M. Burstein & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 718 (N.L.R.B. 1987)

718

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
M. Burstein & Co., Inc. and Robert Moore. Case 1—
CA-24039
30 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 20 March 1987 Administrative Law Judge
Martin J. Linsky 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 delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adnumstra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 Fid 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Gerald Wolper, Esq., for the General Counsel.
Robert J. Morrissey, Esq., and John W. Fieldsteel, Esq., of
Boston, Massachusetts, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 14
July 1986 a charge was filed by Robert Moore, an indi-
vidual, against M. Burstein and Co., Inc. (Respondent).
On 25 August 1986 the National Labor Relations
Board, by the Regional Director for Region 1, issued a
complaint, which, as amended at the hearing, alleges that
Respondent violated Section 8(a)(1) of the National
Labor Relations Act, in early February 1986 when it
asked Robert Moore, who was shop steward and
member of union negotiating committee, to reject the
Union and violated Section 8(a)(1) and (3) of the Act on
14 February 1986 when it discharged Robert Moore. Re-
spondent denies that it violated the Act in any way.
A hearing was held in Boston, Massachusetts, on 1 and
2 December 1986.
On the entire record in this case, to include posthear-
ing briefs' submitted by the General Counsel and Re-
1 Respondent's application to file a reply brief was demed.
spondent, and on my observation of the demeanor of the
witness, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent M. Burstein & Co., Inc. is, and has been at
all times material, a corporation with an office and place
of business in Chelsea, Massachusetts, where it is en-
gaged in the processing of scrap metal for sale to smelt-
ers and brass mills for recycling in the United States and
other countries.
During the calendar year ending 31 December 1985,
Respondent, in the course and conduct of its business op-
erations, sold and shipped from its Chelsea facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to points outside the Commonwealth of Massachu-
setts.
During this same calendar year, Respondent, in the
course and conduct of its business operations, purchased
and received at its Chelsea facility products, goods, and
materials valued in excess of $50,000 directly from points
outside the Commonwealth of Massachusetts.
Respondent admits, and I find, that it is now, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 25, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) is now, and has been at all times
material, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
It is the contention of the General Counsel that Robert
Moore, a truckdriver, shop steward, and member of the
union negotiating team, was discharged on 14 February
1986 because of his activities on behalf of the Union and
that Respondent violated the Act in discharging him It
is also the General Counsel's contention that Respondent
violated the Act approximately 1 week before discharg-
ing Moore by telling Moore, "Why don't you reject the
union, just say the word and I'll call my attorney and
within half an hour after I make the call, the union will
be out of here."
Respondent contends that it fired Moore for cause,
namely, goofing off on a run and leaving a loaded trailer
unattended on a public street for over 1-1/2 hours. Re-
spondent denies that it ever asked Moore to reject the
Union.
It is my considered judgment that Moore was fired for
cause and would have been fired even in the absence of
any protected concerted activity on his part. Further,
that Respondent never asked Moore to reject the Union.
In short, Respondent did not, violate the Act. In reaching
these conclusions, I rely on the analysis the Board devel-
oped in its landmark decision in Wright Line, 251 NLRB
284 NLRB No. 83
M. BURSTEIN & CO. 719
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), 2 and on the testimony,
which I credit, of Maxwell Burstein, Respondent's presi-
dent.
B. Discussion
Respondent is in the scrap metal business. It employs
approximately 6 truckdrivers and 15 warehousemen.
Three of the drivers, including Moore, were tractor-trail-
er drivers. Respondent's employees were unrepresented
until August 1985 when they voted 19-to-2 in a Board-
conducted election to be represented by Teamsters Local
25.
Robert Moore, who had been employed by Respond-
ent since October 1977, was selected as shop steward and
served with Business Agent Frank Hackett as a member
of the union negotiating team. Respondent's negotiating
team was headed by Maxwell Burstein, part-owner of
Respondent and a man with other business interests as
well. The man who ran Respondent's operations when
the Union was voted in was Maxwell Burstein's brother,
Barney Burstein. In late January 1986, Barney Burstein
unfortunately had a heart attack and died. Maxwell Bur-
stein then took over control of Respondent's operations.
On assuming control, Maxwell Burstein was advised
by other officials of Respondent that Respondent's oper-
ations were loose, i.e., drivers were taking too much time
on runs, etc. Accordingly, Maxwell Burstein instructed
Arnold Butter, Respondent's warehouse manager, to
retain the services of Dee Investigations, a firm of pri-
vate investigators, to surreptitiously follow its drivers to
determine if they were goofmg off, etc., on the various
pickups.
