I.T.O. Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD I.T.O. Corporation of Ameriport and Independent Watchmen's Association, Local No. 1536. Case 4-CA-10652 January 13, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 15, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed a reply brief. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The Charging Party 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case, heard in Philadelphia, Pennsylvania, on May 30, 1980, presents the question of whether Respondent I.T.O. Cor- poration of Ameriport discharged employee Patrick Kryszczak on September 10, 1979, because he "engaged in Union activities," as alleged in the complaint, and thereby violated Section 8(a)(3) of the Act. Briefs have been received from counsel for the Gener- al Counsel and counsel for Respondent. Based on my recollection of the demeanor of the witnesses and the entire record in this case, I make the following: I Errors in the transcript have been noted and are hereby corrected. 254 NLRB No. 18 FINDINGS OF FACT Respondent engages in stevedoring and marine termi- nal operation in Philadelphia.2 It employs guards to pro- vide security at the gates at its Philadelphia facility,3 and it recognizes the Charging Party as the collective-bar- gaining representative of the guards. The normal proce- dure used by Respondent to obtain guards, whose requi- site number may vary daily, is to contact the union hiring hall and order the necessary personnel; on occa- sion, if steady work is available and Respondent is pleased with a particular guard's performance, he will be retained on an indefinite basis, obviating the need to call for him each day. Patrick Kryszczak worked for Respondent on such a continuing basis from February of either 1977 or 19784 until September 1978. John Schultz, Respondent's chief of security at the terminal, and William MacArthur, the assistant chief of security, 5 both testified that Kryszczak was a most competent and aggressive guard during this period of employment. It was, indeed, Kryszczak's ag- gressiveness which caused him, as all the witnesses agreed, to voluntarily rescind his regular employment with Respondent in September 1978. Kryszczak's ambi- tious investigation of pilfering by "car gang" members employed at the terminal had resulted in animosity against him, as expressed in several incidents, which led him to conclude that he was in physical jeopardy. Ac- cordingly, he told Schultz in September that he no longer wished to work regularly for Respondent, and he returned to the hiring hall procedure, working as needed for other employers under contract with the Union. The record contains a peculiar conflict in testimony regarding Kryszczak's return to employment with Re- spondent. Kryszczak testified that until September 10, 1979, the day of his discharge, he had worked only I day for Respondent after September 1978, and that day fell in June at the time of a New York tugboat strike. Chief of Security Schultz testified, however, that, beginning in February 1979, Kryszczak had been employed by Re- spondent on 21 different occasions prior to September 10. Reading from notes he had compiled from his re- cords, Schultz said that Kryszczak had worked 1 day in February, 19 days in March, and 1 day in June. There was no reason for Kryszczak to give false testi- mony on this score, but I feel certain that he was in error on the point. Schultz was an impressive and precise witness, and I am quite confident that the records show that Kryszczak did occasionally work for Respondent throughout 1979 as Schultz testified. Schultz and his assistant, MacArthur, both testified to a change in attitude on Kryszczak's part during his spo- 2 The pleadings establish that it is appropriate for the Board to exercise jurisdiction in this case, and that Independent Watchmen's Association, Local No. 1536, the Charging Party herein, is a labor organization within the contemplation of the statute. 3 There are five gates, but the fifth is scarcely used. The gates are re- ferred to as Gate 1, or the main gate; Gate 2, or the container gate; Gate 3, or the railroad gate; Gate 4, or True Chem, Unitank, or Gate 179 ; and Gate 5, or the Allegheny Avenue gate. 4 Kryszczak was uncertain, and the matter was not further clarified. 5 Both men are stipulated to possess supervisory authority as defined in Sec. 2(11) of the Act. 92 I.T.O. CORPORATION OF AMERIPORT radic employment by Respondent in 1979. MacArthur said that Kryszczak "did not listen to nobody, he didn't pay no attention." Three times Kryszczak left the termi- nal without authorization, and three times MacArthur found him smoking in the office and the shed. Schultz testified that on perhaps three occasions he had found that Kryszczak was not wearing his safety hat, that on two other occasions he had seen Kryszczak sitting down rather than standing as required, and that once he had found him smoking. Schultz reprimanded Kryszczak for these derelictions, as he did when he found other em- ployees engaging in similar lapses. After June 8, Kryszczak was not dispatched to work for Respondent again until September 10, the day he was discharged. There is some conflict in the testimony about the events of that day. After Kryszczak was assigned to a particular gate (as to which one, see below) in the morning on September 10, Schultz concededly told him that at lunchtime he could walk to the main gate, purchase