VOLVO GROUP NORTH AMERICA, LLC

372 NLRB No. 27 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Volvo Group North America, LLC and Walter Evans. Cases 15–CA–179071, 15–CA–184912, 15–CA– 195183, and 15–CA–204842 December 14, 2022 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS KAPLAN, RING, AND PROUTY On September 20, 2021, Administrative Law Judge Sharon Levinson Steckler issued the attached supple- mental decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The Charg- ing Party filed a single document including both cross- exceptions with supporting argument and an answering brief to the Respondent’s exceptions.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Supplemental Decision and Order. On December 3, 2020, the Board issued its original decision in this case,3 in which it adopted in the absence of exceptions the judge’s dismissal of certain allega- tions,4 reversed the judge to find that the Respondent 1 Although titled as an answering brief, the Charging Party’s brief raises a number of arguments that would be properly categorized as cross-exceptions to the judge’s supplemental decision. As the Charging Party is appearing in this matter pro se, the brief was filed within the appropriate time frame for cross-exceptions, and no party has objected, we accept the brief as combined cross-exceptions with supporting ar- gument and an answering brief. See APS Production/A. Pimental Steel, 326 NLRB 1296, 1297 (1998) (observing that “[t]he Board typically has shown some leniency toward a pro se litigant’s efforts to comply with our procedural rules.”). However, we have not considered argu- ments advanced in the Charging Party’s brief that address issues out- side the scope of the judge’s supplemental decision. 2 The Respondent and Charging Party have implicitly excepted to some of the judge’s credibility findings. The Board’s established poli- cy is not to overrule an administrative law judge’s credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care- fully examined the record and find no basis for reversing the findings. 3 370 NLRB No. 52 (2020) (Volvo I). Member Prouty did not par- ticipate in Volvo I. 4 In the absence of exceptions, the Board adopted the judge’s dis- missal of the allegations that the Respondent (1) violated Sec. 8(a)(3) by discharging Evans in May 2016, (2) violated Sec. 8(a)(5) by de- creasing the time in which employees could prepare for breaks and lawfully disciplined Charging Party Walter Evans in March 2016, and severed and retained allegations that the Respondent violated Section 8(a)(3) and (1) by suspend- ing and subsequently discharging Evans. The suspension had been resolved by a grievance settlement, and the discharge was upheld by an arbitrator. Accordingly, the Board issued a notice to show cause why the related un- fair labor practice allegations should not be remanded to the judge for further proceedings in light of the Board’s decision in United Parcel Service, Inc., 369 NLRB No. 1 (2019) (UPS) (reinstating Olin/Spielberg standard for post-arbitral deferral and Alpha Beta standard for deferral to pre-arbitral settlements), affd. in relevant part sub nom. Atkinson v. NLRB, No. 20–1680, 2021 U.S. App. LEXIS 20264, 2021 WL 2850565 (3d Cir. July 8, 2021), affd. on rehearing 2021 U.S. App. LEXIS 33417, 2021 WL 5204015 (3d Cir. Nov. 9, 2021). No party filed a response to the Notice to Show Cause, and the Board remanded the case to the judge for a supplemental deci- sion addressing the allegations concerning Evans’ May 2016 suspension and March 2017 discharge under the deferral standards adopted in UPS. We affirm the judge’s deferral findings, for the reasons stated in her supplemental decision.5 Specifically, we affirm the judge’s finding that deferral to the settlement resolving the grievance regarding Evans’ May 2016 sus- pension is appropriate under the standard for deferral to pre-arbitral settlement agreements adopted in UPS and set forth in Alpha Beta Co., 273 NLRB 1546 (1985), review denied sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987).6 We also affirm the judge’s finding that more stringently enforcing breaktimes, and (3) violated Sec. 8(a)(4) by discharging Evans in March 2017. 5 In her answering brief to the Respondent’s exceptions, the General Counsel argues, for the first time in these proceedings, that the Board should overrule UPS and reinstate the arbitral deferral standards set forth in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), rev. denied sub nom. Beneli v. NLRB, 873 F.3d 1094 (9th Cir. 2017). We decline to address this argument because the General Counsel did not raise the issue in a timely fashion. See Manno Electric, 321 NLRB 278, 278–279 fn. 10 (1996), enfd. 127 F.3d 34 (5th Cir. 1997). We note that in Beneli, the court’s review was limited to whether the Board in Babcock & Wilcox erred by declining to apply the new deferral standards retroactively; the court did not review the new deferral stand- ards themselves. 6 The judge correctly notes that in Volvo I, the Board adopted in the absence of exceptions the judge’s dismissal of the allegation that Ev- ans’ May 2016 discharge violated Sec. 8(a)(3). Thus, that allegation was not before her on remand. Nevertheless, in her supplemental deci- sion, the judge finds that deferral to the settlement that resolved Evans’ grievance over his May 2016 discharge is not warranted because the allegation was found to be without merit. We disavow this finding, both because that issue was not before the judge for decision and be- cause her rationale was contrary to law. See United Hoisting & Scaf- folding, Inc., 360 NLRB 1258, 1260 (2014) (observing that deferral is a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 deferral to the arbitrator’s decision upholding Evans’ March 2017 discharge is not appropriate under the stand- ard for deferral to arbitral decisions adopted in UPS and set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).7 For the reasons set forth below, however, we reverse the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging Evans in March 2017.8 I. FACTS The Respondent operates a large central distribution warehouse for truck parts in Byhalia, Mississippi, and Local 2406, International Union, United Automobile Aerospace and Agricultural Implement Workers of America (the Union) represents its warehouse workers. The Respondent and the Union were parties to a collec- tive-bargaining agreement effective through 2020, which included, among other provisions, work rules, a progres- sive discipline policy, and grievance and arbitration pro- cedures. Walter Evans was employed by the Respondent at its Byhalia warehouse as a warehouse operator. Using various types of motorized equipment, he was responsi- ble for transporting arriving truck parts and placing them on shelves or picking truck parts off shelves for shipping out of the warehouse. Evans’ disciplinary history prior to March 2017 included a December 2015 verbal re- minder for failing to comply with safety rules and failing to wear personal protective equipment, a February 2016 threshold issue that must be decided before addressing the merits of the allegations at issue). 7 One of the factors the Board considers under UPS is whether “the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.” Olin, 268 NLRB at 574. Here, the arbitrator prohibited the parties from submitting evidence of Evans’ protected activity prior to his March 2017 discharge or evidence concerning the Respondent’s alleged animus toward those activities, and the arbitrator limited the arbitral decision to whether Evans was discharged for just cause under the collective-bargaining agreement. On these facts, we cannot find that the arbitrator was presented generally with the facts relevant to resolving the allegation that Evans’ March 2017 discharge violated the Act. See Ryder/P.I.E. Nationwide, Inc., 278 NLRB 713, 717 (1986) (finding no deferral to arbitration where evidence bearing on the statutory issue was not presented to the arbitrator), enfd. in rele- vant part 810 F.2d 502 (5th Cir. 1987). Member Ring acknowledges and applies Ryder/P.I.E. Nationwide and therefore joins in affirming the judge’s finding that deferral to the arbitral decision regarding Evans’ March 2017 discharge is inappropri- ate. However, he believes that the Board should consider, in a future appropriate case, whether Ryder/P.I.E. Nationwide is consistent with the Olin/Spielberg standard. Member Prouty expresses no view regarding the changes to deferral standards announced in UPS but agrees that in the instant case deferral to the pre-arbitral settlement is proper. He also agrees that deferral to the arbitrator’s award upholding Evans’ discharge is not proper. 8 As stated in his partial dissent, Member Prouty would affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(3) and (1) by discharging Evans. written reminder for careless or poor workmanship, and a March 2016 written warning for wasting time by being in the breakroom before break time. Since we have af- firmed the judge’s determination that deferral to the par- ties’ grievance settlement concerning Evans’ May 2016 suspension is appropriate, his disciplinary history also includes the 30-day suspension that the parties agreed to in resolving that grievance. With that suspension, the next step for Evans under the contract’s progressive dis- cipline framework was discharge. In March 2017, Evans was working “outbound,” oper- ating a picker truck to pick parts off shelves for shipment out of the warehouse. On March 16, 2017, the Respond- ent held a meeting with “outbound” employees to an- nounce changes to its break-buzzer system, effectively decreasing the time in which employees could prepare for breaks. After the change was announced, several employees, including Evans, asked questions or spoke up against the change during the meeting. Evans asked the managers at the meeting if the new system was a change in the employees’ terms and conditions of employment and questioned whether the change was within manage- ment’s discretion. After the employees were dismissed from the meeting, Evans went into the warehouse, carry- ing his protective gear. Before Evans reached his equipment, Managers Onur Orcun and Kevin Bush walked up to him, and Bush said Evans should not be carrying his protective gear but should have it on.9 The next day, Evans backed his picker truck out of a one-way-traffic aisle into a main aisle with two-way traf- fic, in violation of the Respondent’s safety rules. Several managers and supervisors were holding a morning meet- ing in the main aisle approximately 80 feet from where Evans backed out. Bush pointed out that someone was backing out of an aisle. Bush and two supervisors went to investigate and found that it was Evans. Questioned, Evans admitted that he backed out of the aisle but said he did so because the aisle was blocked by equipment and to prevent trapping another employee in the aisle. After conducting a thorough investigation into the in- cident and collecting statements from both sides, the Re- 9 There is no allegation that any aspect of this encounter violated the Act, nor does any evidence support our dissenting colleague’s charac- terization of Bush’s instruction as a “taunt,” much less that it represent- ed a threat. The meeting occurred in the town hall area, adjacent to the parking and charging area for employees’ motorized equipment. After the meeting, employees and supervisors walked into the warehouse and into the charging area to begin work. The encounter appears to have arisen from yet another instance of Evans neglecting to follow the Respondent’s rules. There is no evidence the Respondent described or viewed Evans’ behavior that day as “disruptive.” Notably, no disci- pline was imposed, even though the encounter followed directly on the heels of Evans’ protected activity during the break-buzzer meeting. VOLVO GROUP NORTH AMERICA, LLC 3 spondent discharged Evans on March 20, 2017, in ac- cordance with the progressive discipline policy. II. ANALYSIS Applying Wright Line,10 the judge found