Pope Concrete Products

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 989 (N.L.R.B. 1991)

989
305 NLRB No. 153
POPE CONCRETE PRODUCTS
1 On April 10, 1991, Administrative Law Judge Richard H.
Beddow Jr. issued the attached decision. The Respondent filed ex-
ceptions and a supporting brief. The General Counsel filed excep-
tions, a supporting brief, and a brief in answer to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 All dates are in 1989, unless otherwise stated.
4 We agree with the judge that the Respondent violated Sec.
8(a)(3) by implementing and enforcing a new formal written warning
policy for unexcused absences. We emphasize that this unlawful
conduct is distinguishable from the Respondent’s prior irregular
practice of placing notes above verbal warnings in employees’ per-
sonnel files.
Pope Concrete Products, Inc. and Oil, Chemical
and Atomic Workers International Union,
AFL–CIO, Local 3-987. Cases 26–CA–13404
and 26–CA–13472
December 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
One of the issues presented in this case1 is whether
the Respondent’s 3-day suspension of employee Danny
Owen violated Section 8(a)(3) of the Act. The judge
found that the General Counsel failed to prove the al-
leged violation. The General Counsel has filed excep-
tions to this finding.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, except as discussed below, and to adopt the
recommended Order as modified.
For the reasons set forth fully in the judge’s deci-
sion, we agree with his findings that, after becoming
aware of employees’ union organizing activity in Au-
gust 1989,3 the Respondent: instituted an unlawful
written warning system;4 discriminatorily issued writ-
ten warnings on August 29 to employees Danny Mor-
gan and Daythiel Buie, who had engaged in union ac-
tivities; impliedly threatened employee Owen in early
September with a cut in employees’ wages and hours
if they unionized; and unlawfully discharged leading
union activist Buie in late September. For the reasons
which follow, we also find that the Respondent unlaw-
fully suspended employee Owen on September 11.
Driver employee Owen assisted in organizational ac-
tivities. In addition, he and Buie were the only em-
ployees who spoke often about employee wages, work-
ing conditions, and union representation in three em-
ployee meetings with part-owner and president, Albert
Pope, held in the period between the filing of a rep-
resentation election petition on August 23 and the
withdrawal of the petition on October 12. Owen was
also the immediate object of part-owner and precase
manager, Jeff Pope (Albert’s son), implied threat to cut
wages and hours in early September.
On September 11, Owen was suspended for 3 days
without pay, the first disciplinary action against him in
his 18-month tenure with the Respondent. The suspen-
sion followed an accident that occurred on September
8. His trailer broke an air coupling and fell 12–16
inches to the ground because Owen failed to lower the
supporting ‘‘dolly legs’’ before unhooking the trailer
from the truck cab.
In May 1988, Owen had been involved in a similar
accident, which resulted in greater damage. At that
time, Albert Pope only told Owen to be more careful.
In the fall of 1988, Owen put a small crease in the
side of a tanker. He reported this incident to the Re-
spondent, without any immediate consequence. These
two earlier incidents were mentioned, however, in the
September 11 letter explaining the reasons for Owen’s
suspension. In addition, Albert Pope testified that he
had observed Owen respond too slowly to an overflow
warning bell while filling his truck just prior to the
September accident. Pope said that he felt Owen need-
ed ‘‘something to kind of wake him up a little bit.’’
The judge found that Owen was a union supporter,
but he was not as active as Buie. He further found
that, under the circumstances presented, the General
Counsel had failed to prove that the discipline imposed
on Owen was so ‘‘particularly harsh or disparate’’ as
would warrant an inference of discriminatory motiva-
tion. Accordingly, he found that the Respondent sus-
pended Owen for a nonpretextual, legitimate business
purpose.
We find that the General Counesl has presented
prima facie proof of unlawful discrimination against
Owen. (1) He was an open union supporter, second
only to Buie among employee activists. (2) The Re-
spondent’s knowledge of Owen’s prominence in that
campaign is inferable from evidence that, in late Au-
gust, Albert Pope told an employee that he knew who
the ‘‘instigators’’ were and, in early September, Jeff
Pope singled out Owen for an unlawful threat to retali-
ate against unionization. (3) The Respondent’s pro-
nounced animus to union activity is manifest in the
threat of Owen and in the Respondent’s earlier unlaw-
ful actions of instituting a written disciplinary system
and discriminatorily issuing warnings to union activi-
ties. (4) The timing of Owen’s suspension proximate
to these other unfair labor practices and in the context
of a representation election campaign suggests a nexus
between the Respondent’s action and Owen’s union
activity. This nexus is underscored by the parallel be-
tween the Respondent’s pretextual reason for institut-
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the unlawful written disciplinary system—i.e., to
‘‘get employees’ attention’’—and one purported reason
for shortly thereafter disciplining Owen—i.e., that he
needed ‘‘something to kind of wake him up a little
bit.’’
