Kansas City Terminal Elevator Co.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kansas City Terminal Elevator Company and Donald D. Spoeneman. Case 17-CA-10951 14 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 2 February 1983 Administrative Law Judge Timothy D. Nelson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Union Party-in-Interest filed a reply brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified. 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Kansas City Terminal Elevator Compa- ny, Kansas City, Kansas, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In agreeing with the judge's finding that the Respondent did not view Spoeneman's card playing as a repeat offense, we note that the credited testimony shows the only version of the suspension letter received by Spoeneman prior to the hearing herein indicates that the conduct for which he was suspended was a first offense, which according to the Re- spondent's progressive disciplinary system should have been cause only for a written disciplinary warning and not the 3-day disciplinary suspen- sion meted out We do not adopt the judge's recommendation that this proceeding be referred to the U S Attorney's office to determine whether perjury pro- ceedings should be brought against the Respondent's witnesses In our view, based on a careful review of the record, the evidence falls far short of establishing that any witness gave perjured testimony In addition, it is Member Dennis' view that the dissent, in urging re- versal of the judge and a finding that Spoeneman was discharged for cause, minimizes the critical and flagrant inconsistencies in the Respond- ent's position, suggests that Spoeneman's known union activities ceased with the election, when in fact they continued for a considerable period, and ignores the Respondent's unconcealed resentment of Spoeneman's union activities, as evidenced by its postelection statement that Spoene- man's "butt [was] as good as gone" When these facts are given due con- sideration, as they were by the judge, the conclusion is warranted that the Respondent would not have issued a 3-day disciplinary suspension against Spoeneman for a first offense had he never engaged in union ac- tivities 2 We find that a broad remedial order is not warranted in this case See H,ckmott Foods, 242 NLRB 1357 (1979) Furthermore, we shall modify the expunction order to conform to the language set forth in Sterling Sugars, 261 NLRB 472 (1982) "1. Cease and desist from discriminating against employees with respect to their hire, tenure, or other terms and conditions, or in any like or relat- ed manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(b). "(b) Expunge from Spoeneman's personnel records and all other files any reference to his sus- pension and notify him, in writing, that this has been done, and that evidence of his unlawful sus- pension will not be used as a basis for future per- sonnel action against him." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. I do not agree with my colleagues that the Re- spondent violated Section 8(a)(3) by issuing the 3- day suspension to employee Spoeneman. The pas- sage of time and the lack of any linkage between the employee's union activities and the disciplinary action is too remote to warrant a finding that the Respondent's decision was motivated by the em- ployee's concerted activities. The Respondent operates two grain storage ele- vators. It has a progressive disciplinary system for safety rule infractions which includes a written warning for a first offense and a written warning with a 3-day suspension for a repeat of the same or a similar violation. Spoeneman operates scale equipment on the scale floor at elevator no. 1 and beginning in June 1981 served as the Union's in-plant contact and solicited authorization cards. In September of that year the Union won a Board-conducted election, in which Spoeneman was a union observer. He was later elected steward. In mid-October, Spoeneman received a "first of- fense" written warning for leaving the scale room unattended. The appropriateness of this warning is not contested. However, several months later on 6 April 1982, the employee again left his assigned job on the scale floor to play cards in the scale room office. As a result of Spoeneman's action the next morning he was notified of his suspension for 3 days for the card playing. Although the initial warning letter issued to Spoeneman indicated that the card playing was not viewed as a second safety violation, according to the Respondent this letter was in error and the card playing amounted to a second safety violation similar to his October of- fense. The judge determined that Spoeneman's suspen- sion resulted from his union activities. He found that the card playing was not a repeat offense and 274 NLRB No. 10 KANSAS CITY ELEVATOR CO the reason advanced for the suspension was pretex- tual. In my view, my colleagues have emphasized form over substance in resolving the issues in this case. Whether you view Spoeneman's second of- fense as another safety violation or card playing, the simple fact is that Spoeneman engaged in two instances of improper conduct which warranted disciplinary action. It is very possible that the Re- spondent's initial determination that Spoeneman en- gaged in a second safety violation was incorrect, but there is no evidence in the record to show that the Respondent's decision, whether it be right or wrong, was based on discriminatory considerations. The only factor left is the timing, and Spoeneman's suspension is too remote in time from the campaign and the election to find a violation. Here the sus- pension occurred nearly 6 months after the em- ployee's union activities and during this period there is no evidence of a connection between the disciplinary action and the employee's union in- volvement. Rather the employee was disciplined for cause, that is, for leaving his work area a second time. Accordingly, for these reasons I would dismiss the complaint. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, loin, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discriminate against employees, including by singling them out for harsh discipli- nary treatment, because they are involved in activi- ties on behalf of American Federation of Grain Millers, AFL-CIO, Local Union No. 16, or any other union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 47 WE WILL make Donald Spoeneman whole by paying him backpay, with interest, for the wages he lost as a result of our unlawful suspension of him without pay in April 1982. WE WILL rescind and expunge from our records the suspension notices which we issued to Spoene- man at that time and we will take no further action in the future against Spoeneman based on those no- tices or the incident to which they refer. KANSAS CITY TERMINAL ELEVATOR COMPANY DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. Donald D Spoeneman, an employee of Kansas City Ter- minal Elevator Company (Respondent), filed unfair labor practice charges in this matter against Respondent on April 20, 1982 1 Following an investigation, the Regional Director for Region 17 of the National Labor Relations Board issued a complaint and notice of hearing against Respondent on May 20. The complaint, substantially adopting the charge which spoeneman had filed, alleged that Respondent issued a 3-day disciplinary suspension to Spoeneman because of his activities on behalf of Ameri- can Federation of Grain Millers, AFL-CIO, Local Union No. 16 (Union) and because he engaged in other concerted activities protected by the National Labor Re- lations Act (Act), all in violation of Section 8(a)(3) and (1) of the Act. Respondent answered through counsel, admitting that its operations properly rendered it subject to the Board's jurisdiction, that certain persons named in the complaint and referred to hereinafter were its supervisory agents, and that it issued the disciplinary action against Spoene- man, all as alleged. Respondent denied only the allega- tions in the complaint that it was motivated by unlawful considerations in taking such disciplinary action. I heard the matter in trial at Kansas City, Kansas, on December 16, at which time all parties appeared as indi- cated above and were given full opportunity to present evidence and be heard. I have considered timely posttrial briefs filed by all parties. The Issue and the Applicable Legal Tests The sole issue is whether Respondent was motivated by unlawfully discriminatory considerations when it issued a 3-day disciplinary suspension without pay to Spoeneman, ostensibly because Spoeneman had been playing cards with a state inspector during scheduled working time, but during a lull in the production proc- ess Where, as here, Respondent has urged that nondis- criminatory grounds (employee misconduct) prompted the discipline challenged by the complaint, a "causation" I Unless otherwise specified, all dates hereinafter are in 1982 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD analysis may be necessary, prescibed in Wright Line2 as follows. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision Once this is es- tablished, the burden3 will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct- ed. [251 NLRB at 1089.] On the entire record, I make these FINDINGS OF FACT A. General Background Respondent, a Missouri corporation, operates grain elevators at two facilities in Kansas City, Missouri, in- cluding the one involved herein, a riverside facility serv- icing mostly barge traffic, known as Elevator No. 1 4 At all times material herein, Lloyd McDaniel has been the superintendent over operations at Elevator No. 1. Louis Barrack has been the assistant superintendent since April 12, 1982 There are roughly 17 nonsupervisory employ- ees at the elevator. These include Charging Party Spoen- eman who has been employed since November 1979 as a weighmaster, responsible for weighing inbound and out- bound grain traffic as it passes through his scale room. The Union began an organizing campaign at the eleva- tor in June 1981, using Spoeneman as its principal in- plant contact and authorization card solicitor. Pursuant to a representation election petition, an election was con- ducted under Board auspices on September 4, 1981, which the Union won.-5 Spoeneman was the Union's ob- server during that election. Spoeneman was later elected as the Union's observer during that election Spoeneman was later elected as the Union's steward. Respondent concededly knew of these activities During the period June 1, 1981, to September 1, 1982, responsibility for the overall management of Elevator 2 Wright Line, 251 NLRB 1083 (1980), enfd (expressing reservations as to allocation of burdens) 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982) And see NLRB v Transportation Management Corp, 674 F 2d 130 (1st Cir 1982), cert granted 459 U S 1014 (1982) 2 In addition to the "burden shift" language in the quoted passage above, see also Wright Line, supra, 251 NLRB at 1088 in 11, in which the Board emphasizes that the "ultimate burden " of proving a violation by a preponderance of the evidence remains with the General Counsel I note also that the Board and some courts of appeal are in disagreement as to the precise nature of the employer's burden after a prima facie case of unlawful discrimination has been made out, and that these issues are the subject of certiorari review by the Supreme Court in Transportation Man- agement, supra 4 Respondent annually purchases goods and services valued in excess of $50,000 directly from outside Missouri 5 The Board certified the Union as the exclusive collective-bargaining representative , but, as the parties further stipulated, Respondent has re- fused to recognize or bargain with the Union as such pending a judicial test of the certification As a historical postscript, I note that Respond- ent's challenge to the certification was unsuccessful See Kansas City Ter- minal Elevator Co v NLRB, 697 F 2d 269 (8th Cir 1983), in