W.E. Carlson Corp.

National Labor Relations Board - Board Decisions

Jan 31, 2006

346 N.L.R.B. 431 (N.L.R.B. 2006)

W. E. CARLSON CORP.
346 NLRB No. 43
431
W. E. Carlson Corporation and Millwrights and Ma-
chinery Erectors Local Union No. 1693, an af-
filiate of United Brotherhood of Carpenters and
Joiners of America and Richard Lightfoot. Cases
13–CA–40817–1 and 13–CA–40936–1
January 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 31, 2003, Administrative Law Judge
Michael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. The General Counsel also
filed limited exceptions, and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
This case involves allegations of violations of Section
8(a)(1), (3), and (4) of the Act, arising in the context of
an unsuccessful union organizing campaign. The judge
found that the Respondent violated Section 8(a)(1) by
threatening suspension of wage increases, loss of bene-
fits, plant closure and layoffs, and that collective bargain-
ing would be futile, all if the Union won the election.
For the reasons stated by the judge, we adopt these unfair
labor practice findings.2 The judge also found that the
Respondent violated Section 8(a)(3) and (4) by denying
employee Richard Lightfoot a wage increase, placing
him on probation, and discharging him because he en-
gaged in union activity and provided information to the
Board in its investigation of unfair labor practice charges
against the Respondent. For the reasons explained be-
low, we affirm the judge’s finding that the denial of
Lightfoot’s wage increase violated Section 8(a)(3), but

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Regarding the judge’s finding that the Respondent threatened the
futility of collective bargaining, we observe that the judge based this
finding on a threat to delay negotiations made by the Respondent’s
president and owner, William Carlson, but not on the January 30, 2003
statements by Manager Rick Leadley that unions were “useless” and a
“waste of time.”
we reverse his findings that the Respondent violated Sec-
tion 8(a)(4) by denying the wage increase and Section
8(a)(3) and (4) by placing Lightfoot on probation and
discharging him.
A. The Denial of Lightfoot’s Wage Increase
Facts
The Respondent installs and maintains dock levelers.
Its installers have been represented by Millwrights and
Machinery Erectors Local Union No. 1693, an affiliate of
United Brotherhood of Carpenters and Joiners of Amer-
ica (the Union) since the mid-1970s. In October 2002,
the Union began an organizing drive among the Respon-
dent’s service technicians. After receiving authorization
cards from 8 of the Respondent’s 11 service technicians,
the Union sent a letter to the Respondent dated Novem-
ber 5, 2002, requesting an addendum to the installers’
collective-bargaining agreement so as to cover the ser-
vice employees. The Respondent declined, and the Un-
ion filed a representation petition with the Board on
January 2, 2003.3 The election was held on February 11,
and the Union lost.
The Respondent’s established practice was to give em-
ployees a wage increase annually in the paycheck follow-
ing the employee’s anniversary date. Lightfoot’s anni-
versary date was January 10, and he was eligible to re-
ceive his annual wage increase in his January 31 pay-
check. He did not receive a wage increase. Other than in
this instance, no employee had been denied an annual
wage increase since 2001. From 1997 to 2001, one em-
ployee was denied annual wage increases because of
subpar production.
On January 30, William Carlson, the Respondent’s
president and owner, and Rick Leadley, its service and
installation manager, met with the service technicians.
Leadley told them that the Union was “useless” and a
“waste of time.” Carlson told them that he considered
them to be “family” and urged them to compare their
present benefits with those to be obtained through union
representation.4 When Carlson asked for questions,
Lightfoot asked how Carlson could justify treating one
family member differently from another. Lightfoot’s
point was clear: the Respondent’s installers were under a
collective-bargaining agreement, while its service techni-
cians were not. Lightfoot testified that Carlson looked
irritated and said he would answer personal questions at
a one-to-one meeting.
On February 3, Carlson and Leadley held individual
meetings with the service technicians. At their meeting

3 All subsequent dates are in 2003, unless specified otherwise.
4 In a January 27 memorandum, the Respondent told the service
technicians that they would lose $3912 in benefits if they unionized.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
with Lightfoot, Lightfoot told Carlson of Lightfoot’s
strong desire to be a union member and asked Carlson
why he was opposed to the Union. Carlson replied that
he could not afford the Union and that, if the Union won,
he would “stall negotiations for as long as possible” and
lay off employees. Carlson also said that the company
“would not last” if the Union won the election.
In late January or early February, Lightfoot asked
Leadley about his wage increase. Leadley told Lightfoot
that wages were frozen until after the union election.
Lightfoot was the only employee whose anniversary date
fell during the period between the filing of the represen-
tation petition and the holding of the election. Lightfoot
did not receive a wage increase after the election.
Leadley testified that he decided not to give Lightfoot
a wage increase because of poor performance. The re-
cord shows that Lightfoot’s performance had been a con-
cern for some time. Beginning in 2001, a manager re-
viewed Lightfoot’s work tickets on an almost daily basis
because of concerns about the quality of his work. Also
in 2001, several managers spoke with Lightfoot about
excessive travel times to customer worksites. In April
2002, Leadley spoke with Lightfoot about excessive tar-
diness and absences. On November 7, 2002, Leadley
and Guy Horbus, the Respondent’s service technician
supervisor, met with Lightfoot to discuss a number of
issues, including absenteeism, tardiness, customer com-
plaints about his work, sleeping in his truck, excessive
travel times, and making personal calls on a company
cellular phone.
In early March, Lightfoot provided information to the
Board in support of an unfair labor practice charge filed
by the Union.
The Judge’s Decision
The judge determined that the General Counsel met his
initial burden, under Wright Line,5 of showing that
Lightfoot’s protected activity was a motivating factor in
the Respondent’s decision to deny Lightfoot a wage in-
crease. The judge found that Lightfoot engaged in pro-
tected activity by advocating for the Union during the
group meeting on January 30 and in his individual meet-
ing with Carlson and Leadley on February 3, and by pro-
viding information to the Board in early March. The
judge also found that the Respondent was aware of the
foregoing activity, and that it harbored antiunion animus
as demonstrated by its several violations of Section
8(a)(1). The judge reasoned that the timing of the denial
of Lightfoot’s wage increase in close proximity to his
protected activity supported an inference that the Re-

