Hemingway Transport, Inc.

HEMINGWAY TRANSPORT, INC. 245 Hemingway Transport, Inc. and David Jackson. Case 1-CA-8109 November 13, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO be evaluated in terms of his own personal makeup." The conclusion of the Administrative Law Judge based upon this evaluation of Austin at the hearing merits considerable weight. Considering all these circumstances, and the record as a whole, we do not find that the General Counsel has met his burden of showing by a preponderance of the evidence that Jackson was unlawfully dis- charged. On June 19, 1972, Administrative Law Judge 1 Ralph Winkler issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. In agreeing with the Administrative Law Judge that the complaint should be dismissed insofar as it alleges that Jackson was unlawfully discharged, we recognize, as did he, that there are some suspicious circumstances attending the discharge. But we are not satisfied that the General Counsel has estab- lished that Austin's discharge of Jackson was motivated by the latter's organizational activity on behalf of the clericals rather than by his unauthor- ized use of Austin's private office as found by the Administrative Law Judge. If there was previous use of this office by other employees without permission, the record does not disclose Austin's awareness of that fact. His reaction upon learning that Jackson had used his office as a meeting place shows him disturbed 'solely, by that and not because of any suspicions that the meeting related to organizational activity. As Grenier testified, Austin, in ordering Jackson's discharge, declared, "this was America. If they want to organize, they can organize," but then he added, "I don't want my office used as a conference room." Austin himself was a long-time member of the Teamsters, on withdrawal card, and the Teamsters already represented the bulk of his employee complement. There is nothing to show his opposition to their organization of the unrepresented clericals during the period involved. The Administrative Law Judge had the opportuni- ty to observe Austin and he chose to believe that the reason given by Austin for the discharge was the real reason therefor, explaining that "Austin is entitled to , The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972, 2 N L RB v. Lawson Printers, Inc, 408 F.2d 1004 (C A. 6, 1969). See also ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Hemingway Transport, Inc., New Bedford, Massachusetts, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. MEMBER FANNING, dissenting: Unlike my colleagues, I view the discharge of employee Jackson as violative of Section 8(a)(3). A close analysis of the facts persuades me that he was discharged solely for union activities, and the Employer's contention that he was terminated for misuse of a manager's office is a pretext. It is settled law that an employer's suspicion rather than actual knowledge of an employee's union activity is sufficient to satisfy the requirement of knowledge.2 The note sent by Respondent's night supervisor Normandin to the terminal manager, Austin, surely made him aware that Jackson may have been discussing union activities. This finding is supported by Austin's subsequent interrogation of Shop Steward Boyajian regarding Boyajian's knowl- edge of any attempts to organize Respondent's clericals. Such interrogation demonstrates that Aus- tin was, at the very least, suspicious of union activity. Austin testified that, when Boyajian answered the interrogation negatively regarding union activities, he was no longer suspicious. This testimony is questionable especially since Austin was aware that Boyajian had reason to avoid the eppearance of union activity as he had been told by Austin 3 years previously that, if Boyajian continued in his attempts to organize, he would be in "a lot of trouble." Moreover, Austin, shortly after receiving Norman- din's note, but before speaking to Boyajian, had already told John Grenier, Respondent's head rate clerk, that Jackson was to be fired. I find any claim that Respondent lacked the requisite knowledge to be totally without merit. Mid States Sportswear, Inc, 168 NLRB 559 (1967), ExideAlkalme Battery Division of ESB, Inc, 177 NLRB 778 (1969); Gamble's Inc., 175 NLRB 77 (1969) 200 NLRB No. 29 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further problems exist regarding the "misuse" of Austin's office. Repeated, uncontroverted testimony revealed that the office was used by various employ- ees, particularly for personal telephone conversations during Austin's absence.3 The office was always left open and there were no signs, written company rules, or oral instructions warning against the use of such office; nor was it marked "private" in any way. On the night Jackson used the office he was actually discussing union activities with two other clerical employees, a fact suggested to Austin by Norman- din's note. Yet, Austin made no attempt to ascertain their identity, and, when he was told who the individuals were, issued no reprimands, oral or written, much less a termination. Nevertheless Respondent asserts that Jackson was discharged solely for misusing the terminal manager's office. The Board and the courts have inferred an illegal motivation behind a discharge when the reason given for a discharge is inconsistent, unconvincing, or contradictory. InN. L. R. B. v. Melrose Processing Co., 4 351 F.2d 693, 699 (C.A. 8, 1965), the court of appeals held: ... when every other plausible motive has been eliminated and the reasons advanced are not persuasive, the [protected] activity may well disclose the real motive behind the employer's action. The fact that two other individuals were misusing Austin's office along with Jackson, and have yet to be disciplined in any manner, demonstrates that the reason offered by Respondent is unpersuasive, inconsistent, and utterly incredible. I infer from these facts that the real motive for the discharge was based upon Jackson's union activities. Accordingly, I would find the discharge to be a violation of Section 8(a)(3) and (1) of the Act. 3 The Administrative Law Judge touched upon this testimony very lightly in his decision, apparently ignoring the importance which it holds, i e., that other employees habitually used the terminal manager 's office for personal reasons 4 See also N.L RB. v Bird Machine Co, 161 F.2d 589, 592 (C.A. 1, 1947), which held that "direct evidence is seldom attainable when seeking to probe an employer 's mind to determine the motivating cause of his actions." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RALPH WINKLER: Trial Examiner: Upon charges filed by David E. Jackson, an individual, the General Counsel issued a complaint on April 4, 1972, alleging violations of Section 8(a)(1) and (3) of the Act. Respondent filed an answer denying commission of unfair labor practices, and a hearing was held on May 11, 1972. Upon the entire record in the case, including my observation of the demeanor of the witnesses and upon consideration of the parties' briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Massachusetts corporation with its principal office and place of business in New Bedford, Massachusetts, and a freight terminal located at East Providence, Rhode Island, where it is engaged as an interstate carrier by motor truck. Respondent's annual revenue from interstate operations exceeds $50,000. I find that Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Teamsters Local 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves the discharge of David Jackson on February 7, 1972.1 Jackson was a billing clerk on the second shift at Respondent's East Providence terminal, this being his second "tour of duty" with Respondent; his first period of employment was from January until September 1969 when he was discharged for poor attendance; he was rehired in September 1971 and continued until the February 1972 discharge under consideration. The Union represents a bargaining unit of approximately 180 employees at the Providence terminal, excluding approximately 25 office and clerical personnel who are not organized. James Boyajian, employed by Respondent as a driver, is the Union's executive officer and a shop steward. Donald Austin is terminal manager, usually leaving the terminal at 5 p.m. Ernie Normandin, the night supervisor, is in charge of all operations in Austin's absence. John Grenier, although not a supervisor according to the parties' stipulation, was head rate clerk at material times; and Jackson worked under Grenier. During the second shift on February 3, Jackson approached union steward Boyajian in the dispatcher's office and inquired concerning procedures for organizing the clerical employees in Local 251. In their ensuing discussion, Boyajian suggested that if Jackson was interest- ed in pursuing the matter, Jackson might explore the situation with other clericals but should be discreet in doing so. Night Supervisor Normandin observed, but did not overhear, this Jackson-Boyajian conversation. During a coffeebreak later that same evening, Jackson called two other clerical employees-Beatrice and Selma Ginsberg-into Terminal Manager Austin's private office, which was unoccupied at the time . This office is fully enclosed and has a large picture window through which i All dates refer to 1972 unless otherwise indicated. HEMINGWAY TRANSPORT, INC. personnel on the terminal floor can see inside the office. Jackson discussed with the sisters the advantages to clericals of being organized and he inquired concerning their union views. Selma mentioned at the time that they would "get into trouble" for being in Austin's office. The sisters testified in explanation that they never entered the office without permission. Normandin observed Jackson and the Ginsberg sisters in Austin's office, and he later told head clerk Grenier that he had seen Jackson conversing first with Boyajian and then with the Ginsberg sisters and that "maybe they [Jackson and the sisters] were in here talking about the Union." Normandin then inquired whether Grenier was aware or had heard of any current organizational activities in the terminal and he requested that Grenier report any such activities to him. Grenier said he had no such information but would advise Normandin if he, Grenier, heard anything. Normandin occasionally communicated with Austin concerning terminal affairs by leaving memorandums on Austin's desk. Austin found such a note on Friday morning (February 4) in which Normandin reported that Jackson had brought two employees into Austin's office and that they might have been discussing union matters. Later that day, Austin spoke separately to head clerk Grenier and union steward Boyajian. General Counsel witness Grenier testified as follows concerning his conversation with Austin: Q. And what was the conversation? What did he say to you and what did you say to him? A. He asked me, he said "who was the guy or the bum-or something like that"-"that used my office for a meeting or a conference room . And I said, well, I saw Mr. Jackson come out with the two Ginsberg -with a couple of billing clerks. I don't know whether I mentioned the girls by name. I don't recall that. So, he said, well, he says, he said that he was disturbed about him using his office as a conference room and that he-as far as he was concerned, Mr. Jackson was no longer working at Hemingway . Mr. Jackson had booked off for the night and I knew that, so I said to him, well, would you like me to call Mr. Jackson and tell him not to bother to come in. I said, if I do, for what reason do you want me to give for his dismissal? I said, is this a valid reason, you know, for using the office as a conference room and Mr. Austin said, yes, he said, I think so. So, I said, well, Ernie has suspicions of union activity or organizations, I said, and was he being dismissed because of this and Mr . Austin said no, he said, I don't