that the Re- spondent violated Section 8(a)(3) and (1) by discharging Evans in March 2017. Under the Wright Line frame- work, the General Counsel must prove by a preponder- ance of the evidence that animus toward an employee’s protected activity was a substantial or motivating factor in the adverse employment action. In determining that the General Counsel met her initial burden, the judge found, and we agree, that Evans engaged in protected concerted activity by raising concerns with other em- ployees during the meeting about changes to the break- buzzer system, and the Respondent knew as much. The dispositive question here is whether the General Counsel proved that the Respondent bore animus towards Evans’ protected activity. The judge found that she did. We disagree. As more fully set forth in her first decision, the judge relied on three factors to find animus: timing, the prior discipline issued to Evans in March 2016, and dis- parate treatment.11 For the following reasons, we find that none of these factors provides a reasonable basis for inferring animus toward Evans’ protected activity. Unlike the judge, we find the timing of Evans’ dis- charge inconclusive. Although the discharge occurred just four days after Evans and other employees concert- edly questioned management about the Respondent’s decision to change the break-buzzer system, the Re- spondent’s decision to discharge Evans came just three days after he committed a flagrant safety violation in plain sight of management. See Syracuse Scenery & Stage Lighting Co., 342 NLRB 672, 675 (2004) (finding that where discipline is issued close in time to disci- plined-for misconduct, the fact that it was also issued close in time to protected activity is “too weak a founda- tion upon which to base a finding of pretext”). Further, in Volvo I, the Board found that “the Respondent encour- aged employees to raise work-related issues and re- sponded appropriately, and without animus, when valid 10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 11 In her supplemental decision, the judge provided only a brief reci- tation of her previous findings regarding the March 2017 discharge because she believed, incorrectly, that in Volvo I, the Board “left intact the conclusion that the Respondent committed a Sec[.] 8(a)(3) viola- tion” when it discharged Evans in 2017. However, the Board in Volvo I did not address the merits of this allegation. It severed the allegation and remanded it to the judge for an initial determination of whether it was appropriate to defer to the arbitrator’s decision under UPS. Having found deferral inappropriate, we are left to decide the March 2017 discharge allegation on the merits. concerns were voiced.” 370 NLRB No. 52, slip op. at 3. Here, Evans and other employees raised concerns about the shortened time to prepare for breaks, management answered their questions, and those responses did not reflect any animus towards the employees for voicing their concerns. It was only after Evans committed a fla- grant violation of the safety rules that the Respondent decided to discharge him, which was the next step under the contractual progressive discipline policy. For these reasons we find that the timing of Evans’ discharge does not support a finding of animus.12 In her first decision, the judge found that the Respond- ent unlawfully disciplined Evans in March 2016, and she relied on that determination to find that unlawful animus also infected the March 2017 discharge decision. Evans would have been eligible for discharge for the March 2017 safety violation if he were properly at the fourth and last step of the progressive discipline policy, and Evans would have been at the fourth step only if the March 2016 discipline were lawful. Having found the March 2016 discipline unlawful, the judge found the March 2017 discharge unlawful in part because it “[stood] on the shoulders” of the March 2016 discipline. Id., slip op. at 27. But the Board in Volvo I reversed the judge to find that the Respondent did not violate the Act when it disciplined Evans in March 2016. See id., slip op. at 3–4. Accordingly, Evans was at step four of the progressive discipline policy and was properly subject to discharge for further misconduct, which he committed when he backed his picker truck out of a one-way aisle into a two-way-traffic aisle in violation of the Respond- ent’s safety rules. The sole remaining evidence of animus relied on by the judge is the Respondent’s purported disparate treat- ment of Evans. In support of this finding, the judge not- ed that no other employee had previously been disci- plined for backing out of an aisle. Several employees testified that other employees also backed out of aisles prior to Evans’ incident. However, there is no evidence the Respondent ever saw or knew of any prior backing- out infractions. The evidence does show that the Re- spondent routinely gave out all levels of discipline for safety-rule violations, including for traveling on the wrong side of an aisle and traveling in an aisle too quick- ly, and the discipline given to Evans was consistent with the progressive discipline policy. See Bridgestone Fire- stone South Carolina, 350 NLRB 526, 529 (2007) (find- 12 Without more, the timing of the discharge in relation to the break- buzzer meeting appears to be mere coincidence. Indeed, in dismissing the related Sec. 8(a)(4) allegation in her first decision, the judge found that the timing of the discharge was merely “a function of when Evans backed out.” Id., slip op. at 28. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ing no unlawful discipline when employer followed its disciplinary system and employee engaged in a severe safety violation). The Respondent also disciplined three employees for backing out of an aisle after Evans was disciplined for doing so, and no evidence supports the judge’s colorful speculation that these disciplines “smack of trying to close the barn door after the cows are let out.” See Volvo I, 370 NLRB No. 52, slip op. at 27. Rather, the evidence as a whole shows that the Respond- ent consistently disciplined employees for instances of backing out of an aisle of which it was aware. Our dissenting colleague contends that the discharge was unlawful. In support, our colleague cites evidence that the Respondent’s managers expressed annoyance with the manner in which Evans voiced complaints dur- ing meetings in 2015 and early 2016. The dissent also contends that the Respondent treated Evans disparately in the past and in discharging him for his safety violation in March 2017. We respectfully disagree. First, the Board found in Volvo I that the managers’ statements cited by our colleague, concerning conduct that occurred in 2015 and early 2016, did not constitute evidence of animus with respect to the contemporaneous discipline addressed in that decision. 370 NLRB No. 52, slip op. at 3–4. Indeed, our colleague advances the same arguments in this regard that the Board rejected in Volvo I. We reject the dissent’s attempt to revisit that issue now for the reasons stated there. In any event, those ex- pressions of annoyance are too remote in time to consti- tute substantial evidence of animus with respect to Ev- ans’ questions during the break-buzzer meeting in 2017.13 Second, we disagree with our colleague that disparate treatment has been shown here. Evans’ 2016 since- rescinded suspension for dropping windshields, on which the dissent relies, was resolved by a grievance settlement, to which we have deferred. Our colleague agrees that deferral was appropriate in this regard. In our view, go- ing behind that settlement to determine whether the agreed-upon discipline was or was not consistent with the Respondent’s practice would be inconsistent with the decision to defer to the settlement. We therefore decline 13 Although Buckingham testified that Evans was disruptive “plenty of times,” as our dissenting colleague notes, Buckingham was no longer Evans’ supervisor after Evans returned to work on August 1, 2016. At that time, Evans returned to the first shift, where his supervisors were Mark Leftwich and Bobby Clark. The judge found Evans had “no problems” with either of those supervisors. Furthermore, Evans testi- fied that from his reinstatement until his termination, he could not recall any management actions that could be characterized as hostile. Perhaps even more critically, the judge found no evidence that the Respondent was aware of his union activities during this time. to do so.14 We also disagree with our colleague that Ev- ans was treated disparately when he was disciplined for backing out of an aisle. Backing out of aisles was pro- hibited by the Respondent’s safety rules, and the record shows that the Respondent disciplined employees for instances of backing out of aisles of which it was aware. Our colleague, like the judge, infers that the Respond- ent’s managers and supervisors must have been aware that employees backed out of aisles because rank-and-file employees knew as much. But the General Counsel bore the burden of proof on this issue, and she failed to meet it. Moreover, it is entirely plausible that fellow employ- ees would be aware of workplace misconduct of which managers and supervisors are not. Far more employees work in the warehouse than do managers and supervi- sors, and these events took place in a one-million-square- foot workspace. In sum, there is simply insufficient evidence to con- clude that the Respondent harbored animus toward Ev- ans’ protected concerted activity. In light of the forego- ing, we find that the judge erred in concluding that the General Counsel met her initial burden under Wright Line of proving that Evans’ March 2017 discharge was discriminatorily motivated. Therefore, we dismiss the allegation that the Respondent violated Section 8(a)(3) and (1) by discharging Evans on March 20, 2017.15 ORDER The remaining complaint allegations are dismissed. Dated, Washington, D.C. December 14, 2022 ______________________________________ Marvin E. Kaplan, Member 14 Our dissenting colleague notes that the grievance settlement did not contain a non-admissions clause, and he correctly states that when an unfair labor practice case is settled without a non-admissions clause, the Board has considered the settled conduct as background evidence to determine motive in a subsequent case. But no precedent supports the application of that principle to a grievance settlement. For all of the foregoing reasons, we decline to construe the grievance settlement as an admission of unlawful conduct. Further, whether, as our colleague asserts, the parties’ settlement should have placed Evans at the third step of the contractual progres- sive discipline system, rather than at the fourth step, is irrelevant for purposes of our analysis. The parties agreed to place him at the fourth step, and we have found that the settlement agreement was fair and merits deferral. Thus, in our analysis of Evans’ March 2017 discharge, we find he was properly, and by agreement of the parties, at the fourth step of progressive discipline. 