We further find that each of the Respondent’s al-
leged reasons for suspending Owen was pretextual. As
previously indicated, our finding that the Respondent’s
first ‘‘call to attention’’ masked a discriminatory dis-
ciplinary scheme contradicts the claim that a second,
similar ‘‘call to attention’’ for Owen was entirely le-
gitimate. The validity of the Respondent’s concern
with Owen’s purported slow response to an overflow
warning bell is also rebutted by the failure of the writ-
ten suspension memo to mention this matter and by
uncontroverted evidence that Owen had been reacting
to the bell in the same manner for a prolonged period
of time without any overflow spill or caution from the
Respondent’s officials.
It is also clear that the Respondent’s reliance on
Owen’s accident record was not genuine. The par-
ticular incident for which he was disciplined was very
similar to the incident which occured in May 1988.
Owen received no discipline whatsoever for the earlier
incident, which actually entailed more costly damage.
The contemporaneous advice to be more careful cannot
reasonably be construed as an indication that a recur-
rence of such negligence almost a year and a half later
would warrant the imposition of a 3-day suspension.
The juxtaposition of these two trailer incidents, with
discipline imposed only following the onset of orga-
nizing activity, contradicts the judge’s finding that
Owen was not subjected to disparate treatment. Indeed,
the disparity in treatment was further demonstrated
later in September when the Respondent excused em-
ployee mechanic David Brinley, who was not a union
supporter, from a 3-day suspension for negligence
which contributed to $4000 in damage to a truck en-
gine.
Based on the foregoing, we find that the Respond-
ent’s suspension of Owen was motivated by a desire
to retaliate against a known union activist. Con-
sequently, we conclude that the Respondent violated
Section 8(a)(3) and (1) when it suspended Owen. We
shall modify the judge’s recommended Order and no-
tice to include provisions for the appropriate ‘‘make-
whole’’ remedy to Owen for the discrimination against
him.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pope
Concrete Products, Inc., Paris, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Suspending or discharging any employee for
engaging in union or other concerted activity protected
by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a) and
(b).
‘‘(a) Offer Daythel Buie immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make Buie and Danny Owen
whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination
against them.
‘‘(b) Remove from its files any reference to the un-
lawful discipline imposed on Daythel Buie, Dan Mor-
gan, and Danny Owen, and notify these employees in
writing that this has been done and that the unlawful
discipline will not be used against them in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT implement a written warning system,
issue warnings to employees, implicitly threaten to cut
hours and wages, or otherwise discriminate against our
employees because of their activities in support of
union affiliation for purpose of collective-bargaining
representation or otherwise engaging in protected con-
certed activities.
WE WILL NOT discharge or suspend any employee
for union or other concerted activity protected by Sec-
tion 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Daythel Buie immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
991POPE CONCRETE PRODUCTS
1 All following dates are in 1989, unless otherwise indicated.
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make Buie and
Danny Owen whole for any loss of earnings and other
benefits resulting from Buie’s discharge and Owen’s
suspension, less any net interim earnings, plus interest.
WE WILL notify Daythel Buie, Dan Morgan, and
Danny Owen that we have removed from our files any
reference to their unlawful discipline and that the dis-
cipline will not be used against them in any way.
POPE CONCRETE PRODUCTS, INC.
Jane Vandeventer, Esq., for the General Counsel.
Richard H. Allen Jr., Esq. and Bruce H. Henderson, Esq., of
Memphis, Tennessee, for the Respondent.
