Ryder/P.I.E. Nationwide, Inc.

RYDER/P I E NATIONWIDE Ryder/P.I.E. Nationwide, Inc. and Clarence Eugene Pate. Case 15-CA-9415 25 February 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 16 August 1985 Administrative Law Judge Arline Pacht issued the attached decision . The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed a limited exception, supporting brief, and a brief in answer to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ryder/P.I.E. Nationwide, Inc., New Orleans, Lou- isiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging employee Clarence Pate, we do not rely on the judge's statement in "Concluding Findings," sec B, par 15 of her decision, that "it was the very antithesis of fair play" not to give Pate an opportunity to forfeit $14 for the I 1 hours on 2 April 1984 for which the Respondent asserted Pate dishonestly claimed pay Member Babson, in adopting the judge's conclusion, does not rely on her finding that the Respondent, by discharging Pate for the asserted of- fense, "imposed a draconian sanction " Alan Ginsberg Esq and Lee J. Romero Jr , Esq, for the General Counsel John Paul Jones, Esq, for the Respondent DECISION STATEMENT OF THE CASE ARLINE PAcHT, Administrative Law Judge. The charges in the above-captioned case were filed on 27 July and 13 August 1984 The complaint, which issued on 7 March and was amended on 16 April 1985, alleges that Respondent, Ryder/P.1 E, Nationwide, Inc (Re- spondent or Ryder), dismissed the Charging Party, Clar- 713 ence Eugene Pate (Pate) in violation of Section 8(a)(1) and (3) of the National Labor Relations Act In addition, the complaint alleges that Respondent, through its agents, made various statements to its employees which independently violated Section 8(a)(1) of the Act Respondent filed timely answers denying the commis- sion of any unfair labor practice and asserting as an af- firmative defense that deferral to a final and binding dis- pute resolution procedure forecloses inquiry into the merits of this case The trial in this matter was held before me on 23 and 24 April 1985, in New Orleans, Louisiana The parties were given full opportunity to participate, to introduce relevant evidence , ' to examine and cross-examine witnesses, to argue orally, and to file briefs On the entire record of this case, including briefs filed the General Counsel and Respondent, and from my ob- servation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent is a Florida corporation engaged in truck- mg operations as an interstate motor carrier with offices and a terminal in New Orleans, Louisiana During the 12-month period immediately preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 for transporting products from Louisiana di- rectly to points outside the State Accordingly, I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, Local Union No 270 (the Union), represents a unit of over-the- road drivers, including the Charging Party, at Respond- ent's New Orleans facility The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Pate first began working for Respondent at its Bir- mingham, Alabama terminal as an over-the-road driver in March 1977 He transferred to Ryder's New Orleans terminal in January 1983 where he continued driving freight between various intrastate terminals until his ter- mination on 25 April 1985 . During the course of his em- ployment at the New Orleans facility, Pate was 1 of ap- proximately 12 over-the-road drivers. His discharge came after Respondent accused him of falsely claiming ' During the course of the hearing in this matter , Respondent offered and I rejected its Exits 4 and 5 However, these exhibits were inadvert- ently included in Respondent's formal exhibit file as if received To cor- rect the record, the documents have been removed and placed in a re- jected exhibit file 278 NLRB No. 109 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and accepting wages for a period of time on 2 April that Pate said he was working at Respondent's terminal in Thibodaux, Louisiana The General Counsel submits that Pate was innocent of any wrongdoing on that date and that Respondent used this occasion as a subterfuge to rid itself of an employee who had filed a significant number of successful grievances B Pate's Grievance-Filing Activity Pate testified that he filed 8 to 10 grievances between October 1983 and March 1984 Documentation for seven such grievances were received into evidence and show that in six of them Pate alleged he was deprived of cer- tain job assignments which were wrongfully awarded to drivers from other terminals 2 Each of the seven griev- ances were resolved in Pate's favor with monetary awards to him totaling approximately $763 According to the General Counsel, Pate filed more successful griev- ances than any other over-the-road driver with the ex- ception of the driver's union steward, Bill Cullen Respondent contends, however, that Pate was not alone in filing grievances , nor did his protests receive undue attention New Orleans Terminal Manager Tom Davis testified that shortly after assuming his post on 27 January 1984 he created a grievance filing system for hourly paid employees since he was responsible for re- solving grievances at the first step Although he recalled resolving two or three grievances in Pate 's favor in 1984, he denied having any knowledge of grievances which Pate filed prior to his arrival. In fact, the record shows that Pate filed three grievances in 1984 , on 6 and 14 Feb- ruary, and on 3 March a The first two of these involved claims for runaround trips and were similar to complaints which Pate had submitted in 1983 The third involved claimed compensation for a delay at the Thibodaux ter- minal Other managerial employees indicated they had scant knowledge of employees' grievances Specifically, a former operations supervisor, Jun Christianson, testified on direct examination that he was unaware of individual employee protests unless he was directly implicated As Christianson put it, drivers would inform him when they intended "to file a grievance on you " He