Superior Fast Freight

SUPERIOR FAST FREIGHT 329 Superior Fast Freight and Robert Lee Warren. Case 21-CA-22247 30 April 1985 ORDER REMANDING By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 17 July 1984- Administrative Law Judge Gordon J. Myatt issued the attached decision find- ing that the Respondent violated Section 8(a)(1) of the Act by discharging employee Robert Lee Warren on 11 November 1982 because of his union or protected activities. The Respondent filed ex- ceptions, a supporting brief, and a motion to reopen the record to admit additional evidence. The General Counsel filed an answering brief to the Respondent's exceptions and an oppositon to its motion. i On 22 January 1985 the Respondent filed a motion for a hearing de novo or, alternatively, an amended motion to reopen the record to consider additional testimony from- Michael Leroy Hanna, a former supervisor of the Respondent,- who testified for the General Counsel at the hearing. On 25 Feb- ruary 1985 the General Counsel filed a memoran- dum in opposition to the Respondent's motion for a hearing de novo. The judge found deferral to an arbitration award iipholding- Warren's discharge to be inappropriate under the Olin Corp., 268 NLRB 573 (1984), stand- ard. The judge further found that the Respondent violated Section 8(a)(1) of the Act by discharging Warren for his union or protected activities, rather than for drunkenness or other lawful reasons. ' We deny the Respondent's motion to reopen the record to introduce evidence concerning the pharmacological impact of methodone usage on the human body and employee Warren's alleged industrial accidents, felony convictions, falsification of employment documents, and attend- ance records The Respondent contends the evidence would impeach Warren's hearing testimony and show that he is unsuitable for reinstate- ment The Respondent asserts that it could not have realized the evi- dence's significance at the time of the hearing because it did not receive, until 2 days before the hearing closed, a subpoenaed laboratory report from Warren's medical clinic disclosing the presence of methadone in Warren's urine on the day the Respondent alleged he was drunk, and that Warren willfully concealed the urinalysis results before the hearing The record discloses, however, that the subpoena was not issued until I Sep- tember 1983, and that the Respondent received the laboratory report 8 September, 4 days before the hearing closed We find, under the circum- stances, that the Respondent was not denied sufficient time to evaluate the significance of the evidence presented Moreover the Respondent has not demonstrated that Warren concealed the subpoenaed laboratory evi- dence at any time, and there is no dispute that the evidence the Respond- ent now seeks to introduce was available during the hearing We there- fore find no extraordinary circumstances or any other matter which might warrant reopening the record See Sec 102 48(d)(1) of the Board's Rules and Regulations See also Pots Wa//covering Co, 262 NLRB 1336 fn 1 (1982) We further find the issue of Warren's suitability for reinstate- ment to be more appropriately left to compliance proceedings if the Board ultimately finds that the Respondent violated the Act R C Letour- neau, Inc, 200 NLRB 425 fn 2 (1972) The Respondent bases its motions on Hanna's 5 December 1984 affidavit recanting critical aspects of his hearing testimony. The affidavit states in rel- evant part: I testified regarding the moving of the carts at the ULP Hearing in order to help Warren's case. Warren did not specifically ask that I say that he had cautioned me about moving the carts but he did ask me to testify on his behalf. He was aware of the fact that I was extremely hostile toward a number of management per- sonnel at Superior, in particular Bob "Potter and Mike Beresford. He told me that the only way he could win the NLRB case - was to make it appear- that he was fired because of his union activities.. He told me that this was an opportunity for' me to get back at Superior. He told me he expected to get some money if he won and that he would make it worth my while. He told me -we'd go to Las Vegas and I'd have all the money I needed. The affidavit then sets forth in considerable detail a version of Warren's discharge substantially differ- ent from Hanna's hearing testimony. The Respondent contends that a hearing de novo before a new judge is necessary because the judge credited Hanna's testimony and heavily relied on it in finding that the Respondent discharged Warren for unlawful reasons. The Respondent further con- tends that the judge cannot rehear the case objec- tively because he relied on every aspect of Hanna's testimony. Alternatively, the Respondent urges that the record should be reopened to permit additional testimony from Hanna. The General Counsel maintains that a hearing de novo is unnecessary and is merely an attempt by the Respondent to enable different counsel to try the case anew.2 The General Counsel does not, however, oppose reopening the record for the lim- ited purpose of resolving- the credibility issues raised by Hanna's apparent recantation of testimo- ny and accusation that Warren offered him money to testify, and to determine what effect such resolu- tion might have on the judge's decision. - After carefully reviewing the record, the judge's decision, and the briefs, we shall remand the pro- ceeding to the judge to reopen the record for the limited purpose of resolving the credibility issues raised by Hanna's 5 December 1984 affidavit.3 2 The Respondent apparently hired new counsel after the first hearing 8 We deny the Respondent's motion for a hearing de novo before a new judge as it would be redundant and unnecessary The record con- tains substantial evidence, unrelated to Hanna's testimony, that need not- be developed a second time at a new hearing Moreover, we do not find Continued 275 NLRB No. 53 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanna testified on two occasions at the hearing, once in support `of Warren's -assertion that he was discharged for his, union activities and once to rebut Dock Manager McClain's testimony that Hanna stated he would testify falsely in order to assist. Warren and to retaliate against the Respond- ent for firing Hanna's son. - Hanna described several instances in which the Respondent's supervisors or management officials expressed a desire to discharge Warren for his union activities; the judge, credited his testimony and relied on, it, in finding that the Respondent har- bored "hostility and resentment" toward Warren for his union and/or protected activities.