Less Express Courier Systems

National Labor Relations Board - Board Decisions

Nov 17, 1999

330 N.L.R.B. 27 (N.L.R.B. 1999)

LESS EXPRESS COURIEER SYSTEMS 27
Less Express Courier Systems and District 6, Interna-
tional Union of Industrial Service, Transport
and Health Employees. Case 2–CA–31600
November 17, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On August 18, 1999, Administrative Law Judge Mar-
garet M. Kern issued the attached decision. The Re-
spondent filed exceptions 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Less Express Courier Sys-
tems, New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Lauri Kaplan, Esq., for the General Counsel.
Douglas E. Rowe, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in New York, New York, on June 3, 1999.
The complaint, which was issued on December 28, 1998, and
amended on March 10, 1999, was based on an unfair labor
practice charge filed on July 10, 1998,1 by District 6, Interna-
tional Union of Industrial Service, Transport, and Health Em-
ployees (the Union) against Less Express Courier Systems (the
Respondent).
It is alleged that in the first week of February, the Respon-
dent interrogated an employee concerning other employees’
union activities and that on February 6, the Respondent dis-
charged employee Kevin Walker because of his union activi-
ties. The Respondent denies the act of interrogation and asserts
that Walker voluntary abandoned his employment. For the rea-
sons set forth herein, I find that the Respondent did interrogate
an employee in violation of Section 8(a)(1) of the Act and dis-
charged Walker in violation of Section 8(a)(3) and (1) of the
Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 In concluding that the discharge of Walker was unlawful, the judge
noted that Respondent’s supervisor (Hawley) told Walker that Murphy
had said that “they didn’t need him [Walker] any more because he was
down with the Union.” The judge relied on the fact that Hawley was a
supervisor. Member Hurtgen agrees with the judge, but he also notes
that Murphy was a close personal friend of Respondent’s president,
Branch, albeit not an agent of Respondent.
1 All dates are in 1998 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is engaged in the business of providing
messenger and delivery services to businesses in New York
City. The Respondent employs at any given time from 20 to 40
messengers and these employees are not represented by any
labor organization. Elizabeth Branch is the Respondent’s sole
owner and president and Jacob Hawley is a dispatcher. Re-
spondent admits that Branch and Hawley are agents and super-
visors within the meaning of the Act. The Respondent denies,
however, that John Murphy was, at any material time, a super-
visor or agent. Murphy, who did not testify, is the ex-boyfriend
of Branch. Branch testified that Murphy was never employed
by the Respondent, did not perform any services for the Re-
spondent and had no responsibility in operating the Respon-
dent’s business. Branch and Murphy shared other business
interests, however, and Murphy occupied office space on the
same floor as the sort room where the messengers employed by
the Respondent work. Hawley testified that to his knowledge
Murphy did not work for the Respondent and did not perform
any duties for the Respondent.
In February, the Respondent utilized a payroll service called
Accounting Statistics (ACS). Each week, Branch totaled the
number of hours worked by employees the previous week.
Branch reported the hours to ACS on Tuesdays, Wednesdays,
or Thursdays and ACS delivered the payroll checks the day
after the hours were called in. The checks were dated for the
following Monday when they were distributed to employees.
Thus, a paycheck dated and distributed on February 9 was for
the week ending January 30. Frequently there were mistakes in
the ACS checks and handwritten checks were often issued by
the Respondent as payroll checks in addition to the ACS
checks. Branch testified that when an employee is fired, it is her
practice to pay the employee that same day whatever he is
owed. The terminated employee is given his ACS check if one
has been prepared and/or a handwritten check in order to fully
compensate him before he leaves the premises.
B. Walker’s Union Activities and Termination of Employment
Walker was first employed as a messenger for the Respon-
dent in February 1997. Sometime in the last week in January,
330 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28
Walker met two union representatives, Kevin S. Walker2 and
Nephty Cruz, outside the offices of the Respondent. Kevin S.
told Walker that if Walker distributed authorization cards, and
if a majority of the employees signed those cards, he would
have a meeting with them to discuss working conditions. After
speaking with Kevin S., Walker went back inside the building
to Respondent’s offices, picked up his work, exited the building
and accompanied Kevin S. to the union office. Kevin S. gave
Walker blank authorization cards and Walker returned to his
messenger duties.
Walker testified that in the week following his receipt of the
authorization cards from Kevin S., he distributed the cards on 4
or 5 occasions to approximately 20 employees. Approximately
10 employees signed cards and returned them to Walker. On
February 4, Walker gave a card to employee Nelson Jenkins
inside the Respondent’s offices. Walker testified that Hawley
and Murphy were among those present at the time he gave Jen-
kins the card. Jenkins signed the card and returned it to Walker
the same day.
Walker testified that on Friday, February 6, he returned to
the office having completed his rounds at around 4 p.m. He
dropped off his work and was about to change his clothes when
Hawley approached him and handed him an ACS check dated
February 9 in the amount of $236.76 and a handwritten check
dated February 6 in the amount of $258.50. Walker asked what
the checks were for and Hawley responded that Murphy said
they didn’t need him any more because they heard that he was
“down with the union.” Walker said o.k. and he left. He testi-
fied on both direct and cross-examination that to the best of his
recollection, no one else was present when this conversation
took place between him and Hawley. According to Walker, he
never returned to Respondent’s offices after February 6. From
the date that Walker met Kevin S. and received the authoriza-
tion cards to the time he was discharged was a period of ap-
proximately 1 week.
Jenkins worked as a messenger from November 1997 to
March 1998. Jenkins testified that he was sitting at a desk when
Walker and Hawley had a conversation at around 4 p.m. He did
not hear the conversation but did observe Hawley open a desk
drawer, remove two checks and hand them to Walker. As he
and Walker walked to the bus to go home, Walker told Jenkins
he had been fired and that he thought it was because of the
Union.
The Respondent’s payroll records reflect that in 1998, six
ACS paychecks were prepared for Walker. These checks were
dated January 5, 12, 19, 26, and February 2 and 9 and were for
the following net amounts, respectively: $142.81 (28 hours),
$157 (26 hours), $224.73 (38 hours), $271.38 (40 regular
hours, 6 overtime hours), $291.39 (40 regular hours, 10 over-
time hours), and $236.76 (40 regular hours, $1.25 overtime
hours).
C. Interrogation of Mevers
Eugene Meyers was employed as a messenger from 1994 to
1998. Meyers testified that in “early 1998” he had a conversa-
tion with Branch about the Union in the dispatcher’s area. Two
employees by the names of Melissa and Steve were present,
neither of whom testified. According to Meyers, Branch asked