5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
spondent’s union animus was a motivating factor in that
denial.
In addition, the judge found that the Respondent failed
to show that it would have denied Lightfoot a wage in-
crease even absent his protected activity. The judge re-
jected the Respondent’s claim that it denied the wage
increase due to unsatisfactory performance because
Leadley did not mention performance when Lightfoot
asked him about the wage increase. Accordingly, the
judge concluded that the only reasonable inference to be
drawn was that the Respondent withheld the wage in-
crease to punish Lightfoot for his support of the Union in
violation of Section 8(a)(3). The judge further concluded
that the Respondent violated Section 8(a)(4) by continu-
ing to deny the wage increase after Lightfoot provided
information to the Board in support of the Union’s pend-
ing unfair labor practice charge.
The Respondent’s Exceptions
The Respondent excepts to the judge’s findings that it
violated Section 8(a)(3) and (4) by denying Lightfoot a
wage increase. The Respondent contends that the Gen-
eral Counsel failed to satisfy his initial burden under
Wright Line of demonstrating discriminatory motivation
because the decision to deny Lightfoot a wage increase
was made before the Respondent knew anything about
Lightfoot’s union views. The Respondent acknowledges
that it first became aware of those views on January 30
and that, had it been granted, Lightfoot’s wage increase
would have appeared in his January 31 paycheck. The
Respondent contends, however, that it made the decision
to withhold a wage increase well before January 30 be-
cause of the leadtime required for calculating payroll and
issuing checks. Even assuming, however, that the Gen-
eral Counsel met his Wright Line burden, the Respondent
contends that it denied Lightfoot a wage increase because
of his poor performance, and that it proved it would have
done so even in the absence of Lightfoot’s protected ac-
tivity.
Analysis
Under Wright Line, supra, the General Counsel must
first prove, by a preponderance of the evidence, that ani-
mus against protected conduct was a motivating factor in
the adverse employment action. If the General Counsel
makes a showing of discriminatory motivation by prov-
ing union activity, the employer’s knowledge of that ac-
tivity, and animus against protected conduct, the burden
of persuasion then shifts to the employer to demonstrate
that it would have taken the same action even in the ab-
sence of the protected conduct. Donaldson Bros. Ready
Mix, Inc., 341 NLRB 958, 961 (2004).
W. E. CARLSON CORP. 433
The Respondent contends it was unaware of
Lightfoot’s union sympathies when it decided against
giving Lightfoot a wage increase in his January 31 pay-
check. The Respondent was aware, however, that its
service technicians had engaged in union activity. It first
became aware of that activity on or about November 5,
2002, when it received the Union’s request for an adden-
dum to the installers’ collective-bargaining agreement
covering the service technicians. The Respondent was
confirmed in this knowledge on January 2, when the Un-
ion filed an election petition with the Board. The Re-
spondent’s strong antiunion animus is demonstrated by
its multiple and serious threats in violation of Section
8(a)(1), which the Respondent made close in time to its
decision to withhold Lightfoot’s increase. Moreover,
Lightfoot was the only service technician who was eligi-
ble for a wage increase during the pendency of the Un-
ion’s petition; and when Lightfoot asked about his wage
increase, Leadley told him that wages were frozen until
after the union election. As the judge recognized in the
section of his decision discussing the Respondent’s
8(a)(1) violations, Leadley’s explanation for withholding
the wage increase was not a lawful one. Thus, “Board
law is quite clear that, in the midst of an on-going union
organizing or election campaign, an employer must pro-
ceed with an expected wage or benefit adjustment as if
the organizing or election campaign had not been in pro-
gress. . . [A]n employer acts in violation of Section
8(a)(1) by attributing its failure to implement the ex-
pected wage or benefit adjustment to the presence of the
union. . . .” Earthgrains Baking Cos., 339 NLRB 24, 28
(2003), enfd. 116 Fed. Appx. 161 (9th Cir. 2004). Ac-
cordingly, we find that the General Counsel established a
compelling case that animus against its employees’ union
activities was a motivating factor in the denial of
Lightfoot’s wage increase.
Turning to the Respondent’s Wright Line rebuttal case,
we acknowledge that Lightfoot’s performance was defi-
cient, and that this deficiency would be a legitimate rea-
son to deny a wage increase. The burden resting on the
Respondent, however, required it not merely to present a
legitimate reason for its action, but to persuade by a pre-
ponderance of the evidence that it would have withheld
the wage increase even in the absence of the protected
conduct. See Roure Bertrand Dupont, Inc., 271 NLRB
443, 443 (1984). The Respondent has not done this.
When Lightfoot asked about his wage increase, Leadley
said nothing about performance. Instead, he said that
wages were frozen until after the union election, thus
unlawfully linking the denial of the increase to employ-
ees’ protected activity. Moreover, the Respondent’s past
practice with respect to wage increases undermines its
Wright Line defense. Prior to denying Lightfoot’s wage
increase, the Respondent had not withheld an annual
wage increase since 2001, and the record evidence is that
only one employee was ever denied a wage increase be-
cause of poor performance. Moreover, Lightfoot re-
ceived wage increases in 2001 and 2002, notwithstanding
a less than stellar work record at those times. This fur-
ther undermines the Respondent’s belated justification
for denying Lightfoot a wage increase.
In sum, the Respondent has not shown by a preponder-
ance of the evidence that it would have withheld
Lightfoot’s wage increase for legitimate reasons even in
the absence of the employees’ union activities. Accord-
ingly, for the foregoing reasons, we affirm the judge’s
finding that the Respondent violated Section 8(a)(3) by
denying Lightfoot a wage increase.
The dissent would dismiss this 8(a)(3) allegation. It
contends that the General Counsel did not show that the
Respondent knew, at the time the wage increase was de-
nied, that Lightfoot had engaged in union activity. The
dissent speculates that we must be inferring that the Re-
spondent knew of union activity by Lightfoot from its
knowledge that the service technicians were engaged in
an organizing drive.
The dissent misunderstands our rationale. We do not
find that the Respondent knew of union activity specifi-
cally by Lightfoot. Rather, we find that the Respondent
knew that its service technicians were seeking to organ-
ize and, because of its animus against that activity, de-
cided to freeze wages pending the union election, result-
ing in the denial of Lightfoot’s wage increase. Thus, it is
immaterial that the Respondent lacked knowledge of
union activity specifically by Lightfoot. It knew about
the organizing effort, harbored animus against that effort,
and retaliated by freezing wages; and the effect of that
retaliation fell on Lightfoot.
All of the elements of an 8(a)(3) violation have been
established. As the Sixth Circuit has explained, “[T]he
courts have held that although the General Counsel must
usually show that the employer knew about individual
employees’ union activities before the Board may con-
clude that the employer violated Section 8(a)(3), the
General Counsel may also prevail by showing that the
employer [acted] . . . in retaliation against its employees
because of the union activities of some.” Birch Run
Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180
(6th Cir. 1985). “The focus of [this] theory is upon the
employer’s motive . . . rather than upon the anti-union or
pro-union status of particular employees.” Id. In other
words, under this theory, “the Board need not show that
the employer knew of any particular employee’s union
involvement to show that the employer acted out of un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
ion animus.” WXGI, Inc. v. NLRB, 243 F.3d 833, 843
(4th Cir. 2001). In short, “[a]dverse employment action
in retaliation for concerted activity ‘violates the NLRA,
even if the employer wields an undiscerning axe. . . .’”
RGC (USA) Mineral Sands, Inc. v. NLRB, 281 F.3d
442, 448 (4th Cir. 2002) (quoting NLRB v. Frigid Stor-
age, Inc., 934 F.2d 506, 510 (4th Cir. 1991)). That is
precisely the situation here.
The dissent says that it is inappropriate for us to rely
on the foregoing rationale because it differs from that
argued by the General Counsel. We disagree. Our
analysis does not, under the circumstances presented,
deprive the Respondent of due process. First, the com-
plaint specifically alleged that the denial of Lightfoot’s
wage increase violated Section 8(a)(3). Second, the
wording of the complaint was not limited to any particu-
lar 8(a)(3) theory.6 In fact, the wording of the complaint
encompasses the reasoning described above, as well as
the judge’s description of the Respondent’s antiunion
animus.7 Third, the facts and circumstances of the wage
increase denial were fully litigated at the hearing. The
judge concluded that the denial of the wage increase vio-
lated Section 8(a)(3). We agree, but based on a slightly