- The judge also credited Hanna's testimony that Warren did not appear drunk or under -the influence of drugs on the day the Respondent questioned his sobriety, and. that McClain asked Hanna to be a witness against Warren, but Hanna refused, stating that Warren was not drunk. The judge cited this as a factor in support of his conclusion that the Re- spondent's proffered justification -for Warren's dis- charge was pretextual. Additionally, the judge credited Hanna's rebuttal to McClain's claim, that Hanna stated he would testify falsely at the. hearing to retaliate against the Respondent for- firing his son.. The evidence the Respondent now seeks to in-. troduce may -tend to show, among, other things, that Warren offered Hanna money to testify falsely; that Hanna testified falsely to -help Warren prove he was fired for union activities; that the statements Hanna attributed to the Respondent's supervisors were motivated by Warren's poor work perform- ance rather than his union activities; and that McClain's contention that Hanna testified falsely to retaliate against the Respondent for firing his son is accurate. - We find that Hanna's affidavit raises substantial questions of whether an important witness testified falsely about material issues in this case. Accord- ingly, we shall grant the, Respondent's amended motion to reopen the record and remand the case to the judge for the purpose stated below.4 IT IS ORDERED that the proceeding be remanded to Administrative Law' Judge Gordon J. Myatt for the purpose of holding a- hearing to receive addi- tional testimony from Michael Leroy Hanna and other appropriate evidence relating to the credibil- ity issues raised by Hanna's 5 December 1984 affi- davit. that the mere fact that the judge relied on Hanna's testimony at the hear- ing demonstrates that he would not be' open-minded and objective at a second hearing 4 See, e g, Electrical Workers JUE Local 745 (National Electric Coil), 268 NLRB 308 (1983) IT IS FURTHER ORDERED that, at the conclusion of the hearing, Judge Myatt issue a supplemental decision containing findings of fact, credibility res- olutions, and conclusions of law. The supplemental decision shall be served- on the parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations, shall be applicable. IT IS FURTHER ORDERED that the Respondent's motion for a hearing de novo before a different judge be denied for the reasons stated above. - DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On a charge filed on May 10, 1983, by Robert Lee Warren (Warren) against, Superior Fast Freight (the Respondent); the Regional Director for Region 21 issued 'a complaint and notice of hearing on June 24, -1983. The substantive allegations of the complaint allege, inter alia, that Re- spondent unlawfully discharged Warren On November 11, 1982;1 because the employee engaged in union or other protected, activities. This - conduct is alleged to have violated Section 8(a)(1) and (3) of_ the National Labor Relations -Act. Respondent filed an answer in which it admitted certain allegations of the complaint, denied others, and specifically denied the commission of any unfair labor practices.2 A hearing was held in this matter on July 26 and 27 and September 12, 1983, in Los Angeles, California. All parties were present and afforded an opportunity to ex- amine and cross-examine witnesses and to present rele- vant and material evidence on the issues involved. Briefs were submitted and have been duly considered. On the entire record in this case and on my observation of the witnesses while testifying, I make the following FINDINGS OF FACT 1. JURISDICTION Based on the pleadings and the stipulations contained in the record, I find the Respondent is a California cor- poration operating a business in the trucking industry. As a part of its business operation, the Respondent maintains a facility located in Los Angeles, California. During the 12 months preceding the issuance of the complaint herein, Respondent, in the course of. its business -oper- ations within the State of California, derived gross reve- nues in excess of $50,000 for the transportation of freight and commodities in interstate commerce pursuant to ar- rangements with and as agents for various common car- riers; each of which. operates between and among the " -Unless otherwise indicated, all, of the events occurred in the year 1982 2 While Respondent's answer admitted it was an-employer engaged in commerce, it denied specific commerce allegations contained in the com- plaint The answer also asserted a 10(b) defense in that it was alleged the charge was untimely filed At the hearing, however, it was stipulated that Respondent met the Board's statutory and discretionary jurisdictional standards and, by stipulation, Respondent abandoned its 10(b) defense SUPERIOR FAST FREIGHT 331 various States of the United States. As, such, Respondent functions as an essential link in the transportation of freight and commodities in interstate commerce . During this same period, Respondent, in the course of its busi- ness operations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of California directly to points located outside the State of California. In addition, during the same period Respondent performed services valued in excess of $50,000 in States other than the State of Cali- fornia. In light of the above, I find the Respondent is an employer within the meaning of Section 2 (2) engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II, THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts In 1982, Respondent's dock and office employees were represented by Teamsters Local 357.3 The contract gov- erning the bargaining relationship consisted of the Na- tional Master Freight Agreement (Master Agreement) supplemented by the Western States Area Pick-Up and Delivery'Local Cartage and Dock Workers Agreement (Pick-Up and Delivery Agreement) as well as by local provisos negotiated between the Union and local em- ployers. The collective-bargaining contract expired in February 1982, and the parties engaged in negotiations for a successor agreement 'from March until October 1982. B: Warren 's Activities on Behalf of the Union Robert Lee Warren was employed by Respondent as a checker/loader since August 1979. He first began work- ing for Respondent as a casual employee and was subse- quently placed on permanent status in November 1979. Although he held no elective or appointive office in the Union,4 the unrefuted testimony reveals that he was an activist among the employees and frequently confronted management regarding union matters and adherence to contract provisions. The uncontroverted testimony of the two union stewards, Bruce Candelaria and Richard Her- nandez, and the union business agent , Frank Manuri, in- dicates that Warren was considered to be an "unofficial steward" at the facility He attended monthly union stewards' meetings where matters pertaining to the pro- visions of the collective-bargaining agreement were dis- cussed . He also answered questions of coworkers, with the.blessing of.the actual stewards, regarding interpreta- tion and application of the collective -bargaining agree- ment at Respondent's facility In addition, during the ne- gotiations for the successor agreement he arranged meet- ings, at the request