2 Kevin S. Walker, the union representative, is no relation to Kevin
A. Walker, the alleged discriminates. To avoid confusion, I will refer to
the union representative as Kevin S.
him if he knew anything about anybody joining a union and he
said no. She told Meyers that if heard anything to get back to
her. Meyers agreed that he would get back to her but he never
did. Branch denied that she ever spoke to Meyers about the
Union.
D. Respondent’s Defense
Hawley testified that the afternoon of Friday, February 6,
was the last time that Walker worked. Hawley claimed that
Walker had not made his deliveries that day because he said it
was too much work. “[H]e started complaining about the work
and making a whole lot of noise, and just being totally disrup-
tive. And up until that—prior to that he had—just his perform-
ance was deteriorating anyway, and I just had enough.” Hawley
took the undelivered packages from Walker and told him to
clock out, go home, and to call him on Monday. Hawley denied
that he terminated Walker or that he made any mention of John
Murphy during the conversation. He also denied giving any
checks to Walker that Friday or on any other date. According to
Hawley, Walker did not call him on Monday and Hawley never
saw him again. He was asked at what point in time did he con-
clude that Walker had quit, and Hawley testified, “I guess after
a week I hadn’t seen him.”
Branch testified that between the hours of 12:15 and 2:15
p.m. on Walker’s last day of work, she received a number of
phone calls from customers complaining that they had not re-
ceived their deliveries. She determined that it was Walker who
was at fault. She went downstairs and informed Hawley of the
situation. Branch telephoned her customers to find out which
packages had priority: “I generally leave the office anywhere
between 1:30 and 2:30 to go home for the day, and I had to stay
on this particular day. It was very, very bad weather and I had
so many complaints coming in.” Branch testified that she told
Hawley to send Walker home. She denied that Hawley termi-
nated Walker or that she had instructed him to terminate him.
Branch insisted she did not know the date that Walker last
worked except that it was a Friday. When Walker failed to
report to work the following Monday, Branch realized he had
quit.
Both Hawley and Branch denied giving Walker his last two
checks, the February 6 handwritten check and the February 9
ACS check. According to Branch, Walker must have returned
to the office the Monday or Tuesday following his last day of
work to pick up his checks. She did not see him on that date,
but she assumed he was present because checks are always
given personally to employees. On cross-examination, Branch
was certain that Walker could not have been given the ACS
check on Friday because the check was locked in the company
safe and only she had access to the safe. However, in an affida-
vit given during the course of the investigation, Branch stated
that Walker came to the office on February 6 to pick up his
check.
As to the handwritten check dated February 6, Branch ac-
knowledged that the signature on the check was hers but
claimed that she did not know who filled out the rest of the
check, explaining that “many people could have written it out.”
She testified that it is her practice to sign blank checks and to
leave them available in case someone in the office needs to
make out a check. She listed Marcos Escobar, Teddy Hen-
dricks, and Jacob Hawley as those individuals who had the
authority to complete a previously signed blank check. She
could not, however, identify the handwriting on the February 6
LESS EXPRESS COURIEER SYSTEMS 29
check other than her own signature. Branch acknowledged that
the February 6 handwritten check reflected wages paid to
Walker for work performed, but she insisted she did not know
the week in which the work was performed.