15 Because we have dismissed this allegation, we need not address the disconnect between the judge’s finding that Evans was discharged for protected concerted activity—not union activity—during the March 16, 2017 meeting of “outbound” employees and her conclusion that the discharge violated Sec. 8(a)(3). VOLVO GROUP NORTH AMERICA, LLC 5 ________________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER PROUTY dissenting in part. Contrary to my colleagues, I would find that the Re- spondent violated Section 8(a)(3) by discipling and dis- charging Walter Evans on March 20, 2017. Background The Respondent operates a 1 million square foot ware- house where it receives, stores, and ships truck parts. The warehouse has three main aisles that accommodate two-way traffic and a multitude of narrower one-way aisles that intersect the main aisles. Warehouse employ- ees operate reach trucks with forklifts and operating plat- forms called order pickers. “Inbound” employees move merchandise from a staging area to storage racks tens of feet high, and “outbound” employees retrieve merchan- dise from racks for shipment. Using their individual em- ployee identification codes, employees scan the picked and pulled merchandise. Supervisors and managers fre- quently check scan logs to measure “gap time,” the peri- od between picks and pulls, in order to assess employee productivity. Gap time often occurs when other vehicles are in the storage aisle making it impossible to get to a particular shelf. An employee with too much or unex- plained gap time may be subject to discipline for “wast- ing time.” United Auto Workers Local 2406 represents the ware- house employees. The collective-bargaining agreement between the Union and the Respondent includes a 5-step progressive discipline system: (1) verbal reminder with a notation to the record; (2) written reminder; (3) written warning; (4) 30-day suspension; and (5) termination. Discipline issued more than 18 months prior “falls off” and is not counted for purposes of determining what step of the discipline system an employee has reached. The list of infractions that may warrant progressive discipline includes failure to comply with safety rules. Certain oth- er violations, such as threatening conduct and insubordi- nation, will generally warrant “a minimum” of a one- week unpaid disciplinary layoff. Serious violations such as theft and fighting are grounds for immediate dis- charge. The Respondent’s list of safety rules prohibits, among other things, operating vehicles in an unsafe manner and backing into main two-way traffic aisles. When rule violations occur, employees might be told to report for retraining regarding the operation of their equipment in lieu of discipline.1 Onur Orcun was the director of the Byhalia warehouse. Kevin Bush, Sr. was the official inbound manager at rel- evant times. While working as the acting inbound man- ager, six shift supervisors reported to Bush, including Robert Buckingham. Evans was a 3-year employee and vocal union com- mitteeman who filed numerous grievances on behalf of his colleagues (and himself) and expressly challenged the Respondent’s changes to employees' terms and condi- tions of employment. He grieved holiday and weekend overtime and nonunit employees’ performance of unit work. According to team leader Arthur Braggs, Evans frequently talked to colleagues about union rights. His union activities were well-known to managers, including supervisor Buckingham, who described Evans as “dis- ruptive” and stated that Evans “asked questions basically to entice the crowd, trying to make things controversial.” Even though Buckingham testified that it was Evans’ manner and not the subject matter of the complaints that irritated him, he also acknowledged that Evans’ “disrup- tions” in meetings included complaints that were rooted in the collective-bargaining agreement and pertained to other employment conditions. It was against this backdrop, on March 16, 2017, that Orcun and Bush announced at a pre-shift meeting that the Respondent was reducing the pre-break buzzer time from 5 minutes to three minutes in order to increase productivity.2 Employees balked at the announcement. Evans’ coworkers complained that they were already dealing with overcrowded restrooms and a shortage of microwaves. Evans, however, was the only employee who asked whether “under the collective bargaining agreement isn’t this a material item that needs to be bar- gained for, and that a request to bargain needs to be filed or should be filed in regard to this change of past practic- es and policies.” Evans also challenged Bush’s assertion that the decision was within management’s discretion. When the shift meeting ended, Orcun and Bush ap- proached Evans as he was headed to his vehicle on the warehouse floor and Bush admonished him that he should be wearing his protective gear rather than carry- ing it. The day after Evans raised the specter of a violation of the Act, he drove into an aisle that was blocked by a spill or accident and attempted to back his vehicle out of the 1 New warehouse employees receive three days of training, and em- ployees who have been off the job for awhile also receive a few hours of retraining. 2 The prebreak buzzer marked the period when employees would park and/or charge their vehicles and walk to the breakroom. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 aisle. A number of managers, including Bush and Buck- ingham, were meeting about 80 feet away and observed Evans backing out of the aisle in violation the safety rules. Two of them went to Evans’ location and after advising him that his maneuver was unsafe and would need to be dealt with, allowed him to back up his vehicle. Evans, who was already at the fourth step of the progres- sive discipline system, was terminated on March 20 for backing out of the aisle. Analysis Contrary to my colleagues, I find that the General Counsel carried her initial burden to prove that union activity was a motivating factor in Evans’ discharge. Under any iteration of the Wright Line framework, Evans engaged in regular concerted protected and union activity much to the Respondent’s knowledge and hostility.3 The Respondent’s supervisors and managers were well aware of his status as a committeeman, his filing grievances on behalf of himself and others, and his repeated question- ing of management decisions in the context of the collec- tive-bargaining agreement at shift meetings. The Respondent’s purported annoyance solely with Evans’ manner rather than the nature of his activity is belied by communications and correspondence among managers and human resources and labor relations repre- sentatives, as well its treatment of him in comparison with other employees. To begin, supervisor Buckingham acknowledged that he considered Evans to be disruptive because he regularly attempted to stir employees up at shift meetings over matters related to safety, the collec- tive-bargaining agreement, and employee rights. The record does not support my colleagues’ view that Evans’ conduct in meetings and managers’ description of his conduct as “disruptive” were limited to the period “late 2015 and early 2016.” Buckingham testified that Evans was disruptive in pre-shift meetings "plenty of times." Similarly, team leader Arthur Braggs testified that Evans brought up issues like assignment of overtime at pre-shift meetings and complained to anyone who would listen about violations of employee rights. In addition, when asked whether he and Buckingham commiserated about Evans, he testified that on occasion Buckingham told him Evans was “cutting up” in meetings “again,” and “getting loud” and “speaking out.” Thus, the Respond- ent’s annoyance at Evans’ protected concerted activity is neither too remote in time from the March 2017 disci- 3 Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983) pline nor subsumed by the Board’s dismissal of the March 2016 allegation. In any event, as the judge observed, “disruptive” is a euphemism that some employers use for “unhappiness with the employees’ propensity to talk to other people and to stir other employees and to, essentially, try to get them interested in discussing the working conditions . . . .” Giant Prideco, L.P. d/b/a Tubular Corp. of Ameri- ca, 337 NLRB 99, 105 (2001). As Buckingham admitted in specific reference to Evans’ claiming in meetings that the Respondent was in violation of various rules or procedures: “I don't like disruptions in my meeting.” Additionally, Human Resources Director Leslie Thompson noted in correspondence with Labor Relations Manager Curt Youngdale and Bush that Evans continued be “disruptive” as they monitored his discipli- nary record and his challenges to the discipline he re- ceived for dropping windshields. It is also telling that at the conclusion of the March 16 shift meeting, in which Evans challenged the Respondent’s authority under the collective-bargaining agreement to unilaterally reduce the pre-break buzzer time, Orcun and Bush approached Evans as he was headed to his vehicle and told him to put on the safety equipment he was carrying. That was more than an innocuous advisory; it was a taunt, given that Evans had previously received a warning for failing to wear his safety equipment, as well as a not-so veiled threat that the Respondent would be watching Evans.4 In addition, by itself, the motive for the Respondent’s final discipline terminating Evans is suspect. Simpson also testified that pickers backed out of aisles every day and acknowledged that he had done so regularly when an aisle was obstructed by other pickers. Glenn Dobson, a long-term employee, union chair, and certified trainer who served on the Respondent’s safety committee, testi- fied similarly. Dobson saw employees backing their vehicles out of aisles every other day, if not daily, and that he, too, did so on occasion. He admitted that back- ing up was a violation of safety rules, but said that in practice, employees were instructed to back up slowly and blow their horns when doing so. As a safety trainer, Dobson was never asked to retrain an employee for back- ing his vehicle out of an aisle. Neither Simpson nor Dobson recalled supervisors or managers being present 4 My colleagues correctly observe that there is no allegation that any aspect of this encounter violated the Act, but I strongly disagree with their view that the encounter reads as neither a taunt nor threat. My colleagues ignore that the incident occurred when and because Orcun and Bush approached Evans at the conclusion of the shift meeting where Evans had engaged in more of what management considered “disruptive” behavior, in this case, challenging their authority under the collective-bargaining agreement. VOLVO GROUP NORTH AMERICA, LLC 7 when they witnessed coworkers backing out of aisles or did it themselves. The judge credited their testimony that it was common practice and found, as I do, that it defies belief to think that supervisors and managers were not aware of the practice. Prior to Evans’ termination, no employee had been disciplined for backing out of an aisle. These facts, along with the other indicia of animus described above, establish that the Respondent harbored animus toward Evans sufficient to meet the General Counsel’s Wright Line burden. Moreover, the credited evidence demonstrating the frequent, unpunished prac- tice of backing out of aisles, a practice of which the Re- spondent was reasonably found to be aware, and for which it had never before disciplined any employee, es- tablishes that the Respondent’s defense that it terminated Evans for a serious safety violation was pretextual. See United Rentals, Inc., 349 NLRB 190, 198 (2007).5 Because the evidence as a whole establishes that the reasons given for the termination are pretextual, the Re- 5 Furthermore, the initial decision to suspend Evans for 30 days in May 2016 for the windshield mishap was extraordinary, and indicative of animus. Robert Simpson, a former employee and union steward who represented Evans, testified that during his 8-year tenure, pickers dropped merchandise all the time, that absent other circumstances it was considered an accident as opposed to negligence, and that he had never seen an employee written up for it. As part of an informal set- tlement with the Union, the Respondent ultimately revoked the 30-day suspension it gave Evans for dropping the windshields but suspended him for his profane comments to Bush when he issued the suspension. The initial decision to suspend Evans did not comport with Young- dale’s advice that managers first check to make sure the Respondent issued discipline that was consistent with other similar incidents. That Evans ultimately was not suspended for the dropped windshield inci- dent due to a grievance settlement is irrelevant. The point is that the Respondent treated him differently. See St. Mary's Nursing Home, 342 NLRB 979, 980 (2004) (quoting Black Entertainment Television, 324 NLRB 1161, 1163 (1997)) ("the Board has long held that '[e]vidence involved in a settled case may properly be