give a shit about the union . He said this was America. If they want to organize , they can organize. So, I said alright. I walked out and Mr. Austin, at that time, did not know that Mr. Jackson had booked off for the night. Austin came back out of his office and he said, you can call someone else in because Jackson is all through and I really didn't believe it, so I went back in and said, Mr. Austin, do you want me to tell Mr. Woodward to put an ad in the paper for a biller? Is this final? And he said, well, I don't care. You can get someone else to replace him. This is it for him. He's all through. I 247 don't want my office used as a conference room. So, I went back out and-well, I had told him that Mrs. Brown would be filling in, anyway, because Jackson was off and I think, by this time, Austin realized that Jackson was off and Austin had mentioned that to me, and I said, well, Mrs. Brown would be in tonight, so Mr. Austin said, all right, I'll take care of it on Monday. Q. Take care of what? A. The dismissal, I presumed. Q. Do you recall having another conversation with Mr. Austin that night? -A. Well, there was only one other thing when I had mentioned the union business in the office, in the first conversation, I had mentioned that Ernie had seen Jackson talking, when I asked him about the union business and the second time Mr. Austin came back, I said, I spoke with Boyajian. Boyajian said he did talk with Jackson, but it wasn't about union affairs. Q. Do you recall if Mr. Austin said when he talked to Mr. Boyajian? A. I believe he said, I just talked to him , so it was in between the conversations. That same day, as indicated, Austin questioned Boyajian as to his Thursday evening conversation with Jackson and whether the Union was attempting to organize the clericals. General Counsel witness Boyajian replied that his discus- sion with Jackson involved a personal matter unrelated to union affairs and that the Union had no interest in organizing the clerical employees. Jackson did not work that Friday, and Austin fired him when he reported on Monday. Austin told Jackson on this occasion that he had no idea what Jackson had been discussing with the two other employees in his office but that Jackson had no right to use the office as a "private clubhouse." Jackson replied, in effect, that "I guess Normandin won out after all." The record indicates in this connection that Jackson had been having difficulties with Normandin concerning a matter unrelated to union activities and that Jackson had feared losing his job for such reason. Austin is a long-time member of the Teamsters Union, on withdrawal card, and he testified that he would not have discharged Jackson if he had known that Jackson's conversation with the Ginsberg sisters involved union organizing. Testifying in this connection to his awareness that a discharge in such circumstances could make Respondent vulnerable to unfair labor practice charges, Austin explained that it was for the purpose of avoiding such implication that he had sought to ascertain from Boyajian whether Jackson's conversation with the Gins- bergs pertained to union activities. Austin disclaimed knowledge of organizing efforts at the time of Jackson's discharge, and he first testified that he just learned of Jackson's activity some days later at a state proceeding involving Jackson's claim for unemployment compensation. Boyajian testified that Austin thereupon rebuked him for not being candid and not telling Austin in the Friday conversation that Jackson was in fact seeking to organize the office. "Don't you know," Austin told 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boyajian, "that I can't fire a man while they are in the process of bringing in a union?" Other clerical employees were, in fact, interested in union representation at the time of Jackson's discharge and the Union subsequently did file a representation petition in their behalf. Except for the Jackson incident, however, there is neither a showing of overt organizational activity nor evidence of Austin's knowledge thereof. And the record is also bereft of probative evidence of union animus.2 Use of Austin's Office Austin's office is left open in his absence, in part, to enable employees to accept business calls made to the telephone in that office . It also appears that whenever calls are made to that number, the telephone continues ringing until the phone is answered. With the office open during periods of Austin's absence after 5 p.m., some-but not all-employees used the telephone in that office for personal calls. Jackson testified that he used Austin's telephone nightly, and that to his knowledge no special permission was required to use that facility. The Ginsberg sisters testified, on the other hand, that except for the aforementioned occasion of their conversation with Jackson at the latter's behest, they had never before entered the office without permission. The record shows some use by employees of Austin's office for personal conversation purposes, but that Austin was probably unaware of such use without permission. Respondent concedes that there are no outstanding instructions, oral or written, respecting employee use of Austin's office for nonbusiness purposes. Austin neverthe- less asserts that he expects employees to know that the terminal manager's private office should, in effect, be regarded as a sanctum sanctorum and not available to employees for private meetings or conferences which is his description of the Jackson-Ginsberg incident. Concluding Findings The issue thus drawn is whether Austin discharged Jackson because he knew or suspected Jackson's union interest or because of strongly held views that Jackson had violated or abused a terminal manager's territorial preroga- tives. Evidence of unlawful motive "must usually be discovered by inference," the court said in F. W. Woolworth Co. v. N.L. R.B., 121 F.2d 658, 660 (C.A. 2); "the evidence does not come in packages labelled, `Use