of Candelaria and Hernandez, of em -ployes in Respondent's parking lot to discuss the status of the negotiations and the employees response to the 6 The unrefuted testimony indicates Local 357 merged with Teamsters Local 63 on April 1, 1983, and thereafter, the locals were designated as Teamsters Local 63 4 Warren testified that he ran for the' office - of union steward on one occasion but lost during a run-off vote various proposals being considered during the negotia- tions. Warren not only met with and advised employees on matters relating to the Union. and the contract provi- sions, but also confronted management on occasion re- garding work-related problems affecting the employees. For example, he complained' to Petras, Respondents, op- eration manager, about the, unsanitary condition of- the employees' restroom and the fact that there were only 3 toilets and 2 urinals to serve the work force of approxi- mately 150 employees. He also filed a complaint with Cal-OSHA regarding this condition but that organization apparently, never followed through on the complaint. Warren also admonished supervisors about performing unit work in violation of the collective-bargaining agree- ment.5 Although there is • conflict in the testimony as to. whether, management was aware of Warren's activities at the facility, certain statements made to him by supervi- sors regarding his role on behalf of the Union are unre- futed in the record. Warren testified that sometime in January or February, Supervisor. Ron Eden, on returning to Respondent's -employ after an absence , indicated sur- prise that Warren' was still working for the Respondent. Eden told Warren, "I thought they would have gotten rid of you by now because-of your union bullshit "s Similarly, in February, Supervisor Raul Grevara? told, Warren that Warren was a subject of discussion at a su- pervisors' 'meeting. Grevara told the employee that Re- spondent's executive vice president; Robert Potter, ex- pressed the belief that Warren could increase or decrease production on the dock-because of his influence with the employees. Warren then informed Grevara that things were running smoothly and indicated he failed to under- stand • the need for Potter's comments. Grevara there- upon stated, "Apparently there is because they were talking about you and you'd better watch your back."8 Warren also recalled that sometime in May or June, Grevara told him that Potter said Warren was beginning to become a "pain in the ass because of his union bull- shit." Grevara cautioned Warren to keep a low profile because management wanted to fire him. Again, in July, Grevara spoke to Warren about management's reaction to his activities. Warren testified that'Grevara stated that Potter was losing his patience with Warren ' and that Potter wanted Warren fired in any way it could be ac- complished. According to Warren, Grevara said Potter felt Warren was influencing the employees to slow down their production. - Warren testified that Petras also commented on his union activities. Warren stated that after one of the meet- ings with the employees in the parking lot regarding the status of the negotiations in late August or early Septem- ber, Petras came up and spoke to him According to Michael Hanna, formerly Warren's immediate supervisor but no longer employed by Respondent , testified that he had been cautioned by Warren on occasion not to move loading carts because it was in violation of the provisions of the contract 6 Eden was not called as a witness in these proceedings ' Grevara was a friend of Warren 's and frequently rode home with Warren from work 6 As in the case of Eden , Grevera was not called as a witness 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .Warren;. Petras • said, "It looks like, obviously, Mr. Warren, you just don't learn, huh, Bob?" When Warren questioned Petras about the meaning 'of his statement, Petras replied, "It seems like you dust don't want to stop, do you9 It looks like you're never going to learn. If you keep up all this union biz, your days are going to be numbered here " Warren protested that he, had not done anything out of the ordinary and Petras said, "Come on, Bob, you know what I'm talking about." Petras conclud- ed the conversation by 'stating, "Bob, you know what I'm talking about and you'd-better watch it."9 Hanna testified that duringhis latest period of supervi- sory 'employment with the Respondent10 Warren, Can- delaria, and Hernandez were frequently discussed at the weekly supervisors meetings. Hanna stated that manage- . ment was concerned that Warren was too involved with the Union. According to Hanna, Michael Beresford, then assistant operations manager, and Petras frequently ex- pressed the view that, "We have to get rid of that little shit-stirrer." - Hanna's testimony regarding the statements he attrib- uted to Beresford and Petras were not refuted by either of .these individuals, although they testified as witnesses at the hearing in the instant . case. However, Kevin McClain, Respondent's dock manager, testified he had received a phone call from Hanna several weeks prior to, the instant hearing in which Hanna indicated he was going to testify falsely in order to get back at Potter for firing Hanna's son. According to_ McClain, Hanna stated he was going to testify that Warren was one of his best employees because he had a, "personal vendetta " against Potter for discharging his son. McClain further testified that. Hanna stated he intended to give false testimony in another proceeding, "if the money was right," involving an-employee (Jesse Moya) who was discharged by Re- spondent after an altercation with Hanna. i i Hanna was recalled on rebuttal by the General Coun- sel and admitted that he spoke with McClain pnor to the instant hearing. Hanna testified that he called Respond ent's dock office to speak with Candelaria and McClain answered the telephone. According to Hanna, during the . course of their conversation he informed McClain. that' he was going to testify in the instant hearing and that his testimony would indicate that he did not believe Warren. was drunk the evening that, he was suspended by Re- spondent (the incident which precipitated this case). When McClain questioned why Hanna was going to tes- tify on behalf of Warren since he was no longer em- ployed by Respondent, Hanna stated that he had been subpoenaed. Hanna denied that. he told McClain he was 9 Although Petras testified as a witness, he did not refute the state- ments attributed to him by Warren 10 Hanna worked for Respondent in various capacities on seve'al'occa- sions The latest period of employment in which he was a supervisor on the dock began in September 1982, and lasted until May 1983 11 It is evident from testimony that, Hanna was hiring'his son as a casual worker while employed as a dock supervisor for the Respondent Beresford informed Potter of this-and Potter admonished Hanna because it violated Respondent's- policy