acknowledged, however, that Cullen would announce to everybody when he intended to file grievances both on his own behalf and on behalf of others More circumspect than Christianson, Dock Supervisor Julio Magana insisted that he was never told by a union steward or by any other employee when a grievance was to be filed. Yet, he con- ceded on cross-examination that he did hear generally about grievances being filed Moreover, Magana ac- knowledged that after issuing a warning letter to Pate in April, he checked twice with the then union steward, S Pate explained that when he and some 8 to 10 other drivers were transferred to New Orleans, the Union and Respondent agreed that the New Orleans drivers would be assigned to transport shipments of freight from New Orleanst westward If drivers from other terminals were as- signed to such work (referred to as "run-around trips") the grievance procedure would be available to the New Orleans drivers 8 Davis found only five copies of grievances in Respondent's records However, he seemed willing to acknowledge that Pate had filed the seven grievances for which documentation was produced Floyd, to find out if a grievance had been lodged He also revealed that he engaged in daily conversations with Assistant Terminal Manager Lacey and that during one such discussion about 6 or 7 April, Lacey advised him that Pate had been involved in misconduct which oc- curred on 2 April Respondent introduced grievances filed by other em- ployees in order to demonstrate that Pate did not distin- guish himself in this activity However, a careful review of the documents submitted by Respondent does not wholly support its position While serving as steward, Cullen admittedly filed more grievances than did Pate In fact, from January to mid-March when he transferred to another depot, Cullen filed a total of 24 grievances, 18 of which were of a personal nature involving complaints similar to those filed by Pate Although Cullen was not disciplined for his efforts, he testified that he barely es- caped Pate's fate Thus, Cullen stated that in March 1985 when he advised Magana that he would soon be transfer- ring to another Ryder facility, Magana responded that it was all to the good since Cullen would have been fired if he remained in New Orleans Apart from Cullen and Pate, the record shows that only two other employees filed grievances in any signifi- cant number Thus, during the same time span in which Pate filed his grievances John Willard , a mechanic and shop steward for his unit, filed five grievances, three of which were denied and two settled for approximately $300.4 Estes, the drivers' steward who preceded Cullen, filed eight grievances, three were withdrawn and one re- sulted in a monetary award of $86 The General Coun- sel's search of Respondent's personnel files disclosed no evidence of other grievances filed during the relevant time period C. Alleged Threats Pate, as well as a few other employees called as wit- nesses by the General Counsel, testified that Pate's ef- forts to secure his rights under the collective-bargaining agreement did not go unnoticed by management and pro- voked threats of retaliation on more than one occasion Thus, Pate testified that in early February 1984, after Magana overheard him advising a fellow driver, Henry, to file a grievance about a matter, Magana warned Henry, that if he listened to Pate, "he's going to get you in trouble " Henry was not adduced as a witness Pate related another incident which occurred late in February when Magana told him that he intended to use employees from another facility to perform work that or- dinarily would be assigned to New Orleans drivers After Pate said he would grieve such a practice, Magana responded, "These grievances is going to get you fired " Pate further stated that in the beginning of April Magana summoned him to his office and warned that if he * G C Exhs 10A-10I, include a few grievances filed by Willard be- tween 26 April and 9 September As these documents are dated after Pate's termination , they have not been taken into account I note that al- though the exhibits are difficult to read , it appears that none of these were personal claims resulting in monetary awards Similarly , G C Exhs 9A-9G are seven grievances filed after 25 April by another mechanic, Campbell, only one of which appears to have been successful RYDER/P I E NATIONWIDE 715 wanted to continue working in New Orleans he would have to stop filing grievances Pate testified that on an- other occasion in March, Christianson threatened to fire him after he overheard Pate, Cullen, and some other drivers discussing grieving about working conditions. Cullen did not recall that other drivers were involved, but substantially confirmed Pate's testimony about this incident Another driver, Estes, testified to similar conversations with Magana The first of several exchanges occurred early in 1984 when Magana called Estes into his office and urged him, as a friend of Pate's, to encourage Pate to stop filing grievances, that if he did not, "they were going to have to take action to stop it." Subsequently, some weeks before Pate's discharge, Magana again told Estes that Pate would be fired if he continued filing grievances. Then, several days before Pate's termination was to be considered by an arbitration panel, Estes asked Magana if he had heard anything about the matter Magana replied that he had learned from Graham, Re- spondent's labor relations director , they were going to make an example of someone , either Pate or another em- ployee A few days after Pate's case was presented for arbitration, Estes said that Magana told him of the out- come, adding they had gotten rid of a troublemaker. When Jordan, another driver regularly stationed at Birmingham, Alabama, asked Magana what had hap- pened to Pate, the dispatcher replied that "his grievances got him " Jordan and Cullen, both long-term employees, stated that throughout their careers with Ryder they knew of no other driver who had been discharged for stealing time Both Magana and Christianson denied