which the United States Court of Appeals for the Eighth Circuit sustained the Board's certification and enforced the Board's subsequent bargaining order issued in connection with its finding that Respondent had violated Sec 8(a)(5) of the Act No. 1 had been contracted by Respondent to a manage- ment company called FAR-MAR-CO. Chuck Finch, op- erations manager for that company, was effectively in overall charge of the management of Elevator No. 1 and two other elevators. McDaniel reported directly to Finch on a regular basis . Finch was, in turn, responsible to Dwight Fenton, FAR-MAR-CO's vice president of operations. One operational innovation introduced by FAR-MAR-CO was a written set of safety policies con- tained in a "Safety Handbook " issued to all employees. That handbook contained an "Enforcement Policy" in- volving progressive discipline, as follows (emphasis added): Enforcement of the FAR-MAR -CO Safety Pro- gram will be the direct responsibility of the Super- intendent at each facility , assisted by other plant personnel and the Safety Committee. Procedure for action to be taken for violation of safety rules: First offense for violating a rule will consist of a written warning to the employee, with a copy to be kept in the employee personnel file. Second violation for the same or similar act, a writ- ten warning issued with a copy to be kept in the employee personnel file. This is to be followed by a 3-day No Pay suspension. Third violation of the same or similar act will result in immediate termination. Violation of a serious nature or any deliberate action by an employee that willfully committed causes personal injury to a fellow employee or em- ployees or deliberate destruction to company prop- erty will call for immediate termination. Any action by an employee that creates a hazardous condition to fellow employees or to company prop- erty will also call for immediate termination. Example: Smoking inside a grain elevator. Crediting the undenied testimony of Rodney Baxter, Spoeneman's assistant in the scale room , Superintendent McDaniel approached Baxter near the timeclock during a morning break about 2 weeks after the Union's election victory6 and said, "Well, Don don't know it yet, but his butt is as good as gone " On October 16, 1981, Spoeneman received a written warning signed by McDaniel relating to an event of the previous day in which Spoeneman assertedly had been 6 If Baxter 's initial estimate of the timing is correct , this would have been in late September Elsewhere, however, Baxter indicated the vague impression that the conversation may not have happened until after Spoeneman had received a warning on October 16, discussed next If it were necessary to the outcome to identify the timing of McDaniel's state- ment to Baxter (and I do not believe that it is) I would rely on Baxter's initial estimate that it happened about 2 weeks after the election Not only does Respondent appear implicitly to have adopted that estimate (R Br 17), but Respondent 's failure to obtain from McDaniel any denial of any aspect of Baxter's account here warrants the inference adverse to Re- spondent-that McDaniel made these remarks relatively near the election date KANSAS CITY ELEVATOR CO careless in leaving the scale floor unattended for some period of time during which a "choke-down" occurred in a garner (a type of receiving bin for grain before it passes through the scale), thereby causing an overflow and then the automatic shutoff of the flow of grain through the elevator. This was characterized by McDan- iel as a "serious safety violation" on Spoeneman's part 7 From the mutually harmonious or uncontradicted fea- tures of Spoeneman's and Finch's testimony, I find that Spoeneman protested after receiving this warning he had left the scale room to discuss a loading schedule discrep- ancy with a foreman and only after so advising his assist- ant, Baxter Spoeneman surmised before Finch and McDaniel that Baxter must not have heard him due to the background din of the machinery, that this is why the garner had been left unattended, and therefore that Spoeneman had not truly been negligent. McDaniel re- plied to this that Spoeneman was "lucky," commenting that management was planning to issue a 3-day discipli- nary suspension to another employee, Ronnie Shelton, for a safety violation becuase he had failed to cover a bin opening with a protective grating Hearing this, Spoene- man protested the plan to give Shelton a suspension without having first issued a warning letter to him; and Spoeneman vowed to "grieve" any such suspension After Spoeneman left, Finch advised McDaniel that, under the above-quoted company rules, a 3-day suspen- sion would be premature in Shelton's case because no prior written warning had been issued to Shelton; and Shelton received only a written warning for his "safety" violation Crediting Spoeneman's undenied testimony (well cor- roborated by Baxter), about a week after October 16, Spoeneman had occasion to ask McDaniel to come to the scale floor to assist in settling complaints involving an outside contracting crew which was relining the scale, using power equipment. Spoeneman first said that as a "member of the safety committee,"8 he wished to protest a violation of safety policy in the use by the re- lining contractor's workmen of a power saw which was emitting visible sparks within the dust-filled scale room (dust explosions notoriously being the principal safety hazard in a grain elevator). McDaniel replied that he "couldn't help that," and that Spoeneman should "quit playing private detective and mind [his] own business." This caused Spoeneman to protest that, as a member of the safety committee, this was his "business." When McDaniel repeated that he could not "help that," Spoen- eman pulled a union shop steward's buttons from his pocket, saying, "Well, if being on the safety committee won't get it, maybe this will, we'll write a grievance over this safety violation." McDaniel then became florid and shouted, "You