Hugh Jacks, of Knoxville, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Paris, Tennessee, on January 23 through
25, 1991. Subsequent to an extension in the filing date, briefs
were filed by Respondent and the General Counsel. The pro-
ceeding is based on charges, as amended filed September 5
and October 5, 1989,1 by Oil, Chemical and Atomic Workers
International union, AFL–CIO, Local 3-987. The Regional
Director’s consolidated complaint dated March 30, 1990, al-
leges that Respondent Pope Concrete Products, Inc. of Paris,
Tennessee, violated Section 8(a)(1) of the Act by threatening
employees with changes in wages, hours, and working condi-
tions if the employees selected a Union to represent them
and that Respondent violated Section 8(a)(1) and (3) of the
Act by instituting a new policy of giving written warnings
to employees, by issuing written warnings to Danny Morgan
and Daythel Buie, by suspending Danny Owen, by issuing a
verbal warning to Daythel Buie, and by discharging Daythel
Buie, all because of their activities and sympathies on behalf
of the Union.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the distribution of concrete and
other building materials.
It annually ships goods valued in excess of $50,000 from
its Paris location to points outside Tennessee and it annually
purchases and receives goods and materials valued in excess
of $50,000 directly from points outside Tennessee. It admits
that at all times material is, it has been an employer engaged
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. It also admits that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Albert Pope has been Respondent’s owner and president
since he purchased the business in March 1987. His son Jeff
Pope is a coowner and precast manager and Danny Hart is
general manager of a business that generally has a total of
about 12–13 employees.
In late July 1989, Daythel Buie, a truckdriver employed by
Respondent, contacted the Union and began to organize Re-
spondent’s employees. He talked to other employees about
the Union and generated between six to eight signed author-
ization cards. He had a meeting of employees and union rep-
resentatives at his home. Employees Danny Owen and Danny
Morgan also talked to other employees and attended meet-
ings, however Buie was the prime mover in the union orga-
nizing effort. After three meetings with the employees, the
Union filed a representation petition on August 24. Respond-
ent received the petition on August 28, however, Albert Pope
admitted that he was told about union activities by an em-
ployee during the middle of the previous week. Previously,
Pope admitted being told about union activities on about Au-
gust 23 (midweek before he received the petition). Moreover,
on August 8, Pope stood about 10 feet away from employees
Buie and Darrell Hutchison while they discussed their opin-
ions of and support for the Union. Hutchison saw Pope
standing nearby for all but the first few words of the con-
versation, and both employees testified that Pope’s face be-
came red (which they said it always did when Pope became
angry), however, Pope testified that he did not recall being
present.
On August 16, Buie spoke with two former employees in
Respondent’s office and mentioned his involvement with the
Union’s campaign at Humphreys Concrete, a local compet-
itor concrete company. He again noticed that Pope was
standing nearby. Shortly thereafter, Buie was washing his
truck and talking to employee Danny Morgan about who
among Respondent’s employees supported the Union. When
both noticed that Pope was about 10 feet away and appeared
red-faced and angry looking. Pope again said he did not re-
call such an incident.
A few days later, Pope approached Morgan in Respond-
ent’s mechanic shop and began to talk about the Union, and
Morgan replied that he would be glad when it was over.
Pope stated that he knew that Morgan was a ‘‘follower,’’ but
that he knew who the ‘‘instigators’’ were. Pope denied that
this conversation ever took place.
Anthony Powell is a truckdriver for a company not in-
volved who previously worked for Humphreys Concrete.
While at work on August 28 he overheard a conversation be-
tween Pope and two managers for Humphreys in which they
discussed the union activities that were going on at both
companies. During the conversation Pope said someone had
told him about a union meeting a couple of weeks pre-
viously.
On two occasions after August 28, Pope approached Buie
and asked him what he thought about the Union. On the sec-
ond occasion (in the mechanic’s shop), Buie replied that he
and the other employees thought that they would be better
represented in their job relations with the Union. Buie recalls
that Pope got red in the face, however, Pope denied that the
incident occurred.
After the filing of the petition, Pope held three meetings
with employees to discuss the Union. At the first of these,
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he told the employees that he was ‘‘disappointed’’ and
‘‘frankly pissed off’’ at the petition (Pope admitted that he
had said he was disappointed, but ‘‘doubted’’ and then de-
nied that he had said he was ‘‘pissed off’’). At the meetings,
Buie and Danny Owen were the only employees who spoke
up frequently, asking questions about their wages and work-
ing conditions, and discussed union representation.
As noted, the initial charges were filed on September 5
and October 5, and representation election was scheduled to
be held on October 13, but on the October 12, the Union
withdrew the petition and the election was canceled.
