Burger King Corp.

BURGER KING CORP. Distron, a Division of Burger King Corporation and Frank Guidice. Case 29-CA-10618 10 April 1986 DECISION AND ORDER BY MEMBERS JENKINS, BABSON, AND STEPHENS On 26 November 1985 Administrative Law Judge Robert T. Snyder issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a reply brief. 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 conclusions 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, Distron, a Division of Burger King Corporation, Miami, Flor- ida, and Syosset, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings. 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 Alison C Fairbanks, Esq., for the General Counsel. Grady B. Murdock Jr., Esq., and Heather Briggs, Esq. (Mack, Caldwell & Steckel), of Miami, Florida, and At- lanta, Georgia, for the Respondent. Bruno Baratta, Esq., of Mineola, New York, for the Charging Party. 227 and Helpers of America (Local 707 or the Union), and engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection, in violation of Section 8(a)(1) and (3) of the Act. By answer filed on 22 February 1984, and orally amended at the opening of hearing, Respondent admitted the suspension and subsequent discharge, but denied the conclusionary allegations of the complaint. On the entire record, including my observation of the demeanor of the witnesses, and after careful consider- ation of the posthearing briefs filed by Respondent and the General Counsel, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent, a Florida corporation, with its principal office and place of business located at 9200 South Dade- land Boulevard, Miami, Florida, maintains various other places of business in virtually every State of the United States, including one at 100 Prudential Plaza, Syosset, New York (Syosset facility), where it is and had been at all times material, continuously engaged in providing warehousing and distributing services to Burger King Corporation and to independently owned franchises. During the year ending 31 December 1983, which period is representative of its annual operations generally, Burger King Corporation of which Respondent is a divi- sion derived gross revenues in excess of $500,000 from the retail sales of food products. During the same year, Respondent in the course and conduct of its business, purchased and caused to be transported and delivered to its Syosset facility food products and other goods and materials valued in excess of $50,000, of which products goods and materials valued in excess of $50,000 were transported and delivered to its facility in interstate com- merce directly from States of the United States other than the State of New York. Respondent admits, and I find, that Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find that Local 707 is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. This case was heard by me on 6, 7, 8, 11, and 21 June 1984 in Brooklyn, New York. The complaint, which issued on 8 February 1984, alleges that Distron, a Division of Burger King Corporation' (Distron or Respondent), first sus- pended and then discharged its employee, Frank Gui- dice, and thereafter failed and refused to reinstate him, because he joined and assisted Local 707, International Brotherhood of Teamsters, Chauffeurs, Warehousemen ' This name appears as amended by motion at the opening of hearing A. Background The Respondent performs warehousing and distribu- tion services for Burger King Corporation from 18 cen- ters located around the country. Distron's Syosset facili- ty has performed these services for some years, in a geo- graphic area bounded on the east by Long Island, on the west and south by Staten Island and northern New Jersey, and on the north by Connecticut. It purchases the foodstuff and other goods from suppliers which it stores and warehouses and then delivers and distributes daily on order to both retail outlets and restaurants owned by Burger King and restaurants owned and oper- ated by others under renewable franchises granted by the Burger King Corporation. 279 NLRB No. 29 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Throughout its history Respondent has remained non- union and its employees unorganized. Its philosophy con- cerning labor unions, described in a pamphlet last revised in April 1983, which also includes a driver job descrip- tion and other information for employees, is that they are unnecessary under Distron's policy to do what is right for employees, and that continued management of its business to the mutual benefit of its employees, custom- ers, and stockholders with integrity and competence will earn freedom from collective bargaining with any out- side organization. At all material times, Respondent employed a comple- ment of regular tractor-trailer drivers, supplemented by so-called extra-board drivers brought in for busy periods and for relief of regular drivers during their holidays, va- cations, and other leaves, as well as regular warehouse- men. It appears that extra-board drivers, although not el- igible for employee benefits, and lacking seniority rights as well, can work a fairly regular 4-day workweek. It is normal for most daily tractor-trailer loads to be manned by two drivers, to assist each other in the driving and unloading of the large loads, and to maintain security over the product during the course of delivery. For a period exceeding 8 years, from June 1975 until his discharge on 11 July 1983, Frank Guidice was em- ployed by Respondent as a tractor-trailer operator out of its Syosset Center, making deliveries to Burger King- owned and franchised restaurants. Until the incident sur- rounding his discharge, Guidice had no record of any reprimand or discipline relating to his work performance. He had received two awards issued by Respondent, one a safe driver award over a 5-year period, and the other a driver of the month award for a positive attitude toward his job and the customers. B. Guidice's Union and Other Concerted Activities in the 6-Month Period Preceding His Discharge Until the late 1970s all Respondent Corporation's driv- ers were paid on the basis of the miles they drove and stops they made. By 1978 or 1979, the Company was starting to introduce payment by cubic feet of truck load, as well as mileage and delivery stops, into a number of its distribution centers. This so-called cube pay system was finally instituted for all deliveries made out of the Respondent's Syossett Center in January 1983. On either 13 or 15 January 1983, Edward Johnson, Respondent's general manager, posted a notice at the fa- cility advising the drivers that they all were now to be paid under the cube pay system and that Johnson would be available until they all returned from the road that day to discuss their new pay scales. In addition to apply- ing cube pay to all routes, a 6-percent increase in rates had also been obtained under an annual review. Guidice, along with his then codriver, Bob Mara, and two others went together to see Johnson. According to Guidice, when Johnson tried to tell the men about the new pay raise, Guidice said it was not a pay raise, it was a structural change in the pay scale. Guidice then showed Johnson that had the new pay system been ap- plied to the two runs he had completed that week, he would have lost approximately $60. Johnson did not dispute that Guidice had protested in the manner described. He noted that all the drivers in the group were upset, but noted that Guidice, in particu- lar, was insisting that Distron was putting the system in because it was going to lay off drivers. During cross-ex- amination, Johnson at first denied, and then after being confronted with his pretrial affidavit stating to the con- trary, agreed that Guidice and Mara were the most vocal in expressing their complaints to the new pay system, adding that between the two, Mara was in fact more gentle-voiced in expressing them. Guidice also protested twice to Regional Personnel Manager Mark Panarisi later the same month. During a second visit to the Syossett facility, between 19 and 22 January, Panarisi made himself available to drivers who had questions about the new pay system. Guidice testi- fied that he spoke to Panarisi about the structure of the pay and his concern about the money loss and that he was not happy about it. Panarisi replied that this was the system, that it had worked in other centers that had been using it, and to give it a chance and it would work there. The following day, Guidice began another conversation with Panarisi in the driver's office in the rear of the warehouse with his partner, Bob Mara, present but that it continued on the floor of the warehouse between only the two of them. Guidice had walked in to begin work and heard Panarisi tell Mara about the difference in pay and how the new system was going to work Guidice once again said it was not a pay raise, but a restructur- ing, and it resulted in a loss of money for the drivers. Panarisi replied in a loud voice, "This is the system and that's the way its going to be." By this time they were alone outside the drivers' room. Guidice now told Pan- ansi he was not happy with it, he would not stand for it, and that he would be a union threat to the Company. After being refreshed concerning the name Al Hanna, Guidice added that he had also told Panarisi that they could consider him another Al Hanna as a union rep. Hanna in the past led two other union campaigns among Distron employees. Panansi responded that was too bad, he was sorry to hear that because he had been led to be- lieve by management in Guidice's office that his working record was always of good quality, that he had never been any trouble to the Center before and that Guidice should not put himself and his family under the pressure of being a union leader. Panarisi recalled only one conversation with Guidice in January 1983. He implied Guidice had argued against cube pay. He denied that at any time had he made refer- ence to the consequences to Frank and his family of en- gaging in union activities. Panarisi did not deny that Gui- dice had informed him he would be a union threat to the Company. On cross-examination Panarisi now acknowl- edged directly that Guidice had expressed the view that drivers would be hurt by the system in a second of two conversation they had held. Panarisi now also denied that Al Hanna's name had come up. He also noted that no matter what he said, he could not convince Guidice the drivers were not going to be hurt. Panarisi's unwillingness or inability to specify the