Questor Corp.

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spalding, Division of Questor' Corporation and Chauf- feurs, Teamsters, Warehousemen and Helpers Lo- cal Union 135, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 25-CA-7608 August 17, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 18, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. The Respondent filed cross-exceptions I and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge dismissed the com- plaint in its entirety, finding that no violations of Section 8(a)(1) or (3) were committed by Respon- dent. We disagree with his dismissal of that portion of the complaint which alleges that Respondent vio- lated Section 8(a)(1) by threatening its employees with layoff if they brought a union into the ware- house. In late October 1975, employee Randy Wing had a conversation with Boyer, a supervisor, during which they discussed the approaching winter season, which is typically slow for sporting goods. Boyer stat- ed that there was not much to do during the winter and the employees would not be doing anything this winter. Wing asked if there would be any layoffs. Boyer responded that there would not be any layoffs 1 Respondent filed a document entitled "Conditional Cross-Exceptions to Rulings on Motions " Respondent declares that, if the Board did not adopt the Administrative Law Judge's recommended Order, it would except to various rulings made in the proceeding The Board has no provision for cross-exceptions conditioned on its disposition of the case, but we have treated Respondent's conditional cross-exceptions merely as cross-excep- tions After carefully examining the rulings made in the course of this pro- ceeding, we find no merit in Respondent's cross-exceptions 2 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings "unless there was a union in." Several weeks later, Boyer repeated his statement to Wing. In concluding that Boyer did not make the alleged threats in violation of Section 8(a)(1), the Adminis- trative Law Judge noted that there had been only insignificant union activity. Mainly, however, the Administrative Law Judge relied on Wing's own in- terpretation of Boyer's statement, to the effect that Wing felt Boyer was telling him that, if a union came in, the Company would not be able to pay employees union wages for nonproductive time. According to the Administrative Law Judge, if such was Wing's interpretation, Boyer's statement amounted only to a prediction, not a threat, and was not unlawful. Contrary to the Administrative Law Judge, we find that Boyer's statement constitutes a threat of action to be taken by Respondent, rather than a pre- diction, which was violative of Section 8(a)(1) of the Act.3 The statement was not accompanied by any explanation of economic necessity for laying off em- ployees. Furthermore, it was made at a time when the employees were obviously concerned about the impending slow season and how that slack period would affect their jobs, as they had discussed the possibility of layoffs among themselves. In an effort to learn more of this matter, one of their fellow em- ployees approached a supervisor who could readily be thought to have some knowledge on the subject. Boyer's statement, without any accompanying expla- nation, linking the possibility of layoffs to the advent of a union, would surely cause the employees to fear that a union would place their jobs in jeopardy. Thus, we find that Boyer's statement was a threat and a violation of Section 8(a)(1) of the Act. However, our finding of this violation does not af- fect our agreement with the Administrative Law Judge's dismissal of the allegations of the complaint as to Wing. The Remedy Having found that Respondent engaged in certain unfair labor practices, we shall order the Respondent to cease and desist therefrom and take certain affir- mative action which we find necessary to remove and remedy the effects of the unfair labor practices and to effectuate the policies of the Act. Amended Conclusions of Law Delete Conclusion of Law 3 from the Administra- tive Law Judge's Decision and substitute therefore the following: "3. By threatening its employees with layoffs if they chose a union, Respondent has engaged in un- 3 Pacific Southwest Airlines, 201 NLRB 647 (1973) 225 NLRB No. 133 SPALDING, DIVISION OF QUESTOR CORPORATION 947 fair labor practices proscribed by Section 8(a)(1) of the Act, as alleged in paragraph 5(a) and (b) of the complaint. The remaining allegations set forth in paragraph 5 of the complaint have not been sus- tained." interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Sec- tion 7 of the Act. SPALDING, DIVISION OF QUESTOR CORPORA- TION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Spalding, Division of Questor Corporation, India- napolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with layoffs from their jobs if they choose to be represented by a union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act.: (a) Post at its place of business in Indianapolis, Indiana, copies of the attached notice marked "Ap- pendix." ° Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent 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 