GREIF PACKAGING, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 8, 2016

09-CA-060244 (N.L.R.B. Jul. 8, 2016)

JD–63–16
Florence, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GREIF PACKAGING, LLC
and Case 09-CA-060244
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED,
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC
Erik P. Brinker, Esq.,
for the General Counsel.
Andrew C. Smith, Esq.,
for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. I heard this case on June 15, 2016, in
Cincinnati, Ohio. After the parties rested, I heard oral argument on June 23, 2016, and issued a
bench decision on June 27, 2016, pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In the complaint, the General
Counsel alleged that Greif Packaging, LLC (Respondent) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by suspending Richard McWilliams on December 7,
2011, and subsequently discharging Mr. McWilliams in December on about December 10, 2011.
For the reasons stated by me on the record, I found that the General Counsel did not
establish, by a preponderance of the evidence, that Respondent violated Section 8(a)(3) and (1)
of the Act as alleged. Therefore, I ordered that the complaint be dismissed.
In accordance with Section 102.45 of the Board’s Rules and Regulations, I certify the
accuracy of, and attach hereto as “Appendix A,” the portion of the transcript containing this
decision.1

1 The bench decision appears in uncorrected form at pp. 210 through 237 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as “Appendix A” to this
certification.
JD–63–16
Florence, KY
2
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in commerce within the meaning of 5
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a preponderance of the evidence that 10
Respondent suspended and discharged employee Richard McWilliams in violation of
the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended215
ORDER
The complaint is dismissed.
20
Dated, Washington, D.C. July 8, 2016
25
Melissa M. Olivero
Administrative Law Judge
30

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–63–16
3
APPENDIX A
JUDGE OLIVERO: Good afternoon, everyone. We are here, telephonically, today for the
issuance of my bench decision in the matter of Greif Packaging LLC, and United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers 5
International Union, Case 09-CA-060244. Present by telephone are Mr. Brinker for the General
Counsel and Mr. Smith for Respondent. On Thursday, June 23, I entertained oral arguments
telephonically and today, after considering the testimony, evidence, and the oral arguments
presented in the case, I am prepared to render a decision. This decision is rendered pursuant to
Sections 102.35(a)(10) and 102.45 of the Board’s Rules and Regulations. 10
The charge in this case was filed on June 10, 2011, by United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union
(which I will refer to as the Union). The charge was initially deferred to the parties’ grievance
arbitration procedure by the then-acting Regional Director of Region 9 on July 13, 2011. The 15
deferral letter is in the record as Respondent’s Exhibit 3. The complaint was issued on April 16,
2016 against Respondent, Greif Packaging LLC, which I may refer to as Greif or the Company
during this decision. The complaint alleges at paragraph 5(a) that on or about December 7, 2011,
Respondent suspended its employee, Richard McWilliams, in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act (which I will refer to as the Act). The complaint further 20
alleges at paragraph 5(b) that Respondent discharged Mr. McWilliams, in violation of Section
8(a)(3) and (1) of the Act. Respondent timely filed its answer to the Complaint, denying the
allegation, and raising numerous affirmative defenses. Among its affirmative defenses,
Respondent asserts that it had a legitimate, non-discriminatory reason for discharging Mr.
McWilliams and that the charge was not timely filed. Respondent has also raised laches as an 25
affirmative defense. The case was tried before me in Cincinnati, Ohio, on June 15, 2016. After
carefully considering all of the testimony and evidence offered at the trial, as well as the
arguments of the General Counsel and Respondent, I make the following findings of fact:
Respondent admits, and I find, that it is a limited liability company engaged in the production 30
of industrial packaging at its facility in Florence, Kentucky, where it annually sells and ships
goods valued in excess of $50,000 directly to points outside of the Commonwealth of Kentucky.
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. Respondent further admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the Act.35
At the time of the events at issue, Pete Loebs was Respondent’s plant manager and was the
highest ranking management official at the Florence facility. At this same time, Mike Yearout
was a maintenance supervisor and reported to Loebs. Chris Simpson was a second shift
supervisor. Respondent admits, and I find that Loebs, Yearout, and Simpson have been at all 40
material times supervisors of Respondent within the meaning of Section 2(11) of the Act and
agents of Respondent within the meaning of Section 2(13) of the Act. None of these individuals
is currently employed by Respondent.
