M. Burstein & Co., Inc.

718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M. Burstein & Co., Inc. and Robert Moore. Case 1— CA-24039 30 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 20 March 1987 Administrative Law Judge Martin J. Linsky issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering 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, 1 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an adnumstra- tive 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 Fid 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. Gerald Wolper, Esq., for the General Counsel. Robert J. Morrissey, Esq., and John W. Fieldsteel, Esq., of Boston, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 14 July 1986 a charge was filed by Robert Moore, an indi- vidual, against M. Burstein and Co., Inc. (Respondent). On 25 August 1986 the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint, which, as amended at the hearing, alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act, in early February 1986 when it asked Robert Moore, who was shop steward and member of union negotiating committee, to reject the Union and violated Section 8(a)(1) and (3) of the Act on 14 February 1986 when it discharged Robert Moore. Re- spondent denies that it violated the Act in any way. A hearing was held in Boston, Massachusetts, on 1 and 2 December 1986. On the entire record in this case, to include posthear- ing briefs' submitted by the General Counsel and Re- 1 Respondent's application to file a reply brief was demed. spondent, and on my observation of the demeanor of the witness, I make the following FINDINGS OF FACT I. JURISDICTION Respondent M. Burstein & Co., Inc. is, and has been at all times material, a corporation with an office and place of business in Chelsea, Massachusetts, where it is en- gaged in the processing of scrap metal for sale to smelt- ers and brass mills for recycling in the United States and other countries. During the calendar year ending 31 December 1985, Respondent, in the course and conduct of its business op- erations, sold and shipped from its Chelsea facility prod- ucts, goods, and materials valued in excess of $50,000 di- rectly to points outside the Commonwealth of Massachu- setts. During this same calendar year, Respondent, in the course and conduct of its business operations, purchased and received at its Chelsea facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. Respondent admits, and I find, that it is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Teamsters Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is now, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues It is the contention of the General Counsel that Robert Moore, a truckdriver, shop steward, and member of the union negotiating team, was discharged on 14 February 1986 because of his activities on behalf of the Union and that Respondent violated the Act in discharging him It is also the General Counsel's contention that Respondent violated the Act approximately 1 week before discharg- ing Moore by telling Moore, "Why don't you reject the union, just say the word and I'll call my attorney and within half an hour after I make the call, the union will be out of here." Respondent contends that it fired Moore for cause, namely, goofing off on a run and leaving a loaded trailer unattended on a public street for over 1-1/2 hours. Re- spondent denies that it ever asked Moore to reject the Union. It is my considered judgment that Moore was fired for cause and would have been fired even in the absence of any protected concerted activity on his part. Further, that Respondent never asked Moore to reject the Union. In short, Respondent did not, violate the Act. In reaching these conclusions, I rely on the analysis the Board devel- oped in its landmark decision in Wright Line, 251 NLRB 284 NLRB No. 83 M. BURSTEIN & CO. 719 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), 2 and on the testimony, which I credit, of Maxwell Burstein, Respondent's presi- dent. B. Discussion Respondent is in the scrap metal business. It employs approximately 6 truckdrivers and 15 warehousemen. Three of the drivers, including Moore, were tractor-trail- er drivers. Respondent's employees were unrepresented until August 1985 when they voted 19-to-2 in a Board- conducted election to be represented by Teamsters Local 25. Robert Moore, who had been employed by Respond- ent since October 1977, was selected as shop steward and served with Business Agent Frank Hackett as a member of the union negotiating team. Respondent's negotiating team was headed by Maxwell Burstein, part-owner of Respondent and a man with other business interests as well. The man who ran Respondent's operations when the Union was voted