The first driver followed by Dee Investigations was
Robert Moore. Moore was selected to be followed be-
cause Respondent wanted Moore's trip to Chamberlain
Manufacturing in New Bedford, Massachusetts, to be
checked on and because Kevin Dee of Dee Investiga-
tions would be available that day-12 February 1986—to
follow someone. The fact that Moore was selected ap-
pears suspicious at first glance because no employee was
more active on behalf of the Union but, on the other
hand, all three tractor-trailer drivers were eventually fol-
lowed and Moore was not immune from_ being followed
just because of his union activity.
There is no doubt about the fact that Robert Moore
did not do the run in the proper manner. Although there
are no written work rules or procedures that Respondent
could point to and say Moore violated this rule or that
rule since Respondent had no written work rules for its
drivers, the simple fact is that Moore's trip to New Bed-
ford, Massachusetts, to pick up a load of aluminum turn-
ings on 12 February 1986 is almost a textbook example
of whpt not to do on a run.
Moore left Respondent's yard at approximately 6:30
a.m. and did not return until 3:30 p.m. As testified to at
the hearing by private investigator Kevin Dee of Dee In-
vestigations, Moore's trip down and back could be
broken down into three parts:
2 The Board's analysts was later approved by the Supreme Court in
NLRB v. Transportation Management Corp, 462 U S 393 (1983)
1. Rolling time (drive to and from destination)-2
hours, 36 minutes.
2. Dock time-2 hours and 23 minutes,
3. Idle time-3 hours and 14 minutes.
Total time-8 hours and 13 minutes.
It is the idle time that causes a problem for Robert
Moore. En route to Chamberlain, Moore took a 15-
minute break at Howard Johnson's. After getting the
trailer loaded, Moore drove it off Chamberlain property,
unhooked the trailer, and left the trailer unattended on a
public street for 99 minutes. During this 99-minute
period, Moore spent 39 minutes of it in a Burger King
with the helper from Manpower who helped him load
the trailer. He returned to the trailer, after getting his
tractor washed, rehooked the trailer to the tractor, and
sat with the motor running for 38 minutes. On his way
back to Respondent's facility, Moore stopped at another
Burger King for 40 minutes. It was Moore's practice
generally and on this day-12 February 1986—to repre-
sent to Respondent that he did not take any time for
lunch and Moore was paid as if he worked through
lunch. Moore claimed that he waited 38 minutes after he
returned to the trailer and 40 minutes thereafter at a
Burger King to let excess liquid from the aluminum turn-
ings drain from the trailer, but when David Taylor, an-
other driver, made the trip to Chamberlain—under the
same conditions as Moore, see infra—he never had to
spend that much time letting the trailer drain. While
some draining was necessary, it could not have been too
much because Kevin Dee, although apparently not di-
rected to look for draining, never saw any liquid drip-
ping from the trailer.
Maxwell Burstein placed great significance on Robert
Moore leaving the loaded trailer unattended on a public
street for approximately 1-1/2 hours when Moore took a
helper from Manpower to breakfast and got his tractor
washed. The trailer itself was valued between $10,000 to
$11,000 and the load of aluminum turnings was valued
between $12,000 and $16,000. Union Business Agent
Frank Hackett testified that prior to becoming a union
business agent he had been a truckdriver himself for
many years and it was considered misconduct wherever
he had worked to leave a loaded trailer unattended on a
public street.
Respondent had no policy of progressive discipline
and no work rules that prescribed particular penalties for
particular types of misconduct. Accordingly, Respondent
had the authority to discharge Robert Moore for cause.
It did not, of course, have the authority to use his driver
misconduct as a subterfuge and really discharge him be-
cause of his activity on behalf of the Union. In other
words Respondent's motivation in discharging Moore is
dispositive.
It is my conclusion that Respondent discharged Moore
for cause, i.e., for leaving a loaded trailer unattended on
a public street and for otherwise goofing off and not be-
cause of Moore's concerted protected activity.
I found Maxwell Burstein to be an honest witness. I
did so principally based on his demeanor. Burstein was
forthright in his testimony and just generally impressed
me as an honest man. That does not mean that he neces-
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sarily impressed me as a compassionate man and, al-
though he was well within his legal rights to discharge
Moore, he would have been well within his legal rights
not to discharge Moore. He remains, of course, perfectly
at liberty to rehire Moore if he chooses to do so. I note
that this was Moore's first disciplinary infraction. Moore
had worked for Respondent for more than 8 years and
there was no evidence of prior misconduct—either seri-
ous or minor—on his record.
Moore testified about two conversations he had with
Maxwell Burstein—one in August 1985 and the other ap-
proximately 1 week before he (Moore) was discharged.