6 Because we are not finding an unfair labor practice unalleged in the
complaint, Pergament United Sales, 296 NLRB 333 (1989), enfd. 920
F.2d 130 (2d Cir. 1990), cited by the dissent, is inapposite. Pergament
sets forth the Board’s test for finding an unalleged violation of the Act,
not for finding an alleged violation on grounds that differ somewhat
from the judge’s reasoning. Similarly, Lamar Advertising of Hartford,
343 NLRB 261 (2004), also relied upon by the dissent, is distinguish-
able. In Lamar, the complaint alleged that the respondent violated Sec.
8(a)(4) by discharging employee Gary Crump because he planned to
testify against the respondent in an unfair labor practice proceeding.
The issue presented was whether the Board could find, consistent with
due process, that the respondent violated Sec. 8(a)(4) by discharging
Crump for a different and unalleged reason, namely that Crump threat-
ened to retain counsel, which the General Counsel argued amounted to
a threat to file charges with the Board. 343 NLRB at 266–267. The
Board held that finding the violation would offend due process because
the complaint did not allege that Crump’s threat to retain counsel con-
stituted protected activity or was a motivating factor in the discharge,
no evidence was presented on those issues at the hearing, and, conse-
quently, the respondent had no meaningful notice of the charge and no
opportunity to fully and fairly litigate it at the hearing. Id. Here, by
contrast, the complaint alleged the violation we have found: that the
Respondent violated Sec. 8(a)(3) by denying Lightfoot’s wage increase.
The facts surrounding the denial of the wage increase—including the
Respondent’s knowledge of organizing activities, antiunion animus, the
direct tie of Lightfoot’s wage increase denial to the presence of the
union, and Respondent’s pretextual defense (that Lightfoot did not
receive an increase due to poor performance)—were fully explored and
litigated. Consequently, Pergament does not apply, and Lamar Adver-
tising is distinguishable.
7 Par. VI(e) of the complaint states: “Respondent engaged in the
conduct described above in pars. VI(a)–(d) [failing to issue an annual
pay increase to Lightfoot, inter alia] because [Lightfoot] assisted the
Union and engaged in concerted activities, and to discourage employ-
ees from engaging in these activities.” (Emphasis added.)
different rationale. It is well settled that even where the
General Counsel has not excepted to an administrative
law judge’s analysis, the Board “is not compelled to act
as a mere rubber stamp” but rather is “free to use its own
reasoning.” NLRB v. WTVJ, Inc., 268 F.2d 346, 348 (5th
Cir. 1959). We use our own reasoning here, just as the
Board has done in prior cases. See, e.g., Pepsi America,
Inc., 339 NLRB 986 (2003); Jefferson Electric Co., 274
NLRB 750 (1985), enfd. 783 F.2d 679 (6th Cir. 1986).
Although the Respondent’s decision to withhold
Lightfoot’s wage increase was unlawful, there is no evi-
dence that Lightfoot’s participation in the Board’s unfair
labor practice investigation played a role in that decision.
The decision to withhold the wage increase was made
long before Lightfoot, in March, provided information to
the Board, and there is no evidence that the Respondent
reaffirmed that decision after learning that Lightfoot had
done so. Accordingly, we reverse the judge’s finding
that the Respondent violated Section 8(a)(4) by denying
the wage increase.
B. Lightfoot’s Probation and Discharge
Facts
As already noted, Lightfoot had numerous work-
related problems during his employment with the Re-
spondent. In 2001, Lightfoot’s work tickets were re-
viewed almost daily because of concerns about the qual-
ity of his work, and the Respondent’s managers spoke
with Lightfoot about excessive travel times to customer
worksites. In April 2002, Leadley spoke with Lightfoot
about excessive tardiness and absences. On November 7,
2002, Leadley and Horbus met with Lightfoot to discuss
a number of issues, including absenteeism, tardiness,
customer complaints about his work, sleeping in his
truck, excessive travel times, and making personal calls
on a company cellular phone. Leadley and Horbus testi-
fied that Lightfoot was placed on a 90-day probation at
the end of the meeting. Lightfoot denied being told he
was on probation. The judge credited Lightfoot.
In 2003, Lightfoot reported to work late on 10 days
and missed 8 scheduled workdays through March 6. On
March 11, Leadley and Horbus met with Lightfoot again,
placed him on a 60-day probation, and told him that this
was his last chance to avoid being discharged. Lightfoot
signed a “written warning acknowledgment” form that
cited “continued attendance problems,” warned Lightfoot
not to miss any more days of work, and required him to
work 40 hours per week. On March 17, Lightfoot failed
to report for work on time. Horbus called him at home,
and Lightfoot said he had overslept. Lightfoot arrived at
work 2 hours late. On March 21, Horbus spoke with
Lightfoot about damage to Lightfoot’s company truck,
W. E. CARLSON CORP. 435
which Horbus had noticed a few days earlier. Lightfoot
said he did not think he had to report minor damage to
his truck. On March 24, the Respondent received a copy
of the charge the Union filed with the Board alleging
unfair labor practices by the Respondent in violation of
Section 8(a)(1), (3), and (4). The Respondent under-
stood that Lightfoot was a specified alleged discrimina-
tee. On March 25, Leadley informed Lightfoot that he
was being discharged for reporting to work late on
March 17, and for failing to report the damage to his
truck.
The Judge’s Decision
The judge found that the General Counsel sustained
his initial burden under Wright Line, supra, of showing
that Lightfoot’s protected activity was a motivating fac-
tor in the Respondent’s decisions to place him on proba-
tion and to discharge him. The Respondent was aware of
Lightfoot’s union sympathies and was aware that he had
given information to the Board in support of the Union’s
unfair labor practice charges against the Respondent. In
addition, the judge found that the Respondent’s 8(a)(1)
threats and its denial of Lightfoot’s wage increase dem-
onstrated its antiunion animus. The judge also observed
that Lightfoot was placed on probation on March 11,
within 2 weeks of providing information to the Board,
and discharged on March 25, 1 day after the Respondent
received notice of the unfair labor practice charges that
included allegations concerning Lightfoot.
The judge further found that the Respondent failed to
prove that it would have placed Lightfoot on probation
and discharged him even in the absence of union activity.
Rejecting the Respondent’s claim that Lightfoot was put
on probation due to tardiness and absences in January
through early March, the judge noted that Lightfoot
worked at least 40 hours a week during that period of
time, and that the Respondent did not speak with him
about his continuing time and attendance problems until
44 days after the end of the claimed 90-day probation
beginning in November 2002. Lightfoot was discharged
purportedly for reporting late to work on March 17 and
damaging a company vehicle; but the judge observed that
the March 11 probation form did not warn Lightfoot
about tardiness, that Lightfoot did not miss any sched-
uled work days after March 11, and that he worked more
than the requisite 40 hours a week. The judge also found
that the Respondent treated Lightfoot more harshly than
the rest of its employees. He noted evidence of unpun-
ished time and attendance abuses by numerous employ-
ees, as well as evidence that another employee also failed
to report minor damage to his company truck and was
not punished. Having found that the Respondent failed
to sustain its rebuttal burden under Wright Line, supra,
the judge concluded that the Respondent violated Section
8(a)(1), (3), and (4) by placing Lightfoot on probation on
March 11 and discharging him on March 25.
The Respondent’s Exceptions
Although the Respondent disagrees with the judge’s
finding that the General Counsel met his initial burden
under Wright Line, supra, it argues only that it proved it
would have disciplined and discharged Lightfoot for le-
gitimate reasons regardless of his protected activity. The
Respondent asserts that the judge ignored the testimony
of Russ Knopf, a discharged former employee called to
the stand by the General Counsel, who testified that
Lightfoot was not “the most mechanically-inclined per-
son” and that other employees had to fix his mistakes.
The Respondent contends that it placed Lightfoot on
probation on November 7, 2002, and that the judge erred
in crediting Lightfoot to the contrary. According to the
Respondent, the judge also erred in relying on the fact
that the March 11 probation form did not mention tardi-
ness. In this connection, the Respondent points out that
Lightfoot admitted that Leadley “mentioned other things
that happened the years previous and told me just make
sure I don’t repeat those,” and that Leadley previously
had spoken to Lightfoot about tardiness. The Respon-
dent also faults the judge’s reliance on Lightfoot’s hav-
ing worked 40-hour weeks because that did not lessen
the inconvenience to the Respondent’s operation caused
by Lightfoot’s tardiness and absences. The Respondent
contends that employees who were not punished for be-
ing tardy or missing work had far fewer work-related
problems than Lightfoot, and that the only two employ-
ees with performance and attendance problems compara-
ble to Lightfoot’s—Jim Jessen and Dan Follett—also
were discharged.
Analysis
Assuming that the General Counsel met his initial bur-
den under Wright Line, supra, we find that the Respon-
dent demonstrated that it would have placed Lightfoot on
probation and discharged him even in the absence of his
protected activity.
Lightfoot’s work-related problems up to November
2002 were manifold. Customers repeatedly complained
about Lightfoot’s work, and even a discharged former
employee called by the General Counsel testified that
Lightfoot was, in essence, incompetent. In addition to
performance issues, there were Lightfoot’s conduct prob-
lems: tardiness, unscheduled absences, sleeping in his
truck, excessive travel times, and making personal calls
on a company cellular phone.
The Respondent met with Lightfoot in April 2002 to
discuss some of these issues. Because the problems con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD436
tinued, Leadley and Horbus met with him on November
7, 2002. Although the judge found, based on credibility
determinations, that Lightfoot was not placed on proba-
tion at that time, it is clear that Leadley and Horbus had a
serious discussion with Lightfoot concerning a number
of performance and conduct problems. Despite this dis-
cussion, Lightfoot repeatedly missed scheduled work
days and even more frequently was late for work during
January, February, and early March. In other words,
Lightfoot’s unacceptable conduct was continuing.
March 11 was the third time in less than a year that the
Respondent talked to Lightfoot about his unscheduled
absences. Only 6 days into his March 11 probation,
Lightfoot was almost 2 hours late to work. The next day,
Horbus noticed unreported damage to Lightfoot’s com-
pany truck.
The judge found it significant that Lightfoot was work-
ing 40-hour weeks. We do not. Regardless of total
hours worked, Lightfoot failed to report on scheduled
days, causing the Respondent to scramble to replace him.
The judge also found it significant that the Respondent
waited 44 days after the end of the asserted 90-day pro-
bation beginning in November 2002 to place Lightfoot
on 60-days probation the following March. The only
significance of that delay, however, is that it tends to
support the judge’s crediting of Lightfoot that he was not
placed on probation at the end of the meeting on Novem-
ber 7, 2002. As stated above, however, we place little
weight on this circumstance. The Respondent voiced
serious concerns about Lightfoot’s performance and con-
duct at that meeting. Even if the meeting did not result
in probation, it does not follow that the Respondent’s
concerns were spurious. The judge also relied in part on
the fact that the probation form did not mention tardi-
ness. Lightfoot admitted, however, that he was warned
not to repeat previous mistakes, which included tardi-
ness. Although the judge correctly found that the Re-
spondent was flexible about time and attendance and that
a number of employees benefited from that flexibility,
we agree with the Respondent that only Jessen and Fol-
lett had comparable records,8 and they were both dis-
charged.

8 Leadley met with Jessen in November 1999 to address several is-
sues, including excessive travel times, work safety, and driving more
carefully. Horbus met with Jessen in October 2000 to communicate the
importance of being more thorough on service calls and to discuss two
particular jobs where Jessen’s lack of thoroughness “caused real prob-
lems.” Jessen’s performance did not improve, and he was discharged
in March 2001.
Leadley and Carlson met with Follett in April 2002 to discuss a
number of issues, including customer relations, attitude, timeliness,
safety, taking proper care of equipment, following company proce-
dures, and not arguing or fighting. They met with Follett again in Oc-
In sum, we recognize that the timing of Lightfoot’s
probation and discharge (shortly after the Respondent
learned of his protected activities) raises doubts. How-
ever, given Lightfoot’s history of work-related problems
dating back many months, we find that the Respondent
has shown that it would have placed him on probation
and discharged him even in the absence of any union
activity and regardless of his having furnished informa-
tion to the Board. Accordingly, the Respondent did not
violate Section 8(a)(3) or (4) by placing him on proba-
tion and discharging him, and those allegations will be
dismissed.
ORDER
The National Labor Relations Board orders that the
Respondent, W. E. Carlson Corporation, Elk Grove Vil-
lage, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening suspension of annual wage increases,
plant closure, layoffs, loss of benefits, or the futility of
collective bargaining if the service technicians selected
the Union as their collective-bargaining representative.
(b) Denying customary wage increases to employees
because a union organizing campaign is in progress.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Richard Lightfoot whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him. Backpay shall be computed in
the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful denial of
Richard Lightfoot’s 2003 wage increase, and within 3
days thereafter notify him in writing that this has been
done and that the denial of the wage increase will not be
used against him in any way.