a soda, and return to duty. Schultz testified that thereafter, as he was making his rounds at or about 10 a.m., he saw Kryszczak sitting on a curb on a "piece of rug." When he asked what Kryszczak was doing, Kryszczak replied that he was doing his job. Schultz told Kryszczak to stand at the gate and Kryszczak responded that he could do his job "just as good sitting down," but he then "very reluctant- ly" stood up and went to his post. Kryszczak had earlier said, on cross-examination, that, when he saw Schultz at midmorning, he was not "sitting there," but was "stand- ing next to the pole." While Kryszczak was not an un- impressive witness, Schultz was a better one, and, if I had to choose between the two men, I would prefer the latter. The incident which resulted in the discharge of Kryszczak occurred soon thereafter. Kryszczak testified that he left his post at the True Chem gate at 11:45, walked about one-half of a mile to the main gate where he purchased lunch, and drove back to his post.6 The time consumed was 15-20 minutes. When Kryszczak re- turned to the True Chem Gate, MacArthur was there. According to Kryszczak, MacArthur accused him of leaving his post, and an argument ensued in which Mac- Arthur called him a "fucking liar" and Kryszczak called MracArthur a "jerk-off." According to Schultz, at or about 11:45, MacArthur called him to the gate at which Kryszczak was stationed. Kryszczak was absent. Schultz told MacArthur that he had authorized Kryszczak to purchase a soda at lunch- time, but had told him to make the trip a brief one. Schultz instructed MacArthur to await Kryszczak's return. According to MacArthur, he had found the gate unmanned at 11:40. He said that, when Kryszczak re- turned at or about 12:15, he asked where Kryszczak had been. Kryszczak said that Schultz had given him permis- sion to get a soda and bring his car back from the main gate. When MacArthur asked how long it took to pur- chase a soda, Kryszczak assertedly walked away from him, saying "Turn me in, big man." As MacArthur re- peated the question, Kryszczak repeatedly made the ^ Kryszczak had left his car at the main gate that morning. same reply. MacArthur then contacted Schultz and, in Schultz' words, said that Kryszczak had "become very belligerent with him" and, as the statement was made, "insubordinate." Schultz decided to discharge Kryszczak, as evidently recommended by MacArthur, and that afternoon the word was passed to John Dillon, the union business agent. Dillon came to the terminal and spoke to Schultz, who, as Dillon testified, said that Kryszczak was "insub- ordinate" and "too cocky." Dillon further testified that MacArthur also used the same descriptives the following day when Dillon attempted to persuade MacArthur to reverse the decision. The record discloses a dispute over the location of Kryszczak's station on September 10. As indicated, Kryszczak said he was assigned to the True Chem gate, about one-half of a mile from the main gate. Schultz and MacArthur said his station was the railroad gate. Since, according to Kryszczak, the True Chem gate is only about 300 feet further from the main gate than the rail- road gate, the difference seems immaterial to the argu- ment advanced by the General Counsel that Respondent was suspiciously unfair to Kryszczak. Since the testimo- ny of Schultz is that the guards are not supposed to be away from their stations at all, except for short breaks to purchase lunch7 or to use bathroom facilities, even Kryszczak's testimony that he was away for 15-20 min- utes could be considered excessive by management, espe- cially considering the fact that Kryszczak returned from the main gate in his car.8 Schultz testified that the "main reasons" for firing Kryszczak were that he "was not on his post" and he was "insubordinate to MacArthur." 9 In context, it does appear, even giving Kryszczak the best of it, that he was slow in returning to his post and, as he conceded, he did not restrain himself in addressing MacArthur. The record discloses two prior incidents of discipline of em- ployees for leaving their post without permission. James Lassiter," a witness for the General Counsel, left the container gate for 15-20 minutes without permission in August 1979. While he was not disciplined, Schultz called Business Agent Dillon and said that, if Lassiter did so again, he "would be fired." A guard named Edward Kennedy was, on the other hand, discharged in Decem- ber 1978 for leaving his post. The circumstances are un- explained, but it seems apparent that Respondent deals with these matters on a case-by-case basis. I cannot say 7 Even then, said Schultz, they are to keep their post "in view all the time." 8 Schultz estimated that a "fast walk" from the railroad gate to the main gate might take 3 minutes and a "very slow" walk could take 5 minutes. The return drive, he said, could be 30 seconds. Assuming an- other 100 yards of walking, if Kryszczak was in fact posted at the True Chem Gate, the time involved would not increase very dramatically. I am inclined, however, to accept the testimony of Schultz and MacArthur that Kryszczak was indeed assigned to the railroad gate. I Minor variations in Schultz's phrasing of these themes, stressed by the General Counsel on brief, seem insignificant to me. '0 In a motion to correct the transcript, the General Counsel asserts that the correct spelling is "Lassiter." although the transcript has it as "Lascitor." In