Austell Box Board Corp.

AUSTELL BOX BOARD CORPORATION 345 Austell Box Board Corporation and Truckdrivers and Helpers Local Union No. 728. Case 10- CA-14131-2 May 7, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On August 3, 1979, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. We find that the Administrative Law Judge cor- rectly concluded that Respondent violated Section 8(a)(4) of the Act by discharging employee Albert Wayne Dillard because he threatened to complain to the National Labor Relations Board about alleg- edly discriminatory treatment. Thus, for the rea- sons set forth below, we agree with the Adminis- trative Law Judge that the explanation advanced by Respondent for Dillard's suspension and dis- charge was pretextual. Dillard was employed as a truckdriver by Re- spondent from June 1976 until his discharge on Oc- tober 27, 1978. Wayne Cohran, Respondent's vice president and administrative officer, stated that Dil- lard was a very good truckdriver, but said that he fired Dillard on the basis of various "work defi- ciencies" that had occurred since November 1977, with the deciding factor being Dillard's "harass- ment and intimidation" of Respondent's dispatch- er,3 Mark Baxter, 3 days before the discharge. The events triggering Dillard's discharge oc- curred on October 24, 1978. 4 Late in the afternoon of that day, after Dillard discovered that he had i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative lass judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc.. 91 NLRB 544 (195()). enfd. 188 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for resersing his findings 2 No exceptions were taken to the Administrative Law Judge's finding that Dillard was not engaged in any protected actisil) with respect to any complaints voiced to Baxter and we need not decide that issue 3 N exceptions were filed to the Administrative law Judge's finding that Baxter was at all times material a supervisor within he meaning of Sec 2(l I) of the Act 4 All dates hereinafter are 178 unless otlhervisc indicalted 249 NLRB No. 44 drawn a particularly undesirable driving assign- ment to Griffin, Georgia, for the next day, he phoned dispatcher Baxter and told him he would be unable to drive on October 25, because his wife had made an appointment for him to see a doctor about a lingering leg injury. Although remarking that the notice was short, Baxter told Dillard to go to the doctor as planned. Cohran, who had come into Baxter's office during the dispatcher's phone conversation with Dillard, instructed Baxter to call Dillard back and remind him that his failure to take the Griffin load the next day would result in his dropping for I day to the bottom of the seniority board for dispatch purposes, pursuant to a policy instituted that same day. When Baxter complied and so advised Dillard, the truckdriver protested vehemently, shouting into the phone sufficiently loud to cause Baxter to hold it away from his ear, thus allowing Cohran to hear. Dillard asserted that his leg was bothering him and charged that he was being discriminated against. Dillard stated that there was no "damn way" he was going to the bottom of the seniority board, and told Baxter that he was going to take the matter to the Labor Board. After the conversation ended, Baxter informed Cohran as to the nature of Dil- lard's comments and then left for the day. Several minutes later, as Baxter was driving off Respondent's premises, Dillard flagged him down and again accused Respondent of discriminating against him and reiterated his intention to go to the Labor Board. Nevertheless, Dillard said that he would perform the Griffin trip since he probably would have to take it the following day anyway. On the next morning, October 25, Baxter related the details of his parking lot encounter with Dillard to Cohran, including Dillard's threat to go to the Labor Board. During this conversation, Baxter also told Cohran that he did not believe that Dillard actually had a doctor's appointment for October 25, but rather that Dillard was seeking a way to avoid the Griffin run. Cohran subsequently checked and as- certained that Dillard had an appointment on Octo- ber 23 which he had not kept, but that he had no doctor's appointment for October 25. Later on October 25, after Dillard had returned from the Griffin trip, Cohran notified him that he was suspended, pending a review of his file. Cohran fired Dillard on October 27. The separa- tion notice given to Dillard stated: "Employee was indefinitely suspended 10-25-78 pending review of his file. Review of his file indicated his overall work performance was unsatisfactory. Employee was dismissed 10-27-78 and the deciding factor 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was his harassment and intimidation of the dis- patcher which occurred on 10-24-78." Cohran in his testimony cited the following "work deficien- cies" as contributing to his decision to fire Dillard: (1) one of Respondent's major customers com- plained to Cohran in November 1977 that Dillard refused to accept a load of waste to be returned to Respondent; (2) Dillard made a late delivery to a customer in early November 1977; (3) Dillard failed to submit driver's logs on several occasions in late November and early December 1977; (4) in early 1978, Dillard allegedly threatened to burn up the engine of his truck by saying he would put gas in it instead of diesel fuel, unless the truck was re- paired; and (5) an anonymous telephone caller complained to Cohran in July or August 1978 that one of Respondent's trucks-later determined to have been driven by Dillard-had been following the caller too closely as he was driving on Atlan- ta's perimeter highway. Thus, according to Respondent, in the context of Dillard's employment background, his harassment of Baxter on October 24 warranted Dillard's termi- nation. Accordingly, we examine first the October 24 episode in determining whether Dillard's threat to seek redress from the Board was the actual reason for his discharge. We believe there is ample support for the Administrative Law Judge's con- clusion that there was no evidence that Dillard had, in fact, harassed or intimidated Baxter. The only statement made by Dillard to Baxter which could be construed as a threat was Dillard's ex- pressed intention to go to the Board with his griev- ance. While Dillard talked loudly over the tele- phone, he did not do so when he met with Baxter outside a few minutes later." As to whether the telephone conversation constituted "harassment and intimidation" it is significant that Cohran, al- though aware of the details of Baxter's telephone conversations, said nothing to Dillard about them or about any attendant "harassment and intimida- tion" when Cohran saw Dillard in Respondent's garage shortly after the telephone conversations. Therefore, we agree with the Administrative Law Judge's finding that Dillard's purported "harass- ment and intimidation" of Baxter was nonexistent and that Respondent's reliance upon such as a "de- ciding factor" in his suspension and discharge dem- onstrates the pretextual nature of