nature of Guidice's reaction to the cube pay system, until BURGER KING CORP. pressed to do so on cross-examination, as well as internal inconsistences which appear in his testimony regarding later conversations he held with Guidice following Gui- dice's suspension in July 1983, to be discussed infra, con- vinces me that Panarisi was not telling the truth when he denied responding to Guidice 's union threat comment, as charged by Guidice . Significantly, Panarisi did not deny that Guidice made a union-related comment . Guidice's statement of union adherence is consistent with a later nondisputed statement he made after his discharge of his intent to return after 1 year from the date the election had elapsed and is also consistent with his outstanding advocacy of the Union once the union campaign had gotten underway. Guidice was loathe to allow his feel- ings to remain unexpressed , in this case his objections to the new pay system, and it would have been natural for him to couple his own statement of intentions regarding his future union role with the name of the employee, Hanna, who had been the most active union advocate in two past campaigns. Approximately a week later, at the end of January 1983, Guidice, accompanied by two other drivers, Bob Apolant and Davy Babis, visited the Local 707 hall. Ralph Alimena, a representative and vice president of the Union, met with them. The men expressed the con- cerns they had at the job, particularly, the implementa- tion of the new pay system, and sought union representa- tion and better terms. In turn, they received designation cards and Guidice, alone, distributed approximately 12 cards among fellow drivers which were signed and re- turned to him. At the time Distron employed approxi- mately 14 regular drivers and 8 to 10 full -time ware- housemen. Driver Doug Babis confirmed that Guidice not only distributed the cards but also spoke up in favor of the Union with fellow employees both inside and outside the Syosset facility, as well as telephoning employees and delivering union literature to employees' homes on the Monday prior to the union election. Following the filing of a representation petition by Local 707 on 9 February 1983, and the entry of a stipula- tion for consent agreement between the parties, a Board- supervised election was conducted among Distron's driv- ers and warehousemen on 23 March 1983 . Guidice acted as the Union's observer during the election. Among ap- proximately 30 eligible voters , 15 valid votes were cast against Local 707, 8 were cast in its favor , and there were 7 challenged ballots. As a result, the Union lost and no objections were filed. Prior to the election, Distron conducted two meetings among its Syosset employees. The first was held on a Sunday about 3-1/2 weeks before the election at the Pickwick Hotel in Plainview , New York. Present for Re- spondent were Johnson, Steve Sperling , vice president, director of personnel, and Jim Watson, operations man- ager at the Syosset Center. Ninety percent of the drivers and warehousemen attended. Sperling and Johnson addressed the men . Sperling dis- tributed articles critical of the Union's financial affairs, referred to Teamsters International President Jackie Presser's intimidating tactics, and referred to various public records in the course of criticizing Local 707's 229 role in dealings with other employers . He also expound- ed on the Respondent's antiunion philosophy contained in its pamphlet distributed to new employees . Johnson spoke about cube pay and how it is computed. Guidice recalled talking up in opposition to the pay system and expressing concern for better benefits for the men and their families. At one point Guidice directed a question to Sperling, wanting to know why the Compa- ny always had to have the employees put into a corner to threaten them with a union before they would start to listen to some of the employees' requests. Guidice re- ferred to better benefits, money hikes, and job security. According to Guidice , Sperling responded by saying, "I hear what you're saying and I feel as though what you're saying is true and I would like to ask yourself and the men to please give us the chance to straighten out some of these things without the Union ." Sperling was not called by Respondent as a witness, Johnson could not recall any remarks by Guidice, and I credit Guidice on this interchange. As recounted by Guidice , other employees, notably Sal Palillo and Bob Mara, asked questions as well , not di- rectly related to the union effort , but about the structure of the pay system and how earnings were going to be determined, based on load and mileage, loading of the truck, and other duties of the job . Johnson responded to these concerns, expressing the view that the pay system was going to work and asking the men to give it a chance. At one point, according to Guidice, Johnson walked toward him, pointed at him, and in a loud voice yelled out, "You can listen to Frank Guidice or you can listen to what I'm telling you." Guidice then stood up and told Johnson he did not appreciate Johnson singling him out. Johnson could not recall Guidice making any state- ments at this meeting. When asked specifically whether he pointed at Guidice and said, "You can believe him or me," Johnson at first made a nonresponsive comment before denying he had done so. Doug Babis corroborated Guidice concerning the es- sentials of the confrontation . Babis testified that at the end of the mileage discussion Johnson strolled toward Guidice, made a reference that "Well you can listen to Frank Guidice or you can listen to me," and seemed kind of excited, his voice was raised, he strolled a couple of steps towards Guidice with his arm extended and finger pointing, and gestured , and looked him right in the eye. Babis also confirmed that Guidice had been an active participant at the meeting and exchanges had been heated. Given the manner in which Guidice had confronted management earlier with its failure to respond to em- ployee concerns until the men had sought union repre- sentation, and in light of the nature of Johnson's demean- or on the witness stand of a somewhat evasive and de- fensive character, and Johnson's admitted objective at Guidice's exit interview of shocking him into recognition of his responsibilities , as will be discussed infra, I find that Johnson did pick out Guidice for special concern and in order to make the choice of cooperation with the 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company more vivid for the assembled employees, as testified to by Guidice and Babis. A second meeting was held by Respondent with its work force within a week or two after the first , this time in the warehouse at the Syosset facility. Johnson again was present for management , along with Mark Panarisi, regional personnel manager eastern division , under Sperl- ing, Joe Bisignano, vice president Distron division east, and Mark Eisenberg, controller. Most of the drivers and warehousemen were present. Johnson opened the meet- ing by explaining its purpose was to show the employees where Distron expected to be in terms of its business in the immediate future and also down the road over the next 2 to 5 years. Johnson proceeded to show slides which were projected on a screen . The immediate sub- ject was productivity . However, he never got past the third slide. By that time, both Guidice and Babis had raised questions about the standard of employee unload- ing of 300 cubes per hour which the Company used in computing pay under the new system. An extended col- loquy developed between Johnson and the two employ- ees about the standard . At one point Johnson asked them to tell him what route they had bid on, and he would set the standard at the pace at which they were performing and work with them to get them to meet the standard. At this point, one other driver , Paul Heidt got very ex- cited and made pointed comments critical of Guidice, ac- cusing him of being too young to appreciate his decent job. With that, Bisignano jumped up, told Johnson they had had enough, and the meeting was terminated. Earlier, during Johnson's presentation, before matters became heated, Guidice credibly testified that Bisignano had remarked to him , "Don't look so serious." This second preelection meeting called by Distron conflicted with a union meeting called the same date and hour for interested employees. When this conflict was brought to Panarisi's attention by an employee, Bob Mara, who commented that what he did thereby was ob- viously right for the Company to do , but not morally right, Panarisi's reply was "We do whatever we got to do to win." It was because of this conflict that Guidice, with others, arranged for home distribution of a union in- formation leaflet to employees. On Memorial Day 1983, during a conversation Gui- dice held with Jim Watson, while they were alone in back of the warehouse getting coffee, Guidice comment- ed that he had opportunities toward employment in the City of New York with the fire department . Watson said, "Well, I don't know, that's a pretty tough job." Guidice then said in a kind of joking way, "Well, I can always either work for the fire department on a hard job or stay on at Distron for the next ten years with the easy life." At that point Watson looked at Guidice and said, "I don't think you'll be working for this company for an- other ten years, Frank." At this point, Guidice felt the interchange between them had cooled off and Guidice left. Watson did not respond to this testimony while on the witness stand and I credit Guidice 's report of this con- versation. C. Events of 4 July 1983 The Fourth of July 1983 was an assigned workday for Guidice but his regular partner at the time was off. He was scheduled to go out with Ignas Olszewski, (Iggy) a so-called relief or extra-board driver . Guidice had worked with Iggy on fewer than five occasions in the past. The trailer, typical of the Distron units, was 43 feet long, which, for loading purposes , had been divided into three compartments, using movable walls. These were a freezer section, a cooler compartment holding produce, and a dry compartment containing paper goods and other products not needing temperature control. On completion of their paper work, Guidice and Iggy opened the cooler door of the loaded truck to load a handtruck and, as they did so, cases of cheese fell out, one or more hitting Iggy on the leg. A warehouseman on duty confirmed to Guidice that the truck was over- loaded and improperly