in was Maxwell Burstein's brother, Barney Burstein. In late January 1986, Barney Burstein unfortunately had a heart attack and died. Maxwell Bur- stein then took over control of Respondent's operations. On assuming control, Maxwell Burstein was advised by other officials of Respondent that Respondent's oper- ations were loose, i.e., drivers were taking too much time on runs, etc. Accordingly, Maxwell Burstein instructed Arnold Butter, Respondent's warehouse manager, to retain the services of Dee Investigations, a firm of pri- vate investigators, to surreptitiously follow its drivers to determine if they were goofmg off, etc., on the various pickups. The first driver followed by Dee Investigations was Robert Moore. Moore was selected to be followed be- cause Respondent wanted Moore's trip to Chamberlain Manufacturing in New Bedford, Massachusetts, to be checked on and because Kevin Dee of Dee Investiga- tions would be available that day-12 February 1986—to follow someone. The fact that Moore was selected ap- pears suspicious at first glance because no employee was more active on behalf of the Union but, on the other hand, all three tractor-trailer drivers were eventually fol- lowed and Moore was not immune from_ being followed just because of his union activity. There is no doubt about the fact that Robert Moore did not do the run in the proper manner. Although there are no written work rules or procedures that Respondent could point to and say Moore violated this rule or that rule since Respondent had no written work rules for its drivers, the simple fact is that Moore's trip to New Bed- ford, Massachusetts, to pick up a load of aluminum turn- ings on 12 February 1986 is almost a textbook example of whpt not to do on a run. Moore left Respondent's yard at approximately 6:30 a.m. and did not return until 3:30 p.m. As testified to at the hearing by private investigator Kevin Dee of Dee In- vestigations, Moore's trip down and back could be broken down into three parts: 2 The Board's analysts was later approved by the Supreme Court in NLRB v. Transportation Management Corp, 462 U S 393 (1983) 1. Rolling time (drive to and from destination)-2 hours, 36 minutes. 2. Dock time-2 hours and 23 minutes, 3.Idle time-3 hours and 14 minutes. Total time-8 hours and 13 minutes. It is the idle time that causes a problem for Robert Moore. En route to Chamberlain, Moore took a 15- minute break at Howard Johnson's. After getting the trailer loaded, Moore drove it off Chamberlain property, unhooked the trailer, and left the trailer unattended on a public street for 99 minutes. During this 99-minute period, Moore spent 39 minutes of it in a Burger King with the helper from Manpower who helped him load the trailer. He returned to the trailer, after getting his tractor washed, rehooked the trailer to the tractor, and sat with the motor running for 38 minutes. On his way back to Respondent's facility, Moore stopped at another Burger King for 40 minutes. It was Moore's practice generally and on this day-12 February 1986—to repre- sent to Respondent that he did not take any time for lunch and Moore was paid as if he worked through lunch. Moore claimed that he waited 38 minutes after he returned to the trailer and 40 minutes thereafter at a Burger King to let excess liquid from the aluminum turn- ings drain from the trailer, but when David Taylor, an- other driver, made the trip to Chamberlain—under the same conditions as Moore, see infra—he never had to spend that much time letting the trailer drain. While some draining was necessary, it could not have been too much because Kevin Dee, although apparently not di- rected to look for draining, never saw any liquid drip- ping from the trailer. Maxwell Burstein placed great significance on Robert Moore leaving the loaded trailer unattended on a public street for approximately 1-1/2 hours when Moore took a helper from Manpower to breakfast and got his tractor washed. The trailer itself was valued between $10,000 to $11,000 and the load of aluminum turnings was valued between $12,000 and $16,000. Union Business Agent Frank Hackett testified that prior to becoming a union business agent he had been a truckdriver himself for many years and it was considered misconduct wherever he had worked to leave a loaded trailer unattended on a public street. Respondent had no policy of progressive discipline and no work rules that prescribed particular penalties for particular types of misconduct. Accordingly, Respondent had the authority to discharge Robert Moore for cause. It did not, of course, have the authority to use his driver misconduct as a subterfuge and really discharge him be- cause of his activity on behalf of the Union. In other words Respondent's motivation in discharging