Genpak LLC

372 NLRB No. 76 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. Genpak, LLC and Retail, Wholesale and Department Store Union, Mid-South Council. Case 15–CA– 237525 April 19, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY On April 11, 2022, Administrative Law Judge Christine E. Dibble issued the attached decision. The General Counsel filed exceptions and a brief in support, the Re- spondent filed an answering brief, and the General Coun- sel filed a reply brief. 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 conclusions only to the extent consistent with this Decision and Order. This case involves allegations that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by disciplining and discharging employee Horace Brown in January and Feb- ruary 2019, respectively. The judge dismissed both com- plaint allegations, finding that the General Counsel failed to sustain her initial burden under Wright Line.2 Specifi- cally, the judge found that neither Brown’s final written warning for “stealing time” nor his discharge for violating the Respondent’s zero-tolerance Lockout/Tagout (LOTO) policy were motivated by animus. We adopt the judge’s dismissal of the discharge allegation.3 However, for the reasons set forth below, we find, contrary to the judge, that the Respondent violated Section 8(a)(3) and (1) by disci- plining Brown for his union activity. 1 The General Counsel 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. 2 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. Transpor- tation Management Corp., 462 U.S. 393, 399–403 (1983). 3 In finding that the Respondent did not violate Sec. 8(a)(3) and (1) by discharging Brown, the judge found that the General Counsel failed to sustain her initial Wright Line burden. We find that even assuming, without deciding, that the General Counsel sustained her initial burden, the Respondent met its defense burden under Wright Line. Specifically, we find in agreement with the judge that Brown violated the Respond- ent’s zero-tolerance Lockout/Tagout (LOTO) policy by placing his entire Background The Respondent manufactures disposable food contain- ers at its factory in Hope Hull, Alabama (the “HH Plant”). Employee Horace Brown worked at the HH Plant since it opened in 2003. In 2018, Brown contacted the Union to discuss unionizing his workplace. It is undisputed that Brown led the subsequent union campaign and that he was the most visibly prounion employee at the HH Plant. It is also undisputed that the Respondent knew of Brown’s un- ion activity. An election was scheduled for July 31, 2018. During the week prior to the election, a lead packer requested that Brown come in and work on his day off, due to staff short- ages. It was common for Brown to work overtime in this manner, and he agreed to work the requested time. How- ever, upon Brown’s arrival, a supervisor ordered Brown to return home. On Brown’s next regular workday, Kenneth Pierson, the highest-level manager at the HH Plant, brought Brown into the human resources office. Pierson informed Brown that he was being suspended for going to the HH Plant without permission to work and that this suspension would continue until an investigation was complete. Brown’s suspension prevented him from coming to work in the days immediately prior to the election. Because he did not have to work, Brown stood at the road in front of the HH Plant and handed out union literature. On the day of the election, Brown came to the HH Plant to serve as an election observer. A supervisor let Brown into the HH Plant and stated that management had been unsuccessfully attempting to contact Brown to inform him that he could begin working again. The Respondent sub- sequently recalled Brown and paid him for the time he had been suspended. The record does not contain any evi- dence indicating that a disciplinary document was gener- ated in connection with Brown’s suspension or the related investigation. upper torso past a machine’s guards to look inside the machine while it was still running. By its terms, the LOTO policy makes clear that Brown’s violation was grounds for his immediate discharge, and we find that the Respondent would have discharged Brown for this violation even in the absence of his protected activity. Member Wilcox joins her colleagues in affirming the judge’s dismis- sal of the discharge allegation. Because she finds that the Respondent met its defense burden, Member Wilcox finds it unnecessary to address the judge’s discussion of causation. Member Wilcox notes, however, her agreement with Chairman McFerran’s concurring opinion in Tschiggfrie Properties, Ltd., wherein the Chairman found the majority’s “clarifica- tion” of Wright Line principles unnecessary, and the concepts discussed by the majority there as “already embedded in the Board’s body of Wright Line cases.” 368 NLRB No. 120, slip op. at 10 (2019). Member Wilcox also notes that she did not participate in Electrolux Home Prod- ucts, 368 NLRB No. 34 (2019), which was cited by the judge, and ex- presses no views as to whether it was correctly decided. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In 2018, the Respondent implemented an updated zero- tolerance LOTO policy in response to an accident at one of its facilities. The LOTO procedures are designed to protect workers from harm by ensuring a machine or piece of equipment is turned off and inoperable before perform- ing maintenance. The updated LOTO policy stated that a violation of its procedures would be grounds for immedi- ate discharge. In November 2018, Brown was working as a lead for two other employees, Melissa Tatum and Eric Slater.4 Ta- tum and Slater violated the Respondent’s LOTO policy, and the Respondent discharged them. The Respondent then initiated a disciplinary process against Brown on the basis that Brown had failed to keep Tatum and Slater from violating the LOTO policy. The Respondent ordered Pro- duction Supervisor Cardell O’Brian to prepare a discipli- nary document regarding Brown’s conduct in this inci- dent. O’Brian testified that he was not aware of an em- ployee ever being disciplined on a similar basis, and the record does not contain any evidence indicating that the Respondent ever disciplined an employee in this manner. Ultimately, the Respondent did not discipline Brown based on the incident involving Tatum and Slater.5 On January 23, 2019,6 Brown needed to leave work early. About 10 minutes before the end of his shortened shift, Brown told O’Brian that he was leaving and began walking towards the timeclock. He arrived at the timeclock at 3:51 p.m. but did not clock out until 3:59 p.m. Nothing prevented him from clocking out immediately. During this period, Production Supervisor John Hinton asked O’Brian about Brown’s whereabouts. O’Brian an- swered that Brown had left for the day. While he was talk- ing to O’Brian, Hinton realized that another employee ap- peared to have not returned from a break. Hinton wanted to verify that the other employee had not yet returned. He therefore reviewed footage from a camera that recorded the area around the timeclock. While reviewing the foot- age, Hinton observed Brown standing for around 10 minutes in front of the timeclock before clocking out. The Respondent issued Brown a final written warning for stealing time. The disciplinary document describes Brown’s infraction as “[o]bserved waiting in hallway for more than 10 minutes waiting for the clock to reach 4:00 pm.” Nothing in the record indicates that Brown had ever previously been disciplined for stealing time. The judge found that the Respondent did not violate Section 8(a)(3) and (1) by disciplining Brown because of 4 A lead oversees whether other employees are doing their job cor- rectly. There is no contention that a lead is a statutory supervisor. 5 Although the judge did not describe this incident in her Findings of Fact, she acknowledged it in her Discussion and Analysis, and no party disputes that it occurred as described above. his union activity. The judge found that the General Coun- sel failed to sustain her initial Wright Line burden of demonstrating that Brown’s discipline was motivated by animus toward his protected activity. In so finding, the judge rejected the General Counsel’s contentions that Su- pervisor Hinton’s decision to review the cameras and the disciplinary document’s description of the incident were evidence of pretext. She also found no evidence of dis- parate treatment, distinguishing the General Counsel’s of- fered comparators on the grounds that they were disci- plined for different offenses or by different supervisors. Additionally, the judge found that the 6-month gap be- tween Brown’s union activity and his discipline precluded a finding of animus. Contrary to the judge, we find that the Respondent’s is- suance of a final warning to Brown violated Section 8(a)(3) and (1) as alleged. Discussion To begin, we find that the Respondent’s animus is com- pellingly demonstrated by its disparate treatment of Brown. Although some of the General Counsel’s offered comparators were not disciplined for stealing time, three of the offered comparators clearly committed similar or worse time-stealing offenses than Brown and received lesser discipline. Specifically, on September 21, 2018, employee Ashley Acoff was disciplined for stealing time in the amount of 34 minutes. Despite her offense being more than three times longer than Brown’s, the Respond- ent merely issued Acoff a verbal warning. The Respond- ent also issued a verbal warning to employee Sarah Brown (S. Brown) on March 11, 2018, for sitting down while her machine was idle when she was expected to be cleaning. And on March 28, 2018, the Respondent issued employee Nicholas Sparks a non-final written warning for sleeping in a maintenance shed while on the clock and for failing to attend mandatory safety meetings. We find no merit to the judge’s finding that Acoff and S. Brown were not valid comparators because they were disciplined by different management officials. The fact that the disciplined employee received discipline from a different official does not, standing alone, distinguish that employee from a non-disciplined comparator. See, e.g., Keller Manufacturing Co., 237 NLRB 712, 715, 736 & fn. 5 (1978) (reversing judge’s finding that disparate disci- pline of employee Milchling was not unlawful because different supervisors were involved), enfd. in part, enf. de- nied in part without opinion 622 F.2d 592 (7th Cir. 1980).7 6 All subsequent dates refer to 2019 unless otherwise indicated. 