Joyce Brothers Storage and Van Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joyce Brothers Storage and Van Company and Pat- rick Baker. Case 13-CA-20960 August 18, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On April 2, 1982, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and the Respondent filed a response to the exceptions. ' 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 has decided to affirm the rulings, findings,2 and conclu- sions of the Administrative Law Judge and to adopt her 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 Respondent, Joyce Brothers Storage and Van Company, Chicago, Illinois, its officers, agents, successors, assigns, shall take the action set forth in the said recommended Order. 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- uctr 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 her findings. 2 In addition to filing exceptions the Charging Party has filed a motion to reopen the record. Subsequently, the Respondent filed an opposition to the motion to reopen the record and motion to strike the Charging Party's exceptions concerning references to evidence not incl, '-d in the record. The Charging Party's and Respondent's motions are hereby denied as lacking in merit. The Administrative Law Judge cited Wright Line, a Division of Wright Line. Inc, 251 NLRB 1083 (1980), in finding that the General Counsel failed to make a prima facie showing that protected conduct was a moti- vating factor in the Respondent's decision to discharge Baker. In Member Jenkins' view, the Wright Line analysis is applicable only in cases involv- ing mixed motives, where a genuine lawful reason and a genuine unlaw- ful reason exist and are relied on. Thus, Member Jenkins would not apply that analysis where, as here, protected conduct is not shown to be a moti- vating factor in the decision to discharge an employee. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge: This case was heard before me on October 27 to 28 and December 263 NLRB No. 78 15 to 16, 1981, in Chicago, Illinois. Pursuant to a charge filed on March 20, 1981, a complaint issued on April 24, 1981, and was consolidated with a separate complaint based on a charge filed by William Halliday in Case 13- CA-21135. However, by order of October 26, 1981, the Regional Director for Region 13 of the National Labor Relations Board, sua sponte severed the cases, dismissed the charge, and withdrew the complaint in Case 13-CA- 21135.1 The surviving complaint in the above-captioned case alleges, in substance, that Joyce Brothers (herein called Respondent) discharged and refused to reinstate Patrick Baker in violation of Section 8(a)(3) and (1) of the Act because he engaged in union activity. In addi- tion, Respondent allegedly committed independent viola- tions of Section 8(a)(1) of the Act by threatening to dis- miss the Charging Party on January 16 or 17 and on February 11, 1981, and by threatening another employee with discharge and other reprisals on various occasions between February and July 1981 for offering evidence in support of Baker's grievance.2 Respondent filed answers denying the commission of any unfair labor practices and pleaded affirmatively that deferral to the decision of a joint grievance committee warrants dismissal of the com- plaint. Upon the record, including my observation of the de- meanor of the witnesses and after due consideration of the briefs filed by counsel for the General Counsel and for Respondent, I hereby make the following: FINDINGS OF FACT I. JURISDICTION; THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, an Illinois corporation with an office and principal place of business at 6228 North Clark Street, Chicago, Illinois, is engaged in the moving and storage business. During the past calendar or fiscal year, a repre- sentative period, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 for the transportation of goods from the State of Illinois directly to points outside that State. Accordingly, I find that the Respondent is now, and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Truck Drivers, Oil Drivers, Filling Station & Platform Workers, Local No. 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The stated grounds for the dismissal was the Charging Party's failure to cooperate with the General Counsel's preparation of the case. After advising Respondent of its intent to amend by letter of October 16, 1981, the General Counsel's motion to amend the complaint by adding allegations of threats purportedly occurring in June and July 1981 was granted. 544 JOYCE BROTHERS STORAGE 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Joyce Brothers, an agent of Allied Van Lines, is a member of a multiemployer organization, the Movers Association of Greater Chicago, which, inter alia, en- gages in collective-bargaining negotiations with the Union on behalf of its constituents. Respondent, whose president Dennis Mudd also served as president of the Association, has had a 15-year relationship with several locals affiliated with the International Brotherhood of Teamsters and has been bound to a series of 3-year col- lective-bargaining agreements. The current contract with Local 705, which expires on January 14, 1984, and its predecessor, which was effective from January 15, 1978, to January 14, 1981, contained a grievance-arbitration clause which provided at the third step for a hearing before a six-member joint grievance committee com- posed of an equal number of union and management rep- resentatives.3 Decisions reached by a majority of the committee were to be final and binding. B. The Charging Party Joins Joyce Brothers In November 1978, Baker was terminated by his then employer Pickens-Kane which, like Respondent was a member of the Movers Association. While awaiting a grievance hearing on his discharge before the joint com- mittee, Baker applied for a position with Respondent and was hired as a packer-helper. Baker testified that he asked Respondent's operations manager, Fahey, to ask Mudd to extend to him a personal offer of permanent employment. Baker further testified that, during a recess in his grievance hearing, Mudd who served as a member of the joint committee did offer him a job at Joyce