tober 2002 to discuss attitude, following directions without conflict or
disagreement, acting acceptably at customer jobsites, and responding
promptly to calls from the office. Follett was placed on probation until
May 2003. He was discharged in June 2003 due to customer com-
plaints and insubordination.
Thus, as with Lightfoot, it was an accumulation of various issues
that led to Jessen’s and Follett’s discharges, and the evidence concern-
ing other employees who were permitted leeway on time and atten-
dance does not show that they similarly presented multiple performance
and/or conduct problems.
W. E. CARLSON CORP. 437
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Elk Grove Village, Illinois, facility copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 17,
2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
CHAIRMAN BATTISTA, dissenting in part.
I agree in all respects with the decision of my col-
leagues, except for their finding that the Respondent vio-
lated Section 8(a)(3) by denying Richard Lightfoot a
wage increase in January 2003. I would dismiss this
complaint allegation because the General Counsel failed
to meet its burden, under Wright Line,1 of proving that
the Respondent knew of Lightfoot’s union activity at the
time it decided not to grant him an annual wage increase.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
The Respondent has a practice of granting its service
technicians annual wage increases on the anniversary
date of their hire. The increases are not automatic, how-
ever. Rather, they are based on satisfactory job perform-
ance. Although only one employee was previously de-
nied an increase, the relevant point is that a decision is
made on the anniversary date.
The Respondent’s practice is to make a decision on an
employee’s anniversary hire date on whether to grant that
employee a wage increase. If an increase is decided
upon, it is then reported to the payroll office, and the
actual increase appears in the paycheck that follows the
employee’s anniversary date of hire. There is no evi-
dence that the Respondent has ever manipulated the pay-
roll system by preventing a wage increase from taking
effect after an affirmative decision has been reported to
the payroll office to grant an employee a wage increase.
Lightfoot was a service technician whose anniversary
date of hire was January 10. In accord with the Respon-
dent’s practice described above, it was also the date on
which the Respondent made the decision not to grant
Lightfoot a wage increase. Thus, if, as the judge and my
colleagues find, the denial of a wage increase to
Lightfoot was unlawful, the violation had to have oc-
curred on January 10, because that is when the decision
to withhold the increase was made. Under the Board’s
Wright Line analysis, this cannot be shown.
To establish a violation of Section 8(a)(3) under
Wright Line, “credible proof of ‘knowledge’ [of an em-
ployee’s protected activity] is a necessary part of the
General Counsel’s threshold burden, and without it, [a]
complaint cannot survive.” Tomatek, Inc., 333 NLRB
1350, 1355 (2001). The rationale for this threshold
showing is that, under Wright Line, the General Coun-
sel’s ultimate burden is to show that “an employee’s pro-
tected activity was a motivating factor in the employer’s
adverse action against that employee.” Southside Hospi-
tal, 344 NLRB 634 (2005). If, however, the employer
never knew about such activity, “it is axiomatic that the
employer could not have been ‘motivated’ by the em-
ployee’s protected activity” in taking adverse action
against him. Tomatek, 333 NLRB at 1355. That is the
case here.
As the judge and my colleagues acknowledge,
Lightfoot did not engage in any protected activity until
January 30 when he advocated for the Union during an
employee group meeting with the Respondent’s man-
agement officials. It is clear, therefore, that because this
union activity and Lightfoot’s similar expression of sup-
port for the Union in his February 3 meeting with Re-
spondent’s officials occurred 3 weeks after the decision
was made to withhold a wage increase from Lightfoot,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD438
his union activity could not have been a motivating fac-
tor behind the Respondent’s decision not to grant him an
increase.
My colleagues apparently concede that there is no di-
rect evidence that the Respondent was, or could have
been, aware of Lightfoot’s protected activity at the time
the decision was made to deny him a wage increase.
They suggest, instead, that such knowledge may be in-
ferred from circumstantial evidence that Respondent was
aware since November 2002 of the organizing drive
among its service technicians. I disagree. Although
“[i]t is true that, in an appropriate case, knowledge of an
employee’s union activities may be proven by circum-
stantial evidence from which a reasonable inference may
be drawn,” here, as in Register Guard, such an inference
is not supported. 344 NLRB 1142, 1145 (2005).
In Register Guard, the employee (Kama Cox) actually
engaged in protected activity prior to being discharged,
but there was no specific knowledge of this by the re-
spondent, and the Board declined to infer such knowl-
edge based on respondent’s general knowledge of its
employees’ organizing campaign. The instant case is an
even stronger one for dismissal. The employee here did
not even engage in any protected activity prior to the
adverse action taken against him. Since Lightfoot did not
engage in union activity prior to January 10, it is obvious
that the Respondent could have no knowledge of any
such activity on that date. At most, based on general
knowledge of union activity, the Respondent could have
suspected that Lightfoot was engaged in union activity.
However, there is no evidence to support even such a
suspicion, and thus the General Counsel does not press
that theory. See generally Amber Foods, 338 NLRB 712,
714 (2002) (“[T]here is not a scintilla of record evidence
that the Respondent believed or, at the very least, even
suspected that Alvarez was engaged in union activity at
the time she was warned and discharged, although the
Respondent knew generally . . . that its employees had
contacted the Union.”).
Perhaps it is theoretically possible that the Respondent
made a favorable decision on January 10, revoked it after
the January 30 meeting, and immediately reported the
revocation to the payroll office (so as to have the in-
crease revoked by that office by the January 31 payroll
date). However, all of this is sheer speculation and can-
not support the finding of a violation.
In sum, absent evidence that Lightfoot had engaged in
protected activity prior to the Respondent’s decision to
deny him a wage increase, the General Counsel necessar-
ily failed to meet his threshold burden under Wright Line
of proving the critical element of employer knowledge of
protected activity. Accordingly, because a prima facie
case has not been established that the wage increase de-
nial violated Section 8(a)(3) and (1), I would dismiss this
complaint allegation.
My colleagues have set forth a theory of violation that
is not alleged by the General Counsel.2 The General
Counsel’s sole theory of violation was that the Respon-
dent unlawfully denied Lightfoot a pay increase because
of Lightfoot’s union activities. The General Counsel did
not assert, as my colleagues find, that the Respondent’s
denial of Lightfoot’s increase was part of a broad wage
freeze scheme designed to unlawfully retaliate against all
the service technicians. Nor does the General Counsel
argue, as does the majority, that based on such a broad
wage freeze scheme, and because the “effect of that re-
taliation fell on Lightfoot,” it is “immaterial” that the
Respondent was unaware of any union activity by
Lightfoot. Since the argument is not raised by the Gen-
eral Counsel, it is not an appropriate basis on which to
find a violation.3
My colleagues disagree. They say that in deciding
whether a violation has been committed, “[i]t is well set-
tled” that the Board may rely on reasoning different from
that of the judge or different from a complaint theory
argued by the General Counsel. That may be true where
the variance accords with the test set out in Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). In Pergament, the Board held that it
“may find and remedy a violation even in the absence of
a specified allegation in the complaint if the issue is
closely connected to the subject matter of the complaint
and has been fully litigated.” In Lamar Advertising of
Hartford, 343 NLRB 261, 266–267 (2004), the Board
found that the Pergament test was not met because the
new complaint theory presented to the Board was neither
included in an amended complaint nor litigated by the
parties at the hearing. To find a violation based on a new
complaint theory “would violate fundamental principles
of procedural due process, which require meaningful
notice of a charge and a full and fair opportunity to liti-