7 See also BS&B Safety Systems, LLC, 370 NLRB No. 90, slip op. at 1–2, 12–13 (2021) (holding that disparate treatment supported finding of animus in discipline of union president Stroup for a production error, when “production errors occur[red] daily,” and neither the Board nor the GENPAK LLC 3 We further find no evidence in the record that would pro- vide a basis for distinguishing the circumstances of the Re- spondent’s discipline of Sparks.8 Further, Brown testified without contradiction that he had never previously been disciplined for stealing time. His discipline was thus inconsistent with the Respondent’s progressive discipline system, wherein a final written warning is the third step in the disciplinary process. We therefore find that Acoff, S. Brown, and Sparks are valid comparators, and their lower level of discipline as com- pared to Brown’s establishes disparate treatment. In addition to the evidence of disparate treatment, we find that the Respondent’s suspension of Brown in July 2018 and its near-disciplining of Brown in November 2018 provide background evidence of animus. See gener- ally Wilmington Fabricators, Inc., 332 NLRB 57, 58 fn. 6 (2000) (events outside the Section 10(b) period may be treated as background evidence to establish animus). First, the suspension and the purported investigation in July 2018 were suspicious both procedurally and in terms of timing. The suspension occurred just a few days prior to the election, thereby preventing the visibly prounion Brown from working during that time. Moreover, the bona fides of the investigation are called into question both by the fact that there is no documentation of it in the record and by what occurred when Brown returned to the plant on election day. Brown had been suspended in the days before the election and ordered to stay away from the plant until the investigation was completed. When Brown arrived at the plant on election day to serve as an election observer, the Respondent told Brown that management had been unsuccessfully trying to reach him to tell him he could return to work. The Respondent then told Brown that he would be recalled for work and paid for the time he had been suspended. The record is clear, however, that the Respondent regularly contacted Brown to work over- time, without difficulty reaching him. Second, the near-disciplining of Brown in November 2018 for LOTO violations committed by other employees demonstrates an effort to target him for an unprecedented form of discipline. There is no record evidence of an judge discussed whether different supervisors chose the discipline for such errors); Guardian Automotive Trim, Inc., 340 NLRB 475, 475 fn. 1 (2003) (referring only to the Respondent employer, and not individual supervisors, in finding that the employer “did not issue a lesser corrective action to [discriminatees] Powell and Smith as it did in regard to other employees disciplined by the Respondent for similar conduct.”), enfd. 136 Fed.Appx 764 (6th Cir. 2005); Burger King Corp., 279 NLRB 227, 239 (1986) (no reference to specific supervisors in referencing that “dis- charges in the past for misconduct invariably required a history of poor attitude or conduct of an aggravated nature”), enfd. 812 F.2d 1413 (11th Cir. 1987). 8 The judge did not provide any specific basis for distinguishing Sparks as a comparator other than generally remarking that the record employee receiving similar discipline. Although Brown was ultimately not disciplined, the serious consideration of disciplining Brown, and the preparation of a discipli- nary document in these circumstances, was extremely un- usual. It strongly suggests that the Respondent was cast- ing around for reasons to discipline Brown and was will- ing to utilize novel disciplinary measures to do so. See, e.g., TM Group, Inc., 357 NLRB 1186, 1186 fn. 2, 1200 (2011) (circumstantial evidence of suspicious timing and departures from past practices support inferences of ani- mus and discriminatory intent). We find misplaced the judge’s reliance on the 6-month gap between Brown’s union activity and the date on which he was disciplined for stealing time. While the proximity in time between protected activity and discipline is a rele- vant consideration under Wright Line,9 timing is not itself necessarily determinative.10 Additionally, the cases cited by the judge are distinguishable. In each of those cases, the time between an employee’s protected activity and dis- cipline was a factor the Board considered, but only as one element within the broader inquiry and never as a solely determinative factor. See, e.g., Snap-On Tools, Inc., 342 NLRB 5, 9 (2004) (acknowledging distance in time be- tween discipline and protected activity, but also relying on lack of disparate treatment to find no evidence of animus “[i]n these circumstances”). Further, it is well established that “an employer might wait for a pretextual opportunity to discipline an employee,” and thus, the Board has found animus even when several months have passed since an employee’s protected activity. United Parcel Service, 340 NLRB 776, 776 fn. 10 (2003) (finding that a respondent’s expression of hostility toward an employee’s protected ac- tivity that was made about 6 months prior to that em- ployee’s discharge was “not too remote in time” from the discharge to establish animus), enfd. 2005 U.S. App. LEXIS 8982 (6th Cir. 2005). We therefore find that the 6-month distance in time does not undermine the strong evidence of animus. Having found that the General Counsel met her initial Wright Line burden, the burden shifts to the Respondent to demonstrate that it would have issued Brown a final does not contain an exhaustive disciplinary history of Brown and the of- fered comparators. 9 See, e.g., Real Foods Co., 350 NLRB 309, 312 fn. 17 (2007) (ex- plaining that animus may be demonstrated by several types of circum- stantial evidence, including “timing, disparate or inconsistent treatment, expressed hostility toward the protected activity, departure from past practice, and shifting or pretextual reasons being offered for the action”). 10 See, e.g., Naomi Knitting Plant, 328 NLRB 1279, 1282–1283 fn. 18 (1999) (“Contrary to the judge, we do not find that the timing factor necessarily favors a respondent whenever the discipline is imposed, as in this case, immediately following the alleged infraction. An employer might wait for a pretextual opportunity to discipline an employee for en- gaging in protected activity.”). 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD written warning even in the absence of his protected activ- ity. We find that the Respondent has not met this burden. Significantly, and as noted above, the record contains no other instance in which the Respondent issued a final writ- ten warning to an employee for stealing time for approxi- mately 10 minutes, as it did to Brown. The Respondent had not previously disciplined Brown for stealing time, and the record does not contain any other relevant offenses that would have warranted a final written warning. Nor is there evidence indicating that the Respondent typically is- sued a final written warning for a first offense in this re- gard rather than availing itself of the other measures de- scribed in the Respondent’s progressive discipline policy, e.g., a verbal warning or a non-final written warning. The Respondent’s evidence, therefore, is clearly insufficient to sustain its defense burden under Wright Line. In sum, we find that the General Counsel demonstrated that Brown’s discipline was motivated by animus toward his protected activity and that the Respondent failed to demonstrate that it would have issued Brown a final writ- ten warning even in the absence of his protected activity. Accordingly, we find that the Respondent violated Section 8(a)(3) and (1) by issuing Brown a final written warning. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by issuing a final written warning to Horace Brown because he engaged in union activity. 4. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not otherwise violated the Act as alleged in the complaint. REMEDY Having found that the Respondent engaged in an unfair labor practice, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. 11 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic Specifically, having found that the Respondent violated Section 8(a)(3) and (1) by issuing a final written warning to Brown because he engaged in union activity, we shall order it to cease and desist from such conduct. We shall also order the Respondent to rescind the warning against Brown, expunge that warning from its files, and to notify Brown in writing that this has been done and that the un- lawful discipline will not be used against him in any way. ORDER The National Labor Relations Board orders that the Re- spondent, Genpak, LLC, Hope Hull, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Issuing disciplinary warnings to employees because of their support for and activities on behalf of Retail, Wholesale and Department Store Union, Mid-South Council (the Union). (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discipline of Horace Brown, and within 3 days thereafter, notify Horace Brown in writing that this has been done and that the dis- cipline will not be used against him in any way. (b) Post at its Hope Hull, Alabama facility copies of the attached notice marked “Appendix.”11 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 15, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GENPAK LLC 5 Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since January 23, 2019. (c) Within 21 days after service by the Region, file with the Regional Director for Region 15 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. April 19, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT issue disciplinary warnings to you be- cause of your support for and activities on behalf of Retail, 1 All dates are in 2019, unless otherwise indicated. Wholesale and Department Store Union, Mid-South Council (the Union). WE WILL NOT in any like or related manner interfere with the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any references to the unlaw- ful discipline of Horace Brown, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the unlawful discipline will not be used against him in any way. GENPAK, LLC The Board’s decision can be found at www.nlrb.gov/case/15-CA-237525 or by using 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. Amiel J. Provosty, Esq., and Alexandra Roath-Schule, Esq., for the General Counsel. Michael D. Billok, Esq., and Nahla Sikkander, Esq., for the Re- spondent. DECISION STATEMENT OF THE CASE CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried, by agreement of the parties, using Zoom technology on May 10, 2021. Retail, Wholesale and Department Store Un- ion, Mid-South Council (the Union), filed the original charge in Case 15–CA–237525 on March 12, 2019.1 The charge was amended by the Union on April 9, and again on February 14, 2020. The Regional Director for Region 15 (the Region) of the National Labor Relations Board (NLRB/the Board) issued the Complaint and Notice of Hearing on February 21, 2020. Genpak, LLC (the Respondent) filed a timely answer on March 2, 2020, denying all material allegations in the complaint. After several intervening motions issued by the parties and ruled on by the Division of Judges and, or the Board, on April 23, 2021, the Region issued the Amendment to Complaint clarifying the names and positions of the Respondent’s supervisors and agents as defined by Section 2(13) of the National Labor Relations Act (NLRA/the Act); and the Respondent filed a response on April 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 29, 2021. The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act when (1) on or about January 27, the Respondent issued a final written warning to its employee Hor- ace Brown; and (2) on or about February 28, the Respondent dis- charged its employee, Horace Brown. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel2 and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a limited liability company with headquar- ters in New York State, manufactures disposable food containers in various plants, including the Hope Hull Plant (HH) in Hope Hull, Alabama. The Respondent, for the relevant calendar year, purchased and received at its HH facility, goods valued in excess of $50,000 directly from points outside the State of Alabama. Therefore, I find that at all material times it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.3 At all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Overview of Respondent’s Operation The Respondent, a limited liability company, operates nine- teen facilities across several states, including Alabama, manu- facturing disposable food containers. The manufacturing plant at issue is the HH plant, a sprawling 400,000 square foot facility, in Hope Hull, Alabama. It is a 24-hour operation with employ- ees, beginning in 2019, working 12-hour shifts. Currently, the HH plant employs about 200 workers.4 The HH plant has, among others, machine operators (operators), packers, leads, floaters, maintenance workers, and supervisors. These employ- ees work in the HH plant’s production department, warehouse, or maintenance department. The HH plant also has an admin- istration department. The HH extrusion department has four shifts of five employees. There are about twenty to twenty-five employees per shift in the thermoforming department, with four shifts in the department. Approximately, thirty-five employees work in the warehouse spread out over three shifts with most warehouse employees working an 8-hour shift. Eighteen to nine- teen employees work in the maintenance department.5 Half of the maintenance employees work the same shift as production employees and the other half work either the day or second shift. The production department is where the plant’s extrusion pro- cess and thermoforming process take place. The thermoforming department has 8 production lines referred to as Alabama 1 through 8. The thermoforming line has one operator and one to 2 Peter Robb was the general counsel when the consolidated com- plaint and notice of hearing was issued. On January 25, 2021, President Joseph R. Biden designated Peter Sung Ohr Acting General Counsel, a role he served in until July 21, 2021. On July 22, 2021, Jennifer A. Abruzo was sworn in as General Counsel of the NLRB. I will refer to actions taken by the three officials (Peter Robb, Peter Sung Ohr, and Jen- nifer A. Abruzzo) as “the General Counsel.” two packers. In February 2019, there was a quota in the ther- moforming area of 4500 to 5000 cases each shift, including for operators, leads and packers. The basic process of making the Respondent’s product has been the same for at least 37 years. The plant makes disposable food containers and Styrofoam prod- ucts using an extrusion process. Plastic pellets delivered to the Respondent via railcar or tank truck are injected with a “nucle- ated” agent and raw agent which becomes sheets of polystyrene foam. The sheets are stored in cold storage for 72 hours and then returned to the thermoforming department to be molded. The molded sheets are sent through the trim press machine, with blades and other parts that cut the product from the formed sheet into disposable food containers. After the machine trims the product, it comes out of the trim press machine onto the packing table in stacks with a marker on the product that allows the packer to grab the correct amount of product to package into a sleeve. If product becomes jammed in the trim press machine, an employee has to enact a series of steps to release the product. Kenneth Pierson (Pierson) started with the Respondent in 2015, as the assistant plant manager at the HH facility. Since December 2016, he has been the HH plant manager. As the plant manager, Pierson is the highest-level manager at HH and respon- sible for overseeing its overall operations. Pierson reports to Re- gional Manager James Cunningham (Cunningham) who over- sees the HH and Montgomery, Alabama plants and plants in Ohio and Indiana. During the period at issue, Cardell O’Brian (O’Brian) was the production supervisor at the HH plant until May 2019, when he resigned to accept a position with another employer. O’Brian supervised the extrusion and thermoforming areas of the production department. In his role, O’Brian, among other duties, maintained the production floor, administered em- ployee discipline, oversaw time and attendance, ensured correct employee scheduling and assignments, oversaw safety protocols, enforced lockout/tagout (LOTO) policies, and monitored em- ployee adherence to work. O’Brian shared an office on the pro- duction floor with four other production supervisors. At the time of the trial, John Hinton (Hinton) had been the process engineer at the HH facility for 3 months; and was an original hire when the HH plant first became operational. Prior to his current position, Hinton spent 3 years as the Respondent’s production manager. Sherrie Moore (S. Moore) has been em- ployed by the Respondent for 7 years; and currently is the human resources manager of the Montgomery, AL facility. Her respon- sibilities include overseeing the human resources coordinator, handling employee disciplinary actions, and overseeing unem- ployment claims, workers’ compensation claims, and investiga- tions. Prior to her most recent role, S. Moore was the human re- sources coordinator at the HH plant; and Kim Hudson (Hudson) was the human resources manager. As the human resources co- ordinator, S. Moore was responsible for payroll, timecards, em- ployee vacation time, employee benefits, and served as backup 3 The parties stipulated to certain facts, including exhibits, that I ac- cepted into the record and have incorporated into the decision. (Jt. Exh. 7.) 4 In 2018, the Respondent employed about 180 workers at the HH plant. 5 The eighteen to nineteen employees were eligible to vote in the un- ion election held at the HH plant on about July 31, 2018. GENPAK LLC 7 to the human resources manager. Currently, Bobbie Clark (Clark) is the HH facility’s human resources manager. During the organizing campaign in 2018, Cathy Sawchuk (Sawchuk) was the director of human resources at the HH plant. (Tr. P. 43.)6 B. Layout of the HH Plant As previously noted, the HH plant is 400,000 square feet with one entrance/exit into the plant for employees and two en- trances/exits available to supervisors and managers. Employees enter the facility through a 20 to 30 feet long hallway. In the hallway there is a door to the right leading into the employee breakroom; and the employee timeclock is on a wall in the hall- way. At the end of the hallway and to the left is the entrance into the production area. The HH plant has a surveillance system of over 30 cameras7 throughout the facility with several being added in the 6 to 8 months prior to this hearing. Specifically, there are multiple cameras in the production area with a video recording camera near the time clock. The Respondent uses cameras to ensure safe operation of the plant, monitor employee performance, and for disciplinary reasons. Managers and the human resources depart- ment are able to view the video recordings that are stored on a hard drive for up to 30 days. After 30 days, the video footage is automatically deleted. Managers with access to these video re- cordings include the production manager and plant manager. The production supervisors can only view the recordings if they are called into the production manager’s or plant manager’s of- fice to see them. Although Pierson and Hinton are authorized to monitor the surveillance videos, neither do so regularly. In early 2019, there was also a safety manager at the plant who had access to the cameras.8 (Tr. 123.) C. Horace Brown’s Union Organizing and Subsequent Events The discriminate, Horace Brown (Brown), worked for the Re- spondent from October 18, 2001 to February 27, 2019. Initially, Brown was hired as a machine operator in the Montgomery plant. In 2003, the HH plant opened, and Brown became one of the first machine operators to work there its first day of opera- tion. He worked a total of 18 years in the thermoforming depart- ment, averaging about 40 hours of overtime each week, until overtime opportunities slowed. In mid-2018, Brown’s supervi- sor, Russell Long (Long) asked him to be a lead which was about 6 months prior to him filing a RC petition. (Jt. Exh. 1(a).) Hinton was production manager at the time. In his role as lead, Brown assisted the supervisor in several tasks: monitor the daily pro- duction and training logs, help packers and thermoforming oper- ators to troubleshoot problems with the thermoforming ma- chines, and train new machine operators on his shift on the ther- moforming machines. In 2018 or 2019, Brown became a floater after he lost the lead position but before he was issued the final written warning dated January 27, for stealing time. (Jt. Exh. 3.) At the time of his termination, Brown was a “floater” where he diagnosed and fixed problems with the thermoforming (trim press) machines. Consequently, he was not assigned to a fixed 6 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Respond- ent’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General Coun- sel’s brief; and “R. Br.” for Respondent’s brief. machine or a single assigned work position. Brown’s responsi- bilities as a lead and floater were essentially the same. In about 2018, Brown contacted the Union about the steps he should take to unionize his workplace. After Brown’s discus- sions with the Union, on June 22, 2018, the Union hand delivered to Pierson the RC Petition seeking to represent “all full time and part time employees” working as warehouse employees, packers, extrusion employees, maintenance employees, quality assurance employees, and machine operators. (Jt. 1.) Pursuant to the Un- ion’s guidance, Brown took the lead in attempting to organize the workplace by talking to workers and answering questions about the benefits of unionization, handing out union cards to workers, and attending union meetings at the union hall. Brown’s union organizing efforts were well known among some of the workers because it was mentioned three to four times a week before the election in the employee breakroom. Marilyn Jones (Jones), warehouse auditor at the HH plant, saw Brown, along with other union representatives, holding prounion signs in the driveway across the street from the Respondent’s em- ployee entrance. Also, on July 10, 2018, Brown testified as a witness for the charging party in a NLRB election hearing. Brown’s testimony at the hearing was cited by the Region in a July 20, 2018, Decision and Direction of Election, petition num- ber 15–RC–22285. (Jt. Exhs. 2, 7.) In an effort to counteract the organizing effort, the Respondent held mandatory meetings two to three times a week to convince workers to vote against unionization. These mandatory meetings lasted for several weeks up until the election, with multiple meet- ings a day to cover every shift. Pierson spoke to employees at some of the Respondent’s mandatory meetings on the benefits of not having union representation and the Respondent’s position opposed to unionization. While at one of the mandatory meet- ings, Brown made a statement in support of the union. Although Pierson testified that he was neutral on the issue of employees voting in a union, he acknowledged that the Respondent is against unionization. The Respondent employed a number of tactics to discourage employees from voting for the union, such as passing out flyers and giving presentations in opposition to unionization. Managers at the HH plant were aware of Brown’s role in lead- ing the union organizing campaign. Approximately midway through the campaign, Pierson became aware that Horace Brown was heavily involved in the campaign for a union. Prior to the union election, Hinton had also heard rumors that Brown was the most prounion employee in the plant. However, from August 1, 2019, to February 20, 2019, Hinton denied engaging in discus- sions with employees and others at the HH plant about Brown’s union activity or monitoring employee’s attitudes about their working conditions while in the employee breakroom. After the July 2018, NLRB election hearing but before the un- ion election, Brown contends that he was suspended for coming to work on his off day without permission. The Respondent de- nies Brown was suspended. It is undisputed that the lead packer 7 Based on witness testimony it appears that all the cameras have video recording capability. 