considered as background evidence in determining the motive or object of a respondent in activi- ties occurring either before or after the settlement, which are [currently] in litigation.'"), affd. sub nom. NLRB v. St. Mary's Acquisition Co., 240 Fed. Appx. 8 (6th Cir. 2007); Steves Sash and Door Co., 164 NLRB 468, 476 (1967), enfd. in relevant part, 401 F.2d 676, 678 (5th Cir. 1968). My colleagues cite no authority for their view that this principle should not apply to grievance settlements. Significantly, the settlement does not contain a non-admissions clause. Cf. Diamond Electric Mfg. Corp., 346 NLRB 857, 858–859 (2006). More importantly perhaps, by disregarding the windshields incident, my colleagues overlook an important point regarding the sequence of events chronicled in the record: Had Evans not been unfairly disci- plined for dropping the windshields, no disciplinary meeting would have taken place, Evans would not have had the confrontation with Bush, which resulted in a discharge, subsequently reduced through settlement in the grievance procedure to a 30-day suspension, and he, therefore, would not have advanced to the fourth step of progressive discipline. Thus, the initial suspect decision to suspend Evans for dropping the windshields generated a crucial step in Respondent’s application of the progressive discipline system to discharge Evans less than one year later. spondent has failed by definition to show that it would have taken the same action for those reasons even absent Evans’ union activity, and thus there is no need to per- form the second part of the Wright Line analysis. See, e.g., Golden State Foods Corp., 340 NLRB 382, 385 (2003). Accordingly, I would find that the Respondent violated Section 8(a)(3) and (1) by discharging Evans.6 Dated, Washington, D.C. December 14, 2022 ______________________________________ David M. Prouty, Member NATIONAL LABOR RELATIONS BOARD William Hearne, Esq., for the General Counsel.. Charles P. Roberts, III, Esq., counsel for Respondent SUPPLEMENTAL DECISION SHARON LEVINSON STECKLER, Administrative Law Judge. The Board remanded two issues from this case for a determina- tion of whether its change in deferral policies affected the out- come of the Charging Party Walter Evans’ grievance settlement and his subsequent discharge arbitration. Volvo Group North America, LLC, 370 NLRB No. 52, slip op. at 4-5 (2020). The Board called for retroactive application of a change in deferral policy. United Parcel Service, Inc., 369 NLRB No. 1 (2019) (UPS), partially remanded (unpub.) sub nom. Atkinson v. NLRB¸ __ Fed.Appx. __, 2021 WL 2850565 (3d Cir. July 8, 2021). The Board issued an Order to Show Cause why the two is- sues should not be remanded to the administrative law judge. Neither party responded. As a result, on March 2, 2021, the Board remanded the two issues to me: Whether to defer to the parties’ resolution of Evans’ May 2016 termination to a 30-day suspension; and, whether to defer Evans March 2017 termina- tion to an arbitrator’s determination. I requested a briefing schedule from the parties, which resulted in General Counsel and Respondent Volvo Group North America (Respondent) submitted timely briefs. In my earlier decision, I included a 6 My colleagues allude to a “disconnect” between the judge’s find- ing that Evans was discharged for protected concerted activity and her conclusion that the discharge violated Sec. 8(a)(3). As I have ex- plained, the evidence supports the conclusion that Evans was terminat- ed for his union activity, which is a violation of Sec. 8(a)(3), and a derivative violation of Sec. 8(a)(1). Bemis Co., 370 NLRB No. 7, slip op. at 1 fn. 3 (2020); Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at 14 (2018), enfd. 976 F.3d 30 (D.C. Cir. 2020). But his activity for which he was fired was, in any event, protected and concerted. Notably, the complaint alleges that Evans’ termination was both a violation of Sec. 8(a)(3) and an inde- pendent violation of Sec. 8(a)(1). Given the framing of the complaint, the judge’s finding and conclusion are not inconsistent or inaccurate, and do not manifest a disconnect. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 discussion on credibility of the witnesses, which for the pur- poses of these issues, was left intact. See Volvo, 370 NLRB No. 52, slip op. at 1 fn. 1. I make no changes or additions to the credibility findings. Based upon the Board’s decisions in UPS, supra, and Volvo, supra, and careful consideration of the transcript and parties’ briefs, I find that deferral to the grievance settlement for the 8(a)(3) suspension is warranted. However, deferral to the arbi- trator’s decision, denying Evans’ March 2017 termination grievance, is not recommended because the arbitrator did not consider any of the facts related to the unfair labor practice. I. FINDINGS OF FACT The facts included here show a review of previous findings and are presented for the ease of the reader. Respondent oper- ates a central distribution warehouse for truck parts in Byhalia, Mississippi. Although this facility was relatively new, much of its work resulted from closing its facility in Memphis, Tennes- see, where industrial workers, including the warehouse and clerical workers were represented by Local 2406, International Union, United Automobile Aerospace and Agricultural Imple- ment Workers of America (the Union). This bargaining rela- tionship continued at the Byhalia facility. At the time of hear- ing, Respondent employed approximately 500 persons working in this location. The collective-bargaining agreement at issue was effective December 17, 2010, through December 16, 2020. (Jt. Exh. 1.) The Agreement prohibits any form of discrimination or re- straint by either party against any employee due to membership or lack of membership in the Union. (Id. at 51, Art. 27, Sec. 2.) Section 2 of the Agreement provides that management has the right to hire terminate, promote or discipline for just cause and to maintain discipline and efficiency of employees. Re- spondent documents discipline in disciplinary action reports (DARs). Discipline for any employee who has seniority can only be disciplined, suspended or discharge for just cause. (Jt. Exh. 1 at 37, Art. 19, Sec. 1.) The Agreement includes grievance and arbitration provi- sions. Article 20, Section 4 states an arbitrator can only deal with issue(s) presented to him if fully grieved. The arbitrator does not have jurisdiction or authority to change the Agree- ment’s provisions “or to arbitrate away in whole or in part any provision of the Agreement either directly or indirectly, under the guise of interpretation.” The arbitrator’s decision is final and binding. The arbitrator also is restricted to making certain findings: In rendering a decision involving discipline or discharge be- cause of an alleged violation of a previously published com- pany rule of employee conduct and attendance, the arbitrator will be restricted to deciding only whether or not the employ- ee did in fact violate a reasonable rule. (Jt. Exh. 1 at 40–41.) Respondent employed Evans from August 2014 until March 2017, when he was terminated. He first was employed in Re- spondent’s Columbus, Ohio facility and then transferred to the Byhalia facility. His duties included operating equipment, such as forklifts, reach trucks and orders pickers, to put away parts or to remove parts from shelving. He worked inbound on the third shift from June 2015 until May 2, 2016. His supervisor at first was only Robert Buckingham; later Arnold Ayikwei was assigned as a supervisor to the area. Six months later, Dave Quarles also supervised him on the third shift. Evans’ team lead on the third shift was Arthur Braggs. The inbound manager at the beginning was Don Mouledoux. In August 2016, Evans began working a first shift outbound forklift position. He was working in that area when he was terminated for the second time in March 2017. Evans primarily operated a reach truck but also operated the order picker. For Evans’ outbound day shift assignment, Brad Horncut was the team lead; Mark Leftwich was the supervisor; and the second- ary outbound supervisor was Bobby Clark. II. EVANS’ UNION ACTIVITIES Since transferring to the Byhalia facility, Evans participated in numerous union activities. He was a member of the Union. He filed grievances regarding holiday overtime (GC Exh. 4, dated 7/6/15) and weekend overtime hours (GC Exh. 5, dated 11/15/15). Management responded to each of the grievances. (GC Exh. 4, 6.) The latter grievance, labeled 2015-17, also included allegations that management, particularly supervisor Robert Buckingham, gave disciplinary sanctions in an arbitrary matter and alleged safety rule violations. Evans hand-delivered this grievance to Manager Mouledoux. (GC Exh. 5; Tr. 188.) Buckingham denied the grievance on January 6, 2016. (GC Exh. 6.) However, the grievance eventually settled, with two persons receiving a monetary award for the overtime. Regard- ing the safety issues, Respondent assigned three persons to move heavier items to certain racks with more appropriate weight ratings. In grievance 2015-10, Evans was one of the grievants primarily claiming that Respondent did not assign overtime by seniority. Only two persons received payment for the grievance, one of whom was Braggs, who became the team lead. In 2015 and 2016, Evans distributed Union-related materials to employees at the Byhalia facility. No supervisor said any- thing to him about the materials or the distribution. (Tr. 505.) Evans became a third shift alternate committeeman in October 2015. The list of elected officials was posted on the employee bulletin board near the break rooms in the Byhalia facility. (Tr. 179; GC Exh. 3.) His duties included filing grievances on be- half of other employees. Evans always included himself in the grievances he filed. (Tr. 503.) In pre-shift meetings and round table meetings, Evans fre- quently raised employee concerns, some of which related to the collective-bargaining agreement, with management and other employees. Buckingham generally found Evans’ behavior disruptive. On March 23, 2016, Respondent disciplined Evans for “wasting time during scheduled work hours” after team leader Braggs attempted to locate Evans in the warehouse. Braggs maintained he found Evans in the break room approxi- mately 25 minutes before the scheduled breaktime. Evans had prior non-disciplinary coaching for going to the break room early and Braggs made a report to Buckingham about what he witnessed. Buckingham issued Evans the written warning. Volvo, supra, slip op. at 1–2. General Counsel contended that VOLVO GROUP NORTH AMERICA, LLC 9 the written warning was due to Evans’ protected activity. The Board found General Counsel did not sustain its Wright Line burden regarding animus when Respondent disciplined Evans for wasting time and dismissed the related allegations. Volvo, supra, slip op. at 3–4. The Board specifically stated that Gen- eral Counsel did not sustain its burden that Buckingham’s an- noyance with Evans’ behavior was related to protected activity. Id., slip op. at 4 and fn. 9. III. EVANS PROTESTS HIS DISCIPLINE Regarding the disciplinary action for wasting time, Evans sent Bush a 7-page letter, dated April 12, 2016, with attach- ments. (R. Exh. 1.) Evans delivered the letter to the office, requesting that the secretary give it to Manager Bush. The letter noted Bush provided the work reports, then stated he had no gaps in his performance. Evans raised that management did not establish “just cause” on the recent disciplinary action and also violated Section 8(a)(1) and (3) of the Act. He further noted that Braggs was having problems with targeting associ- ates who he had problems with and those who challenged his authority. Bush never contacted Evans about the letter; he nev- er read it and said he gave the letter to HR Manager Thompson. (Tr. 1032, 1080.) Thompson never discussed the letter with Bush. (Tr. 1080.) Evans also sent to HR Director Thomas a copy of the April 12 letter and attachments. She read Evans’ letter and believed the letter