Pork King Co., Inc.

PORK KING COMPANY, INC. Pork King Company, Inc. and Louis Rivcra. Case 2- CA- 15647 September 11, 1980 DECISION AND ORDER On June 25, 1979, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order for the following reasons. Louis Rivera was first employed by Respondent in 1972. He became shop steward in 1973 and re- mained at Respondent's Boston Road plant (except for the period of his discharge in 1975) until his transfer to Respondent's Hunts Point facility around November 1977. During the last week of April 1978, he was reassigned to the Boston Road plant-a move about which he registered several complaints. 3 On May 15, Puntolillo followed Rivera because of a continuing concern that Rivera was wasting too much time in making deliveries.4 After noting i The General Counsel and the Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In finding no merit in the General Counsel's contention that Re- spondent's asserted reasons for Rivera's discharge were pretextual, we do not rely on the Administrative Law Judge's discussion of mixed motive cases such as Waterbury Community Antenna, Inc. v. N.L.R.B., 587 F.2d 90 (2d Cir. 1978), as the rationale expressed therein is in our view inappli- cable to the present facts. 3 This was seemingly not unusual for Rivera, who had also apparently protested his transfer from Boston Road to Hunts Point the previous No- vember. He complained to both of Respondent's co-owners, Puntolillo and Cheswick, and to Union Business Agent Weinstein, who told him that Respondent could transfer him wherever it wanted. When informed that the transfer appeared permanent (Cheswick demurred at taking Rivera back at Hunts Point, because of his continual complaining and re- luctance to cooperate with other employees), Rivera demanded that Pun- tolillo compensate him by reallocating Saturday work so that Rivera "would be able to make extra money." Puntolillo initially declined, but Respondent later called and offered Rivera the opportunity to work the following day, which Rivera accepted. He complained again the follow- ing Friday, because his Saturday pay was included in his paycheck, whereas he understood that other employees were paid "off the books." and put in a call to Weinstein, who had already left for the day. Howev- er, Weinstein, who frequently stopped to have coffee at Respondent's fa- cility, arrived the following Monday morning. He met Rivera outside, told him to go inside and go to work, briefly conferred with Puntolillo over use of a time record book, then spoke briefly to Rivera and left. Ultimately it was Rivera, not the Union, that filed the charge. 4 We view as misplaced our dissenting colleague's reliance on the fact that Puntolillo had been aware of this shortcoming of Rivera's for some time. True, Puntolillo testified that Rivera was in general a good driver, 252 NLRB No 4 Rivera's unauthorized stop at an off-track betting office, Puntolillo returned to the plant, for lack of time to follow him farther. On Tuesday, business was too brisk for Puntolillo to follow Rivera. On Wednesday, he detailed an inside employee and a supervisor to follow Rivera, with instructions to note any unauthorized stops and, if any were made, to determine whether the keys were still in the truck. If so, they were to return the truck to the plant, otherwise to continue. In between deliveries, Rivera parked and sat in the truck on three occasions, totaling about an hour. On Thursday, May 18, Puntolillo detailed the same employees to follow Rivera again. He made three deliveries, then parked the truck and went into an off-track betting office (OTB). Employee Rascona entered the open truck, found the keys to both the ignition and the body in plain view in the cab, and proceeded to drive the truck back to Re- spondent's premises pursuant to instructions. When Rivera came out of the betting office and noted that the truck was missing, he reported it to police officers sitting in a cruiser parked where the truck had been. 5 He was taken to the local precinct where he called Respondent, who told the police that the truck was not stolen,6 and informed Rivera that he was discharged. Puntolillo also noti- fied the Union that same afternoon, in a telephone call to Weinstein, and by letter. 7 although the problem of his taking too much time was a longstanding one. (Indeed, Rivera's discharge by Respondent in 1975 was similarly for "goofing off' while ostensibly making deliveries. In that instance, the Union eventually prevailed upon Respondent to take Rivera back.) But we do not consider that inconsistent with his further testimony that the problem had become "especially" prevalent in the 3-week period follow- ing Rivera's return to Boston Road. Nor is it surprising that Puntolillo would become increasingly sensitive to the problem after the lack of direct contact with Rivera during the prior 6 months I Rivera's contention that he was in the off-track betting office for a total of "only 3 to 5 minutes" seems incompatible with his further testi- mony that, although the truck was legally parked, he thought it had been