8 The safety manager referenced may be Steve Greenmyer who will be discussed later in the decision. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the time, Vanessa Moore (V. Moore), asked Brown if he could come to work on his day off because the area was short-staffed due to the absence of the lead operator who was ill. Brown agreed and came into work that morning. However, as he was walking to the plant floor, Brown saw Supervisor Allen Russell (Russell) who told him that the front office instructed him to send Brown home if he came to work. (Tr. 259–260.) Consequently, Brown returned home. On his next scheduled workday, Brown returned to work but was told by Pierson to meet him in the hu- man resources office. When Brown got to the office, Pierson told him he was suspended because he came to the plant “without permission to work.” (Tr. 260.) Brown tried to explain to Pierson that V. Moore asked him to work because the area was short-staffed, but Pierson countered that he would be “sus- pended” until an investigation was complete. However, there is no record of a suspension in Brown’s personnel file for June or July 2018 nor any other discipline. Moreover, S. Moore is una- ware and there is no evidence of an unfair labor practice charge (ULP) being filed with NLRB regarding Brown being suspended in June or July 2018. Consequently, I find that contrary to Brown’s testimony, he was not suspended but rather placed on paid leave pending an investigation of the incident. Brown was ultimately recalled and paid for the time he was on leave. Since Brown did not have to work because he had been placed on leave about a week before the union election, he decided to stand on the road in front of the plant and pass out union litera- ture to employees. For 3 days, Brown and three other workers9 handed out union cards and, or flyers as workers entered and ex- ited the plant. On July 31, 2018, Brown came to the HH plant because he and Valerie Schackleford (Schackelford) were elec- tion observers.10 When Brown arrived at the plant, Hudson let him into the building and remarked that they had tried to contact him to get him back to work but no one had his number. (Tr. 263.) Hudson explained that he would be recalled for work and paid for the time he was on suspension. The Union ultimately lost the election; and the results were certified on August 9, 2018. There were mixed feelings among the employees about the election loss. About a week after the loss, a few workers asked Brown how soon before they could try again to unionize. However, Supervisor Montel Anderson (An- derson) blamed Brown’s support for the Union on the Respond- ent’s subsequent reduction in the employees’ healthcare bene- fits.11 Although Brown testified that he was “quiet” about the Union after the election, thereby implying a fear of retaliation for his unionizing efforts, the record shows that he received a higher performance evaluation rating after the election than he got be- fore the union election. (Tr. 408–409; R. Exhs. 5, 6) Also, there is no evidence that Shackleford was disciplined or targeted by the Respondent following the union campaign and election. D. Disciplinary Procedures for Stealing Time and Violating LOTO Procedures There are several actions management can take to discipline 9 None of the three workers campaigning with Brown that day were employees at the HH plant. 10 Brown served as an observer for the election “on behalf of the Charging Party during two July 31, 2018, voting sessions.” (Jt. Exh. 7.) employee misconduct: verbal warning, written warning, final warning, suspension, and termination. The severity of the of- fense factors into the level of discipline meted out to the em- ployee. The Respondent has a policy for the most part to admin- ister progressive discipline for corrective and not punitive pur- poses. An employee’s entire disciplinary file is considered when assessing progressive discipline. Depending on the severity of the offense, however, management may depart from the progres- sive discipline process. (Tr. 390.) Supervisors initiate the disci- plinary process if they witness an employee committing an act on the production floor that warrants discipline. The supervisor will then recommend disciplinary action which is forwarded to human resources for review. The Respondent has a policy of investigating workplace infractions to ensure the discipline is warranted. As the plant manager, Pierson plays a part in the in- vestigation by reviewing the disciplinary action and collaborat- ing with human resources about the appropriate action to take. Hinton, as the production supervisor, also has a role in the disci- plinary process. The Respondent has a written policy addressing employee time keeping procedures. The policy reads in part, You are required to maintain an accurate record of all time worked. Hourly non-exempt employees must record their hours on a time clock. Genpak maintains Biometric time clocks at each location. It is your responsibility to scan your fingers at the be- ginning and the end of your shift, you must scan your finger for meal breaks and when you enter or leave the building for per- sonal reasons, If the clock does not register your finger scan or if you encounter other finger scan problems, notify your super- visor immediately. Employees are expected to be at their work station (sic) promptly at start-up time and wait until properly relieved at the end of their shift before leaving their job area or machine unattended. Employees who continuously have diffi- culty keeping accurate time will be subjected to disciplinary actions up to and including termination. (GC Exh. 14.) An employee who clocks in are in pay status until the employee clocks out. Consequently, employees must be on the clock in pay status in order to commit an act which consti- tutes “stealing time.” Stealing time has been defined as when an employee is “on the clock” but not performing their assigned work. (Tr. 340.) Examples include, unauthorized extensions of lunch and breaks, unauthorized absence from their assigned workstation, and idling. (Tr. 97, 340.) While the General Coun- sel argued that when an employee is late to work, misses a shift or safety meeting also constitutes stealing time, I reject this as- sertion. If an employee has never clocked in because that em- ployee is late, missed a shift or mandatory meeting or some other reason, it is not stealing time because the employee was never in pay status. It is possible that an employee will be in the hallway near the timeclock a couple of minutes before the end of their 11 While Brown’s testimony on this point was undisputed, there is no evidence in the record that the Respondent reduced employee healthcare benefits following the election loss. Consequently, I will credit Brown’s testimony on this point only to the extent that he heard Anderson com- plain about Brown’s support for the union. GENPAK LLC 9 shift so the individual can clock out on time. Employees are al- lowed to clock out early but only with a supervisor’s prior ap- proval. The Occupational Safety and Health Administration (OSHA) mandates that employers install machine guards “as to prevent the operator from having any part of his body in the danger zone during the operating cycle” of a machine. (R. Br. 8 citing 29 C.F.R. 1910.212(a)(3)(ii)). There was undisputed testimony that the Respondent placed machine guarding on one or more of the trim press machines at the HH plant. Greenmyer gave undis- puted testimony that all the trim press machines have machine guarding which is an adjustable silver plate with a screen on it. (Tr. 363–365; R. Exh. 18.) Additionally, the Respondent placed signs on the machine reading, “DO NOT REACH PAST THIS POINT (warning signs).” (GC Exh. 38; R. Exh. 18.)12 The warn- ing signs were placed on the catwalk above the machine and also below the catwalk. (GC Exh. 38.) OSHA also requires employers to put in place a LOTO system for the safety of employees in the workplace. The LOTO pri- mary purpose is to prevent injuries due to the automatic start-up of a piece of moving machinery while an employee is working on or near the moving parts a machine. (R. Exhs. 15, 17.) Prior to working in the area beyond the machine guard, an employee is required to “deenergize” equipment and put a lock on it so an- other employee cannot inadvertently start the machine while the employee is working in the area of moving machinery parts.13 In order to keep employees updated on safety rules and regu- lations, the Respondent conducts monthly safety meetings and daily safety reminders. In late 2017, an employee at another one of the Respondent’s plants suffered an amputation after reaching past the machine guard. (Tr. 357–359.) Consequently, in 2018, the Respondent decided to implement a zero-tolerance LOTO policy; and between November 2018 and February 2019, the plant conducted additional LOTO employee training and in- formed the workers that failure to adhere to the policy would re- sult in termination of employment. Additionally, employees were required to sign forms acknowledging their receipt of the new zero-tolerance LOTO policy. (Jt. Exh. 4.) The record contains disciplinary action taken against several employees, among others, who violated LOTO and time/attend- ance policies: On March 11, 2018, Sarah Brown (S. Brown) was disciplined 12 Brown argues that the warning signs are not machine guards. In- stead, he insists that the doors on the side of the trim press machines and the mold were guards preventing employees from entering the area of the machine’s moving parts. (Tr. 281.) I credit Greenmyers testimony de- scribing what constitutes a machine guard on the Respondent’s trim press machines. For more than 3 years, Greenmyer has been the Respondent’s safety coordinator in charge of training employees on safety matters and the overall safety compliance of the plants within his region. Moreover, he had knowledge of the safety rules and regulations the Respondent has to adhere to. Unlike Brown, Greenmyer gave concise and clear testimony on OSHA’s mandates regarding the machine guarding and LOTO. There is no evidence that Brown, like Greenmyer, is knowledgeable about the OSHA safety regulations the Respondent must follow. 