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. In the event that 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with layoffs from their jobs if they choose to be rep- resented by a union. WE WILL NOT in any like or related manner DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard at Indianapolis, Indiana, on March 16, 17, and 18, 1976, following the General Counsel's complaint which alleged, in general terms, that the Respondent had threat- ened employees with layoff should they join the Union, and promulgated the rule prohibiting the employees from discussing the Union on company premises, both in viola- tion of Section 8(a)(I) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq.; and had dis- charged Randall Wing on December 5, 1975, because he had engaged in union activity, in violation of Section 8(a)(3) of the Act. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Massachusetts corporation engaged principally in the manufacture and distribution of sporting goods. At its Indianapolis, Indiana, facility, it annually re- ceived from points directly outside the State of Indiana goods, products, and materials valued in excess of $50,000 and ships to points outside the State of Indiana directly from its Indianapolis facility goods, products, and materi- als valued in excess of $50,000. The Respondent admits, and I find, that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters, Warehousemen and Helpers Lo- cal Union 135, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is admitted by the Respondent to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The principal issue here concerns the discharge of Ran- dall Wing on December 5, 1975.1 The question is not whether the Company should or should not have dis- charged him. Nor is the question whether Wing was a good, poor, or average employee. The issue is whether All dates herein are in 1975 unless otherwise indicated 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wing's discharge was precipitated at least in part by his union activity. Regardless of whether or not the Company had good reasons, if his activity on behalf of the Union was a motivating cause for his eventual discharge then under the clear proscription of the Act, and thousands of Board determinations, the Company violated Section 8(a)(3). However, a violation cannot be assumed In order to establish a violation of the Act, the burden of proving the facts to support it by a preponderance of the evidence rests with the General Counsel. In determining whether the General Counsel has met this burden, the credibility of witnesses in the context of the total factual situation must be considered For the reasons set forth below, I conclude that the Gen- eral Counsel did not meet his burden of proving that the Company was motivated by Randall Wing's union activity when he was discharged on December 5. A. The Factual Situation The Respondent's Indianapolis facility is a distribution warehouse wherein products are received from the manu- facturing point, stored, and reshipped to the customers The Indianapolis facility opened in June, and began ship- ping in July, absorbing the business which had been done by the Chicago and Cleveland warehouses, as well as a Detroit facility which had been closed earlier. The phase- out of the Chicago and Cleveland facilities and the total phase-in of Indianapolis took several months. In April and May, William Davenport, the regional operations manager for the 15 midwestern States began hiring employees for the Indianapolis warehouse. Most of the employees were hired through interviews after newspaper advertisement. Wing was known to Davenport because Wing's father, at that time at least, was a Spalding salesman and a friend of Davenport. Davenport hired Wing both because he felt that Wing would be a good employee and because he had an excellent knowledge of the Spalding product line Indeed, Wing is an outstanding golfer. In this respect it should be noted that Wing graduated from high school in 1975, and at the time he was hired he was 18 years of age. Wing testified that, while there was apparently some possibility of his receiving a golf scholarship to college, he did not have the high school grades to do so. In any event, Wing went to work for the Respondent on June 16 when the warehouse was opened. His initial job was in what has been referred to as "the cage," or "pro- golf" area, a security area where small expensive items such as golf balls, golf gloves, single clubs, and sportswear are kept. He was assigned to this fob because of his superi- or knowledge of the Spalding product line. After some time in the cage, Wing was transferred to a position of order picker and packer in the warehouse gen- erally. In the latter part of October, Wing and two other employees began discussing the possibility of having a union represent them. This was discussed with Louis Ta- kacs, a leadman apparently without supervisory authority. Takacs testified that within a couple of weeks after this, or about the first week in November, he told Thomas Boy- er, the warehouse supervisor, that employees were talking about a union. About 2 weeks after that, he told Boyer who the individuals were that