Leasco, Inc.

LEASCO, INC. Leasco, Inc. and James E. Bender. Case 6-CA- 19520 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 26, 1988, Administrative Law Judge Richard H. Beddow Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. 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,' 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, Leasco, Inc., Dubois, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- mgs 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 Cit. 1951) i We have carefully examined the record and find no basis for reversing the findings In his analysis, the judge erroneously attributed to Terminal Manager Ramey the statement made to a group of drivers that he would be glad to take his coat off and "go to the backroom" to finish a discussion with the drivers The judge's findings of fact and the record indicate, howev- er, that Company Official Gerry Meyers made this offer In our view, it is of little import whether the offer was voiced by Ramey or by Meyers Both are agents of the Respondent The significance of the offer, espe- cially when considered along with driver Bowman's oral acceptance of the challenge, is that it indicated that a certain degree of bravado was not unusual in this particular employment setting . Accordingly, although we do not condone the Charging Party Bender 's use of profanity, we do agree with the judge that Bender's statement to official Bruce Anderson that "if you're taking my truck, I'm kicking your ass right now," consti- tutes a colloquialism that standing alone does not convey a threat of actual physical harm. Under all the factual circumstances here, we affirm the judge's conclusion that Bender's conduct was not so egregious as to render his concerted activity unprotected or to make him unfit for fur- ther employment See Consumers Power Co, 282 NLRB 130 (1986). Charles H. Saul Esq., for the General Counsel. Edward R. Noonan, Esq., of Pittsburgh, Pennsylvania, for the Respondent. DECISION 549 STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Dubois, Pennsylvania, on 11 February 1987. Subsequent to an extension of filing dates, briefs were filed by all parties. The proceeding is based on a charge filed 26 September 19861 by James E. Bender, an individual. The Regional Director's com- plaint dated 10 November 1986, as amended,2 alleges that Respondent Leasco, Inc., of Indianapolis, Indiana, violated Section 8(a)(1) of the National Labor Relations Act by terminating Bender because of his protected con- certed activities. Subsequent to the close of the hearing, Respondent made a timely request to reopen the record and the Gen- eral Counsel replied. By Order dated 4 March 1987 the motion was denied. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation that leases motor vehicles and the services of drivers to an affiliated company, a common carrier by motor vehicle certified to engage in interstate and foreign commerce. It has an office and place of business in Indianapolis, Indiana, and performs services in States other than Indiana, including Pennsyl- vania. During the 12-month period ending 31 August 1986, Respondent had gross revenues in excess of $50,000 for services performed directly at locations out- side Pennsylvania and it admits that at all times material it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE James E. Bender was one of over 150 drivers based at the motor carrier's Dubois, Pennsylvania terminal and had been employed by Respondent for over a year until he was terminated on 12 September for allegedly threat- ening a company official in a confrontation that occurred the previous evening. Respondent's employees are not represented by a union. On 11 September the Dubois terminal was visited by company officials Gerry Meyers and Bruce Anderson to inform drivers that the motor carrier operations were going to be changed to a "slip seat " operation and that regular tractors would no longer be "assigned " to them. Later that day, after hearing indirectly about the change, several drivers, including Bender, who had not yet been formally notified of the conversion, met that evening after work at a local bar to discuss what was happening. 1 All following dates will be in 1986 unless otherwise indicated. 2 In accordance with provisions made at the hearing the General Counsel filed a second amended complaint that incorporates oral amend- ment made at the hearing The Respondent also filed an amended answer and both documents (Bd. Exhs. 2(a) and (b)) are received into evidence 289 NLRB No. 72 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bender and other drivers were highly upset by the change because it meant that they would no longer drive the same vehicle each day but would change to different units and be faced with operating equipment of condition unknown and that had been used and slept in by other drivers. They also were upset because they no longer would be able to drive vehicles to their home as was their practice and because they had experienced serious, undesirable problems using the "slip seat" method when they worked for other companies. Near midnight the drivers learned that Anderson and Meyers had gone to a lounge at the Dubois Ramada Inn. Approximately seven drivers, including Bender and drivers John Slike, Ronald Dinklocher, John Davies, Danny Williams, Donald Manges, and Rummel went to the Ramada "to get some answers." The drivers each had about five to six beers during the evening, which they said was not an abnormal amount, prior to arriving at the Ramada Inn between 12:30 and 1 a.m. they found Anderson in the company of trainer and dispatcher Douglas Mills and two girls, Stephanie