son of a bitch, those mother fuckers ' I assume hereafter, without deciding, that Spoeneman' s alleged mis- conduct in this instance is properly characterizable as a "safety" viola- tion 9 The above-described "Safety Handbook" contemplates establishment of a safety committee which consists, inter alia, of employee-members It is not disputed that Spoeneman was one such member s The button, about 2 inches in diameter, contained the legend "Ameri- can Federation of Grain Millers Shop Steward" in red lettering on a white background 49 aren't running this elevator," causing Spoeneman to close the conversation with the statement. "I hope you don't blow it up while I'm up here." B. Spoeneman'c Suspension No one disputes that on the afternoon of April 15, during a routine lull in the flow of grain through the scale room, i ° Spoeneman left the floor of the scale room and went into his office a few steps away, leaving Baxter on the floor Spoeneman then joined a state inspector' i who was already seated at Spoeneman's desk playing sol- itaire, whereupon the state inspector dealt out a hand of cards. Almost immediately, Assistant Superintendent Louis Barrack walked into the scale room office and, no- ticing the card players, casually asked Spoeneman: "He beatin' you?" Barrack then left the office and Spoeneman returned to the floor. Spoeneman does not dispute that card playing during working hours was a discouraged practice, but Spoene- man also insists-and he is well corroborated by Baxter-that the practice is common during production lulls, occurring several times each week Spoeneman also testified that he had seen McDaniel himself playing cards during worktime with another state inspector. McDaniel denied this latter testimony. McDaniel also admitted, however, that in early January, he found Ronnie Shelton and Rodney Baxter playing cards in the scale room and that he merely instructed Shelton to get back to his work area in another department, scolding him for "being out of his assigned work area." McDaniel also explained in his testimony at this point, "Since that was a first occa- sion I witnessed them playing cards, I just chewed them out rather than writing them up." I credit Spoeneman's and Baxter's testimony that card playing, while discour- aged, was a relatively common phenomenon. And, al- though I do not believe it is critical to the outcome, I readily credit Spoeneman's testimony that McDaniel himself had engaged in the practice For reasons elabo- rated below, I found McDaniel to be an untruthful and/or unreliable witness on many material points. I cannot, therefore, credit his denial that he had ever played cards during worktime. It is not disputed, and I find from McDaniel's testimo- ny, that Barrack reported to McDaniel shortly after the event that he had seen Spoeneman playing cards with the state inspector. I also find from McDaniel's and Finch's harmonious testimony that McDaniel then called Finch, informed the latter of Spoeneman's card playing, and indicated to Finch his disposition to issue a 3-day disciplinary suspension. Further, from the same harmoni- ous sources, I find that Finch told McDaniel that he wished to check first with his superior, Fenton, that Finch then did so, and that Finch then called McDaniel back, about 4:30 p.m., saying that Fenton had approved the issuance of such a suspension. Beyond that, the testi- 10 Such lulls, often occasioned by the need to reposition barges so that grain may be drawn from or loaded into a different hatch, or to bring a new barge into position, are common in the daily operation of the eleva- tor i1 State inspectors are regularly on hand at the elevator to ensure compliance with weight and measurement standards 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of McDaniel and Finch about these and related matters is highly unreliable 12 I do not believe that McDaniel and Finch ever dis- cussed during their conversations on the afternoon of April 15 that Spoeneman's card playing was essentially "similar" (within the meaning of the quoted "Enforce- ment Policy") to the matter for which Spoeneman had received a written warning 6 months earlier. While McDaniel sought at one point vaguely to make that claim, and although he was virtually implored during questioning from the bench to amplify that claim, McDaniel utterly failed to provide any reliable account of when or how this matter was discussed. Indeed, every account of his conversations with Finch on April 15 pur- porting to recall the words used by the participants con- tradicts every other account; and each account fails to include any specific exchange suggesting that Spoene- man's card playing was then viewed as a "repeat" viola- tion. Finch was present during McDaniel 's testimony under adverse examination and therefore had an opportunity to observe the failings alluded to above Finch purported to recall that he raised the "repeat" character of Spoene- man's conduct in his first discussion with McDaniel, then also with Fenton, and then specifically again in his second conversation with McDaniel Fenton did not tes- tify, despite the evident value to Respondent of corrobo- ration on this point after McDaniel's dismal performance. Finch presented a more plausible testimonial demeanor than McDaniel, but I do not believe him either.13 The additional findings below, reflect, inter alia, that the sus- pension notice which was prepared by McDaniel in ac- cordance with Finch's authorization still failed to charac- terize Spoeneman's card playing as anything other than a kind of "first offense." Moreover, those findings reflect that the suspension notice was not "revised" until sub- stantially later. 