were discussing a union, naming Wing, Benny Shipman, and Thomas Fugate. In the latter part of November, these three employees did in fact contact the Union herein and met with the busi- ness representative on or about November 25, 1975. They apparently continued to discuss the Union on some occa- sions and had another brief meeting with the business rep- resentative on December 3. On December 2, personnel representatives from the Spalding home office, along with Davenport, conducted a general employee meeting. On December 3 and 4, Daven- port, along with the supervisor over specific employees, met with each of the employees individually to go over the individual's record with him for approximately the first 6 months of employment and to have a general evaluation discussion. Employees apparently had been previously evaluated af- ter 90 days, with evaluation reports filled out by the imme- diate supervisors and put in their personnel folders. Wing testified that at his meeting on December 3, with Davenport and Boyer, Davenport made statements to the effect that he had heard that there was talk about a union, that there was not going to be a union at his facility, and that he would hate to hear that Wing was involved in union discussions. On December 5, Boyer stated he went to Davenport and told him that Wing had not improved following the De- cember 3 discussion, made a file note to that effect, and recommended that Wing be discharged. Davenport testified that he had considered discharging Wing for some time That day he, as was company policy, called his boss in Massachusetts whom he could not reach, and thus talked to a vice president of the Company con- cerning the discharge. Davenport then determined to effec- tuate the discharge, and about l or 2 o'clock in the af- ternoon told Wing to come to his office at 4:30. Wing did, and Davenport fired him. Both Davenport and Wing agree that Wing asked for a second chance which Davenport testified he almost gave, but did not. The basic thrust of the Respondent's evidence (through Davenport, Boyer, and Cutshall, another supervisor) is that Wing, while having tremendous potential as an employee, had a terrible attitude which manifested itself in poor, slow, and sloppy work and which finally culminated in his termination. The General Counsel, on the other hand, argues that Wing was a good employee, did not have a bad attitude, and that the Company's reasons for discharging him were a pretext Accordingly, Wing must have been discharged for having engaged in union activity. B. Analysis 1. The alleged violations of Section 8(a)(1) Critical to the General Counsel' s case is the employee interview on December 3, wherein Davenport is alleged to have told Wing that he had heard there was talk of a union, SPALDING, DIVISION OF QUESTOR CORPORATION 949 that there would be no union in the warehouse and "I would hate to hear that you were out there talking union." The General Counsel argues that this is violative of Section 8(a)(1) as having been a promulgation of an unlawful rule prohibiting employees from discussing the Union on com- pany premises at any time. These statements are also urged to show union animus and ultimately to prove a discrimi- natory motive in Davenport's discharge of Wing. Davenport and Boyer deny that anything in this vein was said It is difficult to believe that Davenport would have made such comments to an employee whom he was actively con- sidering firing, especially if he was considering firing that employee to discourage union activity. The meeting at which Wing claims Davenport made these statements did not occur in the context of a union organizational cam- paign. Rather, the meeting was in connection with a na- tionwide evaluation by the Company of pay rates and oc- curred following a general employee meeting at which members of management from the Massachusetts office were present. All employees were interviewed at this time and there is absolutely no evidence that any other employ- ee was interrogated or talked to at all about the Union. For Davenport to have made the type of statement to Wing that Wing says he did is just simply not believable. In addition, on this, as well as other points, I carefully ob- served the demeanor of Davenport and Wing From my observation, not only when they were testifying to this point, but throughout the hearing, I conclude that Wing's version is not credible. I therefore conclude that the General Counsel has not carried his burden of proving that the December 3 state- ments by Davenport, alleged to be violative of Section 8(a)(I), in fact were made. The other allegation of independent 8(a)(1) activity con- cerns discussions between Boyer and Wing about layoffs. Wing is alleged to have asked whether there would be lay- offs in the winter Boyer is said to have responded, in ef- fect, that the Company did not have much work in the winter but nevertheless there would not be layoffs unless there was a union Wing explained that he understood this to mean that, were a union to come in, the Company would not be able to pay employees union wages for nonproduc- tive time If such was Wing's interpretation of the Boyer statement, such amounts to only a prediction