Scott, an assistant dispatcher and Kim Jenny, a traffic clerk, all employed at the Dubois terminal. Bender who led the drivers into the lounge approached the group and asked, "Who's the bigwig from Indianapolis?" Bender and the drivers were then introduced to Anderson. Then Bender, joined by the other drivers, particularly John Slike, began to voice their concerns about the switch to a "slip seat" system and Respondent's taking away their as- signed trucks. Anderson initially refused to discuss the matter, saying this was neither the time nor the place. The conversation became loud and profane (a band also was playing for part of this period), and Bender accused Anderson of "giving us a bunch of bullshit." Scott testi- fied that she told the drivers "to shut the fuck up" be- cause they were interrupting her "good time ." Several drivers testified that Anderson would not discuss their complaints and appeared to have a "smirk" on his face. Kim Jenny also testified that Anderson's face had "like a smirk." Jenny also testified that she heard someone tell Anderson "I'm going to kick your ass, or something to that effect" and believes that it was Jack Slike or Danny Williams. Slike testified that he, Bender, and Williams were talk- ing more than the others, that Williams' behavior was the most "radical" (Williams had already told the other drivers he was leaving for another job the next day) but that he did not make the remark to Anderson. He re- called hearing Bender tell Anderson "he could be knocked off of the stool." Bender recalls that he was upset that Anderson would not even discuss the matter with them and further upset by Anderson's smugness, and told Anderson that "you shouldn't be like that to people when they are asking you a question because some day, somebody is eventually going to knock you off your barstool." Anderson testified that he had dinner around 9 p.m. and then joined Mills at the bar around 10 p.m. and had two or three drinks prior to the arrival of the drivers. He did not know Bender at the time of the confrontation but recalls that Bender persisted in talking and said, "If you're taking my truck, I'm kicking your ass right now." Anderson said the comment was repeated at least once but was not accompanied by any raising of a fist or motion toward him; however, he said Bender pointed a finger at him, as if to emphasize his point. Anderson tes- tified that Williams also said he would kick his "ass." Anderson admitted that he has commonly heard such vulgarities around truckdrivers; however, the comment was not previously directed at him as a manager. He tes- tified that he was "concerned" about the confrontation with the group of emloyees but was not "upset" and made no effort to leave. After he did leave the bar area, he remained nearby and talked with some of the other drivers for about 10 minutes. The next day between 8 or 8:30 a.m., Bender, Slike, and driver Donald Bowman went to Respondent's termi- nal and asked Manager Richard Ramey for a meeting with Meyers; however, Meyers was not yet present. Bowman repeated the request between 9:30 and 10 a.m., when approximately 20 to 30 drivers were in the drivers' lounge. About 5 minutes later, Bender was called into Ramey's office and was told by Ramey that he was fired for "harassing a company official." Bender denied har- assing a company official and tried to explain to Ramey what had occurred. Ramey told Bender that he had 5 minutes to clear out his truck and get off Respondent's property. Anderson, Meyers, and Ramey held a meeting with about 12 to 14 drivers, including Bowman and Slike about 11:30 a.m. Meyers told the employees that some "radicals" went to the Ramada Inn the previous evening and that the "culprit" had been taken care of-dis- charged. Two witnesses testified that Meyers told the drivers that if any of them wished to continue their discussion, he would be glad to take his coat off and meet them in the backroom after the meeting. Bowman responded that he was there to find out about his job, but if Meyers wanted to, he would join Meyers in the backroom. No fight occurred and Bowman was not disciplined as a result of his challenge to Meyers. Anderson testified that when he went to the terminal the following morning Mills identified Bender and Wil- liams to him and Anderson told Meyers "what took place and how the threats were made to me (by both Bender and Williams), that I was going to get my ass kicked." Sometime prior to 10 a.m. Meyers called Indi- anapolis, spoke to some unidentified person at the com- pany's office and informed Anderson that Bender would be fired. Mills testified that neither he nor Anderson rec- ommended that anyone be fired and that he was just asked to identify the drivers for Anderson. Terminal Manager Richard Ramey testified that about 10 days before the incident Williams had informed him that he would be quitting for another job. Ramey said he told Williams he was a good driver and that he was wel- come back if things did not work out. On 12 September Williams went to the terminal to see if they wanted him to complete delivery of a load he had brought in the pre- vious evening but was told a local driver would do it. He went to Ramey's office around 10 a.m., confirmed that it was his last day, waited a short while, and filled LEASCO, INC. out and signed a resignation form supplied by Ramey. He was not asked about the previous evening and no mention of it was made. Williams recalls that Ramey shook his hand and again was told he was a good driver and to come back if he needed to. Ramey, however, in- dicated that this comment was made only at the earlier occasion. Ramey also testified that