'I McDaniel testified first and at greatest length under adverse exami- nation by the General Counsel , during the General Counsel 's case-m- chief, about the details surrounding the issuance of a suspension notice to Spoeneman (and the subsequent "revisions" of that notice) Respondent's counsel also pursued with McDaniel at this time the subject areas opened by the General Counsel McDaniel also testified under examination from the bench at this time , following Respondent 's questioning McDaniel proved to be so blatantly self-contradictory , vague, evasive , and utterly unimpressive during these examinations-particularly as to the timing of the sequence of events resulting in the preparation of the various incarna- tions of the suspension notices for Spoeneman and the nature of the con- versations among management which preceded them-that I am persuad- ed that he was attempting , albeit vainly, to conceal guilty knowledge Respondent urges on brief that McDanel's difficulties were understand- able and , in any case, of no import because they dealt with merely "tan- gential" matters To the contrary, as is further detailed in the main text, they go directly to the question of management's actual motives in issu- ing a suspension to Spoeneman More particularly, they go to whether or not management agents truly believed on April 15 that Spoeneman's card playing amounted to a "repeat" violation, i e, one which was essentially "similar" within the meaning of Respondent 's written "Enforcement Policy" to the matter for which he had received a warning on October 16, 1981 11 Finch was called during Respondent 's case His "recollection" of the mention of Spoeneman 's card playing as a "repeat " offense seemed to be a contrived afterthought and did not emerge naturally in his account of the intramanagement discussions on April 15 A copy of what everyone now concedes was the origi- nally prepared suspension notice to Spoeneman14 is re- produced on the following page [omitted from publica- tion]. 15 It is evident from the text of that suspension notice, and I find, that McDaniel, the admitted author, treated Spoeneman's card playing as a first offense, unrelated to any previous rule violation which Spoeneman might have committed.16 And McDaniel's testimony clearly entered the zone of invention when he testified that this warning was prepared by his secretary at his direction and was even given to Spoeneman later on the afternoon of April 15, after the second communication with Finch. Not only does the date (April 16) which he placed in his own hand next to his signature contradict this, but the story is inherently implausible and is contradicted by other testimony of McDaniel and Finch 17 as well as by 14 That is, G C Exh 7 G C Exh 4 is the copy which McDaniel states (falsely, as I find below) was prepared only shortly after G C Exh 7 was prepared, after the so-called clerical error was detected by Finch on that latter document G C Exh 3 is an intermediate version, essential- ly, a less substantially doctored version of the original notice than G C Exh 4 is Why G C Exh 3 was prepared by Respondent's agents is un- clear on this record I infer that it merely reflects a first stab by Respond- ent's agents at altering the original document-one which was quickly abandoned as obvious and useless upon the realization that Spoeneman had an undoctored copy of the original 15 Letters in the left-hand margin have been darkened for legibility, due to the faintness of the photocopy in evidence as the "original" of G C Exh 7 16 Specifically, see McDaniel's concession on the form that the "em- ployee" had not been "warned previously," coupled with the insertion of Barrack's name under the "First Warning" column I reject as the purest dissemblance McDaniel 's unworthy attempts to blame his secretary (who was not called to testify) for what he termed mere "clerical errors" in the manner in which the form was completed McDaniel admittedly dictated the text of, and subscribed to, the completed form, and if, in fact, Finch had specifically told McDaniel to treat Spoeneman's card playing as a "repeat" violation , McDaniel would not have dictated the "Company Re- marks" without some mention of that fact and would not have over- looked the contradictory entries noted above That this is the case is borne out further by the ultimate doctoring with the form which Re- spondent eventually resorted to (G C Exh 4), in which the "Company Remarks" are amended, inter alia, to include the new sentence "This is your second violation of negligence," and the other entries are changed to accord with the notion that Spoeneman 's card playing was a type of "repeat" offense These emendations, reflecting Respondent's recognition of a need to "repair," speak louder than anything they uttered from the witness stand about McDaniel's and Finch's original view of the card playing incident 17 In order to buttress Respondent 's currently maintained position- that the text of the original warning was flawed simply due to the error of a clerical employee, and was immediately corrected when the "clerical error" was promptly discovered by Finch-Respondent's agents found themselves obliged to square this position with another undisputed fact that Spoeneman somehow had received a copy of the original unamend- ed suspension notice In order to do this, McDaniel claimed variously to the effect that the notice was prepared on the afternoon of April 15 and was given to Spoeneman that same afternoon, as he was leaving work (see Tr 24 3, 26 16-21), and that the notice was prepared on the after- noon of April 15 Spoeneman was told of his suspension at that time, but Spoeneman did not receive the notice until the next morning (See Tr 20 18-21 2) (Why Spoeneman would come in the next morning under such a scenario is not explained) In order to explain how it was that Finch was able, as early as the next morning (i e, April 16) to detect from his office located at some distance from Elevator No I that there were "clerical" errors on the original writing, McDaniel was required to "recall" a hand-delivery messenger system which he claimed was the process used to transmit the completed original notice to Finch's office on the afternoon of April 15 This was inherently unlikely and Finch ap- Continued KANSAS CITY ELEVATOR CO Respondent's records, as