Brothers. However, he conditioned that offer on extract- ing from Baker a commitment to avoid any involvement with the Union. Specifically, Baker stated that Mudd warned him not to "get associated with the fucking Union because the Union can only mean trouble for me" and "if he did not live up to it [his promise to refrain from union activity] he would be terminated." Accord- ing to Baker, upon accepting Mudd's offer the joint com- mittee took no further action on his grievance. As with most of the critical events in this case, Re- spondent's version of the events in 1978 is completely at odds with Baker's. Thus, Mudd denied having a private encounter such as Baker described during the grievance hearing (or at any other time), pointing out that commit- tee members avoided any contact with grievants in the event that their rulings were adverse. In fact, Mudd stated he was unaware that Baker was on Respondent's payroll until the president of Pickens-Kane subsequently advised him of that fact. Further, Fahey denied that Baker ever requested that he urge Mudd to make a per- sonal offer of employment. In contrast to Baker, whose account of the circum- stances surrounding his employment at Joyce Brothers seemed improbable, Mudd who impressed me as a credi- ble witness testified in a consistent and logical manner. The fourth step provides for the appointment of an arbitrator where grievances were not resolved at the third step. As president of an association which had a lengthy and ongoing relationship with the Union, it is inconceivable that he would run the risk of making such intemperate comments to Baker, a virtual stranger, whose union pro- clivities were unknown to him. Moreover, the minutes of the grievance hearing disclose that the joint committee ordered Baker's reinstatement with backpay. Since Baker had his job back at Pickens-Kane, there was no reason for Mudd to offer him employment at Joyce Brothers. Thus, Baker's attempt to attribute antiunion sentiments to Mudd from the date of his hire was unsuccessful. In- stead, Mudd's participation in the committee's favorable decision for Baker suggests that, at least in 1978, Mudd harbored no animus toward him. 4 C. Baker's Union Activity In mid-December 1979, the Association and the Union began negotiations for a new collective-bargaining agree- ment. On behalf of the Association, Mudd presented a new wage proposal to the Union which was referred to as the incentive or percentage plan. The Union's negoti- ating team immediately predicted that the proposal was not likely to be well received by the membership. Never- theless, at management's request, the union representa- tive promised to present the proposal in a neutral manner. Mudd testified that, although he originally favored the incentive proposal, his support gradually eroded as he re- alized how unpalatable it was to his employees. Shortly after presenting the proposal at a bargaining session, Mudd called several meetings of the Joyce Brothers em- ployees to explain the measure's complex terms. At each such meeting, several employees openly and candidly ex- pressed their opposition to the proposal. For example, employee Frank Osborne told Mudd he was "not going for it" and that he would not work under those condi- tions. Warehouse Foreman Chester Gdula bluntly ad- vised Mudd that he could "take the incentive plan and ram it." After these group meetings, other employees vigorously denounced the proposal to management. Warehouse Foreman Martin McDonagh 5 told Fahey and Robert Proctor, Respondent's customer service manager, that he thought the incentive plan "was a bunch of shit." Responding to Mudd's personal request to appraise the incentive plan, long-distance driver Mario Mangarelli told him that the plan would cost him $50 a day and, therefore, Mudd could throw the proposal in the garbage can. On January 15, Baker attended a union meeting at which the proposal was presented to the membership and he joined with most of the other 200 employees there who overwhelmingly rejected the incentive plan. By his own admission, Baker was attempting to keep a low profile and therefore was not among those employ- ees who spoke out publicly against the proposal either at 4 Mudd also participated in a joint committee decision to reinstate Baker to his job at Pickens-Kane on at least one prior occasion ' Despite the title of foreman, Odula and McDonagh were unit mem- bers covered by the Union's labor agreement. The record established that they exercised none of the authority which typically earmarks a supervi- sor under the Act. 545 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the company or the union meetings. However, after the conclusion of the January 15 meeting, Baker, with ap- proximately nine other Joyce Brothers employees, met separately with the Union's business agent, William Dicks, and expressed opposition to the proposal. At the same time, Baker asked Dicks whether the employees would be compelled to work without a contract, noting that if they did so they would be unprotected against reprisal. Dicks assured Baker and his coworkers that they need not work without a contract." D. Events Preceding Baker's Discharge 1. January 16-17 Witnesses for the General Counsel and Respondent offer widely divergent accounts of a series of events leading to Baker's discharge. Baker testified that at the start of the workday, on January 16, with approximately 10 other drivers present, he requested a day off for per- sonal reasons. Halliday then called him and coworker John Maudlin into the dispatch office where Dicks, Fahey, long-distance dispatcher Bill Jay, and employee McDonagh were present. When Baker repeated that he wanted the day off, Dicks purportedly erupted that he was attempting to prevent drivers from working without a contract. Baker also testified that Dicks singled him out for trying to block the incentive clause and warned him that the Union would refuse to grieve any discipline which might be imposed upon Baker if he refused to work. Dicks, Fahey, and McDonagh uniformly denied being present at the small group meeting in the dispatcher's office which Baker described. Instead, Dicks testified that, after being called to Joyce