Fedex Freight East, Inc.

FEDEX FREIGHT EAST, INC. 344 NLRB No. 5 205 Fedex Freight East, Inc. and Tommy Grass. Case 13– CA–40188 January 31, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On July 22, 2003, Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief. The General Counsel filed an answering brief to the Re- spondent’s exceptions and brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions only to the extent consistent with this decision, and to adopt the recommended Order. We adopt the judge’s findings that the Respondent vio- lated Section 8(a)(3) and (1) by suspending and discharg- ing Tommy Grass. However, we do so solely by applica- tion of Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 898 (1982), approved in NLRB v. Transportation Manage- ment Corp., 462 U.S. 393, 399–403 (1983). We agree with the judge that the Respondent knew of Grass’ union activities and that its decision to suspend and discharge Grass was motivated by antiunion animus. Thus, we find that the General Counsel met his initial burden of showing that the suspension and discharge of Grass were unlawful. 1 In exceptions, the Respondent contends that the judge erred by fail- ing to consider the testimony of witness Stuart Baxter, Respondent’s divisional human resources manager, in support of Respondent’s Wright Line defense to the unfair labor practice allegations regarding the suspension and discharge of Charging Party Grass. We have care- fully examined the evidence provided by Baxter and find no merit to this exception. Terminal Manager Art Hollrah made the decision to suspend and terminate Grass. Baxter reviewed Hollrah’s decision without conducting any further investigation. In this circumstance, the judge properly accorded greater weight to Hollrah’s testimony regard- ing the specific events culminating in Grass’ suspension and discharge. Further, we note that the judge admitted into evidence a portion of R. Exh. 15, a document prepared in anticipation of trial, listing discipli- nary events purportedly showing that the Respondent suspended and discharged employees under similar circumstances. The judge ex- cluded as irrelevant only evidence of discipline that occurred after Grass was disciplined. The judge heard Baxter’s testimony regarding Respondent’s underlying business records purportedly used in develop- ing Exh. 15, and plainly, he considered this evidence. It is far from clear that Baxter’s testimony and, for that matter, R. Exh. 15, establish that the listed discipline occurred in comparable circumstances to Grass’ case. The Respondent did not except to the judge’s ruling to strike portions of Exh. 15 relating to discipline meted out after Grass’ suspension and discharge. 2 In the absence of exceptions, we adopt, the judge’s dismissal of the 8(a)(1) allegation regarding a threat of plant closure. We also agree that the Respondent failed to satisfy its Wright Line burden by demonstrating that it would have suspended and discharged Grass even in the absence of Grass’ union activities. The Respondent claimed that Grass was discharged for lying in his paperwork about missed deliveries on April 30, 2002, for lying in conjunc- tion with an inquiry into the missed deliveries, and addi- tionally for lying “about his whereabouts on Company time.” Credited evidence adduced at the hearing, some of it undisputed, belies these reasons. Grass’ undisputed testimony is that the failure of deliveries on April 30 had several causes, among them the misloading by Respon- dent’s employees of Grass’ truck on that day, and a delay encountered by Grass at an earlier delivery at Thomas Dodge.3 The judge credited Grass’ testimony that he recorded the inaccurate reason for the nondeliveries— that the addressee-companies were “[c]losed after 3:00 p.m.”—in his paperwork upon the instruction of dis- patcher (and statutory supervisor) Chris Merritt. The Respondent also claimed that Grass falsely reported that he was on his (unpaid) lunchbreak from 1:18 to 1:47 p.m., in apparent contradiction of his statement that he was making a stop at Auburn Corporation between 1:41 and 1:47 p.m. Grass explained that he carries his lunch with him and “cut his lunch short because of the work- load.” The Respondent did not produce evidence contra- vening Grass’ testimony.4 We find, therefore, that the reasons given by the Re- spondent for suspending and discharging Grass were false and pretextual, and that the Respondent has not shown that it would have taken these actions in the ab- sence of Grass’ union activities. Thus, we adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act.5 3 Grass called dispatcher (and statutory supervisor) Merritt to report the problem, and Merritt told Grass that the stop “would be erased from the computer.” The judge observed, and we agree, that this would ex- plain why the stop did not show up on Grass’ paperwork. 4 Drivers are instructed to fill out a separate report to indicate that they have not taken a lunchbreak. Grass did not recall whether he filled out the form on April 30. The Respondent did not produce such a form for Grass on April 30, and asserted that it does not, in the ordinary course of business, retain these reports. 5 We do not find merit in the Respondent’s exception that, because Grass did not fully utilize the Respondent’s internal grievance proce- dure, the Board lacks jurisdiction over the suspension and discharge of Grass. The Respondent’s answer to the complaint did not raise this defense. The Respondent did not adduce evidence as to the procedure itself or how it operates. Nor did it argue the point in its brief to the judge. It is therefore not surprising that the judge did not address the point. The Respondent, in its exceptions, nonetheless raised the judge’s failure to address the point. However, other than reciting the fact that Grass did not exhaust the process, the Respondent made no legal argument for its DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206 Accordingly, we find it unnecessary to rely on the judge’s analysis under Kidde, Inc., 294 NLRB 840 (1989), and Supershuttle of Orange County, Inc. 339 NLRB 1 (2003). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Fedex Freight East, Inc., Chicago Heights, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Claire Vujanovic, Esq., for the General Counsel. William A. Blue Jr., Esq., of Nashville, Tennessee and Michael D. Giles, Esq., of Birmingham, Alabama, for the Respon- dent. Tommy Grass, the Charging Party, pro se. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This case, un- der the National Labor Relations Act (the Act), was tried before me in Chicago, Illinois, on May 19–20, 2003. On May 10, 2002, Tommy Grass, an individual, filed the charge in Case 13– CA–40188 under Section 10(b) of the Act alleging that FedEx Freight East, Inc. (the Respondent), has engaged in unfair labor practices as set forth in the Act. Upon an investigation of that charge, which was subsequently amended by Grass, the Gen- eral Counsel issued a complaint, and an amended complaint, alleging that the Respondent had violated Section 8(a)(1) of the Act by threatening its employees and that the Respondent had violated Section 8(a)(3) of the Act by suspending and discharg- ing Grass, its employee.1 The Respondent duly filed answers admitting that this matter is properly before the National Labor Relations Board (the Board) but denying the commission of any unfair labor practices. Upon the testimony and exhibits entered at trial,2 and after consideration of the briefs that have been filed, I make the fol- lowing findings of fact and conclusions of law. view that the Board lacks jurisdiction here. In these circumstances, we find no merit to the Respondent’s exceptions. 1 Sec. 7 of the Act provides that employees “shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection.” Sec. 8(a)(1) provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Sec. 8(a)(3) provides that it is an unfair labor practice for an employer “by discrimination . . . to encourage or discourage membership in any labor organization.” 2 Certain passages of the transcript have been electronically repro- duced; some corrections to punctuation have been entered. Where I quote a witness who restarts an answer, and that restarting is meaning- less, I sometimes eliminate without ellipses words that have become extraneous; e.g., “Doe said, I mean, he asked . . .” becomes “Doe asked . . . .” I. JURISDICTION AND LABOR ORGANIZATION STATUS As it admits, at all material times the Respondent, a corpora- tion, has been engaged in the business of interstate transporta- tion of freight from its facility in Chicago Heights, Illinois. During the year preceding the issuance of the original com- plaint, the Respondent, in conducting those business operations, derived gross revenues in excess of $50,000 for the transporta- tion of freight from within Illinois directly to points outside Illinois. Therefore, at all material times the Respondent has been an employer that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the Re- spondent further admits, at all material times International Brotherhood of Teamsters, Local 710 (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. The General Counsel’s case-in-chief The Respondent (formerly known as American Freightways) operates two terminals in the Chicago area, one at Chicago Heights and one at Summit, Illinois, where it employs local and long-distance truckdrivers. On December 17, 2001,3 the Union filed a petition with the Regional Director seeking to represent the Summit drivers; on December 20, the Union filed a petition seeking to represent the Chicago Heights drivers. By letter dated December 28, the Union withdrew the petition for the Chicago Heights drivers; by letter dated January 30, the Union withdrew the petition for the Summit drivers. Grass was a local (or city) driver at the Summit terminal from June 3, 1996, until he transferred to the newly constructed Chicago Heights termi- nal in March 2001. Grass remained at the Chicago Heights terminal until his discharge on May 15, 2002. Art Hollrah, ter- minal manager, was Grass’ immediate supervisor at Chicago Heights, although the Respondent admits that one Chris Mer- ritt, city dispatcher, was also a supervisor within Section 2(11) of the Act. Hollrah reported directly to David Boyle, a vice president of the Respondent. The Union’s first unsuccessful attempt to organize the Re- spondent’s truckdrivers came in 1997, when the Respondent’s only terminal in the Chicago area was at Summit. Grass was on the Union’s organizing committee in 1997, and he then wore union buttons on his hat and jacket while at work. In Septem- ber, Grass signed a union authorization card and began speak- ing in favor of a renewed organizational effort to other drivers at the Summit and Chicago Heights locations, but there is no evidence that any supervisor observed those activities. (Grass did not wear union buttons in 2001.) Tammy Despaltro is the Respondent’s human resources rep- resentative at the Chicago Heights terminal, and she is an ad- mitted supervisor within Section 2(11). Grass testified that on December 29, he and Despaltro had a conversation at Bally’s Health Club in Chicago where he and Despaltro (and Despal- tro’s fiancee-then-husband) often worked out. Grass’ friend 3 Unless otherwise indicated, all dates subsequently mentioned are between September 1, 2001, and May 15, 2002. FEDEX FREIGHT EAST, INC. 207 Anthony (Tony) Geanopoulos was also present. According to Grass: Tony and I were walking into the free-weight room and Tammy was standing there, and she approached us, took off her headphones and she shook her head side to side and said, “Tommy, you’re making a big mistake with this union thing.” . . . I said that we didn’t start this. Management did back in 1997 . . . [.] Tammy said that unions are corrupt, they need your monthly dues, they put companies out of business, they spend their money on themselves. And I said to Tammy, “You know, that’s not true.” And Tammy . . . said, “Well, Tommy, if you vote the Union in, they’ll close the facility.” . . . And I said, “Well, Tammy, they can’t close the facility because it’s owned by shareholders.” And Tammy said, “Well, they’ll reroute the freight.” And I said, “Well, in [American Freightways’s em- ployee handbook] it says the drivers follow the freight. . . . So if they move the freight from one facility to another, we can follow the freight. When asked if Geanopoulos was present throughout this ex- change, Grass replied, “I believe so.” Based on this testimony by Grass, the amended complaint alleges that, in violation of Section 8(a)(1), “Respondent, by Tammy Despaltro, at Bally’s Health Club, threatened its employees with plant closure if they selected the Union as their bargaining representative.” The amended complaint, however, places the date at January 12. This discrepancy is explained by the fact that, as Grass ac- knowledged on cross-examination, Grass had originally told the General Counsel in two pretrial affidavits that were prepared by Regional Office investigators, and in one statement that Grass prepared himself, that the exchange upon which the General Counsel bases the allegation happened on January 12. The General Counsel called Geanopoulos who testified that “two or three weeks before” New Year’s Day, he was present when Despaltro