Mclean Trucking Co.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLean Trucking Company and Carl D. Daniels. Case 9-CA-15063 21 April 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 10 May 1982 the National Labor Relations Board issued a Decision and Order' in this pro- ceeding in which it adopted, with additional ration- ale, an administrative law judge's finding that the Respondent discharged Carl Daniels in violation of Section 8(a)(3) and (1) of the Act. The Board found that the General Counsel had made a prima facie showing that Daniels' union and other pro- tected activities were a motivating factor in the Re- spondent's decision to discharge him. It further found, after examining the Respondent's cited rea- sons for discharging Daniels, that the Respondent had failed to demonstrate that Daniels would have been discharged even absent his union and other protected activities. Wright Line, 251 NLRB 1083 (1980). The Respondent was ordered, inter alia, to reinstate Daniels and make him whole for any losses he may have suffered. The Respondent filed a petition for review of the Board's Order, and the Board filed a cross-petition for enforcement with the United States Court of Appeals for the Fourth Circuit. On 6 October 1983 the court issued a decision2 in which a panel ma- jority denied enforcement of the Board's Order and remanded the case to the Board for further consid- eration. The court agreed that the General Counsel had made a prima facie showing of an unlawful discharge. It also found, however, that the Board erred by failing to consider Daniels' entire work record in determining whether the Respondent would have discharged Daniels even absent his protected activities. The Respondent and the General Counsel have filed statements of position on remand.3 The Board has delegated its authority in this pro- ceeding to a three-member panel. The Board, having accepted the remand, recog- nizes the court's decision as binding for purposes of deciding this case. ' 261 NLRB 793 (1982) z 719 F 2d 1227. The Respondent has requested oral argument The request is denied as the record, exceptions, and beefs adequately present the issues and the positions of the parties As we observed in our original decision, we do not reach any issue of deferral to the grievance-arbitration proceeding because Respondent failed to request deferral For the reasons set forth below, we decide on the law of the case to reverse the Board's original decision. Thus, although the General Counsel did establish a prima facie case of discriminatory dis- charge, we find that a review of Daniels' entire work record reveals that the Respondent would have discharged him even absent his union and other protected activities. Accordingly, we shall dismiss this complaint. As we set forth in the judge's decision, which was adopted by the Board, Daniels engaged in nu- merous protected activities that incurred the ire of his superiors. Daniels was a prolific grievance filer. He urged other employees to file grievances and assisted them in so doing. Daniels complained loudly and often about many of the Respondent's employment practices and had several confronta- tions with the Respondent's officials. On at least two occasions, once in 1977 and again in 1978, Daniels was threatened with discharge because of his protected activities. Finally, Daniels was dis- charged on 9 October 1979, the day after he was elected union steward. Based on the foregoing, we find, as did the judge and the court of appeals, that the General Counsel established a prima facie case of a discriminatory discharge.4 It is equally clear, however, that Dan- iels' work record, to put it charitably, was a great deal less than exemplary. Thus, Daniels received 33 warning letters while working for four different terminal managers. Of the 475 days Daniels actual- ly worked, he reported late or left early 148 times. He was suspended for 3 days in February 19775 and for 5 days in May 1977. Daniels was dis- charged in August 1977 but was reinstated pursu- ant to a grievance settlement by which the dis- charge was converted to a 2-week suspension on the condition that Daniels improve his production and behavior. Problems continued, however, through 1978, and Daniels was suspended for 3 days in November of that year. During 1979 he re- ceived more warning letters and another 5-day sus- pension in June. A discharge hearing was set, and Daniels was actually terminated on 9 October 1979. At the hearing the Respondent relied on the two most recent warning letters issued against Daniels 4 The Board's original decision adopted the judge's finding that Dan- iels' pursuit of unemployment-benefit claims constituted additional pro- tected concerted activities, which created animus on the part of the Re- spondent Since that decision, the Board ruled in Meyers Industries, 268 NLRB 493 ( 1984), that such activities are not concerted within the mean- ing of Sec 7 Accordingly, we do not rely on those activities in assessing the General Counsel's prima facie case The elimination of the activities, however, does not diminish the validity of the General Counsel's prima facie case 5 A grievance panel reduced the suspension to 1 day 279 NLRB No. 46 MCLEAN TRUCKING CO. (placing his car in an unauthorized area) to support the discharge.6 Based on Daniels' entire work record, as repre- sented by the foregoing, the administrative law judge found that the Respondent's reasons were "not pretextual." 261 NLRB at 797. He further stated: Respondent has convincingly demonstrat- ed that complainant's overall work-perform- ance record amply justified his discharge. It is impossible to find that Respondent's action arose out of Daniels['] continuing exercise of protected rights ". . . in the face of supporting and convincing evidence that the disciplinary action was one reasonably deemed warranted and appropriately taken by Respondent inde- pendently [thereof]. .. ." [Citation omitted.] [Id.] The judge also observed that the Respondent "has not exaggerated complainant's weaknesses as an employee to justify his discharge." Id. Neverthe- less, the judge found the discharge unlawful based on the view that he was precluded from relying on any misconduct committed by Daniels that had oc- curred more than 9 months prior to the discharge. In adopting the judge's decision, the Board relied on a different rationale, but similarly discounted Daniels' overall work record. The court of appeals concluded that both views were in error and re- manded the case. 6 The Respondent's discharge-hearing presentation was so limited be- cause of a provision in the then-current collective-bargaining agreement that warning notices issued to employees were not to remain in effect for more than 9 months 343 Having reviewed the record in the manner di- rected by the court, including Daniels' entire em- ployment record, we, too, find the discharge "amply justified." In this regard, we make two brief points. First, in its original decision, the Board relied on the Respondent's supported "shifting of defenses." (261 NLRB 793 fn. 3.) The court noted, however, there was no "shift" at all. Rather, at the discharge hearing, the Respondent presented what evidence it was entitled to, consistent with the col- lective-bargaining agreement. At the Board hear- ing, where the question was the Respondent's motive for the discharge, the Respondent relied on Daniels' entire work record. Second, it is clear that Daniels' election as steward, which occurred the day before his discharge, played no role in the de- cision to terminate Daniels. Thus, Daniels' dis- charge hearing was called for well before the stew- ard election.7 In addition, there is no conclusive evidence that Daniels had decided to run for the steward position or, more importantly, that the Re- spondent knew of that decision, prior to scheduling the discharge hearing. In conclusion, we recognize that this is a close case. On balance, however, we are convinced that, on the law of the case, the Respondent has ade- quately demonstrated it would have discharged Daniels even in the absence of his union and other protected activities. ORDER The complaint is dismissed. ' The hearing was first set for 4 September 1979