Volvo Group North America, LLC

372 NLRB No. 44 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 International Union, United Automobile Aerospace and Agri- cultural Implement Workers of America, UAW. Case 32–CA–276320 January 19, 2023 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY On March 31, 2022, Administrative Law Judge Gerald M. Etchingham issued the attached decision, and on April 5, 2022, he issued an errata. The Charging Party filed ex- ceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief. 1 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In affirming the judge’s credibility findings, we do not rely on the judge’s statement that “[h]aving observed [employee Lisa] Richards tes- tify at the hearing, I can understand why [Manager Eric] Rieckers de- scribed Richards as a ‘handful.’” Additionally, some of the Charging Party’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decision and the entire rec- ord, we are satisfied that the Charging Party’s contentions are without merit. 2 We affirm the judge’s conclusion that the Respondent did not vio- late Sec. 8(a)(3) and (1) of the Act by discharging Lisa Richards, alt- hough we do so on a different rationale. The judge found that the General Counsel failed to sustain her initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). We find it unnecessary to pass on the judge’s finding because, even assuming the General Counsel sustained her initial burden, the Respondent met its defense burden of showing that it would have discharged Richards even in the absence of her protected activity. As found by the judge, the Respondent demonstrated that it discharged Richards based on her well-established production failures on December 31, 2020, and in accordance with its progressive discipline policy following several prior disciplines that are not alleged to have vi- olated the Act. Because we find it unnecessary to pass on the judge’s finding that the General Counsel failed to sustain her initial Wright Line burden, we sim- ilarly need not rely on the judge’s citation to United Site Services of Cal- ifornia, Inc., 369 NLRB No. 137 (2020). We note, however, that there is no merit to the Charging Party’s contention that the parties’ informal settlement agreement, which does not include an admission of wrongdo- ing, can be treated as an admission of wrongdoing. See Truserv Corp., 349 NLRB 227, 232 (2007). Member Wilcox joins her colleagues in affirming the judge’s dismis- sal of the allegation that the Respondent unlawfully discharged Richards. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Dated, Washington, D.C. January 19, 2023 ______________________________________ Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member Because she finds it unnecessary to pass on the judge’s finding that the General Counsel failed to sustain her initial burden under Wright Line, Member Wilcox also finds it unnecessary to address the judge’s discus- sion of causation. Member Wilcox notes, however, her agreement with Chairman McFerran’s concurring opinion in Tschiggfrie Properties, Ltd., wherein she found the majority’s “clarification” of Wright Line principles was unnecessary and the “concepts [discussed by the majority there] are already embedded in the Board’s body of Wright Line cases.” 368 NLRB No. 120, slip op. at 10 (2019). Member Prouty agrees with his colleagues that the Respondent did not violate the Act as alleged. Because Tschiggfrie’s “clarification” of Wright Line’s principles does not alter that conclusion, Member Prouty expresses no view on Tschiggfrie, in which he did not participate. Although Member Prouty does not pass on the judge’s finding that the General Counsel failed to sustain her initial Wright Line burden, he notes that background evidence occurring outside of the 10(b) period can, by itself, show animus sufficient for the General Counsel to sustain her ini- tial Wright Line burden. See, e.g., Wilmington Fabricators, Inc., 332 NLRB 57, 58 fn. 6 (2000) (“Winchell’s remarks occurred more than 6 months prior to the filing of the first unfair labor practice charge and were not alleged in the complaint as an unfair labor practice. Neverthe- less, this background evidence, which the Respondent does not factually dispute, may be used to establish the Respondent’s union animus.”) (em- phasis added); Oklahoma Fixture Co., 314 NLRB 958, 959 fn. 3 (1994) (“Although Wallace’s pre-10(b) statements do not provide a basis for an unfair labor practice finding, we agree with the General Counsel that they may be used as background evidence throwing light on the Respondent’s motivation for conduct within the 10(b) period.”), enf. denied on other grounds 79 F.3d 1030 (10th Cir. 1996); Douglas Aircraft Co., 307 NLRB 536, 536 fn. 2 (1992), rev. denied sub nom. Sonnier v. NLRB, 66 F.3d 336 (9th Cir. 1995). Member Kaplan does not disagree with his colleagues’ conclusion that the Respondent met its defense burden under Wright Line. Unlike his colleagues, however, he would not need to reach that question be- cause he would adopt the judge’s finding that the General Counsel failed to meet her initial Wright Line burden. He agrees with the judge that, although the Respondent was certainly aware of Richards’s union activities, the General Counsel failed to establish that there was a causal connection between any alleged animus and Richards’s discharge. In affirming the judge’s finding, Member Kaplan notes that he finds it un- necessary to rely on United Site Services of California, Inc., supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Lelia Gomez, Esq., for the General Counsel. David P. Murphy, Esq., for Respondent. Sarah Laws, Esq., for Charging Party. DECISION STATEMENT OF THE CASE GERALD M. ETCHINGHAM, Administrative Law Judge. The hearing in this case was held remotely through the Zoom for Government video-conference platform. It opened on October 8 and 9, 2021, to deal with preliminary matters and continued to hear evidence from October 18 through 21, 2021. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Lisa Richards (Rich- ards) because she assisted the Charging Party Union (hereafter the Union) and engaged in related union and concerted activities. Respondent filed an answer denying the essential allegations in the complaint. After the trial, the parties filed briefs, which I have read and considered. Based on the filed briefs and the entire rec- ord,1 including the testimony of the witnesses and my observa- tion of their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation with an office and place of business in Reno, Nevada, is engaged in the wholesale distri- bution of automobile and truck parts. In conducting its business operations during a representative 12-month period, Respondent has sold and shipped, from its Reno facility goods valued in ex- cess of $50,000 directly to customers located outside the State of Nevada. Accordingly, I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find, as Respondent admits, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Background Respondent operates a warehouse facility of about 175,000 square feet in Reno, where it receives, stores, and distributes au- tomobile and truck parts. Eric Rieckers (Rieckers) is the man- ager of the facility. He reports to Jonathan Halas (Halas), the 1 Abbreviations used in this decision are as follows: Transcript cita- tions are denoted by “Tr.” with the appropriate page number; citations to the General Counsel and Respondent exhibits are denoted by “GC” and “R.,” respectively; “Jt. Exh.” for the joint exhibits; “GC Br.” for the Gen- eral Counsel’s closing brief; “CP Brief” for the Union’s closing brief; and “R. Br.” for Respondent’s closing brief. Although I have included director of all of Respondent’s distribution centers in North America. Halas is stationed at the Respondent’s headquarters in Greensboro, North Carolina. Also stationed at Respondent’s headquarters are William Waters (Waters), the director of em- ployee and labor relations, and Curt Youngdale (Youngdale), an- other HR employee with direct responsibility over the Reno fa- cility’s labor and employment issues. (Tr. 661, 665–667, 680.) Some 20 warehouse employees work at the Reno facility in two shifts, the inbound shift and the outbound shift. About five employees work on the inbound shift, which runs from 7:30 a.m. until 4 p.m., and about 15 work on the outbound shift that begins at 9:30 a.m. and ends at 6 p.m. There is, however, some inter- change with employees doing both inbound and outbound work, based on relative needs. The supervisory staff under Rieckers are Operational Support Manager Beau Penley (Penley), First Shift Manager William Trappe (Trappe), and Second Shift Manager Kyle Danielson (Danielson). Trappe supervises employees on the inbound shift and Danielson supervises employees on the outbound shift. (Tr. 366–368, 416–417, 602.) Among the out- bound employees until the date of her discharge in January of 2021 was Richards, who had worked for Respondent at the Reno facility for 24 years at the time of her discharge. All but one of Respondent’s seven distribution centers in the United States are unionized. (Tr. 77, 674–675.) The Union was brought to the Reno facility in late 2018 after a speech by Halas to the Reno employees notifying them of the implementation of a two-tiered wage system. Richards spoke up at the meeting questioning the new system because she believed it might lead to the replacement of older higher paid employees. Halas denied that was the reason. (Tr. 122–123.) But, after meeting with fel- low employees, Richards contacted a representative of the Union and led a campaign to get signed authorization cards from other employees that eventually led to an election petition filed with the Board. The election was scheduled for April 24, 2019. In the preelection period in early April of 2019, Director of Employee and Human Relations Waters came to Reno to con- duct 3 group meetings with employees to advocate against a vote for the Union. Because it was admittedly well known by Re- spondent that Richards was a leader in the effort to unionize the facility, Waters testified that he deliberately did not permit Rich- ards to attend the three preelection group meetings he held with the Reno warehouse employees because he “knew that I could not change her mind.’’ She was the only employee not included in the group meetings. But Waters did include her in individual meetings he had with the employees at this time. (Tr. 673.)2 The Union won the election by a margin of 12 for and 8 against, with 3 challenges that did not affect the results. (GC Exh. 31.) On the day after the election, Rieckers called Richards into his office and informed her that an unnamed employee had reported that she had threatened him. He reminded her of the company rule against wasting time by talking about union several citations to the record to highlight particular testimony or exhib- its, my findings and conclusions are based not solely on the evidence specifically cited, but rather on my review and consideration of the entire record. 2 There is no evidence that Respondent contested the results of the election. VOLVO GROUP NORTH AMERICA, LLC 3 business on the work floor. Rieckers also warned Richards that threatening a coworker was a serious offense that could lead to discharge. Richards questioned the basis of the charge and said that she would be contacting the Union about the matter. This warning was later rescinded. (Tr. 143–144.) The Bargaining Following the election, Richards was selected as one of two employee members of the bargaining committee for the Union’s team, along with Union Representative Jim Soldate, who was in- itially the Union’s chief negotiator and contact person for the Reno negotiations. Richards participated in the negotiations from the initial session in August 2019 and throughout most of 2020, until her discharge in January of 2021—a period that in- cluded a string of disciplines Respondent issued against Rich- ards, which are discussed in more detail below. Waters and Youngdale were the chief negotiators on the Respondent’s team. John Eblin (Eblin), another official from the Union, later took over as the Union’s chief negotiator. Eblin had bargained with Waters in other negotiations between the Union and the Re- spondent. (Tr. 96.) The parties engaged in nine bargaining sessions from the sum- mer of 2019 through May of 2021, most lasting 2 or 3 days. The first two sessions were in 2019, as discussed below. The next six were in 2020: One in February, one in March, one in July, one in September, one in October and one in November. The last bargaining session took place in May of 2021. (Tr. 79–89.) Richards was on the Union’s bargaining team and present during seven of them. She missed the November 2020 session because