packed . After reporting the con- dition of the truck and Iggy's accident, the men pro- cured extra load locks and attempted to secure the load in place with them. They then proceeded to the first of 13 scheduled stops,2 with Iggy driving. Iggy backed the truck into the assigned delivery area away from customer parking on the lot at store 2700,3 on Bay Street and Victory Boulevard in Staten Island, New York. As the men opened the cooler doors, once again packages and cartons came tumbling out onto the parking lot; one large Heinz bulk pack containing ketch- up containers split open and splattered its contents onto the lot. Guidice went inside the store and secured per- mission of the manager to use his telephone. It was a wall pay phone behind and to the side of the customer's counter near the manager's office area and for the use of store personnel. Guidice called the warehouse and got Tony Rizzutto, the warehouse supervisor on duty. Guidice explained that not only had produce tumbled out of the trailer but, because of improper packing and the bumps of the ride, numerous cartons still in the cooler compartment had been crushed, flipped over , and strewn about out of the original packing order making it extremely difficult if not impossible to locate items for delivery . Guidice asked permission to return the trailer and have it reloaded by the warehouse. Rizzutto explained all the warehousemen had gone home because of the holiday , and soon the office staff would be leaving , and he would be locking the place. After Rizzutto advised Guidice that he could not au- thorize the return of the truck , Guidice told Rizzutto he did not have the telephone numbers of management per- sonnel normally provided drivers for contact in an emer- gency, and he wanted to reach Watson about the prob- lem. Rizzutto told Guidice he would try to reach 2 The truck had originally been scheduled for 16 stops but because of an excessive load, 3 of the stops had been pulled before the truck was loaded early on 4 July The trailer on this run was one of the largest uti- lized by Distron-a so-called high box (12-foot) trailer 9 Although the various witnesses and this decision refer to them at times as stores, they are retail restaurants where Burger King approved products are sold for on and off premises consumption BURGER KING CORP Watson and the men should try to restore order and make the delivery as best they could Guidice said he would return to the trailer and try to make the delivery. Because a good portion of the produce for the first de- livery happened already to be strewn on the lot, Guidice and Iggy were able to make most of the delivery to the restaurant . At this point Guidice received a call back from Rizzutto. Rizzutto reported that Watson had said for the men to do whatever they had to do to work around the problem and they would be compensated for whatever time was involved. On Rizzutto's call, he reached someone employed in the store, probably the manager . No complaint was made to Rizzutto about the drivers' conduct or the manner in which the delivery was being made. At this point the men returned to the truck. They completed the unloading of a substantial portion of the remaining produce in the cooler. Because many contain- ers had been crushed and broken, as they now com- menced to reload they saw they would be unable to ar- range it back in the trailer in an orderly, order of deliv- ery fashion. Guidice had also never previously worked as a warehouseman, although Iggy had spent over a year as a warehouseman for Distron before his assignment as a casual driver. Guidice went back inside the store and called Rizzutto again. Guidice now pleaded with Riz- zutto, "If you call Jimmy please let me talk to him, I've got to talk to him and get some instruction on this." Riz- zutto gave Guidice Watson's telephone number without argument Guidice called collect, advising the operator that it was an emergency call from a driver. Mrs. Watson, who received this information from the opera- tor, reported after a short delay that Mr. Watson would not accept the call, that there was somebody in the warehouse to contact to take care of the problem. At this point Guidice called back Rizzutto, told him they had an enormous problem, and that it was clear there would be shortages at future stops which would have to be redelivered even with their best efforts. Rizzutto told Guidice, "All I can ask you to do is the best you can do, Jimmy will take care of the problem on the next delivery date." Iggy had been identified on the record as being present in the hearing room on 1 day. He had been sub- poenaed by the General Counsel but not called as a wit- ness. Neither did Respondent seek any testimony from him. During rebuttal, Guidice retook the stand following the receipt in evidence of a management report of a meeting with Iggy following the events of 4 July at which Iggy criticized the attitude of Guidice at the first store and his manner of reloading the trailer before pro- ceeding to the succeeding stops. Guidice testified credi- bly that during the reloading process Iggy repeatedly threw merchandise up to Guidice who was standing in the trailer without regard to its condition or contents. Iggy's conduct led to damage of certain products on the trailer. Respondent did not seek to rebut Guidice' s testi- mony in this regard. Guidice also testified without rebut- tal from any eyewitness that he never threw merchandise and was not loud or boisterous in his behavior while dealing with the problems with which he was confronted at the Bay Street store on 4 July. Neither did Guidice 231 nor Iggy disrupt the operations of store 2700 by tying up its parking lot while engaged in the reloading and un- loading operations there. The drivers completed delivery to the Bay Street store and proceeded to the next stop. They had spent approxi- mately 2 hours and 45 minutes at the first stop and it was now around 4 p.m. The drivers' trip report for 4 July 1983 shows shortages of two cases of brownies and, among produce in the cooler, only one case of pita bread not delivered to that first restaurant. Guidice and Iggy proceeded to make deliveries to the remaining five Staten Island stores on the route of 80 to 90 percent of the freight invoiced. Those products which were not delivered consisted of items which the men could not locate on the truck. Guidice explained to the managers that those items shorted, because of the prob- lems he was having in locating them on the truck, could either be delivered on a future trip or, if located at a later stop, could be left for pickup at the last stop in the Staten Island district. Some of the managers said they could borrow missing items from another store the fol- lowing day; others agreed to accept Guidice's offer. However, none of the missing freight was discovered by the last stop in the district. At the last Staten Island stop, the men noticed that the exterior lights were malfunctioning. They decided to proceed to the next stop, a store in Bayonne, New Jersey, while it was still light enough and where night delivery would be difficult and a burden on the drivers and the Company. They drove to Bayonne, made the de- livery, and then, lacking the telephone numbers normally available on the truck for Ryder Rental Agency which services the trucks and after making emergency calls, re- ceived a return call from Ed Johnson. Guidice explained the electrical problem with the truck, as well as the load- ing and delivery problems and spoke about Watson's not accepting his emergency call. Johnson expressed concern and surprise and said he would talk to Watson about it. He also said he would get them service somehow . Subse- quently, Guidice was contacted by Ryder. After a sub- stantial lapse of time, a Ryder service vehicle arrived and made a temporary repair to the electrical system. Guidice remained in contact by telephone with the Syos- set facility, at one point informing the night warehouse supervisor on duty that, although he was running close to the maximum 15-hour limit under ICC regulations for continuous driving duty, having less than an hour to bring in the truck, he could lay over, and after 8 hours off duty, continue making the deliveries of freight still on the truck to the remaining six stops. Guidice had done this on a number of occasions in the past when weather conditions created emergencies stranding the truck. The supervisor declined Guidice's offer. Guidice and Iggy returned with the truck to the Syos- set facility about 2:45 a.m. on 5 July. They both filed for 2-1/2 hours' pay in connection with repacking the cooler compartment of the truck. These claims were subse- quently paid On his return to the warehouse early on 5 July, Gui- dice asked Al La Luna, the night warehouse supervisor, why there were so many shortages lately. La Luna said 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was because of the lack of ability of the men in the warehouse to load properly and having too many part timers while regular men were on vacation . Guidice also obtained from La Luna the information that although 300 cubes was a very good load for the cooler compart- ment, his trailer on 4 July held 417 to 419 cubes in that compartment. La Luna was not called to dispute Guidice and I credit Guidice's testimony here. D. The Events of 5 July On 5 July 1983 Joseph Anghelone, an executive with Consumer Food Services, called Distron to complain about shortages on deliveries of product ordered for 4 July, as well as the initial unwillingness of the driver to deliver a product which was finally sighted on the truck by the manager . The stores involved were stores 2700 and 1075, the first and second on the route handled by Guidice and Iggy the day before. This complaint was made first to Mark Eisenberg, Distron's controller. Ei- senberg reported this call to Johnson who was out of the office in Massachusetts. Eisenberg testified he then also prepared on 5 July a memorandum to Johnson detailing the complaint. Although admittedly unaware of the name of the driver involved from Anghelone's statement of the problem, or from the trip report which list the names of both drivers, Eisenberg identifies the driver in this memo as "Frank." Eisenberg subsequently acknowl- edged that he only learned that the driver involved was Guidice at a management meeting about the problem he attended on 7 July, 2 days later. As a consequence of this major discrepancy, Eisenberg's report of the incidents of 4 July is certainly placed under a serious