Expressman Courier Service, Inc

EXPRESSMAN COURIER SERVICE Expressman Courier Service, Inc and Teamsters Local Union No 251, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO i Case 1-CA-24646 April 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 29, 1989, Administrative Law Judge Peter E Donnelly issued the attached decision The General Counsel filed exceptions and a sup porting 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 brief and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Expressman Courier Service, Inc, Cranston, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except the at- tached notice is substituted for that of the adminis- trative law judge ' On November 1 1987 the Teamsters International Union was read mitted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an admmistra 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 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings We find merit however in the General Counsels exceptions to certain inadvertent errors made by the judge In this regard the proper name of driver McKay is Joseph McKay and the document prepared by the Re spondent s majority shareholder Elizabeth DiLuglio entitled Review Drivers for Increase reflects the names of 29 employees including su pervisors and drivers In addition we note that Supervisor LeFebvre told driver Zozak that the Respondent decided to discharge driver Bernard on Saturday April 4 1987 8 The General Counsel has excepted to the judge s conclusion that the Respondent did not violate Sec 8 (a)(3) and (1) of the Act by failing to reemploy driver Bernard after the Respondent learned that Bernard was not the subject of the complaint on which his discharge was based In this regard we note that there is no evidence that Bernard requested re employment In addition the record contains no evidence that the Re spondent had a practice of offering reemployment to discharged employ ees or has ever offered reemployment to any discharged employee * We have modified the judge s notice to more fully conform with his recommended Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 769 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge our employees, thereby discriminating in regard to their hire and tenure of employment, in order to discourage membership in Teamsters Local Union No 251, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse men and Helpers of America, AFL-CIO WE WILL NOT interrogate employees concerning their union activities or the union activities of other employees WE WILL NOT give employees the impression that their union activities are under surveillance WE WILL NOT discourage employees from asso crating with prounion employees WE WILL NOT threaten to discharge employees for associating with prounion employees WE WILL NOT threaten to close our business if the employees select union representation WE WILL NOT solicit grievances or promise ben efits to employees to discourage union representa tion WE WILL NOT unlawfully contest the unemploy- ment compensation claims of employees for having filed unfair labor practice charges WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer William Kozak immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posy Iron, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above named or any other labor organiza tion EXPRESSMAN COURIER SERVICE, INC 293 NLRB No 94 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kathleen McCarthy Esq, for the General Counsel George Francis McDonnell Esq and David Mayberry Esq of Cranston, Rhode Island, for the Respondent DECISION III THE ALLEGED UNFAIR LABOR PRACTICES A Facts2 1 Supervisory status of Al DiLuglio, Steven Keane, and Greg LeFebvre STATEMENT OF THE CASE PETER E DONNELLY, Administrative Law Judge The original charge was filed on April 9 1987 by Teamsters Local Union No 251, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Charging Party or the Union) The ongi nal charge was amended on May 20, 1987 and a corn plaint thereon issued on June 24, 1987, alleging that Ex pressman Courier Service Inc (Respondent or Employ er) violated Section 8(a)(3) of the Act by discharging employees William Kozak and Edward Bernard because of their activity on behalf of the Union The complaint also alleges that Respondent violated Section 8(a)(1) of the Act by granting wage increases to employees and by unlawfully interrogating, threatening, and otherwise co ercing employees The complaint further alleges that Re spondent violated Section 8(a)(4) of the Act by contest ing the unemployment compensation claims of Kozak and Bernard An answer thereto was timely filed Pursu ant to notice, a hearing was held before me on Septem ber 2 and 3 and November 3, 4, and 5, 1987 Briefs have been timely filed by the General Counsel and Respond ent, which have been duly considered FINDINGS OF FACT I EMPLOYERS BUSINESS The Employer is a corporation with an office and place of business in Cranston Rhode Island where it is engaged in the operation of a parcel delivery service Employer annually derives gross revenues in excess of $50 000 for the transportation of freight and commodities from the State of Rhode Island directly to points outside the State of Rhode Island The complaint alleges the Employer admits and I find that the Employer is an em ployer engaged in commerce within the meaning of Sec tion 2(6) and (7) of the Act II LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act i ' The General Counsel moved in its beef to withdraw from the com plaint pars 7(b)(iv) and (vi) Because no testimony was offered to support those allegations the motion is granted 2 There is conflicting testimony regarding some allegations of corn plaint In resolving these conflicts I have taken nto consideration the ap parent interests of the witnesses In addition I have considered the inher ent probabilities the probabilities in light of other events corroboration or lack of it and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other wit nesses with similar apparent interests In evaluating the testimony of wit nesses I rely specifically on their demeanor