me,' like the cake, bearing the words, `Eat me,' which Alice found helpful in Wonderland." Discharge does seem strong medicine, if indeed any medicine was at all required, for Jackson's purported dereliction in the circumstances presented . Suspicions are raised, therefore, even though one also must be mindful that, however one may consider Austin's dosage to exceed usual norms, Austin is entitled to be evaluated in terms of his own personal makeup. To these suspicions one also must add Normandin's interrogation of Grenier, and the 2 The General Counsel refers to evidence of purported union hostility 3 years earlier , but which I consider as too remote to support a finding of further fact of Normandin's advising Austin that Jackson's conversation with the Ginsbergs might have concerned union affiars. And, as the General Counsel asserts, there are some factual inconsistencies in Austin 's testimony. Yet, so far as this record establishes , there was no other evidence of overt organizational activity known or even suspected by Austin, and the record does not otherwise demonstrate or even indicate Respondent hostility toward the unionization of clericals. I am unable, in the circum- stances of this case, to infer such animus from the fact of discharge and then to predicate a finding of unlawful motive upon such inference. With less assurance than I like in these matters, I find that the record does not preponderantly establish that Austin discharged Jackson for union reasons . The General Counsel contends, however, that the discharge was nevertheless unlawful on two other independent bases. Citing Burnup and Sims3 as support for his first alternative theory, the General Counsel asserts that the discharge was based on Austin's claim of a mistaken belief that the conduct alleged to have precipitated Jackson's discharge was not related in any way to union or protected concerted activities ; and the General Counsel adverts in this connection to admissions by Austin that he would not have discharged Jackson if he, Austin , had known the union nature of the Jackson -Ginsberg conversation. Burnup and Sims holds, in effect, that "an employer's honest belief is no defense if it affirmatively appears that the employees' misconduct while engaged in activity protected under Section 7 of the Act did not occur." Gooch Packing Company, 162 NLRB 1, 9 (fn. 27). But I have found that the Act did not insulate Jackson from disciplinary action for using Austin's office, and the effect of that finding is that such use was not "protected" in the circumstances under consideration. It does not follow, certainly Burnup and Sims does not hold, that an employer loses his right of lawful disciplinary action merely because he might have foregone exercising such right in order to avoid legal entanglements. The General Counsel's other alternative theory is that, even assuming Austin's bona fides, the discharge was nevertheless unlawful because precipitated by Norman- din's note to Austin and that Normandin was motivated to write such note because he knew or suspected the union nature of Jackson's activities. But I have found that Austin discharged Jackson for lawful reasons and Jackson's own testimony is to the effect that Normandin's animosity toward Jackson had nothing to do with union affairs. I accordingly conclude that Respondent did not unlaw- fully discharge Jackson. And while I find that Respondent violated the Act by Normandin's conduct in interrogating Grenier and requesting him to report concerning union matters, I do not find in the somewhat unusual circum- stances of the particular occasion that Austin's interroga- tion of Boyajian also was unlawful. current hostility absent a more proximate showing. 3 N. L. R. B. v. Burnup and Sims, Inc., 379 U.S. 21. HEMINGWAY TRANSPORT, INC. 249 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within Section 2(6) and (7) of the Act. 2. Teamsters Local 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within Section 2(5) of the Act. 3. By coercively interrogating employees concerning union or other organizational activities and by requesting them to report such activities, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 5. Except as found herein, Respondent has not engaged in the unfair labor practices alleged in the complaint. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 5 In the event that the Board's 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 " 6 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 1, in wasting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX THE REMEDY Having found that Respondent has engaged in unfair labor practices, ][ shall recommend that it cease and desist therefrom and take appropriate affirmative action to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 4 ORDER Hemingway Transport, Inc., Providence, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union or other organizational activities. (b) Requesting employees to report concerning union or other organizational activities. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Post at its terminal in Providence, Rhode Island, copies of the attached notice marked "Appendix." 5 Copies of said notice on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.6 4 In the event no exceptions are filed as provided in Sec. 102.46 of the NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning activities in behalf of Teamsters Local 251, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization. WE WILL NOT request employees to report concern- ing union or other organizational activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. Our employees, including clerical employees, are free to join or remain members of Teamsters Local 251 or any other union, or not to join or remain members, unless such membership is required under a lawful contract under the Labor-Management Relations Act. HEMINGWAY TRANSPORT, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.