cloud of doubt. This discrepancy supports an interpretation of the date of the preparation of Eisenberg's memo as being 7 July after Johnson's return and management , for the first time had the opportunity to document its case against Gui- dice. Anghelone's concern, expressed later in the day to Johnson, was that, given the shortages that were occur- ring between January and July 1983, this was the straw that broke the camel's back. (A number of prior letters and one subsequent letter, in August 1983, from Anghe- lone to Distron itemize recurring complaints of shortages in delivery to Consumer Food Services outlets and at least one also criticizes drivers leaving products on the truck undelivered and making deliveries at inappropriate times, such as the lunch hour, when the store managers could not monitor delivery. Consumer Food Service's dissatisfaction with Distron's service on deliveries had even led to termination of their business relationship for a period of 3 or 4 months in 1981.) From January to July 1983, Anghelone had many conversations with Johnson about the shortage problem. On this occasion, Consumer Food, after extensive prior planning on notice to Dis- tron, was instituting a salad bar at its stores on 4 July. In his letter to Distron dated 5 July, which Anghelone dictated and signed that day, he refers to shortages of items designated for the salad bar. Anghelone attributes these shortages to the actions of the driver in refusing to locate these items . However, in the next paragraph he describes shortages arising from products-mayonnaise and ketchup-damaged in transit . Further, although making reference to the driver having continually com- plained that the truck was improperly loaded at the warehouse, he does not characterize the driver as loud or boisterous, tying up his store's parking lot or tele- phone, or interfering with the store's customers or oper- ations-all claims subsequently asserted against Guidice by Distron's management as valid criticisms of his con- duct on this occasion and made for the first time, in part, by Anghelone in his telephone conversation with John- son before he dictated his letter. The circumstances under which Anghelone testified to the specifics of the "driver's conduct" in his 5 July con- versation with Johnson bear some scrutiny. When first asked about this conversation, Anghelone focused on the history of shortages and this incident being the straw that broke the camel's back. Only incidentally did he refer to the "performance of the driver" in the most gen- eral terms. (Tr. 454.) It was only later, in continued direct examination after the noon recess, that Anghelone added his comments about the driver's negative attitude, in two respects: one, customer exposure to his loud and boisterous manner on the telephone; and two, the driv- er's reluctance to look for the products shorted because of the way the truck was loaded or the product was in disarray. Although the second was referred to in the letter, the first was not. In his first version of the conversation, Anghelone also suggests that Johnson come to his office on 8 July to fur- ther discuss the matter after discussing it with his own people, and that Anghelone would immediately docu- ment these visitations to him. This comment, as well as Anghelone's failure to include specific items of custom- ers exposed to behavior in his 5 July letter, suggests, and I find, that Anghelone did not specify the unidentified driver's conduct in detail in the 5 July telephone conver- sation. It is apparent that by the time of trial Anghelone was taking the opportunity of seeking to stengthen Re- spondent's defense, at least in part, because of an interest in obtaining renewal of its franchise agreements, a number of which had or would shortly expire, and were subject to renegotiations of their terms including the identity of the franchisee-in this case a number of indi- viduals who operated the corporate outlets by whom Anghelone was employed. On 5 July Operations Manager Watson also received a report from Eisenberg of Anghelone's concerns and his desire for a meeting. He checked the trip envelope and pay sheet. Watson then testified that at some point Iggy came into his office before his run that day and said he wanted to talk to him about what took place on that route on 4 July.4 According to Watson's report of the conversation, received in evidence not for its truth or falsity but as information received in the course of its in- vestigation on which Respondent may have acted, Iggy verified the heavy, poorly loaded products, some of which fell out at the first stop, and the difficulty in find- * Watson's evident claim that Iggy came in to talk voluntarily is under- cut by the first sentence of his memo written after his conversation with Iggy in which he writes "Ed, prior to speaking with Frank Guidice about route 11 of 7/4/83 1 questioned Olszewski as to what happened with shortages " BURGER KING CORP. ing products. Iggy also reported that Guidice was upset and did not listen to his suggestions on how to reload and continued to throw products back in the truck. When Watson asked why Guidice was acting this way, Iggy explained Guidice was annoyed about the load and about not being able to find the products right away, but that he was also upset and complaining about having lost the election5 and that no one cared, that he was only going to do just so much, that he would get paid no matter what happened because it was route pay, and that he complained about cube pay. Whether or not Iggy was invited in to tell what he knew of the 4 July incidents, it is clear that Watson did not try to learn from him the identity of the warehouse- men who had loaded the trailer, why Iggy himself joined in making the 2-1/2 hour wage claim for reloading two- thirds of the cooler compartment, or what Iggy had done to try to make delivery of all the products on the trailer to the Staten Island stores when Guidice allegedly refused to make any extra effort to locate and deliver the merchandise. E Subsequent Events Leading to Guidice's Suspension and Discharge On reporting for work on 6 July, his next workday, Guidice was informed by Watson that he was being sus- pended for 1 week for failing to deliver freight. On being called into the office, Watson asked what had happened the other day on the truck. When Guidice responded that if Watson was concerned, he should have answered the emergency phone call. Watson said he was not home. Guidice asked, "If you weren't home, how did you tell your wife that you wouldn't receive the phone call, the answer she gave me and the operator?" Guidice testified Watson appeared nonplussed. When Guidice next said, "Jimmy, its 12:32 and I got a 12:32 run, the truck's ready, I have to leave," Watson told him he was suspended Guidice asked why. Watson said, "Because I'm the boss and I'm suspending you." Guidice said, "I'm entitled to know why I'm being suspended." Watson re- peated, "Because I'm telling you." Guidice said, "Until I get some reason I don't feel I have to leave." At this point Watson said, "You want a reason, failure to deliver freight." Guidice said, "Have you checked the running boards [trip records] of all the drivers in the past month and a half, there is a big problem here with Distron, if I'm entitled to a week's suspension for failure to deliver freight, then so are 14 other drivers." Watson said, "You're suspended, leave the premises." According to Watson, it was on 5 July that he and Johnson decided in the best interests of customer rela- tions they would suspend Guidice, pending investigation. Guidice would be asked to return on 11 July after John- son saw Anghelone on Friday, 8 July. Watson also asked 5 In his memo to Johnson about this meeting, after detailing Iggy's claims of Guidice's alleged misconduct (throwing products and not being concerned about locating products at future stops, telling customers that there were loads always going out this way, that no one cared at Distron, and that he should not have to dig out products) Watson reports that Iggy felt Frank was bitter about losing the election and Frank had said so on occasion 233 Rizzutto at his first opportunity to write down what he knew of the incident of 4 July. Watson testified that when he asked about the 4 July incident, Guidice said it was a poorly loaded truck, that he had to dig for products, and he did not think that was his job. On cross-examination, and in a memo prepared for, but never given to, Guidice, Watson acknowledged that Guidice corrected this response to say he would not dig for products unreasonably. Guidice, on cross-exami- nation, explained that response to mean that a driver should use appropriate judgment to locate freight not visible to him, so that if he has taken down two walls of freight and still has not located, e.g., a box of medium cups, it would be unreasonable to remove a third wall of freight to search, thereby incurring substantial additional time in repacking and reloading, severely delaying deliv- eries to other customers and failing to maintain the Dis- tron standard of delivering 300 cubes of product per hour. Watson said he also told Guidice that as a result of his shortages at the restaurant and the fact that he spent 2- 1/2 hours tying up Anghelone's lot, et cetera, that Angh- elone was very upset and it would be in the best interests of all parties concerned at this time to suspend him while Distron investigated the whole situation. Later, during his cross-examination, Watson said the gist of the meeting with Guidice on 6 July was that he put in for 2-1/2 hours that he off-loaded and reloaded the cooler. Watson wanted to know why if, in fact, he did that, there had been some shortages. According to Watson, Guidice's response was he did not put the prod- ucts back in any kind of order because he was upset about the load. Guidice's testimonial explanation for his inability to repack the cooler load in good order has been described. Watson also acknowledged that he had at no time informed Guidice of the nature of the com- plaints Iggy had made about his behavior and conduct on 4 July or even that he had met with Iggy about the matter. 