During this period of time several incidents occurred in-
volving employees Owen, Morgan, and Buie relating to al-
leged improper threats, warnings, and a 3-day suspension.
These incidents, as well as Respondent’s decision to termi-
nate Buie, are the subject of the consolidated complaint, and
are described more fully in the discussion section below.
Buie had 29 years of experience in driving tractor-trailer
trucks when he was hired by Respondent in March 1989. He
was assigned to haul sand and gravel to Respondent’s plant
in a specific Kenworth truck, truck 35. Buie often worked 11
or more hours a day, the time necessary to haul six or seven
loads each day. He worked on a commission basis and was
paid a percentage of every load hauled. When his truck was
down for repairs, no income was earned.
Buie testified that Pope told him when he was first hired
that truck 35 lost oil, and that he should keep an eye on the
oil level. Pope also told Buie that he intended to buy a new
truck or to rebuild the engine on truck 35 ‘‘if we could make
it through the busy season’’ (until November), and Pope ad-
mitted that both he and Respondent’s mechanic were well
aware that truck 35 had an oil consumption problem. Buie
was instructed to run truck 35 about a gallon low in oil, in
other words, with 10 gallons of oil instead of its 11-gallon
capacity, and, as part of his daily routine, he monitored the
oil level in truck 35 throughout his employment.
In late July, Buie told Pope that truck 35’s oil consump-
tion problem was getting worse, and he attempted to get a
key to Respondent’s oil supply so that he could put oil in
when he arrived at work at 4 or 4:30 a.m., when he was the
first, and only, worker. His request was denied and he could
not add oil until 7 a.m., after he had made his first run, and
others had arrived to open the shop. Buie continued to tell
Pope, about the problem with oil consumption but did not
put this down on his driver’s daily reports because Pope had
instructed both him and Owen to not write a whole bunch
of stuff on the reports because it would reflect against them
in case the D.O.T. inspected their records.
During the summer several repairs to truck 35 were made
(a new fuel pump and air compressor), and the revolutions
per minute of the engine were set at an increased level, high-
er than is recommended for the Cummings 350 engine in
order to give the engine more power. Also, at Jeff Pope’s in-
struction, and without Buie’s knowledge, the spring on the
oil pressure relief valve was lengthened, which had the effect
of causing the oil pressure to build up higher. Subsequently,
the mechanic mistakenly using a Caterpillar filter instead of
a Cummings filter when he installed a new oil filter. The
Caterpillar filter has fewer threads at the seal to secure it in
place and on September 27, this ultimately caused a major
leak at the weak seal when Buie started his first run.
On September 7, Buie, monitoring the oil at lunchtime,
noticed it was low and on his return to Respondent’s facility
told driver Danny Paschall (who had recently been hired to
drive truck 35 at night) that he needed to add 2 gallons of
oil to the truck. He then went to the office and notified Pope
that he had received a subpoena to be a witness for the
Union at the representation hearing scheduled for September
8.
Although Pope rarely checked himself, shortly after Buie
showed Pope his subpoena, Pope himself checked the oil in
Buie’s truck, found it to be 3 gallons low and decided to
give Buie a verbal warning. On September 9, Pope called
Buie into his office, told him the oil in the truck had been
low, gave him the warning, and threatened him with ‘‘seri-
ous’’ trouble if it was low again. Buie protested that he had
been telling Pope for months that the truck consumes up to
3 gallons of oil a day. Pope denied having been told and he
placed a written copy of the warning in Buie’s file.
Buie who had difficulty reading and writing enlisted the
help of Danny Owen, who wrote out the spelling for Buie,
and on September 9, 11, 12, and 13. Buie started reporting
in writing that truck 35 used ‘‘1–3 gallons of oil every day,
and that this was ‘‘excessive.’’ He also noted on the reports
that Respondent had been told about this ‘‘3–4 times.’’ Re-
spondent received the reports, Pope was aware of them, and
on September 12 he ordered mechanic David Brinley to keep
a record of the oil he or the drivers put into truck 35, so that
he could see ‘‘whether Buie was telling the truth or not.’’