against nepotism Hanna became incensed at Beresford for informing on him' and threatened "to beat his ass "- Hanna's son was no longer permitted to work for the Respondent • Concerning Moya, Hanna struck the employee on the dock when he ripped off Hanna's glasses and spit in Hanna's face during the course of a dispute Moya was discharged as a'result of this incident going to testify falsely and he denied that there was any mention of the Moya incident during their conversation. According to .Hanna, he had not heard from Moya- nor was he aware of any proceeding involving Moya after the incident on the dock which resulted in Moya's dis- charge. Having observed Hanna and McClain while testifying, I am- persuaded that Hanna's testimony is worthy of belief and that McClain's statements were intended to distort and fabricate. It is apparent from his demeanor and comments that 1 Hanna had a- blunt, and at times harsh, personality who in his own words was a "hard su- pervisor." Equally apparent was his resolute determina- tion to reveal the facts as he knew them without favor to anyone. McClain's demeanor, on the other hand, indicat- ed a willingness to deceive and distort in order to further Respondent's cause In contrast, I find Hanna's testimony was forthright and candid; even when it related to inci- dents that did not reflect favorably upon-him. Potter testified that he was unaware of Warren's union activities at the. facility, and he denied' that Warren's ac- tivities in this regard were discussed-at the weekly super- visors' meetings. Having credited the testimony of Hanna, and in light of the fact that neither Beresford nor Petras refuted his testimony regarding their reaction to Warren's activities, I do not ,credit Potter's statements in this regard. - On October 15 Manuri came to the facility; at the re- quest of Potter and they jointly held a meeting with the, employees to explain the contract provisions which .the parties had tentatively agreed upon in the local negotia- tions. The unrefuted testimony reveals that Warren at- tempted to ask questions of Potter a number of times during the course of the meeting but was ignored by him Warren finally was ' able 'fo direct a question to Potter and'he asked-how the retroactive pay provisions of the proposed agreement would affect the casual em- ployees Potter responded by telling. Warren not to worry about the casual employees, but rather that he should worry about his job and whether the Respondent would survive in, business. When Warren attempted to ask further questions, Potter dismissed the meeting. Hanna testified that while the meeting was in progress, he.'stood in the back along with Beresford and Petras He stated that when Warren was attempting to-ask ques- tions at the meeting, Beresford commented, "Wouldn't you like to get rid of that little union son- of a bitch?" Beresford denied making this statement- and Petras did not give any testimony regarding it. In light of my previ- ous credibility findings regarding Hanna's testimony, I do not attach any credence to Beresford's denial. Rather, I find this statement to be in keeping with the prior com- ments made by Beresford at the weekly supervisors' meetings. On November 8, Warren was issued a warning notice by Beresford "for insubordination towards a Supervisor on 11/4/82 at 5.30 p.m." The notice stated that further violations of this type 'may result in additional discipli- nary action up to and, including suspension' and/or , dis- charge. (G.C. Exh. 4.) When Warren spoke to Beresford about the warning notice he was told it was issued be- SUPERIOR FAST FREIGHT cause Warren whistled at Roxanne Castro, daughter of the owner, at a lunch wagon on the date indicated in the warning. Warren protested that there were 30 to 40 em- ployees in a group on break at the, time and denied that he whistled at Castro. 12 On November 10, Potter wrote to Manuri complaining about Warren's conduct in general and attached a copy. of the warning notice. (See G.C. Exh. 3.) In the letter Potter stated. He [Warren] has been extremely insubordinate to me personally when you and I were trying to tell the dock crew the results of our negotiation [sic]. Since that time he has given several supervisors a bad time No evidence was adduced at the hearing, however, indi- cating any incidents between Warren and supervisors fol- lowing the meeting on October 15. C. Warren's Suspension and Subsequent Discharge The testimony -regarding the events on November 10 which resulted in the suspension and subsequent dis- charge of Warren is in serious conflict. Warren testified that he had taken a laxative before reporting to work and, while working, he had to go to the restroom. Ac- cording to Warren, he had to wait in line in the restroom for approximately 10 minutes before a toilet became available. He then spent another 10 minutes using the fa- cility. When he returned to the .trailer in which he was working, Beresford and McClain were. waiting for him and they questioned him about the length of time he spent in the restroom. Warren explained that he had been away for approximately 20 minutes, 20 of which were spent waiting to use the facility.13 Beresford told the em- ployees to either punch out and go home or go to. the company doctor to find out if anything was wrong with him. Warren protested he was not ill and could perform his work. Beresford then instructed Warren to get the union steward and come to his office after the break, which was then about to commence. Warren testified he went to Beresford's office accom- panied by Union Steward Hernandez and co-worker Kennedy. Beresford told the union steward that Warren spent 40 minutes in the restroom. Beresford stated he thought Warren was sick and wanted him to go to the company doctor or punch out and go home. Warren continued to protest that he was not ill and that Beres- ford could see' that he was not. Petras, who was-also-in the office, commented that Warren's eyes looked glassy Warren then performed the "CHP (California Highway Patrol) drill" consisting of a- series of jumping jacks; standing with arms outstretched, and touching the tip of his nose with his fingers to demonstrate there' was n6th- 12 The parties stipulated on the record that Castro was not a supervi- sor, although the warning notice indicated subordination toward a super-' visor _ .: 13 Employee Kennedy testified he was working in the trailer next to Warren He stated he saw Warren leave to go to the restroom and met Warren returning when Kennedy. left to use the , facility According to Kennedy, Warren was away from his trailer for approximately 25 min- utes , - 333 ing wrong with him . Beresford continued to insist that Warren either,punch out or go to the company doctor accompanied by. a supervisor. Warren then asked if he could go to his own doctor and Beresford informed him that he would have to punch out and go to his own doctor and return with a note.