Brothers, he met with a group of drivers and again assured them that they need not work and would suffer no reprisals if they chose not to do so. He asked Fahey to confirm this position to the drivers and Fahey corroborated Dicks' testimony that he did so. As to the conflicting versions of this episode, I con- clude that Baker's story does not ring true. Dicks assert- ed that it was not his practice to identify or isolate an individual's union efforts. Moreover, in these circum- stances, he would have no reason to do so since the tide of opposition against the incentive plan was virtually unanimous. Further, I find irrational Baker's assertion that Dicks on one day would assure drivers that they need not work, only to reverse himself with drivers present on the following morning. McDonagh too failed to support Baker's testimony. I find it significant that the General Counsel neither cross-examined McDonagh in this matter nor called Mauldin, the other driver who Baker said was present, to verify Baker's claims about this episode. A separate and subsequent incident related by another Joyce employee, Chester Gdula, casts further doubt on the accuracy of Baker's description of the Janu- ary 16 meeting. Gdula stated that on one occasion when I The candor which characterized the employees' comments to Mudd about the incentive proposal buttresses the conclusion that Mudd was not inclined to stifle union activity among his employees and thus would not have conditioned Baker's employment on his promise to refrain from sim- ilar conduct. Baker mentioned he would continue working in the event of a strike, Gdula promised to "bust both of his ... ears." Baker subsequently reported this threat to Fahey who in turn relayed it to Mudd. Mudd responded with an oral warning to Gdula admonishing him that such threats were inappropriate. I infer from this episode that Baker's position on not working without a contract was not strongly asserted and, certainly, not earnestly maintained. On the evening of January 16 Baker became embroiled in another situation about which there is a web of con- flicting testimony. Baker asserted that, on Halliday's in- struction, he called Fahey at home at 10:30 in the eve- ning. Fahey angrily denounced Baker as "a fucking asshole for . . . trying to block the percentage clause" and threatened that he would lose his job for that con- duct and for bringing other employees to the January 15 union meeting in his car.7 When Baker called Fahey a second time several minutes later to pursue the matter, Fahey purportedly renewed his antiunion diatribe. According to Fahey, Baker's version of their phone calls was a complete fabrication. Respondent called McDonagh as a witness to explain that he had encoun- tered Baker in a bar that evening in a drunken condition. McDonagh testified that Baker had accused him of making certain unfavorable comments about him to man- agement and had threatened him with bodily harm.8 McDonagh recounted that he had called Fahey at ap- proximately 9:30 p.m. somewhat fearful that Baker would carry out his threats. Fahey testified that at I a.m. he was awakened by a call from Baker who ranted that McDonagh was trying to undermine Baker's job. Fahey suggested that Baker's timing was inappropriate and hung up, whereupon Baker phoned again and resumed his tirade. Several days later, Fahey issued a written rep- rimand to Baker for his unseemly phone calls. Again, the more plausible account of this episode was offered by Respondent's witnesses. I found McDonagh to be a credible witness with no motive to slant his testi- mony. Moreover, although Baker denied having threat- ened McDonagh, he did not contradict his testimony as to other aspects of their barroom confrontation. There- fore, concluding that Baker was inebriated, I find it far more likely that he, not Fahey, engaged in an intemper- ate outburst on the telephone about matters that had nothing to do with his position on the incentive clause. 2. February II Baker testified that at the end of the workday on Feb- ruary 11 Halliday warned him he would be fired in 2 weeks for trying to block the incentive proposal. In a sworn statement to a Board agent investigating this case, Baker attested that no one else overheard this remark. However, Danny Fox, a fellow driver and friend of Baker's, claimed subsequently that he was standing just outside Halliday's view and did overhear the threat. Hal- liday did not testify. 7 It is interesting that Baker failed to include among Fahey's threats any allusion to Baker's not working without a contract. 8 McDonagh and Baker's encounter apparently had nothing to do with Baker's opposition to the incentive clause. 546 JOYCE BROTHERS STORAGE I draw no conclusions about whether Halliday threat- ened to discharge Baker. However, I have grave doubts that, even if he did so, the threat bore any relationship to Baker's opposition to the wage proposal. Baker was less vocal than any number of other employees who ex- pressed vigorous opposition to the measure. Moreover, since by February 11 management had withdrawn the in- centive proposal from the bargaining table, it could hardly matter who had opposed the proposition. Further, attendance cards introduced into evidence reveal that neither Fox nor Baker worked on February I 11. Al- though on rebuttal Baker claimed he visited the facility to check on his future schedules, Fox offered no such ex- planation for his adventitious presence in the drivers' room on a day that he was not assigned to work. 3. February 24: Allegations of stealing time In addition to its moving and storage operations, Re- spondent was under contract to Cook County to deliver voting machines by van and absentee ballots in company or privately owned vehicles during election periods. During the November 1980 election, Fahey testified that Baker took an inordinately long time to complete his election deliveries and pickups and thereby aroused sus- picions that he was stealing company time.' He also tes- tified that, because of a shortage of managerial personnel and out of a desire not to create any friction among the employees while negotiations were underway, he waited until the new contract was executed before attempting to