and have made my findings accordingly Although apart from considerations of demeanor I have taken into account the above noted credibility considerations my failure to detail each of these is not to be deemed a failure on my part to have fully considered it Walkers 159 NLRB 1159 1161 (1966) a Al DiLuglio The record d scloses that Al DiLuglio is the husband of Elizabeth DiLuglio majority shareholder of Respond ent Previously he was part owner of the competing de livery service named Delivery Service Incorporated which has since gone out of business He works at the terminal every workday, averaging 6 hours a day and over 30 hours a week He answers telephones and deals with the customers as a representative of the Respond ent With respect to his hiring authority, DiLuglio testi fled that it is necessary for his wife to anprove hiring although several employees testified that they were hired by Al DiLuglio unaware of any participation that Eliza beth DiLuglio may have had in the hiring process Keane testified that Al DiLuglio participated in corpo rate business and disciplinary decisions, and the record bears this out with Al DiLuglio s involvement in the dis charges of both Bernard and Kozak Despite the fact that Al DiLuglio has no ownership position, and that he testified that he receives no salary and is presently unemployed, I conclude on the facts of this record that Al DiLuglio is viewed by drivers and the public as clearly aligned with management, in a manner more than sufficient to make him an agent of Re spondent and to make Respondent accountable for his actions Barnett Supply Co, 278 NLRB 1005 (1986) b Keane and LeFebvre Keane and LeFebvre are part owners of Respondent, each owning 8 3 percent of the stock with Elizabeth Di Luglio owning the remainder Both also act as dispatch ers and are responsible for directing the activities of the drivers in the delivery and pickup of parcels during the workday Keane testified that he can correct drivers and show them how to do their work Both are consulted in evaluating employees for raises and sometimes ride with drivers to evaluate their performances It appears that their recommendations on those matters are normally ap proved As owners, they participate in corporate deci Sion making including disciplinary decisions as evi denced by their participation in the decision to discharge Bernard Keane testified that as to hiring and firing he recommends to Elizabeth DiLuglio and, with her ap proval he has the authority to execute Given Keane and LeFebvre s financial interest in Respondent, as well as their direct role in the management of Respondent it seems clear that Respondent must be held accountable for their actions as its agents Roskin Bros 274 NLRB 413 (1985) 2 Organizational activity Respondent operates a parcel pickup and delivery service out of its place of business in Cranston, Rhode Island, and employs about 25 drivers in its operation EXPRESSMAN COURIER SERVICE along with dispatchers, warehousemen, clericals, and sales personnel, for a total complement of about 50 em ployees Early in the week of March 29, 1987,3 several of Re spondent s drivers, specifically William Kozak, Edward Bernard, Jim McKay Kevin 0 Donnell Paul D'Entre mont, and Kenny Brown, unhappy about their working conditions, were discussing their problem after work in the parking lot of a nearby business where they parked their cars The discussion took place after work and just before driving home D Entremont had the telephone number of the Union and gave it to Kozak who agreed to contact the Union for information about organizing On Wednesday April 1, Kozak spoke to Charlie Hankin son, a union business agent, who gave him some informa tion and told him they would need a meeting of the dnv ers, and particularly that they would need authorization cards from one third of the drivers in order for an NLRB election to be held After work on April 3, once again in the parking lot, Kozak told the group what he had been told by Hankinson and that Hankinson had sug gested that the drivers would meet with the Union It was agreed that Kozak would call Hankinson and set up a meeting Kozak did this and the meeeting was sched uled for 2 p in on Saturday, April 4 Union Representa tives Charles Hankinson and Lester Andrews spoke to them at this meeting 0 Donnell was designated as spokesman for the drivers present who included, in addi tion to those named above, Kevin Rodriguez and Al Pia ciante The drivers aired their complaints and were ad wised about organizing and the benefits of union organs zation The drivers present at this meeting all signed union authorization cards It was also agreed that the or ganizing effort among the drivers would be done secret ly To this end, 0 Donnell was given some authorization cards and he gave a few to Kozak 3 Kozak s discharge Elizabeth DiLuglio president and majority owner of Respondent testified that she maintained a petty cashbox in an unlocked drawer of her desk usually containing about $100 to $250 The petty cash was used to reim burse drivers for gas or tolls paid by them when they turned in receipts for such out of pocket expenses It was also used by William Fallon, night loading superintend ent, who occasionally gave money to the driver on the night run to New Jersey for gas and tolls Fallon would leave a slip in the box with the amount and the driver would turn in the receipts for the expenditures the fol lowing day DiLuglio testified that sometime in late March or early April she discovered, in reconciling the petty cash box money that small amounts of cash were missing from the box She discussed the matter with her husband, Al DiLuglio and they narrowed the suspects to the two in dividuals who were in the building alone at night, i e, Fallon and Kozak 4 Fallon worked from 9 until about 3 All dates refer to 1987 unless otherwise indicated * While the New Jersey driver was also present loading the truck with Fallon both testified that this driver always requested any money he needed from Fallon and did not himself go into the petty cash box 771 3 30 a in or whenever the New Jersey