approached Grass and said that “you guys . . . are making a big mistake with this union thing.” Grass re- sponded that the employees needed a union and Grass gave Despaltro “reasons why.” Geanopoulos further testified that Despaltro did reply to Grass’ statement of reasons, but he (Geanopoulos) did not hear that reply because, “I continued my workout.” Grass further testified that he engaged in several conversa- tions through late January with Despaltro. In some of them, he argued that the employees could receive several benefits from affiliation with the Union. In late January, he also brought to Despaltro a copy of a newspaper article that was critical of the Respondent’s labor relations policies. On the article was pasted a large “UNION YES” sticker. Grass further testified that in early January he and city dis- patcher Merritt got into a heated argument in which Merritt accused Grass of consuming more clock time than necessary to do certain work. At the conclusion of the argument, Merritt chided Grass by stating: “What are you mad [about]? Because the Union didn’t get in?” Grass responded that the differences between them had nothing to do with the Union. In late January Grass was taken off his regular route and placed on another. In early February, Grass complained to Boyle about the change. In response, according to Grass: Dave Boyle said that he didn’t like my attitude there. He said that I was unhappy and he didn’t like to see me unhappy. Dave went on and said that he’d rather see me leave the Company and go somewhere else where I’ll be happy. And Dave said, “I’m not going to have you stay here and ruin this Company. And you know what I’m talking about.” Grass testified that he replied that he had worked hard for 5-1/2 years, “and this is the thanks I get.” Boyle concluded the con- versation by stating that he would look into the route change. Shortly thereafter, Grass was restored to his regular route and the complaint makes no discrimination allegation about the change. (And no separate 8(a)(1) allegation is made about Boyle’s remarks to Grass.) Grass drove his (old) route on April 30 and May 1. Grass tes- tified that on May 2, Hollrah called Grass into his office and told him to “write a statement on what happened on April 30th.” Grass replied that “that was two days ago,” but he did sit down and write something out from memory (that is, Grass testified that Hollrah gave him none of the day’s paperwork to assist him). Grass testified that he had had 11 deliveries and 4 pickups on April 30. Grass further testified that his trailer was supposed to be loaded by 9 a.m. on April 30, but loading did not begin until he arrived at 9 a.m., and then the trailer was loaded backwards.4 Grass made the points that the loading was late and backwards in his May 2 statement to Hollrah.5 After Grass completed his statement, Hollrah told Grass to write five more statements in response to specific questions about his itinerary for April 30 (where he was, when, and why). Grass’ statements about his April 30 itinerary are replete with errors and palpable contradictions. On cross-examination, Grass ad- mitted that some of his statements “seem like [] irreconcilable inconsistenc[ies],” even to himself. Grass had failed to make a delivery to Aderhon Coatings Company on April 30. Grass testified that he did not do so be- cause he did not have enough time to get to Aderhon Coatings before its receiving department closed at 3:30 p.m. He indicated such in his statements to Hollrah on May 2. The Respondent’s internal auditing procedures allow 28 specified excuses for nondelivery of freight, one of which is that a customer was closed after 3 p.m. To that end, a box on the driver’s freight bill is available for checking if a “Carrier-related failure” was a result of the fact that a customer was “Closed after 3:00 p.m.” Grass acknowledged at trial that he checked this box for Ader- 4 That is, freight that should have been at the end of the trailer, to be dropped off at Grass’ first (nearest-to-the-terminal) stop was instead loaded in the nose of the trailer; freight that should have been in the nose of the trailer, to be dropped off at more remote stops, was at the end. So Grass had to drive his route in reverse order. 5 Hollrah, on cross-examination, agreed that Grass’ trailer had been loaded backwards on April 30. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208 hon Coatings, even though Aderhon Coatings stayed open until 3:30 p.m. Grass testified that he did so because Merritt told him to when he (Grass) called in to say that he could not get to Ad- erhon Coatings by 3:30 p.m. Grass also stated such in his May 2 statements to Hollrah. Grass also failed to make a delivery to Fisher Services Company on April 30; he testified that Merritt also told him to return with that load on April 30, and he so stated in his statements to Hollrah on May 2. During the May 2 interview, Hollrah also told Grass to write a statement of where he was on April 30 between 3:17 and 4:17 p.m. because the paperwork that Grass had turned in showed no work for that period. Grass wrote a part-repetition of what he had written before, but he did not account for the time. Grass testified that he was actually delayed during that period at Thomas Dodge dealership because an item that he was told to pick up there was not ready; Grass further testified that he called Merritt to report the problem and Merritt told him that the pickup assignment would be erased from the computer. (And that would explain why Thomas Dodge did not show up on any of the paperwork that was generated during and after Grass’ April 30 itinerary.) Grass, however, did not mention Thomas Dodge in the statements that he gave to Hollrah on May 2 to explain the unaccounted-for hour. Further on May 2, Hollrah reviewed Grass’ written answers and some of the receipts and other paperwork that the Respon- dent then had about Grass’ April 30 itinerary. Hollrah then told Grass that he was suspended pending an investigation. Grass asked why, and Hollrah responded that it appeared that he did not do any work between 3:17 and 4:17 p.m. on April 30. Grass testified that he then gave Hollrah another explanation for the missing hour. After that explanation (which did not, in fact, account for the missing time), Hollrah told Grass that he was nevertheless suspended. On May 15, upon Hollrah’s request, Grass came to the Chicago Heights terminal. Hollrah told Grass that he was discharged and gave him forms for protesting the action under the Respondent’s internal grievance procedure.6 On cross-examination, Grass was taken through his itinerary for April 30. On each freight bill for each consignee, a driver