she was on vacation (Tr. 229) and she was discharged prior to the May 2021 session. There was much testimony about what transpired during these sessions, but there was nothing out of the ordinary about most of them. The first day of the first session of bargaining in August of 2019 was notable for several things. The Respondent submitted a draft contract proposal at that session, which apparently was not well received by the union negotiators. (Tr. 151–152, 384.) In addition, the parties discussed two matters that involved Rich- ards. The denial of a grievance that she had presented involving an employee’s right to a union representative was affirmed. Also affirmed was the rescission of Rieckers’s oral warning to Rich- ards immediately after the election. The parties also agreed that such matters would be pursued through the Union. (Tr. 151– 152.) The second bargaining session took place in late October of 2019 and it was notable for an attempt to remove Waters from Respondent’s bargaining team by the presentation of an em- ployee petition to that effect because he had given speeches against union representation prior to the election. Those speeches were, of course, perfectly proper and none were alleged to have been coercive. The petition was drafted by Richards and signed by a number of employees. But Waters refused to leave 3 This was, of course, his right, because, under Board law, each of the parties in collective bargaining has the absolute right, with exceptions not applicable here, to appoint their own bargaining representatives. People Care, Inc., 327 NLRB 814, 824 (1999), and cases there cited. 4 The above is based on the testimony of Eblin and Santana. I credit their uncontradicted testimony about what was said at this session the bargaining. (Tr. 158–160, 433, GC Exh. 2.)3 The bargaining continued in 2021, even after Richards was discharged in January of 2021, with another employee replacing her on the Union’s bargaining team. The only significant matter that occurred thereafter was the Union’s attempt, in May 2021, to get Richards reinstated as a condition for reaching an agree- ment. At some point, Eblin and fellow Union Representative Alex Santana, who was present on the occasion, met in a side- bar meeting with Respondent’s negotiators Waters and Young- dale. At the time, Eblin was of the opinion that the parties were close to an overall agreement. He told Respondent’s negotiators that he would like to “seal the deal” and get a contract at this session. He also said that the parties might have a deal if Rich- ards was reinstated. At that point, the charge alleging that Rich- ard’s discharge was unlawful had been filed with Region 32 of the General Counsel’s Office at the Board on April 28, 2021, but it had not been fully investigated because the complaint was not issued until July 15, 2021. (GC Exh. 1 (a) and (c).) Youngdale firmly rejected Eblin’s offer, stating that there would not be a contract if the Union insisted, as a condition of a contract, that Richards be reinstated. Youngdale added that there would not have been a union at the Reno facility without Richards. (Tr. 90–92, 94, 104–106, 107–108.)4 There was, of course, no impropriety in the Respondent’s re- fusal to reinstate Richards as a condition for a contract and no bargaining violation was alleged for that refusal. Nor has the General Counsel alleged that the failure to reinstate Richards in these circumstances was discriminatory or otherwise violative of the Act. There have been no further bargaining sessions after the end of the May 2021 session. (Tr. 93.) There are no allegations of bargaining unfair labor practices regarding any of the Respond- ent’s bargaining from August 2019 through 2021. Nor has there been any independent 8(a)(1) violations alleged against the Re- spondent in this case, including whatever took place during the bargaining sessions. The General Counsel relies on certain state- ments by Respondent’s officials—and even their demeanor—to show union animus against Richards in support of the only alle- gation of a violation in this case—that Richards was unlawfully discharged for her union activities. I shall consider that issue in more detail in the analysis section of this decision. Richards Brings Workplace Issues to the Attention of the Union and Management During the 2019 and 2020 bargaining, Richards also brought employee complaints about workplace issues to the attention of officials of the Union, and, on occasion, directly to Respondent’s supervisors at the Reno facility. See (Tr. 145–150). Richards testified that she considered herself the “de facto shop steward.” (Tr. 148.) Respondent, dealt with her as such and the record shows that her complaints were taken seriously. Supervisor Danielson particularly invited her to come to him directly with regarding the Richards reinstatement issue. But I reject their attempt to guild the lily by describing Youngdale’s demeanor during this meeting. I found that part of their testimony exaggerated and self serving. Eblin was guilty of this type of exaggeration elsewhere in his testimony about the bargaining and I also discuss the unreliability of other aspects of his testimony in the analysis section of this decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 employee concerns. (Tr. 149.) On one occasion, in October or November of 2019, she complained to Danielson about delays caused by construction at the facility. He said he would forward those complaints to Rieckers, who later agreed with Richards’ position and announced that employees would be permitted to provide for such delays on their timesheets. (Tr. 168.) She also brought work-related complaints directly to Rieckers and he readily dealt with her on those matters, even though he candidly admitted she “sometimes” could be a “handful.” (Tr. 501–504, GC Exh. 18(a).) Having observed Richards testify at the hearing, I can understand Rieckers why he described Richards as a “hand- ful.” But, also having similarly observed Rieckers, I specifically credit Rieckers’s testimony that he did not mind that Richards brought complaints to his attention. See (Tr. 502). That Rieckers had no animosity toward Richards in her role as a union representative or for anything else is also shown by the following: In July 2020, in the midst of Richards’ role as the “de facto” steward and as a member of the Union’s negotiating team, Rieckers approved