13 According to Brown, there are no moving machine parts 3 to 4 feet past the warning signs. He insists that before coming into contact with the trim press’s moving parts, a worker would have to reach past the warning signs another 3 to 4 feet to where the packing table fits the for failing to attend a mandatory safety meeting held in February 2018. (GC Exhs. 8.) S. Brown again received discipline this time on September 17, 2018, for a safety infraction because she was not wearing safety glasses. A few days later, S. Brown was given a verbal warning on September 21, 2018, for sitting down instead of cleaning while her machine was down which constituted idle time. (GC Exh. 11.) On September 26, 2018, Patrick Hamilton (Hamilton) was is- sued a verbal warning for operating a forklift without wearing a seat belt. (GC Exh. 12.) Several months later, on February 13, Hamilton was given a written warning for failing to clean his aisle before leaving for the day; and 8 days later issued a final warning and suspension for poor job performance (safety viola- tion). (GC Exhs. 14, 15.) Janie Simpson (Simpson) was assessed a written warning for overstaying her break time. (GC Exh. 20.) However, S. Moore testified that based on the document alone, it would be impossible to determine if Simpson was in pay status and therefore stealing time or simply clocked in late after return- ing from break. (Tr. 413.) Ashley Acoff (Acoff) overstayed her 15-minute break by 34 minutes and issued a verbal warning by Supervisor Allen Russell (Russell). (GC Exh. 4.)14 A few weeks later on October 8, 2018, Acoff was terminated because she was again caught stealing time. (GC Exh. 7.) In 2017, Nicholas Sparks (Sparks) was given a final written warning for violating LOTO procedure. (GC Exh. 25.) Also, in 2018, he was also issued a written warning for stealing time be- cause he was sleeping in the maintenance shop when he should have been working and failed to attend mandatory safety meet- ings. (GC Exh. 26, 28.)15 On September 28, 2018, Emmitt Smith (Smith) was issued a written warning for failing to attend a mandatory safety meeting. (GC Exh. 23.) About a month later Smith was given a verbal warning for sitting in his automobile during his break. (GC Exh. 24.) There is no evidence, however, that either infraction con- stituted stealing time because neither address whether Smith was in pay status at the time. On April 21, 2018, Sharnita Wright (S. Wright) was given a written warning after a supervisor discovered her asleep in her car 21 minutes beyond the end of her 30-minute lunch break. (GC Exh. 34.) After management implemented the new zero-tolerance product mold. Brown acknowledges an employee who reaches that far into the machine with their hand would most likely get their fingers am- putated. (Tr. 274, 277, 333.) O’Brian clarified that a worker would be putting their fingers into the trim press if reaching 2 to 3 feet past where the packers are positioned and “where the plate actually comes out of that trim press.” (Tr. 172–173.) Pierson and Greenmyer noted that a worker risked amputation if the individual reached into the moving parts area of the trim press while it was operational. (Tr. 346–347, 366.) 14 It is not clear from the document if Acoff was given a verbal warn- ing for stealing time because she was clocked in while on a 49-minute break or simply overstayed her break after clocking out to take it. How- ever, S. Moore confirmed that the discipline was issued because Acoff was stealing time. (Tr. 93.) 15 There is no evidence that Acoff nor Sparks were engaged in pro- tected concerted activity or union activity prior to being disciplined for stealing time. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD LOTO policy and the consequences for violating it, Preston Wright (P. Wright) was terminated for failing to perform the LOTO. (R. Exh. 12.) In 2018, Melissa Tatum (Tatum) and Eric Slater (Slater) were also terminated for failing to adhere to the LOTO policy. (R. Exhs. 11, 24.) E. Brown Issued Final Written Warning on January 27, 2019 Brown, Hinton, and O’Brian Pierson testified to slightly dif- ferent versions of the events leading to Hinton checking the cam- eras and discovering Brown waiting over 5 minutes by the timeclock before clocking out. Brown testified that on January 23, he knew that he would have to leave work early to arrive at the hospital at a certain time because his daughter was having a baby.16 His normal shift in January 2019, was 7 am to 7 pm. Therefore, Brown stated that when he arrived at work on January 23, he told O’Brian and the lead packer, Honey Johnson (Johnson), that he had to leave work early to get to the hospital for his grandchild’s birth and reiter- ated his request to them when it was time for him to leave. Ac- cording to Brown, about 10 minutes before the end of his shift, he told O’Brian he was leaving who said “okay.” He insists that he also told Johnson who said “Horace, get out of here. Go check on your daughter.” (Tr. 265–268.) It is undisputed that Brown then began walking towards the timeclock with people from the warehouse crew.17 Brown admits that O’Brian later told him that he had been accused of stealing time by standing in the hallway by the clock for 13 to 15 minutes before clocking out. Brown also acknowledges that on the same day he had that conversation with O’Brian, Hinton told him that he was caught on video stand- ing at the timeclock for about 13 to 15 minutes before clocking out; and if repeated, he would be fired. Hinton testified that on January 23, he asked O’Brian the whereabouts of Brown “because several machines were down.” In his role as floater, presumably Brown would be responsible for troubleshooting the machines. According to Hinton, O’Brian told him that Brown had left for the day and proceed to explain to him the reason the machines were not running. It is undis- puted that while O’Brian was talking, Hinton noticed that a packer was “late on break.” Consequently, Hinton left to view the video footage of the area near the timeclock to verify if the packer was late but instead saw Brown in the hallway “at least 20 minutes after [he] was told [Brown] had left the property.” (Tr. 378; Jt. Exh. 6.) The video shows that at 3:51 p.m. Brown was in the hallway near the time clock and still there at 3:52 pm even though there was not a line of employees waiting to clock out nor many individuals in the hallway. By 3:54 p.m. Brown still has not clocked out and admits nothing prevented him from doing so. Brown finally clocks out at 3:59 p.m. and 43 seconds 16 O’Brian testified that before Brown left at the end of his shift each day, Brown would provide him with a product count for the day, verify the work area was cleaned, and ensure no product remained for the next shift to “start up.” (Tr. 139.) 17 Marilyn Jones (Jones), a packer on January 23, arrived at the timeclock at 3:56:03 pm and joined other employees waiting to clock out. While waiting, Brown came out of the locker room and began talk- ing with her and the other workers. She was unaware of Brown’s where- abouts prior to him arriving at the clock. There is no evidence that Jones was disciplined for stealing time. (Tr. 323–326; Jt. Exh. 6.) After looking at the video, Hinton went to Pierson to tell him about Brown’s action on the tape. Pierson told him to confirm with O’Brian, which he had already done, on the exact time Brown left his work area for the day. (Tr. 380–381.) Hinton instructed O’Brian to issue Brown a written discipline. Brown refused to sign the final written warning so Hinton asked Brown to verify that he would not sign the docu- ment and told him a repeat of the action would result in his ter- mination. (Tr. 381; R. Exh. 4.) O’Brian, however, denies informing anyone prior to Hinton directing him to issue Brown discipline that he suspected Brown had left his work area on January 23. (Tr. 139.) According to O’Brian, during the union organizing campaign, Hinton told him to “write Horace up for anything I see him do wrong” but does not recall the specifics of Hinton’s remarks. (Tr. 133.) O’Brian admits that Hinton never told him to discipline Brown if he did anything wrong because he supported the union. When Hinton directed him to issue Brown discipline, O’Brian testified that Hinton told him it was because he saw Brown loitering in the hallway near the timeclock for 10 minutes before clocking out. O’Brian felt the reason Hinton gave for issuing the discipline to Brown was “bogus.” Id. It is undisputed that Hinton was in- structed and did give Brown the final written warning. However, O’Brian did not write the remarks on the form describing Brown’s workplace violation. (Tr. 138–137; Jt. Exh. 3.) I credit Hinton’s testimony over O’Brian’s and Brown. O’Brian did not deny that there was a packer Hinton suspected of being late from break which prompted him to review the video camera. Moreover, O’Brian never corroborated Brown’s testi- mony that he asked his permission to leave early that day because his daughter was in the hospital and expected to deliver her baby. In fact, O’Brian seemed to contradict Brown by claiming that he never told anyone he suspected Brown of leaving early that day. If Brown had asked O’Brian’s permission to clock out early that day, why would he not explain that to Hinton when told to issue Brown discipline? It may not have prevented Hinton from giv- ing Brown discipline but may have mitigated its severity. I also found that overall Brown was a less credible witness that Pierson or Hinton. He contradicted himself several times on cross-ex- amination when confronted with his witness statement to the NLRB. Tr. 300–302, 306–309.) When confronted by Respond- ent’s counsel with his shifting facts and recollections, Brown provided nonresponsive, evasive, and occasionally incompre- hensible answers. (Tr. 328–330.)18 After consulting with the human resources department about Hinton’s allegation of Brown stealing time, Pierson made the de- cision to issue Brown discipline.19 Pierson denied that (1) Brown’s prounion stance played a role in this decision; (2) 18 Citations to the hearing transcript are just a few examples of Brown’s evasiveness on cross-examination. 