In 2010, Respondent’s human resources were serviced by Respondent’s regional human 45
resources manager for the Midwest at the time, Christine Trocellier. Ms. Trocellier worked
JD–63–16
4
remotely from her office in Alsip, Illinois, but sometimes visited the Florence facility. In 2010,
Cathy Baker was Respondent’s human resources coordinator for the Florence facility.
The alleged discriminatee, Richard McWilliams, was employed at the Florence facility from
June 1999 until December 2010, when he was discharged for what Respondent claims was 5
misconduct or violations of its work rules. The Florence facility made 55 gallon steel drums and
Mr. McWilliams worked as a truck loader and running the main assembly press.
Mr. McWilliams was a member of United Steel Workers Local 805. He served as a shop
steward for about 6 years and also served as the local union president for about 2 years. As a 10
steward, Mr. McWilliams processed grievances, which he testified brought him into contact with
management officials daily. He testified that these interactions sometimes became heated.
However, Mr. McWilliams did not provide any specific testimony about any such interactions.
The events giving rise to this case took place in December 2010, almost 6 years before the 15
hearing. Mr. McWilliams testified that on December 7 he clocked in for his 9 a.m. shift at 9 a.m.
When he arrived at his work station, Mr. McWilliams noticed Yearout gesturing for him to come
over and talk.
Yearout told Mr. McWilliams that he was 4 minutes late. Mr. McWilliams responded that he 20
was only one minute late. Mr. McWilliams then returned to his work station. After a time, Mr.
McWilliams found himself with nothing to do. Mr. McWilliams’ leadman came over and told
him to find something to do. Mr. McWilliams testified that he began to put ring ties together.
A few minutes later, McWilliams testified, Yearout came to his work station and told him to 25
“stop dicking around.” Mr. McWilliams later testified that Yearout added he [referring to the
leadman] “told you to sweep.” Mr. McWilliams testified that he did not remember that. Yearout
also said find something to do, so Mr. McWilliams grabbed a broom and began sweeping.
Mr. McWilliams’ testimony is contradicted by the statement of his leadman contained in 30
Respondent’s Exhibit 5. According to the leadman, he told Mr. McWilliams to sweep and Mr.
McWilliams did not. The leadman’s statement further indicates that Mr. McWilliams refused
other directions to sweep that day and was instead seen sitting in his chair with his hands behind
his head. Furthermore, Mr. McWilliams indicated that he did not need to follow the leadman’s
instructions because he was the union president. 35
Later that day, Mr. McWilliams was called to Yearout’s office. When he arrived, Union
Shop Steward Dave Reynolds, Yearout, and Simpson were present. Yearout had 2 disciplinary
actions to present to Mr. McWilliams. First, Yearout presented a verbal warning for reporting
late to his work station. Second, Yearout presented a written warning for not following his 40
leadman’s direction. These disciplinary forms are contained in the record at General Counsel’s
Exhibit 3. Mr. McWilliams refused to sign the forms.
Mr. McWilliams testified that he did not agree with the discipline. He said that he told
Yearout, “I don’t agree with that and it [is] not accurate.” Mr. McWilliams testified that he told 45
Yearout that if there was a new rule, Yearout needed to discuss it with the Union. Yearout told
Mr. McWilliams to take it up with Plant Manager Loebs. According to Mr. McWilliams’ rather
JD–63–16
5
confusing testimony, he was upset because Respondent allegedly changed the application of its
rules regarding timeliness.
After being advised of his discipline, Mr. McWilliams left Yearout’s office to discuss the
matter with his steward. Mr. McWilliams told Reynolds that he believed that the discipline was 5
unfair. He told the steward that the company could not keep making up rules as they go. He also
told the steward that he needed papers to file a grievance.
