Emery Worldwide

National Labor Relations Board - Board Decisions

Feb 14, 1992

306 N.L.R.B. 318 (N.L.R.B. 1992)

318
306 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find it unnecessary to pass on the General Counsel’s motion
to strike portions of the Respondent’s answering brief because the
judge, whose dismissal of the complaint we are adopting here, did
not rely on similar arguments that the Respondent had raised to him
in its posthearing brief.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The judge in his decision referred to the Respondent’s terminal
manager as both David Londino and David Landino. The record
shows that this management official’s correct last name is Londino,
and we correct the judge’s decision accordingly.
1 Henceforth, all dates are in 1989, unless otherwise indicated.
2 The General Counsel’s motion to correct the transcript is noted
and corrected.
Emery Worldwide, a Division of Consolidated
Freight Corp. and Earl Bragunier. Case 6–CA–
22284
February 14, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 30, 1991, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has 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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Robin F. Wiegand, Esq., for the General Counsel.
Richard J. Antonelli, Esq. (Buchanan Ingersoll, P.C.), of
Pittsburgh, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Pittsburgh, Pennsylvania, on May 14 and
15, and November 6 and 7, 1990. On a charge filed on No-
vember 30, 1989,1 by Earl Bragunier (the Charging Party or
Bragunier) a first amended charge filed by Bragunier, on
January 19, 1990, and a second amended charge filed on
May 14, 1990, the Regional Director for Region 6 issued a
complaint on January 19, 1990, which he amended at the
hearing before me.
The complaint, as amended, alleged that the Respondent,
Emery Worldwide, a Division of Consolidated Freight Corp.
(Emery), violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) by issuing a written warning
to Bragunier on May 31, suspending him on June 1, and by
terminating him on June 2, all because of his union and other
concerted activity protected by the Act. In its answer, as
amended at the hearing, Emery denied that it had committed
any of the alleged unfair labor practices. Following the close
of the hearing, the General Counsel and Emery timely filed
briefs.2
On the entire record, including my opportunity directly to
observe the witnesses and their demeanor, and after consid-
ering the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Emery is a corporation with facilities at Pittsburgh, Penn-
sylvania, where it has been engaged in the business of ex-
press delivery of freight and mail service. During the 12-
month period ending October 31, Emery, in the course and
conduct of its business operations, realized gross revenues
exceeding $50,000 from the transportation of freight and
mail from Pennsylvania directly to points outside of Pennsyl-
vania. Emery admits, and I find, that it is an employer within
the meaning of Section 2(2), (6), and (7).
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In May 1987, Emery Air Freight Corporation purchased
Purolator Courier. Approximately 2 years later, Consolidated
Freight Ways, Incorporated purchased Emery Air Freight and
Purolator Courier. Resulting from this transaction, effective
April 17, was the Respondent, Emery.
From 1972, until June 2, Emery and its predecessors em-
ployed Bragunier as a courier delivery driver at their Pitts-
burgh facility, known as the Ross Township terminal. At no
time during this employment were Bragunier or his col-
leagues at the Ross Township terminal represented by a
union. Bragunier’s assignment was to drive a truck daily, on
a designated route, delivering and picking up packages. His
cargo ranged from overnight envelopes to 5000- or 10,000-
pound shipments. For the 1-year period preceding his termi-
nation on June 2, Emery assigned Bragunier to drive Route
243. The farthest point on this route was 50 miles from the
terminal. Route 243 extended from Monroeville, Pennsyl-
vania, to New Alexandria, Pennsylvania.
Emery’s records include a verbal written warning dated
November 29, 1988, in which Service Supervisor Thomas
Graham complained that Bragunier was spending too much
time at the terminal. Bragunier testified that he did not re-
ceive this warning. However, on cross-examination,
Bragunier remembered a conversation with Graham regard-
ing excessive loading time.