6 I do not credit Watson that he referred to anything other than the shortages to stores on Staten Island as the reason for Guidice's suspension on 6 July. I conclude that, although Guidice's version is incorrect in not in- cluding any reference to Watson's attempt to elicit rea- sons for the shortages for which he was suspended, I am inclined to credit Guidice that Watson at first refused to tell him why he was being suspended, perhaps, because of Guidice's initial aggressiveness. I find as Watson dis- closed the basis as relating to shortages, the two had a discussion about the matter. I further discredit Watson that Guidice explained his failure to put back the load in order because he was upset. In a memo dated 5 July 1983, addressed to Guidice, Watson states, "You did admit that after spending the time to rework the load you did indeed have the respon- sibility to deliver the product that was on the truck." 6 To the extent that Respondent relied on Iggy's version of the events and Guidice's conduct on 4 July in deciding to terminate him, without confronting Guidice with these accusations, Respondent's action conflicts with its assertion that Iggy, as the less senior driver, was not held to the same level of responsibility as Guidice 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This passage sounds like it is a recounting of an inter- change between Watson and Guidice at the 5 July meet- ing between them . Yet, it was Watson 's firm recollection that he had this memo at the meeting and Guidice re- fused to accept it. Later, Watson changed his testimony to claim he had another memo, no longer in existence, ready to give Guidice that day. Watson's confusion about the memo taints his testimony to such an extent that I conclude that its contents were prepared sometime after Guidice's 5 July suspension in an effort to lend a smoothness and rationality to a decision and a sequence of events regarding Guidice which did not have them and which only later, after Guidice was discharged, Re- spondent sought to justify and portray as substantially business related. Immediately following his suspension , Guidice tele- phoned Panarisi , who was at one of the eastern regional centers. Guidice told him that he had been suspended and what had happened on his route on 4 July . Panarisi said he had to get the Company's side of the story and would get back to Guidice. Guidice, without prompting, as asserted by Respondent in its brief (Br. 9), also asked for a hearing on his suspension. (Tr. 60.) He did so pur- suant to his understanding of the authority of Distron's employee handbook which sets forth a grievance proce- dure which "is the responsibility of all Distron Manage- ment and supervisors to administer" for "prompt and fair handling" of employee problems. The procedure con- tains four steps, step III of which provides that if the general manager does not resolve the employee's prob- lem to his satisfaction, the regional personnel manager will be glad to review his problem on either a written or oral request. At this point, Distron's operation manager, in concurrence with the general manager, and over Gui- dice's objections, had suspended him for a week, and Guidice asked Panarisi as regional personnel manager to review this decision. On its face, this request appears to present a grievable matter . Although Respondent argued that the grievance request is premature because, subject to correction and full reimbursement of moneys if subse- quently revoked in the employee's favor, the device of suspension itself disadvantages an employee even if ulti- mately revoked and should itself be subject to internal review under Respondent's procedure. In any event, once having raised the matter , Distron's later affirmance of the suspension , converting it into a discharge, made Guidice's request ripe, even if it was not ripe previously, without any further action required on his part. No per- sonnel review of the discharge was made . Respondent's procedure in this instance thus was so much window dressing. Panarisi never got back to Guidice and neither he nor any other management representative dealt with Gui- dice's request for personnel review of the suspension. Step III review is a predicate for invoking step IV of the procedure which provides for an appeal to an internal review board from an unsatisfactory handling of the grievance at step III . Step IV language strengthens my conclusion that Respondent simply ignored Guidice's at- tempt to invoke the procedure, by providing that noth- ing in the procedure is intended to prevent the affected employee from presenting or discussing his employment problems directly with the regional personnel manager, among others . It also permits employee waiver of the first two steps in the case of a complaint involving dis- charge. Panarisi testified that he did receive a telephone call from Guidice informing him that Jimmy had suspended him for shortages . But Panarisi denied on cross -examina- tion that Guidice grieved or asked for a hearing or that there was any understanding that he would call Guidice back after getting the facts. These denials appear to con- flict directly with Panarisi's earlier testimony that "I had to get the Company's, get management's side of it before I could tell him anything" (Tr. 1329-1330), and that he told Guidice "I was going to try to get the other side and we would talk again." (Tr. 1330.) The implication is clear that only Panarisi would know when he had ob- tained management's side, and thus, of the two, it would be Panarisi who would respond to Guidice. What would be the reason for Panarisi to acknowledge under oath that he had agreed to investigate the matter unless Gui- dice had asked him to do so in the course of invoking the grievance procedure? I conclude that Panarisi's ver- sion of the conversation is not worthy of belief and that he abdicated his responsibility under the grievance pro- cedure to respond under step III and thereby defeated the ostensible purpose of the procedure in providing a mechanism for employees to air their problems and obtain reasoned responses to their complaints. As will be seen, infra, the 11 July exit interview at which Guidice was discharged failed to provide Guidice such an oppor- tunity. After his call to Panarisi, as Guidice was walking out of the building, he learned that Ed Johnson was calling in and asking to speak to him. Guidence got on the line and told Johnson he was being suspended. Johnson told him to calm down, go home, and he would take care of it. He would find out what the problem was, and talk to Watson. Before leaving the premises, Guidice ran into Rizzutto, and told him he was being suspended for giving 150-per- cent effort to the problem he had on his last trip. Riz- zutto told Guidice that, although 2 days had elapsed since the problem arose, and he and Watson had seen each other, Watson had not approached him, the fore- man on duty, about the problem. This conflicts with Watson's testimony that he asked Rizzutto on 5 July to submit a written report to him after talking with Johnson about the matter. Guidice now walked back into the office, approached Watson, and said, "Before I leave the premises, I would appreciate it if you'd at least let Tony Rizzutto come in here, and I'd like to ask, did you ever talk to him about what happened?" Watson replied, in an abrupt manner, "I'm not talking to nobody, you can talk to Ed when he gets in, go home." Guidice said, "You haven't talked to the foreman on duty, you already told me you already had another man to come in and do my run before you talked to me, that's pre-meditated suspension, you know and I know what this is about." Watson did not specifi- cally respond to this testimony. I credit Guidice for that reason and for the reasons previously stated. BURGER KING CORP. During his suspension, Guidice called Panarisi to clari- fy that he could come on the premises to get his pay- check. He also asked Panarisi if under his suspension he was innocent or guilty after he had his hearing. Panarisi said, "That's true, you're innocent until we listen to both sides of the story." On 11 July 1983 Guidice contacted Respondent about his returning to work . After first being told to come in, he was later informed that was a mistake and , instead, he should report to Ed Johnson at 3 o'clock. As explained by Guidice, he came into the facility and waited outside Johnson's office for about 10 minutes until Watson came in from the back warehouse. On being invited into the office , Johnson referred to some papers on his desk and asked Guidice to read them. Gui- dice began to read the first paragraph , then handed them back to Johnson with the statement , "Ed, this is Distron propaganda." Johnson described the material he was handed as letters from franchise store managers in the Staten Island district describing dissatisfaction with Dis- tron deliveries. Guidice next told Johnson he was ready to defend his case of suspension for failure to deliver freight . With ref- erence to the letters, Guidice said, "Isn't it funny that up to six months ago I was considered a very good employ- ee in this Company and all of a sudden I'm not, and we know what this is about." Johnson exclaimed, "You[r'e] talking about the Union , you always got the wrong atti- tude, its got nothing to do with it." During the course of the discussion , Johnson kept trying to impress Guidice with the fact that the central matter concerned delivery problems . Guidice brought up that shortages had been going on for some time with all the drivers, and that because he had been on this run, in- cluding six Staten Island stores for only 2 weeks, the store managers had made him aware that the problems had occurred for months before he got on this route, and that they were still happening. Guidice then said he wanted to talk about the real issues, why he was there today, and the failure to deliver freight. He said, "I think its vital for me to defend myself that the running boards [trip sheets] ought to be here and my partner at the time of those deliveries." Johnson's response was, "There's no need for that, we're talking about these letters." Guidice then told them, "Well, I have no defense against this Distron propaganda, if you don't want to talk about the issues as they are, there's nothing I can do." Johnson then turned to Guidice and said , "Well, Frankie," paused a few minutes, and then went on, "Frankie, we're not talking about suspension any more, we're talking about termination." Guidice then respond- ed, "Ed, you know what it's about, I know what it's about, I'm a man of my convictions, I do what I have to do, I'm going to ask you to do what you have to do." Guidice did say to Johnson , "I would expect you to look me in the eyes and tell me that I'm terminated." But he never did look him in the eyes. Guidice then asked about vacation pay and other bene- fits due him, and was advised they would be taken care of and he then left. Guidice testified that at the time and later, he continued to wait in vain for a call from Pan- arisi to which he believed he was entitled. 