Brinley’s notes of truck 35’s oil usage show about 1–2 gal-
lons of oil used a day, but Brinley admitted that the record
could have been inaccurate, as he was only recording the oil
he himself put in the truck or that drivers reported to him
they had put in. Some days were not recorded at all, with
no explanation, and Brinley had no idea what had occurred
on those days, nor of how much oil drivers put into truck
35 without informing him. Truck 35 was known to suffer
from ‘‘blow-by,’’ which meant that the oil system built up
excessive pressure that was not released in the normal way
and could result in a blowing out of the dipstick. On August
24, Buie was out sick, Jeff Pope drove truck 35, and that day
the oil pressure built up sufficiently to eject the dipstick
(which is secured in the tube by a compression fitting), en-
tirely out of the tube, and spattered oil over the right side
of the truck.
Buie saw this oil spatter when he returned on August 25,
and when he again urged Pope to do something about the
truck’s oil system problems, Pope authorized him to take the
truck to a shop which did repairs on Respondent’s trucks.
Buie immediately reported back to Albert Pope the mechan-
ic’s opinion that truck 35’s engine was ‘‘on the way down,’’
that it needed to be rebuilt, and that it could blow up or ‘‘lay
down’’ any time. Pope was told that he could call to discuss
the truck’s condition, but did not do so and instead Pope
consulted his brother-in-law, a truckdriver who had done
some mechanical work over the years. His brother-in-law
looked at the engine for 15–20 minutes, agreed it had some
blow-by, but told Pope that he did not really have to worry
about the engine blowing up or ‘‘laying down’’ until water
began to appear in the oil. Pope then instructed Buie to ‘‘run
the shit out of it.’’
On September 27, Daythel Buie arrived at Respondent’s
yard at 4:30 a.m., and performed his routine checks on his
993POPE CONCRETE PRODUCTS
truck, including checking the oil. He allowed the motor to
warm up for 15 minutes while he filled out his paperwork.
After air pressure had built up, Buie pulled the truck for-
ward, stopped, washing off his windshield, got back in the
truck, checked the gauges, drove out through the gate,
stopped the truck, locked the gate, drove to the railroad
crossing, stopped, proceeded down Russell Street, entered
Highway 641, and drove less than a half mile when he heard
the engine make a squeak and saw the oil gauge begin to
fall rapidly (there was no red light to show low oil pressure).
He then pulled to the side of the highway, stopped, and
called Pope at 5 a.m. Pope got a tow truck, towed Buie back
to the facility, and told him to go home until he decided
what was going to be done.
Pope testified that he would have fired Buie immediately
but because of the union circumstances he called Respond-
ent’s counsel for advice and then took pictures and made an
investigation in accordance with counsel’s instructions.
The pictures, taken at about 7:45 a.m., showed a large oil
spot where Buie had washed the windshield, a track of oil
made by the tires that had run though the oil, and a smaller
oil spot where Buie had stopped at the front gate.
Pope and Danny Hart then interviewed mechanic Brinley.
Pope remembered little of the conversation but Hart recalled
that Brinley told Hart that the engine had locked up because
all the oil had leaked out of it and that this occurred because
‘‘the oil regulator valve had stuck and when this happens the
oil pressure will increase greatly causing the oil to find the
weakest route, which at that time happened to be associated
with the oil filter.’’ The malfunctioning valve, Brinley told
them, would cause the oil pressure to ‘‘go extremely high.’’
Brinley testified that he was asked if the driver should have
been able to catch the problem during the few minutes when
it was happening, and Brinley said that it should be reflected
on the oil gauge if it was functioning properly. Brinley also
responded to Pope’s and Hart’s questions as to when the oil
leaked out by saying that he thought it would have leaked
out fairly quickly once the seal went, but at the trial he testi-
fied that could not say for certain.
Later that day, Pope and Hart interviewed Buie (Pope
thought it was the following day) who explained that the oil
pressure appeared normal until he had down shifted at an
interchange a short distance from the plant, and had heard
a ‘‘racket’’ from the motor and saw the oil pressure drop
rapidly.
Later on the September 27, Brinley was examining truck
35 more closely, and discovered that in addition to the stuck
valve, he had installed the wrong oil filter on the truck, and
that the seal between it and the oil pump had been the weak
point at which the oil had leaked out. He told Pope of this
on September 27 or 28 and Pope admitted being told about
it at least by September 28.