During the latter part of 1988 and extending into the early
part of April 1989, Bragunier and his fellow employees dis-
cussed their concerns about wages, health benefits, holidays,
319EMERY WORLDWIDE
3 My findings regarding Bragunier’s participation in discussions re-
garding wages, hours, and conditions of employment, and his role
in the preparation and presentation of a list of employee questions
and concerns regarding these topics, are based on his and employee
Peter Stackhouse’s credible testimony. After insisting that the idea
of compiling a written list of employee questions and concerns had
originated with his colleagues, Bragunier conceded under the pres-
sure of extensive cross-examination that it was his idea. Bragunier’s
remaining testimony regarding the list, which he presented in a frank
manner, was largely corroborated by Stackhouse, who impressed me
as being a disinterested observer reporting his full recollection.
and summer vacation benefits. Bragunier suggested that the
employees put their concerns in writing, hold a meeting with
the terminal’s management, and try to obtain some adjust-
ments. Among the employees with whom Bragunier carried
on such discussions was courier driver Peter Stackhouse.3
On April 3 and 4, Service Supervisor Douglas Hughes au-
dited Bragunier’s job performance, and established a route
standard of 5.18 stops per hour for Route 243. Hughes, who
was Bragunier’s immediate supervisor, followed Emery’s
normal procedure for establishing delivery performance re-
quirements. This procedure required Supervisor Hughes to
accompany Bragunier on his route.
On or about April 7, Service Supervisor Douglas Hughes
counseled Bragunier on his work performance. Hughes also
issued a memorandum to Bragunier entitled ‘‘Route Require-
ments.’’ This memorandum outlined Hughes’ expectations
regarding Bragunier’s daily work performance and included
the statement that: ‘‘Route 243 standard is 5.18 stops per
hour. There should be no reason why this cannot be met on
a consistent basis.’’
On April 17, Emery’s Ross Township terminal manage-
ment held a meeting attended by Bragunier and as many as
50 other terminal employees. The new terminal manager,
David Londino, was introduced to the employees for the first
time. He discussed the recent merger between Emery and
Consolidated. As Londino spoke, one of the courier drivers
suggested to Bragunier that he, Bragunier, should approach
Londino about the drivers’ concerns and problems. Other
drivers echoed that suggestion.
After the meeting had concluded, Bragunier approached
Londino and asked if a meeting could be arranged between
the two to discuss the courier drivers’ concerns and prob-
lems. Bragunier mentioned wages, vacation schedules, long
hours, and layover time. Londino said he needed time to get
acquainted, and that after he had checked the terminal out,
he would get back to Bragunier.
Toward the end of April, Bragunier asked Londino if he
had explored the drivers’ complaints. Londino asked
Bragunier to recite them gain. Following a discussion,
Bragunier asked about a meeting. Londino was receptive.
Bragunier mentioned putting the drivers’ concerns in writing
for Londino’s perusal. Londino said he would get back to
Bragunier.
In early May, Bragunier had conversations with six of his
courier driver colleagues about Londino’s attitude toward a
meeting about wage increases and other problems, and about
having a meeting at which the drivers might put their con-
cerns in writing. During the second week of May, when it
appeared that the drivers could not get together, Bragunier
and driver Peter Stackhouse met during their layover time at
a parking lot. They drafted a list of questions and complaints
regarding wages, benefits, vacations, sick days, and working
conditions. Bragunier agreed to take the handwritten list
home to be typed by his wife for submission to Londino.
I find from Bragunier’s uncontradicted testimony, that the
subject of prounion sentiment also surfaced in the first half
of May, during a conversation between him and Operations
Manager Robert Kaczorowski. Bragunier complained that his
immediate supervisor, Service Supervisor Douglas Hughes,
was harassing him and other drivers. After suggesting that
corrective action be taken, Bragunier reported that some of
the drivers were talking about getting a union. Kaczorowski
instructed Bragunier to keep him informed if he heard any-
thing more about a union.
Bragunier vacationed from May 15 until May 19. Before
leaving, Bragunier met Terminal Manager Londino at work,
and attempted to set up a meeting to discuss the drivers’
questions and complaints. Londino suggested the following
week, which would have conflicted with Bragunier’s vaca-
tion.
From April 20 until May 31, Hughes monitored
Bragunier’s stops per hour on Route 243. Hughes had also
noted that Bragunier’s overtime hours and time spent in the
terminal were excessive. Hughes’s chart showed that
Bragunier failed to meet the 5.18 standard on 16 of the 19
days on which he drove Route 243.