and certainly would not be a threat in violation of Section 8(a)(1). From the testimony of Benny Shipman, there was, no doubt, some discussion throughout concerning whether or not there would be layoffs in the wintertime, the slow sea- son for sports equipment, and how seniority would work, both with and without the Union. However, I cannot con- clude that Boyer threatened Wing or any other employee with layoff as a result of the union activity. See e g., Mid States Sportswear, Inc, 168 NLRB 559 (1967), where a sim- ilar statement by a supervisor in the context of substantial unlawful activity was nevertheless found not to be violative of Section 8(a)(1). In this respect it is noted that, while Wing and other employees had been discussing a union since October, and did meet with the union business representative some 6 weeks later, there was really no union activity in any kind of an organizational sense. There was some discussion but there were no cards, there were no meetings of employees and even the discussions, given every inference favorable to the General Counsel, were relatively insignificant. I conclude that Boyer did not make the alleged threats in violation of Section 8(a)(I), and I shall recommend that paragraph 5 of the complaint be dismissed. 2. The 8(a)(3) allegation It is not necessary to credit Wing's version of the De- cember 3 conversation with Davenport in order to find that a precipitating cause of Wing's discharge was his union activity In order to establish a violation, the General Counsel need only to prove that one factor in either Boyer's recommendation or Davenport's final act was that Wing had engaged in union activity. Since there is no direct evidence that Wing's union activ- ity was a precipitating cause of either Boyer's or Davenport's action, other factors must be considered and evaluated. In favor of the General Counsel's position it is noted that there was some union activity from the early part of October. While the activity was not great, was not an organizational drive in any strong sense, nevertheless there was talk of a union and there was a contact with a specific labor organization. Also in favor of the General Counsel's position here is that Boyer and Davenport knew of Wing's participation. Takacs told Boyer that Wing, Shipman, and Fugate had talked to him about the Union and he passed this on to Boyer. Boyer testified that he believes he told Davenport, and I so find. And there is the factor of timing. This is not strongly in the General Counsel's favor, nevertheless it is noted that Wing was discharged about 6 weeks after the beginning of union talk, and about 2 weeks after he, Ship- man, and Fugate met with the union business representa- tive On the other hand, the only evidence of union animus is Davenport's alleged statements to Wing on December 3. Even the testimony of the General Counsel's witnesses does not demonstrate that Boyer or Davenport were op- posed to the Union Nor is there evidence of independent 8(a)(I) activity demonstrating union animus or predisposition of the Com- pany to thwart employees in their rights to engage in union activity. Although from the very beginning supervision knew of the union talk and such union activity as there was, there is no evidence of interrogation of employees by supervisors, threats of reprisals, surveillance, or the like. In this category is only the matter of Boyer stating that there would be no layoffs unless the Union came in, which Wing explained was not a threat Finally, and of critical significance here is Wing's em- ployment record. Witness after witness for the Company testified that Wing was a knowledgeable employee, that he knew the product line and that he had the capacity for being a good and effective worker. Witness after witness also testified that while they liked him personally, never- theless they found that he was a difficult employee to work with, that he did not take orders readily, that he often 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to do things his way regardless of what supervision told him, and that basically he had a very poor attitude. This was discussed with him in his employee appraisal of September 10, on subsequent occasions, and was the prin- cipal reason for his discharge. From my observation of Wing, both during his testimo- ny and throughout the hearing, I conclude that the Company's evaluation of him is not only reasonable but is correct. Wing seems an intelligent young man; however, he does have a superior attitude. It is easy to see how he would be a very difficult employee to supervise and would be an employee whose attitude could affect others. From Wing's testimony it is clear that he feels he was an out- standing employee; indeed, superior to his supervisors and that he should not have been fired. It is therefore Wing's conclusion that the Company must have fired him for some reason other than his performance and attitude-his union activity. I do not find this to be the case. Again based upon his demeanor, crediting the Company's witnesses and noting Wing's testimony, it is clear that the Company had sub- stantial justification for effecting his discharge It is also believable that the decision to