enters his arrival and departure times. At the end of each day, office personnel collect each driver’s freight bills and make a computer listing of his (or her) arrival and departure times at each stop. The listing is entered on a “driver detail” report. That report also includes what the driver has separately reported, in writing, as the period in which he took his 30-minute (unpaid) lunch. Although drivers’ reports of when they take their lunches are routinely destroyed at the end of each day, Grass did not dispute that he reported on April 30 that he took lunch from 1:18 until 1:48 p.m. On cross-examination, Grass agreed that the driver detail report therefore indicated that he was “at two places at one time.” On redirect examination, Grass testi- fied that his statement that he was at Auburn Corporation be- tween 1:41 and 1:47 p.m., and his statements to that effect and 6 On cross-examination, Grass acknowledged that, although he filed a grievance under the Respondent’s internal system, he failed to appear at the Chicago Heights terminal for a telephone conference call that was part of the process. Grass testified that he had just started working elsewhere and he did not want to take the time off. that he had lunch between 1:18 and 1:48 p.m. were “both true.” Grass explained that he usually carries his lunch with him and, on April 30, “I cut my lunch short because of the workload.” Grass acknowledged that, when he takes no lunch, he is to state “no lunch” on a separate report (that, again, is not retained by the Respondent), but he testified that he did not recall if he did so on April 30. Grass acknowledged that he failed to make deliveries at Fisher Services and Aderhon Coatings on April 30, but he attributed those failures to his late start in the day, or the fact that the freight for those customers was blocked in by pickups he had made during the day, or both. Grass was also cross-examined about his testimony that on December 29, 2001 (not January 12, 2002, or at any other time), at Bally’s Health Club, in the presence of Geanopoulos, Despaltro told him that: (1) the employees were making a big mistake if they affiliated with the Union, and (2) the Respon- dent would close if they did so. First, Grass acknowledged that, shortly after his discharge on May 15, he drafted and signed, and had Geanopoulos sign as “witness,” an undated statement that on January 12 Despaltro told him, in the presence of Geanopoulos, that the employees were making a mistake; the undated statement, however, says nothing about a threat to close. Grass agreed that he had included in the undated state- ment “everything that [he] thought was important.” Second, Grass acknowledged that, when he gave an affidavit to the Board investigator on May 28, he stated that on January 12, Despaltro, in the presence of Geanopoulos, made her “mistake” statement, but the affidavit does not mention any threat to close. Moreover, the affidavit states, “We continued talking for a few more minutes, but nothing more was said by either of us about the union drive.” Third, Grass acknowledged that he did not tell the General Counsel about Despaltro’s alleged threat to close until he gave another affidavit on November 12, 2002. It was after that affidavit that the General Counsel issued the amended complaint, alleging for the first time that the Respon- dent had violated Section 8(a)(1) by Despaltro’s making a threat to close.7 The General Counsel also called as a witness one Robert T. Paulsen who was employed by the Respondent from December 1996 until October 2002. Paulsen testified that he was the Re- spondent’s “operations supervisor” at the time that he ceased employment with the Respondent, but that he was originally hired as a driver. According to Paulsen, 4 or 5 months before Grass’ discharge on May 15, “[I]nformation got out” that Grass was engaging in union activities. At the time, Paulsen met with dispatcher Bill Hawkins and Steve Cawgill, also an operations manager at the Chicago Heights terminal. In the meeting Haw- kins said, “We need to keep an eye on Mr. Grass . . . make sure he’s doing everything out there right.” Paulsen told Hawkins, “I’m not going to be a headhunter for this company and fire people for no reason.” Paulsen testified that 2 minutes later he was called into Hollrah’s office. According to Paulsen: Art asked me why . . . I . . . had the response of saying that I was not going to head hunt anybody’s job. 7 Ultimately, I recommend dismissal of the threat-to-close allegation, but for possible purposes of review I state here that I credit Geanopou- los’ testimony that the Bally’s incident occurred in mid-December. FEDEX FREIGHT EAST, INC. 209 And I told him, “Look Art, I have been a union driver before I worked here, [and] I have been a supervisor. I’d just as soon stay out of the whole thing. I’m just keeping a low profile on the situation, and I do not like the way that this was going on, and I’m just not going to do it.” . . . He said, “Well, that’s not what we want you to do.” . . . I said, “Okay, that’s fine, because I’m not going to.” On cross-examination, Paulsen acknowledged that the Respon- dent suspected Grass of running up extra hours (milking the clock) and that it would not be surprising that a manager would suggest keeping an eye on a driver who was suspected of doing such, but he denied that those suspicions about Grass were mentioned during these exchanges. 2. The Respondent’s evidence Despaltro testified that during some of the occasions that she encountered Grass at the gym they discussed the Union’s or- ganizational attempt at the Chicago terminals. Despaltro further acknowledged that during such a conversation in December, Grass showed her the newspaper copy with the “UNION YES” sticker on it. Despaltro, however, flatly denied that Grass’ do- ing so indicated to her whether he was supporting the Union. Despaltro also flatly denied that she ever told Grass that the Respondent would close the facility if the Union were selected by the employees. Despaltro did, however, acknowledge that she once told Grass, “I said I think you guys are making a mis- take wanting the Union.” Despaltro further denied that she had any involvement in Grass’ termination. Julie Rosinko is the Respondent’s account manager at the Respondent’s Chicago Heights terminal. Rosinko testified that on May 1 she received calls from two customers who com- plained about not having received deliveries on April 30. The individuals who complained, she testified, were Estella Servin at Fisher Services Company and Jim Wilder at Aderhon Coat- ings. Rosinko testified that she told Servin and Wilder that the driver had indicated on his paperwork that the