Bragunier returned to work on May 22. That same day,
Supervisor Hughes handed a written warning to Bragunier. In
the warning, Hughes noted three areas of deficiency in
Bragunier’s work for the period from April 20 through May
12. Hughes’ critique discussed insufficient stops per hour,
excessive morning terminal time, and excessive outbound
stem time. This last figure reflected the time Bragunier took
to drive from the terminal to the first stop on his route.
Bragunier refused to sign the warning, which spoke of a final
written warning, if Bragunier failed to correct any of the
three deficiencies.
Following his return to work from vacation, Bragunier ar-
ranged a meeting with Landino, to take place on May 31, in
the latter’s office, at the Ross Township facility. On May 30,
Bragunier, with the assistance of his wife and son, prepared
the final list of the drivers’ questions and complaints for
presentation to Londino.
On May 31, Bragunier and Landino met as planned.
Bragunier presented the typed list of questions and com-
plaints, and explained the document. The two discussed its
contents. Londino agreed to study the list and Bragunier left
the manager’s office. As Bragunier neared the dispatch of-
fice, Hughes handed him a final written warning. The warn-
ing, which Hughes had prepared on May 30, stated that on
May 25 and 26, Bragunier had failed to meet the route stand-
ard of 5.18 stops per hour, and that failure to comply with
that standard ‘‘could result in further disciplinary action, in-
cluding suspension and/or termination.’’
Bragunier’s reaction to the final written warning was to re-
turn at once to Londino’s office. When he arrived, Bragunier
found the terminal manager and Operations Manager
Kaczorowski conferring, and noticed his list of questions and
complaints sitting on top of Londino’s desk. Bragunier
showed the warning to Londino and complained that this was
an example of the harassment suffered by the drivers.
Londino handed the paper to Kaczorowski, who said he
would talk to Hughes about it.
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Bragunier testified that he handed the list of drivers’ questions
and complaints to Londino on May 31, that he met with Hughes and
Kaczorowski on June 1, and that he was suspended on the latter
date. According to the testimony of Landino, Kaczorowski, and
Hughes, Bragunier did not present the list until June 1, and
Bragunier’s meeting with Hughes and Kaczorowski did not occur
until June 2. Granted that Bragunier’s testimony contained instances
of evasiveness, and that there were inconsistencies between his testi-
mony and his affidavit, which he gave to a Board agent, I have cred-
ited his testimony regarding these disputed dates. For, when testi-
fying about the list and incidents leading up to his termination,
Bragunier did so with conviction, as if he were reliving these events.
In contrast, I noted Landino’s uncertainty and counsel’s resort to
leading questions in attempting to support Emery’s proffered time-
table. At first, Londino testified that his meeting with Bragunier
could have occurred on May 31. Later, in answer to leading ques-
tions by Emery’s counsel, he agreed that it occurred on June 1. I
also noted that Emery’s counsel used leading questions to his wit-
nesses Londino, Hughes, and Kaczorowski to inject June 2 into the
record as the date for Bragunier’s suspension, his meeting with
Hughes and Kaczorowski, and his termination.
Other factors suggested that Bragunier’s testimony regarding
events on May 31, June 1 and 2, was reliable. I find from
Bragunier’s testimony, and a letter to him from Kaczorowski, that
June 1 was Bragunier’s last workday at Emery, a fact which strongly
suggests that he had been suspended at the end of his shift, on that
same day. Londino, Kaczorowski, and Hughes testified, in agree-
ment, that Bragunier did not work any day after Emery had told him
he was suspended. Another factor weighing in favor of Bragunier’s
timetable, was the absence of evidence showing an effort to contact
him and invite him back to the Ross Township facility for a meeting
on June 2 with management. Having credited Bragunier’s testimony
in this regard, I have also rejected Londino’s testimony on cross-ex-
amination in which he agreed that he showed Bragunier’s list to
Kaczorowski prior to the announcement of Bragunier’s suspension.