those actions. Further, the pretextual nature of the discharge is shown by the fact that, except for the anonymous caller's complaint in July or August 1978, all of the deficiencies in Dillard's work record cited by Re- spondent occurred at least 10 months before his I Respondent does not contend, nor is there any evidence, that Dillard in any way ever threatened Baxter or anyone else with physical force. discharge. Even the anonymous complaint was made 3 to 4 months before the discharge. None of these work deficiencies was repeated, none had any relationship to events at the time of Dillard's firing, and Dillard was not disciplined for any of them when they occurred. What did occur, however, in close proximity to Dillard's discharge were his threats to Baxter to go to the Labor Board; and Baxter's credited testimo- ny establishes that he specifically advised Cohran of these threats. In this connection, we find uncon- vincing Cohran's testimony that he could not recall whether Baxter had so informed him prior to the suspension and discharge; that, even if Baxter did tell him of Dillard's threats, Cohran "didn't attach any significance to it"; and that the first time he re- members hearing of Dillard's "Labor Board" threats was during the General Counsel's investiga- tion of this case about a month after Dillard's dis- charge. Baxter's testimony shows that Cohran was made aware of Dillard's threats not once but twice within a day of their utterance. Cohran did not deny that Baxter so informed him but stated only that he did not recall that happening and that, if it did, he attached no significance to the threats. Thus, Cohran's disclaimer of knowledge, hedged as it was by his concession that Baxter might have in- formed him of the threats, must be viewed in the light of that concession and all that such a conces- sion implies. Further, in considering Cohran's disclaimer, we have taken into account that he-as other testimo- ny of his described below shows-was aware of the possible consequences which might befall Re- spondent from someone going "to the Labor Board," as in 1977 a charge against Respondent led to a Board settlement. We believe that Cohran, having undergone the experience of that earlier proceeding, would remember a threat of the kind made by Dillard-thereby indicating that his lack of recollection of Baxter's apprising him of Dil- lard's threats may be attributable more to his rec- ognizing the importance which knowledge of such threats have in determining the nature behind a dis- charge, rather than to any lapse of, or hazy, memory on his part. Indeed, Baxter's testimony and Cohran's ambigu- ous and uncertain recollection of how and when he acquired knowledge of Dillard's threats indicate that Cohran was dissembling when he testified that the threats played no part in the discharge of Dil- lard and that therefore the contrary is true, i.e., the threats in fact motivated Cohran to suspend and then terminate Dillard. AUSTELL BOX BOARD CORPORATION 347 Respondent, however, in its effort to show that Dillard's threats did not motivate any of Cohran's actions, presented other testimony of Cohran in which he stated that a different employee who filed charges with the Board against Respondent in 1977 was retained. Those charges, however, result- ed in a settlement agreement under which Re- spondent was required to post notices in its plant stating that it would refrain from interrogating em- ployees about their union activities and would not threaten or coerce employees for engaging in union activities. Thus, viewed in that context, this testi- mony of Cohran falls far short of proving its in- tended purpose. To the contrary, from these cir- cumstances, we, like the Administrative Law Judge, infer that Respondent's prior experience with that other employee's charges may well have served, in Dillard's case, to arouse Respondent's opposition to further Board interference through new invoking of the Board's processes. Our dissenting colleague makes much of Re- spondent's stated belief that Dillard had lied about the doctor's appointment in order to avoid the Griffin run, contending that such a belief legiti- mately could lead Respondent to conclude that Dillard should be discharged. However, Respond- ent's assertion that Dillard's fabrication of the Oc- tober 25 appointment was a cause of the discharge was made for the first time at the hearing in this case, and was not mentioned at the time of Dil- lard's suspension or discharge. Respondent's at- tempt to offer an additional reason for the termina- tion is another indication that there was an ulterior motive for Dillard's discharge. No other driver ever had been disciplined by Respondent for ac- tions taken to avoid undesirable trips, even though other drivers had repeatedly done so to the point that the problem had reached such a magnitude that Respondent found it necessary to institute a new dispatch rule intended to discourage such ac- tions; the new policy having been implemented on the very day Dillard was suspended. Further, Re- spondent, knowing Dillard had missed the October 23 appointment made for him by his wife, had reason to believe Dillard had made a mistake as to the date his appointment was scheduled, but in- stead presumed without further investigation his bad faith in the matter. Such a presumption by Cohran suggests that he was looking for an excuse to get rid of Dillard in retaliation for the employ- ee's threat to complain to the Board. In asserting that Dillard had a "spotty record," our dissenting colleague states that Dillard had "run ins" with several customers. Although it is unclear what our colleague means by "run ins," ap- parently he is referring to Dillard's late delivery to a customer in early November 1977, and Dillard's refusal later that same month to return a load of waste to Respondent's facility for a different cus- tomer. At most, these incidents were regarded by Respondent as minor transgressions at the time, as evidenced by the fact that Dillard was not repri- manded or disciplined about them then. In any event, we already have noted how remote in time they were to Dillard's October 1978 suspension and discharge. Our dissenting colleague's characterization of Dillard's work record demonstrates that he has ac- cepted at face value Respondent's self-serving ex- planation for Dillard's discharge. Contrary to his assertion, the Administrative Law Judge has not at- tempted to substitute his judgment for that of Re- spondent. Nor have we. Instead, we have taken the usual and proper ap- proach of looking at all of the facts and circum- stances surrounding Dillard's termination to decide whether there was any connection between it and Dillard's threats to go to the Labor Board and have concluded that there was. We are puzzled by our colleague's suggestion that it is somehow inap- propriate for the Board to examine closely the al- legedly legitimate reasons for a discharge advanced by a respondent in order to ascertain whether, absent the discharged employee's expressed inten- tion to seek Board redress, it is likely that the re- spondent would have discharged the employee for those reasons. Not only is it proper for the Board to make such an independent evaluation, it is obli- gated by the Act to draw its own inferences from all of the evidence to determine the presence or ab- sence of discriminatory motivation.6 In view of the shifting reasons proffered by Re- spondent for Dillard's discharge, the weakness of the work deficiencies cited against him, and the fact that Respondent's decision to suspend Dillard came immediately after he threatened to go to the Labor Board, we conclude that the General Coun- sel has satisfied his burden of proving that Re- spondent terminated Dillard because of his stated intention to complain to the Board. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Austell Box Board Corporation, Austell, Georgia, its officers, I See Shattuck Denn Mining Corporation (Iron King Branch) v .VL.R.B. 362 F.2d 466. 470 (9th Cir. 1966); .L.R.B. v. Pacific Grinding Wheel Co., 572 F2d 1343 (9th Cir 1978): Industry General Corporation. 225 NLRB 1230 (1976) 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER TRUESDALE, dissenting: I dissent from the Administrative Law Judge's conclusion, adopted by the majority, that Respond- ent violated Section 8(a)(4) by discharging employ- ee Dillard. The complaint alleged a violation of Section 8(a)(l), (3), and (4) predicated on Dillard's dis- charge. The Administrative Law Judge found, and correctly so, that no independent violation of Sec- tion 8(a)(l) had been made out since the record did not establish that Dillard, during his several con- versations with dispatcher Baxter or with Respond- ent's vice president, Cohran, was voicing a specific complaint about working conditions in furtherance of a concerted interest. The Administrative Law Judge also concluded, and the record demonstrates, that the General Counsel failed to sustain his burden of showing a connection between the dis- charge and Dillard's union activity. Accordingly, the Administrative Law Judge recommended dis- missal of the complaint's 8(a)(1) and (3) allegations. Despite these findings and recommendations, the Administrative Law Judge concluded, and my col- leagues agree, that Respondent violated Section 8(a)(4) of the Act by discharging Dillard. I dis- agree. As found by the Administrative Law Judge, Dil- lard was scheduled to make a delivery to a custom- er in Griffin, Georgia, on October 25, 1978, a trip which Respondent's drivers considered undesirable because it might well consume a whole day. Late in the afternoon of October 24, Dillard phoned dis- patcher Baxter and stated that he had a sore leg and that his wife had scheduled an appointment for him with a doctor on October 25. Baxter com- plained it was "a little late" to be so advised but told Dillard to go ahead. Later, at Cohran's re- quest, Baxter telephoned Dillard and reminded him that failure to make the delivery would cause Dil- lard to be dropped to the bottom of the seniority list for purposes of the next dispatch. In turn, this caused an angry outburst on the telephone from Dillard, loud enough to be overheard by Cohran, that Respondent was "discriminating" against him, a charge Dillard repeated later, during a second ex- change with Baxter just before the latter left Re- spondent's premises for the day. Also during the subsequent conversation, Dillard said he would go ahead and take the Griffin run on October 25 since he would probably have to take it on October 26 anyway and that would "ruin" his whole week. Cohran, upset by the angry exchange between Dillard and Baxter which he had overheard, and warned by Baxter on the morning of October 25 that he suspected Dillard's claim about the doctor's appointment was a fabrication, decided to review Dillard's file. He also checked with Dillard's doctor and learned that Dillard had an appoint- ment scheduled on October 23 which he missed, but in fact had no appointment scheduled on Octo- ber 25. Cohran promptly suspended Dillard 7 and, after discussing Dillard with Respondent's mill su- pervisor, discharged him on October 27. Cohran advised Dillard that Respondent had concluded he was not "a suitable employee to be in contact with customers." Consistent with this explanation, Dil- lard's separation notice read that his file had been reviewed and "his overall work performance was unsatisfactory . . . and the deciding factor was his harassment and intimidation of the dispatcher which occurred on 10-24-78." As indicated previously, the Administrative Law Judge found no violation either of Section 8(a)(l) or of Section 8(a)(3) in Dillard's discharge. Never- theless, he concluded that the discharge violated Section 8(a)(4) because during the second exchange between Dillard and Baxter on the afternoon of October 24 Dillard repeated his charge that he was being "discriminated" against and, in passing, men- tioned he would "go to the Labor Board." In find- ing that Dillard's threat to go to the Labor Board was Respondent's "real motive" for terminating him, the Administrative Law Judge reasoned as follows: Respondent's asserted reasons for the ter- mination were "pretextual" because "harassment and intimidation" of Baxter was "non-existent." Furthermore, Respondent's stated reliance on Dil- lard's work deficiencies as detailed in Dillard's file was pretextual since these had occurred several months before, were not repeated, had no relation- ship to events at the time of Dillard's suspension, and Dillard was not specifically disciplined for them when they occurred. As for Respondent's concern over Dillard's unsuccessful effort to avoid the October 25 trip, the Administrative Law Judge reasoned this could not have been the real motive for discharging Dillard since Respondent merely "presumed" Dillard's bad faith in the matter. Hence, Respondent must have had an "ulterior mo- tivation in the suspension and discharge." The Ad- ministrative Law Judge found that "ulterior moti- vation" in Respondent's supposed resentment over Dillard's chance remark to Baxter that he would go to the Board, notwithstanding that previously other employees had threatened to go to the Board without suffering reprisal by Respondent and that, in fact, one employee who had done so was still in Respondent's employ. The Administrative Law ' In fact, Dillard reported to work on the morning of October 25 and made he trip to Griffin; he was suspended by Cohran on his return. AUSTELL BOX BOARD CORPORATION 349 Judge, in discrediting Cohran, simply discounted the significance of such evidence with the observa- tion that Dillard's threat "may well have constitut- ed the straw that broke the proverbial camel's back." I submit that to state the Administrative Law Judge's analysis of this case, an analysis which my colleagues apparently are willing to adopt, is to de- molish it. Put another way, the Administrative Law Judge has attempted to substitute his judg- ment for Respondent's and, because his assessment of the events that occurred differs from Respond- ent's, has concluded that Respondent's motive must have been unlawful. However, a fair reading of this