an award and gift card for Richards as the “Idea Winner” for the month. (R. Exh. 9.) This was also in the midst of a string of disciplines issued to Richards during 2020, which are discussed in more detail below. Richards’ Production and Disciplinary Record Respondent’s Reno warehouse operation relies on elaborate and specific employee production expectations that are moni- tored by tracking software that details time spent on a particular task and where the task is performed. The employees’ perfor- mance is tracked daily, monthly, and yearly. For example, when a part is required to be put away in a particular location, that function is recorded on a ticket that names the part and where it is to be stored. And after the part is put away, the employee must scan the associated barcode for that location. The time spent on the task is also recorded. The Respondent keeps records showing the expectation that employees must perform a certain amount of work for each hour. Each employee’s performance is set forth in the employee’s personal business plan (PBP), which is basi- cally a yearly evaluation. See (Tr. 461–463; GC Exh. 23; Jt. Exh. 2(j)). Despite her length of service working at the Reno warehouse, Richards has never been a top producer, as she readily admitted. (Tr. 252, 697.) Her 2019 evaluation reflects that her production was rated lower than adequate. (Jt. Exh. 2(j).) Richards’ pro- duction issues continued into early 2020. See (Tr. 332–335, 353–357). Indeed, her 2020 evaluation, which was presented to her by Danielson on the morning of January 7, 2021, reflects that she did not meet production expectations for the entire year, in- cluding the last 3 months of the year. Her overall score left her tied with another employee for last in production among all the warehouse workers. Danielson nevertheless rated her as “par- tially” meeting productivity goals. (Tr. 534–541, GC Exh. 2(k).) Richards’ overall low production was confirmed by Rieckers. (Tr. 548.) The 2020 evaluation also noted that Richards was not meeting 5 Coachings are not considered disciplines under Respondent’s pro- gressive discipline policy. Tr. 551. 6 Richards admitted she clocked out late that day. (Tr. 180.) Richards gave a convoluted explanation as to why she clocked out late that day her expectations on discipline. (Tr. 534.) The record shows Richards received several disciplines during 2020, ending with the final one for her work performance on December 31, 2020, which resulted in her discharge on January 13, 2021. Respond- ent has a four-step progressive disciplinary process. Step one is a verbal warning; step two is a written warning; step three is a suspension; and step four is discharge. This does not require the steps to be for the same violation. (Tr. 556–557.) 5 The Predischarge Disciplines As suggested above, throughout calendar year 2020, Richards was disciplined a number of times, leading to the last discipline that resulted in her discharge. To his credit, before issuing each discipline, Rieckers consulted the Respondent’s human relations department in Greensboro. He spoke mostly with Waters, but also, on some of the disciplines, with Youngdale. (Tr. 507.) On January 29, 2020, Reno management held a meeting of warehouse employees emphasizing that employees were not to clock out later than 5 minutes after the end of the shift. On Feb- ruary 3, 2020, Richards received a coaching for clocking out late on January 31, 2020, 2 days after the meeting about clocking out late. (Jt. Exh. 2(a).) She admitted the violation and promised to “try harder” not to clock out late. (Tr. 170–172, 315.) Then, on March 13, 2020, Richards clocked out late again, along with an- other employee, Julian Johnston (Johnston), who had also previ- ously been coached on the matter, and both received verbal warnings as a result. (Jt. Exh. 2(b), Tr. 180, 315, 552–554.)6 On March 26, 2020, Richards was issued a written warning for violation of Rule 8 of the Respondent’s rules which prohibits wasting time. (Jt. Exh. 2(c).) The Respondent’s records show there was an 18-minute gap from the end of a management meet- ing for employees on the morning of March 23 until Richards resumed her work. (Tr.555–556, 315–316, R. Exh. 4.) The warn- ing was based on a report from Supervisor Trappe, who observed that Richards was talking with another employee during work time. He was unable to identify the other employee. (Tr. 555– 556.) During a meeting dealing with the warning, Richards did not question the evidence that she was not working during the time indicated and she did not tell Respondent with whom she was talking on this occasion, thus precluding the issuance of a similar warning to that employee. (Tr. 193–194, 556.) On March 30, 2020, Richards was issued a 5-day suspension for falsification of time in violation of Rule 22 of Respondent’s rules. The suspension was based on an analysis of Respondent’s production, time, and location records for 3 specific days the pre- vious week. The suspension states that Richards reported that the scanning system was down when it was actually working; it also confirmed that she was not working at the locations where she said she was working. As a result, according to the suspen- sion document, Richards’ falsification worked to her benefit by improving her “performance numbers.” The document also states that a violation of Rule 22 normally results in termination, but, because of her long service as an employee, she was only being suspended. (Jt. Exhs. 3(a) and (b).) and why she thought both verbal warnings were not fair (Tr. 180–186), but that does not refute the fact that a violation occurred. There is no evidence that Johnston contested the warning to him or gave excuses for it. VOLVO GROUP NORTH AMERICA, LLC 5 The March 30 suspension was triggered by a report from Su- pervisor Trappe that he was getting complaints by some employ- ees of problems with the scanner that measured employees’ time, location, and production. He was perplexed because he did not detect any scanner problems that day. As a result, Rieckers di- rected a thorough analysis of the production records for the days at issue to validate what happened. That analysis covered not only Richards but 3 other employees as well. (Tr. 572–573.) The documentary evidence supports the suspension. Rieckers described in great detail the underlying records he considered before issuing the suspensions