Pope terminated Buie on September 28, asserting that the
reason was for ‘‘improper operation of a vehicle.’’ Pope
added at the hearing that he had terminated Buie ‘‘because
he ruined a $4000.00 engine carelessly,’’ and otherwise stat-
ed that he was terminated because there was no oil in the
truck, and that this was abuse of equipment. (Respondent’s
exhibits and Pope’s testimony establish that the repair of the
engine, including labor cost only $2213.82.)
The day after Buiew as terminated Brinley was given the
following written warning:
I have investigated the incident concerning the en-
gine blowing up in the Kenworth, truck. I have reached
the following decision.
According to your own admission, the problem origi-
nated when you put the wrong oil filter on the truck,
causing the truck to lose its oil. Normally, I would give
you a three-day suspension. However, I feel that it
would not be in the best interest of the company to do
without a mechanic for three days. Therefore, I am giv-
ing you notice that in the future, if such negligence oc-
curs again, you will be terminated.
III. DISCUSSION
The issues in this case arose from events which occurred
contemporaneously with a union organizational drive at Re-
spondent’s facility and resulted in alleged threats, and the
disciplinary warnings to several employees a suspension of
one employee and finally the discharge of one employee who
was the principal union activist.
A. Discharge and Warning of Daythel Buie
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected concerted activity was a moti-
vating factor in the employer’s decision to terminate or dis-
cipline the employee. Here, the record shows that discipli-
nary action against Daythel Buie began with a written warn-
ing on August 29 about an absence (discussed below) and
verbal warning on September 9 because of a low oil level
in his truck. This latter discipline occurred 2 days after Buie
told Owner Pope that he had received a subpoena to be a
witness for the Union at the scheduled representation hearing
on September 8, a hearing that was canceled shortly there-
after, and it occurred after Pope himself had un-
characteristically checked the oil. As otherwise found, I find
these warnings to be an unfair labor practice. Otherwise, it
is clear that Pope knew about the union organizational at-
tempt, knew Buie was an ‘‘instigator,’’ and had expressed
his displeasure with the employee’s actions in attempting to
organize.
Under these circumstances, I find that the General Counsel
has met his initial burden by presenting a prima facie show-
ing, sufficient to show antiunion animus and to support an
inference that Buie’s union activities were known to Re-
spondent and were a motivating factor in Respondent’s deci-
sion to terminate him. It also is shown that Long and Mor-
gan were suspected of acting in concert with Buie and it also
is inferred that the decision to discipline them also was moti-
vated by the same reason. Accordingly, the testimony will be
discussed and the record evaluated in keeping with the cri-
teria set forth in Wright Line, 251 NLRB 1083 (1983); see
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), to consider Respondent’s defense and, in the light
thereof, whether the General Counsel has carried his overall
burden.
Respondent’s principal defense is based on its contention
that the discharge and warning to Buie were an appropriate
response merited by the employee’s negligence.
I find no persuasive evidence to support the Respondent’s
position and I conclude that its alleged reasons are pretextual
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In all instances where I find Pope’s testimony conflicts with the
testimony of the General Counsel’s witnesses, I find that the General
Counsel’s witnesses should be credited because with respect to most
of these conversation, there is corroboration for each conversation
and Pope admitted or displayed a bad memory on numerous occa-
and merely designed to mask the fact that both the warning
and termination were motivated by Owner Pope’s aggrava-
tion over Buie’s instigation of a union organizational effort
at his facility. Here, I also find that Pope’s extreme reaction
to the reasonably predictable happening of some engine mis-
fortune was as a result of his own choice to attempt to oper-
ate a truck with hard to diagnose oil problems through his
‘‘busy season’’ and that his characterization of Buie’s behav-
ior as abuse of equipment and careless ruination of a $4000
engine (almost double the actual cost of repairs) are both il-
lustrative of the pretextual nature of Respondent’s asserted
defense.
Pope was well aware of an unusual oil problem in truck
35 but when something finally happen he immediately de-
cided to fire Buie. As Pope testified he made an investigation
only because of counsel’s advice and the ‘‘union cir-
cumstances.’’ This so-called investigation on September 27,
the same day as the incident itself, was a pretext and no at-
tempt was made to access the possibility that such factors as
pressure or a blockage could have allowed the oil gauge to
show continued pressure for a short while after the initial
catastrophic release of oil in Respondent’s yard. When Pope
received exculpatory information from mechanic Brinley
shortly thereafter, he gave it no consideration and on Sep-
tember 28 followed through with his initial decision to fire
Buie. Most significantly, when it was learned that the prob-
lem originated when Brinley put the wrong oil filter on the
truck, Respondent disciplined Brinley with a notice that he
normally would have been suspended for 3 days but was
only being given a warning because the Company did not
want to do without a mechanic for 3 days. Brinley did not
support the Union and I conclude that Buie would not have
been subjected to such disparate treatment were it not for his
protected union activities.