verify whether or not Baker was, in fact, stealing time. On February 24, with the new contract in place, Fahey decided that the moment was opportune to have Baker followed. For most of the morning on February 24 Proc- tor and Halliday tailed Baker. At the outset, Baker drove a fellow employee from the plant to his home. He was accompanied by Fox who was not assigned to work that day. After following Baker and Fox for several hours that morning, Proctor and Halliday returned to the facili- ty and reported to Fahey that, after Baker made his scheduled stops, he drove the wrong way on a one-way street, parked, entered a restaurant at 9:45 a.m., ate breakfast, and remained there for the next 45 minutes. Then, according to Proctor, Baker drove along an ex- pressway exceeding the speed limit, exited, and took a somewhat circuitous route back to the barn, through an area known as New Town. On one occasion, Baker parked; Fox then exited from the vehicle and walked around briefly." Clark and Broadway both lead to the 9 The General Counsel submits that Respondent's failure to call Halli- day as a witness warrants an adverse inference that his testimony would not support Respondent's case. I decline to draw such an inference. Judg- ing by the General Counsel's order severing the instant case from the complaint, which was based on a charge filed by Halliday subsequent to his discharge by Respondent, it appears that he was equally available or unavailable, as the case may be, to either party. Accordingly, no adverse inference is warranted. 3A Wigmore, Evidence, §§ 1017-18 (3d ed 1970). See Consolidated Freightways Corporation of Delaware, 257 NLRB 1281, 1290, fn. 19 (1981). 10 In the moving industry a driver's failure to report break periods, for which he would not otherwise be paid, is commonly referred to as steal- ing time. II New Town, as Fahey explained, is an area frequented by so-called street people and bordered by bars. Company's facility, but Clark is a wider street and a more direct route. Not surprisingly, Baker and Fox offered a different de- scription of their morning's activities. Baker claimed that, at the start of the day, he advised Fahey that he was having difficulties with his car and asked to use a compa- ny vehicle; however, Fahey denied his request. Baker conceded that he dropped one employee near his home and that Fox accompanied him on his deliveries, but maintained that it was customary to have passengers ac- company drivers on election days without obtaining management's prior approval. Baker further explained that he parked his vehicle at a gas station while he tele- phoned to the dispatcher as he was required to do after completing his morning deliveries. Since the station was closed, he entered a nearby restaurant at approximately 10:10 or 10:15 a.m. to make his call. After twice obtain- ing busy signals, he finally reached the dispatcher and was told to report back to the facility. Both he and Fox claimed that they remained in the restaurant no more than 20 minutes and denied that they ate breakfast there. Given the condition of his vehicle, Baker explained that he decided to return to the bar via Broadway rather than Clark because it had less traffic and had fewer lights. Baker and Fox both denied engaging in a detour and frolic through New Town. After a lunch break, Baker used his car for deliveries for the balance of the day without incident. However, the following day he brought his car to a repair shop. At the hearing, he produced a bill from the garage showing that the brakes on his vehicle had been repaired on Feb- ruary 25. 4. February 26: The discharge Baker submitted his timecard on February 25 for the preceding day. In reviewing this card the subsequent day, Fahey observed that Baker failed to report taking any break. He then summoned Baker to his office, ques- tioned him, and, after hearing Baker's denials, discharged him. On the same day Respondent issued Baker a letter which recited the route that he had taken on February 24 and attributed the discharge to his transporting unau- thorized passengers, as well as taking and failing to record an excessive break. Fahey conceded that employees were rarely disci- plined for stealing time if the amount of time involved was less than half an hour and, when confronted with the error or omission in his timecard, the employee ad- mitted his wrongdoing. Under those circumstances, Fahey explained that the employee's timecard would be revised by a supervisor to reflect the accurate breaktimes involved. A number of timecards for employees Kallas, McDonagh, and Baker were admitted into evidence showing that reported times had indeed been reduced, generally by no more than 15 minutes. Thus, the Compa- ny responded to inadvertent and short breaks by docking the employees' time and, on some occasions, by verbal reprimands. On the other hand, intentional failures to record substantial breaks, that is, those of more than one- half hour, were punished with disciplinary action, rang- ing from warning letters to discharge. For example, em- 547 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees Vodicka, Darcy, and Dahle were terminated in 1978, after having been followed, for deliberately failing to report several hours of breaktime. The record indi- cates that Vodicka was guilty of only one such violation. In December 1978, employees Honig and Pecore also were terminated for failing to report a 2-1/2-hour break. This, too, was Pecore's and Honig's first reported viola- tion. The third member of this crew, Burchfield, re- ceived only a 15-day suspension, because as Fahey ex- plained he was a 12-year employee and acknowledged his wrongdoing. Apart from the surveillance of Vodicka, Darcy, and Dahle, Fahey recalled only one other in- stance in 1975 when a driver was monitored deliberately. However, Fahey related that he, Mudd, and Proctor routinely followed drivers if they encountered them during the course of the day. As part of his defense, Baker claimed that the practice of conveying passengers on election days without man- agement's consent was well es'ablished and widespread. In fact, he claimed that, on the preceding election day in November 1979, the drivers' room was crowded with the employees' companions. Respondent acknowledged that the failure to seek permission to transport a passen- ger without prior consent would not, standing alone, normally constitute grounds for discharge. It did not concede, however, that a policy prohibiting passengers without permission was nonexistent. Thus, a series of witnesses, including supervisors and employees, testified uniformly that drivers were required to obtain prior con- sent before taking passengers when making election day deliveries. E. The Grievance Proceeding At Baker's request, Dicks met with Fahey on the day following Baker's discharge in an effort to persuade him to reinstate Baker. Dicks' efforts failed and a formal grievance was filed which was not resolved at the second step. Therefore, a hearing was scheduled before the joint grievance committee on March 19, 1981. 