was about past grievances and complaints regarding grievances. Thomas testified she did not respond to the letter because she thought he should follow the processes described in the collective-bargaining agreement and she was not a step in that process. On cross-examination, Thomas reluctantly agreed that the letter included complaints about Braggs’ treatment of third shift workers and himself, which Evans characterized as a hostile work environment. She also agreed that Evans stated he was being retaliated against in a way that might violate Section 8(a)(1) and (3). Evans requested an investigation into such conduct. Evans later asked that his discipline be rescinded and removed from files. Thomas did not attempt to find out wheth- er a grievance was filed nor she did speak to Youngdale or Bush about it. She also did not contact Human Resources in Byhalia because the HR person was likely on leave and Thom- as herself would have been in charge of the Byhalia facility Human Resources functions. She did not forward the letter to anyone in Byhalia and instead filed the letter until 2 weeks before the hearing in this matter, when she forwarded the letter to Byhalia HR Manager Otto. IV. MAY 2016: EVANS RECEIVES A 30-DAY SUSPENSION FOR ALLEGED VIOLATION OF SAFETY RULES AND SUBSEQUENTLY IS TERMINATED FOR ALLEGED THREATS A. Events Leading to May 2016 Disciplinary Actions On April 21, 2016, while working inbound, Evans dropped windshields from his pallet. Evans reported the incident to Supervisor Ayikwei. Evans again asked Simpson to represent him in this matter before Respondent issued discipline. Simp- son, who did not witness the event, conducted his own investi- gation. Simpson found that Respondent did not conduct a prop- er investigation because the investigative report on the incident was not present. Simpson concluded the incident was a “freak accident”; sometimes manufacturers do not strap down the product properly or sometimes employees do not store items properly. Ayikwei told Simpson that he did not believe Evans should receive severe discipline. (Tr. 99.) Ayikwei did not document whether Evans improperly lifted the crates. (Tr. 1075.) Respondent considered what level of discipline Evans required for a safety rule violation (Rule 5). After his investigation, Supervisor Ayikwei prepared documen- tation and recommended a 5-day suspension based upon previ- ous steps of discipline. (GC Exh. 65.) On April 26, 2016, By- halia HR Manager Leslie Thompson emailed Youngdale, Bush, Ayikwei, and Thomas about what level of discipline to give Evans: Because of his other steps of discipline the next step would be a suspension. . . . . Continued behaviors are posting a lot of disruption on 3rd but I still want to ensure that we have all the documentation needed before he is suspended. I advised the supervisor that I would like to run these through you once we get to the point of suspension and beyond. Ar- nold Ayikwei is the supervisor. I am copying [Thomas] so she is aware of the multiple incidents involving [Evans]. (GC Exh. 66.) Youngdale responded the same day: The 4th step of progressive discipline is a 30-day suspension. Where is the 5-day suspension coming from? We need to be consistent with what is published in the written work rules. Aside, since you have the documentation of his accident, then by all means write him up and suspend him for the 30 days. The key to this discipline, as with all other disciplines, is con- sistency i.e. I assume we have been writing up other employ- ees for similar incidents? This will be especially important with [Evans], because as you know he has claimed that he is being targeted and retaliated against. So, we do not want to end up in a situation where [Evans] or the union is able to show that we ignored similar incidents with other employees but discipline [Evans] for the same thing. (GC Exh. 66.)1 Despite Youngdale’s reminder on consistency in writing up other employees, Bush, who had been on vacation during the incident, did not check with Thompson to determine whether Respondent was consistent on the discipline. (Tr. 1079.) At some point, Youngdale advised Bush that Aiykwei had not performed a proper accident investigation. (Tr. 1117.) 1 Bush testified that 5-day suspensions could be used only for at- tendance. (Tr. 1068.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 B. After Receiving Discipline For Dropping the Item, Evans Makes Angry Statements, For Which He is Terminated On May 3, Evans and Simpson met with Manager Bush and Supervisor Ayikwei in an office in the front of the facility re- garding Evans’ dropped items. The door was closed. Bush explained that after this last incident and the previous steps of discipline, he had to give Evans a 30-day suspension. (Tr. 48– 49; GC Exh. 18.) Bush gave Evans and Simpson a copy of the discipline. Simpson asked to speak on Evans’ behalf. Bush said his decision was final and he did not need to hear what Simpson has to say.2 Simpson said the meeting was very short, somewhere between 2 and 5 minutes. According to Bush, Bush opened the door and Evans said to Bush, “You have no fucking integrity.” (Tr. 1025.) As they exited the room, Bush testified that Evans repeated that he had no “fucking integrity.” (Tr. 1025.) A contract security guard and security supervisor, Candid Patino, was waiting outside the door and followed them. Evans and Simpson walked out of the room, with Evans ahead of Simpson into a hallway, past some open cubicles. As they left the conference room, Evans testified that he asked Bush if Bush intended to respond to his April 12 letter; Bush said if he had time, he would, but if he did not have time, he would not. (Tr. 611.) Bush and Ayikwei were behind Patino; Bush was approxi- mately 8 to 10 feet from Evans. (Tr. 54, 561, 1090) Patino walked Evans, with Simpson, along a hallway with cubicles. Per Bush, along approximately 50 feet of hallway were two offices and two cubicles. (Tr. 1027.) Simpson noted Evans was as upset as someone who just incurred a 30-day suspen- sion, but Evans was not in “a rage.” Simpson denied that he heard Evans say to Bush, “I’m going to get your ass” or “I will see you in 30 days and we will handle it then.” Bush testified that, as they walked through the hallway in about 1 minute maximum time, Evans loudly said he would be back, this isn’t over, and I’ll see you in court. Evans made no effort to come towards to Bush. (Tr. 1089.) Patino positioned herself at the exiting door and Simpson walked Evans to his car. Simpson asked Evans if he wanted to file a grievance, which Evans did. Patino documented the incident, as per her practice. On May 4, Bush emailed HR Director Thomas, Labor Rela- tions Manager Youngdale and the director of the warehouse, Onur Orcun, a statement about the incident with Evans as he left the facility, including a recommendation to terminate Evans for profanity and threatening managers. (GC Exh. 48.) Re- spondent sent a letter to Evans, dated May 11, 2016, that he was terminated effective May 3. The Union began the griev- ance process on Evans’s termination on May 12. Respondent did not discipline an industrial worker for dropping items be- fore Evans did so. (GC Exh. 39.) V. RESPONDENT AND UNION RESOLVE EVANS’ SUSPENSION AND TERMINATION THROUGH A GRIEVANCE SETTLEMENT On June 30, 2016, HR Director Thomas participated in a 2 Bush needed to attend another meeting immediately after meeting with Evans and Simpson. third-step grievance meeting regarding Evans’ suspension and termination in Byhalia. Also present were HR Generalist Cyn- thia Hayes and Manager Bush. Present for the Union were UAW Business Representative Davenport and Rod Simpson. Hayes took notes for the meeting. (GC Exh. 36.) Thomas esti- mated that the meeting lasted an hour. Davenport raised that 8 or 9 more people had dropped items but only Evans received discipline. Davenport stated the infor- mation was requested and, since Respondent had not provided the information, the Union would continue to request it. (GC Exh. 36, p. 2.) Davenport later said that Respondent was pick- ing and choosing who would receive discipline. The Union raised the break room incident as an example of treating Evans differently than others. Davenport talked about the lack of investigation into the break room incident and explained how the lack of proper investigation into the metrics was trouble- some. Davenport and Bush discussed the matter for approxi- mately 15 minutes. Returning to the alleged Rule 20 violation, Davenport and Simpson stated they interviewed a consultant who was in the area at the time and that consultant heard no disturbance. After continued discussions, the meeting ended without resolution. Thomas later discussed the situation with Labor Relations Director Youngdale, who proposed they reinstate Evans back to the step 4 of discipline (30-day suspension) and put aside the discipline for the accident because the information did not show the accident was serious or intentional. (Tr. 263.) On July 8, 2016, the Union was presented with this proposal, which it accepted. The terms specifically stated: In resolution of both grievances . . ., the Company of- fers to rescind the Work Rule #5 violation administered to [Evans] on 5/3/16 and reduce the penalty for the Work Rule #9 and #20 violations to a thirty calendar day suspen- sion as the fourth step in the progressive discipline pro- cess. [Evans] official date of reinstatement would be 6/3/16, and he will be provided backpay from that date un- til he physically returns to work. This grievance settlement is offered without prejudice to the issues involved and without setting precedent. Evans therefore received no punishment for allegedly drop- ping parts and the discipline was removed from his files. For the alleged threats, he received backpay, less the 30-day sus- pension and was given an effective reinstatement date of June 3, 2016. On Thursday, July 27, 2016, Union International Representa- tive Davenport telephoned Evans about the grievance settle- ments. The Union did not contact Evans about the possible terms of settlement until the matter was complete. HR General- ist Hayes also called Evans to tell him to report to work on the following Monday at 7:00 a.m. When he returned to work, Evans worked in outbound because he previously bid on a job there. The Board did not change the finding that Respondent’s sus- pension of Evans for dropping items violated Section 8(a)(3) and (1). Regarding the threats and the termination that became a suspension, Evans lost the protection of the Act pursuant to VOLVO GROUP NORTH AMERICA, LLC 11 Atlantic Steel, 245 NLRB 814 (1979) and the termination was lawful. No party excepted to that finding that the termination was lawful. Volvo, 370 NLRB No. 52, slip op. at 1. C. Deferral to the Grievance Settlement For the Dropped Item Is Appropriate Respondent argues for deferral to the grievance settlement. General Counsel contends that Evans did not lose the protection of the Act during his promenade down the hall after the disci- plinary meeting and that, because Evans was not consulted before the grievance was settled, the settlement process was not fair and regular. In cases with merit, the Board may defer a grievance settle- ment as long as it meets the standard set forth in Alpha Beta Co., 273 NLRB 1546 (1985), rev. denied sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987). The standard set forth in Alpha Beta is: the grievance proceedings were fair and regular; all parties agreed to be bound; and the settlement was not “clearly repugnant” under the Act. Alpha Beta, 273 NLRB at 1547-1548. The burden of proof rests with the party opposing deferral, here General Counsel. Catalytic, Inc., 301 NLRB 380 (1991), rev. denied sub nom. Plumbers and Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744 (D.C. Cir. 1992), cert. denied 506 U.S. 817 (1992). Because General Counsel did not except to the finding that Respondent lawfully terminated Evans for the threats, this alle- gation should be dismissed without deferring to the grievance settlement. As this