5 Sec. 7 provides in pertinent part:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
Sec. 8(a)(1) of the Act provides:
It shall be an unfair labor practice for an employer . . . to inter-
fere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 . . . .
On May 31, Hughes and Kaczorowski discussed the final
warning which Bragunier had received that same day. They
decided to monitor his performance that day and on June 1.
Bragunier’s performance was below standard. After
Bragunier had completed his workday, on June 1, Hughes
and Kaczorowski met with him. Kaczorowski asked
Bragunier to explain his failure to meet the route standard or
otherwise improve his productivity. Bragunier answered that
he thought ‘‘it was mainly a problem between supervisor and
employee, meaning Doug Hughes and [himself].’’ On com-
pletion of the discussion, Kaczorowski announced
Bragunier’s immediate suspension from Emery’s employ.
Kaczorowski and Hughes also decided to recommend
Bragunier’s termination.4
On the morning of Friday, June 2, Kaczorowski and
Hughes went to Terminal Manager Londino’s office, and rec-
ommended Bragunier’s termination. On hearing Bragunier’s
name, Londino asked who he was. Kaczorowski and Hughes
provided enough description to allow Londino to connect
Bragunier to both the list of complaints and questions and
the recommended termination. This conversation was also the
first that Kaczorowski and Hughes had heard of the list and
Bragunier’s role in its presentation to the terminal manager.
Before taking the final step in the termination, Londino
consulted John Raymond, Emery’s manager of employee re-
lations for its central area. Londino assured Raymond that
Kaczorowski had first learned of the list after deciding to
recommend Bragunier’s termination. Londino also asserted
that the list had not influenced his decision to accept the rec-
ommendation. Raymond advised Londino to go forward with
the termination.
On the afternoon of June 2, Kaczorowski telephoned
Bragunier and terminated him. Bragunier appealed his termi-
nation to a division manager. By letter dated July 10,
Emery’s Cleveland division manager, John E. Leonard, de-
nied Bragunier’s written appeal. Emery has not offered to re-
instate Bragunier.
B. Analysis and Conclusions
The General Counsel contends that Emery issued a written
warning to Bragunier on May 31, suspended him on June 1,
and discharged him on June 2, ‘‘in retaliation for his pro-
tected concerted activities and/or because he raised the spec-
ter of unionization among the drivers at [Emery’s] facility.’’
Emery urges rejection on the ground that the record does not
show that Bragunier’s role in the compilation of the list of
drivers’ questions and concerns, his presentation of that list
to management, or any other activity protected by Section 7
of the Act5 played any role in the decisions to discipline him
on May 31, suspend him on June 1, and then terminate him
on June 2. I find that the General Counsel has failed to es-
tablish the alleged violations.
Under Board policy, where the record shows that an em-
ployer’s hostility toward activity protected by Section 7 of
the Act was a motivating factor in a decision to take adverse
action against an employee, the adverse action will be found
to be unlawful unless the company is able to demonstrate,
as an affirmative defense, that it would have taken the ad-
verse action even in the absence of the protected activity.
NLRB v. Transportation Management Corp., 462 U.S. 393,
402–403 (1983), affg. Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Where it is shown that the busi-
ness reasons advanced by the employer for its actions were
a pretext—that is, that the reasons either do not exist or were
not in fact relied on—it necessarily follows that the employer
has not met its burden and the inquiry is logically at an end.
Wright Line, 251 NLRB at 1084.
One of the elements required to show Emery’s alleged un-
lawful motive in issuing a written warning to him on May
31, suspending him on June 1, and terminating him on June
2, is knowledge of Bragunier’s union activity or other activ-
ity protected by Section 7 of the Act. At the outset, I find
that Bragunier was not engaged in any union activity, at any
time material to the alleged violations in this case. Nor was
there any showing that Hughes, Kaczorowski, or Londino
suspected that he was engaged in union activity. Instead, the
record shows only that Bragunier remarked to Kaczorowski
that he, Bragunier, had heard some union talk among the em-
ployees. Kaczorowski asked to be advised if Bragunier heard
any more expressions of prounion sentiment. The record con-
321EMERY WORLDWIDE
6 Both Hughes and Kaczorowski seemed to be frank witnesses
when testifying about their knowledge of Bragunier’s Sec. 7 activity.