Under these circumstances, I find the Respondent’s stated
reasons to be pretextual and, accordingly, I conclude that the
Respondent has failed to shown that Buie would have been
discharged absent his union activities and protected concerted
activity. The General Counsel otherwise has met his overall
burden of proof and I further conclude that Respondent’s dis-
charge of Buie is shown to have been in violation of Section
8(a) (1) and (3) of the Act, as alleged.
As noted above, a few weeks prior to his discharge Buie
was given a disciplinary warning for having a low oil level
in his truck. This occurred after repeated reports by Buie and
after Pope, uncharacteristically checked the oil himself on the
same day that a representation hearing was canceled at which
Pope knew Buie had been expected to be a witness called
by the Union. The timing and pretextual nature of this warn-
ing show that it is unjustified and illegally motivated and I
find that it is shown to be a violation of Section 8(a)(1) and
(3) of the Act, as alleged.
B. Threats and Other Warnings
In early September, Danny Owen entered the mechanic
shop when Jeff Pope remarked that if the employees got a
union organized, it could hurt them more than it would help
them. Owen responded that a union was only as good as its
members. Pope replied that unions used to be good, but that
they were not anymore, and that if the Union came in at Re-
spondent that the employees would have to ‘‘run legal.’’
This statement implied that drivers would have to limit their
driving time to 10 hours and 500 miles a day, a practice that
would mean less income for Owen. Pope testified that he had
no memory of the conversation and I therefore credit Owen’s
testimony. Pope’s statement constitutes an implied threat to
cut hours and wages if employees support union representa-
tion and I find that it therefore is shown to infringe on the
employee’s Section 7 rights and to violate Section 8(a)(1) of
the Act, as alleged.
There is no evidence that Respondent used written warn-
ing (other than handwritten notes to the file) until after the
representation petition was filed on August 23. Thereafter,
warning were typewritten on Respondent’s letterhead and
were given to employees after the receipt by Respondent of
the petition on August 28. Warnings given to employees
Morgan and Buie were dated August 24 and 25, but it was
admitted that they were not handed to the employees until
August 29. Dan Morgan received a warning dated August 25
for failing to personally advise the office of his sickness.
Morgan was absent on August 25 but explained that his son
whom he had instructed to call in to report his absence had
forgotten to do so. At the time, Morgan was an employee of
more than 4 years’ tenure and had only failed to report an
absence once, in March 1988 and had not been warned at
that time.
Buie was sick on August 24 and did not work. He had
asked his son-in-law Billy Christian also an employee of Re-
spondent, to inform Respondent that he was out sick. Pope
recalled Christian telling him that Buie was sick, but stated
that Christian had informed Pope that Buie ‘‘probably’’ or
‘‘possibly’’ was home sick, however, it appears that Chris-
tian did not take the initiative in clearly informing them that
Buie was sick. Pope gave Buie a no-call/no-show written
warning on April 29 and told Buie that Christian had not re-
ported his absence to Pope.
Respondent held a meeting on Saturday morning, August
26, in which Hart reminded employees that they must call
in if they were going to be off work, and, said that they
should call in themselves. Hart testified that he said he ‘‘pre-
ferred’’ them to call themselves, not that they were required
to do so. Hart also corroborated that Pope stated at this meet-
ing that he remembered Christian informing him that ‘‘Buie
was feeling bad.’’
Buie had no previous problem of this nature and Respond-
ent had no record of past written warnings for such infrac-
tions, before the Union’s petition was filed (personnel
records introduced show that two other employees had re-
ceived only a verbal counseling and a file note for a no-
call/no-show and one employee had been absent without in-
forming Respondent seven times without receiving a written
warning or any discipline other than a verbal counseling).