the absence of opposition to the motion. I shall grant it. l While Lassiter testified that Kennedy was permitted to work for Respondent again after his discharge. I am inclined to believe Schultz' contrary testimony 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, given the generally undisciplined attitude of Kryszczak in 1979, as testified to by Schultz and MacAr- thur,12 the fact that in the morning on September 10 Schultz found Kryszczak sitting down on the job, the fact that Kryszczak appeared to have been away from his post to purchase lunch for an inordinate amount of time, and the report by MacArthur of his argument with Kryszczak, Respondent has not advanced a tenable and consistent basis for choosing not to avail itself of Kryszc- zak's services after September 10.13 Of course, the statutory scheme does not require a re- spondent to make such a case; under the test recently an- nounced by the Board in Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), the General Counsel must first "make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." I have saved for last the evidence upon which the General Counsel relies to link Kryszczak's discharge with the union activity safeguarded by Section 8(a)(3) of the Act. Taking that evidence into consideration does not per- suade me that the statutory standard has been satisfied. Kryszczak is the stepson of Vincent Paley, Sr., the president of the Union since 1978. Schultz was aware of this relationship, and, in fact, Schultz and Kryszczak had many conversations about the stepfather's position with the Union. Kryszczak even testified that "a couple of dif- ferent times [Schultz] made statements to me that my father should have ran for the delegate's job; that he didn't approve of the delegate; that my father should have taken [the] job instead of the president's job." To my ear, such remarks seem to display a rather benevo- lent interest in the Union rather than any hostility. Kryszczak also testified that he always carried a copy of the bargaining agreement with him, and a "couple of different times" Schultz asked his opinion of what the contract permitted. Kryszczak said that, whenever he thought something was not being done by the book, he would pull it out. When asked for specifics, however, the only example he gave referred to the morning of the day he was discharged when he assertedly asked Schultz what bathroom he was to use "because our contract states that they are supposed to have toilet facilities there."14 In all, I do not find any real support in Kryszc- 12 On cross-examination, Kryszczak denied that he had been repri- manded in 1979 for not wearing his safety hat, for sitting down, or for smoking. Since Kryszczak was then taking the position that he had worked for Respondent only I day in 1979 prior to September 10, the denials, as shaped by the questions posed, technically referred only to that day in June (". . . if that was the only day that you worked, did you receive any warnings, etc."). I believe that Kryszczak did, as earlier dis- cussed, work 21 days in 1979, and I further believe that he did receive reprimands as Schultz and MacArthur testified. " I drew the impression at the hearing that Kryszczak might well have a tendency to be "cocky." 14 Schultz purportedly replied that Kryszczak could "walk over to the shed and go to the bathroom." Although Schultz was not asked about this conversation, I find it improbable. Kryszczak had worked at the ter- minal for many months, from either February 1977 or 1978 to September 1978, and 21 more days in 1979. Schultz testified that Kryszczak had worked at the "179" (or True Chem) gate in March 1979. 1 suspect that Kryszczak knew where the bathrooms were at the gates. by Lassiter, describing Kryszczak's aggressive and irri- tating prounion stance, as having occurred around August 1979, and as discussed below. 1 First, however, reference should be made to one other piece of testimony by Lassiter about MacArthur. Lassiter testified that in April or May 1979, while he and some other guards were conversing with MacArthur, the latter said that he had heard that Kryszczak was going to run for the position of union business agent. MacArthur al- legedly went on to say that "anything would be better than John Dillon." He further stated that "the Union doesn't do anything to help the men. Paley and Burke just sit on their butts and don't do anything for the mem- bership." MacArthur denied having made any such re- marks. Lassiter seemed an honest sort, but so did MacArthur. There appeared to be no particular reason for Lassiter to lie, but that does not dispel my feeling that MacArthur was as credible a witness as Lassiter, if not more so. De- ciding which one was telling the truth about this incident is most difficult, but I see no need to do so. If MacAr- thur in fact made the remarks, they do not seem to me to reflect any animus toward the Union or toward unionism in general. MacArthur has belonged to four unions; his present job is the first in which he has not been repre- sented by a union. While the quoted remarks are critical of the existing union administration, they strike me as ex- hibiting a basic sympathy with the need of the guards for a strong bargaining representative, rather than disclosing a general or specific antiunion bias. Lassiter further testified that in late August 1979, at a time prior to Kryszczak's discharge, he and MacArthur were