I relate below Spoeneman's testimony, on the other hand, contains an entirely plausi- ble scenario, and was sincerely given Spoeneman credibly testified-and I find-that he was not informed of his suspension until 6 o'clock on the morning of April 16, when he reported for work and found his timecard missing and was then informed by McDaniel and Barrack directly that he was being sus- pended Spoeneman states that he protested that his card playing was a "first offense" and did not warrant a sus- pension under the Company's rules-a statement which, Spoeneman says, was not contradicted by either wit- ness. i 8 Spoeneman also testified that he then asked McDaniel for a copy of the suspension letter, but that McDaniel replied: You'll have to wait around until the girls come in because I don't have a letter. Spoeneman testified that he then left the plant, rather than wait until the office employees ("the girls") were scheduled to arrive for work Crediting that undenied testimony of Spoeneman, and considering as well the April 16 date which McDaniel placed on the original suspension notice, it is clear that McDaniel could not have caused that notice to be prepared until, at the earli- est, some point on April 16 after Spoeneman had left the elevator to begin to serve out his suspension. Crediting Spoeneman further, after leaving the plant he telephoned office employee Vicky Guyer the same day and asked her to mail him a copy of the suspension notice. Guyer promised to do so, but when Spoeneman had still not received a copy of the letter by Monday, April 19, he again called Guyer, this time asking for not only the letter, but also for a photocopy of the "Enforce- ment Policy" in the Company's safety handbook. Guyer asked Spoeneman to wait on the line, then returned after a brief delay to state that Spoeneman would get a copy of the suspension letter, but that McDaniel had advised that Spoeneman already had a copy of the safety en- forcement policy. On April 20, Spoeneman received the above-quoted original suspension letter in an envelope bearing an April 19 postage meter date.19 This strongly shows-and I find-that even as late as April 19, Respondent's agents were still content with the original suspension notice which treated Spoeneman's card playing as a "first of- fense." It further suggests that it was not until sometime after the letter was mailed to Spoeneman on April 19 that someone in Respondent's management finally decid- ed to examine the original writing for consistency with the published safety enforcement policy. And, quite evi- dently, it was the discovery of the discrepancy between parently recognized this By the time Finch testified, Finch "recalled" that he had obtained the text of the original notice through the medium of a telephone call on the morning of April 16 to Louis Barrack Barrack never testified None of these versions is belie"able on this record as a whole 18 McDaniel never directly addressed this testimony, and Barrack was not called as a witness 18 G C Exh 8 Despite this, McDaniel continued to insist that a "cor- rected" version of the suspension notice was mailed to Spoeneman on April 16 51 the treatment of Spoeneman's card playing as a first of- fense and the imposition of a suspension which, under the published policy, was reserved only for "similar" second offenses which accounts for Respondent's eventu- al development of the doctored (or "amended" records) which appeared in Spoeneman's personnel file.20 What is clearest of all, however, from the credited record, is that McDaniel's and Finch's accounts were concoctions-all geared to attempt to mislead the trier of fact into believing that it had always been the intention of Respondent's agents to treat Spoeneman's card play- ing as a "repeat offense" which warranted the imposition of a disciplinary suspension; and that the "clerical error" on the original writing was promptly detected and cor- rected on April 16, only shortly after it had been pre- pared .2 t C. Analysis, Ultimate Findings, and Conclusions I have no difficulty in concluding that the record con- tains strong prima facie indications that Spoeneman was given a 3-day disciplinary suspension (rather than, at most, an oral reprimand for card playing) because of his union activities as they manifested themselves during the Union's organizing campaign and later, when Spoeneman clearly attempted in various ways to maintain a continu- ing union "presence" at the elevator during the period that Respondent has tested the Board's certification Thus, it is clear not only that Respondent knew of such activities, but also that Spoeneman was the target of con- siderable resentment for engaging in such activities, as evidenced by McDaniel's statement to Baxter after the election that "Don['s] . . butt is as good as gone."22 20 It may be that this discovery was made on April 19, prompted by Spoeneman's specific request to receive not only the suspension letter, but also a copy of the safety enforcement policies Such a finding would be consistent with the cover memo placed on Respondent's copy of the ultimate revision of the suspension notice (i e, G C Exh 4) which cover- ing memo is itself dated "April 19, 1982" and states TO AMMEND [SIC] PREVIOUS WARNING WHICH WAS A MISSTATEMENT DUE TO CLERICAL ERROR If this is so, then it would be probable that the discovery of the damaging discrepancy (or "misstatement due to clerical error") was not made until after someone had already placed the original writing in the mail to Spoeneman I would not place great stock in the date on that covering memo , however, given the virtually indisputable evidence that McDaniel back-dated his own signature on the "revised " notice to "April 16 " It is just as possible that all of this fiddling with the records did not take place until sometime later, perhaps triggered by Respondent 's receipt of Spoen- eman's unfair labor practice charge in the instant case, which he filed on the same date that he received Respondent's suspension letter , April 20 21 McDaniel's various versions are so internally contradictory and im- probable' that there is every reason to believe that he was consciously at- tempting to fabricate Particularly on the question when the alleged "clerical error" was discovered on the original suspension notice and then corrected, the stories told by both McDaniel and Finch are so mutu- ally inconsistent and at odds with Respondent's own records to warrant the inference that each was lying It is not within my province to judge whether perjury was committed It is my recommendation, however, that the Board , acting through its traditional agent for such purposes, the office of the General Counsel, refer the record in this proceeding to the appropriate United States Attorney for a determination whether to initi- ate perjury proceedings against either McDaniel or Finch or both 22 On brief (at 17) Respondent's counsel argues that McDaniel 's state- ment to Baxter "is too vague to prove anything " In this regard , counsel asks rhetorically "Who is Don? What does `as good as gone' mean's Gone where?" As Respondent admits, there was only one "Don" at Ele- Continued 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These features, coupled with the subsequent "second- step" disciplinary action against Spoeneman, allow the inference that the former prompted the latter. Of course, as Respondent stresses, if one focuses on the substantial passage of time between the election and the point in the following April when Spoeneman received the discipli- nary suspension, this would tend to weaken or attenuate the inference that Spoeneman' s union activities were causative factors in the disciplinary action. This is espe- cially so, as Respondent argues, when it is not disputed that Spoeneman was, in fact, engaged in a recognized form of employee misconduct by playing cards during worktime. With matters in this posture, and assuming, ar- guendo, that those latter factors would tend to bring the record back to, or near, a state of "equipoise" on the ul- timate question of discrimination, 23 I am nevertheless persuaded that Respondent's purported reliance on Spoeneman's card playing as the cause for the discipli- nary suspension was simply a pretext to mask an unlaw- fully discriminatory purpose. There is, first of all, the strong evidence that Respond- ent's agents have found it necessary to lie about the cir- cumstances leading to the issuance of the suspension notice to Spoeneman and have also found it necessary belatedly to "amend" their records to conform to their current legal position that Spoeneman was guilty of a "repeat" or "similar" violation involving "safety." These attempts to restructure the facts are, in themselves, highly suggestive of an attempt to conceal evidence of an unlawful purpose.24 Certainly, those efforts reflect an implicit admission by Respondent that the original sus- pension notice was inconsistent with Respondent's pub- lished safety enforcement policies. And, even absent such an admission, I would have no difficulty finding on this record that Spoeneman's card playing was not genuinely viewed by Respondent's agents as either a "safety" viola- tion or a violation which was " similar" in character to the matter which had occasioned his receipt of a warn- ing notice 6 months earlier As to the question whether Spoeneman's card playing involved a "safety" issue, Finch effectively conceded that it did not involve a safety threat for Spoeneman to be playing cards in his office (a regular worksite for him in any case) so long as Baxter was on the scale room floor As to Respondent's treatment of the card playing as "similar" to the type of violation attributed to Spoene- man 6 months earlier, there are plain indications that Re- spondent's agents did not in other circumstances treat card playing as "similar" to a previous "safety" infrac- tion. The clearest example is in Respondent's admitted treatment of Rodney Shelton Finch testified that an "ob- vious safety hazard" had been brought to his attention by the "safety manager" who reported that "several times" valor No I And if counsel truly believed that there was some innocuous alternative meaning to McDaniel's reference to Don's "butt" being "as good as gone," he would have been well advised to invite McDaniel at trial to spell it out For, absent a convincing alternative explanation, I find McDaniel's statement to be the plainest kind of expression that Re- spondent had determined by that early date to rid itself of Spoeneman 23 See the First Circuit's discussion in NLRB v Wright Line, supra, 662 F 2d at 904-905 24 Shattuck Denn Mining Corp, 151 NLRB 1328, 1336 (1965), enfd 362 F 2d 466, 470 (9th Cir 1966) grates were not being placed over holes on the tops of bins.25 In response, Finch stated that he instructed McDaniel to deal with it, and that McDaniel had, in turn, "brought that to the attention" of Rodney Shelton, the responsible employee Explaining further, Finch states that he received an additional report thereafter from the "safety manager" that the holes in the bins were still uncovered, causing Finch to make a personal inspection to verify this fact and then to query McDaniel and verify that McDaniel had earlier "instructed this man to put the grates over the holes." Upon receiving McDaniel's certification that Shelton had been warned about the matter beforehand, Finch states that he then authorized Shelton to receive a written warning (but not a disciplinary suspension) 26 It is significant that, Shelton's previous record of plain "safety"-related violations on more than one occasion notwithstanding, Finch and McDaniel did not view Shel- ton's later card playing infraction with Baxter as being "similar" in character to those earlier violations. Rather, as noted, McDaniel merely viewed this as a "first occa- sion" causing him to decide to "just chew them out, rather than writing them up." This is one more indica- tion that McDaniel had ulterior purposes in treating Spoeneman in a markedly