2 In testifying before the committee, Baker explained that he believed that his discharge was due to his in- volvement with union activity. However, according to Baker, the chairman of the committee refused to consid- er that assertion because it was undocumented and un- provable. Moreover, Baker contended that, although he was permitted to read aloud a sworn statement provided to him by Fox, the committee would not receive that document into evidence nor would it grant Baker a con- tinuance to obtain Fox's appearance at the hearing. Dicks, however, could not recall either that the commit- tee rejected the Fox affidavit or that Baker requested or was denied a continuance. Minutes of the joint committee hearing, admitted into the record of this case, reflect that the Fox statement was appended to that summary. Further, although the minutes indicate that Baker's grievance was denied, they reflect none of the factors upon which the committee may have relied in reaching its decision. Rather, the min- Ia Dicks' conduct in pursuing Baker's grievance is altogether inconsist- ent with Baker's claim that the business agent exposed him to manage- ment as the opponent of the incentive proposal and threatened not to process his grievance if he were disciplined for refusing to work. utes simply state that "After a further discussion, a motion was made . . . that based on the evidence pre- sented and the violation of the company rules, the griev- ance be denied." F. The Alleged Threats to Fox Fox testified to a series of threats made to him in the months following Baker's discharge which allegedly were designed to restrain him from supporting the Charging Party's version of the events of February 24. The first of these warnings occurred on February 27, according to Fox, when Halliday pointedly remarked to him that he was married and that jobs were hard to come by. Then, in explicit terms, Halliday threatened to fire Fox if he testified in Baker's behalf at his grievance hearing. Fox immediately reported this threat to Fahey and asked him to have Halliday apologize. Several days later, Fahey told Fox he best forget about the threat, that Halliday was not willing to apologize. Fahey presented a somewhat different picture of this incident. After Fox related Halliday's threat to him, Fahey admonished Halliday against making such re- marks. Fahey then informed Mudd of the episode. Mudd, too, rebuked Halliday and sent him a memo instructing him that such remarks were inappropriate. Fahey main- tained that, subsequently, he assured Fox there would be no retaliation against him for participating in Baker's grievance. Fox next testified about three conversations with Dennis Mudd. The first of these occurred on March 25 after the joint committee denied Baker's discharge griev- ance. Fox stated that Mudd thumbed his nose at him and said, apparently in a facetious manner, "It was very nice of one of my senior men to put in a written statement against me to the Union." This was followed by Mudd's threatening to assign Fox to third floor work.'3 Mudd described his conversation with Fox in this way: As Fox was passing his office, he gestured him inside and asked why he lied to the joint grievance com- mittee. When Fox shrugged his shoulders and said, "That's the way it is," Mudd responded that if he were still dispatching drivers, Fox would be assigned to the more onerous third floor work because of his lies. On another occasion in May, Fox related that he tried to persuade Mudd to reinstate Baker. Mudd refused to reconsider the discharge but suggested that Fox could bring a halt to the matter by altering his version of the February 24 events and admitting that he knew Baker had taken a break and failed to report it. Mudd readily acknowledged one conversation which Fox initiated immediately after he was interviewed by Respondent's counsel during her investigation of Baker's charge. According to Mudd, Fox urged him to settle the case and put Baker back to work. Mudd replied that, al- though he had a lot of money invested in training em- ployees such as Fox and Baker and did not relish dis- charging anyone, he would not settle since he believed the discipline Baker received was proper. He did ask Fox 13 Third floor work are industry code words referring to strenuous moving assignments up and down flights of stairs. 548 JOYCE BROTHERS STORAGE why he had lied in his statement to the joint grievance committee. At this, Fox admitted he may have stretched the truth by 20 minutes. Again, sometime in June or July, Fox stated that Mudd asked him if he had considered changing his story, that it would be in his best interest to do so. Fox ex- plained that Mudd's suggestion occurred in conjunction with a separate incident in which he and several other employees were accused of stealing time. Fox conceded that Mudd apologized to the three men when he discov- ered that the accusation was unfounded. In responding to Fox's last indictment, Mudd recalled that, in Proctor's presence, he merely assured the drivers that the accusations of stealing time had nothing to do with Baker. Other than that one reference, he denied making any other comment to Fox or suggesting to him that he alter his testimony. III. DISCUSSION A. Deference to Arbitration Is Not Warranted At the outset, a question is presented as to whether the decision of the joint committee