2 The majority refers to its argument as “our reasoning,” i.e., not
that of the General Counsel.
3 Contrary to my colleagues’ assertion, par. VI of the complaint,
which is set forth in fn. 7, supra, does not encompass their theory of the
violation. Rather, it is restricted solely to the theory that the General
Counsel argued, i.e., that Lightfoot was denied a wage increase. As I
have stated, this alleged theory must fail because the Respondent had
no knowledge that Lightfoot engaged in union activity at the time he
was denied the increase on January 10. Complaint par. VI, including
the language that my colleagues emphasize in italics, does not allege
their theory. That is, the complaint alleges the Respondent’s motive for
denying the pay increase to Lightfoot. The Respondent’s alleged mo-
tive for this denial may have been to discourage Lightfoot and others
from engaging in protected concerted activity, but this does not contra-
dict the fact that the allegation is conduct toward Lightfoot.
W. E. CARLSON CORP. 439
gate it.” I would therefore reject my colleagues’ new
theory of the wage denial violation.
My colleagues acknowledge that there can be no viola-
tion where the complaint alleges certain conduct as
unlawful, and the evidence establishes different conduct.
See Lamar Advertising, supra. However, they say a
violation can be found where the same conduct is alleged
and found unlawful, even if the theory of violation dif-
fers from that alleged. The Board, in Lamar, rejected
this contention. The Board said that the General Counsel
could not “expand[ ] the theory of the violation beyond
what was alleged in the complaint and litigated at the
hearing.” Supra at 266 (emphasis added). Further, the
distinction drawn by my colleagues ignores the vice that
troubles the Board. Irrespective of whether the variation
is in the facts or in the theory of violation, a respondent
is denied due process by not being apprised of what it
must defend against. Indeed, the instant case is an even
greater denial of due process than that in Lamar. In that
case, the General Counsel sought to expand the theory of
the complaint. In the instant case, my colleagues do it
themselves.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten suspension of annual wage in-
creases, plant closure, layoffs, loss of benefits, or the
futility of collective bargaining if our service technicians
select the Millwrights and Machinery Erectors Local
Union No. 1693, an affiliate of United Brotherhood of
Carpenters and Joiners of America, or any other union as
their collective-bargaining representative.
WE WILL NOT deny customary wage increases to em-
ployees because a union organizing campaign is in pro-
gress.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL make Richard Lightfoot whole, with interest,
for our unlawful failure to grant him a wage increase in
2003.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful denial of Richard Lightfoot’s 2003 wage increase,
and WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that the denial of the
wage increase will not be used against him in any way.
W. E. CARLSON CORPORATION
Jeanette Schrand, Esq., for the General Counsel.
David L. Miller, Esq., of Chicago, Illinois, for the Respondent.
Edward A. Kersten, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Chicago, Illinois, on September 8, 9, and 22, 2003.
The Millwrights and Machinery Erectors Local Union No.
1693, an affiliate of United Brotherhood of Carpenters and
Joiners of America (the Union) filed a charge in Case 13–CA–
40817–1 on February 5, 2003, and amended it on March 18,
2003. Richard Lightfoot (Lightfoot) filed a charge in Case 13–
CA–40936–1 on March 27, 2003. The order consolidating
cases, consolidated complaint and notice of hearing was issued
on April 30, 2003. The consolidated complaint was amended at
the hearing.
The Respondent is alleged to have made statements or taken
action, in the course of an organizing drive, in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act), and
to have placed service department employee Lightfoot on pro-
bation on March 11, 2003, and discharged him on March 25,
2003, due to his activities on behalf of the Union in violation of
Section 8(a)(3) and (4) of the Act. The Respondent denied that
it committed any violations of the Act and contends that
Lightfoot was discharged for cause.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the posthearing
briefs filed by counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, installs, maintains, and ser-
vices loading dock systems in the Chicago, Illinois area. It
maintains its main office and storage facility in Elk Grove Vil-
lage, Illinois, where it annually receives goods valued over
$50,000 directly from outside the State. The Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD440
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent specializes in installing and maintaining
dock levelers and related equipment. Other than office em-
ployees, the Respondent employs installers and service techni-
cians. The Respondent’s installation employees are typically
involved in the construction of new loading docks, while the
service technicians perform repair and maintenance on existing
docks. Since the mid-1970s, the installers have been covered
by a collective-bargaining agreement between the Respondent
and the Union. However, the service technicians have never
been covered by a collective-bargaining agreement.
William E. Carlson (Carlson) is the president and sole owner
of the Respondent. Rick Leadley (Leadley) has been the Re-
spondent’s manager of the service and installation department
for the past 20 years. He reports to Carlson. As manager,
Leadley has overall responsibility for the service and installa-
tion department employees. Guy Horbus (Horbus) is the Re-
spondent’s service technician supervisor and directly supervises
the service employees. Horbus reports to Leadley. Lightfoot
was an employee in the Respondent’s service department from
January 10, 2000, to March 25, 2003. As a service employee,
he was required to service and repair loading docks.
B. The Union Campaign
In late October 2002, the Union began an organizing cam-
paign among the Respondent’s service employees. On Novem-
ber 5, 2002, after receiving completed authorization cards from
eight service employees, union organizer James Atton sent a
letter to the Respondent requesting a meeting to discuss the
inclusion of an addendum to the Union’s current collective-
bargaining agreement adding the service employees. In a letter,
dated November 13, 2002, Carlson declined the request to meet
due to pending litigation involving the Union’s pension fund
for the installers. However, he left open the possibility of
agreeing to an addendum as part of a resolution of the litiga-
tion.
The Union responded to the rejection of its request for vol-
untary recognition by filing a petition with the Board to repre-
sent the Respondent’s 11 service employees on January 2,
2003.1 An election, which was scheduled by the Board for
February 11, was preceded by several weeks of written and oral
communications between Carlson and the service employees.
The election resulted in a majority vote by the service employ-
ees against certification of the Union as their collective-
bargaining representative.
1. The distribution of memoranda to employees
Three memoranda distributed by the Respondent to the em-
ployees during the election campaign are at issue. In the first
memorandum, dated January 17, Carlson informed all service
employees about the process involved in the February 11 elec-
tion, urged them to vote and assured them that their vote would
be confidential. However, he went on to explain, in pertinent
part, that “[i]f the majority votes against the union, we can con-

1 All dates and months, unless otherwise indicated, hereinafter refer
to 2003.
tinue our business and you can talk to us anytime about your
wages, employment and working conditions.” He also added
that “[i]f both sides have drastically different positions, bar-
gaining could last for months or years. During negotiations,
your wages are frozen.”
On January 27, the Respondent distributed another memo-
randum to the service employees explaining the impact unioni-
zation would have on their vacation, holiday, sick, and personal
leave benefits. The memorandum purported to disseminate
additional information relevant to the union certification elec-
tion and provided an outline setting forth the amount of leave
days currently enjoyed by the employees and the corresponding
monetary value of those benefits. However, the memorandum
asserted that, “[b]ased on the Agreement the Union has with
Journeyman, none of these benefits will be available to you
should the service technicians unionize.” It further concluded,
by stating, in bold letters, “you will lose $3,912.”
In an individual memorandum sent to each of the service
employees, dated January 30, Carlson reminded them about the
benefits they currently received. In Lightfoot’s case, his cus-
tomary 4-percent annual pay increase would be effectively
reduced to 1.9 percent if the Union were involved in negotia-
tions, based on a projected 4.9-percent raise, less a 3-percent
deduction for union membership dues. Carlson also indicated
that Lightfoot would lose the opportunity to perform overtime
work and receive monetary bonuses. Based on overtime per-
formed and a bonus received in 2002, Lightfoot stood to lose a
total of $5,203.90. Carlson revised his earlier projection of lost
benefits in the January 27 memorandum and concluded that
Lightfoot’s “new loss would total,” again in bold letters,
“$9,115.90.”
2. Meetings with employees
The General Counsel also contends that Carlson and Leadley
made oral threats at several group and individual employee
meetings prior to the election. The Respondent held its first
group meeting with the service employees on January 30. The
meeting, which was attended by all but two of the service em-
ployees, was held in the Respondent’s storage facility and
lasted approximately 30–45 minutes. At the meeting, Carlson
told the service employees that he considered them to be a part
of his “family” and repeated the suggestion contained in the
memoranda distributed to employees that they compare their
present benefits with those to be obtained through union repre-
sentation.2 Carlson also told the employees that he was “not a
big fan of Unions” and “in our world today their, their service
isn’t really as necessary as it was back in the 1930’s and that
type of scenario.” His remarks were followed by Leadley, who
referred to the Union as “useless” and a “waste of time.”
Upon concluding his remarks at the January 30 meeting,
Carlson asked whether the employees had any questions with
respect to the memoranda.3 Lightfoot responded to Carlson’s

2 According to Russel Knopf, a credible former employee, most of
the meeting related to Carlson and Leadley explaining why they were
opposed to the Union. Tr. 178. Neither Carlson nor Leadley refuted
Knopf’s characterization of the meeting.
3 Carlson initially testified that he scheduled meetings with individ-
ual employees for the following week because “we learned in the meet-
W. E. CARLSON CORP. 441
“family” comment by asking how he could justify treating one
family member different from another. Carlson “looked a little
confused” and Lightfoot then provided an example about a
parent who purchases an expensive pair of shoes for one child,
but gets an inexpensive pair for another child. Carlson re-
sponded to the example by looking “a little irritated” and told
Lightfoot he would “answer any personal questions on a one to
one meeting.”4 The only other service employee who spoke at
the meeting was Frank Baron. He was strongly opposed to
union representation.
Carlson and Leadley held the individual meetings with the
employees on February 3. Their meeting with Lightfoot lasted
about 45 minutes. Leadley began the meeting with an introduc-
tory statement about the informational purpose of the meeting.
Carlson then asked Lightfoot whether he had any questions.
Lightfoot told Carlson of his strong desire to be a member of a
union and then asked Carlson why he was opposed to the Un-
ion. Carlson replied that he could not afford the costs associ-
ated with a union relationship and opined that the company
“would not last” if the Union prevailed in the election.5 He also
avowed that, if the Union won the election, he would intention-
ally delay negotiations and lay off employees in order to pay
the higher salary costs associated with overtime work.6
In addition to the meetings arranged by the Respondent,
Lightfoot approached Leadley around the end of January or the
beginning of February and asked whether he would be receiv-
ing his annual pay increase and be paid for his scheduled Feb-
ruary vacation. It was the Respondent’s standard practice to