termination unfair labor practice was with- out merit, deferral is not be appropriate. Alpha Beta, supra. The issue that remains is whether deferral is appropriate for the 8(a)(3) violation in which Respondent initially suspended Evans for dropping items. Respondent recognized that its sus- pension for dropping items was not documented properly and completely rescinded the disciplinary action. I continue to find that the grievance procedure was fair and regular and all parties agreed to be bound. Regarding the failure to notify Evans until after the parties reached a grievance settlement, I am guided by Catalytic, su- pra. There the Board deferred to a pre-arbitral grievance set- tlement that the grievant and his local union, which was not a party to the collective-bargaining agreement, opposed. The administrative law judge had determined that all parties had not agreed to be bound and that not all parties participated in the grievance procedure. The judge instead found that the employer violated Section 8(a)(3) in terminating the shop steward, who also displayed “gross insubordination” in his shop steward role. Catalytic, 301 NLRB at 381–382. The Board instead found that deferral was appropriate because the grievant’s authorized representative, the national union, was present throughout the process. Further, the parties had resolved the grievance through the contractual grievance process. Ultimately the Board found that deferral to this type of settlement “further[ed] the purposes and policies of the Act favoring private resolution of labor dis- putes.” Catalytic, 301 NLRB at 382. In line with Catalytic, supra, the Union, as Evans’ representative, presented Evans’ case and obtained a grievance settlement in the confines of the parties’ contractual agreement. The last factor is whether the settlement is repugnant to the Act. I agree with Respondent that the record shows Evans was fully reinstated from the “dropped item” grievance and received backpay, with the discipline removed from his record. Because the grievance settlement made Evans whole for this disciplinary action, it is similar to a Section 8(a)(3) remedy. The Union generally discussed that Evans was treated disparately. Alt- hough the unfair labor practice was not specifically addressed for Evans, it is not “clearly repugnant” because of the similari- ty to what Evans would have otherwise received. Evans’ grievance settlement is contrasted from the one in Valley Material Co., 316 NLRB 704 (1995). No deferral was available because the grievant’s termination settlement was reduced to a suspension and gave the grievant a final warning, which the judge found was not consistent with the Act. The judge also found that the process was repugnant to the Act be- cause the union had demonstrated hostility to the grievant. Id. at 708-709.3 The record here shows no evidence of Union hos- tility towards Evans and that the settlement provided everything but a posting. I therefore recommend deferral to the grievance settlement and dismissal of the related complaint allegations. VI. AFTER REINSTATEMENT, EVANS CONDUCTS UNION ACTIVITIES Evans returned to work on August 1, 2016, in outbound on first shift and was working there when he was terminated. His supervisors were Mark Leftwich and Bobby Clark, with whom Evans he had no problems. In March 2017, the outbound de- partment was divided into four operating units and each usually held its own pre-shift meeting. From August 2016 until March 2017, Evans distributed printed materials to employees during break times or before and after shifts. (See, e.g., GC Exh. 28.) He also distributed t- shirts. In January 2017, Evans requested the Union file a griev- ance about overtime and the seniority list. After Respondent investigated the grievance, a number of employees, including Evans, received compensation. (Tr. 370–371.) From the time of his reinstatement in August 2016 until his termination on March 17, 2017, Evans testified that he could not recall any management actions that could be characterized as hostile or retaliatory. (Tr. 565.) Other than the grievance, no evidence shows Respondent was aware of any of these union activities. In 2017, Respondent shortened the preparatory buzzer time from 5 minutes to 3 minutes. The buzzer had been in place at 5 minutes since 2015. The change came after managers com- plained that industrial workers lined up to take break or waited in the breakroom even before the 5-minute buzzer rang. (Tr. 1047.) This change was announced at a meeting with all out- bound employees on March 16, 2017. Although Mark Leftwich or Bobby Clark usually conducted the outbound pre-shift meeting, Director Onur Orcun, Kevin Bush and Bobby Clark attended the meeting on March 16, 2017. The meeting lasted approximately 15 to 20 minutes. Orcun had not attended a pre-shift meeting before this time. Early in the meeting, Orcun announced that Respondent was 3 Also see Roadway Express, Inc., 355 NLRB 197 (2010), enfd. 427 Fed.Appx. 838 (11th Cir. 2011) (deferral not appropriate when union hostility towards grievant is proven). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 implementing a different procedure for employees taking breaks. The buzzer to announce lunch times already rang at 10 minutes before break. During that time, employees would be allowed to prepare for breaks by walking to the break room, or parking and charging their vehicles. Orcun announced that the buzzer instead would ring at 5 minutes before break time and employees would have to line up at the warehouse door until official break time before entering the break room. Per Bush, no employees would be allowed in the break room until the second buzzer. Bush also talked about implementing the new system, including in disciplinary action under the Code of Con- duct, Rule 5, Wasting Company Time for not following the system. A number of employees asked questions and Orcun ex- plained that half the warehouse employees wasting 2 to 3 minutes per day added up to a significant amount of wasted production time. When asked whether the rule would be en- forced equally or up to management, Orcun said that manage- ment would have discretion over who received discipline. Af- ter approximately 15 minutes, Evans asked Orcun if the new system was a change in terms and conditions of employment. When Orcun asked for an explanation of the question, Evans stated, “[U]nder the collective bargaining agreement isn’t this a material item that needs to be bargained for, and that a request to bargain needs to be filed or should be filed in regard to this change of past practices and policies.” (Tr. 378.) Orcun testi- fied that he recalled Evans raising the terms and conditions of employment. (GC Exh. 63 at 2.) Another employee then asked why this change was happening, especially with the over- crowded conditions in the bathrooms. Others commented that the break rooms did not have enough microwaves. Bush said the change was within management discretion. Evans then said, “Who told you that? Who told you that?” (Tr. 380.) Bush did not answer Evans but argued with another employee. When the employees were dismissed from the meeting, Ev- ans went into the warehouse, carrying his equipment. Before Evans reached his equipment, Orcun and Bush walked up to him. Bush said Evans should not be carrying his equipment but have it on. VII. ON MARCH 20, 2017, RESPONDENT TERMINATES EVANS AFTER HE BACKS OUT OF AN AISLE Safety rules for operating equipment in the warehouse in- clude not backing into or out of aisles. (Tr. 82; GC Exh. 58 at 1.) These rules have been in place since 2015. A. Review of the Events Leading to Evans’ March 2017 Termination The warehouse has main aisles that permit two-way traffic. The aisles on either side of the main aisles, where parts are put away and retrieved, primarily have one-way traffic in alternat- ing patterns with aisles in the middle, or “tunnels,” to permit access to the adjacent aisle traveling in the opposite direction. These aisles are numbered and coordinate with directions to the industrial workers to put away or obtain parts. Industrial work- ers operate various motorized vehicles and receive training and certification for each piece of equipment they operate. Training includes safety and operating equipment in reverse. Although employees may back up in certain areas of the warehouse, they are not permitted to back in and out of aisles. The three main aisles allow traffic, both mechanical and foot, in two directions. A number of the aisles, used for picking, can be traversed only in one direction and bisect the main aisles. The aisles for picking have racks where the merchandise is stored. Some of the aisles have cross tunnels to cut across the racks without going into the main aisles. Near the area where Evans backed up was a managers’ desk, where the managers and supervisors were conducting a meeting. The day after the outbound meeting about the break buzzer, Friday, March 17, 2017, at about 8:30 a.m., Evans admittedly backed out of an aisle while working on an order picker. Evans testified that he needed to pick an item in aisle 127. Aisles 126 and 128 travel in the same direction and allowed entry from the main aisle B; aisle 127 travels in the opposite direction. Aisle 129 allows two-way traffic. Evans pulled into aisle 126 from main aisle B. He testified that he backed out of aisle 126 be- cause the aisle was blocked by a safety cone and other pieces of equipment in the aisle, including another order picker and a reach truck. Evans sat in the aisle for approximately one mi- nute, observing that the reach truck operator flipped his cargo upside down and the cargo box sides came apart. Evans did not want to block the aisle and was further concerned about the safety cone. Evans could not reach the cross tunnel to cut through to another aisle. He backed the order picker into main aisle B for about 20 feet to straighten out and prepared to go forward. The order picker had no mirrors and Evans had to look around to back up. As he backed up, Evans testified that he blew his horn. At about 8:30 a.m., the management team in the outbound area began its daily operational meeting in the main aisle, ap- proximately 80 feet from aisles 126–128. Manager Bush, Su- pervisor Bobby Clark, Operational Support/Safety Supervisor Burt Barton, inbound team lead Deadrick Simelton, Quality Supervisor Randy Sheeley were present in the meeting. During the meeting, Bush pointed out that someone on a truck was backing out into the aisle and pointed at the person backing out. (Tr. 1035.) Bush could not see who was on the vehicle. Bush said the person started to back up again. Clark, who had his back to the aisle in question, immediately turned around and saw the person backing out of the aisle into the main aisle. Barton, in charge of safety, started to move towards the truck. Clark also went to the truck. Clark testified that Evans was backing out of aisle 128. According to Evans, Supervisor Clark walked up to him as he prepared to drive forward. Evans testified that Clark asked to speak with him but went to speak with two other drivers first. Evans testified that he drove toward a cross aisle into aisle 127 and obtained his item. (Tr. 413–414; GC Exh. 29, DLX log.) When Clark and Evans were able to converse, Clark told him he should not be backing out of the aisle. Clark testified that he reached Evans while Evans was still backing up. He told Evans that he incurred a safety violation, which Bush had pointed out, and that they would need to talk about it later. Clark further testified that Evans admitted to him that backing out was a safety infraction but he had to get out. Clark told him the issue would be addressed later in the VOLVO GROUP NORTH AMERICA, LLC 13 day but would allow him to complete the back out. The main aisle was clear and Clark allowed him to continue because Ev- ans was already at least half-way into the aisle. (Tr. 699, 715.) By that time, Barton was at the site, taking cell phone photo- graphs of the incident. Clark and Barton returned to their meet- ing and discussed the