having made any of the above comments D The Events Leading to Pate 's Discharge Pate was terminated on 25 April for conduct which Respondent alleged took place on 2 April The parties' versions of the events on that date are in sharp dispute. To set their contentions in perspective, it will be helpful to describe the various records which each Ryder driver is required to maintain First, in accordance with Federal regulations, each driver must chart his on and off duty times and his driv- ing hours on a daily log. He also is responsible for com- pleting a trip card on which he clocks the times of arriv- al and departure at each destination and records reasons for any delay in transporting freight The driver's pay is computed on the basis of the trip card Additionally, the driver is supposed to enter his arrival and departure times on a sign-in and sign-out sheet at each terminal. Pate testified to the following sequence of events with reference to these three documents Pate stated and his timecard shows that he left the New Orleans terminal on April 1 at 23 9 or 11 .55 p m.r He arrived at the Thibo- daux terminal some 65 to 70 miles distant at 2 a .m.6 Pate 5 To record their times of arrival and departures at each terminal, driv- ers insert their trip cards into clocks which record hours from 0 to 24 and minutes by hundredths of an hour 6 The exact distance between the New Orleans and Thibodaux termi- nals was in dispute with estimates ranging from 61 to 76 miles further testified that on arriving at Thibodaux, he insert- ed his trip card into the timeclock , but it failed to regis- ter He then described in painstaking detail his activities at the Thibodaux terminal which included unhooking each of the two trailers he had been conveying, maneu- vering them around other trailers in the small terminal yard and positioning them in alignment with the dock so that the freight could be unloaded He completed his pa- perwork and left, hauling two other empty trailers. On leaving Tlbodaux, Pate inserted his trip card into the timeclock and noticed for the first time that the clock had failed to register his arrival time, an occurrence which Pate and Cullen said often happened . He, there- fore, entered a handwritten notation setting his arrival at 2 a.m While Respondent normally allows one-half hour for the type of work which Pate performed at Thibo- daux, Pate claimed that on 2 April, his activities took 1.6 hours As required by company policy, when drivers exceed the standard time, Pate provided an explanation for the delay on his trip card, writing tersely that he had to "break down, set spot bolt to dock and to hook set " The two other records which Pate completed for this journey are inconsistent with his trip card in several re- spects On his driver's log, Pate marked his departure from New Orleans at 11:30 p.m, his arrival at Thibodaux at 1.45 a.m., and his departure at 3:30 am On the sign- in, sign-out sheet, Pate noted his arrival at Thibodaux as 12.30 a.m. and his departure one-half hour later at 1 a.m Pate suggested that the sign-in, sign-out sheet was unun- portant, and that he and other drivers often neglected to register their times in it, a common omission according to him and several other witnesses. Far different accounts of Pate's activities were provid- ed by two Ryder employees assigned to the Thibodaux terminal. George Lockett, a Teamsters member and the only night dockman at Thibodaux, is responsible for un- loading freight there for delivery to customers in the area. On those occasions when drivers are more than an hour late, Lockett had standing instructions to report the matter by telephone to his terminal manager, Louis Catton, and to copy the driver's trip card so that Catton may inquire into the cause of the delay In accordance with this policy, Lockett estimated that he had reported at least six late arriving drivers to Catton in the past sev- eral years Lockett related that when the freight had failed to arrive by 2 a in on 2 April, he telephoned the New Or- leans terminal, and learned that Pate had departed there at midnight. He then telephoned Catton who reminded him to make a copy of the driver's trip card on his arriv- al at Thibodaux. When Pate arrived at 3.39 a.m, Lock- ett, following instructions, requested his trip card, dupli- cated it, and left the copy on Catton's desk. He also called Catton again to assure hun of Pate's arrival. Lock- ett then assisted Pate in aligning one of the trailers with the loading dock and helped him hook together two empty trailers for the return trip to New Orleans. Lock- ett observed Pate writing 2 a.m. as his arrival time on the trip card He also noticed that the timeclock regis- tered 4-16 a.m when Pate left the terminal 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Catton called Davis the following morning to com- plain about Pate's late arrival and informed him that, al- though Pate had signed in at 12 .30 a.m , Lockett was sure he had not arrived before 3 .39 am Davis asked Catton if Lockett would sign a prepared statement docu- menting Pate's timing Catton passed this request along to Lockett who agreed to sign a memo which the termi- nal manager prepared The memo states in pertinent part* On 4/2/84 Mr. Gene Pate arrived at the Thibodaux, LA terminal at 3.66 a m. However, he signed the log as amvmg at 0.5 a.m. and dispatched back to New Orleans at 100 a m See enclosed copies Also, he was hooked up and dispatched at 4:16 a.m '' After receiving this memo several days later and com- paring a copy of the Thibodaux sign-in and sign-out sheet with Pate's trip card and driver's log, Davis con- cluded that Pate had been dishonest and decided to dis- charge him under the terms of article 45 of the parties' collective-bargaining agreement which authorizes imme- diate terminations for dishonesty . However, Davis ex- plained that out of a sense of fairness, he would give Pate an opportunity to recant his wrongdoing. Davis therefore waited until Pate accepted a paycheck which included a sum of money covering the 2 April events Pate