19 Pierson corroborated Hinton’s conversation with him except he tes- tified that Hinton told him a supervisor had asked the whereabouts of a packer on the shift. I do not credit Pierson’s testimony on this minor point because Hinton testified that while talking with O’Brian, he noticed the packer’s late arrival from break which caused him to view the camera for verification. (Tr. 378.) GENPAK LLC 11 denied the Respondent paid “extra attention” to Brown when giving him a final written warning; and (3) felt Brown was treated evenhandedly. F. February 28, the Respondent Terminates Brown Since 2018, Steve Greenmyer (Greenmyer) has been the Re- spondent’s safety coordinator in charge of employee training at the Middleton, New York plant. During the relevant time period, he was assigned to a region that also covers Sebring, Florida, the HH plant and Montgomery, Alabama plant. In February 2019, Greenmyer was at the HH plant to train with Scott Little (Little) who at the time was the Environmental Health and Safety (EHS) Coordinator. Greenmyer did not have a reporting relationship to any of the managers or supervisors at HH plant nor the EHS co- ordinator Little. Prior to his visit to the HH plant, Greenmyer’s routine was to conduct daily walks around the plant to monitor safety. While at the HH plant on February 20, Greenmyer was doing a safety walk “looking for any items of safety issues” when he noticed Brown lying on a packing table and underneath the canopy of an operational trim press machine. As soon as he re- alized the machine was running with Brown underneath, he im- mediately went and tapped him to get him to come out. (Tr. 365.) Greenmyer told Brown that he was not supposed to reach past the warning signs posted on the machine. Brown does not dis- pute that he was reaching past the warning signs when Green- myer discovered him. Moreover, he grudgingly admitted providing a Jencks statement to NLRB acknowledging that warning signs were placed on the trim press machines to prevent packers from reaching into the machine. (Tr. 301–302.) Prior to this incident, Greenmyer did not know Brown and had never seen nor heard of him. After speaking with Brown, Green- myer told Little about discovering Brown reaching past the warning signs on the trim press machine. Little directed him to report it to the production supervisor.20 Within a couple of hours of spying Brown violating the LOTO policy, Greenmyer com- posed a written statement detailing his encounter with Brown. (Tr. 368; R. Exh. 1.) The incident was brought to Pierson’s at- tention who, in conjunction with the human resources depart- ment, began an investigation. Brown was called into human re- sources where he met with Pierson, Greenmyer, Supervisor Al- len Russell (Russell), and human resources representatives Hud- son and S. Moore. Brown was informed that he was “suspended” pending an investigation. The human resources office was in- volved in the investigation and made a recommendation to Pierson on disciplinary action. As the ultimate decision-maker, Pierson decided to terminate Brown based on the Respondent’s zero-tolerance LOTO policy. On February 27, Brown received from Respondent a Separation Notice effective the same date. (Jt. Exh. 5.) Pierson denied that Brown’s union activity played a part in the decision to discharge him. Moreover, he was una- ware of any union activity by Brown from August 1, 2018 to February 20; and Pierson, during this timeframe, had no discus- sions with the Respondent’s employees about Brown’s union or- ganizing. Brown also admits that he never had a conversation with any supervisors about the Union prior to his termination. 20 O’Brian was not at work on the day of the incident, February 20. (Tr. 301.) III. DISCUSSION AND ANALYSIS A. Legal Standards Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009). An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an employee for engag- ing in activity that is “concerted” within the meaning of Section 7 of the Act. If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the employer knew of the concerted nature of the employee’s activity, the concerted activity was protected by the Act, and the adverse employment action was motivated by the employee’s protected, concerted ac- tivity. Relco Locomotives Corp., 358 NLRB 229 (2012), affd. 361 NLRB 911 (2014), enfd. 734 F.3d 764 (8th Cir. 2013) (citing Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once the General Counsel estab- lishes such an initial showing of discrimination, the employer may present evidence, as an affirmative defense, showing it would have taken the same action even in the absence of the pro- tected activity. The General Counsel may offer evidence that the employer’s articulated reasons are pretext or false. Relco, supra. The Board applies the Wright Line21 analysis to evaluate whether an adverse employment action violates 8(a)(3) of the Act. The burden is on the General Counsel to initially establish that a substantial or motivating factor in the employer’s decision to take adverse employment action against an employee was the employee’s union or other protected concerted activity. In order to establish this initial showing of discrimination, the evidence must normally prove: (1) the employee engaged in union or pro- tected concerted activities; (2) the employer knew of the con- certed nature of the activities; and (3) the adverse action taken against the employee was motivated by the activity which must be proven with evidence sufficient to show a causal connection between the averse action and the protected activity. Electrolux Home Products, 368 NLRB No. 34, slip op. at 2–3 (2019) Cir- cumstantial evidence may be used to show animus. Elements to support a showing of unlawful motivation may include, among other factors, suspicious timing of the adverse action; false or changing reasons provided for the adverse action; failure to con- duct a meaningful investigation of the alleged employee miscon- duct; departure from past practice in imposing the adverse ac- tion; and disparate treatment of the employee. See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 4, 8 (2019); Medic One, Inc., 331 NLRB 464, 475 (2000). The evidence 21 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982). 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD must establish that a causal connection exists between the em- ployee’s union or other protected concerted activity and the em- ployer’s adverse employment action against the employee. Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 8. Once the General Counsel has met its initial showing that the protected conduct was a substantial or motivating reason in em- ployer’s decision to take the adverse action, the employer has the burden of production by presenting evidence the action would have occurred even absent the union or protected concerted ac- tivity. The employer does not have to prove that the disciplined employee committed the infraction alleged. Rather, the em- ployer only needs to establish that it had a reasonable belief the employee committed the misconduct alleged and acted on that belief when it took the disciplinary action against the employee. McKesson Drug Co., 337 NLRB 935, 937 fn. 7 (2002); see also Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010), enfd. 646 F.3d 929 (D.C. Cir. 2011). The General Counsel may offer proof that the employer’s articulated reason is false or pretextual, and if found to be false or pretextual, discriminatory animus may be inferred. Electrolux Home Products, 368 NLRB No. 34, slip op. at 3. The General Counsel, however, retains the ultimate burden of proving discrimination. Wright Line, id. The Wright Line analysis is not applicable when there is no dispute that the em- ployer took adverse action against the employee because the em- ployee engaged in union or protected concerted activity. Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003). B. January 27, the Respondent Issues Brown a Final Written Warning The General Counsel alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by issuing Brown a written warning for engaging in union activity. The General Counsel argues its position is supported by “the pretextual nature of the alleged infraction, the embellishment of the incident by Re- spondent’s agent Hinton who harbored antiunion animus, and Brown’s disparate treatment because Respondent skipped typi- cal progressive disciplinary steps.” (R. Br. 28.) The Respondent counters that the General Counsel’s arguments are not supported by the evidence because (1) Brown was not disciplined more harshly than comparable employees; (2) the Respondent did not depart from its policy of progressive discipline when it issued Brown the final written warning for stealing time; and (3) Brown’s more recent performance evaluations shows a lack of discriminatory animus against him by the Respondent. The General Counsel argues that the several incidents reveal the pretextual nature of the Respondent’s reason for issuing the discipline to Brown. First, the General Counsel contends that Brown followed proper procedure for requesting approval to leave early which was approved by his supervisor, O’Brian. However, O’Brian never testified that Brown asked for authori- zation to and was granted permission to leave work early on Jan- uary 23. A reading of the trial transcript shows that O’Brian never testified about whether he granted Brown approval to leave early. Instead, he testified about the accepted tasks Brown had to complete before he left the work area and signed out at the end of the workday. (Tr. 139.) I previously found that Brown’s tes- timony alone on this point was not persuasive because overall I did not find him to be a very credible witness. Second, the Gen- eral Counsel insists that HH managers concocted a basis for in- vestigating Brown for stealing time. The General Counsel em- phasizes that O’Brian testified he did not report to anyone that he suspected Brown had left his assigned work area. Also, the General Counsel argues that Hinton falsely claimed that he asked O’Brian where Brown was because some machines were not functioning, and he was told Brown had left. Although O’Brian denied telling “anyone” that Brown had left, it is undisputed that Hinton noticed a packer was late from break which caused him to check the cameras in an attempt to locate the packer. Like- wise, the evidence shows that while viewing the cameras, Hinton saw Brown in the hallway several minutes after he supposedly left. I already found O’Brian less credible than Hinton on this point because (1) how would Hinton have known Brown had al- ready left some 20 minutes before unless someone, likely O’Brian, told him of Brown’s early departure; and (2) O’Brian did not deny that there was a packer late from break. In fact, it was not Brown’s absence from the area that prompted Hinton to view the video camera. Rather, Hinton noticed a packer that he thought may have returned late from a break which caused him to view the video camera leading to the discovery of Brown lin- gering near the time clock for close to 10 minutes. Moreover, Brown testified that he asked O’Brian for approval to leave early which was granted. If true, there is no evidence that anyone, but O’Brian, knew that Brown had been authorized to leave early. Therefore, the reasonable conclusion is that when Hinton asked about Brown’s whereabouts, it would have been O’Brian who told him Brown had already left. Third, the General Counsel claims that the Respondent’s rea- son for the discipline is pretextual because Hinton “falsified” the underlying facts on which the final written warning was based because he documented that Brown was at the time clock for 10 minutes before clocking out instead of the actual 8 minutes 5 seconds that is shown on the video. It is irrelevant whether Brown loitered for 10 minutes or 8 minutes and 5 seconds be- cause either way if he had been authorized to leave early then he should have clocked out as soon as he arrived at the time clock rather than waiting an additional 8 to 10 minutes. Further, Brown failed to provide a credible and persuasive reason for this delay. The