record is that Respondent was faced with an em- ployee with a spotty record, a record that included specific complaints that Dillard had problems get- ting along with others and had "run ins" with sev- eral customers. s Given Dillard's "run in" with Baxter, Respondent's reaction was entirely predict- able and understandable, particularly when coupled with Respondent's belief that Dillard had lied about a doctor's appointment to avoid the unwel- come Griffin run, a fabrication which, in Respond- ent's view, triggered the entire episode. It is not enough to suggest that Respondent's concern about Dillard's apparent fabrication of the October 25 appointment was not legitimate because "there existed a real possibility of genuine error on Dillard's part as to the date of the appointment." I know of no duty on an employer's part to launch a full scale investigation into such a matter. Here Re- spondent checked with Dillard's doctor and learned Dillard did not have an appointment on October 25. Whether or not Respondent's conclu- sion that Dillard had lied was correct is totally ir- relevant; the fact is Respondent believed Dillard lied to avoid taking the trip. In any event, contrary to the Administrative Law Judge, Respondent's belief does not and cannot "clearly demonstrate an ulterior motivat;n in the suspension and dis- charge." Nor is the Administrative Law Judge's pretext finding better s ported by his rejection of Re- spondent's characterization of the Dillard-Baxter exchange as one X which Dillard sought to harass and intimidate Baxter. There is no dispute that there was an angry exchange between the two over the phone, loud enough to cause Baxter to hold the receiver away from his ear and for Cohran to hear, and a subsequent face-to-face con- frontation between them. Moreover, Respondent s Contrary to the Administrative l.aw Judge. I think this histor of employee deficiencies was relevant to the October 25 incident and that it might well have led Cohran to tell Dillard, as he did, that Respondent did not think he was "a suitable employee o be in contact with culstom- ers. notes that Dillard was once a professional wrestler and asserts that Baxter found his physical presence intimidating. On this record, it simply will not do to gloss over the possibility that Baxter, in fact, was intimidated or that Respondent might reason- ably have concluded this was Dillard's purpose in confronting Baxter. In any event, the Administra- tive Law Judge's observation that there were no direct threats hence ". . . Dillard's alleged 'harass- ment and intimidation,' of Baxter was non-existent and . . . Respondent's reliance upon this . . . is de- monstrative of the pretextual nature of such action [the suspension and discharge]" provides no basis for concluding Respondent's asserted reasons for the discharge were false. At bottom then, the Administrative Law Judge has rejected a plausible and lawful explanation for Respondent's action.9 Since I find his reason for doing so unacceptable, I dissent. O ' It is manifest that this is not a case in which the eidence has eslab lished that the Employer has seized upon a trivial incident to rid itself f an employee for an unlawful motive, when in fact no other employe would have been disciplined for the same asserted reason Nor is there here any evidence of disparate treatment. indeed, quite to the contrary the only record evidence idicales that another employee who filed charges with the Board was retained "' It passing, I note that my colleagues profess they are "puzzled by [Member ruesdalc's] suggestion that it is somehow inappropriate fr the Board to examine closely the allegedly legitimate reasons for a discharge advanced by a respondent ." I can share in my colleagues' puzzle- ment since nowhere have I made such a "suggestion " Howeser I do suggest to my colleagues that just as the piling of inference upon infer- erice is no suhstitute for proper analysis of the record as a whole, st too the setting up and demolishing of strawmen is n substitute for reasonled discussiion of the issues DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge: This case was heard in Atlanta, Georgia, on May 8, 1979. The charge was filed by Truckdrivers and Helpers Local Union No. 728, herein called the Union, on No- vember 2, 1978' (amended December 14), and the com- plaint was issued on December 15, alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Rela- tions Act, as amended, herein called the Act, by Austell Box Board Corporation, herein called Respondent or the Company. The primary issue in the case is whether Re- spondent suspended and discharged its employee Albert Wayne Dillard because of' his activity on behalf of the Union and/or because he threatened to file a charge with the National Labor Relations Board, herein called the Board. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and Re- spondent, I make the following: I All liates re 1978, unless other ise stlated 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent is a Georgia corporation with an office and place of business in Austell, Georgia, where it is en- gaged in the business of recycling paper. During the cal- endar year preceding issuance of the complaint, Re- spondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. Respondent admits, and I find, that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION STATUS OF THE UNION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Material Facts This case was presented by the General Counsel through two witnesses, Respondent's vice president and administrative officer, Wayne Cohran, and Respondent's dispatcher, Mark 0. Baxter. 2 These two established that Wayne Dillard began working for Respondent on a casual basis as a truckdriver in 1975. Because his work was sufficiently good, he became a regular truckdriver in June 1976. Dillard was active in an organizational cam- paign by the Union among Respondent's truckdrivers in early or mid 1977. That campaign culminated in a Board- conducted election in the summer of 1977 which election was won by the Union. Thereafter, in the fall of 1977, Dillard was one of two employees on the Union's negoti- ating committee and met with Respondent's representa- tives on contract negotiations. His last such meeting was in late December 1977. Because of a leg injury sustained in January 1978, which left him incapacitated for a period, Dillard was replaced on the Union's negotiating committee. Cohran admitted that Dillard was a very good truck- driver, but he testified that he had received complaints from a South Carolina customer, Star Baby Tube, Inc., in November 1977, regarding Dillard's refusal to accept a load of waste to be returned to Respondent. According to Cohran, he discussed the matter with Dillard who ex- pressed a different version of the facts surrounding the incident. In any event, Cohran put the customer's com- plaints which were in letter form in a file retained by Cohran, consistent with his practice of keeping "files" on individual drivers. Dillard's file also reflected a letter from Cohran to Dillard dated December 8, 1977, complaining