-He would then have to be sent to the company doctor to verify his own doctor's findings. Warren refused to go to the company doctor and stated that he, would punch out under protest. He accused Beresford of harassing him. According to Warren, Petras-accompanied him as he was leaving to go to the timeclock and accused him of being drunk. Warren stated he then turned and yelled to Beresford that he was willing to go to the company doctor. Beres- ford replied, "You've had your choice It's too late." As Warren was proceeding down the dock, he approached several employees telling them that management was ac- cusing him of being drunk and asking if he appeared drunk to them. 14 - Hanna testified that he had observed Warren on the dock and that the employee did not appear intoxicated or under the influence of any substance to him. Hanna stated when Warren was meeting with Beresford and Petras 'in the office, McClain came up to him and said, "We got Warren He was drunk. Did you see him?" Hanna replied, "You're ' crazy, 'Kevin. He wasn't, drunk and I ain't going to be in no part of it." McClain asked Hanna to be a witness against Warren and Harina re- fused, stating that Warren was not drunk. Beresford, on the other hand, testified that McClain had reported to him that Warren had been away from his trailer for more than 15 minutes and that he suspect- ed Warren "was on something."15 Beresford stated he and. McClain waited at the trailer for Warren to return. Beresford testified that Warren was gone for 40 minutes and when confronted about his absence, stated he was in the restroom because he was ill. Beresford then told. the employee to punch out and, go home. According to Beresford, Warren refused and.he then told-Warren to go to the company doctor. He stated that Warren agreed to do this and Beresford spoke to Hernandez about the matter, According' to Beresford, it was near breaktime so they decided to continue the discussion in his office after the break. ^ . I Beresford further testified that when Warren and Her- nandez came into the office, he told the employee that he suspected something was wrong with him and he wanted Warren -to see, the company doctor. At this point, according to Beressford, Warren said, "Okay. I can pass • any goddamn test you got" Beresford testified Warren then went through a number of CHP sobriety maneuvers He stated that when he filled out the slip for a supervisor to accompany, Warren to the company . doctor, Warren-refused to go saying, "I'm not-going and 14 Warren 's , testimony was corroborated in all essential parts by the testimony of Hernandez and Kennedy . 15 McClain testified he had assigned Warren work in a,trailer and the employee walked off in the opposite direction He stated he later gave Warren another assignment and the employee was very slow in perform- ing this work He testified he observed Warren leave the trailer for over a half an hour and he brought it to Beresford's attention 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taking any test." When Beresford insisted that Warren go to the company doctor to determine if something was wrong with him,' Warren continued to refuse and stated he was going home under protest. Beresford testified he then suspended the employee for the balance of the day. Petras testified that he was not aware of the-situation involving Warren until the meeting occurred in Beres- ford's office. Although Petras admitted that no one spe- cifically questioned Warren's sobriety at the meeting, he stated that implicit in Beresford's conversation was the suspicion that Warren was drunk or "on something." Petras corroborated Beresford's testimony that when the slip was made out_ for Warren to go to the doctor, the employee then refused to go. According to Petras, Beresford stated at that point that he had no alternative but to suspend Warren for the balance of the day. Petras stated that Warren replied he would punch out under protest. According to Petras, when he was escorting Warren to the timeclock, the employee stopped other employees along the dock telling them that he was not drunk. After leaving Respondent's premises, Warren went di- rectly to a private medical clinic to give a urine speci- men for analysis.16 Warren gave the specimen under conditions monitored by a staff member at the clinic. The specimen was sent to an in laboratory by the clinic for testing and the results disclosed no 'alcohol or ' nonprescribed medication in Warren's system. At Warren's request, the clinic -advised Beresford that Warren had submitted to a urinalysis under *monitored conditions on November 10 and stated the results of that analysis. (See G.C. Exh. 9 and 11.) Warren testified that on November 11, he was told by his mother that-Petras called and stated that Warren had been terminated under article 46 of the collective-bar- gaining agreement. Warren called Petras to question the basis of his .termination and to ask for information re- garding article 46.17 According to Warren, Petras ridi- culed him for his lack of knowledge of this section of the contract. Warren testified that Petras said, "Bob, you don't know what Article 46 is? Big shot you are in the union and you don't'know what Article 46 is? You've got all the books at home." Petras ended the conversa- tion by stating he did not have time to inform the em- ployee about article 46. Petras, on the other hand, testified that when Warren called him regarding the message that the employees had been terminated, he informed Warren that he had been terminated for drunkeness. According to Petras, Warren responded, "Why me?.There are others on the dock who are more guilty of-more guilty of misuse of-or drun- keness or-drunkeness and drugs. There are more people guiltier than I am."18 i6 Hernandez testified that he advised Warren to go to his own doctor because Hernandez did not trust the company doctor 11 Art. 46 of the collective-bargaining agreement deals with the subject of discharge-and suspension While warning notices are required under this section of the agreement, it provides that no warning notice is re- quired where an employee is suspended or discharged for drunkeness or other specified violations (See G C Exh 5a ) 18 In view of the urinalysis report showing no alcohol or nonpre- scribed medication in Warren's system on November 10, 1 do not credit the statement by Petras that Warren admitted being intoxicated or under In addition to the verbal notification from Potter, Warren received a mailgram confirmation of his dis- charge dated November 11 (see G.C. Exh. 8) and two formal termination notices issued on that same date by the Respondent. The first termination notice, stated Warren was discharged "for drunkeness on the job and refusing to "take [a] sobriety test on 11/10/82." (G.C. Exh. 6.) The second notice merely cited "drunkeness on 11/10/82", (G.C. Exh 7), and both notices were signed by Beresford. According to Petras and Beresford, they discussed the Warren incident with Potter and were told that the