towed away by the police when he returned to the street 6 When Rivera called Respondent, he talked to Ray Lyons, the super- visor who had been following him. I The dissent's contentions that Respondent's asserted reasons for the discharge is "undercut" by its letter and that the letter itself "plainly re- veals that Respondent told the Union that Rivera was being discharged because of time lost," in our view represents a misapprehension of the record. Respondent's letter to Weinstein began: "I am writing this letter to inform you that on Thursday, May 18, 1978 1 am discharging Louis Rivera for the following reasons from my employ " It fully details the events relating to Rvera's being followed on Monday, Wednesday, and Thursday, including Rascona's entering the truck outside the OTB office, finding the ignition and body keys in the cab and driving it back to Boston Road, and informing the police department that the truck was not stolen. The letter concludes: "Louis Rivera was told at that time he was discharged." While the Administrative Law Judge did not specifically discuss the letter we, contrary to our dissenting colleague, find it plainly consistent with Puntolillo's affidavit and his testimony at the hearing. Further, as noted above, Puntolillo also telephoned Weinstein that after- noon about the discharge, as Rivera himself confirmed in his testimony Rivera's recitation of Winstein's just-completed telephone conversation with Respondent was cut off by counsel for the General Counsel, who Continued 99 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, we find that the record supports the Administrative Law Judge's conclu- sion that Respondent discharged Rivera not be- cause he was a member of or shop steward for the Union,8 or for engaging in protected activity, but rather because he left the truck open during an un- authorized stop with the keys available (whether "deliberately" or not) in such a manner as to permit, if not invite, theft of the truck and its valu- able quantity of Respondent's products. Our colleague would analogize this case to cases where a Weingarten interview9 is followed by a discharge based upon information obtained at the interview.'0 Assuming the validity of such an anal- ogy, we would reject it here where counsel for the General Counsel, in his opening statement, de- clared that surveillance was not being alleged as 8(a)(1) and 8(a)(3) violations but rather "as a viola- tion of 8(a)(3) and only the derivative 8(a)(1)." We see no reason in this case to permit an issue so dis- posed of to be resurrected by exceptions. Here the Administrative Law Judge's ultimate finding was that Respondent discharged Rivera "simply because he had abandoned his truck ... in such a manner as to invite theft of a valuable quan- tity of Respondent's products" and in so doing did not violate Section 8(a)(1) and (3) of the Act. Pun- tolillo had noticed several weeks earlier, upon Ri- vera's return to this work location, that Rivera was taking too much time on his rounds. We ascribe the decision to follow Rivera to legitimate concern about his work habits in light of his earlier record, as did the Administrative Law Judge. Accordingly, we shall dismiss the complaint herein. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: Contrary to my colleagues, I find that the record evidence establishes, convincingly, that Respond- ent's surveillance and discharge of employee Louis Rivera was in retaliation for his union and concert- ed activities. Rivera was hired by Respondent in May 1972 and was designated as shop steward sometime in had opportunity to adduce contrary evidence from Rivera, or from Weinstein (who was present at the hearing), had he wished to do so. ' We note in this regard that there is no indication in this record of animus on Respondent's part towards either Rivera or the Union. While the timing of events herein might give rise to suspicion, mere suspicion is not enough. I N.LR.B. v. J. Weingarten, Inc., 420 U. S. 251 (1975). 10 We do not find the "fruits of unlawful activity" language quoted by our colleague in the cases he has cited. 1973, a position he held until his discharge on May 18, 1978. As the Administrative Law Judge found: [T]he record amply demonstrates that Rivera, in his capacity as union shop steward over the course of 5 years, was an ardent advocate of a multitude of grievances arising out of the em- ployment relationship between Respondent and its employees. On May 15, when Respond- ent decided to monitor Rivera's work habits, he had once again become a dolorous thorn in the side of Respondent by enlisting the Union's assistance in pressing a number of grievances. These activities constituted concerted activities which are statutorily protected. Such grievances arose not only from Respond- ent's treatment of Rivera personally but also from Respondent's conduct affecting the unit employees generally. As described in the Administrative Law Judge's Decision, such items included a shortage in Rivera's pay, the rotation of premium work, and the installation of a timeclock. On May 15, Union Business Agent