safety violation. (Tr. 700.) At about 9:30 a.m., Orcun, Otto and the managers met for the management escalation meeting to review the previous day’s production and deal with any issues. Although personnel issues were not discussed usually at these meetings, safety is- sues were. Shortly before the meeting, Bush, with Clark pre- sent, advised Otto that Evans had a safety issue after the meet- ing. At about 10 a.m., the three discussed what they observed with Evans. Otto asked Bush to have each witness send him an email and the photographs taken by Barton. Bush sent his statement and had no further involvement as Evans did not report to him. (Tr. 1038.) At 10:45 a.m., Simelton sent an email to Otto and Bush stat- ing only that he saw Evans backing out of a location. He testi- fied he did not know whether Evans sounded his horn, but he was 60 to 70 feet away. He also could not recall specifically whether the main aisle had traffic but at that time of the morn- ing, traffic was usually present in the main aisle. After hearing from Bush and Clark, Otto notified Labor Re- lations Manager Youngdale, HR Director Thomas, and Director Orcun because Evans’ unfair labor practice hearing was sched- uled for March 27 (10 days later). At about 10:45 a.m., HR Manager Otto met in his office with Evans and the first shift union committeeman, Richard Green. (Tr. 408, 913–914.) Otto testified that, before this incident, he would not have recognized Evans. Evans admitted backing out of the aisle because others were in the aisle and to prevent an individual from being trapped in the aisle without egress. Ev- ans said to block would have violated OSHA standards. Evans further said he was careful when he backed out and honked his horn while doing so. Otto asked Evans to write a statement and permitted Evans to write the statement after lunch. Evans’ recollection of what Otto specifically said was somewhat fuzzy. He recalled Otto raised that he backed out of an aisle and allowed the two employees during their lunch to return to aisle 126 to document what happened. Evans stated he and Green used their phones to take pictures of the mess in aisle 126, which was still there. These pictures were not avail- able for hearing. After lunch, Evans provided Otto with a handwritten statement. (GC Exh. 30.) At the time he wrote the statement, Evans claimed he could not recall the exact location of the item and later completed it. (Tr. 574, citing Jt. Exh. 2 at 301.) Evans provided his DLX log at some point. Evans con- tinued to work in the warehouse for the rest of his shift. At 11:25 a.m., Clark sent Otto an email to document what he observed. (Tr. 701, 718; Jt. Exh. 3, Company Exh. 16.) The email only stated Clark witnessed Evans backing up and in- cludes no details, such as which aisle or whether Evans sound- ed his horn. The failure to sound the horn would be another safety violation. After receiving the emails, Otto conducted further investiga- tion, comparing aisle 128, where the supervisors said Evans was backing out, and aisle 126, where Evans said he backed out. He tried to discover whether a safety cone was present, as Evans said one was in the area. He also reviewed Evans’ DLX logs for Evans’ picks. (Tr. 951; GC Exh. 29.) The record re- flects that Evans had been making a pick in aisle 127 at approx- imate 8:39 a.m., a few minutes after the managers observed Evans. Otto did not go back to Evans to clarify that the pick records were not consistent with Evans’ recollection of which aisle he was in. (Tr. 952–954.) Otto reviewed Evans’ disciplinary logs to determine Evans’ stage of discipline. Otto discovered that Evans was a step 4 in his discipline and the next step was step 5, termination. Otto, per his usual practice, drafted a report. He then submitted the report to Youngdale and Thomas on Monday, March 20. (GC Exh. 51.) According to Otto, Bush was not consulted about the decision to terminate Evans. (Tr. 924.) Otto testified that he was unaware that no one received discipline at any level for backing out of an aisle before Evans. (Tr. 968.) On March 20, 2017, Evans and an alternate committee per- son attended a meeting in Otto’s office with Otto, outbound manager Derek Hare and supervisor Mark Leftwich. Otto read a statement to Evans from a disciplinary action report, identify- ing that Evans violated work rule 5. Evans was terminated pursuant to Respondent’s progressive discipline policy. (GC Exh. 31.) Otto then asked Evans if he had anything to say. Evans did not and refused to sign the disciplinary report. How- ever, as he left the room Evans said, “I hope you got it right this time.” (Tr. 928.) The Union grieved this termination, which eventually was arbitrated. Regarding disparate treatment evidence, Respondent gave all levels of discipline for safety, Rule 5 violations. Evans was the only one terminated. Otherwise, the disciplinary actions in- cluded over 35 verbal reminders, several written reminders, several written warnings, two 5-day suspensions, and one 30- day suspension. The level of prior discipline for these employ- ees was unknown, as was whether they had any union activity. A number of the reported safety violations with disciplinary action occurred in 2015 and 2016. A few of the examples pre- dated Evans’ discipline. One was traveling on the wrong side of aisle, failing to come to a complete stop and failing to sound the horn on December 8, 2015. (GC Exh. 39 at 6.) A 30-day suspension was for speeding in an area where the posted limit is 9 miles per hour. Another received a verbal reminder for fail- ing to stop at an intersection on August 8, 2016. (GC Exh. 39 at 28.) On March 15, 2017, an employee received a written reminder for running a stop sign. (GC Exh. 39 at 43–45.) After Evans’ termination, three other employees were disci- plined for backing out of or into aisles. (GC Exh. 39 at 73; GC Exh. 41.) No one was disciplined for backing out of an aisle before Evans’ March 17 termination. B. Respondent and the Union Arbitrate Evans’ Termination Grievance Evans’ termination grievance reached arbitration on October 4, 2017. (Jt. Exhs. 2, 3, 4.) Respondent asked the arbitrator to hear and decide the issues contained the Section 8(a)(3) and (4) unfair labor practice charges. The Union objected as it was not a party to any of the unfair labor practice charges. The arbitra- tor asked the parties to discuss the issue in the post-hearing DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 briefs. Despite this ruling, Evans raised the Board charges during his arbitration testimony. The arbitrator warned that things were getting far afield. (Jt. Exh. 2 at 320-321.) The arbitrator’s evidence was therefore limited to whether Evans backed out of the aisle. The Union’s International Servicing Representative, Chuck Davenport, represented Evans. Respondent was represented by counsel. The parties were permitted to present witnesses, ex- amine and cross-examine witnesses, and to enter documentary evidence into the record. The witnesses were sequestered and nothing in the arbitration transcript reflects any violation of the sequestration order. Both parties were permitted to submit briefs to the arbitrator. The arbitrator’s decision identified one issue that both parties presented for determination: Whether Evans was discharged for just cause. The arbitrator then stated that Respondent re- quested determination on 2 additional issues: Whether Evans was discharged due to his union and/or other protected activi- ties; and whether Evans was discharged because he filed Board charges and gave evidence and testimony to the Board. The arbitrator denied the grievance and upheld Evans’ termination. (Jt. Exh. 4.) The arbitrator cited applicable contractual provi- sions, including Art. 20 Sec.4, limiting his jurisdiction to issues fully grieved and Art. 19 Sec. 1, in which employees could be discharged only for just cause. The arbitrator found that Evans backed out of aisle 128 instead of aisle 126, which was a viola- tion of Rule 5. He did not rely upon Respondent’s allegation that Evans failed to honk the horn as well, as it was unlikely that they heard the horn. Because Evans was at the step of progressive discipline requiring termination, the arbitrator de- termined Evans was discharged for just cause. (Jt. Exh. 3 at 14.) Regarding Respondent’s desire to obtain determination of whether Evans’ union activity and Board charges were in- volved in the termination, the arbitrator found the record lack- ing regarding the unfair labor practice charges and their con- tents or whether evidence existed to determine whether union activities played a role in his determination. Agreeing with the Union, the arbitrator limited his determination to just cause as required by the collective-bargaining agreement and did not address whether Evans was discharged due to his union and/or protected activities. (Jt. Exh. 3 at 15.) C. Should the Section 8(a)(3) Termination ULP Be Deferred to the Arbitrator’s Decision? In the prior decision, I found that Respondent violated Sec- tion 8(a)(3) and (1) when it terminated Evans. Evans expressed concerns at the meeting the day before he backed out of the aisle, with Orcun and Bush present. Raising concerns about breaks with other employees at the meeting is concerted activi- ty. Bush, who witnessed Evans backing out, was present at the meeting the previous day. Orcun recalled that, during the meet- ing with other employees, Evans raised the collective- bargaining agreement. Bush was familiar with Evans from prior activities, such as the previous unlawful disciplinary ac- tions. Respondent is tasked with the knowledge and animus of its supervisors.4 1. Applicable law The Board has considerable discretion in determining wheth- er to defer to the arbitration process when doing so will serve the fundamental aims of the Act. Wonder Bread, 343 NLRB 55 (2004). Also see: United Technologies Corp., 268 NLRB 557 (1984); Collyer Insulated Wire, 192 NLRB 837 (1971); Dubo Mfg. Corp., 142 NLRB 431 (1963). The Board’s standard for deferring to arbitral awards is also solely a matter for its discre- tion, as Section 10(a) of the Act expressly provides that the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award. Babcock & Wilcox Construc- tion Co., 361 NLRB at 1129. Pre-Babcock, supra, the Board deferred to arbitral decisions in cases in which the proceedings appear to have been fair and regular, all parties agreed to be bound, and the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955). In Olin Corp., 268 NLRB 573 (1984), the Board held that it would condition deferral on the arbitrator having adequately considered the unfair labor practice issue, which is satisfied if: the contractual issue is factually parallel to the unfair labor practice issue, and the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Id. at 574. The Board stated that it will not require an arbitrator’s award to be totally consistent with Board precedent; however, deferral will not be found appropriate under the clearly repug- nant standard where the arbitration award is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” Id. Under Spielberg, supra, and Olin Corp., supra, the burden of proof is on the party opposing deferral to the arbitration award. Airborne Freight Corp., 343 NLRB 580, 581 (2004). In this situation, General Counsel has the burden of proof. 