offense warranted termination Petras stated he then contacted the labor consultant of the California Trucking Association (CTA)19 and was advised that under the collective-bargaining agreement Warren had to be notified-of his termination; hence his telephone call to Warren's home on November 11. Petras further testified that he contacted the CTA labor consultant after Beres- ford issued the first termination notice' and was advised that it was only necessary to indicate "drunkeness" as the reason for the discharge. According. to Petras, he then instructed Beresford to issue the second notice to Warren in order to conform with the CTA advice and to be consistent with Respondent's policy. - The testimony of Potter and McClain discloses that Respondent had a longstanding policy regarding the han- dling of employees suspected of being intoxicated or under the influence of drugs while on the job. Under this policy, the employee was to be asked to submit to a so- briety test (urinalysis or blood) and advised that if he re- fused, it' would be considered an admission of the sus- pected condition and would result in discharge for drunkeness. When first called as a witness by Respond- ent, McClain testified on cross-examination that the pro- cedures to be followed by the supervisors in implement- ing this policy were set forth in writing and that he had seen them prior to Warren's discharge.-An undated writ-' ten copy of these instructions to the supervisors was in- troduced into evidence as General Counsel's Exhibit 10. On redirect examination by Respondent's attorney, McClain stated that he had seen a copy of the instruc- tions at the time of- Warren's discharge. After several other witnesses had testified on behalf of the Respond- ent, McClain was recalled and examined again about the written instructions. As justification for this procedure, Respondent's counsel' stated that he had been informed during a break-in the proceeding that there was some confusion about McClain's understanding of `his question regarding the written instructions. During' his'second ap-• pearance, . McClain testified that there was no copy of the written instructions available at the time of Warren's discharge, but he acknowledged that There' was a compa- ny policy in force with respect to employees'suspected of being drunk or under the influence of a substance. McClain stated -the policy was to ask the employee to the influence of a'substance on November 10 1 find it highly improbable that Warren would have made such an incriminating admission when he was, in fact, not intoxicated as revealed by the urinalysis report 19 CTA is an employer association of which Respondent is a member and through which Respondent negotiates with the Teamsters local SUPERIOR FAST. FREIGHT submit- to a sobriety test furnished by Respondent's doctor. Potter, on the other hand, testified that . while the policy on drunkeness or under the influence of drugs was in effect at Respondent's facility over a period of years, he did not issue written procedures for the supervisors to follow until November 29-after Warren's discharge. Potter testified that he had discovered that some supervi- sors (presumably including Beresford) were permitting employees suspected of intoxication to go home rather than following the Company's policy of demanding a so- briety test and discharging the employee on failure to take or 'to pass the test. According to Potter, this policy was recommended to the Respondent by CTA and had been consistently followed at the Re'spondent's facility over a number of years. On November 15 Manuri called Beresford's office and requested that Beresford have Union Steward Candelaria come to his office so they could discuss the discharge of Warren over the conference telephone With Candelaria present, Manuri asked the basis for the discharge of Warren Beresford replied that Warren was discharged for drunkeness on the job on November 10. Manuri then asked if Warren had been requested to submit to a sobri- ety test on the night in question and Beresford respond- ed,, "No, not that I know of." Manuri testified that Beresford stated during the conversation that Warren had not been asked-to take a sobriety test because there was no question of sobriety. Manuri then queried why Warren had been terminated for drunkeness and for re- fusing to take a sobriety test. Beresford responded that he was not certain what kind of answer -he could give Manuri. At this point Manuri took the position that War- ren's termination was improper and Beresford then cited the fact that Warren had been in the restroom for 40 minutes or more on the evening in question . Manuri re- sponded that Warren should not have been terminated and that, at most, the employee should have been given a warning letter for abusing company time_ pursuant to the collective-bargaining agreement. Warren filed a grievance which was pursued by the Union regarding his discharge. Under the terms of the collective-bargaining agreement, the grievance was ulti- mately heard by the local joint state committee 20 Manuri represented Warren in the proceeding before the joint state committee. Manuri testified that he took the position that Warren was terminated improperly under the collective-bargaining agreement. According to Manuri, if Respondent's officials suspected Warren was intoxicated or under the influence of a drug on Novem- ber 10, they should have asked the employee to submit to a sobriety test If he refused, he would then be termi- nated at that point and not at some subsequent date. Manuri further testified that he was aware of the favor- able urinalysis report Warren had received from the clinic but did not introduce it at the 'hearing before the committee because sobriety was not an issue in Warren's 20 The joint state committee consists of representatives from the vari- ous local unions and the employer associations with which they have contacts No transcript record is kept of the proceeding before the com- mittee nor is there an appeal from its decisions 335 case He stated that since Warren was not requested to take a sobriety test, the report was, in his judgment, ir- relevant . Manuri also stated that he did not raise the issue of Warren's union activities before the commit- tee.21 -The joint state committee upheld Respondent's ac- tions in discharging Warren. Concluding Findings Aside from the general denial that it did not commit any unfair labor practices, Respondent argues affirma- tively that deferral should be accorded to the decision of the local joint state committee upholding the discharge of Warren . The General Counsel argues , however, that deferral is not appropriate here because there is no evi- dence that the proceeding before the committee was "fair and regular" under the Board's Spielberg doctrine.22 As evidence of this deficiency, the General Counsel'cites the fact that no minutes or transcript record were taken of the proceedings nor was a written decision