Moore is dispositive. It is my conclusion that Respondent discharged Moore for cause, i.e., for leaving a loaded trailer unattended on a public street and for otherwise goofing off and not be- cause of Moore's concerted protected activity. I found Maxwell Burstein to be an honest witness. I did so principally based on his demeanor. Burstein was forthright in his testimony and just generally impressed me as an honest man. That does not mean that he neces- 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sarily impressed me as a compassionate man and, al- though he was well within his legal rights to discharge Moore, he would have been well within his legal rights not to discharge Moore. He remains, of course, perfectly at liberty to rehire Moore if he chooses to do so. I note that this was Moore's first disciplinary infraction. Moore had worked for Respondent for more than 8 years and there was no evidence of prior misconduct—either seri- ous or minor—on his record. Moore testified about two conversations he had with Maxwell Burstein—one in August 1985 and the other ap- proximately 1 week before he (Moore) was discharged. If Moore is believed and Maxwell Burstein actually said what Moore claims he said, this would be strong evi- dence of union animus. However, I do not believe Moore's account of either conversation. Burstein denied that either conversation ever took place and I totally credit those denials. In addition, while Robert Moore may never have been specifically asked about whether any such conversations ever took place, I do place sig- nificance on the fact that in Moore's affidavit to the Board he never mentioned either conversation. With respect to the two conversations Moore claims took place and Burstein credibly denies ever took place, the particulars, according to Moore, were as follows: In August 1985 (approximately 1 week after the election) Maxwell Burstein told Robert Moore that the employees of Respondent would be sorry for voting in the Union. When asked why they would be sorry, Burstein, accord- ing to Moore, said, "I could do more for you people if you hadn't voted for the union you are not going to get nothing." There is also no evidence that Moore ever told Union Business Agent Frank Hackett that Burstein said this and Hackett was a witness at the hearing.3 With respect to the second alleged conversation, Moore claims that in the early part of February 1986 (shortly before he was fired) Maxwell Burstein, in the presence of Gerald Burstein, said to Moore, "Why don't you reject the union, just say the word and I'll call my attorney and within 1/2 an hour after I make the call the union will be out of here." 4 Gerald Burstein denied that his uncle, Maxwell Burstein, ever said this, and there is no evidence that Moore ever mentioned it to Business Agent Frank Hackett. Even though I do not credit Moore with respect to these remarks allegedly made by Burstein, there is still the question of disparate treatment to be addressed. While there was no evidence that any driver had ever been discharged for doing what Moore did, there also was no evidence that any driver did what Moore did and was not discharged. However, there was evidence of other driver misconduct and, if I were to conclude that this other driver misconduct resulted in little or no disci- pline and it was equally serious with Moore's miscon- duct, I might draw the conclusion that Moore was un- fairly treated and this unfair treatment attributable to his engaging in protected concerted activity. While I do see 3 This was not alleged by the General Counsel as a violation of the Act apparently because the 10(b) period had run. 4 This statement was alleged by the General Counsel to be a violation of the Act in an amendment to the complaint made on the first day of the hearing. a distinction between the discipline meted out to some drivers for misconduct and the discipline meted out to Robert Moore for misconduct, I cannot say that Moore was treated unfairly, much less attribute any unfair treat- ment to Moore's protected concerted activity. Richard Wall, another of Respondent's tractor-trailer drivers, was followed on 13 February 1986 (the day after Moore was followed) and was observed speeding. His discipline was an oral reprimand. There is a significant disparity between discharge and oral reprimand, but then again there is also a great difference between goofing off for several hours and leaving a loaded trailer unattended on a public road on the one hand and speeding-65—on the other hand. Several months later Wall was again dis- ciplined for misconduct. In this instance he was given a written warning and a suspension of 5 days (which was later reduced to 2-1/2 days) when a barrel of scrap metal fell