Shearer's Foods, Inc., 1093 (2003)

Docket Number:08-CA-32917

Shearer's Foods, Inc. and Bakery, Confectionery, Tobacco Workers and Grain Millers Union Local No. 19. Cases 8-CA-32917, 8-CA-32944, and 8-CA-33188

November 28, 2003



On March 28, 2003, Administrative Law Judge Robert

  1. Pulcini issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering 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 as modified and to adopt the recommended Order as modified.2

    The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee David Vaughn and violated Section 8(a)(1) by threatening to close its plant if the Union came in. We agree for the following reasons.


    Vaughn volunteered to become an organizer shortly after the Union began its organizing campaign at the Respondent's Brewster, Ohio plant in the fall of 2001.3 After work on October 26, Vaughn solicited Kathy Province to sign an authorization card in the employee parking lot. Province, a new employee, declined to sign, then reported Vaughn's actions to Mark Woodruff, the Respondent's vice president of human resources. She identified Vaughn from a photo spread that Woodruff showed her.

    One week after Province's first report, she told Wood-ruff that Vaughn had again solicited her to sign an authorization card. She stated that Vaughn seemed upset

    1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

    2 We correct par. 1(b) of the judge's recommended Order to delete his inadvertent repetition of the words "desist from." As corrected, par. 1(b) shall state: "Threatening plant closure in the event employees selected the Union as their collective-bargaining representative."

    We shall also modify the recommended Order to provide that the Respondent is to notify the Regional Director for Region 8 of the steps it has taken to comply with the Board's Order.

    3 Unless stated otherwise, all dates occurred in 2001.

    and had called Company President Robert Shearer a "fat bastard" and said that Shearer "was going to get his." Province again told Vaughn that she was not interested, and he said, "Okay."

    Province made a third report to Woodruff in early November after Vaughn once more solicited her. This time Woodruff requested Province to provide him a written statement. The statement she submitted stated:

    On the week of October 21st I was approached by a employee of Shearers about signing a card to bring the union in for a vote. I told this person I would not sign anything to jeopardize my or my husbands [sic] job. He kept telling me other people signed and that we would all be protected and that Shearers would not fire us. To get people to sign these cards he is telling them that Frito-Lay owns 64% of Shearers and slandering Bob Shearer every chance he gets. (He told me he was going to take care of that fat bastard.) He asked me about three more times if I would sign a card and I said no and then he asked if I would vote yes when the booths were brought in and I said yes so that he would stop asking me.

    After receiving her written statement, Woodruff asked Province to make a statement to two police officers whom he had called to his office.

    On November 9, Woodruff called Vaughn into his office and discharged him, reading from a discharge letter he had prepared. The letter said:

    Shearer's Foods, Inc. has terminated your employment effective November 9, 2001, due to your violation of the Shearer's Foods, Inc. Unlawful Harassment policy. Shearer's Foods, Inc. has determined that you substantially harassed associate(s) on or near October 30, 2001, on Shearer's Foods, Inc. property and created an intimidating, hostile or offensive work environment. Your actions are in violation of Federal law, as issued by the Equal Employment Opportunity Commission. Vaughn reacted to the statement, calling it "bullshit." Woodruff jumped to his feet, slammed the top of the desk, and exclaimed, "This is not open for discussion." He then had Vaughn escorted from the building.

    Two police officers, 2 hours later, visited Vaughn's home and told him that he would be arrested if he stepped one foot onto the Respondent's property. They claimed that Vaughn had harassed and threatened Shearer and harassed Province.

    The Respondent held an employee meeting on December 5. Woodruff told the gathered employees that the Union only wanted the employees' money and that it would not do anything for them. He added that if Robert


    Shearer had his say, he would shut the plant down if the Union came in.


    We agree with the judge for the reasons set forth in his decision that the Respondent violated Section 8(a)(1) by Woodruff's statement to employees that, if Shearer had his say, he would shut the plant down if the Union came in. We also agree that Vaughn's discharge violated Section 8(a)(3) and (1).

    To prove a violation of Section 8(a)(3) and (1) under our decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel must first prove, by a preponderance of the evidence, that the employee's protected conduct was a motivating factor in the employer's decision. Manno Electric, Inc., 321 NLRB 278, 280 (1996). Once the General Counsel makes a showing of discriminatory motivation by proving the employee's union activity, employer knowledge of the union activity, and animus against the employee's protected conduct,4

    the burden of persuasion "shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." Wright Line, 251 NLRB at 1089.

    We find that the General Counsel met his burden of proof that Vaughn's protected activity was a motivating factor in his discharge. At the time of the discharge, Vaughn had distributed union authorization cards after work in the employee parking lot on several recent occasions. The Respondent knew that Vaughn was engaged in this protected activity by Province's reports to Wood

    4 Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Member Schaumber notes that the test established in Wright Line was a causation test under which the General Counsel must prove by a preponderance of the evidence that the employee's protected activity was a substantial or motivating factor for the adverse employment action. The Board, administrative law judges, and circuit courts of appeals have variously described the evidentiary elements of the General Counsel's initial burden of proof under Wright Line, sometimes adding as a fourth element the necessity for there to be a causal nexus between the union animus (i.e., Sec. 7 animus) and the adverse employment action. See, e.g., American Gardens Management Co., 338 NLRB 644, 645 (2002). Member Schaumber agrees with this addition to the formulation. The existence of protected activity, employer knowledge of the same, and animus (i.e., Sec. 7 animus) may not, standing alone, provide the causal nexus sufficient to conclude that the protected activity was a motivating factor for the adverse employment action. For example, the 8(a)(1) conduct of a supervisor, while imputed to the employer, may have no relation to adverse employment action taken by another supervisor against an employee who happened to be engaged in Sec. 7 activities. Member Schaumber believes it would be preferable in the near future for the Board to adopt and thereafter consistently apply a single statement of the elements of proof, but it is not necessary to address the issue here in deciding that the General Counsel has met his burden.

    ruff and her identification of Vaughn as the employee

    soliciting the cards.

    The Respondent displayed its animus against employees' Section 7 activities when its vice president, Mark Woodruff, told employees at the December 5 employee meeting: "[I]f...

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