truck departed Kozak came in about 6 a in to pick up tapes for an early delivery prior to beginning his normal workday about 8 a in Both had keys to the office and both knew how to turn off and reset the alarm system on entering and leav ing the premises Al DiLuglio determined to set a trap to see who was stealing the money To this end on Thursday night, April 2, about 9 30 p in, Al DiLuglio went to the petty cash box and counted the money It contained $138 Only Fallon was on the premises at that time Al DiLug Ito then left and returned again on the morning of Friday, April 3, about 5 a in after Fallon had left There was still $138 Al DLLugho left again and waited until Kozak arrived about 6 a in to pick up the tapes for his early morning delivery After Kozak left, Al DLLuglto reentered the terminal and counted the petty cash and discovered that $40 was missing Thereafter, he went home and told his wife what he had discovered Kozak returned at 8 a in to pick up his packages and worked a normal day Nothing was said to Kozak about the matter on Friday, and no further investigation was conducted Both Elizabeth and Al DiLuglio testified that it was not their intention to fire Kozak but to discuss the matter with him However, there was no discussion with Kozak on Friday On Monday, April 6, Elizabeth DiLuglio called Greg LeFebvre to have him come in at 6 a in because she did not want Kozak in the building alone However, this pre caution became academic when Kozak's car broke down and he was unable to get in until his normal 8 a in start ing time for his regular route Once again on Monday Kozak did a normal day s work and no one spoke to him about the alleged theft When asked if she had called Kozak in to ask about the alleged theft she responded No, I didn t I was planning on talking to him Monday night" However, according to Elizabeth Di Luglio, Kozak was irate and agitated in the morn ing, throwing packages into his truck, and she was afraid to confront him Elizabeth DiLugho testified that she de cided to eliminate any discussion with Kozak stating Well I waited until he came in at night and he was still agitated I decided that I would eliminate it " Other events occurred on Monday afternoon Kozak testified that about 4 15 or 4 30 p in he spoke to drivers Mike Rannucci and Andy McKeon just outside the building He asked them if 0 Donnell had called them over the week about signing cards for the Union They replied that he had but that they did not want to sign them Rannucci then told Keane that someone had asked him to sign a union card up the street Having learned that someone was trying to get people to sign union cards, Keane testified that he got a little nervous and did not know what to do Al DiLugho was on the road and Elizabeth DLLugho was in her office Keane decided to share this information with Elizabeth DiLug ho Keane testified that Elizabeth DiLugho became kind of nervous According to Keane she said, "What do you mean union cards down the corner? Well, they are trying to get a union in here She asked me who was down there I didn t know who was down there At 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this point according to Keane, she paged Al DiLuglio on his beeper for him to call her Al DiLuglio testified that he spoke to his wife by telephone on Monday about 4 p in , responding to the page According to him, she was upset, telling him that Kozak was acting like a maniac throwing packages around and hollering and screaming and she asked him to come back and fire Kozak At this time Al DiLuglio drove back to the ter minal and met Kozak as he was walking to the parking lot with another driver, Jim McKay Al DiLuglio pulled up to where they were walking, accused Kozak of being a fucking thief and told him he was fired After an ex change of profanity, McKay and Kozak went to the parking lot and, shortly thereafter, Kevin 0 Donnell ar rived As they were talking together, Al DiLuglio and LeFebvre came into the parking lot Al DiLuglio ap proached Kozak as he and 0 Donnell were talking in Kozak s car DiLuglio told Kozak he had better leave if he knew what was good for him and told 0 Donnell and McKay not to be seen around him because they were getting a bad reputation LeFebvre also took McKay aside and asked him if Kozak was trying to get him to sign union cards McKay responded no, that he did not know what LeFebvre was talking about, although, as noted above, McKay had signed an authorization card at the union hall on Saturday LeFebvre warned him not to hang around with Kozak, that he was giving McKay a bad reputation 5 Kozak also testified that LeFebvre came to where 0 Donnell and Kozak were sitting in Kozak s car, bent down, and said to 0 Donnell, What s up, where s the cards? We know all about the Union About this time, Elizabeth DiLuglio came into the parking lot and made an attempt to bring matters under control because the discussions had become very loud She testified that while she was in the parking lot and at a time when Kozak and O'Donnell were talking in Kozak s car, she was able to determine that 0 Donnell asked Kozak `What s this about a union or What s this about a union card She testified that she did not actually hear the words spoken, but knew what was being said by her ability to lip read She then said to everyone What s this about a union" stating that she could not believe what was going on She then told Al DiLuglio and Le Febvre to return to the terminal and all of them began to leave As they were leaving LeFebvre told McKay, Don t even think of signing a union card With respect to Kozak s alleged theft, Elizabeth DiLuglio did not report the theft to the police until April 14 when on the advice of Matthew Duffey, a personal friend and Cran ston police department detective, she reported the theft to the Cranston police department However the DiLug lios declined to press charges and the case was closed on April 15 4 Bernard's discharge Bernard was hired in September 1986 as a pickup and delivery driver The geographical area he served includ ed Lincoln Rhode Island On Wednesday April 1 Ber nard made a