about a 2 While Respondent stipulated that Cohran was a supervisor within the meaning of Sec. 2(11) of the Act, there was no such stipulation with re- spect to Baxter. Respondent did stipulate, however, that Baxter, as dis- patcher, did reasonably direct the work force. Moreover, Baxter testified, without contradiction, that he had authority to grant employees time off. Based on the stipulation as well as the admitted authority to grant time off, I find that Baxter was at all times material a supervisor within the meaning of Sec. 2(11) of the Act. late delivery by Dillard to a customer in early Novem- ber. The letter also complained of Dillard's failure to submit driver's logs on occasions in late November and early December. The letter concluded that in view of the late delivery and because of "previous difficulty in communicating with another one of our major ac- counts" 3 further violations would prompt disciplinary action. Cohran testified that in early 1978 he was advised by Jim Webster, Respondent's cost accountant, that Dillard had complained that his truck was not pulling well and had threatened to put gas in the truck rather than diesel fuel unless the truck was fixed.4 While the truck was ap- parently repaired, and although the alleged threat was never carried out, Cohran put Webster's note on the matter in Dillard's file. However, it does not appear that Cohran ever discussed the matter with Dillard or ascer- tained Dillard's version of the alleged threat. There was one remaining criticism of Dillard voiced by Cohran. In July or August, Cohran received a tele- phone call from a man who complained that one of Re- spondent's trucks had been following him too closely as the man was driving his automobile around Atlanta's pe- rimeter highway. The man, who stated that he had gotten Respondent's name and the unit number from the truck, refused to identify himself or to get further in- volved. Cohran shortly thereafter ascertained that the truck involved could only have been that of Dillard. He discussed the matter with Dillard who refused to con- cede that he had followed anyone too closely. No disci- plinary action was taken by Cohran. Cohran's testimony regarding the foregoing employ- ment history of Dillard was not contradicted by Dillard who was present at the hearing but was not called as a witness by the General Counsel. I infer from Dillard's failure to testify that Cohran's version of this history was accurate, including Cohran's version, where given, of Dillard's reponses when confronted on these matters. The events which more directly relate to the suspen- sion and discharge of Dillard occurred on October 24. Both Baxter and Cohran testified regarding these events. As between the two, I found Baxter to be more persua- sive and credit his version of the facts surrounding the suspension and discharge of Wayne Dillard wherever that version contradicts that of Chran. Baxter's recall was obviously clearer than Cohrai. s and his relation of the sequence of events surrounding telephone conversa- tions with Dillard was more logical and probable. Ac- cordingly, in setting forth the facts of Dillard's suspen- sion, Baxter's version will be relied .!pon. Baxter testified that on October 24, around 4:30 p.m., Dillard phoned Baxter from some place on Respondent's premises and told Baxter that his leg had been bothering him, and that his wife had made a doctor's appointment for him the following day. Baxter told Dillard that it was a little late to be so advised and Dillard indicated he had simply for- gotten to tell Baxter. Nevertheless, Baxter told Dillard to 3 While not clear in either the letter itself (Resp. Exh. 2) or the testi- mony, I conclude that the reference to the major account was the Star Baby Tube complaint. 4 According to Cohran, use of gas rather than diesel fuel would have ruined the engine. AUSTELL BOX BOARD CORPORATION 351 go ahead and go to the doctor. Following Dillard's call Baxter attempted to call the customer in Griffin, Geor- gia, whose load would have been delivered by Dillard the following day, but Baxter could not reach the cus- tomer. Cohran, who had come into Baxter's office during Baxter's phone conversation with Dillard, told Baxter to call Dillard and remind him that his failure to take the load the next day would result in his dropping to the bottom of the seniority board for dispatch pur- poses.5 Baxter did as directed and encountered a vigor- ous protest from Dillard. Dillard's response was suffi- ciently loud enough to cause Baxter to hold the tele- phone away from his ear, and, also, to allow Cohran to hear." Baxter testified that Dillard protested that his leg was bothering him and complained that he was being discriminated against. The latter remark he made three or four times according to Baxter. Moreover, Dillard stated that there was no "damn way" he was going to the bottom of the board. While perhaps unnecessary in view of Dillard's loud remarks which Cohran admittedly heard emanating from Baxter's telephone, Baxter advised Cohran of "the nature" of Dillard's comments and there- after proceeded to go home for the day. As Baxter was driving off Respondent's premises Dil- lard "flagged" him down and accused Baxter again of discriminating against him and stated his intention to take the matter to the Labor Board. Nevertheless, Dillard stated that he would go ahead and take the Griffin trip since he probably would have to take it the following day anyway and that would "ruin" his whole week. 7 Baxter testified that the following morning he advised Cohran about his conversation with Dillard as he was leaving the preceding evening. 8 Baxter added that he also told Cohran, in effect, that he did not believe Dil- lard's claim regarding a doctor's appointment and re- garded it as an effort to avoid the undesirable Griffin trip, the only trip available. Cohran, sometime during the i Beginning in the summer, Respondent had begun paying its drivers on a mileage basis rather than by salary as it had previously done. Selec- tion of trips therefore became more critical. The initial trips each week were assigned on the basis of driver bids and seniority. Subsequent availa- ble trips within the same week were picked by the drivers in the order of their return to the plant, but if there was only one trip available when the first driver returned, that driver, under Respondent's system, was re- quired to either take that trip or drop to the bottom of the seniority board for bid purposes for any other available trips in the week. On Oc- tober 24, Respondent modified its system to require a driver who had been dropped to the "bottom of the board" to pull at least one trip from that position. That modification was designed to prevent drivers who re- turned to the plant late in the week and rejected a trip from being able to exercise their regular seniority for initial trips the following week. In short, the drivers could not take Friday off and still get their regular choice of runs on the following Monday. While the October 24 modifica- tion coincided with Dillard's problem herein it does not appear to be re- lated. 