issued by the committee. More importantly, the General Counsel also argues that the unrefuted testimony of Manuri estab- lishes that 'the statutory issue (whether Warren's dis- charge was motivated, by animus toward the union ac- tivities) was not presented to nor considered by the com- mittee in arriving at its decision. It is well settled that proceedings before panels such as the local joint state committee here constitute "arbitra- tion proceeedings" to which the Board will defer, pro- vided its enunciated standards for such deferral' are oth- erwise met. Chemical Leaman Tank Lines, 270 NLRB 1219 (1984); American Freight System, 264 NLRB 126 (1982); Chemical Leaman Tank Lines, 251 NLRB 1058 (1980); Suburban Motor Freight, 247 NLRB 146 (1980); Automobile Transport, 223 NLRB 217 (1976); Terminal Transport Co, 185 NLRB 672 (1970). Further, in its rela- tively recent decision in Olin Corp., 268 NLRB 573 (1984), a Board majority23 held that in applying the Spielberg standards, it would henceforth view the statuto- ry issue as having been adequately considered by an arbi- trator (or grievance arbitration panel) if- (1) the contrac- tual issue is factually parallel to the unfair labor practice issue; and (2) the arbitrator was presented generally with the facts relevant to' resolving the unfair labor practice issue In that case the Board also stated that where it has been established that an arbitration proceeding concern- ing the matter before the Board has already occurred, "the burden of persuasion rests with the General Counsel to demonstrate that there are deficiencies in the arbitral process requiring the Board to' ignore the determination of the arbitrator and subject the case to de novo review." Id. at 575. - In light of this latter requirement of Olin, I reject the General Counsel's contention that the proceeding here 2i Under the terms of the Master Freight Agreement , it is improper for an employer to discharge an employee for union activities 22 Spielberg Mfg Co, 112 NLRB 1080 (1955) The criteria set forth in Spielberg require ( 1) all parties agree to be bound by the results of the arbitration proceedings , (2) the arbitration proceedings are fair and regu- lar, and (3) the decision of the arbitration proceedings is not repugnant to the Act ' 23 Member Zimmerman dissenting ` 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not fair and regular. The mere-fact that minutes or a transcript record of the proceedings were not taken or that a written decision was not issued by the committee does not, in and of itself, compel the conclusion that the proceedings were not fair or regular. Further, the record discloses that Warren was represented by his union busi- ness agent who argued on his behalf that the discharge was improper under the terms of the collective-bargain- ing agreement. That the argument did not prevail does not establish any unfairness or irregularity in the commit- tee proceedings themselves. The more critical questions to be considered here are: (1) whether the contractual issue before the committee was factually parallel to the statutory issue presented in this unfair labor practice proceeding, and (2) whether the committee was presented generally with facts relevant to resolving,the unfair labor practice issue. ' I conclude that both of these questions must be answered in the negative. Manuri's unrefuted testimony, which I credit in all re- spects, discloses that the Union maintained throughout the grievance procedure that the discharge did not follow the provisions of article 46 of the collective-bar- gaining agreement. Furthermore, this was the same posi- tion argued before the committee by Manure and, indeed, because.he deemed it irrelevant, the union representative did not attempt to introduce the clinical report attesting to the lack of alcohol or other nonprescribed substance in Warren's system on the night in question. Nor did he argue that the discharge breached the provisions of the collective-bargaining agreement making it a contractual violation to discharge employees for engaging in union activities. Thus, it is evident- that the issue presented to the com- mittee was one of contract procedure rather than a sub- stantive defense to the charge of drunkeness.or an asser- tion that the discharge was motivated by Warren's union activities. That hindsight might now dictate a different strategy is of no consequence here. It is commonplace in courtroom litigation for parties to rely on procedural ar- guments to sustain their cause rather than to get into the substantive merits of a particular case. It is quite evident here that the union representative adopted just such a strategy in presenting Warren's grievance to the commit- 'tee and the substantive facts regarding whether' the em- ployee was intoxicated or discharged for other reasons were not presented, generally or specifically, to the grievance arbitration panel. Nor does the fact that the union representative made a judgmental decision to abstain from raising the substan- tive issue of drunkeness and proceeded on the basis of a procedural violation of the collective-bargaining agree- ment require a different conclusion. In Olin, the Board majority, specifically disclaimed any intention of., resur- recting that portion of Electronic Reproduction Service, 213 NLRB 758 (1974), "which required no more than an `opportunity' to present the unfair labor practice issue to the arbitrator to warrant deferral." Olin Corp, supra, fn 10. Therefore, the fact that Manure had an opportunity to raise the substantive issue, but chose not to, does not militate in favor of ' deferral to the committee's decision in the particular circumstances of this case. - In light of the above, I find that the General Counsel has established that the Olin standards for deferral have not been met in the circumstances of this case. Accord- ingly, I find that deferral to the decision of the -Joint State Committee is not warranted. • Turning -to the merits of the case, I find the credited testimony and record evidence fully supports the conclu- sion that Warren was discharged on November 11 in vio- lation of the Act.. The record abounds with -evidence of the hostility and resentment Respondent's supervisors and management officials harbored' toward Warren for his leadership among his coworkers and his activities in counseling them and demanding adherence to the provi- sions of the collective-bargaining agreement. That War- ren's role as "unofficial steward" 'on the dock angered Respondent's supervisors is evidenced by the pejorative comments made about him at' the weekly supervisor's meetings by Beresford, Petras, and Potter, and by Beres- ford's comments to Hanna. This is further evidenced by the cautioning warnings given to Warren' by Grevara, which are unrefuted in the record. While animus toward an employee because of his union activity raises a strong inference that an employ- ee's discharge is unlawfully motivated, I