freight had been returned because the Respondent had closed before 3 p.m. Ros- inko further testified that she immediately reported the matter to Hollrah; Hollrah told her to confirm her report by e-mail to him, which she did. On cross-examination, Rosinko testified that Wilder had been “upset,” and that Servin had been “very upset” because of the Respondent’s failure to make the sched- uled deliveries on April 30. Hollrah denied knowing anything about Grass’ prounion sympathies or activities. Hollrah testified that after he received Rosinko’s e-mail he looked up the records for Grass’ work of April 30, and he called Grass in and asked him to write a state- ment about his itinerary for April 30 in order to find out “why we had brought the freight back” from Aderhon Coatings and Fisher Services. When discrepancies within Grass’ first state- ment and the discrepancies between Grass’ first statement and the Respondent’s paperwork became apparent, Hollrah asked for five more statements. Hollrah testified that he was con- cerned because Grass blamed the lost hour (again, between 3:17 and 4:17 p.m.) of his April 30 itinerary on then being at Strnad Rivet Company, although his April 30 report showed that he was there much earlier in the day. Hollrah testified that he pointed out other discrepancies to Grass and “I showed him all the paperwork” including the times that Grass had entered.8 Grass, however, still could not reconcile his errors and mis- statements. At one point during the process, Hollrah agreed, Grass told Hollrah that Merritt had told him to enter on his paperwork that Aderhon Coatings and Fisher Services were closed after 3 p.m., even though Aderhon Coatings is open until 3:30 p.m. and Fisher Services is open all night. At another point, Grass blamed lack of deliveries on the fact that he had picked up merchandise that had blocked him from unloading for deliveries, but after reviewing the itinerary Hollrah did not think that that was possible. Hollrah testified that he concluded the interview by telling Grass that he was suspended because “there were a lot of inconsistencies in what happened [and] I was concerned over the fact that he had a lie on a return au- thorization slip.” Hollrah further testified that he later conferred with Merritt who denied that he had told Grass to report falsely that the deliveries to Aderhon Coatings and Fisher Services were not made because those customers were closed after 3 p.m. Hollrah testified that he believed Merritt because of all the inconsisten- cies in Grass’ statements. Hollrah testified that he conferred with his superiors, Boyle (again, the Respondent’s regional vice president) and Stuart Baxter, the Respondent’s divisional manager of human re- sources. After giving them all of the facts, Hollrah recom- mended that Grass be discharged. Boyle and Baxter agreed. Hollrah was asked for the basis of the decision, and he testified that he (and Baxter and Boyle) decided: . . . [t]hat Tommy was untruthful in his statements, that Tommy had lied on a return form and that he couldn’t explain his times. And because of that, he was being terminated for giving misleading information, lying, falsification of Com- pany documents and just out and out lying. When asked why Grass was not afforded the steps of a progres- sive disciplinary system that the Respondent has established, Hollrah referred to the policy’s statement that the system is not available for employees who are accused of serious offenses including “Dishonesty, [or? by?] providing false or misleading information.” Hollrah further testified: In a case like this where we have something where it’s a lie to the customer, we just can’t have a customer thinking our in- tegrity is impugned at all. The customers, you know, they en- trust us to haul their goods and if they can’t rely on us to tell the truth, they have no reason for us to haul their product. I was constrained to ask: ADMIN. LAW JUDGE EVANS: What was the lie to the customer? THE WITNESS: That the receiving closed before 3:00 o’clock. He marked on the return form that the customer; see, the customer can see copies on our history, the cus- tomer can actually see a copy of the reason why that freight was brought back. 8 I credit Hollrah’s testimony that he showed Grass the paperwork that he reviewed during the May 2 investigation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210 ADMIN. LAW JUDGE EVANS: So, if the customer looked it up [on a computer access] he would find a false state- ment that he closed at 3:00 o’clock? THE WITNESS: Correct. ADMIN. LAW JUDGE EVANS: Next question. On cross-examination, Hollrah was asked: Q. The investigation of Tommy Grass, regarding the incident on April 30th, occurred because of these two cus- tomers’ complaints. Is that correct? A. Yes. Hollrah was further asked on cross-examination: Q. Okay. How often would you estimate that the Chi- cago Heights facility receives returns from drivers? . . . [I]s it daily? Weekly? Monthly? A. There’s normally, every day there’s a return of9 several. Depends on the day, depends on the reason. There’s, I think, 15 different reasons that freight can be brought back. So, there’s plenty of reasons. So there’s freight that’s brought back a lot. At another point, Hollrah agreed readily that: “Tommy was a good driver. Tommy had good numbers.” Hollrah further agreed that Grass had no prior record of discipline. Boyle testified that he reviewed all of the paperwork that Hollrah submitted to him and that he agreed with the decision to discharge Grass on the basis of the paperwork and Hollrah’s report. Boyle denied knowing that Grass favored the Union, but he added that Grass would have been terminated, even if he had not been in favor of the Union, because: “This was a case of dishonesty. We let our customers down. We gave them false information. They entrust us with their product. And any case of dishonesty, there is no other course of action.” I was also constrained to ask, and Boyle testified: ADMIN. LAW JUDGE EVANS: What false information was the customer given? MR. BOYLE: When they called to ask what happened to their shipments, we told them that we had not been able to deliver [to] them because they closed at 3:00 o’clock in the afternoon. Merritt denied that on April 30, he told Grass to mark his pa- perwork for Aderhon Coatings and Fisher Services as not de- liverable because the customers had closed before 3 p.m. Mer- ritt did not deny Grass’ testimony that Grass told Merritt during the day that he had lost an hour at Thomas Dodge and that Mer- ritt replied that he (Meritt) would have the pickup erased from the computer. 