After about 20 minutes, Mr. McWilliams decided to return to Yearout’s office. He found the
door to the office open and that Simpson was still there. Mr. McWilliams entered the office and 10
asked Yearout if he was going to be out on the shop floor tomorrow to find out if anybody else
was late and write them up. Mr. McWilliams asked Yearout if he was singling him out. Yearout
responded by saying “don’t come into my office telling me what to do.” Mr. McWilliams
testified that he was 8 inches from Yearout’s desk at the time of this exchange and that he raised
his voice. However, a report signed by Yearout and Simpson indicates that Mr. McWilliams was 15
leaning over Yearout’s desk, pointing his finger and yelling. Mr. McWilliams was unable to
explain the difference between raising his voice and yelling, despite being asked to do so.
Yearout then told Mr. McWilliams to leave the office.
Mr. McWilliams turned around and started to leave the office. As he was leaving he said, 20
“This is fucking bullshit.” Yearout gestured for Mr. McWilliams to return to the office. Yearout
then told McWilliams that he was suspended and asked Simpson to escort him out of the plant.
The written report of the incident indicates that Mr. McWilliams left the office yelling and using
profanity and saying, “I hate this fucking place.”
25
As he was leaving the plant, Mr. McWilliams stuck his head in the break room and yelled at
another employee allegedly to tell him about the change in rule application. This testimony was
contradicted by a statement of the employee sitting in the break room contained in Respondent’s
Exhibit 6. In his statement, the employee said that Mr. McWilliams came into the break room
and screamed, “How many people came back from break late?” to which the employee replied 30
“3.” Mr. McWilliams then screamed, “No, it was 4.” The employee further noted that Mr.
McWilliams continued to yell as he walked out the door.
After leaving the plant, Mr. McWilliams spoke to his steward, Dave Reynolds. He again
asked for a grievance form and said he would turn it in. Mr. McWilliams did complete and sign a 35
grievance report on December 8, 2010, 1 day before Respondent issued a letter terminating his
employment.
Respondent conducted an investigation of Mr. McWilliams’ infractions on December 8,
2010, as demonstrated by the supervisors’ statement at GC Exhibit 5, the employee’s statement 40
at Respondent’s Exhibit 6, and the leadman’s statement at Respondent’s Exhibit 5.
On December 9, Respondent’s representatives Yearout, Loebs, and Baker, met with Mr.
McWilliams’ union representative, Dave Reynolds, to discuss McWilliams’ grievance. During
the meeting, Reynolds stated that Mr. McWilliams had called him and said he had screwed up. 45
Mr. McWilliams also allegedly said some things that were not true. According to Reynolds, Mr.
McWilliams said he wants his job back and doesn’t want to be picked on. Reynolds further
JD–63–16
6
states that he heard Mr. McWilliams tell Yearout that, “this is fucking bullshit.” During the
meeting Yearout continued to maintain that Mr. McWilliams leaned over his desk and he took it
as a threat.
During the meeting, Loebs mentioned that Mr. McWilliams had said he did not need to do 5
his job because he was union president (a statement echoed in the statement of the leadman at
Respondent’s Exhibit 5).
A couple of days later, Mr. McWilliams allegedly called Yearout to apologize in an attempt
to save his job. He told Yearout that he was sorry if he came across bad. Yearout responded that 10
the apology was accepted. Mr. McWilliams did not ask about the status of his job or the length
of the suspension. I do not credit Mr. McWilliams’ testimony regarding this conversation. It
defies logic that Mr. McWilliams would have called Yearout and not asked about the length of
his suspension or whether he was being terminated. Furthermore, I did not find Mr. McWilliams
to be a credible witness for reasons stated elsewhere in this decision. 15
Later, McWilliams testified that he called Cathy Baker in Respondent’s human resources
department. She asked if he had received a letter from FedEx. He said no and Ms. Baker said
she would send another. Mr. McWilliams testified that Cathy would not tell him what was in the
letter and would not comment on the status of his employment with Respondent. Mr. 20
McWilliams’ testimony on this point was rather confusing. Furthermore, it again defies logic
that Mr. McWilliams would not have asked about the status of his employment.
Mr. McWilliams later received a letter via regular mail advising him that he was terminated.
This letter is contained in the record as GC Exhibits 4 and 6, and is dated June 9, 2010. 25
According to the attached FedEx slip in GC Exhibit 6, the letter was not sent until December 13,
2010, thus making the charge, at least as it relates to Mr. McWilliams’ discharge, timely.