from his truck and for being "grossly negligent" in handling the situation after the spill. There was evidence of one other employee being dis- ciplined by Respondent. Prior to Moore's discharge em- ployee Paul Jankowski had been ordered by management to report in at 6 a.m. He reported in 30 minutes late. While being orally reprimanded for being late, Jan- kowski used abusive language toward Arnold Butter, a management official of Respondent. Jankowski received a suspension of several days. Jankowski's misconduct and punishment were different from Moore's, but I can not and do not draw an inference of disparate treatment. All three of Respondent's tractor-trailer drivers were followed by Dee Investigations. David Taylor did noth- ing improper, Richard Wall was orally reprimanded for speeding, and Robert Moore was discharged for goofing off for several hours and, more significantly, for leaving a loaded trailer on a public street unattended for 1-1/2 hours. Subsequent to Moore's discharge, David Taylor made the run to Chamberlain Manufacturing approxi- mately 12 times under the same conditions as Moore did on 12 February 1986 except that Taylor knew he was being followed and timed the first time he made the run. While Moore took a little over 8 hours to complete the run on 12 February 1986, Taylor consistently completed the run in a little over 5 hours. A difference of 3 hours. Moore tried to defend his actions on 12 February 1986 by claiming that Barney Burstein and Hyman Burstein, both deceased and obviously unable to contradict him, knew that Moore would leave his loaded trailer unat- tended on occasions and had no objection to it and that Barney Burstein had no objection to Moore taking time out to buy breakfast for the helper from Manpower he would use on his run to Chamberlain. These arguments do not wash. I fmd it incredible that Moore was author- ized by deceased officials of Respondent to leave loaded trailers unattended on public streets. Moore claims he had permission to take the helper from Manpower to breakfast. It is interesting to note that Moore made this run to Chamberlain Manufacturing between one and four times a week for 8 years and yet Moore admits he never was reimbursed or ever asked for reimbursement for all the breakfasts he brought the Manpower helper (and sometimes he says there was more than one helper). M. BURSTEIN & CO. 721 The negotiations between Respondent and the Union resulted in a collective-bargaining agreement being reached by the parties in the spring of 1986. Maxwell Burstein testified that the negotiations went smoothly.5 Frank Hackett, the union business agent, testified that the negotiations went about normal for a newly organind employer. C. Summary In short, I must conclude on the basis of the credible evidence before me that Robert Moore was fired for cause—mainly for leaving a loaded trailer unattended on a public street and for goofmg off for several hours—and not because he engaged in concerted protected activity on behalf of the Union. Maxwell Burstein credibly testi- fied that he was the one who made the decision to fire Moore and that he knew of no one else in Respondent's employ who had ever left a loaded trailer unattended on the side of a road. The trailer, as noted above, was worth between $11,000 and its load of aluminum turnings worth between $12,000 and 16,000. Although Maxwell Burstein's initial mind set was to suspend Moore for 2 or 3 days for his misconduct, he de- cided to discharge Moore after they both got "hot" while discussing the trip to Chamberlain when Burstein confronted Moore on 14 February 1986 with the report of Moore's activities on 12 February 1986 prepared by 5 Although Respondent was newly organized, Maxwell Burstein had other business interests and had negotiated with Unions for 30 years Dee Investigations. He did not violate the Act in dis- charging Moore and he would not violate the Act if he changed his mind and rehired him. The General Counsel put in a prima facie case but Respondent demonstrated that it discharged Moore for cause and proved it would have discharged him even absent concerted protected ac- tivity on his part.6 CONCLUSIONS OF LAW 1.M. Burstein and Co., Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 25 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint, as amended. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed"' ORDER The complaint, as amended, is dismissed in its entirety. 6 This case is not greatly unlike that of Pacific Intermountain Express, 250 NLRB 1491 (1980), a case cited by Respondent, in which the Board upheld the discharge of three drivers for cause. 7 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 m Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.