3. The General Counsel’s rebuttal evidence In rebuttal, the General Counsel called James Wilder, ship- ping and receiving manager of Aderhon Coatings, and Estela Servin, utility technician of Fisher Services. Both Wilder and Servin flatly denied Rosinko’s testimony that they called her to complain about the deliveries that were not made on April 30. 9 The Tr., p. 266, L. 10, is corrected to change “or” to “of.” B. Analysis and Conclusions The complaint alleges that the Respondent violated Section 8(a)(3) by suspending Grass on May 2, and by discharging him on May 15, in order to discourage the union activities of its employees. In order to establish a prima facie case of such al- leged unlawful discrimination, the General Counsel must per- suade the Board that antiunion sentiment, or animus, was a substantial or motivating factor in the challenged employer decision. The burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even if the employee had not engaged in protected activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). As evidence of animus, the General Counsel relies foremost on the allegation that Despaltro threatened Grass with plant closure. The original complaint, which issued on August 23, 2002, did not have this allegation; the allegation did not appear until issuance of the amended complaint on February 18, 2003. The delay is explained in part by the fact that Grass did not tell the General Counsel of such an event until his affidavit of No- vember 24. Grass gave that affidavit, however, 6 months after he had sworn in another affidavit that, although Despaltro had once told him that the employees were making a “mistake” by seeking representation by the Union, at that time “nothing more was said by either of us about the union drive.” Grass further testified that Geanopoulos was present at the time, but Geanopoulos failed to testify that Despaltro made any such threat. Despaltro denied that she considered Grass to be proun- ion, even after admitting that Grass had once given her a news- paper article that bore a large “UNION YES” sticker. For that reason, I am quite suspicious of Despaltro’s overall veracity. However, I simply cannot credit Grass on this point. A threat to close is a threat not only to the employee who hears it; it is a threat to all of the employee’s coworkers. Short of a threat of physical violence, theretofore, a threat to close would probably impact an employee more than any other type of threat and is most likely never to be forgotten. Nevertheless, Grass not only left Despaltro’s alleged threat to close out of the undated state- ment that Geanopoulos signed as a witness, Grass also left it out of his May 28 affidavit, and in that affidavit he, in effect, swore that no such threat was made. This conflict is irreconcil- able.10 I therefore cannot credit Grass’ testimony that Despaltro made the threat to close. Instead, I credit Grass’ May 28 affida- vit wherein it states that “nothing more was said by either of us about the union drive” after Despaltro told Grass that the em- ployees were making a mistake by seeking union representa- 10 Certainly, the General Counsel makes no attempt at reconciliation or explanation on brief. FEDEX FREIGHT EAST, INC. 211 tion.11 I shall therefore recommend dismissal of this allegation of the amended complaint.12 Geanopoulos did testify that, “two or three weeks before” New Year’s Day, he was present when Despaltro approached Grass and said that “you guys . . . are making a big mistake with this union thing.” (aff) And Despaltro admitted as much. On brief, the General Counsel argues that the admitted state- ment is evidence of animus that satisfies her Wright Line bur- den. I disagree. The Board has held that an employer violates Section 8(a)(1) by telling its employees that they are making a mistake because union representation may cost them their jobs,13 but the Board has not held that an employer’s telling employees that they are making a mistake by seeking union representation, of itself, is evidence of antiunion animus. I fur- ther believe that the Board is unlikely to do so because the statement is nothing more than an argument that the employer believes that the employees would be better off without a un- ion; as such it is nothing more than fair argument of the em- ployer’s position. I therefore disagree with the General Coun- sel’s argument that animus sufficient to satisfy the requirement of Wright Line is found in Despaltro’s statement to Grass that the employees were making a mistake by seeking union repre- sentation. Nevertheless, I do find in the record credible evidence of Grass’ prounion sympathies and the Respondent’s knowledge of, and unlawful animus toward, those sympathies. Grass was credible in his testimony that he consistently argued the Un- ion’s position in discussions with Despaltro when they saw each other at the health club. Moreover, Geanopoulos corrobo- rated Grass’ testimony in this regard by testifying that, on at least one occasion (in December, after Despaltro told Grass that the employees were making a mistake by seeking union repre- sentation), Grass argued that the employees needed a union and gave Despaltro “reasons why.” Additionally, Merritt did not deny Grass’ testimony that, in February, Merritt concluded an argument by asking (rhetorically) if Grass were not really upset “[b]ecause the Union didn’t get in.” These exchanges between Grass and these supervisors are adequate proof of the Respon- dent’s knowledge of Grass’ prounion sympathies during the 2001 campaign. Also, Paulsen, who was the Respondent’s operations super- visor until he terminated in October, testified that 4 or 5 months before Grass was discharged “information got out” that Grass was engaging in union activities. At the time, he and Dispatcher Hawkins and Operations Manager Cawgill had a discussion in which Hawkins said, “We need to keep an eye on Mr. Grass. . . . make sure he’s doing everything out there right.” Paulsen, obviously knowing that Hawkins was not just referring to Grass’ performance (which, again, Hollrah testified was “good”) replied to Hawkins that, “I’m not going to be a head- 11 Alvin J. Bart & Co., 236 NLRB 242 (1978). I cited this case at the hearing, but on brief the General Counsel makes no suggestion why it would not apply. 12 Because of my credibility resolution, I need not reach the Respon- dent’s further argument that the allegation was barred by the 6-month limitations period of Sec. 10(b). 