delivery of about 13 packages of Tupper 6 LeFebvre did not testify at the hearing ware to a house in Lincoln The woman Jean Hudson, was accepting delivery for her neighbor Tupperware Manager Linda Burton Bernard asked to leave the packages on her porch but Hudson told him that she wanted the packages put in her cellar The cellar was wet from rain, but Hudson s hus band had put planks on the floor to keep the packages dry Bernard remarked that it looked as if he could not throw the packages into the basement and Hudson agreed that he could not Bernard asked if he could drive across the lawn to back up to the cellar, and Hudson re fused Thereafter, Bernard delivered the packages into the cellar although as he testified he wasn t too happy with it While Bernard was delivering the packages, Hudson called Burton and told her that the driver was not pleased with having to deliver into the cellar and asked if she was asking more than the driver was supposed to do Burton said she would find out On the following day Thursday April 2, Burton and some other Tupperware representatives were at the warehouse of My Tee Sales Co, distributors of Tupper ware products in Rhode Island Burton asked Warehouse Foreman Steve Hanlon about a problem with a delivery in which a driver, rather than delivering packages to a second floor apartment, left the packages on the first floor, got a signature, and left Hanlon assumed that this second floor incident took place in Lincoln, because Burton lived in Lincoln Later in the day, Hanlon called Al DiLuglio and complained to him about the second floor incident, erroneously describing the location of that incident as Lincoln rather than Pawtucket where the in cident had actually occurred He told Al DiLuglio that he wanted the problem resolved because if the Tupper ware managers and dealers who received the packages were not happy he would have to find another delivery service Later, on Thursday, April 2 6 when Bernard came in from his route about 4 30 p in , Al DiLugho confronted him with the problem that DiLuglio understood to be Bernard's refusal to make a second floor delivery in Lin coin Understandably, Bernard protested that he had not refused to make any second floor delivery that day and Al DiLuglio remarked that Hanlon must have made a mistake in describing the incident as upstairs Bernard volunteered that his problem was that he did not want to make a basement delivery and that it was not cost effi cient for the Company to make inside deliveries Al Di Lugho told Bernard that he was supposed to deliver downstairs on request The exchange became more heated and both were loud and abusive toward one an other even to the extent of raising their hands to one an other However no fight occurred and Al DiLuglio left the scene After the close of business on Friday evening, April 3, a management group consisting of Keane, LeFebvre, Al and Elizabeth DiLuglio, and James Apostolou owner of Rhode Island Freight Systems, held an informal end of 6 Although Bernard testified that it was Friday the corroborating testi mony of Al DiLuglio and Keane convinces me that Thursday is the cor rect date EXPRESSMAN COURIER SERVICE the week discussion Respondent makes pickups and de liveries for Rhode Island Freight Systems and Apostolou was there discussing a business matter The discussion turned to the work performance of Bernard His work record and attendance were re viewed Al DiLuglio raised the Tupperware matter, spe cifically the downstairs' incident in Lincoln, and his confrontation the previous day with Bernard There was some discussion about his poor attitude,' prior incidents involving customer deliveries, and the care and use of his vehicle A decision was made to terminate him Eliza beth DiLuglio asked LeFebvre to call Bernard with the message but attempts to reach him Friday night and over the weekend were unsuccessful On Monday morn ing about 7 15 am, before he left his home for work, Bernard received a call from LeFebvre telling him that a corporation decision had been made to discharge him because he had lost the Tupperware account After this telephone call, Bernard went to the facility and told the other drivers he had been fired In the park ing lot, he went to Kozak who went into the office where he was told by LeFebvre about the decision that had been made on Friday to fire Bernard On being advised by Bernard that he did not have any second floor delivery problem in Lincoln, Kozak, who had a pickup at My Tee Sales on his route this day spoke to Hanlon about the incident about 2 p in He ex plained to Hanlon that Bernard had no second floor de livery in Lincoln Hanlon then checked with Burton who told him the second floor incident was in Pawtuck et, not Lincoln Later on that day, Kozak called Hanlon from his route, and Hanlon told him about the mistake Kozak said he would see Al DiLuglio about it On Tues day, when Kozak did not appear for his customary pickup at My Tee Sales, Hanlon called Al DiLuglio He apologized for the mistake he had made in that he should have said Pawtucket rather than Lincoln DiLuglio told him not to worry about it that the Lincoln driver had jeopardized two other accounts and that his wife had a long list in the office It is undisputed that after learning of the mistake Respondent made no effort to rehire Ber nard 5 The 8(a)(1) allegations a Greg LeFebvre and Al DiLuglio-April 6 -parking lot conversation The probative facts concerning this conversation are set out above in connection with Kozak s discharge Le Febvre participated in this conversation including ques tions to 0 Donnell concerning the whereabouts of union cards, and asking McKay if Kozak was trying to get him to sign a union card Such inquiries constitute unlawful interrogation because they interfere with the organiza tional rights guaranteed to employees under the Act Le Febvre also told employees that Respondent knew about the Union Such remarks are coercive because they give to employees the impression that the union activities are With respect to Bernard s attitude D Entremont one of the authon zation card signers and a union