continued driving in the interval between 2 April and the date of his discharge more than 3 weeks later He testified that on his next trip to Thibodaux, Lockett confided that he had been compelled to sign the memo incriminating Pate. However, at the trial in this matter, Lockett denied that he had been coerced in any manner Then, in mid-April, Pate was involved in another inci- dent involving an accusation that he falsified his driver's log. On 8 April Pate left New Orleans at 12.30 p m. on an assigned route to Lafayette, Louisiana While on his way to work approximately an hour and a half later, Magana happened to observe Pate entering his parked truck at a location some 4 miles from the New Orleans facility On arriving at the terminal, Magana learned that Pate had been dispatched at 12.30 Later, Magana re- viewed Pate's log and found that it showed he was dnv- ing between 1 and 4 p m with no indication of a break at the time Magana saw him. Based on these facts , Magana issued a warning letter to Pate on 12 April Although Pate demed any wrongdoing and asserted that he filed a grievance protesting the warning letter with the then steward, Floyd, no copy of his protest was offered into evidence, nor was Floyd called as a witness. On 19 April, Pate received a paycheck which covered the 2 April date which he cashed about 23 April On 25 April Davis summoned Pate to his office and in the pres- ence of the steward, fired him for the reasons set forth in the following termination notice. On Monday, April 2, 1984 you claimed and were paid for 1.6 hours drop and hook time at the Thibo- daux, La. Terminal .. In fact you were only de- layed .5 hours This is to advise you that you are hereby discharged for dishonesty under Article 45 T The time 366 translates to 3 39 a in and 4 16 to 4 10 a in standard time Sec 1 of the current National Master Freight Agreement Pate stated that during his interview with Davis he re- counted his activities at Thibodaux to justify the length of time he claimed to have spent there Davis allegedly reacted to his explanation by stating that he might have believed him if it had not been for his recent letter pro- testing the 12 April warning from Magana Davis re- called that while Pate may have offered some excuse for his delay at Thibodaux, neither of them made any refer- ence to the earlier Magana warning letter The difference in the sum Pate claimed for his 2 April work and the amount to which the Respondent believed he was enti- tled amounted to $14 28 for 1.1 hours of work E. The Arbitration Proceeding Pate quickly filed a grievance protesting his discharge which Respondent rejected at the initial stage Thereaf- ter, on 21 May, the grievance was presented to the Southern Multi-State Grievance Committee, a panel with final and binding authority which included three man- agement and three union representatives A verbatim transcript of the hearing, introduced into evidence as General Counsel's Exhibit 2, reveals that two principal issues were presented to the panel. At the outset, Teamsters Business Agent Brown contended that the discharge was not timely since the Company re- frained from firing Pate for 23 days after it learned of the critical events of 2 April The Company responded that the operative act causing the dismissal occurred when Pate accepted a paycheck which included the allegedly unearned sum After caucusing, the point committee de- termined that it would hear the grievance on its merits The balance of the hearing then focused on the factual representations bearing on Pate's conduct on April 2 Re- spondent presented documentation, including Pate's trip card, the driver's log, the sign-m and sign-out sheet from the Thibodaux terminal and the memo from Lockett, in support of its position that Pate falsely claimed 1 .6 hours delayed time at the Thibodaux terminal when, in fact, he was entitled to claim no more than the alloted 5 hours In defense, Union Business Agent Brown read Pate's grievance into the record which contained a detailed ex- planation of his conduct at Thibodaux in order to prove that Pate could not have completed his tasks there be- tween 3 39 and 4: 10 a m , as Lockett's memo represented. Brown further argued that Respondent had treated Pate more severely than other drivers who had engaged in similar conduct but who were not discharged Specifical- ly, Brown referred to grievances of other drivers who experienced nothing more than deductions in pay when Respondent unilaterally decided that they had failed to justify delivery delays on their trip cards . There was no mention at the hearing of Pate's grievance filing activity nor of the alleged threats and warnings by supervisors regarding that activity Brown explained at the instant hearing that he did not raise these matters for Pate had not disclosed them to him Respondent attempted to distinguish Pate 's case from those to which Brown referred by arguing that these RYDER/P I E NATIONWIDE other employees had simply failed to sufficiently detail their terminal delays whereas Pate had submitted an ex- planation which was false When one of the committee members questioned Pate about the discrepancy between the 145 a in arrival time on the sign-in sheet and the 2 am arrival time on his timecard , he explained that the timecard was accurate. However, he charted 1.45 on the log in compliance with a dispatcher's suggestion so that he would not exceed the driving time limits set by Fed- eral regulation Without any on-the-record discussion of its reasoning, the joint committee simply announced cryptically that Pate's discharge was upheld IV CONCLUDING FINDINGS A Deferral to Arbitration is Inappropriate As a threshold issue, it is necessary to determine whether the outcome of the hearing before the joint committee precludes a decision on the merits in this forum. Since Spielberg Mfg Co, 112 NLRB 1080 (1955), the Board in preferring the voluntary resolution of labor dis- putes, has deferred to arbitration where (1) the proceed- ings were fair and regular, (2) the parties agreed that the proceedings were final and binding, and (3) the award was not clearly repugnant to the purpose and policies of the Act. More recently, in Olin Corp, 268 NLRB 573 (1984), the Board reviewed the case law which arose under Spielberg, and redefined the criteria to be em- ployed in determining when an arbitration award should be honored The Board announced that it "would find that an arbitrator has adequately considered the unfair labor practice aspect of a case if (1) the contractual 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" Id at 574 The Board stated that it would weigh any differ- ences part of its determination under the Spielberg stand- ards of whether an award is 'clearly repugnant' to the Act " Id However, it noted that its "inquiry would not require an arbitrator's award to be totally consistent with Board precedent " Rather, "[U]nless the award is 'palpably wrong,' r.