upholding Baker's dis- charge precludes a decision on the merits in this forum. The Board has established a policy of deferring to the decisions of arbitral panels to encourage the voluntary settlement of labor disputes, but only where (1) the pro- ceedings were fair and regular; (2) the parties agreed that the proceedings were final and binding; and (3) the award was not clearly repugnant to the purpose and policies of the Act. Spielberg Manufacturing Company, 112 NLRB 1080 (1955). In addition, the Board also re- quires that evidence bearing on the unfair labor practice must have been presented to and considered by the arbi- trator if the Board is to refrain from hearing the matter. Suburban Motor Freight, Inc., 247 NLRB 146 (1980)."4 The General Counsel insists that the proceedings before the joint committee were far from fair and regular for a number of reasons, not the least of which was the committee's purported refusal to receive into evidence the Fox affidavit or to grant Baker a continuance. More- over, the General Counsel contends that the minutes of the meeting were not properly authenticated and there- fore cannot accurately be relied upon as reflecting what occurred. With equal insistence, Respondent points out that the minutes of the hearing establishes that the Fox affidavit was admitted and that Baker acknowledged on the record that the hearing was fair and impartial. It is difficult to believe that the joint committee failed to take the Fox statement into account, particularly since Baker was permitted to read it aloud. However, since the evidence is somewhat ambiguous on this matter, I am un- prepared to say that Respondent has met its burden of proving that the proceedings met the first Spielberg crite- rion. However, a more fatal infirmity marks this hearing. Baker stated that, when appearing before the committee, 14 As in Suburban Motor Freight. supra at 152, fn. II, no contention is made here that the committee did not constitute an arbitration body within the meaning of Spielberg. But see Member Jenkins' dissenting opin- ions in Automobile Transport. Inc. 223 NLRB 217 (1976), and Terminal Transport Company. Inc., 185 NLRB 672 t1970), on grounds that arbitral panel lacked neutral members. he alluded to his union activity. However, apart from his representations, no proof exists that the committee took his testimony into account or gave any consideration to the factors germane to the statutory issue. The minutes clearly do not mention Baker's alleged protected activi- ty. Indeed, they are barren of any analysis of the evi- dence presented nor do they reflect the reasoning which underlay the committee's decision denying Baker's griev- ance. Thus, there is simply no basis upon which to deter- mine whether the unfair labor practice aspect of Baker's grievance played a part in the committee's deliberations. Accordingly, without proof that the Suburban Motor Freight criterion was satisfied, deferral to arbitration would be inappropriate. B. The Discharge Was Lawful In cases such as this involving an alleged violation of Section 8(a)(3), the issue posed is whether an employee's concerted activity was the motivating factor in the em- ployer's decision to discipline him. In resolving this issue, the General Counsel bears the burden of proving by a preponderance of the evidence that Baker engaged in union or other concerted activity and that Respondent's knowledge of this activity was a significant factor in its decision to discharge him. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). I conclude that the General Counsel has failed to meet his threshold burden, for the evidence fails to establish that, even if Respondent was aware of Baker's union involvement, that knowledge played any part in its decision to termi- nate him. There can be no dispute that Baker's opposition to the incentive clause and his inquiries about working without a contract constitute protected concerted conduct. See Soundesign Corporation, 232 NLRB 993, 998 (1978). However, given the record in this case, a serious ques- tion must be addressed as to whether Respondent knew of Baker's sentiments. By his own admission, Baker was reluctant to publicly express his views. Nevertheless, the General Counsel contends that management's knowledge is revealed by (a) the January 16 meeting at which Dicks, in manage- ment's presence, branded Baker a militant opponent of the incentive clause and the leader of a potential walkout; (b) Fahey's 10:30 p.m. telephone conversation with Baker on January 16; and (c) Halliday's threats of discharge on February 11. As discussed above, I found Baker's accounts of these incidents wholly implausible. Accordingly, they do not provide evidence that manage- ment had specific knowledge of Baker's union activity. Nevertheless, management may have had some reason to believe that Baker opposed the incentive clause, if only by virtue of the fact that almost all of the union members similarly were opposed. It is also possible that Baker's participation with some nine other Joyce Brothers em- ployees at a meeting with Dicks on January 15 came to management's attention. A more likely source of knowl- edge stems from Baker's participation in a group demand that Fahey guarantee against reprisals if they chose not to work without a contract. Although such evidence is 549 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD circumstantial at best, it is minimally sufficient to give rise to an inference of knowledge. Assuming, therefore, that management was aware of Baker's attitude, a more fundamental question arises which is never satisfactorily answered: That is, why would management single out Baker for discipline when a number of his coworkers were far more vocal than he in their opposition to the incentive plan. Baker vastly ex- aggerated his own opposition to the plan and magnified the significance which management attached to his views. The truth of the matter is that in comparison to the positions taken by far more outspoken employees such as Osborne, McDonagh, and Mangarelli, none of whom was disciplined for his conduct, Baker's opposi- tion was negligible. The reason for Baker's exaggeration is not hard to find: Unless he portrayed