Under these circumstances, I find that the record supports
a conclusion that a policy of giving written warnings for ab-
sence occurrences had not existed prior to the union cam-
paign and that the institution of this policy and its strict en-
forcement against two known union supporters occurred
shortly after Owner Pope overheard or otherwise learned of
their union sympathies.2 Respondent’s actions were moti-
995POPE CONCRETE PRODUCTS
sions tended to guess, to assume, and to overstate things as shown
by his liberal use of phrases such as ‘‘probably,’’ ‘‘most likely,’’
‘‘feel like,’’ and ‘‘guess,’’ otherwise contradicted himself on several
occasions.
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
vated by this knowledge and had the effect of illegally dis-
couraging union activity and infringing on the employees’
Section 7 rights.
Accordingly, I find that the General Counsel has shown
that both the implementation of the written warning policy
and the execution of this policy through the issuance of such
warning to Buie and Morgan occurred as a result of the
union organizational attempt; see Joe’s Plastics, 287 NLRB
210 (1987), and I conclude that these actions violated Sec-
tion 8(a)(1) and (3) of the Act, as alleged.
Danny Owen (who previously was the plant manager for
competitor Humphreys Concrete) had been driving for Re-
spondent for about a year and a half. He was an active union
supporter and, along with Buie, spoke up, and asked ques-
tions during Respondent’s antiunion meetings. On September
11, Owen was issued a suspension for 3 days without pay
for an accident which occurred on September 8, when Owen
neglected to roll down the supporting ‘‘dolly legs’’ before
unhooking his trailer, which resulted in the front end of the
trailer falling 12–16 inches to the ground, breaking an air
coupling.
Owen had a similar mishap, in May 1988, shortly after he
had started work. At that time which had actually resulted
in greater damage: Pope told him to be more careful, and
issued no discipline of any kind. This incident was men-
tioned in the September 11 suspension letter as part of the
reason for the suspension. Just prior to the September inci-
dent, Owen had been observed being slow to respond to the
site overflow warning bell and Pope said he felt Owen had
been careless, and needed ‘‘something to kind of wake him
up a little bit.’’
Although Owen was a union supporter, there is no evi-
dence that he was considered to be a primary ‘‘instigator’’
as was Buie and, under these circumstances, there is no per-
suasive showing that Owen was subjected to any particularly
harsh or disparate treatment that would tend to indicate ille-
gal motivation on part of the Respondent and, otherwise, I
find that the discipline imposed appears to have been for a
nonpretextual, legitimate business purpose. Accordingly, I
find that the General Counsel has failed to show a violation
of the Act in this respect, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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. By threatening to ‘‘run legal’’ and implicitly cut hours
and wages, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guaran-
teed in Section 7 of the Act and thereby has engaged in un-
fair labor practices in violation of Section 8(a)(1) of the Act.
4. By instituting a written warning system and issuing
written warnings to Daythel Buie and Dan Morgan on Au-
gust 29, 1990, and by warning and discharging Daythel Buie
on September 9 and 28, 1990, respectively, Respondent en-
gaged in unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act.
5. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the he
complaint.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate Daythel
Buie to his former job or a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any loss
of earnings he may have suffered because of the discrimina-
tion practiced against him by payment to him a sum of
money equal to that which he normally would have earned
from the date of the discrimination to the date of reinstate-
ment, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),3 and that Respondent expunge from its files any ref-
erence to the discharge, as well as the unlawfully warning
to Buie and Dan Morgan and notify them in writing that this
has been done and that evidence of this unlawful discipline
will not be used as a basis for future personnel action against
them.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Pope Concrete Products, Inc., Paris, Ten-
nessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing a written warning system, issuing warn-
ings to employees, implicitly threatening to cut hours and
wages or otherwise discriminating against them because of
their activities in support of union affiliation for purposes of
collective-bargaining representation or otherwise engaging in
protected concerted activities.
(b) Discharging any employee for activity protected by
Section 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Offer Daythel Buie immediate and full reinstatement
and make him whole for the losses he incurred as a result
of the discrimination against him in the manner specified in
the remedy section of this decision.
(b) Expunge from its files any reference to the warnings
and discharge of Daythel Buie and Dan Morgan and notify
them in writing that this has been done and that evidence of
the unlawful discharge and warning will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all on records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this decision.
(d) Post at its Paris, Tennessee facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 26, after
being signed by an authorized representative of Respondent,
shall be posted by Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.