13 See, for example, Vico Products Co., 336 NLRB 583 (2001), and Carter & Sons Freightways, 325 NLRB 433, 438 (1998). hunter for this company and fire people for no reason.” Paulsen was immediately called on Hollrah’s carpet and asked what Paulsen had meant by his statement. Paulsen told Hollrah that he had once been a “union driver” and that he was not going to fire any employee for also being one. Hollrah did assure Paulsen that the Respondent did not want Paulsen to fire any- one for prounion sympathies, and that fact can be said to sig- nificantly dilute any evidence of animus that was implied by the statement of Hollrah’s subordinate, Hawkins. Nevertheless, the exchange is at least further proof that the Respondent’s supervisors were aware of Grass’ prounion sympathies and activities. The necessary element of animus is found in Grass’ un- denied testimony that in February he approached Boyle in an attempt to have his regular route restored. Boyle, according to Grass, responded that he did not like Grass’ attitude and that he would rather see Grass go work where he would be happy. Boyle, however, did not stop there. Boyle also warned Grass that, “I’m not going to have you stay here and ruin this Com- pany. And you know what I’m talking about.” Boyle, again, did not deny this testimony, and I found it credible. What Boyle was “talking about” is no mystery; at various stages of the hear- ing the Respondent’s witnesses alluded to a suspicion that Grass was taking extra time to do his work, but in no sense did the Respondent’s witnesses suggest anything that Grass might have been doing that would even theoretically “ruin” the Re- spondent. The only salient aspect of Grass’ employment (be- sides good work, according to Hollrah) was his union activities which, as I have shown above, were well known to the Respon- dent’s supervisors. And those activities were the only thing that Boyle could have been referring to. Boyle’s statement that he was not going to let Grass “stay here” because of his prounion sympathies and activities was a blatant threat to discharge him for those sympathies and activities. Although not separately alleged as a violation of Section 8(a)(1), that threat by Boyle, a vice president of the Respondent, is more than enough proof of unlawful animus that would require the Respondent, under Wright Line, to go forward with evidence that it would have suspended and discharged Grass even absent his protected ac- tivities. Therefore, the defense asserted by the Respondent must be examined. Hollrah testified that Grass was discharged for lying on his paperwork and lying in the statements that he gave during the Respondent’s investigation of customer complaints about missed deliveries. And on brief the Respondent states that Grass was terminated “because Mr. Hollrah concluded Grass was dishonest about his whereabouts on Company time and why he returned to the customer center with freight he should have delivered to customers.” I at least agree with the Respon- dent that Grass appeared to be untruthful in some of the an- swers that he gave during Hollrah’s May 2 investigation. Nev- ertheless, the question must be asked: Why was Hollrah inves- tigating Grass in the first place? Hollrah testified that the Respondent’s drivers return without making deliveries “several” times a day. Hollrah did not, how- ever, testify that he investigates each return (or any returns). The return of loads that had been dispatched to Fisher Services and Aderhon Coatings on April 30 was therefore not the reason DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212 that Hollrah collected and reviewed Grass’ paperwork, and the return of those loads was not the reason that Hollrah required Grass to answer interrogatories about his itinerary of that date. Indeed, Hollrah admitted that he undertook his investigation of Grass’ April 30 itinerary solely because of Rosinko’s report that two customers, Aderhon Coatings and Fisher Services, had complained about failing to receive deliveries. And Rosinko testified that Servin at Fisher Services and Wilder at Aderhon Coatings had, in fact, made those complaints. (Indeed, Rosinko testified that Wilder had been “upset,” and that Servin had been “very upset” because of the missed April 30 deliveries.) Servin and Wilder, however, flatly denied that they made any such complaints. Servin and Wilder had no interest in this proceed- ing, and on brief the Respondent suggests no reason why they would have perjured themselves. I do not believe that they did. I credit their testimonies.14 In Kidde, Inc., 294 NLRB 840 (1989), the employer secured evidence that the alleged discriminatee (also a driver) was steal- ing, but it did so only through an investigation that it undertook solely because that employee was organizing for a union. In Kidde, I found an 8(a)(3) violation, even though the respondent proved that the alleged discriminatee had, in fact, been stealing (incontrovertible photographic evidence was adduced at the hearing). In affirming my decision, the Board, at footnote 3, stated, “[W]e rely in particular on those cases holding that em- ployee misconduct discovered during an investigation under- taken because of an employee’s protected activity does not render a discharge lawful.”15 The Board followed Kidde in Supershuttle of Orange County, Inc., 339 NLRB 1 (2003). In Supershuttle, animus prompted an investigation of a prounion employee (also a driver). The alleged discriminatee made false statements during that investigation, and the employer claimed that it discharged him solely because he made those false statements. In rejecting the Respondent’s position as a Wright Line defense, the Board reasoned that: “Given the Respondent’s unlawful motivation for investigating [the alleged discrimina- tee], the Respondent has created its own barrier to satisfying its burden of proof.” The Board held that the misconduct that was discovered during the investigation that had itself been prompted by unlawful animus must be considered “no more than a pretext for the discipline in question.” In this case, the Respondent contends that it discharged Grass because he was false both before and during its investiga- tion of customer complaints. Under the above cases, especially Supershuttle, the Board first looks at why an investigation of alleged employee misconduct took place before it passes on an employer contention that the employee was false during an investigation. Before the Respondent’s investigation, Grass did show in his paperwork an overlap between his lunchtime and 14 Rosinko is not a supervisor, and there is no logical reason that she would have fabricated her blatantly false testimony on her own. It is apparent to me that she would have done so only at the bidding of her superiors, Hollrah or someone higher. 