235 According to Johnson, on his return to Syosset on 7 July he met with Eisenberg and Watson, among others, to review the incidents of 4 July . Johnson received a report from Watson, particularly about his meeting with Iggy . Johnson testified to three concerns. One was the report from Iggy that Guidice was not doing his job. Another was the fact that, although 2-1/2 hours were spent unloading and reloading freight , it was not put back in a neat, orderly fashion to permit its full delivery without shortages at future stops. A third was that once a driver talks to a manager, describes his problem, and receives approval for how to handle it, there should be no reason for the subsequent calls Guidice made. These calls tie up the store's phone and may aggravate the store's customers. As to the first concern, Distron was relying on the word of a less responsible , junior employee, who, within a month of Guidice's discharge, became a regular driver, and whose allegations were never reported to Guidice so that he might respond to them as he did at the instant hearing. Respondent was exceedingly quick to embrace charges which not only came from an employee who ul- timately personally profited from Guidice's discharge, but also an employee who, in his report to management, was making an effort to distance himself from Guidice's union militancy and continued union loyalty. As to the second concern, Respondent's management never gave Guidice the opportunity during the course of its investigation to detail his version of the overloaded condition and disarray of the products in the trailer which made it difficult, if not impossible, to straighten out the freight to ensure full delivery without shortages. Distron had a witness who could have corroborated Guidice that he sought to return the trailer so that the overloaded cooler could be properly repacked after learning that no warehousemen were then available on a holiday to come out to do the job at the site of the first delivery. While Anghelone was concerned about a suc- cessful unveiling of his salad bar, Distron did not appear to be equally concerned about ensuring its success. The operations manager made himself unavailable to a driver with a serious problem on the road, after making his own contact with the warehouse earlier the same holiday. No special care was taken to see that the additional product comprising the salad bar was properly loaded or that if problems arose at the warehouse, or on the road, compe- tent warehousemen were available to assist in resolving them, or that the warehousemen involved in the packing were later identified or talked to or properly trained or retrained. With respect to Johnson's third concern, he again had a witness who could have explained the reasons for Gui- dice's multiple use of the telephone-reasons which did not evidence any abuse of the communications process. That witness was Rizzutto, who finally submitted a writ- ten report to his superiors on 12 July 1983, after Gui- dice's discharge. In it, Rizzutto details Guidice's con- cerns, that he had a lot of cases on the pavement, and did not think he could get them all back on the truck again, that he had damages , and, later, that "everything was all messed up and that he couldn't put things back 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the truck in an orderly manner," but that "he was going to do the best he could." During his testimony, Rizzutto corroborated Guidice saying that the cooler on 4 July was oversized because of the salad bar promotion, that the manager at the Bay Street store did not complain about Guidice's manner or his tying up their telephone, and that Guidice, from his contacts with him that day, had acted calm and in a pro- fessional manner, except he appeared upset when he could not reach Watson. Rizzutto also commented on the stand that Guidice seemed more interested in getting the load back together than in making the first delivery. But Rizzutto acknowledged that Guidice readily adopted a suggestion he made to speed up the delivery process. The overall tone and content of this report supports Guidice's concern and interests in performing satisfacto- rily, although distracted by his inability to reach Watson when the load and damage problem seemed overwhelm- ing to him. Yet, Johnson, in preparing for his meeting with Guidice, in spite of the availability of a company supervisor witness to Guidice's conduct that day, did not receive or evaluate any report from Rizzutto, and instead allowed hearsay claims of a generalized nature, not sup- ported by any reports from franchise employees at the scene,' to influence his judgment in preparing to give Guidice a termination letter in order to evaluate his reac- tion to it. It was Johnson's thesis that Guidice's conduct at the I1 July interview would determine his fate. It was up to Guidice to assure management that the conduct of which he was accused, but of which he had never been ap- prised or to which he had never been given an opportu- nity to respond, would never occur again and that he would be apologetic. Surely, Johnson was very well aware that Guidice was not the kind of employee to act so abjectly, particularly when he reasonable believed that he had done the best he could and that Distron had failed to meet its responsibilities to properly prepare the load or have its manager available to discuss the serious problems which ensued. In Johnson's version of the interview, when he asked Guidice to come in to his office, Frank said, "Before I sit down, I want to make it clear, I'm not here to plead for my job." Johnson replied, "Frankie, I don't expect any- body to plead for their job, please have a seat." Johnson had Guidice's file on his desk and handed Guidice a two- page typed memorandum dated 11 July 1983, addressed to Guidice, concerning his suspension pending investiga- tion. In it, Johnson recounts the events of 4 July, as well as Consumer Food's preparations for the salad bar roll- out on the holiday. Johnson itemizes Anghelone's claim that the Distron driver tied up his restaurant phone for a great period of time; his conversation to the person on ° At its 8 July meeting with Anghelone, Distron was told it had a 30- day trial period to deliver without shortages to Consumer Food Services stores Anghelone said he would not tolerate any "disturbances" nor any shortages at his restaurants. Johnson and Eisenberg, also present, agreed with Anghelone to set up a system under which Consumer Food Fran- chise trip envelopes would be pulled and checked on a daily basis for shortages , and arrangements would be made for on -the-spot redelivery Anghelone did not demand any discipline or other action be taken vis-a- vis the driver on the 4 July deliveries the other end was totally negative; he kept repeating, "[he] won't dig, I don't care, I don't get paid by the hour, nobody at Distron knows what they are doing"; and that the driver refused to locate the products on the truck while complaining it was improperly loaded and it was not his job to dig. The memo goes on to claim that Guidice's negative attitude and lack of cooperation almost resulted in the loss of an important customer. In the last paragraph, Johnson concludes that as a result of Guidice's refusal to deliver products on the truck (even after charging 2-1/2 hours for straightening purposes), which jeopardized customer relations and interfered with a new product rollout, he was terminating Guidice. Johnson testified that he had another memo in his pos- session at the time, identical to the first except for the last paragraph which upheld the suspension, but that he chose to give Guidice the former in order to shock Gui- dice to reality, to try to resolve the problem. Although the 11 July memo to Guidice identifies the warehouse packer as Frank Collazo, with 7 years' experi- ence (1 year less than Guidice, as driver), Johnson ac- knowledged that after learning his identity after 4 July he never spoke to him or had anyone else do so. Guidice glanced at the writing, without fully reading it, and said, "That's you [sic] and Watson's side of the story, I have my own side." Johnson said, "That's what we want to hear." Guidice then said he felt that he did not do anything wrong; he would do the same thing over again; he was brought up a certain way; his father had taught him to do certain things; and that was the way he was. When Johnson referred to the number one job of Dis- tron as satisfying their customers, Guidice said if he was talking about the load of 4 July, he was not going to be responsible for anybody else's incompetence. When asked what he meant by that, Guidice referred to incom- petence "in general." Guidice explained that he did not feel it was his job to dig for products if the truck was not properly loaded. That was someone else's problem and if he were Johnson, he would do exactly what John- son was going to do. When Johnson asked what that was, Guidice said terminate him. Johnson then told Gui- dice, "Well, that is in fact what's going to happen, you[re] terminating yourself." Guidice asked to go to his locker, received permission, and left. I credit Johnson that he did not show Guidice three or four letters from franchise customers. Guidice here was undoubtedly confused, having been handed a two-page letter referring to a complaint from one Distron custom- er, Consumer Food, identified in the memo as operating 36 Burger King restaurants of which Distron services I1 out of Syosset Center. I further credit Johnson that he asked Guidice to tell his side of the story. I do not credit Johnson that Guidice denied he would dig, having al- ready acknowledged his responsibility to dig reasonably earlier to Watson, and having explained that response on this record. From piecing together the conversation from both versions, it appears that Johnson never orally speci- fied the allegations against Guidice, but only provided Anghelone's claims in a discharge letter. In effect, Gui- dice had already been convicted before a dialogue could BURGER KING CORP commence and before Guidice could prepare his defense. As Guidice testified, he told Johnson he was prepared to address the shortage issue, but was only now on his dis- charge being confronted with broad claims of a negative attitude