supporter testified that Bernard had a stubborn and unpleasant attitude 773 under surveillance by the employer thus inhibiting the organizational rights guaranteed to employees under the Act Likewise, it is also inhibitive of those rights to threaten, even by implication, the employment of em ployees because of their association with prounion em ployees, which Respondent did, by warning McKay that he was getting a bad reputation hanging around Kozak Clearly LeFebvre unlawfully threatened McKay as he was leaving the parking lot by telling McKay not even to think about signing a union card Al DiLuglio, during the same conversation, violated the Act in much the same manner He had just dis charged Kozak unlawfully because of his union activity Thus he believed that Kozak was a union adherent In these circumstances, it was unlawful to question employ ees about their relationships with Kozak or to threaten them, expressly or impliedly, for speaking to or associat ing with Kozak, because such prohibitions constitute an unlawful restriction on their union activity protected under Section 7 of the Act b April 7-meeting of employees After the parking lot incident on the evening of April 6, LeFebvre, Keane Al DiLuglio, and Elizabeth DiLug ho gathered to discuss the union phenomena and to assess its implications It was decided that Elizabeth Di Luglio should hold a meeting of the dnvers on the fol lowing day to face the problem The meeting was short, about 10 minutes or so The meeting was attended by Keane, LeFebvre and the DiLuglios Elizabeth Di Luglio told the employees that Respondent was a new company and that it could not afford a union She told the drivers that if the Union did get in and she could not support a union she would close the doors She also stated that they did not really need a union and that, if there was a problem, to see her She asked why they needed a union when she was always there, and always willing to help them and why did they not come to her first before going to the Union and involving everyone in that In these circumstances Elizabeth DiLuglio's comments amount to a solicitation of drivers to come to her rather than the Union with the clear implication that any grievances brought to her would be favorably re solved Such solicitations to induce employees from exer cising their right to union representation coerces them within the meaning of Section 8(a)(1) of the Act Al DiLuglio also took occasion to speak to the dnv ers, and his remarks were somewhat more direct Ac cording to Keane he told them in essence, that to avoid any problems with the Union he would close down and start another company with a different name and employ only owner operators as drivers Basically, Al DiLuglio was threatening to close the plant if it was organized resume operations under another name, and eliminate using employees as drivers presumably to avoid further organizational attempts Such threats of closing, with the concomitant loss of employment to drivers is clearly in terference with the organizational rights of employees protected by Section 8(a)(1) of the Act 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c Mid April 1987 Sometime during mid April 1987, Elizabeth DiLuglio called Ken Brown into her office She asked him if he had signed a union card Brown admitted that he had and she asked him why Brown responded that it was not really for more money but for better vehicle and working conditions DiLuglio remarked that they did not have to go the Union, that they could have come to her DiLuglio added that what was done had been done and that if he had any problems, to talk to her personally In substance, DiLuglio s remarks were coercive and the in terrogation was unlawful in that DiLuglio s offer to assist Brown was tantamount to unlawful employer inter ference with a union organizational effort by soliciting employees to bring their complaints or grievances direct ly to the employer 6 Wage increases Elizabeth DiLuglio testified that Respondent was in corporated in February 1985 and began operations in July 1985 on the strength of one contract with the State of Rhode Island, with one driver and two trucks Thus the business had been operating only a couple of months at the end of the fiscal year on September 30 1985 It appears that starting employees without experience were normally given $300 a week with $25 raises after 30 days and 60 days of employment, assuming they were re tamed Experienced new hires started at top salary and would not get the 30 day raises Thus within 60 days, the drivers were all making comparable wages Elizabeth DiLuglio also testified that the payroll was an informal matter that she handled herself by hand until July 1986 when the business boomed and most of the drivers were hired, due to the fact that another competing delivery service went out of business According to Elizabeth DiLuglio, beginning in Sep tember 1986 in addition to the 30 and 60 day raises, em ployees were performance reviewed at 6 month intervals at the end and mid fiscal year i e September and March The record however discloses no formal application of these review standards but does in any event disclose a review of all drivers in March 1987 A handwritten doc ument prepared by Elizabeth DiLugho captioned, Review Drivers for Increase ' dated March 25, 1987, is in evidence She testified that it was prepared and dated by her at that time The document reflects the names of 29 drivers Raises were given to 11 drivers Others were noted as questionable, pending further review Pencil no tations apparently made later, show that Bernard and Kozak were fired and one driver, Al Piacento quit On April 6, DiLugho gave the pay increase informa tion to the payroll company, and also notified some em ployees that they would be receiving pay raises in their checks on Thursday, April 9 On the next payday, Thus day, April 16 four more were given raises and on the following payday, Thursday, April 23 raises were given to two additional employees Elizabeth DiLugho testified that all the raises were given and made pursuant to indi vidual evaluations of