Q. Isn’t it true that the check, the handwritten check
you have in front of you is payment for the workweek end-
ing February 6th?
A. No.
Q. No. But you’re sure it’s not for the workweek end-
ing February 6th, but you have no idea what it is for?
A. Correct.

When asked to examine the February 6 handwritten check,
Hawley testified that he recognized the signature as Branch’s
handwriting and that the rest of the handwriting on the check
“could be” Branch’s. It was definitely not his handwriting and
the handwriting did not appear to him to belong to anyone else.
Hawley denied that he or anyone else other than Branch had the
authority to write company checks.
Both Branch and Hawley denied possessing any knowledge
of Walker’s activities on behalf of the Union.
IV. ANALYSIS
In all cases alleging a violation of Section 8(a)(3) or viola-
tions of Section 8(a)(1) turning on employer motivation, the
General Counsel is required, in the first instance, to make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established, the employer has the burden
to demonstrate that the same action would have taken place
even in the absence of the protected conduct. Wright Line, 251
NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
The General Counsel has presented a strong prima facie
case. Walker credibly testified that in the first week in February
he distributed the Union’s authorization cards in and around the
Respondent’s offices. On February 4 he gave an authorization
card to Jenkins in Hawley’s presence. Two days later, Walker
testified he was told by Hawley that he was fired because he
was “down with the union.” The General Counsel’s initial bur-
den under Wright Line has been satisfied.
The Respondent’s defense that Walker voluntarily quit his
job is riddled with inconsistencies and improbabilities. In the
first instance, Branch testified that she had received numerous
customer complaints that Friday afternoon, that she identified
Walker as the employee who had failed to make his deliveries,
that she apprised Hawley of this fact and that she told Hawley
to send Walker home. Hawley, on the other hand, made no
mention of having had any such conversation with Branch and
testified that he sent Walker home on his own initiative because
Walker was being disruptive and because his performance had
been deteriorating anyway. Hawley did not explain why he
considered Walker’s work to have been substandard prior to
that Friday, and there is no evidence that Walker was ever rep-
rimanded or disciplined for poor work performance prior to his
termination. Hawley’s invocation of deteriorating work per-
formance by Walker as the reason for sending him home is
wholly unsubstantiated on this record and clearly a pretext.
The second glaring inconsistency in Respondent’s defense
concerns the February 6 check. Branch admitted that this
handwritten check constituted a wage payment to Walker, de-
nied that the check was for the workweek ending February 6.
Branch further admitted that the signature on the check was
hers but denied filling out the rest of the check. She identified
three individuals, including Hawley, who had authority to fill
out company checks. Branch’s testimony was directly contra-
dicted by Hawley who testified that no one other than Branch
had the authority to fill out company checks, that the handwrit-
ing on the check was not his, and that the handwriting looked
like Branch’s handwriting. Branch’s testimony is also inconsis-
tent with the payroll records which show that no ACS check
was prepared for Walker after the week ending January 30. In
view of Hawley’s clear recollection that Walker worked the full
week ending Friday, February 6, and the fact that the amount of
the handwritten check is consistent with having worked a 40-
hour workweek, the handwritten check is incontrovertible evi-
dence of payment for the work performed in the week ending
February 6.
The final deficiency in Respondent’s defense is that Branch
and Hawley could not account for Walker’s receipt of the two
paychecks. Both denied giving Walker either check and neither
offered any explanation for how the checks came to be in
Walker’s possession. The solution to the mystery of the pay-
checks lies in the credible testimony of Walker who testified
that he was handed his last two paychecks by Hawley and told
he was fired. Not only is this the only version of events that
makes any sense, it is corroborated by Jenkins’ testimony that
he saw Hawley hand the checks to Walker.3 It is also consistent
with Branch’s testimony that when an employee is fired, he is
normally given all of his compensation before leaving the
premises. Branch’s insistence that Walker could not have re-
ceived the February 9 check on February 6 because it was
locked in the company safe to which she had sole access is
undermined by her admission that she worked later than usual
on February 6 was obviously physically present in the Respon-
dent’s offices, with access to the safe, at the same time that
Walker testified he was given the February 9 check by Hawley.
Walker was fired 1 week after he began distributing authori-
zation cards and 2 days after he handed an authorization card to
Jenkins in Hawley’s presence. Such timing between the exer-
cise of protected conduct in relation to a discharge is strong
evidence of an unlawful motive for the termination. Grand
Central Partnership, 327 NLRB 966 (1999); Trader Horn of
New Jersey, Inc., 316 NLRB 194, 198 (1995). Indeed, timing
alone can be sufficient to establish that antiunion animus was a
motivating factor in a disciplinary decision. Sawyer of Napa,
Inc., 300 NLRB 131, 150 (1990). In addition to the proximity
of the discharge in relation to Walker’s union activity, Walker’s
credible testimony establishes that his union activities were the
express reason for his discharge. Hawley told Walker, in no
uncertain terms, that he was being fired because of his affilia-
tion with the Union. It is irrelevant that Hawley invoked Mur-