15 The Board cited Kut Rate Kid & Shop Kwik, 246 NLRB 106, 121– 122 (1979); Campbell “66” Express, 238 NLRB 953, 963 (1978), enf. denied 609 F.2d 312 (7th Cir. 1979); Chrysler Corp., 242 NLRB 577 (1979); and American Motors Corp., 214 NLRB 455 (1974), enfd. 525 F.2d 695 (7th Cir. 1975). the time of a delivery, but the Respondent makes no suggestion that he did so to deceive the Respondent, or to deceive a cus- tomer, or to enrich himself. And the Respondent does not con- tend that the overlap would have been noted by Hollrah, and would have caused Hollrah to investigate Grass’ conduct of April 30, absent the alleged customer complaints. Grass also showed in his preinvestigation paperwork a failure to account for 1 hour, but Merritt did not deny Grass’ testimony that Grass had told him that he been delayed that amount by a pickup at Thomas Dodge. And the Respondent does not contend that the lost hour would have been noted and investigated by Hollrah absent the alleged customer complaints. And Grass also showed in his preinvestigation paperwork that Fisher Services and Ad- erhon Coatings had closed before 3 p.m. when they actually did not, but Grass credibly testified that Merritt told him to do such and, anyway, the customers could not have been deceived about their own closing times. And, again, the Respondent would not have routinely investigated Grass’ report of the customers’ closing times absent the alleged customer complaints. But, even if I agreed with the Respondent in all respects and found that Grass was inexcusably untruthful in his paperwork that he submitted before its investigation, the fact remains that the Respondent did not begin its investigation because of that un- truthfulness. And, of course, the Respondent did not begin its investigation of Grass because Rosinko received customer complaints about missed deliveries because Rosinko received no such complaints. It is therefore apparent that the Respondent began its investigation for another reason. The rationale of the Fourth Circuit Court in Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (1977), is helpful in determining the real reason that the Respondent began its inves- tigation of Grass: The rule is that if the employee has behaved badly it won’t help him to adhere to the Union, and his employer’s anti- union animus is not of controlling importance. But if the em- ployee is a good worker and his breach of the work rules triv- ial, the more rational explanation for discharge may be invidi- ous motivation. Such motivation can be found from the ab- sence of any good cause for discharge. This must be so unless we are willing to assume something we know to be false: that businessmen hire and fire without any reason at all. Nor do businessmen (or businesswomen) begin investigations for no reason at all. Because the Respondent could not have begun its investigation of Grass because of a rather routine return of goods to the terminal, and because it could not have begun its investigation because of nonexistent customer com- plaints, it is apparent that the Respondent began its investiga- tion for another reason—the “invidious motivation” of its proven antiunion animus. That is, I find that the Respondent began its investigation of Grass because it did not want Grass to “stay here” (Boyle’s words) and engage in union activities. Therefore, any misleading answers that Grass may have given during the investigation do not excuse his discharge.16 16 Nor need I speculate how Grass’ May 2 answers may have dif- fered had he not been required to drive his route backwards on April 30. FEDEX FREIGHT EAST, INC. 213 In summary, I find that the Respondent discharged Grass (a long-service employee who had good performance, according to Hollrah) on the basis of an investigation that was prompted solely by its unlawful animus. The Respondent’s asserted basis for its suspension and discharge of Grass are therefore, under the theory of Kidde and Supershuttle, to be considered no more than pretexts and, as such, they do not satisfy the Respondent’s burden under Wright Line. Accordingly, I conclude that by suspending Grass on May 2, and by discharging him on May 15, the Respondent has violated Section 8(a)(3) and (1) of the Act. REMEDY Having found that the Respondent unlawfully discharged Grass, I shall order it to take certain additional affirmative ac- tions designed to effectuate the policies of the Act. Specifically, I shall order the Respondent to offer Grass full reinstatement to his former job and to make him whole for any loss of earnings or other benefits that he has suffered as a result of the discrimi- nation against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files any and all references to Grass’ unlawful suspen- sion and discharge and to notify Grass in writing that this has been done. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended17 ORDER The National Labor Relations Board orders that the Respon- dent, Fedex Freight East, Inc., Chicago Heights, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending, discharging, or otherwise discriminating against its employees because of their protected union activi- ties. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative actions that are necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Tommy Grass full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make Tommy Grass whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of this deci- sion. (c) Within 14 days from the date of this Order, remove from its files any references to Tommy Grass’ suspension and dis- 17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. charge, and within 3 days thereafter notify him in writing that this has been done and that neither the suspension nor discharge will be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Chicago Heights, Illinois, copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since May 2, 2002, the date of the first unfair labor practice found herein. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent had taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT suspend you or discharge you because of your membership in, or activities on behalf of, International Broth- erhood of Teamsters, Local 710. 18 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214 WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. WE WILL, within 14 days of the Board’s Order, offer Tommy Grass immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from our discrimination against him, less any net interim earnings, plus interest. WE WILL, within 14 days of the Board’s Order, remove from our files any reference to the May 2, 2002 suspension and the May 15, 2002 discharge of Tommy Grass, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the suspension and discharge will not be used against him in any way. FEDEX FREIGHT EAST, INC.