unfair labor practice hearing played no role in the decision to
terminate Evans. 30
On March 20, 2017, Evans and alternate committee person LeRonne Jones33 attended a
meeting in Otto’s office with Otto, outbound Manager Derek Hare and Supervisor Mark Leftwich.
Otto read a statement to Evans from a disciplinary action report, identifying that Evans violated
work rule 5. Evans was terminated pursuant to Respondent’s progressive discipline policy. (GC 35
Exh. 31.) Otto then asked Evans if he had anything to say. Evans did not and refused to sign
the disciplinary report. However, as he left the room Evans said, “I hope you got it right this
time.” (Tr. 928.) The Union grieved this termination, which eventually was arbitrated.
B. Respondent and the Union Arbitrate Evans’ Termination Grievance40
Evans’ termination grievance reached arbitration on October 4, 2017. (Jt. Exhs. 2, 3, 4.)
Respondent asked the arbitrator to hear and decide the issues contained in the Section 8(a)(3)
and (4) unfair labor practice charges. The Union objected as it was not a party to any of the
unfair labor practice charges. The arbitrator asked the parties to discuss the issue in the post-45

32 Evans’ testimony regarding what he was trying to pick and where shifted from the arbitration, where
he gave sworn testimony, to this hearing. Eventually the DLX sheet showed he should have picked the
item at aisle 127–157. Otto’s hearing testimony confirmed that Evans did not initially recall which aisle
from which he backed out.
33 Otto initially testified that Richard Green was present at the termination meeting instead of LaRonne
Jones. (Tr. 964.)
JD–39–19
41
hearing briefs. Despite this ruling, Evans raised the Board charges during his arbitration
testimony. The arbitrator warned that things were getting far afield. (Jt. Exh. 2 at 320–321.)
The parties were permitted to present witnesses, examine and cross-examine witnesses,
and to enter documentary evidence into the record. Both parties were permitted to submit briefs 5
to the arbitrator.
The arbitrator denied the grievance and upheld Evans’ termination. (Jt. Exh. 4.) The
arbitrator cited applicable contractual provisions, including Art. 20 Sec.4, limiting his jurisdiction
to issues fully grieved and Art. 19 Sec. 1, in which employees could be discharged only for just 10
cause. The arbitrator found that Evans backed out of aisle 128 instead of aisle 126, which was
a violation of Rule 5. He did not rely upon Respondent’s allegation that Evans failed to honk the
horn as well, as it was unlikely that they heard the horn. Because Evans was at the step of
progressive discipline requiring termination, the arbitrator determined Evans was discharged for
just cause. (Jt. Exh. 3 at 14.) Regarding Respondent’s desire to obtain determination of 15
whether Evans’ union activity and Board charges were involved in the termination, the arbitrator
sided with the Union and limited his determination to just cause as required by the collective-
bargaining agreement. (Jt. Exh. 3 at 15.)
C. Disparate Treatment Evidence20
Respondent gave all levels of discipline for safety, Rule 5 violations. Evans was the only
one terminated. Otherwise, the disciplinary actions included over 35 verbal reminders, several
written reminders, several written warnings, 2 5-day suspensions, and 1 30-day suspension.
The level of prior discipline for these employees was unknown, as was whether they had any 25
union activity.
Reported safety violations with disciplinary action occurred in 2015 and 2016. A few
examples pre-date Evans’ discipline. One was traveling on the wrong side of aisle, failing to
come to a complete stop and failing to sound the horn on December 8, 2015. (GC Exh. 39 at 6). 30
The 30-day suspension was for speeding in an area where the posted limit is 9 miles per hour.
Another received a verbal reminder for failing to stop at an intersection on August 8, 2016. (GC
Exh. 39 at 28.)
On March 15, 2017, Dominique Hill received a written reminder for running a stop sign. 35
(GC Exh. 39 at 43–45.)34 After Evans’ discipline, three other employees were disciplined for
backing out of or into aisles. (GC Exh. 39 at 73; GC Exh. 41.)
Bush testified that he would give discipline for backing out if he was substituting for a
supervisor and the person reported to him that day; if not, he would report the incident to the 40
offending employee’s supervisor and manager. Bush also testified that this was the first time he
observed someone backing out of an aisle, although he knew that others had been disciplined
for it. (Tr. 1095.) However, he knew of no one at the facility who was so observed before
Evans’ March 17 incident. (Tr. 1095–1096.) Nor did the evidence reflect anyone disciplined for
backing out of an aisle before March 17. 45

34 Otto initially testified that he did not know who Hill was. Upon examining the relevant pages of
discipline, he recognized his report documenting that he observed Hill running a stop sign during the
escalation meeting. The service center manager, in the meeting with Otto, recognized and identified Hill.