talking "and he gave me orders for the day and I asked him why Pat Kryszczak wasn't working there steady and he said that Pat was too Union, always talk- ing about union stuff and that his father was president of the Union. He thought he was too big deal." MacArthur denied that he had uttered any such remarks. The General Counsel relies upon this predischarge conversation as evidence of animus toward Kryszczak because of his union sympathies and status. Taking into account my personal impression that both witnesses seemed trustworthy, I find considerable reason to disbe- lieve Lassiter about this alleged conversation. His expla- nation for suddenly questioning MacArthur in August 1979 about the termination of Kryszczak's steady em- ployment of nearly a year before-it "popped into [his] mind"-does not sit quite right. MacArthur, furthermore, seemed a little too shrewd to have so openly associated the termination of Kryszczak's regular employment with his union affiliation. Most importantly, it is clear from Kryszczak's own testimony that he voluntarily brought an end to that employment because of his problems with the car gang. Accordingly, what Lassiter said MacAr- thur told him was patently not the real reason that Kryszczak had left the job in 1978, and, even if MacAr- thur did make the asserted remarks, they did not validly 15 I have taken into consideration on this point Kryszczak's uncontra- dicted claim that, on the occasion he worked for Respondent in June 1979, he complained to Schultz about the fact that he was not allowed to work overtime. 94 I.T.O. CORPORATION OF AMERIPORT reflect the underlying reason for Kryszczak's departure. It would follow that not only was there no basis for any such explanation by MacArthur, which would indicate that he did not make it, but also that, even if he did make the statements, they were nothing more than idle chatter. I also take into consideration here that MacArthur did not enter Respondent's employ until September 10, 1978, shortly before Kryszczak left it the first time. He could hardly have been exposed to much of Kryszczak's prounionism in that brief period of time. I further note that, despite having allegedly heard these incriminating statements in late August, Lassiter made no effort to communicate them to Kryszczak. The two testified that Lassiter said nothing about the matter until a union meet- ing in October, when Kryszczak asked the executive board to file a grievance about his September 10 dis- charge, at which time Lassiter reported the conversa- tion. 6 Still other considerations make it doubtful that Re- spondent chose to fire Kryszczak for unlawful reasons. So far as the record shows, the bargaining relationship was a peaceful one, and it is difficult to imagine that Re- spondent would go out of its way to create problems with the stepson of the Union president. Even though Kryszczak had left regular employment in September 1978, he had returned for 21 days' work in 1979 without any real resistance from Respondent.' 7 This employment was sporadic, as described above. Prior to September 10, Kryszczak had not worked for Respondent since June (and before that since March). There was every reason, so far as the record shows, for Respondent to believe on September 10 that it might not see Kryszczak for an- '6 There is no indication in the record that the Union filed a griev- ance. The charge was not filed with the Region until November 23. 1' Schultz testified that, when Kryszczak was first assigned to Respon- dent in 1979, he asked Dillon if it was necessary to take him back. He said that the question was born of apprehension about further trouble be- tween Kryszczak and the car gang. Dillon replied that it was necessary, and thereafter Schultz made no further inquiries. The record does not show that the earlier antagonism between Kryszczak and the car gang resurfaced during his 21 days of employment in 1979. other 3 months, or perhaps never again. In this setting, it is difficult to conceive that Schultz and MacArthur would go to the extreme of elaborately conspiring to fire Kryszczak because of his favorable attitude toward the Union and thus deliberately chance entering the unfair labor practice thicket. There scarcely seems to have been any appealing reason for them to have done so. On the foregoing analysis, then, it is my belief that counsel for the General Counsel has not made "a prima facie showing" that Kryszczak's union support was a "motivating factor" in the decision to terminate his em- ployment; even if I were to reach a contrary conclusion on this point, I would be hardput to find that Respon- dent would not, in these circumstances, have taken "the same action . . . even in the absence of the protected conduct." Wright Line, A Division of Wright Line, Inc., supra. Accordingly, I shall recommend that the com- plaint be dismissed. CONCLUSIONS OF LAW 1. I.T.O. Corporation of Ameriport is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Independent Watchmen's Association, Local No. 1536, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The General Counsel has not established by a pre- ponderance of the evidence that Respondent violated the Act as alleged in the complaint. 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: ORDER 8 The complaint is hereby dismissed. '8 In the event no exceptions are filed as provided by Sec. 102.46 of the 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. 95