General Counsel contends that the Respondent’s action was based on discriminatory animus because Brown was disci- plined more harshly than comparable employees. The General Counsel points to comparators M. Jones, Acoff, S. Wright, and others with “similar” infractions to show the disparity in treat- ment between them and Brown. (GC Br. 29–30.) I find, how- ever, that these instances differ in key respects. First, the record is incomplete regarding Brown’s disciplinary history as well as that of several comparators. The evidence also shows that for some comparators, the officials initiating and, or issuing the dis- ciplines were not the same as those involved in issuing the final warning to Brown. On September 21, 2018, Acoff was issued a verbal warning for exceeding her break. However, the issuing official was different than the one involved in Brown’s final warning; and she was ultimately terminated for a repeat of the offense. Although Acoff’s termination action also involved dif- ferent management officials than those responsible for the GENPAK LLC 13 discipline given to Brown. (GC Exhs. 4, 7.) S. Brown was issued a verbal warning for sitting instead of cleaning while her ma- chine was inoperable but again different management actors were involved in the decision to discipline her. (GC Exh. 11.) Likewise, the General Counsel used Hamilton to show the Re- spondent’s disparate treatment of Brown, but it fails. Hamilton was disciplined by a different supervisor than Brown; and he gave an employee statement explaining the reason he clocked out early. The most important difference between Hamilton and Brown is that, unlike Brown, Hamilton did not steal time but in- stead clocked out early. (GC Exh. 14.) Another comparator pre- sented by the General Counsel, Simpson, was issued a written warning for overstaying her lunch break. Based on the discipli- nary form used to document the action, however, it is unclear whether the same disciplinary steps used with Brown were in place at this time. Unlike the disciplinary form given to Brown, Simpson’s form does not list a “final warning” step that can be checked. (GC Exh. 20.) Sparks and S. Wright are most similarly situated to Brown in that they were accused of stealing time but, unlike Brown, received written warnings. (GC Exhs. 28, 34.) Nonetheless, there is no evidence of: Simpson’s and S. Wright’s prior disciplinary history; any prior protected concerted or union activity that was known to management; and the same official involved in Brown’s discipline were at work in their cases. In sum, I find that none of the General Counsel’s proffered com- parators were similarly situated to Brown. (GC Exhs. 4, 7, 8, 11, 14, 20, 23, 28, 34.) The General Counsel continues by arguing that despite the prolong length of time between Brown’s union activity and his discharge, there is sufficient evidence that the Respondent’s rea- son for disciplining Brown is pretextual to overcome this hurdle. Again, the General Counsel points to Brown’s leadership of the union organizing campaign, Hinton’s alleged falsely claiming to ask O’Brian about Brown’s whereabouts, disparate treatment of Brown compared to similarly situated, and Hinton’s belief Brown should have been disciplined for the actions of other em- ployees. I reject the General Counsel’s arguments and find that the timing of Brown’s discipline does not support a finding of discriminatory animus. While it is true that Brown led the cam- paign to unionize the HH plant, it is undisputed that following the election loss on or about July 31, 2018, Brown kept a low profile and did not engage in other union activity or protected concerted activity. The evidence is uncontroverted that the final warning was issued to Brown almost 6 months after his last known union activity. The Board has consistently held that the timing of an employer’s adverse action could constitute circum- stantial evidence of discriminatory animus. See Success Village Apartments, 348 NLRB 579, 579 fn. 5 (2006). Regardless of the timing of the adverse action, the evidence must establish a causal connection between the employee’s protected conduct and the adverse employment action. Id. In the matter at hand, I find that the General Counsel fails to overcome the lack of causation be- tween the adverse action and Brown’s union activity. Snap-On Tools, Inc., 343 NLRB 5, 9 (2004) (2 months between union ac- tivity and warning too remote to show animus); Laidlaw Envi- ronmental Service, 314 NLRB 406, 406 fn. 1 (1994) (statement hostile of union made to employee 7 to 8 months prior to his suspension was to remote in time to show discriminatory animus); Upper Great Lakes Pilots, 311 NLRB 131, 137 (1993) (isolated statements made 3 months before layoffs too remote to show discriminatory animus). Based on the evidence, I find that the General Counsel has failed to establish that the discipline issued to Brown violated Section 8(a)(1) and (3) of the Act and recommend that paragraph 7(a) of the complaint be dismissed. C. February 28, 2019, the Respondent Terminates Brown The General Counsel alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Brown for en- gaging in union activity. The General Counsel contends that ev- idence of the Respondent’s unlawful termination of Brown is (1) management’s refusal to investigate the reasons Brown commit- ted the alleged “misconduct” before discharging him; (2) “used a pretextual reason to administer the termination”; (3) instances of other employees engaged in similar conduct without being discharged; and (4) the Respondent’s shifting reasons for the dis- charge. The Respondent counters that the General Counsel can- not establish Brown’s discharge was animated by antiunion ani- mus. More specifically, the Respondent argues several factors support its position: (1) Brown was discharged “210 days” after his last known union activity; (2) Brown was not subject to in- creased scrutiny because of his prounion actions; and (3) Green- myer had never seen nor heard of Brown and was unaware of Brown’s union activity prior to finding him underneath the trim press. Moreover, the Respondent contends that the General Counsel “presented no evidence of any other employee who was not fired for a LOTO violation after the zero-tolerance policy went into effect.” (R. Br. 37.) Based on the evidence, I find that the General Counsel has failed to establish that the termination of Brown violated Section 8(a)(1) and (3) of the Act for the reasons discussed below. A Wright Line analysis is appropriate in this case because the Respondent’s motive is at issue. It is undisputed that Brown en- gaged in union activity. Therefore, I turn to the question of whether the Respondent was aware of Brown’s union activity prior to taking the adverse action against him. The facts show that starting in 2018, Brown initiated and took the lead in the union organizing campaign. Pierson admitted that about halfway through the campaign he became aware that Brown was heavily involved in the organizing effort. Further, he acknowledged that the Respondent was aware of Brown’s prounion stance. (Tr. 66.) Pierson also witnessed Brown testify at a NLRB hearing for the petitioner, the Union. Although Hinton testified that from Au- gust 1, 2018 to February 20, 2019, he had not discussed Brown’s involvement with the Union election to anyone, he admitted knowing that the Respondent’s position was against unionization of its employees. (Tr. 382–383.) Prior to the decision to dis- charge Brown, Hinton, like Pierson, knew Brown was “heavily involved” in the Union’s campaign at the HH plant. (Tr. 384.) Moreover, Brown was an election observer at the HH plant; and it is inconceivable that management was unaware of Brown’s presence as an election observer for the representation election held on July 31, 2018. Based on the evidence, I find that the Respondent was aware of Brown’s union activity. Also, it is clear, and undisputed, that the discharge constitutes an adverse employment action. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The next factor to consider is whether the evidence establishes that the Respondent discharged Brown’ because of his union ac- tivity, thereby proving animus. Upon such a showing, the Re- spondent then must present evidence that it would have dis- charged Brown even absent the union activity. See Correctional Medical Services, 356 NLRB 277, 278 (2010). I find, however, that the General Counsel has failed to prove this final prong of her initial burden. In her brief, the General Counsel first argues that discrimina- tory animus can be inferred from Pierson’s failure to investigate before deciding to discharge Brown. The General Counsel notes that while Pierson testified that his decision to terminate Brown was based on the result of a human resources investigation, S. Moore did not “testify to any investigatory steps.” Also, Brown testified no one interviewed him as part of the investigation into his actions. I do not find this to be compelling evidence of ani- mus. Although S. Moore did not testify in detail the steps human resources took to investigate the allegation against Brown, the record shows that an investigation, albeit short, was performed. The investigation consisted of Greenmyer’s written statement detailing the incident; management viewing video footage of the area where Brown’s alleged misconduct occurred; management and human resources meeting with Brown the day of the inci- dent, and Pierson’s collaboration with human resources about ac- tion to take against Brown. (Tr. 28–29, 290, 343, 365–366; R. Exh. 1.) The General Counsel argues that Greenmyer’s state- ment is insufficient to show the Respondent that Brown violated the zero-tolerance LOTO policy because Greenmyer was not a supervisor at HH plant and was ignorant of its operations. I find this line of reasoning unpersuasive because it does not negate Greenmyer’s personal observation of Brown’s violation of the policy. It was unnecessary for Greenmyer to be a supervisor at the plant and knowledgeable about its operations to be able to personally observe Brown in the act of violating the LOTO zero- tolerance policy. The General Counsel also argues that an inves- tigation would have revealed that Brown was not inside the ma- chine and never at risk of coming into contact with the moving parts. This is irrelevant because the issue was Brown reaching beyond the “Do Not Reach Past This Point” signs and failing to perform the LOTO procedure before doing it. Moreover, the ev- idence is clear that Brown was aware of the Respondent’s zero- tolerance policy regarding the LOTO procedure because he signed the form acknowledging his receipt of it and had training on the LOTO zero-tolerance policy. (R. Exh. 17.) Brown also admitted that he understood the rationale behind the policy was to avoid the risk of employees having their limbs amputated by reaching into the forbidden area of the machine without it being deenergized. O’Brian also noted that between November 2018 and February 2019, the plant conducted LOTO training for the employees and informed them that there was a LOTO zero-tol- erance policy which would result in termination for violation of the policy. (Tr. 163–164; Jt. Exh. 4.) Moreover, Brown agreed that he violated the policy not to reach beyond the “Do Not Reach