Otto told the manager that Hill needed to be written up for running the stop sign. (Tr. 937–938; GC Exh.
39 at 43–45.)
JD–39–19
42
Simpson backed out of aisles and primarily worked as an order picker when the aisles
were blocked. However, he could not recall that a supervisor or team leader ever saw him do
so. He also observed other employees doing the same. He stated Respondent is stricter about
enforcement nowadays. 5
Gray also observed people backing in and out of aisles with team leads and supervisors
in the area but did not know whether the supervisors observed this conduct. (Tr. 439.) Gray
had not filed any grievances about it. Gray recently asked his team leader about backing in or
out of an aisle; the supervisor said to just work smart, even if you have to pivot in an aisle. 10
Because I have found team leads are not supervisors or agents, this answer is insufficient.
Dobson, who worked in inbound, also backed his vehicle out of aisle because others
were working in the aisle. He received no discipline for doing so. However, he did not testify
that supervisors observed him doing so and ignored it. One team leader, Ahmad Rafee, gave 15
written instructions to his team to back out of aisles safely one morning when an aisleway was
blocked. Also a certified trainer, Dobson never retrained anyone for backing in or out of an
aisle. (Tr. 655.) He testified that Inbound Manager Bush was among the more stringent
managers about enforcing the rules.
20
D. Credibility
Union committeeman, now chairperson, Glenn Dobson is almost completely credited.
He demonstrated knowledge of the equipment. When he was not familiar with the dates, he
stated such. He testified also that he instructed industrial workers that they were not to back in 25
and out of aisles, yet the practice took place. This position is contrary to General Counsel’s
interest. However, I do not rely upon his testimony about his recent questioning of the
supervisor and backing up: The safety rule is clear about not backing out of aisles. In addition,
Dobson asked the question closer in time to the hearing.
30
Deadrick Simelton, a former union shop steward and now team lead, testified in a
straightforward fashion and did not attempt embellishment.
In addition to prior credibility observations, Evans argued much of the time that he was
backing out of aisle 126 instead of aisle 128. However, at one point, he said it did not matter 35
which aisle it was. Respondent points out that Evans was questioned why he did not travel in
the two-way aisle 129 and cut through a tunnel, or travel in aisle 128 in the same direction;
Evans responded: “You have a choice. You have a choice. Either way. I mean, I did it. I
mean, I cut down there. So what. So what. I backed out. Yes, I did. Everyone backs out.”
(R.Br. at 39, citing Tr. 578–584.) 40
General Counsel suggests that Respondent’s failure to produce Barton to testify should
draw an adverse inference. Respondent terminated Barton after the arbitration under what
Respondent termed “unpleasant circumstances.” (Tr. 910.) I decline to take an adverse
inference as Barton was no longer under Respondent’s control and General Counsel also had a 45
month in which to subpoena Barton. Advocate South Suburban Hospital v. NLRB, 468 F.3d
1038, 1049 (7th Cir. 2006), enfg. 346 NLRB No. 23 (2006). Barton’s photographs, contained in
the arbitration record, demonstrate what the arbitrator relied upon, but neither party relies upon
those photographs as substantial evidence for this hearing.35

35 Several witnesses in this hearing also testified before the arbitrator. I do not rely upon any
JD–39–19
43
I credit Otto did not recall recommending discipline to Hill, as it implies Respondent was
attempting to enforce its safety rules. However, I do not credit Bush that he did not see 5
employees backing out of aisles before this incident with Evans. The evidence does not support
his contention that others were so disciplined before Evans and only demonstrates that
employees received discipline for backing out after Evans’ termination.
E. Discussion10
I find that Respondent, by terminating Evans, violated Section 8(a)(3) but not Section
8(a)(4).