The termination letter indicates that Mr. McWilliams was suspended because of his conduct
when he received the disciplinary actions for reporting late to his workstation and 30
insubordination in refusing to perform duties as assigned. The letter further indicates that Mr.
McWilliams’ demeanor, inappropriate language, threatening statements, and behavior fall short
of Respondent’s standards of conduct. The letter concludes that based upon Respondent’s
investigation, it had decided to terminate him immediately.
35
Mr. McWilliams completed a grievance regarding his discipline and suspension, a copy of
which is in the record as Respondent’s Exhibit 1. I note that this grievance does not mention Mr.
McWilliams’ termination. Mr. McWilliams disagreed with the discipline received because, he
claimed, he arrived at his workstation 1 minute late (instead of 4) and because he was treated
unfairly by his supervisor. The grievance does not claim that Mr. McWilliams’ suspension was a 40
result of any union or other protected concerted activity. Instead, the grievance claims that Mr.
McWilliams has been discriminated against since he returned from sick leave. Mr. McWilliams
indicated that he felt singled out and that he was being watched since returning from his leave.
In addition, Mr. McWilliams admits that he was upset during the meeting at which he was
suspended and that he stated, “This is fucking bullshit.” 45
JD–63–16
7
The parties’ grievance arbitration procedure is set forth in their collective bargaining
agreement, which is in evidence as General Counsel’s Exhibit 2, at articles 22 and 23.
Arbitration is the final step of the grievance procedure. Recourse to arbitration is available only
to the Union and not individual employees. The arbitration procedure requires the moving party
to write to the Federal Mediation and Conciliation Service for a list of available arbitrators. 5
Respondent completed the form as requested by the Union and forwarded it to FMCS, as shown
in Respondent’s Exhibit 7. The Union did not proceed to arbitration of Mr. McWilliams’
grievance.
Mr. McWilliams acknowledged receiving a copy of Respondent’s employee handbook both 10
through his testimony and in a signed document in the record as Respondent’s Exhibit 2. The
collective-bargaining agreement is silent as to employee behavior and conduct, insubordination,
tardiness, or discipline. However, Respondent’s employee handbook, contained in the record as
General Counsel’s Exhibit 8, contains a list of what are deemed serious offenses at pages 9 and
10. Among the serious offenses are: insubordination in refusing to carry out the instructions of a 15
supervisor and/or acts of disrespect toward a supervisor; using profane, abusive, offensive or
harassing language; threatening, intimidating, or physical or verbal assault toward another person
on company property. Any or all of these actions may result in termination without prior
warning or progressive discipline.
20
Respondent’s employee handbook also contains a section dealing with workplace threats and
violence at page 11. In this section, Respondent states that it has no tolerance toward threatening
and violent behavior in the workplace. The term threat includes both verbal and nonverbal
conduct. Threats and acts of violence are grounds for discipline, including termination of
employment. 25
Respondent’s employee handbook also contains a section on attendance and punctuality at
page 20. In this section, the handbook indicates that employees are expected to be at their work
stations and ready to work when the work period begins.
30
These are the facts as I have found them. Now I shall turn to the discussion and analysis
portion of this decision. Some of my credibility resolutions have been made as part of the
findings of fact herein, however, I have been presented with two versions of certain events which
cannot be reconciled. Therefore, I feel the need to address the credibility of the witnesses
further.35
Generally, I did not find Mr. McWilliams’ testimony credible. He frequently testified using
generalities and he hesitated by using the phrase “you know.” He also frequently ended his
responses by stating, “whatever.” Much of his testimony was given in response to leading
questions by Counsel for the General Counsel. He tended to answer questions before the 40
questioner was finished. In addition, he frequently stated that he did not remember specifics
about key events by stating, “It was 6 years ago.” He sparred with Respondent’s counsel on
cross-examination. In addition, I cite the following examples in support of my decision not to
credit Mr. McWilliams.