and they support his testimony as well as the suspension. (Tr. 558–573 and Jt. Exhs. 3(c)-(f).) Be- cause of the detail in his testimony and because it was supported by the documentary evidence, I credit Rieckers’s testimony. His credible testimony on this issue reflects favorably on his overall reliability as a witness.7 On May 13, 2020, Richards received a disciplinary memo from Rieckers for overstating the time spent in an employee meeting with Supervisor Danielson on May 4. As the memo pointed out, Danielson had told the employees to take credit for one-tenth of an hour for that meeting, but Richards took two- tenths of an hour, contrary to all the other employee who fol- lowed Danielson’s direction on the time recorded for the meet- ing. Rieckers viewed this as an intentional falsification of time in violation of Rule 22 to increase her performance numbers. Rieckers also mentioned the March 30 suspension for violating the same Rule 22 as involved in this incident and its caution that a further violation would result in termination. Nevertheless, he added, Respondent was not terminating her but giving her an- other chance. He did warn her that another such violation would result in her termination. (Tr. 573, 575, Jt. Exh. 2(f).) In her testimony, Richards did not dispute taking the extra time. (Tr. 204, 318–319.) On June 17, 2020, Richards was suspended for 3 days for wasting time in violation of Rule 8, essentially taking 43 minutes for a lunch break instead of the allotted 30 minutes on June 8. The suspension notice stated that she was observed taking the extra time and a review of the Respondent’s records confirmed the matter. (Jt. Exhs. 2(g) and 3(h).) See also (Tr. 576–578). This was based on a report from Supervisor Penley, who ob- served Richards talking with another employee, Johnston, after the end of their lunch period when they should have been work- ing. (Tr. 578.) Johnston was also disciplined for violating Rule 8. (Tr. 207–208.) The substance of Richards’ time discrepancies was confirmed by an analysis of her time scanning records. (Tr. 576–580, R. Exh. 17.) Because Richards was already on pro- gressive discipline, this violation required another suspension. (Tr. 577.) The suspension document also made it clear that, if 7 Richards did not deny the accuracy of the records that showed she entered inaccurate information to inflate her production numbers. But she did acknowledge that the recordkeeping was sloppy (Tr. 196) and blamed her problems on the absence of clocks within her view (Tr. 350, 694). But Rieckers credibly pointed out that at least some of the 7 clocks in the warehouse were well within Richards’ view. (Tr. 557–558.) Richards’ testimony on this matter was a series of excuses. She even tried to explain that other employees, who unlike her, were able to accu- rately record their time, did so because they had cell phones and she did not. (Tr. 695.) I found her testimony in trying to escape liability for clear Richards violated any other rule within the next 2 years, it would be cause for termination. (Tr. 580, Jt. Exh. 2(g).)8 The Discharge The next incident that resulted in a Richards discipline—actu- ally, her discharge—occurred on December 31, 2020. On that day, Richards was assigned by Manager Danielson to work in the inbound area putting away small parts because of a shortage of outbound work and a staff shortage for inbound work. (Tr. 234.) Although she was normally assigned to work in the out- bound area, Richards was familiar with inbound work. She ad- mittedly had done that work at least 10 to 15 percent of the time in her 24-year career with Respondent. (Tr. 347–348.) Rieckers testified that Richards had done inbound work much more often, including several days prior to December 31. (Tr. 602.) The putaway job requires putting parts into their assigned location and a scanner is used to indicate that the job has been completed and the time allotted is also recorded. (Tr. 462.) Richards ad- mitted that she struggled with her performance that day. (Tr. 240–241.) She did mention her problems to Manager Danielson, who authorized an adjustment for extra time lost. (Tr. 244, 527, GC Exh. 16.) But she did not ask for help from Supervisor Trappe, the inbound supervisor, who credibly testified that he only had a brief 10-second encounter with Richards in the after- noon on December 31. (Tr. 687–688.)9 In accordance with normal procedures, Respondent reviewed Richards’ December 31, 2020, performance records. Rieckers, who personally reviews such information daily, also reviewed the productivity rates of other employees on other days during that week. (Tr. 469.) When he reviewed Richards’ performance on December 31, he found that it was 6.7 lines below expecta- tions. (Tr. 465–466.) The expectation for this job was 18.7 lines. (Jt. Exh. 8.) In addition to his review of the documents, Rieckers received reports about the matter from his Reno supervisory staff (Tr. 466). He also communicated with HR representatives about what to do about Richards’ low production on December 31. They endorsed a suspension and a further investigation and later the decision to discharge Richards. (Tr. 512–513, 602–603, 666–667.) On January 7, 2021, Rieckers met with Richards to discuss her low production on December 31. (Tr. 467–468.) Also attending that meeting, in addition to Reickers and Richards, were Dan- ielson and fellow employee Darren Boldt (Boldt), who acted as a union representative on behalf of Richards. As a result of the meeting, Richards was given a document stating that she was suspended. The suspension document states that she was sus- pended pending further investigation for underperforming dur- ing the day of December 31, including several gaps during the falsifications was not credible. It also reflected adversely on the reliabil- ity of the rest of her testimony in this case. 8 Richards’ testimony on this matter does not dispute the essentials of the time difference. Tr. 205–206. 9 I reject Richards’ testimony that she asked for help from Supervisor Trappe on three occasions. Tr. 242–243. Supervisor Trappe’s contrary testimony was confirmed by a memo he sent to Rieckers. (R. Exh.) 16. It is also significant that Supervisor Trappe was never accused of harbor- ing union animus against Richards. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 workday. The document cites Rule 15, which prohibits the fail- ure to perform job duties in a prescribed manner. (Jt. Exh. 3(g).) Rieckers stated that the matter would go to HR for further re- view. (Tr. 604.) He also mentioned that Richards had a history of wasting time and her job results for December 31 were far below expectations. (Tr. 401, 411.) Richards reacted angrily to the suspension, stating that it was “bullshit,” that the day in ques- tion was the day before a holiday, and that there were plenty of other times she “should have been fired,” but not this time. (Tr. 535, 604, 606, 694.)10 After the suspension meeting, Rieckers made a further dive into Richards’ production records for December 31 in response to an explanation letter for the low production sent to him by Richards the day after the suspension meeting. Rieckers testified in great detail about the production records, which refuted Rich- ards’ explanation. (Tr. 581–596, 599–602, 606–607, Jt. Exh. 2(i).) His detailed testimony, the substance of which he again shared with an HR representative, supports the suspension and the subsequent discharge. (Tr. 602–603, 678–679.) On January 12, 2021, Richards was sent a letter, signed by Rieckers, stating that she was being discharged after a full inves- tigation of the December 31 matter, including reconsideration of Richards’ explanation letter. Rieckers’s letter stated that the in- vestigation showed that Richards had in fact violated Rule 15 on December 31 and that the discharge was justified by an addi- tional rules’ violation due to her active disciplinary record. (Jt. Exh. 2(h).) That active disciplinary record included previous warnings and suspensions for falsifying time to increase her production. As indicated above, she was not terminated for some of those previous offenses although she could have been. But she was given second and third chances because of her seniority and spe- cifically warned that she could be terminated for further of- fenses. She was thus treated more favorably than other employ- ees, including an employee who was fired for his first offense of falsifying time in October of 2015. (Tr. 614–615.) Respondent also fired another employee later in 2021 for a similar offense. See (Tr. 617–619). Before issuing each discipline to Richards in calendar year 2020, as well as prior to the discharge, Rieckers consulted the Respondent’s human relations department in Greensboro. He spoke mostly with Waters, but also, on some of the disciplines, with Youngdale. (Tr. 507, 574.) There is documentary evidence on these communications. See, for example (GC Exhs. 18(a)- (e)). Waters and Youngdale endorsed the disciplines and testified to that effect. I found both to be very candid and reliable wit- nesses on the issue. Waters was particularly impressive. He has considerable experience and expertise in employee relations and in dealing with unionized workplaces and that is why he was consulted. In approving the disciplines, he was well aware of the sensibilities of handling the discipline of employee union sup- porters such as Richards and the concerns about the possible fil- ing of unfair labor practice charges. (Tr. 662–672, 675.) I find 10 On the morning of January 7, 2021, before the suspension meeting that afternoon, Manager Danielson had given Richards her annual eval- uation. He knew, in the morning meeting with Richards, that she was being investigated for her low production on December 31, 2020, but he nothing wrong in Waters considering such sensibilities and pos- sibilities and his involvement in the disciplines was perfectly proper. Youngdale, also advised local management on some of the disciplines. (Tr. 677–678.) He testified particularly about the final discipline issued to Richards related to the December 31, 2020 incident. (Tr. 678.) After considering the matter, he de- cided to recommend discharge. (Tr. 679.) The endorsement of both Waters and Youngdale supports the propriety of the disci- plines, including the discharge. III. DECISION AND ANALYSIS The only question in this case is whether Richards was dis- charged because of her union activities. Such cases are analyzed under the test set forth in Wright Line, 251 NLRB 1083 (1980), enf’d on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). As the Board has recently stated: Under Wright Line, the General Counsel must satisfy the initial burden of showing by a preponderance of the evidence that the employee’s union or other protected concerted activity was a motivating factor in the employer’s adverse employment ac- tion. The General Counsel meets this burden by proving that (1) the employee engaged in Section 7 activity; (2) the em- ployer knew of that activity; and (3) the employer had animus against the Section 7 activity, which must be proven with evi- dence sufficient to establish a causal relationship between the [adverse action] and the Section 7 activity [footnote omitted]. Once the General Counsel sustains her initial burden, the bur- den shifts to the employer to show that it would have taken the same action even in the absence of the protected activity. Security Walls, LLC, 371 NLRB No. 74, slip op. 3 (2022). Applying the above principles, I find that the General Counsel has not met the initial burden of proving that the discharge of Richards was discriminatory. There is, of course, no doubt that Richards was involved in union and protected activity and that Respondent knew about her activities. But what has not been shown is that her discharge was caused by such activities or that any animus displayed toward Richards had a causal connection to the discharge or the previous disciplines leading up to the dis- charge. Rather the discharge was caused by the well-established production failures of Richards on December 31, 2020, pursuant to a progressive disciplinary policy that justified her discharge after a string of well-supported disciplinary measures against Richards over the past year. The examples cited by the General Counsel of union animus directed toward the Union, and more specifically towards Rich- ards, are flimsy at best. First of all, Respondent deals with the Union and has bargaining agreements with the Union at most of its warehouse facilities. And, although it initially opposed the Union coming into the Reno facility and one of its representa- tives gave speeches against union representation prior to the April 2019 election, Respondent did not contest the election did not know she would