performance8 and that in the cases of drivers Anthony Licata and Joseph McKay, withheld until April 16 and 23, respectively, until they were ap proved after an reevaluation 7 Interference by unlawfully contesting the unemployment compensation claims of Kozak and Bernard After their discharges on April 6, both Kozak and Ber nard went to the Rhode Island Department of Employ ment Service (DES) to file claims for unemployment compensation Within a couple of days, Elizabeth Di Luglio was contacted by the DES, which inquired as to the reasons for their discharges According to DiLuglio, she responded that while they had both been discharged, she wanted to have them treated as having been laid off for lack of work for DES purposes so that they would be eligible for unemployment compensation Elizabeth DtLugho explained this misrepresentation as an act of compassion based on her consideration for their families The DES agent advised her this could be done so long as she was aware that Respondents DES account would be charged Thereafter, benefits were allowed to both Kozak and Bernard Shortly thereafter, she spoke to her attorney who ad vised that it was wrong to have told DES that they were laid off for lack of work when they had really been dis charged and she called DES in an effort to correct her error On the advice of DES DiLuglio appealed the de cision by letter on April 22, and hearings on those ap peals were held on July 10 for Kozak and July 12 for Bernard The decisions in both cases issued on July 21, denying Respondents appeals on the grounds that at though the Respondent may actually have discharged them, benefits should be allowed because to hold other wise would unfairly penalize all other employers in the State of Rhode Island because their common fund would have to be tapped in order to pay the benefits allowed up until the time that benefits would have been cut off B Discussion and Analysis 1 Kozak's discharge Kozak was one of the group of drivers involved in the first discussions about organizing the Respondent He was their contact in communicating with the Union He arranged the first organizational meeting at the union hall and was given authorization cards at this meeting He also spoke to other drivers, notably Mike Ranucci about their interest in supporting the Union s organiza tional effort There is no doubt that Kozak was a prime mover in the organizational effort Elizabeth DiLuglio denies that she was aware of any union activity until she received the unfair labor practice charge filed by the Union on April 13 Although this may have been the first formal document suggesting the Union's involvement in an organizational process the record makes it clear that DiLuglio became aware of the 8 Except for Dennis Bradley a new hire who was raised under the 30 and 60-day pay raise policy set out above EXPRESSMAN COURIER SERVICE Unions organizational effort about 4 p in on Monday, April 6, when Ranucci told Keane about having been so licited, and Keane, in turn, told DiLuglio who became upset by this information It is undisputed that Elizabeth DiLuglio was informed of the union organizational activity by Keane and that this information unsettled or alarmed her and that she immediately called her husband The General Counsel contends that as a result of that conversation, Al DiLug ho returned to the terminal and discharged Kozak for his participation in the Union s organizational effort Despite Respondent's contention that Kozak was discharged for theft, I am persuaded that the General Counsel's position is supported by the evidence First, assuming that Respondent had a good faith belief that Kozak stole $40, the record makes it abundantly clear that Elizabeth and Al DiLuglio intended only to discuss the matter with him This much is conceded by Elizabeth DiLuglio who testified that she only decided to fire Kozak when he became agitated' when he came in from work on Monday night The record is, however, noticeably short on detail as to what Kozak may have said or done to cause Elizabeth DiLuglio to believe that he was agitated The question is, what happened be tween the time of the alleged theft and Kozak s dis charge that caused Respondent to decide that rather than talk to Kozak, he must be immediately discharged with out even having been confronted by his accuser, or given any opportunity to explain his position, or even spoken to about the incident The major and significant event was obviously the discovery by Keane and Eliza beth DiLuglio that the Union was organizing the Re spondent whereupon Kozak was precipitusly discharged without notice It strains credulity, in light of the timing of Kozak s discharge to believe that he was discharged for theft that had occurred several days previously The alleged theft occurred in the early morning hours of Friday, April 3 No one spoke to him about the incident from then until the time he was discharged on Monday evening, May 6 There is no adequate explanation for summarily discharging Kozak within the hour after Eliz abeth DiLuglio learned of the union organizing activity It is simply too much to swallow In addition, the evidence of union animus displayed by representatives of Respondent and the emotionally charged confrontation in the parking lot after Kozak s discharge as well as other coercive 8(a)(1) antiunion conduct set out above, all contribute to support the con clusion that Respondent violated Section 8(a)(3) of the Act and that Kozak's discharge was motivated by antiun ion considerations In applying the Wright Line9 test in the instant case, I am satisfied that even assuming that Kozak committed the theft in question, that this was not the motivating factor in his discharge In other words, I conclude that based on a full consideration of the entire record that the General Counsel has made a prima facie showing that Kozak s union activity was a motivating factor in Re spondent s decision to fire him and further that Re 9 Wright Line 251 NLRB 1083 (1980) 775 spondent has not shown that he would have been dis charged even if he had not been engaged in any union activity 2 Bernard s discharge The basic question raised by Bernard's discharge is whether Respondent knew abou* his union activity Ob viously, if Respondent was not aware that Bernard was engaged in any union activity, it would not have been possible to discharge him for that reason First, apart from signing a union card at the Saturday meeting, Ber nard's union activity was minimal Moreover, in review ing the probative facts, it appears that a delivery incident occurred on Wednesday, April 1 Hanlon complained to Al DiLuglio on April 2 Also, the corroborated testimo ny of several participants established that the decision to discharge Bernard was made at an impromptu meeting of management on the evening of Friday, April 3, the night before the union meeting of drivers at the union hall on Saturday, April 4 Further, the record does not reveal any evidence that Respondent was aware of any union activity until late afternoon on Monday, April 6, when Keane reported it to Elizabeth DiLuglio There is no reasonable basis in the record on which to impute any company knowledge of union activity prior to that time Thus the decision to discharge Bernard as well as his dis charge on the morning of Monday, April 6, occurred before Respondent was aware of any organizational ac tivity and therefore could not have been the motivation for Bernard s discharge Thus it becomes apparent that the reasons assigned by Respondent for the discharge, i e , the downstairs incident, work record and attitude, are credible The General Counsel, however, takes the position that even if Bernard s discharge was not discriminatory, Re spondent s failure to recall Bernard after it learned, on the following Tuesday, of Hanlon s error in identifying the location of the second floor delivery incident and after it became aware that Bernard was not responsible for the second floor incident, was discriminatory I do not agree Having concluded that the discharge was not an unfair labor practice, the General Counsel is obliged to show discrimination in Respondents subsequent fail ure to offer reemployment and this has not been done A review of the facts discloses that during their confronta tion on Thursday evening, Bernard volunteered to Al Diluglio the information cone ernmg the downstairs mci dent for which he was responsible At this point DiLug lio was aware at least that Bernard had been involved in a downstairs incident in Lincoln and DiLugho had that information when the decision to discharge Bernard was made on the following day That incident was a prime factor in the decision to discharge him The following night a decision was made to discharge Bernard Hanlon then called Al DiLuglio on Tuesday, April 7 apologized for the error and explained the upstairs incident was in Pawtucket not Lincoln The General Counsel argues that having been advised of the error, the slate was clean and that it was discriminatory for Respondent not to offer reemployment to Bernard I do not agree First of all, Al DiLuglio knew about the downstairs incident be 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause Bernard had volunteered the information to him on Thursday evening and it was that incident rather than the upstairs incident that was discussed on Friday and was a motivating factor in Bernard s discharge It is clear that the downstairs incident did occur and that, along with his record, were known to Respondent and were the primary causes for his discharge In these cir cumstances, I cannot conclude that Hanlon s explanation on the following Tuesday triggered any obligation on the part of the Respondent to reemploy Bernard 3 Wage increase The General Counsel concedes that in order to estab lish illegality in the granting of wage increases, it must show that Respondent was aware of the union organiz ing activity and that the motivation for granting the in creases was discriminatory The facts, however, do not support this conclusion Documentation in the record supports the fact that Eliz abeth DlLuglio reviewed the drivers salary on March 25 and decided at that time to grant the wage increases in issue This information was given to the payroll compa ny on Monday, April 6, and the raises appeared in checks distributed on Thursday, April 9 As noted above, the probative evidence does not show any knowl edge by Respondent of union activity until the evening of Monday, April 6 Accordingly, it would not have been possible for Elizabeth DlLuglio to have decided on wage increases for antiunion considerations on March 25, because at that time she was not aware of any union or ganizing activity 10 General Counsel further contends that apart from the above wage increases, several other drivers received pay raises in the following two pay periods that the General Counsel appears to suggest were discriminatory Howev er, Saccoccia and 0 Donnell appear to have been ap proved for the raise on March 25 even though not re ceived until the payday of April 16 Licata and McKay were also granted raises pursuant to the March 25 review after a supervised reevaluation Dennis Bradley a recent hire was raised pursuant to 30 and 90 day after hire raise policy Como was designated as not due by Di Lulgio on the March 25 evaluation, and the record is not clear why he was raised in view of that notation except that DlLuglio testified that it was based on his perform ance Clearly, the raises were contemplated by the March 25 review with the exception of Bradley and Como Although the record shows a delay in putting the original and some of the subsequent raises (Saccoccia and 0 Donnell) into effect there has been no showing by the General Counsel that the decision was discrimina tory either as to those raises or any of the others put into effect later Essentially the General Counsel argues that because Respondent was aware of union activity on April 6, the raises granted thereafter were, by implica tion discnmmatorily motivated However more is nec essary to conclude that the wage increases were discnmi 10 The notations on the wage review document to the effect that Kozak and Bernard were fired and Piacente quit were obviously not made until after March 26 However this does not affect the validity of the document natory specifically that the granting of the wage in creases was motivated by antiunion considerations This has not been done and, accordingly I cannot conclude that any of the wage increases, either before or after Re spondent became aware of the Union s organizational effort, were discriminatory 4 Interference by unlawfully contesting the unemployment claims of Kozak and Bernard The General Counsel contended that Respondent un lawfully contested the unemployment compensation of Kozak and Bernard because they had filed unfair labor practice charges Respondent argues that its action was taken on advice of counsel and lawful It appears that when Elizabeth DlLuglio were first contacted by DES, she explained that although they had actually been discharged she wanted them treated as laid off in order that they might receive benefits She was ad vised by DES that this could be done so long as she un derstood Respondents account would be charged Unless we assume that DES was advising her to act ille gaily, this would not be unlawful 11 According to Eliza beth DiLuglio, despite this advice from DES, the matter was taken up with her attorney and she was advised by him that what she had done was criminal and on that advice she reversed her position by telephone to DES on April 15 However, this explanation seems contrived in view of the fact that this reversal of position took place dust 2 days after she received notice of the unfair labor practice charge filed by Kozak and Bernard Also, apart from its timing this reversal of position is also suspect where it was allegedly based on the advice of Respond ent s attorney since there appears to be no rationale in the record for why the attorney was advising DiLuglio that her conduct had been unlawful Accordingly, I con clude that Respondent did unlawfully contest the unem ployment benefits of both Kozak and Bernard for having filed unfair labor practice charges in the instant case IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III above occurring in connection with Respondent s operations described in section I, above have a close and intimate relationship to trade traffic and commerce among the several States and tend to lead to labor dis putes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirm ative action designed to effectuate the policies of the Act I have found that Respondent discharged William Kozak for reasons that offended the provisions of Sec tion 8(a)(3) and (1) of the Act I shall therefore recom mend that the Employer make him whole for any loss of I1 This conclusion is supported by the decision on appeal wherein Re spondent was not allowed to change its position EXPRESSMAN COURIER SERVICE pay he may have suffered as a result of the discrimina tion practiced against him All backpay and reimburse ment provided herein with interest, shall be computed in the manner described in New Horizons for the Retarded 112 and F W Woolworth Co, 90 NLRB 289 (1950) 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 interfering with, restraining, and coercing em ployees in the exercise of the rights guaranteed them by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act 4 By discriminating against William Kozak and Edward Bernard for having filed unfair labor practice charges, Respondent has engaged in and is engaging in unfair labor practices prescribed by Section 8(a)(4) of the Act S By discharging William Kozak, Respondent has en gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 13 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed14 ORDER The Respondent, Expressman Courier Service, Inc Cranston, Rhode Island, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union ac tivities and the union activities of other employees (b) Giving employees the impression that their union activities are under surveillance (c) Discouraging the association of employees with prounion employees (d) Threatening to discharge employees for their asso ciation with prounion employees 12 In accordance with the Board s decision in New Horizons for the Re Larded 283 NLRB 1731 (1987) interest on and after January 1 1987 shall be 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 on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 18 In the absence of circumstances indicating the propriety of a visits tonal clause as a part of the proposed remedial order the General Court sel s request therefore is denied '4 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 put poses 777 (e) Threatening to close the business if the employees selected union representation (f) Soliciting grievances and promising benefits to em ployees to discourage union representation (g) Unlawfully contesting unemployment compensa tion claims of employees for filing unfair labor practice charges (h) Discharging employees in order to discourage their membership in or activities on behalf of Teamsters Local Union No 251, a/w International Brotherhood, Team sters, Chauffeurs, Warehousemen and Helpers of Amer ica, AFL-CIO (i) 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 to William Kozak immediate and full rein statement to his former job or, if that job no longer exists, to substantially equivalent employment and make him whole for any loss of pay he may have suffered as a result of the discrimination practiced against him in the manner set forth in the remedy section of this decision (b) Remove from its files any reference to the dis charge of William Kozak and notify him in writing that this has been done and that evidence of his unlawful dis charge will not be used as a basis for future personnel action 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 Cranston Rhode Island facility copies of the attached notice marked Appendix 15 Copies of the notice on forms provided by the Regional Director for Region 1 after being signed by the Respondent's author ized representative, shall be posted by the Respondent immediately upon 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 15 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