45
Mr. McWilliams gave confusing testimony. When asked by the General Counsel what
Respondent’s rule was regarding timeliness, he replied that would come and go—they would use
JD–63–16
8
it one month and not use it again. When asked to clarify, he only stated that you (meaning
employees) need to be back maybe 1 minute before the start of your shift. Then he said a couple
minutes. Later he testified it was 5 minutes. He was never able to fully elucidate what
Respondent’s rule was regarding timeliness, which is why I credited Respondent’s employee
handbook over Mr. McWilliams’ testimony. I would further note that Mr. McWilliams was not 5
able to give specific examples of how the rule was unfairly applied. No evidence was presented
at trial of other employees being written up for this same infraction or of grievances filed
because of unfair application of Respondent’s rules.
Mr. McWilliams also changed his testimony during the course of the hearing. For example, 10
in testifying about when he arrived at work and clocked in on December 7, he initially testified
that he arrived at 8:50 for his 9:00 shift and clocked in at 9:00. Then he said he did not
remember the exact time. Then he backtracked and said that the clock said it was 9:00.
Mr. McWilliams added to his testimony as the trial progressed. He added additional 15
testimony about what was said at the meeting at which he was terminated on cross-examination.
For example, Mr. McWilliams did not mention that Mr. Yearout said he would call Mr.
McWilliams after he was suspended on direct examination, but added this statement on cross-
examination. Furthermore, Mr. McWilliams added testimony that he asked Yearout why he was
suspended on cross-examination. 20
The General Counsel frequently tried to rehabilitate Mr. McWilliams’ testimony, such as by
refreshing his recollection using his affidavit. However, these efforts only accentuated the lack
of detail in Mr. McWilliams’ unaided testimony.
25
Mr. McWilliams has also been convicted of a crime of dishonesty. Mr. McWilliams
admitted on cross examination that he spent 38 days in jail as a result of stealing property.
Although his criminal case was reduced from a felony to a misdemeanor, theft is still a crime of
dishonesty and I may consider it in assessing Mr. McWilliams’ credibility under Rule 609 of the
Federal Rules of Evidence. I consider this conviction as confirming my determination that Mr. 30
McWilliams’ testimony was not credible. However, I would have discredited his testimony based
solely on the previously mentioned factors. Prior to the revelation of Mr. McWilliams’ theft
conviction, I had determined to discredit his testimony for the previously stated reasons. He was
an incredible witness, and his testimony was not sure or convincing enough to be worthy of
belief. I did not rely on any of his testimony in my findings unless it was corroborated by a more 35
reliable witness or piece of evidence, was inherently plausible, or it was an admission against his
own interest.
I found the testimony of Ms. Trocellier mostly credible. Her demeanor on the witness stand
was steady and sure. She did not waver under cross-examination. In addition, the General 40
Counsel did not attempt to impeach her testimony. Therefore, I have credited Ms. Trocellier’s
testimony over that of Mr. McWilliams.
However, I have not relied upon Ms. Trocellier’s testimony regarding a voicemail message
allegedly left by Mr. McWilliams for Yearout. I note that this voicemail message is not 45
referenced anywhere in Mr. McWilliams’ termination paperwork or Respondent’s position
statements to the Board.
JD–63–16
9
It is well-settled Board law that it is inappropriate, and in fact error, to draw an adverse
inference from an employer’s failure to call a former supervisor or manager as a witness, since in
such circumstances, it may not be reasonably assumed that the witness would be favorably
disposed toward the employer. Reno Hilton Resorts, 326 NLRB 1421, 1421 fn. 1 (1998) (judge 5
erred in drawing adverse inference from failure of Employer to call former officials involved in
decision to subcontract.); Irwin Industries, 325 NLRB 796, 811 fn. 12 (1998) (no adverse
inference from failure to call former supervisors). Thus, I draw no adverse interest against
Respondent for not calling Yearout, Loebs, or Simpson as witnesses.
10
First, I shall address Respondent’s defense that the complaint is time-barred under Section
10(b) of the Act. Section 10(b) reads in pertinent part: “Provided . . . no complaint shall issue
based upon any unfair labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person against whom such
charge is made . . .” 29 U.S.C. § 160(b). Pursuant to Section 10(b), a violation of the Act 15
cannot be found, “which is inescapably grounded in events predating the limitations period.”