1. Termination and 8(a)(3)15
The 8(a)(3) allegation again is analyzed under Wright Line, supra, as Respondent
contends it has legitimate reasons for its actions. Evans expressed concerns at the meeting the
day before he backed out of the aisle, with Orcun and Bush present. Raising concerns about
the breaks with other employees at the meeting is concerted activity. AdvoServ of New Jersey, 20
363 NLRB No.143, slip op. at 34 and 35 and cases cited therein. Bush, who witnessed Evans
backing out, was present at the meeting the previous day. Orcun recalled that, during the
meeting with other employees, Evans raised the collective-bargaining agreement. Bush was
familiar with Evans from prior activities, such as the previous unlawful disciplinary actions.
Respondent is tasked with the knowledge and animus of its supervisors. 25
Timing points towards animus as the termination was 4 days after Evans spoke out at
the meeting. The termination, claimed to rely upon the progressive disciplinary system, also
“stands on the shoulders” of prior unlawful discipline, which had not yet been removed from
Evans’ record. As to the disciplinary actions for backing out of aisles after Evans’ termination, 30
Respondent’s actions smack of trying to close the barn door after the cows are let out. These
factors also demonstrate animus.
2. Termination and Section 8(a)(4)
35
Section 8(a)(4) of the Act makes it unlawful for an employer to discriminate against an
employee because he has filed charges or given testimony under the Act. 29 U.S.C. §158(a)(4);
Airgas USA, LLC, 366 NLRB No. 92, slip op. at 6 (2018), enfd. __ Fed.Appx. __ (6th Cir.
January 14, 2019). The purpose of Section 8(a)(4) is to “assure an effective administration of
the Act by providing immunity to those who initiate or assist the Board in proceedings under the 40
Act.” Briggs Manufacturing Company, 75 NLRB 569, 571 (1947). In cases where motive is an
issue, the Board analyzes Section 8(a)(4) and (1) violations under the Wright Line framework.
Shamrock Foods Co., 366 NLRB No. 107, slip op. at 10 (2018).
General Counsel establishes a weak prima facie case for a Section 8(a)(4) violation. 45
Knowledge is easily established. Evans filed charges with Board and participated in providing
evidence, a fact that could not escape Respondent’s purview. Otto was aware of the upcoming

credibility determinations made by the arbitrator and instead rely upon my own observations and
likelihood of events. However, some testimony in the arbitration hearing was inconsistent with testimony
at hearing and the parties used it for impeachment.
JD–39–19
44
hearing involving Evans. Respondent’s managers discussed what to do considering the
upcoming hearing, with direction for consistency.
The showing of animus is essentially nonexistent: General Counsel relies upon that
Respondent’s timing of termination occurred approximately a week before Evans’ earlier unfair 5
labor practices cases were scheduled for hearing. Despite Otto’s admitted knowledge of the
upcoming hearing and managers’ notifications, I find no other evidence of animus towards
Evans’ activities with the Board except the timing, which was a function of when Evans backed
out. S. Freedman, 362 NLRB No. 82, does not support finding a Section 8(a)(4) violation. The
Board found that Respondent’s stated reason for terminating the alleged discriminatee for 10
driving on an expired license was false and the administrative law judge credited the alleged
discriminatee did not lie about having a current license. Id.
I therefore recommend dismissal of the 8(a)(4) allegation. Sara Lee d/b/a International
Baking Co., 348 NLRB 1133 (2006). 15
3. Defer the 8(a)(3) violation to the arbitrator’s decision?
The Board has considerable discretion in determining whether to defer to the arbitration
process when doing so will serve the fundamental aims of the Act. Wonder Bread, 343 NLRB 20
55 (2004). Also see: United Technologies Corp., 268 NLRB 557 (1984); Collyer Insulated Wire,
192 NLRB 837 (1971); Dubo Mfg. Corp., 142 NLRB 431 (1963). The Board’s standard for
deferring to arbitral awards is also solely a matter for its discretion, as Section 10(a) of the Act
expressly provides that the Board is not precluded from adjudicating unfair labor practice
charges even though they might have been the subject of an arbitration proceeding and award. 25
Babcock & Wilcox Construction Co., 361 NLRB at 1129.