and interference with customer relations. Significantly, Guidice was not informed that his fellow employee had corroborated the claims of improper atti- tude. I credit Guidice that Johnson rejected his request for Iggy's attendance. Neither was Guidice asked specif- ic questions which would have provided the opportunity to learn how Guidice functioned on 4 July. For example, Guidice was not asked whether he failed to locate or remove certain products until pressed by the store man- ager, or asked to describe how he placed the unloaded cooler product back in the truck or why he could not reload in a manner which would have permitted easy lo- cation for future unloadings or why he made and re- ceived a number of phone calls at the Bay Street store. I also do not credit Johnson's version that Guidice in- vited his own discharge, but rather agree with Guidice, in accordance with his testimony, that when he saw, by the termination letter, Johnson's willingness to credit his poor attitude and not deal with the interrelated nature of the problem of shortages, of which the 4 July incident was but one example, and that Respondent was ready to fire him because of his strong convictions of independ- ence and union beliefs, Guidice expressed a readiness to accept the consequences of his protected conduct and views. Finally, I credit Johnson that as he was leaving the fa- cility on 11 July, Guidice passed Johnson's door and said, "I'll see you in April." Guidice did not deny this remark but had not included it in his own recital. John- son quickly concluded that Guidice was referring to the fact that he would be back in April, a year after the last election, to organize again for the Union. Rizzutto at first could not recall, then emphatically denied during his cross-examination, that he informed a private investigator employed by Guidice to assist him in his unemployment insurance claim against Distron, that Frank was fired for his union activities and nothing more. Rizzutto named himself as part of management, and was, at the time of his testimony, retired on a Dis- tron pension. Further, his testimony was shot full of con- tradictions, e.g., at first admitting it was not unusual for drivers to call in with problems on the road, then deny- ing ever receiving such calls, and, finally, asserting he may have received a prior call from a driver complain- ing that the load was a mess. Although men under his supervision were given more training and never fired for poor work, he did not even seek to learn the identity of the 4 July packer of Guidice's truck, contrary to normal practice. He at first denied Guidice, himself, told him he was fired, then stated that he was informed by Guidice. Rizzutto testified he could not volunter information about Guidice's 4 July run and contradicted Watson that he was not asked to submit a report until a week after the incident . No Respondent witness identified Rizzutto as a source of information about Guidice's conduct during the predischarge investigation-a curious and tell- ing oversight 237 Frank Detrano, a licensed private investigator, testified credibly on rebuttal that he interviewed Rizzutto over the telephone and in person in the period from late De- cember 1983 to early January 1984. Rizzutto informed him that on 4 July Frank was doing the best he could to rectify the freight problems; he was calm and courteous, although upset. In this he affirms his own testimony at the hearing. When asked why Guidice was then fired when Rizzutto denied any knowledge of foul, abusive language or disruption of service, Rizzutto replied, "You know very well why. Because of his involvement with the Union." Rizzutto also affirmed that Guidice was an excellent employee. In the face-to-face interview De- trano conducted, Rizzutto denied that on the three or four times he was on the phone with Guidice that Gui- dice used foul, abusive language, or screamed or yelled and that he was uniformly courteous and professional. He affirmed that union involvement, which Distron did not like, led to his termination. Rizzutto refused to pro- vide a statement affirming his understanding of the reason for Guidice's discharge because of fear-he was ready to retire. Rizzutto wanted to keep it low key and Detrano could state it in court. I credit Detrano's testi- mony and conclude that his own professional involve- ment in Guidice's case, including his fee for his investiga- tion on Guidice's behalf, which included his testimony, if necessary, does not serve to discredit the essentially straightforward and honest presentation of the results of his investigation. The record contains evidence of Distron's dealing with certain driver conduct in the past which is reveal- ing. In one instance in 1980, prior to the union campaign and his association with it, a written complaint had been filed against driver Doug Babis by a customer who ac- cused Babis of cursing him in obcene language in front of customers and cashiers. The restaurant manager there, unlike Consumer Food Executive Anghelone here, spe- cifically requested that Babis be removed from the route. In contrast to the Guidice incident, Manager Johnson gave Babis an opportunity to reply in writing to the spe- cific allegation of misconduct. But like Guidice, this was the only allegation of misconduct against Babis in his 5 years of employment and his work record was also con- sidered to be good. Babis denied the misconduct, and was not disciplined, in part "[c]onsidering the employee's accumulated record during his 5 years of service with Distron" (G.C. Exh. 13). Another employee, Don Bunora, was only given a 1- day suspension in 1979, in spite of "a history of continu- ous poor attitude" (G.C. Exh. 9) and two incidents within a space of 4 months, the first resulting in a writ- ten complaint from a Burger King district manager about Bunora's refusal to obey a direction from his facility to move cases to get at the manager's cases for delivery, and the second, which directly resulted in the suspen- sion, involving abusive language and conduct toward an- other Burger King restaurant manager. Bunora ultimate- ly voluntarily resigned from Distron effective 3 Decem- ber 1981 because he did not like his route. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two other employees, Art Baldwin and Charlie Thomas, were only discharged in 1977 after a second written complaint was received from a customer charg- ing poor mishandling of the product and generally bad delivery and these employees were also found to be neg- ligent, to have exercised loose product control, to have failed to secure company equipment and products, and to have had generally poor attitudes. (R. Exh. 10.) Only after employee Don Zeigler had been repeatedly cautioned about his bad attitude, but without being disci- plined, was he finally discharged in 1980 after another in- cident in which he failed to report an accident to a Dis- tron truck and used abusive language at the restaurant in- volved. These dealings with employees, all occurring prior to the advent of union organization, show that a single inci- dent involving an employee with a good work record like Guidice led to no discipline, and that only after re- ceiving multiple complaints or exhibiting a history of poor attitude were other employees finally disciplined at all for succeeding incidents. Furthermore, when Anghelone of Consumer Food ter- minated its Distron contract in the past because of dissat- isfaction with the service, no disciplinary action was taken against any employee. This record of past employee actions fails to show any discipline or discharge for shortages, tying up a custom- er's lot, or for a sole complaint about the employee's atti- tude. IV. ANALYSIS Respondent relies on the conduct of its driver during the 4 July 1983 deliveries of product to its customers, reaffirmed by him during a 11 July 1983 interview, as motivating its decision to terminate Frank Guidice. In cases such as this, when the General Counsel relies on a discriminatory motive and the Respondent asserts a busi- ness or economic one which is not pretextual in nature, the Board has reformulated the allocation of the burdens of proof. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under this formula, patterned after the Supreme Court's Mt. Healthy8 decision, the initial burden of persuasion is placed on the General Counsel to establish that the em- ployer was substantially motivated by the employee's union or protected concerted activity in taking its ad- verse action. Once having established a prima facie case of unlawful discharge, the employer may still overcome the finding that it violated the Act, by demonstrating that the same decision would have been taken even in the absence of the employee's union or protected con- duct. The Board's formulation was approved by the Su- preme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), rev. 674 F.2d 130 (1st Cir. 1982). An examination will first be made of the General Counsel's efforts to meet its burden. Guidice was a longstanding employee with a spotless record when he first opposed, along with a group of 8 See Mt Healthy City School Drst Board of Educ v Doyle, 429 U S 274 (1977) other employees, Respondent's new method of comput- ing pay for its drivers announced in January 1983. This opposition by him took the form of vigorous personal criticism voiced to Distron's general manager at the Syosset facility, during which he, along with one other employee, was considered the most vocal and, of the two, the least temperate, in expressing complaints. The manager acknowledged that Guidice was not only more vocal, but more accusatory, in questioning the cube pay system, going so far as to engage in a question-and- answer session with him at a meeting to discuss produc- tivity held by Distron 2 to 3 weeks before the union election. (Tr. 1283.) During a session with Distron's regional personnel manager, Panarisi, in January, Guidice threatened to become a union threat to the Company in the manner of a past union advocate and subsequently made good on that threat by reaching out for Local 707; leading in the distribution of union cards; making clear his union advo- cacy at a management-called preelection meeting in late February; and by engaging Respondent spokesmen at this and a subsequent early March Company-called meet- ing in interchanges critical of its wage-and-benefit poli- cies; and by acting as union observer at the 23 March Board-conducted representation election. This outstanding union and