be suspended that afternoon. (Tr. 527, 534– 535.) He later told Richards that he would not have had the evaluation meeting had he known of the suspension. (Tr. 251.) VOLVO GROUP NORTH AMERICA, LLC 7 results. Nor, in the entire 2-year period covered in this proceed- ing, did Respondent engage in any other violations, whether of Section 8(a)(1) or Section 8(a)(5), independent of the discharge allegation involved here. It is also significant that there is no allegation in the complaint that any of the disciplines prior to the last one that led to the dis- charge of Richards violated the Act. Nevertheless, counsel for the General Counsel cites several instances, both in bargaining sessions and in connection with Richards’ dealings with Re- spondent as the self-styled “de facto” union steward, which she asserts not only shows animus but also, as she must, a causal connection to the disciplines and the discharge. This is uncon- vincing. Nothing in the cited examples showed the kind of ani- mus that would even suggest that Respondent would invoke dis- cipline for what Richards said or did. Indeed, many of the state- ments attributed by the General Counsel to management officials that were alleged examples of animus against Richards were simply statements of opinion. See for example, the General Counsel’s reliance (GC Br. 46–47) on the statements that Rich- ards was not to be trusted for factual assertions made both in connection with a March 2020 bargaining session and in a July 2019 email exchange between management officials. (Tr. 82, GC Exh. 18(a).) Those were the types of statements protected by Section 8(c) of the Act. See United Site Services of Califor- nia, Inc., 369 NLRB No. 137, slip op. 14 at fn. 68 (2020). As shown in the factual statement, Respondent treated Rich- ards fairly in all of its dealings with her with regard to any work- related problems she advanced. And the disciplines, including the discharge, were solidly supported by underlying records, and had nothing to do with any of Richards’ union or protected ac- tivity. The following analysis of the disciplines compared with Richards’ contemporaneous union or protected activity refutes any finding of animus against Richards and any causal connec- tion between the two, whether temporally based or otherwise. Any reliance on the pre-election speeches in April 2019 and the rescinded oral warning issued to Richards right after the elec- tion or even whatever happened in the bargaining sessions in Au- gust and October 2019 as providing motive for the discharge in January 2021 is without merit. Indeed, the conduct itself, what- ever its substance for showing animus, is far removed from the first discipline of Richards. That was the March 13, 2020, a ver- bal warning for clocking out late after a coaching for an earlier violation. Richards did not dispute the facts of what caused the verbal warning and nothing in the circumstances surrounding the issuance of the verbal warning suggests her union activity was a part of its motivation. Indeed, another employee was likewise warned for the same offense at the same time.10 The next disciplines of Richards came on March 26, 2020, and on March 30, 2020. The first was a written warning for wasting time when she should have been working by talking to another 10 Nor was whatever happened in the February 2020 bargaining rele- vant to the verbal warning since Eblin testified that nothing that hap- pened in that bargaining stood out with respect to Richards. (Tr. 80.) 11 Eblin also testified that Halas made essentially the same remarks about not trusting Richards to him in a private meeting during the July 2020 bargaining session. (Tr. 83–84.) This was so similar to the earlier statement to him by Halas, again in a private one-on-one meeting, that it raises doubts about the reliability of the testimony on this point. Not only employee, whom she did not identify, thus precluding a similar warning being issued to that employee. Here again there was no dispute on the facts and nothing connected with the issuance of that warning suggests it was discriminatorily motivated. The March 30 discipline included a 5-day suspension for falsification of time, which was based on a detailed analysis of Respondent’s records that fully supported the factual basis for the suspension. Indeed, Richards was given a break by simply being issued a suspension because violation of the rule involved normally re- sults in a termination. Nothing in the delivery of this suspension suggests a discriminatory motive. Surely the alleged animus against Richards in 2019 is attenu- ated in time as a cause for the March 2020 disciplines. The Gen- eral Counsel relies on (GC Br. 46) Eblin’s testimony of an inci- dent that occurred during the only contemporaneous bargaining session with the March disciplines—that which occurred in March 2020. Eblin testified that, on one day of that session, Halas, a vice-president out of Respondent’s headquarters who was representing the Respondent, ran into Eblin in a one-on-one meeting near the elevator. According to Eblin, Halas told him to be careful in dealing with Richards because she “made stuff up.” (Tr. 81–82.) That statement is similar to another one also alleged to show animus based on an internal email in July of 2019 be- tween Rieckers and Waters. (GC Exh. 18(a).) Both are simply statements of opinion protected by Section 8(c). Significantly, with regard to the Halas statement made privately to Eblin, there is no evidence that Halas, who is not an HR person, played any role in the two March 2020 disciplines of Richards.11 In another effort to show contemporaneous examples of ani- mus, the General Counsel also cites several meetings between Rieckers and Richards in March of 2020 with respect to her role as de facto union steward. (GC Br. 15.) But there is no evidence that the exchanges (Tr. 186–180, 191–192) revealed any union animus on Rieckers’s part and the evidence simply shows that Rieckers dealt with Richards in a fair and professional way. More importantly, there is no evidence that Richards’ contempo- rary union or protected activity played any part in the March 2020 disciplines. As stated in the factual analysis, both disci- plines were well supported by documentary evidence. There is no evidence of contemporaneous union or protected activity by Richards prior to her May 13, 2020 citation for vio- lation of Rule 22, with another