Weinstein met with Respondent's co-owner, Puntolillo, about these matters and also dispatched a letter to Respondent formally request- ing Respondent to install a timeclock. On that same day, Puntolillo decided to follow Rivera's truck and monitor his deliveries. It strains credulity to find that Puntolillo decided to monitor Rivera's deliveries on May 15 for any reason other than that he "had once again become a dolorous thorn in the side of Respondent by en- listing the Union's assistance in pressing a number of grievances." Puntolillo explained that he decided to follow Rivera because "I found myself with time on my hands that day." This explanation has a distinctly hollow ring in view of Puntolillo's testi- mony that he suspected Rivera of taking too long on his route for 2 years1 and that he did not decide to monitor Rivera's deliveries until after the grievance meeting on May 15. Thus, Puntolillo "I My colleagues adopt the Administrative Law Judge's finding that Puntolillo testified without contradiction that "for some weeks prior to May 15" Puntolillo noticed that Rivera was taking too much time in making his deliveries. The record shows, however, that Puntolillo sus- pected and tolerated such conduct not for some weeks but for 2 years until the very day of the grievance meeting on May 15. Thus, Puntolillo answered questions from the General Counsel as follows: Q. And how long did you suspect him of taking too long? A. Quite a while. Q. How long? A. A couple of years, a year. Q. A couple of years, I see. Was it your testimony before that you suspected him for a short time? Could you pinpoint it. A. No, it's been a chronic problem that I always had with him. Q. For two (2) years? A. Yes. Furthermore, I note that Puntolillo testified on redirect examination by Respondent's attorney that Rivera was a "good employee" and that, "He did his work well." 100 PORK KING COMPANY, INC. concedes the facts that lead inexorably to the con- clusion that the surveillance of Rivera beginning on May 15 was in retaliation for Rivera's union and concerted activities. ' 2 My colleagues nevertheless adopt the Adminis- trative Law Judge's finding that "but for this inci- dent [leaving the truck unattended with the keys in the cab] Rivera would have remained in Respond- ent's employ despite his activities as a union shop steward." This finding is not supported by the record evidence. Indeed, this finding is undercut by Respondent's letter to the Union dated May 18 ex- plaining the reason for the discharge. In that letter dated the day of the discharge, Puntolillo stated that "[r]ecently I had the feeling that he [Rivera] was taking unauthorized time from his runs." Pun- tolillo then proceeded to describe the information he learned from monitoring Rivera's stops on May 15, 17, and 18. Although Puntolillo mentioned in the letter that the keys were found in the unattend- ed truck on May 18, he does not indicate that this " My colleagues find that "the General Counsel, in his opening state- ment, declared that surveillance was not being alleged as 8(a)(1) and 8(aX3) violations but rather 'as a violation of 8(aX3) and only the deriva- tive 8(aXI).' We see no reason in this case to permit an issue so disposed of to be resurrected by exceptions." (Emphasis supplied.) Contrary to my colleagues I find no basis in the record that the Gen- eral Counsel waived the complaint allegation of an independent 8(a(1) violation by Respondent's surreptitious surveillance of Rivera. In relevant part, the General Counsel ended his opening statement as follows: "On [May 15, 19781, Respondent Employer begins to follow Rivera during his daily routes in order to seek a reason for discharge and three (3) days later he's discharged. That, as far as I can determine, is the long and short of the factual situation." Thereafter, the Administrative Law Judge engaged the General Coun- sel in the following colloquy: JUDGE ROSENBERGE: Are you alleging that is a violation of [8(aXI)l or ... MR. FERNANDEZ: It's being alleged as.... JUDGE ROSENBERG: (continuing) I and 3? MR. FERNANDEZ: (continuing) as a violation of [8(aX3)l and only the derivative [8(aXl)). JUDGE ROSENBERG: All right. Do you have any response to that Mr. Condon? A careful reading of the relevant record evidence, supra, reveals, clear- ly, that the General Counsel did not explicitly waive the complaint alle- gation that the surveillance of Rivera was an independent violation of Sec. 8(aXI). The General Counsel did not even mention the term "sur- veillance" and he certainly did not mention the complaint allegation re- lated to surveillance. He did mention, specifically, the discharge. In fact, it was the General Counsel's reference to the discharge that immediately preceded the Administrative Law Judge's first question, supra. It is clear, therefore, that the General Counsel reasonably would have believed that the Administrative Law Judge's question referred to the discharge. The only other conclusion that can be drawn is that the exchange resulted in an ambiguity. In addition, it should not be overlooked that the Administrative