Machinists Local 1424 v. NLRB, 362 U.S. 411, 422 (1960). The evidence at trial established that
the charge was filed on June 10, 2011. The evidence further established that Mr. McWilliams
was suspended on December 7, 2010. In Redd-I, Inc., 290 NLRB 1115 (1988), the Board held
that, “If a charge was filed and served within six months after the violations alleged in the 20
complaint, the complaint (or amended complaint), although filed after the six months, may allege
violations not alleged in the charge if (1) they are closely related to the violations named in the
charge, and (2) occurred within six months before the filing of the charge.” The charge itself
does not reference Mr. McWilliams’ suspension at all. Moreover, the charge was not filed until
more than 6 months after Mr. McWilliams’ suspension. Thus, I find that the allegation in 25
paragraph 5(a) of the complaint concerning Mr. McWilliams’ suspension is time-barred under
Section 10(b) of the Act.
However, I find that the allegation related to Mr. McWilliams’ discharge is not time-barred
under the Act. Respondent prepared a letter to Mr. McWilliams dated December 9, 2010, 30
advising him that his employment had been terminated. This letter indicates that it was sent via
FedEx. The FedEx airbill produced by Respondent in response to the General Counsel’s
subpoena indicates that the letter was not sent until December 13, 2010. Thus, based on this
piece of objective evidence, I find that Mr. McWilliams was not notified of his termination until
at least December 13, 2010. As the evidence establishes that Mr. McWilliams was not notified 35
of his termination until after December 13, 2010, I find that the complaint allegation related to
his termination was not time-barred under Section 10(b) of the Act.
The legal standard for evaluating whether an adverse employment action violates Section
8(a)(3) of the Act is set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 40
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analysis). In Wright Line, the Board
determined that the General Counsel carries the initial burden of persuading by a preponderance
of the evidence that an employee’s protected conduct was a motivating factor (in whole or in
part) for the employer’s adverse employment action. The adverse employment action alleged by 45
the General Counsel in this instance was the discharge of Mr. McWilliams.
JD–63–16
10
Under Wright Line, the elements required for the General Counsel to meet his initial burden
are protected concerted activity by the employee, employer knowledge of that activity, and
animus on the part of the employer. Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065
(2007), enfd. 577 F.3d 467 (2d Cir. 2009); see also Relco Locomotives, 358 NLRB 229, 229
(2012), enfd. 734 F.3d 764 (8th Cir. 2013) (observing that “[e]vidence of suspicious timing, false 5
reasons given in defense, failure to adequately investigate alleged misconduct, departures from
past practices, tolerance of behavior for which the employee was allegedly fired, and disparate
treatment of the discharged employee all support inferences of animus and discriminatory
motivation”).
10
If the General Counsel meets that burden, then the burden shifts to Respondent to prove that
it would have taken the same action absent the employee’s protected conduct. Wright Line, 251
NLRB at 1089; NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983).
The General Counsel has established union activity on the part of McWilliams only 15
inasmuch as he was the Union’s president at the time of his suspension and discharge. It seems
obvious that Respondent would have had knowledge of Mr. McWilliams’ status as Union
president, so I find that Respondent had knowledge of Mr. McWilliams’ union activity.
The only mention of Mr. McWilliams’ status as union president during the events at issue 20
came from Mr. McWilliams himself. When Mr. McWilliams was told by his leadman to sweep,
Mr. McWilliams told the leadman, “He did not have to do what I say because he is the Union
Pr[esident].” This statement is corroborated in that it was mentioned in the meeting between
Dave Reynolds and Respondent’s representatives regarding Mr. McWilliams’ grievance.
However, this statement reveals only that Mr. McWilliams may have mentioned his status as 25
union president in an effort to avoid working. Mr. McWilliams specifically denied making any
such statement on cross-examination. If I were to discount the written statements contained in
the record, I would be left with no mention being made of Mr. McWilliams’ status as union
president.