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act" deferral is appropriate . Id Finally, under Olin, the burden of proving the arbitral process defective is im- posed on the party seeking a de novo determination. Id. An examination of the evidence presented to the joint committee which heard and decided Pate's grievance leads to the conclusion that several of the critical ele- ments required by Olin were not met As discussed above, the arbitration hearing focused on whether Pate falsified his timecard to support an other- wise unjustified pay claim and whether Respondent treated Pate more severely than other employees who were, according to Brown, engaged in purportedly anal- ogous conduct What the committee did not hear was any testimony bearing on the number of grievances which Pate successfully filed or the warnings and threats of discharge which were allegedly made to him and others because of his grievances 717 Notwithstanding these significant omissions , Respond- ent argues that the Union's contentions of disparate treat- ment satisfied Olin's command that evidence of the unfair labor practice be presented to the arbitrators in at least a general way Respondent's argument fails to recognize, however, that a bare accusation of disparate treatment, without any reference to the factors giving rise to such conduct, falls far short of the showing required by Olin. Discrimination may be the product of many causes Only when evidence is presented that the discrimination oc- curred for reasons condemned by the Act may a pre- sumption arise that the arbitrators considered the unfair labor practice Since the joint committee was presented with no information bearing on the allegation that Pate was discharged in retaliation for his engaging in protect- ed concerted activities,8 I cannot fairly presume that the joint committee considered the unfair labor practice aspect of the case, since it was not "presented generally with the facts relevant to resolving the unfair labor prac- tice." Moreover, the absence of such evidence from the prior record precludes a finding that the contractual issue before the committee, i e., whether Pate was justly discharged under the parties' collective -bargaining agree- ment, is factually parallel to the statutory inquiry of whether he was terminated for his union activities. Cf. Yellow Freight Systems, 273 NLRB 44 (1985), Chemical Leamen Tank Lines, 270 NLRB 1219 (1984); Altoona Hospital, 270 NLRB 1179 (1984). Accordingly, the Gen- eral Counsel has established that the joint committee's award is repugnant to the Act and that deference to that award would be improper. B Pate's Discharge Violates the Act The General Counsel submits that Respondent's reason for discharging Pate is pretextual , masking its true intent to eliminate a persistent and successful grievant In sup- port of this theory, the General Counsel contends that Pate's version of the events on April 2 should be be- lieved and that the accounts provided by Lockett and Catton are fabricated products of a conspiracy To accept Pate's scenario, Lockett's and Catton's con- trary testimony would have to be discredited However, my observation of these latter two witnesses, together with my review of all the evidence bearing on the events of 2 April and the logical inferences to be drawn there- from, persuade me that Lockett and Catton's accounts were more consistent and credible than Pate's Even without reference to the conflicting testimony of the respective parties, the inconsistent documents which Pate completed on 2 April cast doubt on his tale. Pate's explanation of the discrepancies between the times re- corded on his trip card, driver's log, and Thibodaux's sign-m, sign-out sheets were not persuasive For example, although Pate said a dispatcher urged him to trim 15 minutes from his driving time so as to comply with Fed- eral regulations, he supplied no convincing explanation as to why he did not obviate the problem by resting in 8 See NLRB v City Disposal Systems, 465 U S 822 (1984), where the Supreme Court ruled that the invocation of a right by an individual em- ployee which is rooted in a collective-bargaining agreement is protected concerted activity '718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thibodaux.' He also failed to provide a logical explana- tion for the admittedly, inaccurate arrival and departure entries on the sign-in and sign-out sheet. Pate apparently recognized the incriminating nature of these entries for he exised them on a subsequent trip to Thibodaux.9 In a valiant effort to vindicate' Pate, the General Coun- sel suggests that Pate could not have departed from Thi- bodaux 'at 4:10 a.m. (4:16 clocktime) as Lockett main- tained and still arrive in New Orleans by 5:30 a.m.-the time recorded 'on his trip card. However, on the return trip, Pate was 'driving. empty trailers on roads which were, at that-early morning hour, very likely uncongest- ed.' Under these conditions a . trip' of approximately .65' miles could be completed in 1 houvand 20 minutes. Fur- ther, although there is support in the record (to be dis- cussed further below), that several of Respondent's New Orleans' agents knew 'of Pate's grievance filings, there is no evidence that Lockett 'or Catton' were, aware of his activity in this regard. 