Law Judge never stated on the record or in his Decision that the General Counsel had withdrawn this disputed complaint allegation. Indeed, he Administrative Law Judge made no explicit conclusionary finding on either the 8(aXI) or 8(aX3) surveillance allegation. In sum, I am astonished that my colleagues would rely on a tortured interpretation of an ambiguous exchange between the Administrative Law Judge and the General Counsel to dispose of a specific complaint allegation that was fully litigated and bears directly and prominently on the discharge that stemmed directly from information obtained during the surveillance. See fn. 15, infra. was the cause for Rivera's discharge. Instead, a fair reading of the letter plainly reveals that Respond- ent told the Union that Rivera was being dis- charged because of time lost from unauthorized stops.' 3 In sum, I find that Respondent's asserted reason for the surveillance and discharge of Rivera was pretextual and that the actual reason for such sur- veillance and discharge was retaliation for Rivera's activities as a union shop steward. I have rejected my colleagues' conclusions that Rivera was dis- charged solely for leaving the keys in the truck be- cause it rests on a deficient and misleading analysis of key record evidence. Moreover, I am persuaded that the record evidence shows, convincingly, that Respondent's conduct was unlawful. Thus, Re- spondent suspected for 2 years that Rivera was taking too long on his deliveries but did nothing until, suddenly and without a plausible explanation, it decided after the grievance meeting on May 15 to monitor Rivera's deliveries.' 4 Furthermore, the information upon which Respondent claims to have predicated Rivera's discharge-be it lost time from unauthorized stops or leaving the keys in the truck-stemmed directly and exclusively from the unlawful surveillance.' s In addition, Respondent's 1' This letter from Respondent to the Union dated on the day of the discharge was never mentioned, much less considered, in the Administra- tive Law Judge's Decision I also find no evidence to support the Administrative Law Judge's findings, adopted by my colleagues, that Rivera was told by union repre- sentatives on May 19 that Respondent was unwilling to reinstate him be- cause "he had abondoned his truck which contained expensive cargo and had left the keys inside, making the vehicle prey for theft." Finally, I object to the Administrative Law Judge's finding, adopted by my colleagues, that Rivera "deliberately left his truck unattended with the keys in the unlocked cab .. ." It is clear that leaving the truck un- attended occurs daily while Respondent's drivers make deliveries. Hence it is reasonable to assume that the Administrative Law Judge was not re- ferring to this action when he characterized Rivera as having acted "de- liberately." Rather it would appear that he applied this term to Rivera's having left the keys in the cab. But Rivera specifically testified: "Inad- vertently, I had taken the keys out of the ignition and I placed it on what you would call a mound [covering the engine] that sits in the middle of the truck." The employees who recovered the truck for Respondent on May 18 did not testify. Thus, there is no reason on this record to believe that Rivera's actions were other than as he described them. These shortcomings of the Administrative Law Judge's findings, like the misstatement of the record concerning how long Puntolillo suspected Rivera of taking too long on his runs, supra, bear directly on the ultimate issue here and seriously undermine the Administrative Law Judge's anal- ysis adopted by my colleagues. 14 See Edward G. Budd Manufacturing Company v. N.LR.B. 138 F.2d 86(3d Cir. 1943), enfg. 41 NLRB 872 (1942). Although the circumstances surrounding Rivera are not as dramatic as the circumstances surrounding Mr. Weigand, the underlying principle there is applicable here: The em- ployer tolerated a problem for a long time and then suddenly applied a different standard because of an employee's union activities. '" See American Motors Corporation 214 NLRB 455, 462 (1974) (dis- charge of Melrod and Guzman) In concluding that Rivera's discharge on May 18 did not violate the Act my colleagues make no mention of the Administrative Law Judge's finding that: Continued 101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced reasons for the discharge shifted from the day of the discharge to the day of the hearing. Finally, Puntolillo, the moving party in the surveil- lance and the discharge, testified that Rivera was a good employee and that he did his work well. I find that Rivera was discharged because of his union and concerted activities and I would provide an appropriate remedy. On May 15, when Respondent decided to monitor Rivera's work habits, he had once again become a dolorous thorn in the side of Re- spondent by enlisting the Union's assistance in pressing a number of grievances. These activities constituted concerted activities which are statutorily protected. It is anomalous that the Administrative Law Judge would make those findings but nevertheless dismiss the complaint in its entirety including the allegation that such surveillance violated Sec. 8(aXl) of the Act. My colleagues increase this anomaly by failing to pass on the merits of the surveillance allegation even though it is alleged in the complaint, raised by the General Counsel's exceptions, and bears directly and prominently on the discharge that stemmed directly from information obtained during this surveillance. Thus, my colleagues' resolution of the complaint allega- tions is incomplete and their analysis of the discharge insufficient. In this connection see fn. 12, supra. My majority colleagues' resolution of the surveillance allegation is critical in view of their recent opinion in Illinois Bell Telephone Company, 251 NLRB No. 128 (1980). There, they found that where the General Counsel shows that an unlawful investigatory interview has occurred, and that the employee was disciplined or discharged for conduct which was the subject of the interview, the burden shifts to the employer to show its discipline or discharge was not based on information obtained during the interview. Here, my majority colleagues find that Rivera was discharged because "he left the truck open during an unauthorized stop with the keys availa- ble (whether 'deliberately' or not) in such a manner as to permit, if not invite, theft of the truck and its valuable quantity of Respondent's prod- ucts." It cannot be gainsaid that such information was obtained during the alleged unlawful surveillance here. That Respondent has failed to sat- isfy the burden of showing that the discharge was based on information obtained independent of the alleged unlawful activity is plain. Hence, as- suming that my colleagues would find the surveillance to be unlawful, as the Administrative Law Judge's finding supra indicates, it follows that the information my colleagues find led to Rivera's discharge was the "fruits of unlawful activity" and, consistent with their opinon in Illinois Bell Telephone, supra, they should find that Rivera's discharge violated the Act. See also Kraft Foods, Inc., 251 NLRB No. 6 (1980). Finally, I would point out that my majority colleagues also adopted the Administrative Law Judge's finding in American Motors, supra, that the investigation that led to the information on which respondent predi- cated the discharge of Melrod and Guzman was motivated by their pro- tected concerted activity. T1hus, my colleagues found that the discharge violated the Act even without a specific finding that the investigation itself violated the Act. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in New York, New York, on May 21, 1979, upon a com- plaint filed by the General Counsel of the National Labor Relations Board, and an answer submitted thereto by Pork King Company, Inc., herein called Respond- ent. The issues raised is whether Respondent violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, by discharging employee Louis Rivera The complaint, issued on December 12, 1978, is based on a charge filed on May 19, 1978, and served on May 24, 1978. on May 18, 1978, under circumstances to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly consid- ered. Upon the entire record made in this proceeding, in- cluding my observation of the demeanor of the witnesses as they testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, with its princi- pal office and place of business at 2824 Boston Road, Bronx, New York, and another facility at the Hunts Point Market, Bronx, New York, is engaged in the wholesale sale and distribution of meat and related prod- ucts. During the times material herein, Respondent de- rived gross revenues in excess of $1 million from its op- erations, and purchased meat and related products valued in excess of $50,000 directly from points located outside the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE LABOR ORGANIZATION INVOLVED Provision Salesmen and Distributors Union, Local 627, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discharging employee Louis Rivera on May 18, 1978,2 because he was a member of and shop steward for the Union, and because he had engaged in other protected, concerted activities for the purpose of collective bargaining or other mutual aid and protection. Respondent contends that Rivera was discharged solely for the improper performance of his employment chores. The facts giving rise to this litigation are not in essen- tial dispute and I find them to be as follows. Respondent is engaged in the wholesale sale and distri- bution of meat products. In the course of its operations, Respondent maintains two establishments in the Bronx, one on Boston Road, and the other at the Hunts Point Market. Respondent's officers consist of Alfred Ches- wick, president; Dominick Puntolillo, vice president; and Raymond Lyons, supervisor. Respondent conducts its business with a work comple- ment of approximately six employees who perform stock work in the coolers and freezers, assemble customer orders, load trucks, and make deliveries to its customers. During the times material herein, the Union represented Respondent's employees under a collective-bargaining agreement. 2 Unless otherwise indicated, all dates herein fall in 1978. 102 PORK KING COMPANY, INC. Louis Rivera, the Charging Party, was hired by Re- spondent in May 1972 and worked at the Boston Road establishment, primarily as a delivery driver. Rivera was designated as the shop steward for the Union in 1973, a position which he held until his discharge on May 18. In this capacity, Rivera processed grievances which arose during the course of employment. In March 1977, Rivera received a written reprimand from Respondent for having absented himself from work for 11 days, and for abusing customers. This reprimand triggered a grievance which Rivera lodged with his Union, in consequence of which Union Business Repre- sentative Jack Weinstein conducted a meeting of his membership at Respondent's Boston Road facility in April 1977. During this session, Rivera raised additional grievances relating to such items as the installation of a timeclock, payment for overtime, the allocation of Satur- day work, and the free provision of coats for the men who worked in the freezer. In November 1977, Respondent opened a plant at the Hunts Point Market. Rivera was transferred to that loca- tion. At the end of April, Respondent's president, Ches- wick, asked Rivera if he would be willing to transfer back to the Boston Road facility for I week so that Tin- elli, who worked there, could learn the Hunts Point routes and substitute for the Hunts Point employees during their summer vacation periods. Rivera reluctantly agreed to do so. After spending 1 week at Boston Road, Rivera returned to the Hunts Point station for duty. On his arrival, he encountered President Cheswick who asked why Rivera had left his position at the Boston Road establishment. Rivera answered that he was under the impression that his assignment was to last for only 1 week, and asked if transfer was intended to be perma- nent. Cheswick replied that he was unsure if this was the case, and told Rivera to return to his station at Boston Post. Rivera complied with this and, at the end of his shift, telephoned Union Business Representative Wein- stein to complain about the assignment. Weinstein prom- ised to look into the matter and get back to Rivera. On May 2 or 3, Rivera telephoned Weinstein to in- quire into the results of the latter's efforts to resolve this issue. Weinstein reported that he had spoken to Respond- ent's vice president, Puntolillo, about the matter, and Re- spondent had agreed to return Rivera to his job at the Hunts Point location on the following Monday. On May 4 or 5, Rivera met with Puntolillo and again pressed for an answer as to whether his transfer to Boston Road constituted a permanent relocation, and Puntolillo re- plied in the affirmative. Upon learning this, Rivera in- formed Puntolillo that, because he and Tinelli would be required to travel farther from their homes to their new work stations, Respondent should compensate them for the inconvenience and for the extra gasoline required to drive to work by allocating Saturday and holiday work to them. Puntolillo retorted that Rivera should not tell him how to run his business. Rivera disclaimed any such intention, but argued that the award of this premium work was simply a matter of fairness. The discussion ended with Rivera requesting a meeting between Union Agent Weinstein and Respondent's officials to discuss the matter, and Puntolillo agreed to do so. Later that after- noon, Respondent's president, Cheswick, telephoned Rivera and admitted that, because of the rise in fuel costs and the economic hardship caused by inflation, equity sided with Rivera's request. Whereupon, Cheswick invit- ed Rivera to report for work on Saturday, May 6, Rivera accepted. It is Respondent's practice, when its employees toil on Saturdays and holidays, to pay them in cash "off the books" rather than by check. By utilizing this procedure, the employees were able to receive a higher net pay for that overtime work because Respondent did not with- hold Federal or State taxes from their earnings. When this procedure was used, the men who worked on those days grossed $42.50, and received a net out-of-pocket sum of $25 in cash. In calculating Rivera's payment for his efforts on May 6, Respondent feared that some prob- lems might arise unless all deductions were taken out of his gross pay due to Rivera's constant insistence that the collective-bargaining agreement between Respondent and the Union be followed strictly. Accordingly, when Rivera received his paycheck on Friday, May 12, he found that he had been given only $18 for his endeavors on the preceding Saturday. Rivera immediately tele- phoned the union hall, and asked for Weinstein to com- plain about this discrepency. Weinstein was out of the office, but Rivera was told that the union agent would take the matter up when he visited the plant on Monday, May 15. On Saturday, May 13, Rivera visited the Boston Road plant to find out who was working overtime, and noticed that two employees were on duty who had regularly pulled Saturday work. Rivera registered a complaint with Puntolillo about this arrangement, but the latter re- fused to alter the assignments because the two men had done this work in the past. Rivera returned to the plant on May 15, and after talk- ing the matter over with Puntolillo, he was offered a place in the rotation for Saturday and holiday duty. Rivera declined the offer unless the men at the Hunts Point facility were also rotated as provided under the ex- isting labor agreement. Rivera added that, as Weinstein was scheduled to visit the plant that morning the matter could be resolved then. When Weinstein arrived, Rivera unfolded a variety of complaints to the Union agent, enumerating such items as the shortage in his Saturday pay, rotation of premium work, and the installation of a timeclock. Weinstein conferred with Puntolillo and brought back word that he had instructed the Company to institute the necessary changes as required under the contract. Weinstein returned to his offices and dispatched a letter to Respondent formally requesting the Company to install a timeclock. After the session with Weinstein on May 15, Puntolillo decided to follow Rivera's truck and monitor his deliv- eries. Puntolillo testified without contradiction and I find that, for some weeks prior to May 15, after Rivera had reluctantly returned to the Boston Road plant, Puntolillo noticed that the driver was taking too much time to make his rounds. In this connection, the record estab- lishes and I find that, sometime in 1975, Rivera was on a delivery when one of Respondent's trucks broke down. 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While waiting for Rivera's return so that he could utilize the vehicle, Puntolillo learned from a customer that Rivera had been observed in his truck which was parked near the Boston Road plant. Puntolillo immediately drove to the site and found Rivera sitting in his cab in a reclining position. On confronting Rivera, Rivera offered the explanation that he had pulled his truck over to the side of the road because of dizziness. Puntolillo believed that this was a sham excuse used by drivers because of the difficulty of disproving the ailment, and fired Rivera on the spot. However, after the Union intervened on his behalf, Respondent eventually reinstated him. Because business was slow on May 15, Puntolillo followed Rivera on his rounds. During his journey, Puntolillo noted that Rivera had pulled up in front of an off track betting parlor, parked his truck, and entered the facility. 3 After spending several minutes in the parlor, Rivera returned to his vehicle, and drove off. Puntolillo was too busy to monitor Rivera's driving habits on May 16. On May 17, he instructed Supervisor Raymond Lyons and employee Rascona to follow Rivera, and time his movements. When they reported back, Puntolillo learned that Rivera had made three non- business stops for more than 45 minutes, a time span which exceeded the 20-minute lunch break the employ- ees were afforded.4 Puntolillo again dispatched Lyons and Rascona to shadow Rivera on May 18. Before they left, Puntolillo advised them to observe whether Rivera made any unau- thorized stops and, if so, to look in the truck and ascer- tain whether the driver had left the keys in the cab. In the event the men discovered these items, they were di- rected to drive the truck back to the plant. Rivera once again pulled up to the off track betting parlor and en- tered leaving the keys to the ignition, as well as to the body of the truck, in the cab. It is undisputed and I find that, on this occasion, the vehicle contained meat prod- ucts valued at 3,000. Following instructions, Rascona climbed into the truck and drove it back to the plant, where he was assigned to undertake Rivera's deliveries for the rest of the day, Rivera left the betting parlor and noticed that the truck was missing. Espying a police car, he approached the officers and reported the loss. Rivera was then driven to the precinct house where he tele- phoned Respondent to report the incident. Puntolillo an- swered and, after a brief discussion, informed Rivera that he had been discharged. Rivera visited the union head- quarters, and reported the incident to Weinstein. Wein- stein promised to lodge a grievance with Respondent over the discharge the next day. On May 19, Rivera met with union representatives at the plant, and was informed that Respondent was unwill- ing to reinstate him because he had abandoned his truck, which contained expensive cargo, and had left the keys inside, making the vehicle prey for theft. Rivera pressed I Off track betting (OTB) parlors are maintained by the state and local governments in New York as legal bookie drops. 4 Respondent's 8-hour workday spans from 6:30 a.m. to 2:30 p.m. Al- though the collective-bargaining agreement authorizes a I-hour lunch period, which would have extended the workday to 3:30 p.m., the em- ployees prefered a 20-minute lunchbreak on company time in order to leave the plant an hour earlier. the union agents to take the issue to arbitration under the contract, but the latter refused. Rivera thereupon filed unfair labor practice charges against the Union with the Board's Regional Office alleging that the Union's failure to pursue the grievance was violative of the Act. After an investigation, the Regional Office dismissed these charges as lacking in merit. Rivera then instituted the charges against Respondent, which gave rise to these proceedings. It requires no citation of authority to support the prin- ciple that an employer may sever an employee from his work rolls for any reason or for no reason at all, so long as the separation is not motivated in whole or in part by his engagement in activities protected by the Statute. However, even where it has been shown that the em- ployee was a known union activist, there is nothing in- herently discriminatory about the discharge of such an individual for cause, for it is now established that an em- ployee who is prominent in union affairs does not there- by gain a special immunity from ordinary employment decisions simply because of that notoriety.5 In the case at hand, the record amply demonstrates that Rivera, as a union shop steward by 5 years, was an ardent advocate of a multitude of grievances arising out of the employment relationship between Respondent and its employees. On May 15, when Respondent decided to monitor Rivera's work habits, he had once again become a dolorous, thorn-in-side of Respondent by enlisting the Union's assistance in pressing a number of grievances. These activities constituted concerted activities which are statutorily protected. However, the record also clear- ly establishes that, on May 18, Rivera carelessly and de- liberately left his truck containing the keys to valuable cargo unattended, while he ventured into a betting parlor, thereby risking the theft of a meaningful amount of Respondent's property. For this dereliction, Respond- ent could have discharged him for good and sufficient cause. In a case such as this, where both an impermissi- ble and a permissible ground exists to support a dis- charge, it behooves the General Counsel to provide at least a reasonable basis for inferring that the permissible ground alone would not have triggered the discharge, and that the separation was indeed partially impelled by an impermissible one.6 More simply put, the General Counsel must show, in order to sustain his advocative stance, that, but for Rivera's engagement in activities protected by the Act, he would not have suffered dis- charge at Respondent's hands.7 In my opinon, he had failed to do so. As chronicled above, Rivera had served as the union shop steward since 1973, and had actively processed em- ployment grievances on behalf of himself and fellow em- ployees against Respondent until his discharge. Although he was terminated in 1975 for laying down on the job, he was reinstated at the behest of the Union, and, there- See Waterburg Community Antenna, Inc. v. N.L.R.B., 587 F2d 90, 96 (2d Cir. 1978). 8 See N.L.R.B. v. Park Edge Sheridan Mears, Inc., 341 F.2d 725, 728 (2d Cir. 1965). ' See N.LR.B. v. Fibers International Corporation, 439 F.2d 1311, 1312, fn. 1 (Ist Cir. 1971); Waterbury Community Antenna. Inc. v. NLR.B. supra. 104 PORK KING COMPANY, INC. after, continued to grieve with the same, if not more, in- tensity. Despite this activity, Rivera was not discrimina- torily a bused by Respondent and, in fact, his employer essayed to correct conditions about which he had raised grievances. It is undisputed that Respondent came to believe that Rivera had been taking too much time to make his rounds for several weeks prior to May 15, and that it de- cided to monitor his delivery habits. On that day, Re- spondent's vice president, Puntolillo, discovered that the employee had interrupted his runs by visiting a betting parlor. On May 17, Respondent noted that Rivera had made three nonbusiness stops, which lasted for a period far in excess of his allowable lunchbreak. Despite Ri- vera's aberrations, Respondent tolerated this misconduct even in the face of his persistence in lodging grievances against it on May 15. Finally, on May 18, the driver de- liberately left his truck unattended with the keys in the unlocked cab, an act which exposed a cargo of $3,000 worth of meat to theft. On discovering this, Respondent immediately discharged him. On this state of the record, I am persuaded and conclude that, but for this incident, Rivera would have remained in Respondent's employ de- spite his activities as a union shop steward. In sum, I find that Respondent discharged Rivera on May 18, not because he was a member of and shop ste- ward for the Union and not because he had engaged in protected, concerted activities under the Act, but simply because he had abandoned his truck on that day in such a manner as to invite the theft of a valuable quantity of Respondent's products. By doing so, I conclude that Re- spondent did not violate Section 8(a)(1) and (3) of the Act, and I shall dismiss the complaint in its entirety. ORDER 8 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objectives thereto shall be deemed waived for all purposes. 105