ing” that a “couple of the employees did not feel comfortable talking
with the other employees present.” However, in response to a follow-
up question, he contradicted himself by stating that these employees did
not speak to him at the meeting, but rather, spoke to Leadley. Tr. 379.
It is clear, therefore, that Carlson had already determined, prior to the
group meeting, to hold individual meetings with the employees.
4 Lightfoot’s contention that he spoke at the meeting was not contra-
dicted by other testimony. Carlson could not recall the comments, but
conceded that it was possible that Lightfoot spoke at the meeting. Tr.
394–395. Furthermore, although apparently confusing the date of the
January 30 meeting with another group meeting on February 10, Rus-
sell Knopf confirmed that Lightfoot asked Carlson the question using
the shoe example and Carlson responded. Tr. 177–181.
5 Lightfoot testified that the meeting lasted 45 minutes, while Carl-
son testified that none of the meetings lasted more than 15 minutes. Tr.
50, 382. I adopt Lightfoot’s estimate since, unlike Carlson, he had a
specific recollection of the meeting.
6 Carlson denied making the comments attributed to him by
Lightfoot at the February 3 meeting or at any other time during the
union organizing campaign. Tr. 387, 396–398, 403–405. Leadley
confirmed Carlson’s version of the meeting and explained that there
were only general discussions about negotiations during that meeting.
Tr. 553. However, Carlson announced at the January 30 meeting, after
Lightfoot pressed him about his opposition to union representation, that
he would deal with any “personal questions” in individual meetings. I
have no doubt that Lightfoot, who was the only service employee with
the temerity to challenge Carlson at the group meeting, raised the issue
of Carlson’s opposition during the February 3 meeting. Therefore, the
denials of Carlson and Leadley that they made statements indicating
their intent to take retaliatory action should the Union prevail in the
election, were not credible.
provide for annual pay increases and paid vacations.7 How-
ever, Leadley told Lightfoot that all wages were “frozen” until
after the election and could not guarantee that he would be paid
for his vacation.8
C. The Alleged Discriminatory Treatment of Richard Lightfoot
On November 7, 2002, Leadley and Horbus held individual
meetings with several of the service employees. In their meet-
ing with Lightfoot, Leadley, and Horbus discussed customer
complaints, time and attendance issues,9 excessive travel times
to work assignments, unauthorized rides by his children in his
company truck, personal calls on his company cellular tele-
phone, and napping during the workday. The meeting ended
with Leadley telling Lightfoot that he needed to improve and
noting that management was “cracking down” on all of the
employees.10 However, the meeting was not disciplinary in
nature and at no time during the meeting did Leadley tell
Lightfoot that he was being placed on probation or that termi-
nation might result if there were any problems in any of the
areas discussed.11 In fact, there was a substantial flexibility in
the Respondent’s time and attendance policies, as tardiness was
not an uncommon occurrence,12 and other employees had been
permitted to call off on days they were scheduled to work or
manipulate the classification of their leave days after the fact.13

7 The Respondent’s contention that these raises were discretionary
and merit based, rather than automatic, was negated by its attorney’s
concession that it was the Respondent’s customary practice “to award
earned raises on the paycheck that followed the [employees] anniver-
sary date.” GC Exh. 11, p.5.
8 Lightfoot’s version of the conversation was credible and not re-
futed by Leadley. Tr. 57–58.
9 The Respondent’s employees were required to punch a timeclock
by 6:30 a.m. at the beginning of each workday and then review their
daily work assignments to ensure they had the appropriate parts on their
trucks before leaving the shop. Employees were also required to call in
prior to scheduled workdays if they wanted to take the day off.
10 Lightfoot’s credibility as to his version of the meeting was en-
hanced by his candid concession of the deficiencies noted on GC Exh.
30(a); Tr. 71–74.
11 Horbus and Leadley each testified that the latter told Leadley he
was on probation. Tr. 212, 425, 509, 511. However, neither Leadley’s
assertion, nor Horbus’ support for his supervisor’s version of the
events, were credible. Leadley prepared a list of items to discuss at the
meeting and referred to them at trial as “pre-probation meeting notes.”
The list was written in pencil, but some items were added in blue ink
shortly before the meeting. Allegedly, after the meeting ended,
Leadley then wrote, in black pen, the words, “90 DAY PROBATION.”
GC Exh. 30(a); Tr. 154–155, 324–329. Leadley also allegedly gener-
ated, in black ink, two pages of handwritten notes summarizing the
meeting and noting at the end of the second page that Lightfoot had
been placed on probation for 90 days. R. Exh. 15; Tr. 422. Leadley’s
dubious explanation as to why he used blue ink to mark up the notes
before the meeting, but black ink to mark up the notes after the meet-
ing, support a reasonable inference that the black handwriting on GC
Exh. 30(a) and R. Exh. 15 were not generated at or around the time of
the meeting. It appears likely that they were written much later and
solely for the purpose of bolstering the Respondent’s contention that
Lightfoot was placed on probation on November 7, 2002.
12 GC Exhs. 17, 34, 37, 39, 43, 50, 58, 60–63, 68, 75, 79.
13 GC Exhs. 20, 22, 24, 35, 38, 40, 41, 44–46, 48, 49, 61, 62, 69–71,
73, 76, 77, 80, 81, 83.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD442
The Respondent’s time and attendance records indicated that
many of its employees benefited from this flexibility: Ken
Milarski, Ron Follet, Steve Goldsmith, Mark Litrento, Scott
Miller, Bob Balzano, Tom Gorman, Phil Torgeson, and Larry
Iwanski. Even problem employees Dan Follett and Jim Jessen
benefited from this flexibility in time and attendance policies
before the severity of their performance-related problems re-
quired disciplinary action.
The record reveals little interaction between the Respondent
and Lightfoot until after the Union’s campaign for certification.
At the group meeting of January 30, Lightfoot asked Carlson
why he opposed unionization of the service employees and
Carlson replied that all “personal questions” would be an-
swered in individual meetings. At Lightfoot’s individual meet-
ing with Carlson and Leadley on February 3, he restated his
strong support for the Union.
Around the same time, Lightfoot asked Leadley about his
annual wage increase, as it has been the Respondent’s custom-
ary practice to award an annual wage increase in the paycheck
immediately following an employee’s anniversary date. Based
on this practice, Lightfoot would have been eligible to receive
an increase in his January 31, 2003 paycheck.14 However,
Leadley told Lightfoot that wage increases were suspended
pending the outcome of the union election on February 11.
During that conversation, Leadley did not mention anything
about Lightfoot’s performance. Subsequent to the union elec-
tion on February 11, the Respondent still failed to award
Lightfoot his 2003 wage increase.
In addition to declaring his support for the Union at the
meetings of January 30 and February 3, Lightfoot provided
information to the Board in support of the Union’s unfair labor
practice charge in early March. The Respondent was clearly
aware of Lightfoot’s involvement with the Board since its
March 6 position statement responding to the Union’s unfair
labor charge explained the Respondent’s reasons for failing to
grant Lightfoot his annual pay increase even after the union
election on February 11. Lightfoot was the only employee for
whom such an explanation was given, as he was the only one
“whose anniversary date fell within the campaign and election
period” mentioned in the General Counsel’s February 26 letter
outlining the unfair labor charge.15
On March 11, Leadley and Horbus met with Lightfoot and
told him that he was being placed on a 60-day probation and
that this was his last chance before being discharged. Leadley
then had Lightfoot sign, for the first time during his employ-
ment with the Respondent, a “written warning acknowledge-

14 Although the Respondent occasionally withheld pay increases due
to unsatisfactory work performance, there were instances in which the
Respondent awarded pay increases to service employees prior to the
completion of a performance evaluation or a meeting to discuss per-
formance issues. For example, the Respondent awarded a 4 percent
pay raise to Knopf before meeting with him in November 2002 to dis-
cuss his performance. Tr. 181–184. There were also instances in
which others received wage increases after being involved in serious
incidents or being required to repay the Respondent for excessive per-
sonal use of a company cellular telephone. GC Exhs. 23, 28; Tr. 278–
279, 308–309.
15 GC Exh. 11, p. 5.
ment” form. The form cited “continued attendance problems,”
indicated that Lightfoot was on probation and was not to miss
any more days of work, except for scheduled days off, and
required that he work 40-hour weeks.16 The attendance prob-
lems were attributed to instances during January, February, and
early March when Lightfoot reported late to work or called to
take leave on the same day that he was scheduled for work. In
recent years, only one other employee was formally placed on
probation.17
On March 17, Lightfoot failed to report to work on time, was
called at home by Horbus and simply explained that he over-
slept. He arrived to work nearly 2 hours late.18 On March 21,
Horbus spoke to Lightfoot about damage to Lightfoot’s com-
pany truck that Horbus noticed 3 days earlier.19 Lightfoot’s
explanation was that he did not realize he was required to report
minor damage to the truck.20
Subsequently, on March 18, the Union filed charges with the
Board alleging unfair labor practices by the Respondent in vio-
lation of Section 8(a)(1), (3), and (4). The charges, which were
mailed to the Respondent on March 20 and received by it on
March 24, included allegations pertaining to a specific em-
ployee. The Respondent was aware that the employee referred
to in the letter was Lightfoot.21 Upon returning from vacation
on March 25, 2003, Leadley informed Lightfoot that he was
being discharged because he reported late to work on March 17,
2003, and failed to report minor damage to his company
truck.22