further find that the record establishes that Respondent's announced justi- fication for Warren's discharge was purely pretextual in nature. The employee was discharged for drunkeness on the job but the unrefuted testimony reveals that Re- spondent's supervisors never questioned his sobriety, or lack thereof. Rather, the main complaint was the amount of time Warren spent in the restroom and that he refused to go to the company doctor to determine if anything were wrong with him Indeed, it is undisputed that when Manuri confronted Beresford during the telephone con- ference,-in the presence of Candelaria, Beresford admit- ted that sobriety was not an issue and repeated the com- plaint against Warren for taking too much time in the restroom Further evidence that Respondent was at- tempting to forge a set of circumstances to enable it to get rid of an employee considered a thorn in its side is found in the two formal dismissal notices sent to Warren on November 11. The first charged Warren with drunke- ness on the job and refusal to take a sobriety test. The second merely asserted drunkeness on the job. Aside from being an obvious admission that the employee's so- briety had not been questioned the prior evening (there- by corroborating the testimony of the union representa= tive and the stewards), it calls into question the discharge justification itself. It is apparent from the second notice that Respondent's officials recognized that in their zeal to create a means of getting rid of Warren they failed to follow Respondent's long-established procedures in deal- ing with employees suspected of intoxication or being under the influence of drugs on the job.24 - 24 For this reason . I do not credit Petra's testimony that he had the second termination notice issued on advice of the CTA labor consultant to conform with that organization 's practice and "to be consistent with company policy " As operations manager , it is unlikely that he was,unfa- miliar with Respondent's policies - SUPERIOR FAST FREIGHT - 337 Because of (1) the established..animus and hostility toward Warren for his union activities, (2) the failure of Respondent's officials to follow Respondent's own long- standing procedures regarding employees suspected of intoxication or under the influence of-drugs, (3) the-re- fusal of Hanna to participate-in charging Warren with drunkeness on November 10 because he knew the em- ployee was not intoxicated, and (4) the clinical report at- testing that Warren had no alcohol or nonprescribed drugs in his system on November 10,• I find that the as- serted justification- for Warren's discharge was merely a pretext to mask Respondent's effort to rid itself perma- nently of a union activist considered •a thorn in its side. I further find that Respondent has not established on this record that Warren would have been discharged in any event, regardless of his union.or protected activities, for the incident which occurred on November 10. Wright. Line, 251 NLRB 1083 (1980). Accordingly, I find the discharge of Warren on November 11 was unlawfully motivated and in violation of Section 8(a)(1) of the Act.2 5 CONCLUSIONS OF LAW 1. The Respondent, Superior Fast Freight , is an em- ployer within the meaning of Section 2(2) of the Act en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By unlawfully discharging employee Robert Lee Warren on November 11, 1982, on the pretext of drunke- ness because the employee engaged in union and other protected activity, Respondent has violated Section 8(a)(1) of the Act. 3. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, I shall order the Respondent to cease and desist therefrom and to take certain affirmative action which will effectuate the policies of the Act. Since it has been found here that Respondent unlawfully discharged Robert Lee Warren on November 11, 1982, it shall be recommended that he be offered full and imme- diate reinstatement to his former position, or if that posi- tion no longer exists, to a substantially equivalent posi- tion without prejudice to his seniority or other rights and' privileges. Respondent also shall be ordered to make the employee whole for any loss of earnings he may 'have' suffered due to the discrimination against him. Backpay shall be computed in the manner prescribed in F W. Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB-651 (1977) 26 In addition, Respondent shall be required to expunge from its files any references to the discharge of Robert Lee Warren, notifying him in writing that this has been done, and that evidence of his unlawful discharge will not be used as a basis for future - 25 Because the remedy for the violation found here is the same as that which would result for a violation of Sec 8(a)(3), I deem it unnecessary to determine whether Respondent also violated Sec 8(a)(3) of the Act by its unlawful conduct 26 See generally Isis Plumbing Co, 138 NLRB 716 (1962) personnel action against him: See Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edS7 - ORDER The Respondent, Superior Fast Freight, Los Angeles;- California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully discharging employees because they engage in union or other activities protected by Section 7 of the National Labor Relations Act, as amended. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer Robert Lee Warren immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files, and ask the Employer to remove from the Employer's files, any reference to the unlawful discharge and notify the employee in writing that it has done so and that it will not use the discharge against him in any way. (d) Post at its facilities located in Los Angeles, Califor- nia, copies of the attached notice marked "Appendix "28 Copies of the notice, on forms provided by the Regional Director for -Region 21, after being signed by the Re- spondent'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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 27 If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 28 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the National -Labor Relations Act and, has or- dered us to post and abide by this notice. WE WILL NOT unlawfully discharge our employees be- cause they are engaged in union or other activities pro- tected by Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with , restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Robert Lee Warren immediate and full reinstatement to his job or, if that job no longer exists, to a substantially equivalent -job; without prejudice to his seniority or other rights and privileges and WE WILL make him whole for any loss of earnings he may have suffered because of our discrimination against him. WE WILL expunge from our files any reference to the discharge of•Robert Lee Warren and notify him in writ- ing, that this has been done and that this unlawful con- duct will not be used as a basis for. future personnel action concerning him. , SUPERIOR FAST FREIGHT