himself as a fire- brand, any motivation for his discharge, which might otherwise be cognizable under the Act, evaporates. The timing of Baker's discharge, a factor often relied on to prove discrimination in 8(a)(3) cases, works to the General Counsel's disadvantage here and reinforces the conclusion that the discharge was not discriminatorily motivated. By February 11 when Baker accused Halliday of threatening to fire him because of his union involve- ment, or by February 24 when he was followed, the per- centage clause had been withdrawn from the bargaining table and the entire issue had been put to rest with the execution of a new contract. Similarly, Baker's inquiries about working without a contract never were converted into a reality and were irrelevant by the time Baker was discharged. Moreover, on one occasion when Baker was threatened by a coworker for implying he would contin- ue working if a strike occurred, management came to his defense. Further, the element of union animus is wholly absent from this case. As I found above, it is inconceivable that Mudd made the antiunion remarks which Baker attribut- ed to him in 1978. In terms of recent conduct, credible evidence from several witnesses established that Mudd was exposed to and even solicited far more abrasive comments about the incentive proposal than were ever forthcoming from Baker. Indeed, by mid-January it is clear that Mudd was disenchanted with the proposal and was among those on the management team who urged that it be abandoned without resort to hard bargaining tactics. In these circumstances, the suggestion that Baker was penalized for opposing a clause which the Compa- ny's president had abandoned a month before the dis- charge is insupportable. The General Counsel contends that Respondent's ap- plication of its policy against stealing times was so dis- parately applied to Baker as to constitute evidence of its unlawful motivation. Baker did not deny Fahey's assertion that he took an excessive period of time in delivering ballots in Novem- ber 1979, that he transported two passengers on Febru- ary 24, nor that he failed to report a break on his time- card on that date. Therefore, the only factual dispute is whether he remained in the restaurant for 45 minutes and then deliberately took an indirect route back to Respond- ent's facility, or whether he and his companion, Fox, re- mained in the restaurant no more than 20 minutes and took a relatively straightforward road back to the barn. Because of my previous findings with respect to Baker's penchant for distorting the truth, I am not in- clined to believe his version of the events of February 24. There are independent reasons why I find that Proc- tor, and not Baker, should be credited. First, I was im- pressed with the authenticity of the contemporaneous notes which Proctor kept during his surveillance of Baker. If Proctor wished to dissemble it would have been a simple matter to build a case against Baker by stretching the time Baker lingered in the restaurant well beyond 45 minutes, and to invent a far more bizarre route back to the barn. In contrast to Proctor, Fox did not reconstruct the events of February 24 until 3 weeks later. His ability to recall his and Baker's whereabouts and timetable with computer-like precision is too remark- able to be believed. Indeed, Fox partially admitted that he had stretched the truth when he told Fahey that he and Baker might have been in the restaurant 20 minutes longer than he originally reported. I also find no reason to assume that Proctor invented each of Baker's twists and turns through the New Town area. Proctor had no purpose to do so, whereas Baker and Fox had ample mo- tivation for dissembling. Even if Broadway is somewhat less trafficked than Clark, the city street map shows that Clark is a much more direct route back to the barn. Since it was the street most frequently used by Joyce Brothers drivers, I fail to understand why Baker would chose to avoid it. Moreover, even if Baker had trouble- some breaks, they were not damaged enough to prevent him from weaving through some of New Town's side streets. It is true, as the General Counsel points out, that Re- spondent's past practices with respect to disciplining em- ployees for stealing time were less than uniform. Surveil- lance was rare and discipline infrequently imposed. How- ever, the record shows that neither surveillance nor dis- charge for stealing time was altogether unprecedented when the circumstances were egregious. Although this was the first time Respondent documented Baker's steal- ing more than one-half hour, Fahey's response to this violation was not based solely on an unreported 45 to 60 minutes. Rather, it was apparent that he reacted to Baker's denying any wrongdoing when confronted with what Fahey had good reason to believe was unassailable evidence of his theft of company time. Further, even if the record does arouse some suspicion regarding the rea- sons for Baker's discharge, suspicion alone is not suffi- cient to meet the General Counsel's burden of proof that Respondent's motives were unlawful. See Pork King Company, Inc., 252 NLRB 99, 100, fn. 8 (1980); Carrom Division, Affiliated Hospital Products, Inc., 245 NLRB 703, fn. 1 (1979). It is a well-established principle that where the trier of fact "finds that the stated motive ... is false, he certain- ly can infer that there is another motive. More than that he can infer that . . . the motive is one that the employ- er desires to conceal-an unlawful motive-at least where . . . the surrounding facts tend to reinforce that inference." Shattuck Denn Mining Corporation (Iron King 550 JOYCE BROTHERS STORAGE Branch)v. N.LR.B., 362 F.2d 466, 470 (9th Cir. 1966). Even if I were to surmise that Respondent's stated reason for following and then firing Baker was not its real reason, it does not follow that its true motive was an unlawful one. It is unnecessary to engage in idle specula- tion as to what, if any, other motive Respondent may have had, for I am convinced that it bore no relationship to Baker's concerted activity. As long as the decision to sever Baker from its employ was not generated by dis- criminatory considerations, Respondent was free