caution that further violations could result in termination. The discipline is well supported and there is no evidence that it was discriminatorily based. The same applies for the 3-day suspension of June 17, 2020, for taking a longer lunch break than allotted. That Richards was not specifi- cally targeted for that violation is shown by the fact that the other employee who was with Richards during that lengthy lunch was also disciplined for that infraction. Finally, the last bargaining session Richards attended before is the statement not the type to be repeated at different times, but the fact that no one else was present on both occasions is concerning, especially considering other examples of Eblin’s unreliability discussed elsewhere in this decision. But, in any event, the statement suffers from the same infirmities in showing relevant causally connected animus as the earlier one because it was made by someone not involved in the disciplinary process. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 her January 2021 discharge was in October of 2020. (Tr. 229.) In an attempt to show contemporary animus for the discharge, the General Counsel apparently relies on Eblin’s testimony about a statement made at the October bargaining session. (GC Br.24– 25.) According to Eblin, at that session, Richards raised a ques- tion about employees getting into trouble for taking leave be- cause of Covid, which Waters deemed “an asinine question.” Immediately thereafter, Halas made it clear that Respondent would not fire anyone because of Covid. (Tr. 87.) In view of my problem with the reliability of Eblin’s testimony, as dis- cussed elsewhere in this decision, I am not sure I can rely on his testimony here. This is particularly so because Richards did not mention the incident in her testimony about the October 2020 meeting (Tr. 226). Because the statement was allegedly ad- dressed to her, if the statement were made as Eblin testified, it would be likely that Richards would have mentioned it in her testimony. In any event, calling a question “asinine” in a bar- gaining session is mild indeed when compared with the kinds of language often associated with the rough and tumble of collec- tive bargaining, which does not, of course, match the decorum of the drawing room. Richards herself commented on the conten- tious and argumentative conduct engaged in by the Union’s chief negotiator at an earlier session. (Tr. 162.) And another negoti- ator on the Union side, employee Boldt, testified that that same union negotiator referred to management representatives as “a bunch of Hitlers.” (Tr. 389.) In these circumstances, it is hard to see how Waters’ remark that a question by Richards was “as- inine” shows any union animus. Nor was it shown to have been causally connected to the January discharge of Richards. And there was no further evidence that this statement was used in any way during the deliberations concerning the discharge of Rich- ards. The General Counsel also apparently relies on exchanges that Richards had with Danielson in late November or early Decem- ber 2020 to again show animus evidence contemporary with the discharge. (GC Br. 25.) The first was about Covid return to work protocols, which was unremarkable. See (Tr. 230). The second was about training and bonuses for new employees. (Tr. 231.) Danielson thought that the new hires would be aware of this at the time of hire, but nevertheless told Richards he would pass the question on to Rieckers. (Tr. 231–232.) Neither exchange shows animus and the incidents confirm that Respondent took Richards’ complaints seriously. Indeed, Richards forwarded some of them to Eblin since they seemed like issues that were best dealt with at the bargaining table. See (Tr. 230–234). Nor is there any evidence that Danielson relied on those exchanges to weigh in on the discharge of Richards. He had no advance knowledge that Richards was going to be suspended and he played no role in the subsequent discharge. There is thus no causal connection between the late November or early December exchanges between Danielson and Richards and the Richards discharge about a month later. Not only were the above incidents not reflective of union ani- mus against Richards, but they were not causally connected to Richards’ discharge. Moreover, the discharge itself was clearly 12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended supported by Respondent’s records, as explained in the factual statement. And her discharge was the last step in the progressive disciplinary policy that included a string of other proper disci- plines throughout the year, some that treated Richards with leni- ency because of her seniority and were accompanied by warn- ings that future violations would result in termination. The dis- charge itself was thus well supported by nondiscriminatory con- siderations. That the discharge was not discriminatory is also supported by the fact that other employees were fired for a sim- ilar offense, even, in one instance, for a first-time offense of fal- sifying time. I find particularly telling the statement made by Richards during the suspension meeting concerning her antici- pated discharge. She said she deserved being fired for previous derelictions, but not for those on December 31. In these circumstances, the General Counsel has failed to meet her initial burden of proving that the discharge of Richards was unlawfully motivated. The discharge was for the reason stated and it was not pretextual, which would require a finding, that I cannot make on this record, that the reason given was “either false or not actually relied on.” See Hard Hat Services, LLC, 366 NLRB No. 106, slip op. 7 (2018). I therefore find that the General Counsel failed to prove that Respondent discharged Lisa Richards for unlawful reasons, and Respondent did not violate Section 8(a)(3) and (1) of the Act by terminating Richards’ employment on January 12, 2021. CONCLUSION OF LAW 1. The Respondent Volvo Group North America, LLC. Is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party Union, United Automobile, Aero- space, and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated the Act by discharging employee Lisa Richards. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12 ORDER The complaint herein is dismissed in its entirety. Dated, Washington, D.C. March 31, 2022 Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.