2. Parties’ positions The parties agree with the prior decision’s assessment the first two criteria, that the arbitration procedures appear fair and regular and the parties agree to be bound through their collec- tive-bargaining agreement. Then the parties’ arguments di- verge regarding whether the arbitrator adequately considered the unfair labor practice. In support of deferral, Respondent argues that the adminis- trative law judge cannot substitute her own judgment where the findings of facts are based upon credibility (citing Aramark Services, Inc., 344 NLRB 549 fn. 1 (2005)). Respondent also contends that the arbitrator’s decision is first analyzed on its faced and where just cause for termination is found, deferral is the correct resolution. See Texaco, Inc., 279 NLRB 1259 (1986). Respondent contends that failing a finding of deferral, the administrative law judge should determine that it did not violate the Act. The Board left intact the conclusion that Re- spondent committed a Section 8(a)(3) violation when it termi- nated Evans this time. Instead, the Board limited the inquiry to 4 The termination was also alleged as a violation of Section 8(a)(4), which I dismissed and to which no party excepted. Volvo, supra, slip op. at 1 fn. 1. VOLVO GROUP NORTH AMERICA, LLC 15 making findings, based upon UPS, supra, whether to defer to the arbitrator’s decision. Volvo, 370 NLRB No. 52, slip op. at 4-5. General Counsel contends that deferral is inappropriate be- cause the contractual and unfair labor practice issues are not parallel. 3. The arbitrator did not sufficiently consider the unfair labor practice “An arbitrator’s power is both derived from and limited by, the collective-bargaining agreement.” Barrentine v. Arkansas- Best Freight System, Inc., 450 U.S. 728, 744 (1981), citing Alexander v. Gardner-Denver Co, 415 US 36, 54 (1974). An arbitrator is tasked with effectuating the contractual intent of the parties but not the statute, which may result in an employee losing certain statutory protections. See generally Barrentine, 450 US at 744-745 (FLSA claim). The Board’s long-standing deferral policy requires that the facts between the unfair labor practice and the contractual issue must be parallel and the arbi- trator was presented with sufficient facts relevant to resolution of the unfair labor practice. Olin, supra, at 574; Anderson Sand & Gravel Co. 277 NLRB 1204, 1204-1205 (1985). The factual question should be “coextensive” with the statutory issue. Drummond Coal Co., 277 NLRB 1618, 1620 (1986). A number of cases demonstrate when facts are parallel, per- mitting deferral. The situation in Anderson Sand & Gravel, 277 NLRB at 1204, demonstrates when statutory and contrac- tual facts are parallel. The issue presented to the arbitrator was whether employees discharged under a no-strike clause, which provided that a strike of less than 24 hours was protected, re- quired contractual interpretation and therefore the issues were “coextensive.” Id. In addition, the arbitrator was “generally” provided with facts related to the statutory issue of whether they were terminated in violation of Section 8(a)(3). As the evidence was the same for finding an unfair labor practice, the Board found that deferral to the arbitrator’s decision was ap- propriate. Id. at 1205. In Howard Industries, 365 NLRB No. 96 (2017), deferral to the arbitrator’s decision was appropriate because among the issues raised was whether the employer suspended and termi- nated the grievant due to “his union activities as chief steward.” The parties presented the arbitrator with underlying documents showing that unfair labor practices charges were filed. The arbitrator concluded that the grievant was not terminated for his union activities. Applying the more stringent standard in Bab- cock & Wilcox Construction, supra, the Board affirmed the administrative law judge’s determination that deferral was ap- propriate because the arbitrator considered the unfair labor practice allegations and sufficiently weighed the evidence.5 When an arbitrator finds just cause for termination without developing a record on the unfair labor practice, deferral is not appropriate. Wheeling-Pittsburgh Steel, 277 NLRB 1388, 1392-1393 (1985), enfd. 821 F.2d 342 (6th Cir. 1987). One aspect of the arbitrator’s decision here is that he claimed he did not have contractual authority to consider the unfair labor prac- 5 Also see Sachs Elec. Co., 278 NLRB 866 (1986) (arbitral issue was whether the employer laid off union steward because of his union activities). tice. A number of cases determined that the arbitrator did not ad- equately consider the unfair labor practice issues and therefore made deferral inappropriate. An example is Hilton Hotels Corp. d/b/a The Denver Hilton Hotel, 287 NLRB 562, 563 (1987): In the arbitration, the union did not litigate when cer- tain strikers were permanently replaced before they made offers to return to work, which was the issue in the unfair labor prac- tice case but not in the arbitration. Id. The Board found defer- ral there was inappropriate and found the unfair labor practice violation. Id. 6 Respondent maintains that the Board cannot “first determine the merits of the unfair labor practice allegation and then con- trast that determination with the arbitrator’s award”. . . . but must “analyze at the arbitrator’s decision on its face.” (R. Supp. Br. at 18–190, citing Texaco, supra.) The facts in Texaco are a bit different than what is at issue here. There the alleged discriminatees were suspended and terminated for alleged strike misconduct. The arbitrator took evidence about those allega- tions, deciding that the employees would be reinstated without backpay. Texaco, 279 NLRB at 1259. The Board determined that: deferral was appropriate because the arbitration and unfair labor practice were parallel; and the arbitrator and judge were both presented with the facts generally relevant to resolving the unfair labor practice. Id. at 1259-1260. But that is not the case here. As is the case here, the facts surrounding the unfair labor practice were not before the arbitrator. The arbitrator could not and did not have any basis for considering the statutory issue. Although the collective-bargaining agreement included provi- sions to prevent discrimination based upon union activity, the arbitrator took no evidence on the matter, which are essential to a determination whether the Act was violated. As the arbitrator explicitly stated he made no such consideration of the unfair labor practices, deferral is not an available route. Pioneer Fin- ishing Corp. v. NLRB, 667 F.2d 199, 202-203 (1st Cir. 1981).7 Evans therefore is entitled to remedies under the Act. SUPPLEMENTAL CONCLUSIONS OF LAW 1. Respondent’s Section 8(a)(3) and (1) violation of the May 3, 2016 suspension of Walter Evans is hereby deferred and that complaint allegation is dismissed. 2. On March 20, 2017, Respondent violated Section 8(a)(3) and (1) when it discharged Walter Evans because of his union activities. 3. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found Respondent has engaged in certain unfair la- 6 Also see: General Warehouse Corp., 247 NLRB 1073 (1980) (ar- bitrator’s decision did not indicate any consideration of protected activ- ities), enfd. 643 F.2d 965 (3d Cir. 1981). 7 In favor of deferral, Respondent cites Aramark Services, Inc., 344 NLRB 549 (2005). However, the Board found that the arbitrator’s findings were not repugnant to the Act and deferred to the arbitrator. The Board also found that all facts relevant to the discharge were pre- sented to the arbitrator. Id. at 551. That is not the case here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 bor practices, I shall order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent unlawfully terminated Walter Evans on March 20, 2017, it must offer him reinstatement to the position from which he was unlawfully terminated. Re- spondent is to offer Evans reinstatement in the position that he previously worked, or if such position no longer exists, in a substantially equivalent position. I shall further recommend that the Board order Respondent to make Evans whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent will com- pensate Walter Evans for his search-for-work and interim em- ployment expenses regardless of whether those expenses ex- ceed interim earnings. King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017). Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. In accordance with the Board’s decision in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), Respondent shall be or- dered, within 21 days of the date the amounts of backpay are fixed, either by agreement or Board order, to submit and file the appropriate documentation allocating the backpay awards to the appropriate calendar quarters or periods with the Regional Director. In addition to the backpay allocation report, Re- spondent shall file with the Regional Director for Region 15 a copy of Evans’ corresponding W-2 form(s) reflecting the back- pay award. Cascade Containerboard Packaging, 370 NLRB No. 76 (2021). Respondent shall also be required to remove from its files any reference to the unlawful discharge and notify Evans in writing, within 3 days, that this has been done and that the un- lawful discharge will not be used against him in any way. ORDER Respondent Volvo shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employ- ees because of their union activities. (b) In any like or related manner interfering with, restrain- ing, coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Walter Evans 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 previ- ously enjoyed. (b) Make Walter Evans whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section. (c) Compensate Walter Evans for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the ap- propriate calendar years. (d) File with the Regional Director for Region 15 a copy of Walter Evans’ corresponding W-2 form(s) reflecting the back- pay award. (e) Within 14 days from the date of this Order, remove from its files any references to the unlawful suspension and dis- charge, and within 3 days thereafter, notify Walter Evans in writing that this has been done and the discharge will not be used against him in any way. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at is Byhalia, Mississippi facility copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by Respondent’s authorized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electroni- cally, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If Respond- ent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since March 20, 2017. (h) Within 21 days after service by the Region, file with the Regional Director for Region 15 a sworn certification of a re- sponsible official on a form provided by the Region attesting to 8 If the facility involved in these proceedings is open and staff by a substantial complement of employees, the notices must be posted with- in 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus Disease 2019 (COVID- 19) pandemic, the notice must be posted within 14 days after the facili- ty reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if Respondent customarily communicates with its employees by elec- tronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” VOLVO GROUP NORTH AMERICA, LLC 17 the steps that Respondent has taken to comply with this Order. Washington, D.C., September 20, 2021 APPENDIX NOTICE TOEMPLOYEES 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 Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT discharge or otherwise discriminate against you for engaging in union or protected concerted activity. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board's Order, offer Walter Evans 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 privi- leges previously enjoyed. WE WILL make Walter Evans whole for any loss of earnings and other benefits resulting from his suspension and discharge, less any net interim earnings, plus interest, and WE WILL also make Walter Evans whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Walter Evans for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 15, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. WE WILL file with the Regional Director for Region 15 a copy of Walter Evans corresponding W-2 form reflecting the backpay award. WE WILL, within 14 days from the date of the Board's Order, remove from our files any reference to the unlawful suspension and discharge of Walter Evans, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the suspension and discharge will not be used against him in any way. VOLVO GROUP NORTH AMERICA,LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/or by using/15-CA-179071 the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.