Respondent urges a return to prior long-standing precedent. Pre-Babcock, supra, the
Board deferred to arbitral decisions in cases in which the proceedings appear to have been fair
and regular, all parties agreed to be bound, and the decision of the arbitrator is not clearly 30
repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080, 1082
(1955). In Olin Corp., 268 NLRB 573 (1984), the Board held that it would condition deferral on
the arbitrator having adequately considered the unfair labor practice issue, which is satisfied if:
the contractual issue is factually parallel to the unfair labor practice issue, and the arbitrator was
presented generally with the facts relevant to resolving the unfair labor practice. Id. at 574. The 35
Board stated that it will not require an arbitrator’s award to be totally consistent with Board
precedent; however, deferral will not be found appropriate under the clearly repugnant standard
where the arbitration award is “palpably wrong” or “not susceptible to an interpretation consistent
with the Act.” Id. Under Spielberg, supra, and Olin Corp., supra, the burden of proof is on the
party opposing deferral to the arbitration award. Airborne Freight Corp., 343 NLRB 580, 581 40
(2004).
The Board revised deferral policy in Babcock & Wilcox Construction Co., supra. Its
analysis held that the existing post-arbitral deferral standard did not adequately balance the
protection of employee rights in Section 8(a)(3) cases and the national policy of encouraging 45
arbitration of disputes concerning the application or interpretation of collective-bargaining
agreements. The Board found the Olin standard created an excessive risk of deferral when an
arbitrator had not adequately considered the issue of the unfair labor practice, or when it was
simply impossible to determine whether that issue had been considered by the arbitrator.
50
JD–39–19
45
In Babcock, the Board created a new standard for deferring to arbitral decisions in
Section 8(a)(3) and (1) cases. The burden of proof now shifted to the party urging deferral
instead of the party opposing deferral. Id at 1130–1131. This standard is a multi-pronged
approach, finding that post-arbitral deferral is appropriate when:
5
(1) the arbitration procedures appear to have been fair and regular;
(2) the parties agreed to be bound; and,
(3) the party urging deferral demonstrates that:
(a) the arbitrator was explicitly authorized to decide the unfair labor practice
issue; 10
(b) the arbitrator was presented with and considered the statutory issue, or was
prevented from doing so by the party opposing deferral; and
(c) Board law “reasonably permits” the arbitral award.
Id at 1131. 15
Under the first two prongs of Babcock, I find that the arbitration procedures appear fair
and regular and the parties agree to be bound through their collective-bargaining agreement.
However, the third prong precludes deferral to the arbitrator’s decision. The collective-
bargaining agreement has no provisions to allow the arbitrator to consider anything extra-20
contractual, such as an unfair labor practice, and the arbitrator so found. The Union precluded
presentation of evidence related to the unfair labor practice, despite Evans’ attempt to divert
attention to the unfair labor practice allegation. Based upon Respondent’s inability to prove the
arbitrator was authorized to decide the unfair labor practice issue, deferral is inappropriate under
the present standard.36 As for the Respondent’s request return to Spielberg/Olin standards, I am 25
constrained to follow current Board law. 37
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2), (6) and (7) of the Act.30
2. The following are Respondent’s supervisors within the meaning of Section 2(11) of the
Act and/or agents within the meaning of Section 2(13) of the Act:
a. Arnold Ayikwei supervisor
b. Robert Buckingham supervisor35
c. Bobby Clark supervisor
d. Burt Barton Operational support/safety supervisor
e. Kevin Bush manager
f. Onur Orcun Director, Byhalia warehouse
g. Curt Youngdale Labor Relations Director40
h. Cynthia Hayes HR business partner specialist
i. Lonny Otto HR director, Byhalia warehouse (2016-2017)
j. Tess Thomas HR director, service market logistics
k. Leslie Thompson HR director, Byhalia warehouse (2015-2016)
45

36 Even earlier deferral cases would find the remedy here repugnant to the Act as the correct remedy
here would require Evans to be reinstated and made whole. Consumer Power Co., 282 NLRB at 137.
37 The Board requested briefs on the deferral issues in United Parcel Service, Inc., (unpublished dec.)
Case 06–CA–143062 (March 15, 2019).
JD–39–19
46
3. The United Auto Workers and its local, Local 2406, are labor organizations within the
meaning of Section 2(5) of the Act.
4. Respondent violated Section 8(a)(3) and (1) of the Act by:
a. On March 23, 2016, issuing a written warning to Walter Evans because of his 5
union activities and/or engaging in other protected concerted activities.
b. On May 3, 2016, suspending Walter Evans because of his union activities and/or
engaging in other protected concerted activities;
c. On March 20, 2017, terminating Walter Evans because of his union activities
and/or engaging in other protected concerted activities.10
5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent has not violated the Act in any other way.15
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I shall order it to
cease and desist and to take certain affirmative actions designed to effectuate the policies of the 20
Act.