'Moreover, I detected no animosi- ty in Lockett's.attitude toward Pate, nor did he seem to be. engaged in a vendetta' against , him. i 0 Lockett ex- pressed himself in a forthright manner; his testimony was reasonable and internally,consistent. -Moreover, both his and Catton's testimony were mutually corroborative. Further, Lockett had good reason' to note Pate's late ar- rival since ' such' a -delay affected his own work. Thus, I conclude that. he reported Pate's delay not- out of a desire to harm a fellow teamster, but rather because he was required to do-s6 in accordance with standard oper- ating procedures. - ' " - Based on the information and documentation which Davis compiled, I conclude that Respondent had reason- able grounds= to suspect that Pate falsified his trip card to show his arrival at Thibodaux at 2 a.m. when, in fact, he clocked in there, at 3:39 a.m. Thus, I cannot agree with the General Counsel that Respondent's motivation in seeking to discipline Pate stemmed-from wholly pretex- tual motives.. • The analysis of, this, case does not end here, however, for even where an„employer., has a legitimate reason for disciplining an employee,-,if an illegitimate, reason exists as well, then the evidence -must be considered under the principles, of Wright ( Line, 25,1 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981);; cert. denied, 455 U.S. 989 (1982). That case holds, that in mixed motive cases such as this, the General,}Counsel bears the initial burden of proving that protected concerted activity was a substan- tial factor which prompted, the discipline imposed by,the employer. I L - ,0 , nce this is'accomplished, the burden shifts to the em- ployer to prove affirmatively that the disciplinary deci- sion .would have been the same even in the absence of the protected conduct. Id.,at 1089. • In proving the elements of his case-in-chief, the Gener- al Counsel submits that Pate's successful grievance `filings Pate probably made these deletions on his next .run to Thibodaux after Lockett told him about the memo he signed for Cation Since Pate was the only person affected by the hours he recorded on these sheets, it is reasonable to infer that he was the person who deleted them 10 Pate suggested that Lockett was angry with him and was now re' taliating because Pate had questioned[ Lockett's assumption of authority in a previous incident. were a significant factor in causing Respondent's antipa- thy toward him. Although Respondent "contends other- wise, there is sufficient record evidence which supports the General Counsel's. position. The record clearly'shows that Pate filed moresuccess- ful grievances than any' other driver' except Cullen and that his grievances were costly to Respondent. It is now well settled that such activity is protected and concerted under the Act. ' • • In spite of Respondent's disclaimer, the evidence also persuades that management was well aware of and dis- pleased with Pate's grievance filing efforts. For example, although Magana insisted that he was unaware' of griev- ances filed by any employee or union stewards, he made a series of contradictory admissions. Thus, on cross-ex- amination he acknowledged hearing shop talk about vari- ous employee complaints. He also conceded that he twice questioned Floyd (the union steward who succeed- ed Cullen), as to whether Pate had grieved the protest letter which Magana issued to him. His inquiries belie his avowed disinterest in such matters. Significantly, Magana disclosed that he engaged in daily conversations with his superior, Assistant Terminal Manager Lacey, and that it was during one such conversation shortly after _2 April that he heard of Pate's misconduct. It was only,' after learning of management's investigation of Pate's,behavior that Magana went to considerable lengths to track' Pate's schedule on 8 April, and then issue him,a'written ,warn- ing. This is not to say that I doubt Magana's account •of Pate's activities on 8 April. Rather, the4,point here is that it is doubtful that Magana would have investigated Pate, 's schedule so meticulously if he was, , not aware of Re- spondent's plan to terminate him, since, Pate, had, not been disciplined throughout his 7-year career ,with Ryder. Magana's reluctance to admit knowledge of em- ployee grievance filing activity must be'assessed in.light of Christianson's _ concession, on cross-examination- that Cullen broadcast to everyone, when he intended to file grievances. Such announcements, would In all likelihood include. grievances, which-as stewards -he processed'-for Pate. A grievance which Cullen filed,on 11 March and which is a=part of the record in this case (see G.C. Exh. 11(x)) provides strong evidence,.of management's hostili- ty to such activity. Cullen's,grievance -states that Chris- tianson told him that supervisors, were "going, to ' take care of him" and` were getting "sick of his filing griev- ances." I credit Cullen's account of this episode, first, be- cause it was written close, in time to the event and not for,purposes of litigation, and second, because Cullen did not impress, me as a man who would bother to submit, a grievance about a nonevent. i i Finding that, Cullen testis feed truthfully as to Christianson's remarks, I am -con- vinced that ,he also should ,be credited as to his statement that Magana told him that his reassignment from New Orleans to. Nashville saved him from -;dismissal. With Cullen removed from the • scene the major grievant was, of course, Pate. - • ' , If Magana and. Christianson were aware of Pate's per- sistent and lucrative grievance' filing' efforts, it is fair'to 11 Christianson's version of this incident was not convincing ' RYDER/P.I.E. NATIONWIDE 719 assume that Terminal Manager Davis was equally well informed particularly since it was his responsibility to re- solve such complaints initially. Davis claimed he did not know about any grievances which Pate had filed in 1983 but his denial did not ring true. In order