protected concerted activi- ty was not only continually brought to Respondent's at- tention, but its management openly acknowledged Gui- dice's leading role in this regard when, at the first of the two preelection meetings it held for employees, General Manager Johnson, who later fired Guidice, in an agitated manner confronted Guidice in the course of asking em- ployees to choose between the two of them in their loy- alty and support of the cube pay system issue. Panansi had also earlier suggested to Guidice that he not place himself or his family under the pressure of union leader- ship. There are a number of factors which support the con- clusion that Guidice's outstanding union advocacy and leadership of the employee element, which expressed op- position to the newly instituted cube pay system, contrib- uted substantially to Distron's decision to discharge him. The timing here is suspect. That discharge took place less than 4 months after the Union lost the representation election. Respondent's hostility to union organization is also well documented on this record. I have also concluded that at the time of his suspen- sion, the only reason Watson gave Guidice concerned his failure to deliver freight. Guidice was never informed by management, not even at his exit interview, that his atti- tude and alleged boisterous, intrusive behavior were cen- tral to the Company's decision to terminate him. The only way Guidice could have learned of this concern was through a close reading of Anghelone's letter. Yet the whole tone and emphasis at this last interview were on the manifestation by Guidice of a negative attitude on one occasion. And those who allegedly witnessed this behavior were never identified, nor were their accounts provided to Guidice. Contrary to its treatment of past al- legations by customers of improper employee conduct, Guidice was neither provided an opportunity to respond BURGER KING CORP in writing to a specification of his improper conduct, nor was Guidice's 8-year exemplary work history given its due weight. That history had been noted by three differ- ent Distron representatives. Panarisi referred to Guidice's working record of good quality; Rizzutto stated Guidice was an excellent worker; and even Johnson commented that Guidice's work record would have provided ground for merely affirming his suspension if he had only as- sured management they would not have "this kind of in- cident" again. The basic contradictions inherent in Watson's account of his preparation of a letter to Guidice which Guidice never saw show an effort by Respondent to buttress its response to the 4 July events to justify the strongest pos- sible discipline of Guidice which, but for his protected concerted activity, would not have taken place. I con- clude that when its investigation of the incident revealed evidence of Guidice having become upset over his inabil- ity to reach Watson by telephone and frustration in coping with a delivery problem aggravated by the over and improper loading and inclusion of new products, Re- spondent seized on Anghelone's complaints to rid itself of an employee who it knew would continue to be a strong union advocate and spokesman on employee bene- fit issues. In the course of building its case against him, Distron disregarded Guidice's efforts to invoke the grievance procedure which should have been available to him in this situation. The conversations on 6 July between Guidice and Watson, and on 11 July between Guidice and Johnson reflect no real effort on the part of Johnson and Watson to find out what truly happened on 4 July. These manag- ers never gave Guidice a fair opportunity to defend him- self. They only asked, "What happened?" There is a cu- rious lack of communication regarding not only the rea- sons for the suspension but also the reasons for the ulti- mate termination. I add to the above factors Rizzutto's prehearing admis- sion to Detrano that the only plausible reason for Gui- dice's firing had to be his union activity, and the General Counsel has clearly established a strong prima facie case that Guidice's union affiliation and protected concerted activity in protesting the new pay system were substan- tial motivating reasons for Respondent's decision to fire him. Although Rizzutto may not have been privy to the decisionmaking process, based on his extensive years of service with Distron in a supervisory capacity, the fail- ure of Watson or Johnson to obtain from him timely in- formation regarding the 4 July events which only he could supply, and his understanding of its strong antiun- ion policy, his judgment about the real reason for Gui- dice's discharge is entitled to substantial weight. I also conclude that Respondent has failed to demon- strate that it would have discharged Guidice even in the absence of his union sympathies and other protected con- certed conduct. In making this conclusion I rely on the factors discussed above, most significantly the manner in which Guidice was obliged to overcome a finding that a single day's conduct over an 8-year exemplary work his- tory justified his discharge. As also demonstated above, Guidice had good grounds for mitigating whatever evi- 239 dence existed that he became perturbed and behaved negatively on 4 July. Yet Guidice never was able to present the evidence in his favor, at first because he was not confronted with the evidence against him, and later because of the burden Respondent placed on him at his discharge. In light of Guidice's excellent work record, it is strange that Watson and Johnson in effect preestablished his guilt and expected him to be remorseful about his ac- tions. Initially, they failed to warn Guidice about the sus- pension and discharge. Johnson's preparation of two let- ters-one discharging him which he handed Guidice, and the other affirming the suspension which he retained- was a testing of Guidice not warranted by its practices with other employees accused of misconduct. Johnson testified it was Guidice's uncompromising attitude that fi- nally convinced him to discharge the employee, unlike Babis, who "showed contrition while credibly denying the events occurred" (R. Br. at 27). But why make such a test to see how submissive Guidice would be, when he had such a good work record? And why were there no tests for Babis or for other drivers? The evidence sup- ports the conclusion that the 11 July meeting was de- signed to encourage a negative response from Guidice, and hence strengthen Distron's reasons for the discharge. In this case, a driver's reaction to a few events, occur- ring at a customer's location, for which Respondent itself was at least partly responsible because of its failure to properly prepare the additional products for delivery or provide proper support for its driver making the deliv- eries, fails to sustain Respondent's burden of showing that Guidice's deficiencies justified his release, particular- ly when discharges in the past for misconduct invariably required a history of poor attitude or conduct of an ag- gravated nature. CONCLUSIONS OF LAW 1. Respondent is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By suspending employee Frank Guidice on 6 July 1983 and by discharging him on 11 July 1983 because he joined and assisted the Union, and engaged in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent suspended and dis- charged Frank Guidice in violation of Section 8(a)(3) and (1) of the Act, I recommend that Respondent be or- dered to reinstate him to his former position or, if it is no 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer available, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings or other monetary loss he may have suffered as a result of the discrimination against him, less interim earnings, if any. The backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner described in Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 139 NLRB 716 (1962), enf. denied on other grounds 332 F.2d 913 (9th Cir. 1963). I also recommend that Respondent be ordered to revoke and remove from the personnel and other records of Frank Guidice the written suspension dated 5 July 1983 and alternate letters terminating Guidice and affirm- ing his suspension dated 11 July 1983 and to notify him in writing that this has been done and that these unlaw- ful suspension and termination notices will not be used as a basis for future discipline against him. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Distron, a Division of Burger King Corporation, Miami, Florida, and Syosset, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending, discharging, or otherwise discriminat- ing against employees in regard to their hire , tenure of employment, or other terms and conditions of employ- ment in order to discourage membership in or assistance to Local 707, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join or assist Local 707, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Frank Guidice immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- 9 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 tion 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) Revoke and remove from its personnel and other records the written suspension dated 5 July 1983 and al- ternate letters terminating Guidice and affirming his sus- pension dated 11 July 1983 and notify him in writing that this has been done and that these unlawful suspension and termination writings will not be used as a basis for future discipline against him. (d) Post at its Syosset, New York facility, copies of the attached notice marked "Appendix."10 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent 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. 10 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 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 suspend or discharge any of you for supporting Local 707, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer to Frank Guidice immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and reimburse him for the pay or other benefits he lost as a result of our discriminatory action, plus interest. BURGER KING CORP. 241 WE WILL revoke and remove from our personnel and suspension and termination writings will not be used as a other records the written suspension dated 5 July 1983 basis for future discipline against him. and alternate letters terminating Guidice and affirming his suspension dated 11 July 1983 and WE WILL notify DISTRON, A DIVISION OF BURGER KING him that this has been done and that evidence of these CORPORATION