6 One other individual, Greg Bartlett, a salesman for Respondent, was in the room at the time but did not testify herein. 7 The Griffin trip was considered undesirable by the drivers because it was paid on a flat rate basis, and although it involved driving a relatively short distance it required a considerable amount of time since the custom- er took 5 or 6 hours to unload the truck manually. Such a trip might consume the whole day and preclude the driver from returning to Re- spondent's plant and bidding on other trips that became available during the day. ^ While Baxter testified that he specifically told Cohran about Dillard's threat to go to the Labor Board, Cohran in his testimony stated he could not recall Baxter telling him that. I credit Baxter on the point. day on October 25, told Baxter that if Dillard came in he should not pick a trip because he was suspended. How- ever, it was Cohran himself who saw Dillard upon his return from the Griffin trip and informed him that be- cause of "recent events" Cohran was going to have to suspend Dillard and review his file. It appears from Cohran's testimony that, even before advising Dillard of the suspension, he had already re- viewed Dillard's "file" including Dillard's other trans- gressions noted above. Cohran also telephoned Dillard's doctor's office where a nurse had advised him that Dil- lard had had an appointment on October 23 which he had failed to keep but did not have one for October 25. Cohran telephoned Dillard on October 26 and told him he was still reviewing his file. Cohran related in his testimony that after discussing the Dillard situation with Lyn Puckett, Respondent's mill superintendent, and Bob Prillman, another official of Respondent, it was conclud- ed that Dillard would be terminated. On October 27 Cohran again called Dillard and advised him that in view of the infractions in his file Cohran and the "other people" involved felt that he was just not going to make a suitable employee to be in contact with customers and Dillard was being dismissed. Dillard was given an oppor- tunity by Cohran to resign but declined to do so. On October 30 Dillard was given a separation notice which, if not prepared by Cohran, was admittedly re- viewed by him. The statement on the notice in explana- tion of the separation reads as follows: Employee was indefinitely suspended 10-25-78 pending review of his file. Review of his file indi- cated his overall work performance was unsatisfac- tory. Employee was dismissed 10-27-78 and the deciding factor was his harassment and intimidation of the dispatcher which occurred on 10-24-78. Cohran gave Dillard a letter signed by him and dated November I reflecting the fact that Dillard had had no chargeable accidents while employed by Respondent and recommending Dillard's driving ability. The letter noted that any further inquiry regarding Dillard (by a prospec- tive employer) should be directed to Cohran. B. Contentions The General Counsel argues in his brief, in effect, that Dillard had not done anything to warrant his discharge. Dillard's "harassment and intimidation" of dispatcher Baxter referred to in Dillard's separation notice consisted only of his complaints about discrimination and his threat to go to the Labor Board. The General Counsel con- tends that Dillard was engaged in protected activity under the Act when he voiced his complaint to Baxter and expressed his intention to go to the Board. With respect to the voicing of complaints by Dillard, the General Counsel contends that the Griffin trip was the subject of "numerous driver complaints" and that "all the drivers," including Dillard, protested the Griffin trip and the method of payment therefor. Such protests, it is urged, constitute protected activity and a discharge for such activity violates Section 8(a)(l) of the Act. -- - - 4 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also argued by the General Counsel that to the extent that the discharge was related to Dillard's threat to go to the Labor Board it violated Section 8(a)(4) and (1) of the Act. The reasons advanced by Respondent for Dillard's dis- charge are said to be pretextual, and designed to cloak Respondent's unlawful reasons. The pretext is shown, ac- cording to the General Counsel, by Respondent's ad- vancement of additional reasons for the discharge at the hearing which were not referred to in Dillard's separa- tion notice, specifically Dillard's alleged effort to avoid an undesirable trip. A pretext is further reflected in Re- spondent's reliance upon old or stale transgressions in Dillard's "file" to effectuate the discharge. Finally, the weakness of Respondent's primary basis for the dis- charge, the General Counsel argues, also clearly indi- cates the pretextual nature of the discharge. The General Counsel's argument with respect to the alleged 8(a)(3) violation is not clear. While it is pointed out that Dillard was a known and vocal adherent of the Union, Respondent's basis for animosity toward him for his union support is not clearly shown in the record. In this regard, the General Counsel's brief implies that since most of the deficiencies in Dillard's "file" consid- ered by Respondent in the discharge had occurred during the height of Dillard's union activities it must be presumed that they were pretextual and therefore could not support a legitimate discharge of Dillard several months later. Respondent, relying upon Cohran's denial that Dil- lard's threat to go to the Board had anything to do with the discharge decision, argues that Dillard was dis- charged for cause, and that no violation of the Act oc- curred. In Respondent's view, in its brief, simply stated, Dillard was discharged because he sought under guise of a doctor's appointment to avoid an undesirable trip and this act when considered in the context of his employ- ment background with Respondent and his harassment of the dispatcher warranted his separation. C. Conclusion At the outset I do not believe the record establishes, as urged by the General Counsel, that Dillard was voicing any specific complaint about the Griffin run when he in- sisted that he was not going to be dropped to the bottom of the bid board in refusing to take the trip. The record shows no complaint by Dillard about the Griffin run itself, and the implication is only that Dillard believed it unfair to penalize him for failing to take a run because he had a doctor's appointment. In any event there was no evidence that Dillard, even if he voiced a complaint about the Griffin run, was speaking for other employees in doing so. The fact that one employee on his own behalf expresses to a supervisor a dissatisfaction with a working condition does not constitute protected concert- ed activity simply because other employees have a simi- lar view. Omni International Hotel, 242 NLRB No. 45 (1979). Moreover, "communication among employees with no purpose of advancing their common interest, is not concerted activity." Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215, 1217 (1977). In the instant case there was no showing that any complaint voiced by Dillard to Baxter on October 24 regarding either the "Griffin run" or the dropping to the "bottom of the board" was made with the purpose of advancing any common interest of the employees. Accordingly, I find that Dillard was not engaged in any protected activity with respect to any complaints voiced to Baxter regard- ing the Griffin run or being dropped to the bottom of the board. It follows that there was no independent vio- lation of Section 8(a)(1) of the Act, even if the discharge were based on any complaints voiced by Dillard. In deciding whether Respondent violated Section 8(a)(3), (4), and, by derivation, (1) of the Act, it must be determined whether the reasons asserted for the dis- charge were pretextual. As stated by the Court in Shat- tuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466 at 470 (9th Cir. 1966): Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving .... If [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal .... The reasons asserted for Dillard's suspension and dis- charge here must be carefully considered. A pretext is indicated when the reasons asserted for the discharge are equivocal or ill founded. In considering Respondent's contentions regarding the basis for Dil- lard's suspension and discharge, I see no cause to depart from those reasons stated in the separation notice given Dillard. There Respondent had asserted that the deciding factor for its actions with respect to Dillard was "harass- ment and intimidation" of Baxter. Using the normal meaning of those words, the record does not substantiate any finding that Dillard harassed or intimidated Baxter. It is true that Dillard vigorously expressed his satisfac- tion with having to "drop to the bottom of the board," and even stated that there was "no damn way" he was going to do it. But instead of persisting in this position, Dillard only a few minutes later advised Baxter that he was going to take the Griffin trip. That as well as the fact that Dillard had actually driven the trip was known to Cohran before Dillard was suspended. How Dillard's action can be regarded as harassment was not adequately explained on the record by either Cohran or Baxter. With respect to the claimed intimidation of Baxter the record shows that Dillard talked loudly through the tele- phone to Baxter. There was not even loud talking, how- ever, when Dillard met Baxter outside a few minutes later as Baxter was leaving. There is no contention that Dillard sought to fight Baxter or otherwise threatened him with physical harm. Respondent makes much of the fact that Dillard was allegedly a one-time professional wrestler, and that his physical bulk was intimidating. Yet there was no testimony that Dillard in any way threat- ened to use that bulk or past experience to harm Baxter or anyone else. Moreover, aside from his stated intention of going to the Board, Dillard made no statements which could be regarded as a threat to Baxter. It is also signifi- cant that Cohran, although knowing of the details of Dil- AUSTELL BOX BOARD CORPORATION 353 lard's telephone conversations with Baxter, said nothing to Dillard about them and any attendant "harassment and intimidation" of Baxter when Cohran admittedly saw Dillard in Respondent's garage a short time after the telephone conversations. Accordingly, I conclude that Dillard's alleged "harassment and intimidation" of Baxter was nonexistent and that Respondent's reliance upon this as a "deciding factor" in his suspension and discharge is demonstrative of the pretextual nature of such action. A finding of a pretext is also supported by Respond- ent's further reliance upon Dillard's work deficiencies occurring several months earlier. These deficiencies were not repeated and had no relationship to events at the time of Dillard's suspension. Further, Dillard was not specifically disciplined for them at the time they oc- curred. Reference to them by Respondent in the separa- tion notice only substantiates Resposndent's recognition of the weakness of the alleged basis for Dillard's suspen- sion and separation. Even if one goes beyond the reasons asserted in the separation notice to consider Respondent's contention at the hearing that the discharge of Dillard was related to his alleged excuse of a doctor's appointment to avoid the Griffin trip, a pretext is still indicated. This is because there was no evidence that Respondent had ever disci- plined any other drivers for actions taken in avoiding un- desirable trips. That Respondent had encountered such a problem was revealed by the necessity for its institution of the new dispatch rule on October 24, which was ad- mittedly designed to keep drivers from refusing trips on Fridays and yet exercising their regular seniority for bid- ding trips the following Monday. Finally in this regard, it is noted that Dillard was suspended without ever having ascertained his position regarding the doctor's ap- pointment. Moreover, Cohran failed to explain why he did not accept Dillard's explanation of the claimed doctor's ap- pointment when Cohran finally inquired of Dillard about it around the time of his discharge. Cohran, testified that he "believed" Dillard had responded that his wife had made the appointment. Since Cohran's inquiry of the doctor's office showed Dillard had an appointment on October 23, which Dillard had failed to keep, there exist- ed a real possibility of a genuine error on Dillard's part as to the date of the appointment. Under these circum- stances Cohran's unsubstantiated presumption of Dil- lard's bad faith in the matter clearly demonstrates an ul- terior motivation in the suspension and discharge. Based on the foregoing, I conclude that the reasons as- serted by Cohran for his actions with respect to Dillard were in fact pretextual and I infer therefrom that Re- spondent's motive was one that Respondent desired to conceal. Considering the alleged 8(a)(3) violation in light of the pretext found herein, there appears to be little evidence to establish that Dillard's past union activity was a factor in Respondent's motivation to discharge him. Dillard's union support was well known to Respondent and had been for some time. But from a timing standpoint his union activity was remote to his discharge. And al- though Cohran conceded that Dillard was involved in driver disputes, the record does not establish that such disputes involved union activity, or were otherwise relat- ed to union matters around the time of his discharge. The absence of current union activity by Dillard would not preclude the existence of lingering animosity on the part of Respondent to a degree sufficient to motivate a discharge at the first good opportunity. However, such animosity must be shown to have existed initially or must be inferred from the circumstances of the discharge. That Respondent found fault with Dillard's work during the time of his union activity in 1977 does not warrant an inference, without more, that such fault find- ing indicated preparation for an unlawful discharge. This is particularly so because no evidence was presented to dispute Respondent's