3 Walker testified that to his knowledge, no one else was present
when Hawley handed him the two paychecks. However, Jenkins testi-
fied that he was sitting at a desk a short distance away and was in a
position to observe Hawley when he handed Walker the checks. This
apparent inconsistency may be explained by Walker’s perception that
since Jenkins was not a party to the conversation with Hawley that
Jenkins was “not present.” In any event, I do not discredit the testimony
of these witnesses, which was otherwise credible, because of this in-
consistency.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
phy’s name in discharging Walker.4 Hawley is an admitted
supervisor within the meaning of the Act and possessed the
authority to fire employees. Hawley exercised that authority
and did so for a purely discriminatory reason.
As to the allegation that Branch interrogated Meyers regard-
ing other employees’ union activities, I credit Meyers over
Branch. Meyers was a 4-year employee at the time of the inter-
rogation and was apparently trusted by Branch to report to her
on other employees’ union activity. The Respondent’s counsel
did not cross-examine Meyers and there is no evidence from
which to infer that Meyers was biased against his former em-
ployer or that he possessed a motive to fabricate. Nor is there
any evidence from which to infer that Meyers was disposed to
give testimony favorable to Walker. I credit the testimony of
Meyers and find that Branch interrogated Meyers as to employ-
ees’ union activities in violation of Section 8(a)(1). I further
find that this incident of interrogation evidences Respondent’s
animus concerning its employees’ union activities Pan Ameri-
can Electric, 321 NLRB 473, 475 (1996). Meyers’ testimony
that this interrogation took place “in early 1998” is insufficient,
however, to establish that it occurred prior to Walker’s dis-
charge on February 6. It is equally consistent with the evidence
in this case that Branch, anxious to determine the extent of the
union support amongst her employees, asked Meyers to report
to her after Walker’s discharge as before. It is unnecessary to
resolve this ambiguity as there is more than sufficient evidence
to establish Walker’s discharge as violative of the Act without
specific reliance on this incidence of interrogation.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and has engaged in
unfair labor practices affecting 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. The Respondent, by Elizabeth Branch, violated Section
8(a)(1) of the Act in or about early 1998 by interrogating an
employee about other employees union activities.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act on February 6, 1998, by discharging Kevin Walker.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily discharged Kevin
Walker, must offer to him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5

4 The evidence fails to establish Murphy’s status as a statutory su-
pervisor and agent as alleged in the complaint and I so find.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Less Express Courier Systems, New York,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their or other employees
union activities.
(b) Discharging or otherwise discriminating against employ-
ees because they support or engage in union activities.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to Kevin
Walker full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Kevin Walker 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 the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
his files any reference to his unlawful discharge and within 3
days thereafter notify him in writing that this has been done and
that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
New York, New York offices copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for con-
secutive 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. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 6, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

Board and all objections to them shall be deemed waived for all pur-
pose.
6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LESS EXPRESS COURIEER SYSTEMS 31
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 ordered us to post and abide
by this notice.

WE WILL NOT interrogate employees about their or other em-
ployees activities on behalf of District 6, International Union of
Industrial Service, Transport, and Health Employees, or any
other union.
WE WILL NOT discharge or otherwise discriminate against
employees because they support engage in activities on behalf
of District 6, International Union of Industrial Service, Trans-
port, and Health Employees, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer to Kevin Walker reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Kevin Walker whole for any loss of earnings
and other benefits resulting his discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Kevin Walker and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge
will not be used against him in any way.

LESS EXPRESS COURIER SYSTEMS