he was told by Meyers to ter- minate Bender between 8:30 and 9:30 a.m. Meyers told him he had just talked to "corporate" to bring Bender in, terminate him, and give him 10 or 15 minutes to get off the property. No other names were mentioned. Ramey previously had overheard Anderson, Meyers, and Mills mention Williams when they were talking about the inci- dent, and he told them that Williams had already given notice that he was quitting. He heard no statement that they were considering any discipline for Williams. Ramey said he called Bender to his office and told him that he screwed up last night, threatened a company offi- cial, and that he had been instructed by Meyers to termi- nate his employment. Bender argued that it did not happen on company property and asked what was going to happen to the other drivers. Ramey replied he did not know, it was not his decision. On cross-examination Ramey was asked why he did not fire Williams and he said that it was because he had already quit. He did not indicate whether anyone had suggested or inquired about also terminating Williams. Ramey also stated that he overheard Anderson's initial conversation with Meyers that morning, which occurred in an open area outside his office, and recalls that Ander- son's first words were "you should have been with me last night, I almost got my ass kicked." III. ADMISSIONS AND STIPULATIONS In its answer to the second amended complaint, Re- spondent admits that, on the evening of 11 September 1986, Bender concertedly complained regarding wages, hours, and working conditions. Respondent further stipu- lates that, by the same conduct, Bender was engaged in concerted activity for mutual aid or protection. IV. DISCUSSION The sole issue in this proceeding is whether Bender engaged in misconduct sufficient to deny him the protec- tion his concerted protest would have otherwise enjoyed under Section 7 of the Act. Bender was terminated the morning after he and others had engaged in a "loud and profane" conversation regarding working conditions with a company official in a public lounge. The alleged justification for Respond- ent's action is that Bender threatened a company supervi- sor. Respondent's disciplinary action was decided on or endorsed by an unidentified company official in Indian- apolis based on a phone conversation (with a possible reply) with another company supervisor, Meyers, who had heard about the incident minutes before. Meyers was at the Dubois terminal to inform drivers about the Com- pany's immediate changeover to a new type of operation, a change opposed by the drivers engaged in the conver- sational confrontation. Within 1-1/2 hours of first learn- 551 ing of the incident, Meyers directed Terminal Manager Ramey to terminate Bender. He made no attempt to interview Bender, the other terminal employees who were present, or any of the other drivers, and he made no other investigation of Bender's alleged conduct. Anderson and Mills, the two company officials who witnessed the incident, made no recommendation for dis- ciplinary action and the Respondent presented no evi- dence of any company policy regarding disciplinary ac- tions. Here, I find that the decision to terminate was based solely on Bender's alleged statement to Anderson: "if you take my truck, I'll kick your ass," which was construed to be a threat to a company supervisor. Bender denies making that specific comment; however, he admits using a somewhat similar phrase, absent any profanity. I do not credit Bender's description of his comment to Anderson, and I find that the corroborating and credible testimony of several witness to the incident clearly support Anderson's version of the words used. Anderson's testimony makes it clear that he considered Bender (who clearly was the most articulate driver) to be the principal spokesman for the group of drivers that attempted to speak with him. His impression was relayed to Meyers, who made a decision to pursue disciplinary action. Anderson also identified Williams as one who was present and who made a similar "I'll kick your ass" remark as well as other vulgarities. As noted above, no attempt was made to discipline Williams. He was not given any admonition for his role in the confrontation, and he was allowed to complete a previously announced plan to resign, although Respondent had the opportunity to terminate him before he did so, or to otherwise place some disciplinary-type admonition in his personal file. Although the conversation between Anderson and the drivers was loud and profane, it was not accompanied by any physical gestures such as the clenching or shaking of a fist, no invitation to "step outside," and no actual or potential physical contact. Anderson testified that he was "concerned" but was not "upset" and he remained around to talk for 10 or more minutes after Bender had assumed a peacemaker role and escorted the more ver- bally abusive Williams from the area. Slike offered an apology to Anderson at this time and Anderson other- wise remained seated in an open public lounge in the presence of two young women from the office. Ander- son, who is 5 feet 11 inches tall and weighs 245 pounds (compared with Bender at 6 feet 1 inch tall and 215 pounds), is a former truckdriver and was described as ap- pearing calm and unfrightened. Mills, who had heard Bender's remark to Anderson, subsequently had a con- versation with Bender and said he did not feel he was in any danger from Bender. As stated by the Board in Consumers Power Co., 282 NLRB 130, 132 (1986): The Board has long held, however, that there are certain parameters within which employees may act when engaged in concerted activities. The