contentions regarding Dillard's work problems in November and December 1977, relied upon in part in effectuating his suspension and discharge considered herein. Thus, the criticism of his work at that time cannot be considered as unfounded, unjustified, or pretextual. Accordingly, and because in my opinion the circumstances of the suspension and discharge do not in- dicate any connection between such action and Dillard's union activities or sympathies I conclude, and find, that the evidence does not establish that Respondent was mo- tivated by unlawful union considerations in violation of Section 8(a)(3) of the Act. The absence of a finding of a violation of Section 8(a)(3) does not bar a finding that the basis of Dillard's suspension and discharge was violative of Section 8(a)(4) and (1). I am persuaded that, in view of the pretextual nature of Respondent's actions with respect to Dillard's discharge and because Respondent's decision on his sus- pension came so quickly after Dillard threatened to go to the Board, an inference is warranted that Respondent's action was provoked by such threat. That Respondent was so provoked is also revealed in Cohran's unconvinc- ing attempt in his testimony to avoid any knowledge of Dillard's threat, an attempt that was thwarted by Baxter's admission that he had specifically advised Cohran of Dillard's threat. Cohran's attempt to show that Dillard's threat did not motivate any of Cohran's actions was likewise unpersua- sive. Cohran's self-serving testimony that half a dozen other employees had threatened to go to the Board with- out encountering reprisal by Respondent falls short of es- tablishing the absence of unlawful motivation in Dillard's case, Assuming other employees had made such threats, Dillard's threat, vehemently stated, may well have con- stituted the straw that broke the proverbial camel's back. But examining Cohran's testimony closely it appears that only one employee, Robert Harper, was still employed by Respondent after he had threatened to file, and had filed, charges with the Board. At least one such charge had resulted in Respondent's entering into a settlement agreement and posting a "Notice to Employees" in con- nection therewith. Respondent's experience with Harper's prior charges could serve to provoke Respond- ent's opposition to further Board interference through other employees invoking the processes of the Board. Aside from Harper, Cohran's testimony shows that other employees who threatened to go to the Board, or who went to the Board, were already laid off or discharged by Respondent at the time of their alleged threats. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, I do not credit Cohran's denial that Dillard's threat to go to the Board was not a factor in his suspension and discharge, and I find, to the contrary, that it was. The timing of the suspension, as well as the other evidence of pretext noted above, consti- tutes that preponderance of evidence which destroys the claimed lawful basis for Cohran's actions.9 It is clear from applicable case law that the discipline of an employee for the expression of an intention of taking a grievance with his employer to the National Labor Relations Board violates Section 8(a)(4) and (1) of the Act. First National Bank & Trust Co., 209 NLRB 95 (1974), enfd. 505 F.2d 729 (3d Cir. 1974); General Nutri- tion Center, Inc., 221 NLRB 850 (1975); Mitsibushi Air- craft International, Inc., 212 NLRB 856 (1974); Southwest Janitorial and Maintenance Corporation, 209 NLRB 402 (1974); Ertel Manufacturing Corporation, 200 NLRB 525 (1972). Having concluded that Respondent's actions with respect to Dillard were based on his threat to take his claim of discrimination to the Board, I find that Re- spondent thereby violated Section 8(a)(4) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By suspending and discharging Albert Wayne Dil- lard because he threatened to take his claim of discrimi- nation to the Board, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(4) and (1) and 2(6) and (7) of the Act. 4. Respondent did not violate Section 8(aX3) of the Act in the suspension and discharge of Albert Wayne Dillard. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily suspend- ed and discharged Albert Wayne Dillard, I find it neces- sary to order it to offer him immediate and full reinstate- ment without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful suspension and discharge. Backpay with interest thereon is to be computed in the manner prescribed in F. W I The move to suspend Dillard is only understandable in terms of his threat to go to the Board, since there is no extrinsic evidence outside Cohran's self-serving and discredited testimony that Cohran decided to suspend Dillard before Baxter communicated Dillard's threat to Cohran The delay between the suspension and the discharge was no more than another attempt to give the appearance of deliberate consideration of the situation in order to cloak the pretextual nature of Respondent's action. After all. essentially all the conduct upon which Cohran relied in effectu- ating the discharge was known by Cohran at the time of the suspension Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'0 Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER ' The Respondent, Austell Box Board Corporation, Aus- tell, Georgia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Suspending, discharging, or otherwise discriminat- ing against any employee for expressing an intention of taking a complaint to the National Labor Relations Board. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Albert Wayne Dillard immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful suspension and discharge by Respondent in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Austell, Georgia, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to 10 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). The General Counsel in a supplemental brief urges reconsideration of the Board's position with respect to the applicable interest rate as specified in Florida Steel Corporation, supra. The interest rate is a policy matter for the Board and not for the Administrative Law Judge. and I will not pass upon the General Counsel's argument in this regard. In any event I note that recent Board decisions adhere to the interest formula in Florida Steel. See, e.g., Neely's Car Clinic, 242 NLRB No 69 (1979). See also Hansen Cakes, Inc.. 242 NLRB No. 74 (1979). " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. l2 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." AUSTELL BOX BOARD CORPORATION 355 insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we violated the Na- tional Labor Relations Act, and we have been ordered to post this notice. WE WILL NOT suspend, discharge, or otherwise discriminate against any employee for expressing an intention of taking a complaint to the National Labor Relations Board. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Albert Wayne Dillard immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful suspension and discharge. AUSTELL Box BOARD CORPORATION