Past This Point” signs without performing the LOTO. Consequently, it was unnecessary for the Respondent to perform a lengthy investigation of the incident because the facts quickly revealed Brown violated the zero-tolerance LOTO policy. The evidence makes clear to me that the Respondent did conduct a sufficient investigation which weighs against a finding of dis- criminatory animus. Second, I do not find persuasive the General Counsel’s argu- ment that because other employees have participated in the same or similar conduct as Brown without being discharged, this un- derscores the Respondent’s antiunion animus. The General Counsel contends that Brown’s discharge was “a departure from the past practice for how safety policies had been enforced at the Plant.” (GC Br. 37.) According to Brown, facility supervisors and managers for years were well aware that the trim press ma- chine regularly jammed with the 805 bowls inside. Brown noted that frequently he and other employees had to reach past the warning signs with their hands or a stick to release the jams. Alt- hough O’Brian was not at the plant on the date at issue, he testi- fied that he had witnessed other operators perform the same pro- cedure as Brown without being disciplined. He emphasized that it was a known problem that employees had to use a company provided plastic stick to reach under the catwalk (beyond the warning signs) to straighten the bowls until they began coming out of the trim press machine in a straight line. Notwithstanding Brown’s protestations to the contrary, there is no evidence of similarly situated employees being treated differently nor evi- dence that after initiating the zero-tolerance policy, the Respond- ent regularly ignored violations of it. (emphasis added) In 2018, Tatum and Salter were terminated for failing to adhere to the Re- spondent’s newly implemented zero-tolerance LOTO policy. (R. Exhs. 11 and 24.) On October 29, 2018, P. Wright was termi- nated for violating the zero-tolerance LOTO policy. (R. Ex. 12.) There is no evidence that Tatum, Salter, and P. Wright had en- gaged in protected concerted activity or union activity. The Gen- eral Counsel also argues that there is evidence of comparators who were treated less harshly than Brown. However, I find that these employees are not similarly situated. The General Counsel presented evidence that employees S. Brown, Hamilton and Sparks committed safety violations but were not terminated. However, none of these employees were charged with violating the zero-tolerance LOTO policy. For example, the General Counsel points to S. Brown who was issued a verbal warning for not wearing safety glasses. (GC Exh. 10.) Yet, there is no evi- dence that the Respondent issued a blanket zero-tolerance safety policy that encompassed not wearing safety glasses. Moreover, it stretches logic to conclude that failing to wear safety glasses and risking amputation by ignoring warnings not to reach into the danger zone of a machine with moving parts are equal in se- verity. The General Counsel also noted that Hamilton commit- ted safety violations but was only issued either a verbal warning, written warning, or suspension. (GC Exhs. 10, 12, 15.) Again, I find this comparison unpersuasive because Hamilton’s infrac- tions were far less serious than Brown’s offense and did not vio- late a zero-tolerance policy with the consequence for immediate termination. These facts, or lack of, weigh against a finding that Brown was discharged because of his protected concerted activ- ity. The General Counsel also posits that the Respondent evinced antiunion animus by using pretextual and shifting reasons to jus- tify discharging Brown. The General Counsel claims that S. Moore initially told Brown that as part of progressive discipline, the prior November 27, 2018 incident was factored into the GENPAK LLC 15 decision to discharged him. (GC Br. 35; Tr. 296; GC Exh. 36.) According to the General Counsel, however, the LOTO proce- dure was not verbally mentioned by S. Moore to Brown, it was not referenced in Greenmyer’s statement, and “it was not docu- mented concurrently with the discharge despite Respondent al- ways explicitly citing the procedure by name in all other disci- plinary actions of the LOTO ilk.” (GC Br. 35.) A careful reading of Brown’s testimony shows Brown actually testified that (1) S. Moore told him he was being discharged for a “safety violation;” mentioned a couple of operators were terminated because he did not tell them to perform a LOTO procedure when cleaning an oven, and did not state the number of prior writeups, if any, were considered in the decision to terminate him. (Tr. 296–297.) S. Moore never admitted that she told Brown that as part of pro- gressive discipline the November 27, 2018 incident was a factor in the Respondent’s decision to discharge him. She simply acknowledged that there was no record of Brown ever being is- sued discipline for the November 27, 2018 incident. I agree with the General Counsel that the Respondent did not follow progres- sive discipline in discharging Brown. However, even assuming S. Moore made the statements attributed to her by Brown, there is no evidence that the Respondent was required to use progres- sive discipline for a violation of the zero-tolerance LOTO policy. Second, it was unnecessary for Greenmyer to explicitly reference in his statement the words “zero-tolerance LOTO” the statement about the incident is clearly describing a violation of the LOTO policy. As the safety coordinator and human resources person- nel, Greenmyer and S. Moore would know the description was a violation of the zero-tolerance LOTO policy. Moreover, each time management spoke with Brown about the offense, it was made clear to him that he was being accused of violating the zero-tolerance LOTO policy. Brown acknowledges that Green- myer verbally told him he was violating the LOTO policy by be- ing underneath the trim press machine while it was running. In his meeting with Pierson, Greenmyer and human resource, Brown admits they specifically told him he was being suspended while they investigated his actions. Consequently, I find it was insignificant that the discharge form did not include a written description of the offense because everyone involved in the dis- ciplinary action, including Brown, knew or should have known the basis for the discharge. Greenmyer’s statement, composed within hours of the offense is sufficient as a concurrent docu- mentation that the General Counsel alleges is missing. Second, a serious safety violation, and other serious work- place violations, may be grounds for immediate discharge, thereby bypassing progressive discipline. I find Brown’s action fits this description. The evidence establishes that OSHA issues regulations requiring employers to install machine guarding on machines and enforce LOTO to prevent employees from injuring themselves by coming into contact with moving machine parts. (Tr. 351–352.) On February 10, the Respondent had Brown sign a form acknowledging the LOTO zero-tolerance policy. On or about January 2019, the Respondent placed the warning signs on the trim press machines and had employees sign forms acknowl- edging the zero-tolerance LOTO policy after an employee at one of the Respondent’s other facilities suffered an amputation be- cause he or she failed to perform LOTO before reaching near the machine’s moving parts. Moreover, the evidence reveals nothing to preclude the Respondent from bypassing steps in the progres- sive discipline process if the workplace misconduct is serious enough to warrant it. The possibility of an employee suffering severe injuries, including amputation and death, for failing to fol- low a zero-tolerance LOTO policy is not so far out the realm of reasonableness to be precluded. In fact, in this context, the very definition of zero-tolerance policy means an employee will be terminated for violating the LOTO procedure. (Jt. Exh. 4.) The evidence supports a finding that the Respondent has been con- sistent in its reason for discharging Brown, his violation of the zero-tolerance policy for the LOTO procedure. (Jt. Exh. 5, R. Exh. 1; Tr. 349, 406.) The General Counsel places a major portion of its argument that the Respondent’s shifting justification is evidence of pretext on testimony from Brown and other General Counsel witnesses that it was common practice for all the machine operators, with the knowledge of supervisors, to fix jams in the trim press by reaching past the warning signs with a stick. According to the General Counsel the 805 bowls jamming in the trim press ma- chine was a frequent occurrence and known to management. As a result of this frequent problem, the General Counsel argued, through its witnesses, that the HH plant supervisors trained, con- doned, and encouraged employees to use a stick and reach past the warning signs to release the jammed product. (Tr. 142–143, 146–147, 290–293.) Even assuming other employees, with ap- proval from managers, reached into the trim press machine to dislodge jammed bowls, there is no evidence that this was the case after the Respondent placed warning signs on the trim press machine and had employees sign forms acknowledging the zero- tolerance LOTO policy. (emphasis added) The General Counsel argues that Brown’s actions “fell squarely within the minor servicing exception to the Lockout/Ta- gout procedure because his act was routine, repetitive, and inte- gral to production of 805 bowls . . .” (GC Br. 36; R. Exh. 15, p. 2–3, 5, 8, 11.) However, the General Counsel argument is simply a conclusory statement and not supported by the LOTO procedure. (R. Exh. 15.) None of the language spotlighted by the General Counsel proves that the specific act of dislodging jammed materials from the trim press machine or other trouble- shooting of the machine is considered a “minor servicing excep- tion.” On the contrary, the procedure clearly states that “LOTO still must be used when troubleshooting or testing equipment.” (R. Exh. 15, p. 3, 6, 9, 12.) Tracing the cause of the trim press machine jam, the 805 bowls, and clearing or correcting the jam is the classic definition of troubleshooting. Even when discuss- ing tasks that do not require LOTO, the policy still requires that operators exercise precise safety steps which nowhere includes reaching past warning signs with a stick or limbs to correct the “minor servicing exception.” The General Counsel argues that the Respondent’s “defense” that “it did not harbor animus because Occupational Safety and Health Administration requirements for guards or Lockout/Ta- gout dictated that discipline should be issued to Brown fails due to the disparate treatment.” However, I have previously dis- cussed why I reject the General Counsel’s argument on this point. I found earlier in the decision that there is no persuasive evidence that the Respondent disciplined Brown more harshly because he violated the zero-tolerance LOTO policy than other 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD comparable employees. Accordingly, I find that based on the evidence, the Respond- ent’s discharge of Brown does not violate Section 8(a) (1) and (3) of the Act. I recommend, therefore, that paragraph 7(b) of the complaint be dismissed.22 22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.