discharge him was very diffi- cult because his father was a friend of Davenport. This was a relatively new operation. The frontline super- visors, particularly Boyer and Cutshall, were relatively un- sophisticated in their approach to supervision but attempt- ed to do thejob as best they could. I am impressed with the fact that they attempted to work with Wing, respected his ability and knowledge, and attempted to get him to have a more positive attitude toward them and fellow employees. To find that the General Counsel has sustained his bur- den of proving that a motivating cause for Wing's dis- charge was his union activity would require discrediting all of the Respondent's witnesses, particularly including Da- venport, Boyer, Cutshall, and Takacs with regard to Wing's attitude and employment performance. It would require totally crediting Wing's testimony concerning his own work ability which I found to be somewhat exaggerated. Based upon my observation of the witnesses I am not will- ing to discredit all of the Respondent's witnesses in favor of Wing. In this credibility resolution, I do not necessarily have to find that Wing was deliberately attempting to mis- lead me. I rather conclude that he is a young man with an attitude described by the Company (e.g., Takacs, whom Wing told that since he was only being paid $3.25 an hour that was all the work he would do) who seeks vindication and who, within the context of this situation, necessarily testified in a light most favorable to himself. His testimony, however, on the critical issues within the total factual situa- tion simply is not credible. Boyer testified to a November II confrontation with Wing. In essence, as reflected by Boyer's file note, Boyer told Wing that if his attitude did not improve he would be fired. Wing categorically denied that any such conversa- tion took place. Similarily, Cutshall testified that on numerous occasions he spoke to Wing about housekeeping. Wing says that his area was always clean There are in the record a number of other direct conflicts between Davenport, Boyer, Cutshall, and Takacs on the one hand, and Wing on the other. Believing the Company's witnesses establishes more than sufficient justification for Wing's discharge. If Wing is believed in all respects, he would be found to be an excellent employee whose dis- charge could not be rationally justified. As stated above, on balance I believe the Company's witnesses, not only from their demeanor but from the prob- abilities For instance, they were all forthright in admitting knowledge of union activity. This is more damaging to the Respondent's case than it is helpful that Boyer warned Wing on November 11. If they were embarked on a delib- erate attempt to falsify the facts, their knowledge of union activity would have been denied. Further, no witnesses were called to corroborate Wing. The General Counsel called Benny Shipman, who seemed credible, but did not ask him about Wing's attitude or work habits. This failure to bring forth corroborating testi- mony where such was available leads to the inescapable conclusion that fellow employees would not have support- ed Wing. Given all these factors, I conclude that Wing's discharge was justified and, even though he was a known union ad- vocate, it was not unlawful. The mere fact that one partici- pates in union activity does not insulate him from dis- charge. "The fact that a lawful cause for discharge is available is no defense where the employee is actually dis- charged because of his union activities A fortiori, if the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause." (Emphasis in the original.) N.L.R.B v. Ace Comb Company and Ace Bowling Company, Division of Ame- race Corporation, 342 F.2d 841, 847 (C.A. 8, 1965). Finally, given the total factual situation, it is just not probable that the Company sought out Wing to discharge him for union activity. Where one is discharged for union activity, the probabilities are substantial that other acts and conduct exist which would indicate disposition on the part of the Company to thwart employees in the exercise of their rights under the National Labor Relations Act. Here there is no such evidence. On balance, therefore, I must conclude that the General Counsel has failed to establish by a preponderance of the credible testimony either that there was independent 8(a)(1) activity on the part of the Company or that a factor in the discharge of Wing was his participation in union activity Accordingly, I shall recommend that the com- plaint be dismissed in its entirety CONCLUSIONS OF LAW 1. Spalding, Division of Questor Corporation, is an em- ployer engaged in commerce within the Section 2(2), (6), and (7) of the Act 2. Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 135, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. SPALDING, DIVISION OF QUESTOR CORPORATION 951 3. The allegations set forth in paragraph 5 have not been 6. The allegations set forth in paragraph 8 have not been sustained. sustained. 4. The allegations set forth in paragraph 6 have not been [Recommended Order for dismissal omitted from publi- sustained. cation.] 5. The allegations set forth in paragraph 7 have not been sustained.