Having found that Respondent unlawfully disciplined and terminated Walter Evans, it
must offer him reinstatement to the position from which he was unlawfully termination.
Respondent is to offer Walter Evans reinstatement in the position that he previously worked, or if 25
such position no longer exists, in a substantially equivalent position. We shall further order the
Respondent to make Walter Evans whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him. Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 30
(2010). We shall order the Respondent to compensate Walter Evans for his search-for-work
and interim employment expenses regardless of whether those expenses exceed interim
earnings. King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C.
Cir. 2017). Search-for-work and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, 35
compounded daily as prescribed in Kentucky River Medical Center, supra.
In accordance with the Board’s decision in AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016), Respondent shall be ordered, within 21 days of the dates the amounts of backpay
are fixed, either by agreement or Board order, to submit and file the appropriate documentation 40
allocating the backpay awards to the appropriate calendar quarters or periods (reports allocating
backpay) with the Regional Director. Respondent will be required to allocate backpay to the
appropriate calendar years only. The Regional Director then will assume responsibility for
transmission of the reports to the Social Security Administration at appropriate times and in the
appropriate manner.45
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended38

38 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
JD–39–19
47
ORDER
Respondent Volvo of Byhalia, Mississippi, its officers, agents, successors, and assigns, shall
1. Cease and desist from:5
a. Disciplining employees because of their support for and activities on behalf of the
Union and/or protected concerted activities.
b. Terminating employees because of their support for and activities on behalf of the
Union and/or protected concerted activities.10
2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Within 14 days of this Order, offer Walter Evans full reinstatement to his former
job, or if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileged previously enjoyed.
b. Make Walter Evans whole for any loss of earnings and other benefits resulting 15
from his discharge, less any net interim earnings, plus interest, pursuant to the
methods in the Remedy section of this decision.
c. Compensate Walter Evans for the adverse tax consequences, if any, of receiving
a lump-sum backpay award, and file with the Regional Director for Region 15,
within 21 days of the dates the amount of backpay is fixed, either by agreement 20
or Board order, reports allocating the backpay award to the appropriate calendar
years(s).
d. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful disciplinary actions and March 20, 2017 termination of Walter Evans
and within 3 days thereafter notify Evans in writing that this has been done and 25
the disciplinary actions and termination will not be used against him in any way.
e. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other 30
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.
f. Within 14 days after service by the Region, post at its facility in Byhalia,
Mississippi, copies of the attached notice marked “Appendix.” Copies of the
notice, on forms provided by the Regional Director for Region 15, after being 35
signed by Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. The
notice will also be posted in English and any other languages that the Regional
Director finds appropriate. In addition to physical posting of paper notices, the 40
notices shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means if Respondent regularly
communicates with employees through those means. Reasonable steps shall be
taken by 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 45
proceedings, Respondent has gone out of business or closed the facility involved
in these proceedings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by
Respondent at any time since March 23, 2016.

by the Board and all objections to them shall be deemed waived for all purposes.
JD–39–19
48
g. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Regional Director
attesting to the steps that Respondent has taken to comply.
5
Washington, D.C. April 30, 2019
10
Sharon Levinson Steckler
Administrative Law Judge
JD–39–19
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated federal labor law and has
ordered us to post and abide by 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 interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT discipline you because you engaged in Union and/or protected concerted activities.
WE WILL NOT discharge or otherwise discriminate against you because of your support for and
activities on behalf of the Union and/or protected concerted activities.
WE WILL NOT, in any like or other related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Walter Evans full reinstatement to his
former job, or if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges he previously enjoyed.
WE WILL make Walter Evans whole for any loss of earnings and other benefits resulting from his
termination, less any net interim earnings, plus interest, and WE WILL also make him whole for
reasonable search-for-work and interim employment expenses, plus interest.
WE WILL compensate Walter Evans for the adverse tax consequences, if any of receiving lump-
sum backpay awards, and WE WILL file with the Regional Director for Region 15, within 21 days
of the date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years for Walter Evans.
WE WILL remove from our files all references to the unlawful disciplinary actions and termination
of Walter Evans and WE WILL notify him in writing that his has been done and that they will not be
used against him in any way.
JD–39–19
Volvo Group North America, LLC
(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.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3408
(504) 589-6361, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/15-CA-179071 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (504) 589-6389.