to resolve Pate's 1984 grievances, Davis would have been compelled to learn of the agreement with the Teamsters regarding run-around trips upon which Pate's protests were based. It is impossible to believe that he would not also have learned at the same time of Pate's successful grievances previously filed under this agreement. Thus, Magana's, Christianson's, and Davis' efforts to conceal their knowl- edge that Pate had filed and prevailed in a substantial number of grievances gives rise to the very result they tried to avoid; that is, a reasonably based inference that Respondent was well aware of and hostile to Pate's con- certed activity. This conclusion does not rest on infer- ence alone, for I credit Jordan's testimony regarding Ma- gana's admission that "Pate's grievances got him." 12 This remark dispels any lingering doubt about Respond- ent's animus and motive in discharging Pate. As further proof of Respondent's discriminatory mo- tives, the General Counsel also argues that Respondent treated Pate disparately by discharging him when other drivers suffered nothing more than pay deductions for similar conduct. The Respondent counters that there is no comparison between Pate's act of claiming pay for a period of time when he was not working and the con- duct of other drivers who failed to adequately explain their terminal delays. Although Pate's conduct on 2 April may not be identical with the behavior of other drivers involved in undue delays, neither are the situa- tions as dissimilar as Respondent contends. In both sets of circumstances, Respondent rejected explanations which Pate as well as other drivers gave for their work- ing hours. It is important to note that in its termination notice Respondent discharged Pate for dishonesty in claiming 1.6 hours of working time rather than the one-half hour to which he was entitled. It was only at the hearing before me that Respondent characterized Pate's miscon- duct as dishonesty for theft of time, an offense for which according to a number of witnesses, no other employee had been terminated. Whatever name Respondent chose for Pate's offense, it nevertheless imposed a draconian sanction upon an employee with a 7-year unblemished record. 13 Upon evidence showing that Pate was at least one of the most persistent and successful grievants in Ryder's New Orleans work force, that Respondent's supervisory personnel were aware of and opposed to such activity, and treated Pate more harshly than other employees for conduct not vastly different in nature, I find that the General Counsel has established a prima facie case that Pate was discharged for discriminatory reasons. The record contains cumulative and uncontroverted evidence that Respondent had never before discharged 12 This episode is discussed more fully in the next section of this deci- sion 13 This excludes the 12 April warning letter which I believe was issued in part to bolster Respondent's case against Pate an employee for conduct such as Pate's. In defense of its unprecedented decision to fire Pate; Respondent asserted that he was the first employee whom Davis caught in the act of stealing time. It is difficult to reconcile Davis' contention in this regard with Lockett's testimony that on at least six occasions over the past several years he reported other employees to Catton who, like Pate, were over an hour late in arriving at Thibodaux. Catton also confirmed that he then reported such incidents to Davis. Yet, Respondent produced no evidence that it investigat- ed or followed up on these other late-arrival incidents in order to catch others "in the act." Thus, while Pate's late arrival was not unique, the discipline imposed on him was extraordinary. Although Respondent bore the burden of proving that it would have imposed the same discipline on Pate even in the absence of his concerted activity, it made no effort to explain why Pate was treat- ed so much more severely than other tardy drivers. Respondent also failed to provide a convincing expla- nation for the delay which preceded Pate's discharge. Although Davis learned of Davis' wrongful conduct on 2 April, he said nothing to him for more than 3 weeks, allegedly out of a sense of fairness. But in this context, silence only served to further implicate Pate in wrongdo- ing. Thus, it was the very antithesis of fair play. If Davis had discussed the matter with Pate, it is possible that Pate might have agreed to forfeit $14 for the 1.1 hour at issue. He then would not have "converted" his employ- er's money, the act which Davis claimed was critical to fording Pate guilty of dishonesty. Moreover, Davis ap- parently was determined to fire Pate before he had an opportunity to present his side of the story, for the ter- mination notice was prepared before the discharge inter- view began. Although Pate was discharged for the single act specified in the dismissal memo, at the hearing, Davis attempted to portray Pate as an inveterate malingerer. By failing to provide any concrete details as to alleged complaints about Pate's performance,, Respondent's effort to denigrate Pate's work record appears to be an after- thought, hastily contrived to bolster its disciplinary deci- sion. Based on the all the foregoing considerations, I con- clude that although Pate was involved in, wrongful con- duct, Respondent has failed to meet its burden of prov- ing that he would have been terminated even in the ab- sence of his protected concerted activity. It follows that, in firing Pate, Respondent violated Section 8(a)(3) and (1) of the Act. C. Conclusions as to Alleged 8(a)(1) Violations The General Counsel urges that the Respondent vio- lated Section 8(a)(1) of the Act through numerous threats and warnings made to Pate and other drivers re- garding grievance filing activities. For the reasons set forth below, I find that only the testimony of one of these employees, Kenneth Jordan, survives scrutiny. As discussed in the- preceding section of this decision, I found that Pate was less than truthful in recounting the events that occurred on 2 and 8 April. Even apart