protec- tions Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD most likely to engender ill feelings and strong re- sponses. Thus, when an employee is discharged for conduct that is part of the res gestae of protected concerted activities, the relevant question is wheth- er the conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service. Here, Anderson and Mills, the two supervisors actual- ly present during the confrontation, did not take the matter so seriously that they recommended disciplinary action. Supervisor Meyers, however, initiated a phone call to other managerial personnel at company headquar- ters and then he instructed Terminal Manager Ramey to fire Bender. Meyers did so without benefit of any mean- ingful investigation and within only a few minutes of first learning of the incident. Respondent also failed to consider the use of the same language by Williams suffi- ciently egregious as to warrant even an admonition for his personal file and it also failed to react to Manager Ramey's offer to fight and driver Bowman's acceptance of that offer as egregious conduct that would warrant some disciplinary action against them, thereby indicating that Respondent has substantial discretion in choosing how it would respond to Bender's conduct. Under these circumstances, I conclude that Respond- ent's decision to discharge Bender was arbitrary, dis- criminatory, and capricious, and I infer that it would not have occurred were it not for Bender's protected con- certed protests about conditions of employment. Re- spondent seized on an incident in which an employee used a profane colloquialism and construed his statement as threatening, insubordinate conduct in order to get rid of an apparent leader of the drivers who had raised ques- tions about its planned changes in working conditions. Respondent imposed the most severe penalty possible, discharge, rather than some lesser degree of discipline that would have permitted Bender to remain as an em- ployee still in a position to speak out under the protec- tion of the Act. I find that the words used by Bender were not accom- panied by any other threats, actions, or circumstances that were understood by Anderson to be a threat of an actual physical confrontation. I find further that the phrase "I'll kick your ass" (and variations thereof) is a profane colloquialism used commonly to verbalize the speaker's desire to prevail over another person or group. Its apparent usage in this respect has been accepted by prominent sports and political figures and, standing alone in its ordinary usage, it does not convey a threat of actual physical harm. Accordingly, I find that the record fails to show that Bender's conduct was so egregious as to lose the protec- tion of the Act or of such a character as to render him unfit for further service. I conclude that the counsel for the General Counsel has met his overall burden of proof and has persuasively shown that Respondent's discharge of Bender violates Section 8(a)(1) of the Act as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging James E. Bender on 12 September 1986, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, it is recommended that the Re- spondent be ordered to cease and desist therefrom and to take the affirmative action described below, which is de- signed to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that Respondent be ordered to reinstate James E. Bender to his former job or, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered because of the discrimination practiced against him by payment to him of a sum of money equal to that which he normally would have earned from the date of the dis- crimination to the date of reinstatement, in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987),3 and that Respondent remove from its files any reference to the discharge and notify him in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel action against him. Otherwise, it is not considered to be necessary that a broad order be issued. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Leasco, Inc., Dubois, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any employee for activity protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer James E. Bender immediate and full reinstate- ment and make him whole for the losses he incurred as a result of the discrimination against him in the manner specified in the remedy section of this decision. (b) Remove from its files any reference to the dis- charge, of James E. Bender on 12 September 1986, and s Under New Horizons for the Retarded, interest is computed at the "short-term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Flori- da Steel Corp., 231 NLRB 651 (1977) * 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 LEASCO, INC. notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Dubois, Pennsylvania facility, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecu- tive 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. 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 553 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. Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge any employees for engaging in activities protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by the Act. WE WILL offer to James E. Bender immediate and full reinstatement and make him whole for any losses he may have incurred as a result of our discrimination against him in the manner specified in the remedy section of this decision. WE WILL remove from our files any reference to the discharge of James E. Bender on 12 September 1986 and notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against hun. LEASCO, INC.