30
I do not find that Mr. McWilliams’ protestations over his discipline amounted to protected
concerted activity. The question of whether an employee has engaged in concerted activity is a
factual one based on the totality of record evidence. See, e.g., Ewing v. NLRB, 861 F.2d 353 (2d
Cir. 1988). The Board has found that “ostensibly individual activity may in fact be concerted
activity if it directly involves the furtherance of rights which inure to the benefits of fellow 35
employees.” Anco Insulations, Inc., 247 NLRB 612 (1980). An employee’s activity will be
concerted when he or she acts formally or informally on behalf of the group. Oakes Machine
Corp., 288 NLRB 456 (1988). Concerted activity has been found where an individual solicits
other employees to engage in concerted or group action even where such solicitations are
rejected. El Gran Combo de Puerto Rico, 284 NLRB 1115 (1987), enfd. 853 F.2d 996 (1st Cir. 40
1988). Conversely, concerted activity does not include activities of a purely personal nature that
do not envision group action. See United Association of Journeymen & Apprentices of the
Pipefitting Industry of the United States and Canada, Local Union 412, 328 NLRB 1079 (1999);
Hospital of St. Raphael, 273 NLRB 46, 47 (1984); National Specialties Installations, 344 NLRB
191, 196 (2005).45
JD–63–16
11
The Board has held that whether an employee’s activity is concerted depends on the manner
in which the employee’s actions may be linked to those of her coworkers. Fresh & Easy
Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014). The Supreme Court has observed
that “[t]here is no indication that Congress intended to limit [Section 7] protection[s] to situations
in which an employee’s activity and that of his fellow employees combine with one another in 5
any particular way.” NLRB v. City Disposal Systems, 465 U.S. 824, 835 (1984). Concertedness
is analyzed under an objective standard. Fresh & Easy Neighborhood Market, 361 NLRB No.
12, slip op. at 4. Employees act in a concerted fashion for a variety of reasons, some altruistic
and some selfish. Id. citing Circle K Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d
498 (6th Cir. 1993). 10
Activity by a single individual for that person’s own personal benefit is not construed as
concerted activity. NLRB v. Adams Delivery Service, 623 F.2d 96 (9th Cir. 1980) (individual
griping about his overtime pay was not concerted activity). See also, Tampa Tribune, 346 NLRB
369, 371-372 (2006) (employee who raised a personal gripe complaint about favoritism was 15
speaking only for himself and there was no evidence that his coworkers even shared his belief
that favoritism existed so no protected concerted activity.)
Mr. McWilliams raised only his own allegedly disparate treatment to Yearout. He did not
mention other employees. Because I have not credited the testimony of Mr. McWilliams, I have 20
not found that he mentioned that if there was a new rule, Yearout needed to discuss it with the
Union. Although I did find that Mr. McWilliams entered the office and asked Yearout if he was
going to be out on the shop floor tomorrow to find out if anybody else was late and write them
up, as it is corroborated by his grievance form, I do not find that this statement amounts to
protected concerted activity by Mr. McWilliams. Mr. McWilliams’ griping to his supervisor was25
purely personal in nature and not concerted activity undertaken for mutual aid or protection.
McWilliams was complaining about his own discipline and not Respondent’s treatment of other
employees. In addition, there is no evidence that other employees shared Mr. McWilliams’
concerns about Respondent’s alleged discriminatory actions toward him. Furthermore, the
charge itself in this case indicates that Mr. McWilliams’s termination was due to his union 30
activities being local union president.
I find the Interboro doctrine, cited by the General Counsel in his closing argument,
inapplicable here. In NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984), the Supreme
Court gave its approval to the Board’s Interboro doctrine, which, in general terms, states that an 35
employee has the right under Section 7 of the Act to assert rights conferred on him and his fellow
employees through a collective-bargaining agreement. However, the collective-bargaining
agreement in this case is silent regarding tardiness or insubordination or threats or even
progressive discipline. There is no evidence in the record that the employee handbook, which
does contain provisions regarding the aforementioned subjects, was collectively bargained. As 40
such, Mr. McWilliams was not raising any concern conferred to him or other employees through
a collective-bargaining agreement.
Most importantly, however, the General Counsel has set forth no evidence regarding
antiunion animus on the part of Respondent. The record is devoid of contemporaneous 45
statements by Respondent regarding Mr. McWilliams’ status as union president or other
protected, concerted activity, except the statement in the meeting with Dave Reynolds by Loebs
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that being union president did not mean that Mr. McWilliams did not have to do his job. This
does not show animus toward Mr. McWilliams’ union activity, it shows a lack of tolerance for
Mr. McWilliams’ insubordination. Simply put, I cannot find any evidence that Respondent bore
animus toward Mr. McWilliams for any union or other protected, concerted activity.