different way when Spoene- man was similarly detected in a "first occasion" card playing infraction. And it gives the lie to any claim that Respondent's agents genuinely were inclined to treat card playing as "similar" in character to "safety"-type violations. For all of those reasons, and not being required in these matters to be a naif,27 I conclude that Respond- ent's professed reasons for suspending Spoeneman were not its true reasons. Clearly, a more probable explanation for those actions on this record was Respondent's unlaw- fully prompted desire to hasten Spoeneman's advance- ment through its progressive disciplinary system, all in accordance with a fixed determination reached after the Union's election victory ultimately to get rid of Spoene- man, as evidenced by McDaniel's admission more than 6 months earlier that Spoeneman's "butt is as good as gone." Where, as here, a single, unlawful purpose has been found to have influenced the discipline visited upon a union activist, Wright Line-type analyses do not even come into play 28 Even if, arguendo, Respondent could be said to have been influenced by "dual motives," how- ever, the same considerations set forth above require me to conclude that Respondent failed in its Wright Line burden of demonstrating that it would have taken the same action against Spoeneman even if he had never en- gaged in protected activities. Since Respondent has not come forward with enough evidence of innocent motiva- 25 As Finch explained "A man could fall down in there and hurt himself " 26 Even though, by Finch's admission, Shelton's violation was a repeat of a safety violation about which he had been "verbally" warned earlier, Finch did not permit Shelton to receive a disciplinary suspension upon discovery of that repeat violation because it somehow made a "differ- ence" to Finch that the first warning was merely "verbal " Tr 169 27 Shattuck Denn Mining v NLRB, supra, 362 F 2d at 470 28 251 NLRB at 1083-84 KANSAS CITY ELEVATOR CO tion even to bring the record back to a state of "equi- poise" on the ultimate issue of discrimination , I need not concern myself with the more subtle questions pending certiorari review by the Court in Transportation Manage- ment v. NLRB, supra, as to the precise nature of an em- ployer's burden after the General Counsel has made a prima facie case. CONCLUSIONS OF LAW 1, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and its unfair practices described below affect commerce. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By imposing a 3-day suspension from work without pay on its employee Donald Spoeneman, Respondent has discriminated against an employee with respect to the hire, tenure, or other terms and conditions of employ- ment of employees in order to discourage membership in a labor organization and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent violated the Act as al- leged in the complaint, I shall recommend that Respond- ent be ordered to cease and desist from unlawful behav- ior,29 that it make Donald Spoeneman whole, with inter- est, for the wages he lost as a result of his suspension without pay,30 that Respondent rescind and expunge from its records all copies of the disciplinary suspension notices which it issued 31 and take no further action against Spoeneman based on those notices or the incident to which they refer,32 and that Respondent post an ap- propriate notice and comply with its provisions. 29 Respondent's conduct directed at the Union 's most visible in-plant representative , and occurring during a period when Respondent was re- fusing to honor the Board 's certification of the Union as the unit employ- ees' bargaining representative, appears to have been cynically calculated to discourage further employee sympathy for or activities on behalf of the Union, as well as to move Spoeneman a critical second step down the path to eventual termination For these reasons, and because such viola- tions strike directly at the heart of employee rights under the Act, 1in- clude "broad" cease-and-desist language in my recommended Order 30 All amounts necessary to make Spoeneman whole are to be comput- ed in accordance with the formulas and policies established in F W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977) See aslso Isis Plumbing Co, 138 NLRB 716 (1962) 31 That is, all copies, including the variously "amended" versions 32 This is not to be construed as preventing Respondent from evenhan- dedly implementing and applying rules or restrictions on the use of work- time by employees 53 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed33 ORDER The Respondent, Kansas City Terminal Elevator Com- pany, Kansas City, Kansas, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from discriminating against em- ployees with respect to their hire, tenure, or other terms and conditions of employment in order to discourage membership in a labor organization, or in any other manner or by any other means interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Consistent with the "The Remedy," take the follow- ing affirmative action which is necessary to effectuate the purposes of the Act (a) Make its employee Donald Spoeneman whole, with interest, for wages he lost as a result of Respondent's un- lawful suspension of him without pay for 3 days (b) Rescind and expunge from its records all copies of disciplinary suspension notices which it issued against Spoeneman linked to his having played cards on April 15, 1982, and take no further action against Spoeneman based on those notices or the incident to which they refer. (c) Preserve and, on request, make available to the Board or its agents all payroll and other records neces- sary to compute the amounts necessary under this Order to make Spoeneman whole. (d) Post at its Elevator No. I the attached notice marked "Appendix."34 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 33 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 34 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "