Avery Leasing

National Labor Relations Board - Board Decisions

Nov 14, 1994

315 N.L.R.B. 576 (N.L.R.B. 1994)

576
315 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
1 The official transcript of proceedings is noted and corrected.
Avery Leasing, Inc. and Local 7, International
Brotherhood of Teamsters, AFL–CIO. Case 7–
CA–35409
November 14, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 12, 1994, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Avery
Leasing, Inc., Marshall, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discouraging membership in Local 7, Inter-
national Brotherhood of Teamsters, AFL–CIO, or any
other labor organization, by discriminatorily terminat-
ing employees or otherwise discriminating against
them with regard to their hire or tenure of employment
or any term or condition of employment.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in Local 7,
International Brotherhood of Teamsters, AFL–CIO, or
any other labor organization, by discriminatorily termi-
nating employees or otherwise discriminating against
them with regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT interrogate you concerning your own
or other employees’ membership in, activities on be-
half of, or attitude toward Local 7 or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to engage in union or concerted activities, or to
refrain therefrom.
WE WILL offer William Beason immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed, and WE WILL make him
whole for any losses he suffered by reason of the dis-
crimination against him, with interest.
WE WILL remove from our files any reference to the
termination of William Beason, and notify him in writ-
ing that this has been done and that evidence of this
unlawful discharge will not be used as a basis for fu-
ture personnel actions against him.
AVERY LEASING, INC.
Richard Czubaj, Esq., for the General Counsel.
Jeffrey L. Green, Esq., of Lansing, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Marshall, Michigan, on May 26, 1994. The charge
was filed on January 10, 1994, by Local 7, International
Brotherhood of Teamsters, AFL–CIO (the Union). The com-
plaint, which issued on February 24, 1994, alleges that Avery
Leasing, Inc. (Company or Respondent) violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). The gravamen of the complaint is that the Company al-
legedly engaged in coercive interrogation, and discharged
employee William Beason, in retaliation for protected con-
certed discussions that he had with the Company and other
employees, and in retaliation for his support for and activities
on behalf of the Union. The Company’s answer denies the
commission of the alleged unfair labor practices. All parties
were afforded full opportunity to participate, to present rel-
evant evidence, to argue orally, and to file briefs. General
Counsel and the Company each filed a brief.
Upon the entire record in this case,1 and from my observa-
tion of the demeanor of the witnesses, and having considered
the arguments of the parties, I make the following
577AVERY LEASING
2 All dates herein are for 1993, unless otherwise indicated.
3 In his investigatory affidavit, Lorenzen stated that he spoke to
Price in the first half of October. He testified that this was incorrect.
In light of the date on his authorization card, and the subsequent se-
quence of events, it is evident that Lorenzen spoke to Price in late
October or early November, shortly before Beason’s discharge.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a corporation with its principal office and
place of business in Marshall, Michigan, is engaged in intra-
state general freight hauling. In the operation of its business,
the Company annually derives gross revenues in excess of $1
million, and annually provides services valued in excess of
$50,000 to its customers located outside of Michigan. I find,
as the Company admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
William Beason commenced working for the Company as
a truckdriver in June 1992. Company Operations Safety Di-
rector David Price supervised the Company’s drivers, includ-
ing Beason.
In October 1993, truckdriver employees Beason and Jerry
Mulkey commenced a union organizational campaign among
the company employees.2 Beason contacted Union Business
Agent Robert Inman, who furnished authorization cards.
Beason and Mulkey distributed the cards to other employees,
usually at truckstops.
Beason asked driver Lance Lorenzen to sign a card, and
Lorenzen did so. His signature is dated October 25. At the
time Lorenzen signed the card, Lorenzen had given the Com-
pany notice of intention to quit. Lorenzen told Beason that
he would be gone in a week and a half.
Lorenzen testified that he spoke to Operations Safety Di-
rector Price about 1 to 2 weeks after he signed the union
card.3 Lorenzen testified in sum as follows: He told Price
that he was quitting because he wanted to spend more time
at home. (The Company’s drivers, principally engaged in
long-distance beer hauling and delivery, spent most of their
time on the road.) Lorenzen added that he was not com-
fortable with things that were going on and, specifically, that
‘‘they were trying to get a union in.’’ Price asked who was
trying to do this, but Lorenzen declined to answer the ques-
tion. He admitted to Price that he signed a union card.
In his investigatory affidavit, Price stated that at the time
he discharged Beason on November 5, he ‘‘was not aware
of any specific effort by the drivers to get union cards signed
or trying to get a union in at Avery Leasing.’’ Price admitted
in his testimony that this was not true. Price testified, in sum,
that he had a conversation with Lorenzen substantially as de-
scribed by Lorenzen.
In the fall of 1993, the Company was starting up a tanker
truck operation through a related firm, Avery Transport. The
operation involved local delivery and its drivers would not
have to be away from home overnight. Price told the Compa-
ny’s employees that the Company probably would not trans-
fer any of them to Avery Transport. However, within a week
of their conversation, Price offered Lorenzen a transfer to
Avery Transport, although Lorenzen had no experience driv-
ing tanker trucks. Lorenzen accepted the transfer. No other
company drivers were transferred to Avery Transport.
Beason testified in sum as follows: On Thursday, Novem-
ber 4, Price notified him that the drivers on the Columbus,
Ohio run, including Beason, would be laid off for the bal-
ance of the week because the Company’s New York drivers
were complaining that they did not have enough work. Price
told Beason to pick up his paycheck the next day at the
Company’s facility. Beason reported to the facility, bringing
his paperwork, but did not see any other drivers. Price sum-
moned Beason to his office, and told Beason he was fired.
Beason asked why, Price answered that Beason was ‘‘always
disrupting our meetings.’’ Beason responded that this was
not true, and that he spoke up only once, in connection with
a meeting concerning insurance. Price then said that all
Beason wanted to do was the Petitpren run. Beason replied
that he did other runs. Beason asked to speak to Company
Owner Myron Avery, but Avery refused to speak to Beason.
It is undisputed that when Price terminated Beason, he
gave Beason a written ‘‘termination report’’ which stated
that Beason was terminated for: ‘‘Failer [sic] To Comply.
Does Not Have Companies [sic] Interest. Bad Attitude.’’ The
report stated under additional comments: ‘‘We Need Drivers
That Are Versitile [sic] with No limitation, Not a [sic] Insti-
gator.’’ Beason testified in sum as follows: He asked what
Price meant by failure to comply. Price answered: ‘‘[W]ell,
you know,’’ and avoided giving a specific answer. Beason
asked whether the instigator comment referred to Beason’s
union activities. Price smiled and responded: ‘‘[U]nion, what
union? We don’t know anything about any union.’’ Beason
was not boisterous or loud.
Operations Safety Director Price testified in sum as fol-
lows with respect to the termination interview: He explained
to Beason that he was terminated for: (1) failure to comply,
in that he failed to present a written medical excuse in proper
form for his need to take time off because of an alleged sore
butt; (2) not having the Company’s interest at heart, because
he was constantly complaining; and (3) instigating the other
drivers, because they were complaining about his bad atti-
tude. After speaking with Beason a second time, Price in-
serted additional comments on his copy of the termination
report, elaborating on his professed reasons for terminating
Beason.
In his additional comments, Price wrote that: ‘‘until Bill
brought up this issue, I had no idea of any union activity.’’
As indicated, this statement was false. In elaborating on the
reasons for Beason’s discharge, Price referred only to
Beason’s complaints to the Company and to other employ-
ees. Price wrote:
Summary: ‘‘Chronic bitcher + Always trying to
cause problems with Co-workers’’ . . . . For the last
three months Bill has been on borderline termination.
Whenever Avery’s increased benefits Bill would always
bitch. He was never satisfied. He would complain con-
stantly to other drivers and they would complain to me
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about Bill’s bad attitude and ask why we would keep
a driver that had nothing good to say about our Com-
pany.
Nowhere in the termination report did Price refer either ex-
pressly or impliedly to alleged customer complaints about
Beason. In the closing evaluation of Beason’s performance
report, Price indicated that his quality of work was good, at-
tendance and job knowledge fair, and ‘‘cooperation’’ and
‘‘initiative’’ unsatisfactory.
Price testified that he discharged Beason, in sum, for three
reasons: (1) failure to comply with certain procedures; (2)
constant complaining by Beason, and complaints from other
drivers about Beason’s complaining; and (3) a complaint
from the Company’s best customer concerning Beason’s per-
formance. Price did not claim in his testimony that he dis-
charged Beason for any other reasons.
Company Business Manager and Comptroller Debra
Lanham also testified concerning the circumstances of
Beason’s termination. According to Lanham, she, Price, and
Company Owner Avery made a collective decision to termi-
nate Beason for four reasons: (1) the Company encountered
increasing difficulty in dispatching Beason because he con-
stantly complained about his assigned loads; (2) Beason ap-
parently surreptitiously and improperly placed certain papers
in his personnel file; (3) the papers indicated that Beason had
physical problems of which the Company was not aware; and
(4) the customer complaint, which was ‘‘the icing on the
cake.’’ However, in her investigatory affidavit, Lanham gave
a much different version of Beason’s termination. Lanham
stated that Price told her he was rerouting the drivers because
he decided to let Beason go when things lightened up, the
reason being that Price was ‘‘tired of his whining.’’ Lanham
stated that about 10 days later she heard that Price dis-
charged Beason. In light of Price’s testimony that he made
the decision to fire Beason, and Lanham’s statements in her
affidavit to the same effect, I find that Lanham was not in-
volved in the decision to terminate Beason, and I attach no
evidentiary weight to her explanation of the Company’s rea-
sons for terminating Beason.
Returning to Price’s explanation of his reasons for termi-
nating Beason, I shall initially address the third stated reason,
the customer complaint, which Price described as ‘‘the final
straw.’’ Price testified that a couple of days before he dis-
charged Beason, he received a call from Timothy Anderson,
who is reclamation supervisor for Petitpren, Inc. (Petitpren),
a beer distributor in Mt. Clemens, Michigan. Petitpren is a
major company customer. Anderson has frequent contact
with company drivers and directs their work when they ar-
rive at Petitpren’s facility. Price testified that Anderson told
him he should not send Beason back to Petitpren, and to
‘‘get somebody else in there that could do the job.’’ Accord-
ing to Price, Anderson complained that he could not get
Beason to move trailers at the Petitpren facility, although
company drivers were expected to do so when requested by
Petitpren.
In his investigatory affidavit, Price gave a different version
of his alleged conversation with Anderson. Price stated that
in late October, Anderson telephoned him and, in a joking
manner, questioned why Price was working Beason although
Beason was ‘‘walking around with a donut [a cushion].’’
Price stated that at this point he decided to discharge Beason,
‘‘because we did not want our drivers bothering our cus-
tomers with these concerns.’’
Beason testified in sum as follows: In August he began to
have problems with his tailbone, and the problems were
causing him pain. Anderson saw that he was suffering pain.
He made fun of a foam cushion which Beason used in his
truck, and asked why Beason had the cushion. Beason had
no problems with Petitpren. He moved trailers and performed
other tasks as requested by Petitpren. He did so as instructed
by the Company because Petitpren was the Company’s major
customer, and the Company wanted to keep them happy.
By stipulation of the parties, General Counsel and the
Company jointly presented the testimony of Timothy Ander-
son, through affidavit (Jt. Exh. 1) obtained jointly by their
respective counsel. Anderson stated in sum as follows: On
several occasions, Beason refused to move trailers within the
Petitpren yard when requested to do so. Company drivers
were expected to perform such services, and no other drivers
refused to honor such requests. On at least two occasions,
during the summer of 1993, Anderson informed Price of
Beason’s refusals. Anderson was angry, but he did not tell
Price that he did not want Beason assigned to Petitpren (An-
derson subsequently stated that he did not recall when he
talked to Price, although it was warm then, and that he did
not recall whether he told Price not to assign Beason to
Petitpren). Anderson never saw Beason with a foam rubber
cushion, and never discussed it with Price (Anderson subse-
quently stated that he did not recall whether he talked to
Price about it). Beason was a whiner and complained a lot,
but Anderson didn’t care about this.
As indicated, Anderson equivocated somewhat in his affi-
davit. He evidently wished to maintain his neutrality, and to
avoid unduly offending anyone. Perhaps he might have been
pinned down on the witness stand. However, as an impartial
witness, his testimony is entitled to special weight. Ander-
son’s initial categorical statements are more reliable than his
subsequent equivocation. Certain key facts emerge from his
affidavit. Specifically, I find that in the summer of 1993,
well before Beason’s discharge, Anderson complained to
Price about Beason’s refusal to move trailers at the Petitpren
yard. It is unlikely that anyone would characterize Michigan
weather in late October or early November as ‘‘warm out-
side.’’
Therefore, it is evident that Anderson’s complaints to Price
were not ‘‘the final straw’’ which precipitated Beason’s dis-
charge. If Price considered Anderson’s complaint to be as
critical as he claimed, then it is probable that Price would
have discharged Beason long before November 5. Rather, it
is more likely that Price learned something else in late Octo-
ber or early November, which proved to be the catalyst for
Beason’s discharge. I have also taken into consideration
Price’s inconsistent statements concerning what Anderson
told him and the fact that Price did not, either in Beason’s
termination interview or in his writeup of that interview, in-
dicate that Anderson’s complaints had anything to do with
the discharge. As indicated, Price characterized Beason’s
quality of work as ‘‘good.’’
I shall next address Price’s first stated reason for terminat-
ing Beason, namely, his alleged failure to comply with cer-
tain procedures. Price testified that this concerned Beason’s
refusal to sign a company-generated form, in connection with
its workmen’s compensation insurance coverage. As indi-
579AVERY LEASING
4 In early 1994, the Company discharged Mulkey. As indicated,
Mulkey assisted Beason in the union organizing campaign. General
Counsel does not contend that the Company discriminatorily termi-
nated Mulkey. I have not considered his discharge in determining the
merits of this case.
cated, Price testified that he told Beason the matter con-
cerned Beason’s failure to present a proper medical excuse
for his absence.
The Company participated in a multiemployer self-insured
workmen’s compensation program. In connection with that
program, Business Manager-Comptroller Lanham prepared a
certification form, to be signed by each employee and co-
signed by the Company. In signing the form, the employee
certified, among other things, that the information contained
in his or her job application, including physical health his-
tory, was complete and accurate, and that, unless noted, the
employee was able to perform the duties for which the em-
ployee was hired. All of the Company’s employees, except
Beason, signed the form. Beason told Price that he would not
sign the form without his attorney’s opinion. Beason did not
thereafter get back to the Company, nor did Price ever ask
Beason whether he consulted his attorney.
The witnesses did not testify as to when the Company
asked its employees to sign the form. However, Price testi-
fied that employee Mulkey signed his form on August 30.
Therefore, it is evident that the Company presented the form
to the employees on or before that date. It is evident that,
as of November 5, Price had known for more than 2 months
that Beason declined to sign the form.
With regard to the alleged failure to present a proper med-
ical excuse, Price and Lanham testified in sum as follows:
Beason was off work during the first week of October, osten-
sibly because of his tailbone problem. He said he might need
to take off more time for medical testing. During the third
week of October, Beason’s wife gave Lanham a letter which
purported to be a statement of his condition. However, the
letter appeared to be roughly typed, was not on a doctor’s
stationery, and was not signed by a doctor. Neither Price nor
Lanham testified that they required or requested Beason to
furnish a medical excuse for his absence. Neither testified
that, at any time prior to Beason’s discharge, they told
Beason that the letter was inadequate, or that he should fur-
nish a medical excuse in proper form. Beason testified, with-
out contradiction, that shortly before his discharge, he asked
Price if he should see the company doctor about his tailbone
condition, and Price answered that it would not be necessary.
Lanham’s testimony indicates that, in fact, Beason’s wife
presented the letter as a consequence of a conversation be-
tween Beason and Lanham as to whether his condition might
be subject to workmen’s compensation.
This leaves Price’s second asserted reason for terminating
Beason, namely, Beason’s constant complaining and com-
plaints from other drivers about Beason’s complaining.
In fact, Beason had a reputation as a complainer through-
out his whole employment with the Company. Most of these
complaints concerned Beason’s compensation, assigned runs,
and other terms and conditions of employment. Operations
Safety Director Price stated in his affidavit that: ‘‘Ever since
I had supervised Beason he had a history of complaining
about working conditions.’’
Price and Business Manager-Comptroller Lanham, both in
their testimony and respective affidavits, attached particular
significance to a complaint by Beason concerning an an-
nounced change in the Company’s health insurance program.
In late August, the Company conducted a meeting of em-
ployees. Price announced that the Company would drop den-
tal coverage, and increase the deductible for prescriptions
from $5 to $10. He indicated that the resulting savings would
be used to provide the employees with life insurance and a
401(k) retirement program. After the meeting broke up,
Beason complained to Lanham about the change. Beason tes-
tified that he told Lanham that he paid $38 per week for
health insurance coverage and should have some say in the
matter. Lanham assertedly responded that the Company paid
51 percent, and ‘‘You’ll get what we want to give you.’’
Lanham testified that Beason said he had $300 per month in
prescriptions, and the change would cost him $100 to $200
in additional expense. Beason testified that no one else was
involved in this conversation. However, Lanham testified that
Beason ‘‘got everybody else’s attention.’’
With respect to complaints about Beason from other em-
ployees, Price testified that he received such complaints from
several employees, including Eric Mullikin. Three present or
former company employees (in addition to Beason) testified
in this proceeding: Jerry Mulkey, Lance Lorenzen, and Eric
Mullikin. Mulkey was the principal driver on the Petitpren
run. He testified in sum as follows: He never complained
about Beason complaining, and never heard any such com-
plaints about him from other employees. Employees some-
times complained that Beason did not get his truck serviced
or repaired, but employees commonly made such complaints
about other employees.4 Lorenzen testified that Beason com-
plained and was hard to keep happy, but was ‘‘a nice guy,’’
and Lorenzen never complained to Price about him.
Mullikin, who was presented as a company witness, testified
in sum as follows: Beason complained a lot. He complained
that Mullikin should not have been assigned a new truck be-
cause a driver with more seniority (not necessarily Beason)
should have gotten the truck (Beason testified that he was
third in seniority among the drivers). On one occasion,
Mullikin told Price that he was sick of hearing Beason’s
complaints. Price advised Mullikin to ‘‘just blow it off,’’ and
pay no attention to Beason. Beason testified that he was un-
aware that any driver other than Mullikin complained about
him.
Considering the testimony of the employee witnesses, sev-
eral salient factors emerge. Beason tended to complain, and
the drivers were aware of, but generally not bothered about,
the fact that he complained. Mullikin became concerned only
because Beason made a complaint which potentially affected
him, namely, that Mullikin should not have been assigned a
new truck. However, that complaint was not of a personal
nature. Beason was asserting that the Company should follow
seniority in assignments, regardless of whether he personally
benefited from a seniority practice. Mullikin’s testimony fur-
ther indicates that Price was not concerned about Beason’s
complaining. Price simply advised Mullikin to disregard it.
Beason testified that on several occasions he and Price had
‘‘heated conversations’’ concerning his grievances, but until
Price discharged Beason, he said nothing about Beason’s atti-
tude. In sum, Price had no problem in dealing with Beason’s
complaints, so long as Beason took no action to seek redress
of his grievances.
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Company argues (R. Br. p. 12) that, apart from Beason’s
union activity, General Counsel failed to prove that Beason engaged
in protected concerted activity because Beason’s complaints per-
tained only to himself. The evidence indicates otherwise. As dis-
cussed, employee Mullikin complained to Price because Beason
sought to invoke a seniority system, regardless of whether he person-
ally benefited. Business Manager-Comptroller Lanham testified that
when Beason complained to her about reduction of health care bene-
fits he ‘‘got everybody else’s attention.’’ Where an employee, in the
presence of other employees, complains to management concerning
wages, hours, or other terms and conditions of employment, such
complaints constitute protected concerted activity, even though the
employee purports to speak on behalf of himself or herself. Gold
Coast Restaurant v. NLRB, 995 F.2d 257, 264 (D.C. Cir. 1993); see
also NLRB v. Sencore, Inc., 558 F.2d 433 (8th Cir. 1977); Jeannette
Corp., 217 NLRB 653, 657 (1975), enfd. 532 F.2d 917 (3d Cir.
1976). Moreover, Price’s designation of Beason as an instigator indi-
cates that the Company believed Beason was inciting the employees
The Company adduced testimony concerning other as-
serted problems with Beason, although, as indicated, Price
did not testify that these were reasons for his discharge. Price
and Lanham testified, in sum, that they believed, but could
not prove, that Beason or his wife surreptitiously and im-
properly placed certain papers in a section of his personnel
file, which was maintained pursuant to Department of Trans-
portation (DOT) regulations. They believed this was done
during a period of 7 to 10 days when the Company was in
the process of moving its facility and the office area was un-
locked. The papers included a Michigan Rehabilitation Capa-
bilities Reassessment, dated January 22, 1992, which indi-
cated that Beason could not climb a ladder, and should avoid
unprotected heights and ‘‘marked temperature or humidity
changes [cold].’’ They believed that Beason or his wife in-
serted this document when Beason was asked to sign the
company certification form previously discussed.
The Company was in the process of moving, and the of-
fice area was unlocked during this period of time in the sum-
mer of 1993. The company meeting concerning the change
in health benefits also took place during this period. Price
testified that he reviewed the personnel files on a monthly
basis, and upon such review, found the papers, some of
which (W-2 forms) plainly did not belong in the DOT sec-
tion. It is evident that, regardless of who placed the papers
in the file, Price knew of their existence well before Novem-
ber 4.
As indicated, Price did not testify that he terminated
Beason either because he believed Beason placed the papers
in the file or because the papers indicated that Beason could
not perform his assigned work. Price’s suggestion, in
Beason’s termination report, that the Company wanted only
versatile drivers ‘‘with No limitation,’’ was plainly false.
Beason stated on his job application, dated June 23, 1992,
that he had a left-shoulder restriction. Beason also indicated
that he attended a truckdriver training institute prior to apply-
ing for work with the Company. Beason testified, in sum,
that he injured his shoulder while working at a prior (non-
driving) job, and that at the training institute he was taught
to climb a truck ladder by the ‘‘three point method,’’ without
placing stress on his shoulder. Beason further testified, with
respect to the documents allegedly wrongfully placed in his
personnel file, that he gave those documents to the Company
when he applied for employment. One of the documents con-
sisted of a physical examination form, dated April 21, 1992,
and signed by the examining doctor. The form indicated that
Beason had a left-shoulder restriction, and a history of hyper-
tension and diabetes, but was nevertheless qualified to be a
truckdriver under DOT requirements. Beason testified, and
the form indicated, that he was required to take this physical
examination under DOT regulations. The Company did not
present in evidence any ostensible reports on Beason’s phys-
ical condition, other than those contained in the documents
in question. I credit Beason. I find that the Company was
fully aware of Beason’s physical limitations when it hired
him, and that Beason gave the Company the documents in
question when he was hired.
In sum, the Company was well aware, long before Novem-
ber 5, of the facts pertaining to Beason’s alleged deficiencies,
including those variously asserted by the Company as
grounds for his discharge. The only new thing the Company
learned, or could have learned in late October or early No-
vember, was that Beason was the key person in the union
organizational campaign.
B. Concluding Findings
I find that the Company, and specifically Price, violated
Section 8(a)(1) of the Act by questioning employee Lorenzen
as to the identity of employees who were trying to bring in
a union. Although Lorenzen voluntarily told Price that there
was union organizational activity, Price had no legitimate
reason to pursue the matter by questioning Lorenzen con-
cerning the union activities of other employees. It is signifi-
cant that within a short time following this conversation,
Price summarily discharged Beason, and gave Lorenzen a de-
sirable transfer, contrary to declared company policy.
I further find that the Company violated Section 8(a)(1)
and (3) by discharging Beason because of his key role in the
union organizational campaign, and to discourage other em-
ployees from engaging in such activity.
First, as discussed above, the reasons advanced by the
Company for discharging Beason were contradictory, and de-
monstrably false or pretextural. In part, as will be further dis-
cussed, they were also addressed to Beason’s protected con-
certed activity. Second, the evidence indicates that Price de-
termined to learn the identity of the leading union adherent
or adherents, if necessary, through unlawful interrogation.
The evidence further indicates that Price, without advance
warning, discharged Beason within a short time after learning
of the union organizational campaign.
I also find significant Price’s description of Beason, in the
termination report, as an instigator. Price and Lanham, in
their testimony, described Beason as a whiner and chronic
complainer. Price asserted that other employees complained
to management about Beason’s complaining, and that these
concerns were motivating factors in Beason’s discharge. If
so, then ‘‘instigator’’ would be a strange choice of word to
describe Beason. An instigator is one who goads or urges
others forward, or provokes or incites them to some action
or course. If, as suggested by Price, the employees were an-
noyed by Beason’s complaining, then Beason would not
qualify as an instigator. Rather, in the context of events,
Price’s choice of that word tends to indicate that the Com-
pany bore animus against Beason because he was inciting the
employees to join the Union, or to protest their terms and
conditions of employment. Either activity would constitute
activity protected under the Act.5
581AVERY LEASING
to assert their grievances. See United States Service Industries, 314
NLRB 30 (1994).
6 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
8 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
Continued
For the foregoing reasons, General Counsel presented a
prima facie case that the Company discharged Beason be-
cause of his union activity, and specifically, that the Com-
pany learned of Beason’s leading role in the organizational
campaign and was motivated by animus toward Beason be-
cause of such activity. It is a settled principle of law that
knowledge of union activity and animus, like other elements
of an unfair labor practice case, may be found from cir-
cumstantial evidence, if the circumstances are such as to sup-
port a reasonable inference. NLRB v. Radcliffe, 211 F.2d 309,
315 (9th Cir. 1954), cert. denied 348 U.S. 833 (1954); see
also Walker v. City of Birmingham, 388 U.S. 307, 312 fn.
4 (1967). Knowledge and animus may be inferred when the
employer, as here, advances false or pretextural reasons for
the discharge. Whitesville Mill Service Co., 307 NLRB 937
(1992). Knowledge or animus may also be inferred from an
otherwise unexplainable remark (here, the assertion that
Beason was an instigator). See West Meat Co., 244 NLRB
828, 830, 832 (1979). As the Company’s professed and con-
tradictory reasons for terminating Beason were false or
pretextural, and in part legally untenable because they were
addressed to protected concerted activity, it follows that the
Company failed to meet its burden of establishing that it
would have terminated Beason in the absence of his union
and concerted activity.
CONCLUSIONS OF LAW
1. The Company 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 meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, the Company has engaged in, and is en-
gaging in, unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discriminatorily discharging William Beason, there-
by discouraging membership in the Union, the Company has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom, and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Having found that the Company discriminatorily termi-
nated William Beason, it will be recommended that the Com-
pany be ordered to offer him immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings and benefits that he may have suf-
fered from the time of his termination to the date of the
Company’s offer of reinstatement. I shall further recommend
that the Company be ordered to remove from its records any
reference to the unlawful termination of Beason, to inform
Beason in writing of such expunction, and to inform him that
its unlawful conduct will not be used as a basis for further
personnel actions against him. Backpay shall be computed in
accordance with the formula approved in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).6 The
Company shall be required to preserve and make available
to the Board or its agents, on request, payroll and other
records to facilitate the computation of backpay due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Avery Leasing, Inc., Marshall, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Local 7, International
Brotherhood of Teamsters, AFL–CIO, or any other labor or-
ganization, by discriminatorily terminating employees, or in
an other manner discriminating against them with regard to
their tenure or employment or any term or condition of em-
ployment.
(b) Interrogating employees concerning their own or other
employees’ membership in, activities on behalf of, or attitude
toward said union or any other labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer William Beason immediate and full reinstatement
to his former job or, if such job no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the termination
of William Beason, and notify him in writing that this has
been done and that evidence of this unlawful discharge will
not be used as a basis for future personnel actions against
him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due.
(d) Post at its Marshall, Michigan office and place of busi-
ness, copies of the attached notice marked ‘‘Appendix.’’8
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National 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.’’
Copies of the notice, on forms provided by the Regional Di-
rector for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable 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 Respondent has
taken to comply.