to fire Baker for good cause, poor cause, or no cause at all. 15 It follows from the above discussion that Respondent did not violate Section 8(a)(3) and (1) of the Act by dis- charging Baker on February 26, 1981. Accordingly, I shall recommend dismissal of those paragraphs in the complaint alleging that the discharge was unlawful. C. Conclusions as to Independent 8(a)(1) Violations As evident from the discussion supra I did not credit Baker's story that Fahey threatened to discharge him on January 16 or 17 or that Halliday's threat to discharge him was tied to his union involvement. Accordingly, I shall recommend the dismissal of paragraphs V(a) and (b) of the complaint. Fox's account of his February 27 encounter with Hal- liday is more troublesome. The issue here is not whether Halliday made the unlawful statements Fox attributed to him, but whether, after being advised of those remarks, Respondent took appropriate steps to retract them. If a copy of Mudd's memo chastising Halliday had been sent to Fox, or if Halliday had apologized as Fox requested, there would be little difficulty in resolving this matter. However, without any unequivocal documentation that Respondent formally communicated its disavowal of Halliday's threat, Fahey's comment that Fox need not fear retaliation may not have appeared sufficiently reas- suring. As the Supreme Court observed in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969): . . .the precise scope of employer expression . . . must be made in the context of its labor relations setting. .... And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinter- ested ear. It was within Respondent's power to make its retraction clear and convincing. Since it failed to do so, ! conclude that Respondent must be held liable for violating Fox's rights guaranteed by Section 7 of the Act. Resolution of the conflicts between Fox's and Mudd's accounts of their conversations is even more problemat- ic. I am mindful, on the one hand, that Fox's credibility is enhanced by the fact that he offered testimony adverse to Respondent although still in its employ. See, e.g. Sani- tas Cura, Inc., d/b/a Parkview Acres Convalescent Center, 255 NLRB 1164 (1981); Motz Poultry Company, 244 1' See N.LR.B. v. Ace Comb Company, 342 F.2d 841 (8th Cir. 1965); Borin Packing Co.. Inc., 208 NLRB 280 (1974). NLRB 573, 575, fn. 7 (1979). On the other hand, Mudd was seasoned in labor-management relations. Especially after Baker filed an unfair labor practice charge, Mudd would have been exceedingly cautious in overstepping the bounds of propriety. Balancing these considerations, I conclude that Re- spondent must be faulted for whatever ambiguity arose as a result of Mudd's remarks to Fox after the March grievance hearing. Mudd initiated the conversation and acknowledged raising questions regarding Fox's state- ment to the joint committee. He also admitted alluding to third floor work and certainly was in a position to im- plement such discipline if he chose to do so. It was not unreasonable, then, for Fox to read a warning into Mudd's remarks. I conclude, therefore, that however un- intended Mudd's comments to Fox in March violated Section 8(a)(1) of the Act. I decline to draw the same conclusions about any sub- sequent statements Mudd was alleged to have made. Fox conceded that his recollection of their exchanges was vague. Further, when questioned closely, he revealed that Mudd did not ask him to change his testimony; rather, that Mudd expressed his disbelief in Fox's ac- count of the events of February 24. In these circum- stances, Respondent cannot be held accountable for whatever inferences Fox drew. Accordingly, I shall pro- pose the dismissal of paragraph V(e) of the amended complaint. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Truck Drivers, Oil Drivers, Filling Station & Plat- form Workers, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Danny Fox with reprisals in March 1981 to restrain him from presenting evidence at Patrick Baker's grievance proceeding and for providing a writ- ten statement which was offered at that proceeding, Re- spondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices have a close, in- timate, and substantial effect on interstate commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not unlawfully threaten to discharge Patrick Baker nor terminate him for discriminatory rea- sons on February 26, 1981. THE REMEDY Having found that Respondent has engaged in several unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and from any like or related conduct. Affirmatively, Respondent will be re- quired to take certain affirmative actions including post- ing copies of the notice appended to this Decision. Upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 551 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER ' The Respondent, Joyce Brothers Storage and Van Company, Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening any employee with reprisals in order to prevent him from offering evidence or because he has offered a written statement for use at a grievance pro- ceeding. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Post at its Chicago, Illinois, facility copies of the attached notice marked "Appendix."17 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that, insofar as the complaint as amended herein alleges other violations of sa 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. 17 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." the Act which have not been found, these allegations are hereby dismissed. APPENDIX NOnce To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence and cross-examine witnesses, the Na- tional Labor Relations Board found that we have violat- ed the National Labor Relations Act, and has ordered us to post this notice. We intend to abide by the following: The Act gives all employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Accordingly, we assure you that: WE WILL NOT threaten any employee with repri- sals in order to prevent him from offering evidence or because he has offered a written statement for use at a grievance proceeding. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. JOYCE BROTHERS STORAGE AND VAN COMPANY 552