16 While the Respondent claims that there were performance-related
issues, there was no credible proof that the Respondent spoke to
Lightfoot about them at any time between November 7, 2002, and
March 11, 2003. Tr. 512; GC Exh. 8.
17 Jim Jessen had been placed on probation on October 18, 2000, be-
cause of performance-related problems.
18 Lightfoot’s testimony at trial, as well as in an affidavit submitted
to the Board on April 9, 2003, that he overslept because of a power
outage at his home, was not credible. Tr. 67–68. One would reasona-
bly expect that a person in the process of being fired because he over-
slept would reveal the mitigating circumstances of a power outage.
However, this was the only portion of Lightfoot’s testimony that I
found to be not credible.
19 R. Exh. 17.
20 A similar incident occurred during the fall of 2002 when Russel
Knopf, another service department employee, was also admonished for
failing to report minor damage to his company truck. However, Knopf
was not punished.
21 The amended charge stated, in pertinent part, that “[t]he Employer
further withheld the evaluation and raise of an employee after the filing
of the representation election petition by [the Union]. The Employer
also changed the terms and conditions of employment unilaterally,
during the term of the union representation election campaign when it
changed the policy for paid vacation time. All this was punitive and
aimed at known union supporters. The Employer retaliated against an
employee by placing him on ‘probation’ for alleged poor attendance.
By placing the employee on ‘probation,’ the Employer also denied him
his review and raise. All of this occurred after the Employer became
aware of that particular employee giving testimony to the NLRB during
the investigation of a charge of violating 8(a)(1) of the Act.” GC Exh.
1(c).
22 In recent years, only two employees have been discharged by the
Respondent, but the infractions leading to their termination were more
serious than the alleged infractions of Lightfoot and did not involve
W. E. CARLSON CORP. 443
DISCUSSION
I. THE SECTION 8(A)(1) VIOLATIONS
The General Counsel asserts that the Respondent violated
Section 8(a)(1) of the Act by attempting to discourage employ-
ees from selecting the Union as their collective-bargaining
representative by: (1) on or about January 17, distributing
memoranda to employees and threatening them with suspension
of annual wage increases for an indefinite period; (2) on or
about January 27, distributing memoranda to employees and
threatening them with the loss of benefits pertaining to vaca-
tion, sick, personal, and holiday leave; (3) on or about January
30, distributing memoranda to employees and threatening them
with the loss of bonus and overtime pay, and annual wage in-
creases; (4) in late January or early February, threatening em-
ployees with the indefinite suspension of a regularly scheduled
pay increase and vacation pay pending the results of the union
election; and (5), on or about February 3, threatening employ-
ees with plant closure, layoffs, loss of overtime benefits, and a
stalemate in collective bargaining in the event that the Union
won the election.23
The Respondent contends that the three memoranda distrib-
uted to the services employees did not contain threats, but
rather, articulated an objective and truthful basis for the com-
parison of what the Respondent paid its employees and what
the Union provides in its collective-bargaining agreements.
Furthermore, the Respondent contends that its assertion in the
January 17 memorandum, that wages were frozen during col-
lective bargaining, was not coercive when considered in con-
nection with Carlson’s statement that everything was negotia-
ble. With respect to Leadley’s comments to Lightfoot that the
latter should not expect a pay increase pending the union elec-
tion, the Respondent contends that it is appropriate for an em-
ployer to defer an expected pay increase in order to avoid the
appearance of interfering with a pending election. As to the
February 3 meeting with Lightfoot, the Respondent denies any
threats of plant closure, layoffs, loss of overtime benefits, and
an intent to cause delay of any future collective bargaining.
Finally, the Respondent asserts that Lightfoot was a conduit for
the Union, who was attempting to retaliate against the Respon-
dent for the latter’s refusal to voluntarily expand the bargaining
unit to include the service employees.
The record reveals that the Respondent had a practice of
granting annual wage increases based on merit.24 The increases

tardiness. Dan Follet was discharged after the relevant dates in the
charge, in June 2003, due to customer complaints and insubordination.
Tr. 596; GC Exhs. 25, 26. The only other employee, Jim Jessen, had
been counseled by Horbus in October 2000 for numerous problems,
including time and attendance violations, excessive travel times to job
assignments, and bad driving. Contrary to the Respondent’s assertion,
there was no indication on the written list of deficiencies provided to
Jensen at that time that he was placed on probation. However, Jessen
was discharged in March 2001 after experiencing serious problems
with three different customers within 1 month of his termination. GC
Exhs. 52–54.
23 GC Exh. 1(g), par. V.
24 This practice was conceded by the Respondent’s counsel in his
March 6 letter to the General Counsel and is properly chargeable to the
Respondent as an admission. Riverwoods Chappaqua Corp. v. Marine
were discretionary as to amount. However, other than
Lightfoot, no employee has been denied this wage increase
since 2001. Carlson’s statements that wages would be frozen
until the conclusion of collective bargaining threatened to dis-
continue these customary annual increases if the Union pre-
vailed in the election. It is well settled that an employer must
maintain the status quo regarding benefits to unrepresented
employees during the pendency of a union election. Recently,
in Jensen Enterprises, Inc., 339 NLRB 877 (2003), the Board
held that an employer “violated Section 8(a)(1) by informing
employees that, if the Union was voted in, wages would be
‘frozen’ during negotiations and they ‘shouldn’t expect to get
any increases in wages or benefits until collective bargaining
has concluded.’ We agree with the judge that [the statement of
the Respondent’s agent] amounted to a threat of loss of benefits
if the employees selected the Union as their bargaining repre-
sentative.”
Carlson’s initial preelection campaign memorandum of
January 17 warned service employees that, if the Union pre-
vailed, collective bargaining could last for months or years and,
during that time, wage increases would be suspended. Leadley
augmented the scope of that warning when, at or around the
end of January or the beginning of February, he told Lightfoot
that all wage increases were frozen until after the election and
that employees might not be paid a salary during their sched-
uled vacation. The statements by Carlson and Leadley threat-
ened to suspend the Respondent’s custom and practice of grant-
ing salary increases on or about an employee’s anniversary date
and effectively blamed the Union for the withholding. Accord-
ingly, the January 17 memorandum distributed to service em-
ployees by Carlson violated Section 8(a)(1) by threatening to
suspend their annual wage increases for an indefinite period in
order to discourage them from selecting the Union as their col-
lective-bargaining representative. Earthgrains Co., 336 NLRB
1119, 1126–1127 (2001); Grouse Mountain Lodge, 333 NLRB
1322, 1323–1324 (2001); Parma Industries, 292 NLRB 90, 91
(1988); Atlantic Forest Products, 282 NLRB 855, 858–859
(1987).
Memoranda distributed by Carlson to the employees on
January 27 and 30, warned the service employees that a union
election victory would result in the loss of benefits. The Janu-
ary 27 memorandum specifically threatened the loss of vaca-
tion, sick, personal, and holiday leave, while the January 30
memorandum referred to the loss of opportunity to perform
overtime work and receive monetary bonuses. The Respondent
explained in each memorandum that it was basing its estimates
on its current contract involving a different unit of its employ-
ees, but failed to inform the service employees that any change
in their benefits must be negotiated with the Union. Accord-
ingly, the Respondent’s statements in the January 27 and 30
memoranda violated Section 8(a)(1) of the Act by threatening
the loss of existing benefits in order to discourage employees
from selecting the Union as their collective-bargaining repre-
sentative. Climatrol, 329 NLRB 946, 948 (1999).