5
Furthermore, the General Counsel did not produce evidence that Respondent tolerated
behavior such as threats or insubordination from other employees. The record further establishes
that Respondent investigated the events giving rise to Mr. McWilliams’ discharge. There is no
evidence of suspicious timing, departures from past practices, or disparate treatment. Thus, I
find no reason to infer that Respondent’s reason for discharging Mr. McWilliams was 10
discriminatory.
During the hearing, the General Counsel intimated that Respondent’s position statements, in
the record as General Counsel’s Exhibits 9 and 10, demonstrate that Respondent has engaged in
shifting defenses. But, having examined Respondent’s defenses for consistency and reason, it 15
must still be remembered that it is the General Counsel who bears the burden of proof.
Therefore, I must ultimately examine the General Counsel’s case in chief and my examination
shows the General Counsel’s case to be doomed by the inability of his only witnesses to testify
credibly.
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Accordingly, I find that the General Counsel has not met his burden of establishing that Mr.
McWilliams’ union activity was a motivating factor in his discharge.
However, even if the General Counsel had met his burden of proving that Mr. McWilliams’
discharge was motivated by his union or other protected, concerted activity, I find that 25
Respondent had legitimate reasons for discharging him. Mr. McWilliams’ purported union
activity coincided with his insubordination and verbal assault on a supervisor, both serious
violations of Respondent’s policies. Respondent’s employee handbook states that these
violations of its rules may result in immediate discharge. Thus, I would find that it was these
violations on Mr. McWilliams’ part which led to his termination, not any unproven union or 30
protected concerted activity.
It is well settled that the Board does not substitute its own judgment for the employer’s as to
what discipline would be appropriate. George Mee Memorial Hospital, 348 NLRB 327, 322
(2006); Fresno Bee, 337 NLRB 1161, 1162, 1181 (2002). Mr. McWilliams acknowledged 35
signing for a copy of Respondent’s employee handbook, which includes a list of serious
violations for which an employee may be terminated. It is not appropriate for me to use my
subjective judgment to second guess Respondent’s disciplinary decision and interpretation of its
rules. See Consolidated Biscuit Co., 346 NLRB 1175, 1180 (2006).
40
I also find the Atlantic Steel doctrine inapposite to this case. Counsel for the General
Counsel argues that Mr. McWilliams’ statements during and after his meeting with Yearout on
December 10, 2010, were within the parameters of Atlantic Steel, 245 NLRB 814 (1979).
However, Atlantic Steel only applies when an outburst, or other strong language, occurs in the
midst of the employee’s protected concerted activities. Plaza Auto Center, Inc., 355 NLRB 493, 45
494 (2010), I have found that there was no protected, concerted activity engaged in at the
December 7, 2010 meeting. The discussion was only about Mr. McWilliams’ work deficiencies,
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13
not the conditions of employment of all the employees. Instead, the evidence establishes that it
was Mr. McWilliams’ outburst at this meeting, coupled with his insubordination and tardiness,
which resulted in his discharge. I therefore recommend that this allegation be dismissed.
In summary, I do not find that the General Counsel has established, by a preponderance of 5
the credible evidence, that Respondent suspended and later discharged Mr. McWilliams as
alleged in paragraph 5 of the complaint. As such, I do not reach Respondent’s affirmative
defenses. Therefore, I make the following conclusions of law:
1. Respondent, Greif Packaging LLC, is an employer engaged in commerce within the 10
meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization under Section 2(5) of the Act.
3. The General Counsel has not established by a preponderance of the evidence that
Respondent suspended and discharged employee Richard McWilliams in violation of 15
the Act.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended order:
20
The complaint is dismissed in its entirety.
When the transcript of this proceeding has been prepared, I will issue a certification which
attaches as an appendix the portion of the transcript reporting this bench decision. When the
certification is served upon the parties, the time period for filing exceptions will begin to run. I 25
direct your attention to the Board’s Rules and Regulations regarding the time period for filing
exceptions. I want to thank counsel for the General Counsel and counsel for Respondent for
your professionalism and competence in presenting this case. With that, the trial is now closed
and we are off the record.
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