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.
tains no evidence of any incipient union activity among
Bragunier’s colleagues.
Further, there has been no showing that Hughes or
Kaczorowski had any inkling of either Bragunier’s participa-
tion in discussions with his colleagues regarding Emery’s
policies regarding wages, health benefits, holidays, or other
conditions of employment or of his role in the preparation
and presentation of the list of questions and concerns to
Landino prior to June 2. That the list was on Londino’s desk
on May 31, when Kaczorowski was in his office was not
sufficient proof that they discussed it, or that Kaczorowski
knew about it at that time. Nor was the testimony that
Londino and Kaczorowski had a longstanding working rela-
tionship sufficient to support a finding that they discussed
the list on May 31 or June 1.
Instead, I find from Hughes’ testimony that he knew noth-
ing about the list at the time he issued the final warning to
Bragunier. I also find from Hughes’ and Kaczorowski’s testi-
monies that they knew nothing about the list when they sus-
pended Bragunier and when they decided to recommend his
termination.6 In sum, the record does not permit me to find
that Bragunier’s Section 7 activity played any part in
Emery’s decision to issue a final warning to him on May 31,
and to suspend him on June 1. Nor do I find that Section
7 considerations entered into Hughes’ and Kaczorowski’s
thinking, when they decided on June 1 to recommend
Bragunier’s termination.
At the time he considered Hughes and Kaczorowski’s rec-
ommendation, Londino knew of Bragunier’s connection with
the list of questions and concerns. However, in determining
whether this knowledge was a motivating factor in Londino’s
decision to follow the recommendation, I must consider the
evidence showing his sentiment toward Bragunier’s Section
7 activity.
The record shows that Londino received the list from
Bragunier on May 31 without apparent hostility. Indeed,
Bragunier’s testimony shows they discussed its contents
calmly, and that Londino said he would study it and get back
to Bragunier. There was no showing that Londino made any
threat, direct or implied, to punish Bragunier for his role in
the formulation and presentation of the list. Nor was their
any showing that Bragunier’s overtures for a meeting to dis-
cuss employee concerns had provoked Londino, or even an-
noyed him. On June 2, when he learned that Hughes and
Kaczorowski were recommending the termination of the
same employee who had presented the list of employee ques-
tions and concerns, Londino did not show that he was glad
to get rid of Bragunier. Thus, I find that the General Counsel
has failed to show that Londino was hostile toward
Bragunier’s Section 7 activity, prior to approving the rec-
ommendation to terminate him.
Nor am I persuaded that Bragunier suffered disparate treat-
ment at Emery’s hands. The record shows that employee
Giles received a written warning from Supervisor Hughes,
dated June 1, 1988, for failing to meet the standard for his
route. Two days later, Hughes issued a final written warning
to Giles and suspended him for the same offense. Thereafter,
Emery terminated Giles for failing to comply with his route
standard. In 1987, a second employee, Milton Hatch had per-
formance problems in servicing his route. Emery gave him
written warnings and finally laid him off indefinitely.
I find no merit in counsel for the General Counsel’s argu-
ment that as his performance was not as far below standard
as Giles’ was, Bragunier did not deserve termination. How-
ever, there was no showing that Emery has ever tailored its
punishment with the refinement counsel seeks for Bragunier.
In sum, I cannot find that the General Counsel has shown
that Bragunier’s Section 7 activity was a motivating factor in
either Emery’s decisions to discipline him by issuing a writ-
ten warning to him on May 31, and by suspending him on
June 1, or in its decision to terminate him on June 2. Ac-
cordingly, I find that the General Counsel has not shown by
a preponderance of the evidence that Emery violated the Act
when it disciplined and then terminated Bragunier, as al-
leged. I shall, therefore, recommend dismissal of the com-
plaint.
CONCLUSIONS OF LAW
1. Emery Worldwide, a Division of Consolidated Freight
Corp. is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Emery Worldwide, a Division of Consolidated Freight
Corp. has not committed any of the unfair labor practices al-
leged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint is dismissed.