Midland Bank, 30 F.3d 339 (2d Cir. 1994); U.S. v. McKeon, 738 F.2d
26 (2d Cir. 1984); Packaging Techniques, 317 NLRB 1252 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD444
The Respondent supplemented the aforementioned memo-
randa with group and individual meetings with the service em-
ployees. In the January 30 group meeting, Carlson and Leadley
told the service employees that unions were useless, no longer
necessary and a waste of time. Other than expressing their
general dislike for unions, they made no comments of a threat-
ening nature in that meeting. However, in the individual meet-
ing that Carlson and Leadley held with Lightfoot on February
3, Carlson threatened to close the business if the Union won the
election or delay collective bargaining and lay off employees.
Under the test established by the Supreme Court in Gissel
Packing Co, 395 U.S. 575, 618 (1969), an employer may tell
employees the effects he believes unionization will have upon
the company. His statement must be “carefully phrased on the
basis of objective facts to convey an employer’s belief as to
demonstrably probable consequences beyond his control.”
However, the right of an employer to convey such a belief does
not permit him “to jump from the unstated or unproven premise
that a union’s wage scale is fixed and immutable to a conclu-
sion that he may have to shut down in the event of unionization,
and convey this ultimate conclusion to employees.” Debber
Electric, 313 NLRB 1094, 1097 (1994). Carlson certainly took
such a leap by dangling the threats of plant closure and layoffs
allegedly due to overtime wage scales. Furthermore, his threat
to unduly delay collective bargaining if the Union prevailed in
the election effectively told the service employees that their
“efforts to organize would be an exercise in futility.” Kona 60
Minute Photo, 277 NLRB 867, 869 (1985). Accordingly, I find
that Carlson’s threat to close the business, delay collective bar-
gaining or lay off employees if the Union won the election, was
coercive in nature and violated Section 8(a)(1) of the Act.
Furthermore, Leadley’s statement to Lightfoot in late Janu-
ary or early February, informing the latter that all wage in-
creases were suspended until after the election and suggesting
that employees might not receive paid vacations, was also coer-
cive in nature. That statement, which came shortly before the
union election, also violated Section 8(a)(1) of the Act by
threatening an employee with the loss of benefits in order to
discourage him from selecting the Union as his bargaining rep-
resentative.
II. THE 8(A)(3) AND (4) VIOLATIONS
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel has the initial burden to establish that the em-
ployee engaged in concerted protected activity, the employer
had knowledge of the employee’s protected activities, the em-
ployer took adverse action against the employee, and there is a
nexus or link between the protected concerted activities and the
adverse action. Once these four elements have been estab-
lished, the burden shifts to the Respondent to prove, by a pre-
ponderance of the evidence, that it took the adverse action for a
legitimate nondiscriminatory reason.
The General Counsel alleges that the Respondent, motivated
by Lightfoot’s support for the Union, violated Section 8(a)(3)
in several respects: (1) by failing to issue an annual wage in-
crease to Lightfoot in late January 2003 or at any time thereaf-
ter; (2) by issuing a written warning to Lightfoot on March 11
and placing him on probation; and (3) by discharging Lightfoot
on March 25. The General Counsel further alleges that the
aforementioned conduct subsequent to March 11 violated Sec-
tion 8(a)(4), as it was motivated by the Respondent’s knowl-
edge that Lightfoot was assisting the Union in a Board investi-
gation involving unfair labor practice charges pending against
the Respondent.25
The Respondent contends that Leadley decided to deny a
wage increase to Lightfoot before he knew anything about the
latter’s support for the Union and, in any event, that Carlson
informed the service employees on January 17 that all wage
increases were frozen pending the February 11 election. It also
contends that Lightfoot was placed on probation on March 11
due to continued problems with time and attendance on sched-
uled workdays. Finally, he was discharged on March 25 be-
cause he overslept and reported to work late on March 17, and
failed to report minor damage to his company vehicle on or
about March 18. The Respondent further contends that
Lightfoot’s probation and discharge were consistent with its
disciplinary policies and practices.
The first three factors of a Wright Line analysis clearly exist.
The facts demonstrate the Respondent’s awareness of the Un-
ion’s effort to organize its service employees. Lightfoot en-
gaged in concerted protected activity by advocating for the
Union during the January 30 group meeting and in his individ-
ual meeting with Carlson and Leadley on February 3. In addi-
tion, the Respondent, through its position statement of March 6,
was aware of Lightfoot’s cooperation with the General Coun-
sel. The Respondent’s union animus is established by the
aforementioned violations of Section 8(a)(1) by Carlson, the
owner of the company. Furthermore, Carlson openly opposed
the Union’s efforts to represent the service employees in state-
ments made in three memoranda and two meetings. While
there is no direct evidence that the Respondent harbored any
animus toward Lightfoot for supporting the Union, the record
as a whole supports an inference of union animus and discrimi-
natory motivation. Tabular Corp. of America, 337 NLRB 99
(2001); Electronic Data Systems Corp., 305 NLRB 219 (1991);
Abbey’s Transportation Services, 284 NLRB 698, 701 (1987),
enfd. 837 F.2d 575 (2d Cir. 1988); Pete’s Pic-Pac Supermar-
kets, 707 F.2d 236, 240 (6th Cir. 1983). The only remaining
factor necessary in order for the General Counsel to make a
prima facie case is to establish a link between the protected
concerted activities and the adverse action.
The denial of Lightfoot’s wage increase, the warning and
probation on March 11, and Lightfoot’s discharge on March 25
were all strikingly close in time to critical events relating to
Lightfoot’s support for the Union: Lightfoot spoke in support
of the Union at meetings on January 30 and February 3, but was
not provided the customary wage increase on or after his anni-
versary date of January 31; the warning and probationary meet-
ing on March 11 occurred within 2 weeks after Lightfoot pro-
vided testimony to the Board; and his discharge on March 25
was 1 day after the Respondent received notice of unfair labor
practice charges based on the threatened loss of benefits during
the union campaign and the probationary action taken against

25 GC Exh. 1(g), par. VI.
W. E. CARLSON CORP. 445
Lightfoot. Such timing strongly supports an inference that the
Respondent’s antiunion animus was a motivating factor in the
actions. In re TKC, 340 NLRB 923 (2003); Kankakee Valley
Rural Electric Membership Corp., 338 NLRB 906 (2003);
Masland Industries, 311 NLRB 184, 197 (1993); Limestone
Apparel Corp., 255 NLRB 722, 736 (1981).
Since the General Counsel established a prima facie case, the
burden of persuasion shifted to the Respondent to prove, by a
preponderance of the evidence, that it would have placed
Lightfoot on probation or discharged him even in the absence
of his union activity. Monroe Mfg., 323 NLRB 24 (1997). To
meet its burden of persuasion, the Respondent was required to
do more than show that it had a legitimate reason for its actions.
Hicks Oil & Hiscksgas, Inc., 293 NLRB 84, 85 (1989), enfd.
942 F.2d 1140 (7th Cir. 1991).
As previously discussed, Leadley’s contention that he in-
tended to deny Lightfoot’s wage increase in January, due to
unsatisfactory performance, was not credible. Leadley failed to
mention anything about Lightfoot’s performance in January
and, again, in early February when Lightfoot asked him about a
wage increase. Nor is it plausible for the Respondent to argue
that Lightfoot’s failure to receive his annual wage increase in
his paycheck of January 31 was due to the Respondent’s sus-
pension of increases pending the union election and, therefore,
subsumed within the scope of its violation of Section 8(a)(1).
The Respondent prevailed in the election on February 11, and
the Respondent could no longer rely on the uncertainties sur-
rounding future collective bargaining as an excuse for suspend-
ing customary wage increases. Therefore, the only reasonable
inference that may be drawn from the Respondent’s failure to
award Lightfoot a wage increase is that it chose to punish him
for his support of the Union.
The Respondent’s basis for placing Lightfoot on probation
on March 11 was allegedly due to continued problems with
time and attendance on scheduled workdays in January through
March. Specifically, Lightfoot was late on several occasions
and, on several other days, called the office to say that he was
taking off, causing the Respondent to reschedule the work as-
signments for those days. However, the record also reveals that
Lightfoot worked in excess of 40 hours every week on or after
the week ending December 30, 2002, and there is no credible
evidence that the Respondent spoke with Lightfoot about these
dates prior to March 11, or 44 days after the expiration of the
alleged 90-day probation on February 5. The Respondent’s
basis for discharging Lightfoot on March 25 was allegedly due
to his reporting late to work on March 17, and causing minor
physical damage to a company vehicle. Notably, tardiness was
not one of the items listed on the probationary form. Further-
more, Lightfoot did not miss any scheduled days of work be-
tween March 11 and 25, and worked nearly 50 hours each of
the 2 weeks during that time.26
As fully explained above at page 5 and footnotes 12, 13, and
20, the Respondent treated Lightfoot more harshly than the rest
of its employees. As such, the disciplinary taken by the Re-
spondent was a departure from past practices, in which it toler-
ated violations of time and attendance rules by other employees

26 GC Exh. 13.
without placing them on probation or discharging them. In re
Whirlpool Corp., 337 NLRB 726, 748 (2002); Adco Electric,
307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219 (1991);
Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Visador
Co., 303 NLRB 1039, 1044 (1991); In-Terminal Service Co.,
309 NLRB 23 (1992).
Based on the foregoing, I find that the Respondent failed to
meet its burden of proving that Lightfoot would have been
denied a wage increase, placed on probation and then dis-
charged. The reasons asserted by the Respondent for its con-
duct were not relied upon and were a pretext to hide the real
reason, which was to punish Lightfoot for engaging in pro-
tected concerted activity. Accordingly, I further find that the
Respondent violated Section 8(a)(1), (3), and (4) by denying
Richard Lightfoot a wage increase on or after January 31, plac-
ing him on probation on March 11, and discharging him on
March 25.
CONCLUSIONS OF LAW
1. W. E. Carlson Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Millwrights and Machinery Erectors Local Union No.
1693, an affiliate of United Brotherhood of Carpenters and
Joiners of America is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening to suspend wage increases, threatening
plant closure and layoffs, threatening the loss of benefits and
threatening the futility of collective bargaining if the Union
came in, the Respondent violated Section 8(a)(1) of the Act.
4. By denying Richard Lightfoot a wage increase, placing
him on probation, and discharging him due to his support for
the Union and cooperation with the Board investigation, the
Respondent violated Section 8(a)(1), (3), and (4).
5. By engaging in the conduct described above, the Respon-
dent has committed unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Respondent has engaged in the above vio-
lations of the Act, it shall be recommended that the Respondent
cease and desist from such actions and take certain affirmative
actions designed to effectuate the purposes and policies of the
Act and post the appropriate notices. It is recommended that
the Respondent offer immediate reinstatement to employee
Richard Lightfoot, who was unlawfully discharged. He shall be
reinstated to his prior position or to a substantially equivalent
one if his prior position no longer exists. He shall be made
whole for all loss of backpay and benefits sustained by him as a
result of the Respondent’s unfair labor practices. These
amounts shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]

W. E. CARLSON CORP.
346 NLRB No. 43
1