from his lack of candor as to, these incidents, however, it is difficult to credit his testimony with regard to the state- 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments allegedly made to him by Magana and Christian- son. I find it peculiar that Pate did not grieve about any of these purported statements, particularly the one by Christianson which supposedly was made in the presence of a number of witnesses including the union steward. Pate was an experienced grievant and certainly had the example of Cullen who filed a protest when he was threatened because of his concerted activity. Even more difficult to comprehend is Pate's failure to mention Ma- gana's and Christianson's alleged threats and warnings to either his business agent or to the joint committee which was to decide his employment fate. These lapses coupled with other flaws in his testimony compel me to conclude that the statements were invented. For much the same reasons, I am unable to credit Estes' testimony regarding the warnings and admissions which Magana ostensibly made to him concerning Pate. Certainly, if Magana had made such patently unlawful remarks, Estes, a former steward, would have alerted Pate. Yet both Pate and Estes remained silent about such comments until several months after the discharge was upheld. I take a different view of testimony offered by another driver, Kenneth Jordan. Jordan, who was still driving for Ryder at the time of this hearing, was in the unenvia- ble position of having to bear witness adverse to his em- ployer's interests . Nevertheless, he testified in a credible manner. He did not concoct a host of hostile remarks by supervisors. Rather, he related only one extremely signif- icant conversation with Magana which gave every sem- blance of truth since it was accompanied with certain homely details. Moreover, in response to a question put to him on cross-examination, Jordan indicated in a spon- taneous and unrehearsed manner that Pate did not try to contact him and solicit his testimony. Rather, Jordan ini- tiated the contact, calling Pate and attempting to tele- phone the union business agent only after his conversa- tion with Magana. These circumstances convince me that Magana indeed told Jordan that Pate's "grievances got him." This remark not only discloses Respondent's un- lawful motivation, it clearly constitutes a violation of Section 8(a)(1) of the Act. See Heck's, 273 NLRB 202 (1984). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 270 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by discharging Clarence Eugene Pate on 25 April 1984. 4. Respondent violated Section 8(a)(1) of the Act by advising its employee, Jordan, that Pate was discharged for his grievance filing activity. 5. The unfair labor practices described in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist therefrom and from like or related conduct. In addition, Respondent will be required to offer reinstatement to Pate as a driver and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).14 Also, Respondent will be required to remove from its files any reference to Pate's unlawful termination and to notify him in writing that evidence of that termination will not be used as a basis for future personnel action against him. Sterling Sugars 261 NLRB 472 (1982). Finally, Respondent will be re- quired to post an appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER The Respondent, Ryder/P.I.E. Nationwide, Inc., New Orleans, Louisiana, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for engaging in union activity, including the filing of grievances pursuant to a collective-bargain- mg agreement. (b) Advising any employee that other employees were terminated or disciplined for engaging in said protected activity, including the filing of contractual grievances. (c) 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 necessary to effectuate the policies of the Act. (a) Offer Clarence Eugene Pate immediate and full re- instatement 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 this decision. (b) Remove from its files any reference to the unlawful discharge and notify Pate in writing that this has been done and that the discharge will not be used against him in any way. (c) 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- 14 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 15 If no exceptions are filed as provided by Sec 102.46 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 RYDER/P.I.E. NATIONWIDE essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its jobsite in New Orleans, Louisiana, copies of the attached notice marked "Appendix."" B Copies of the notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are cus- tomarily posted at Respondent's trucking terminals locat- ed at New Orleans, Louisiana, Thibodaux, Louisiana, etc. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that insofar as the amended complaint sets forth allegations which have not been found, these allegations are dismissed. is 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 721 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 discharge or otherwise discriminate against any employee for engaging in union activity in- cluding the filing of grievances pursuant to a collective- bargaining agreement. WE WILL NOT advise any employee that other employ- ees were terminated or disciplined for engaging in union activity including the-filing of contractual grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you under Section 7 of the National Labor Relations Act. WE WILL offer to reinstate Clarence Eugene Pate to the job which he held before he was unlawfully dis- charged without prejudice to his seniority or other rights and privileges and WE WILL make him whole, with inter- ests, for any loss of pay resulting from his unlawful ter- mination. WE WILL remove from our files any reference to Pate's termination, and notify him in writing that this has been done and that evidence of his termination will not be used as a basis of future personnel action against him. RYDER/P.I.E. NATIONWIDE, INC.