If Moore is believed and Maxwell Burstein actually said
what Moore claims he said, this would be strong evi-
dence of union animus. However, I do not believe
Moore's account of either conversation. Burstein denied
that either conversation ever took place and I totally
credit those denials. In addition, while Robert Moore
may never have been specifically asked about whether
any such conversations ever took place, I do place sig-
nificance on the fact that in Moore's affidavit to the
Board he never mentioned either conversation.
With respect to the two conversations Moore claims
took place and Burstein credibly denies ever took place,
the particulars, according to Moore, were as follows: In
August 1985 (approximately 1 week after the election)
Maxwell Burstein told Robert Moore that the employees
of Respondent would be sorry for voting in the Union.
When asked why they would be sorry, Burstein, accord-
ing to Moore, said, "I could do more for you people if
you hadn't voted for the union you are not going to get
nothing." There is also no evidence that Moore ever told
Union Business Agent Frank Hackett that Burstein said
this and Hackett was a witness at the hearing.3
With respect to the second alleged conversation,
Moore claims that in the early part of February 1986
(shortly before he was fired) Maxwell Burstein, in the
presence of Gerald Burstein, said to Moore, "Why don't
you reject the union, just say the word and I'll call my
attorney and within 1/2 an hour after I make the call the
union will be out of here." 4 Gerald Burstein denied that
his uncle, Maxwell Burstein, ever said this, and there is
no evidence that Moore ever mentioned it to Business
Agent Frank Hackett.
Even though I do not credit Moore with respect to
these remarks allegedly made by Burstein, there is still
the question of disparate treatment to be addressed.
While there was no evidence that any driver had ever
been discharged for doing what Moore did, there also
was no evidence that any driver did what Moore did and
was not discharged. However, there was evidence of
other driver misconduct and, if I were to conclude that
this other driver misconduct resulted in little or no disci-
pline and it was equally serious with Moore's miscon-
duct, I might draw the conclusion that Moore was un-
fairly treated and this unfair treatment attributable to his
engaging in protected concerted activity. While I do see
3 This was not alleged by the General Counsel as a violation of the
Act apparently because the 10(b) period had run.
4 This statement was alleged by the General Counsel to be a violation
of the Act in an amendment to the complaint made on the first day of the
hearing.
a distinction between the discipline meted out to some
drivers for misconduct and the discipline meted out to
Robert Moore for misconduct, I cannot say that Moore
was treated unfairly, much less attribute any unfair treat-
ment to Moore's protected concerted activity.
Richard Wall, another of Respondent's tractor-trailer
drivers, was followed on 13 February 1986 (the day after
Moore was followed) and was observed speeding. His
discipline was an oral reprimand. There is a significant
disparity between discharge and oral reprimand, but then
again there is also a great difference between goofing off
for several hours and leaving a loaded trailer unattended
on a public road on the one hand and speeding-65—on
the other hand. Several months later Wall was again dis-
ciplined for misconduct. In this instance he was given a
written warning and a suspension of 5 days (which was
later reduced to 2-1/2 days) when a barrel of scrap metal
fell from his truck and for being "grossly negligent" in
handling the situation after the spill.
There was evidence of one other employee being dis-
ciplined by Respondent. Prior to Moore's discharge em-
ployee Paul Jankowski had been ordered by management
to report in at 6 a.m. He reported in 30 minutes late.
While being orally reprimanded for being late, Jan-
kowski used abusive language toward Arnold Butter, a
management official of Respondent. Jankowski received
a suspension of several days. Jankowski's misconduct and
punishment were different from Moore's, but I can not
and do not draw an inference of disparate treatment.
All three of Respondent's tractor-trailer drivers were
followed by Dee Investigations. David Taylor did noth-
ing improper, Richard Wall was orally reprimanded for
speeding, and Robert Moore was discharged for goofing
off for several hours and, more significantly, for leaving
a loaded trailer on a public street unattended for 1-1/2
hours. Subsequent to Moore's discharge, David Taylor
made the run to Chamberlain Manufacturing approxi-
mately 12 times under the same conditions as Moore did
on 12 February 1986 except that Taylor knew he was
being followed and timed the first time he made the run.
While Moore took a little over 8 hours to complete the
run on 12 February 1986, Taylor consistently completed
the run in a little over 5 hours. A difference of 3 hours.
Moore tried to defend his actions on 12 February 1986
by claiming that Barney Burstein and Hyman Burstein,
both deceased and obviously unable to contradict him,
knew that Moore would leave his loaded trailer unat-
tended on occasions and had no objection to it and that
Barney Burstein had no objection to Moore taking time
out to buy breakfast for the helper from Manpower he
would use on his run to Chamberlain. These arguments
do not wash. I fmd it incredible that Moore was author-
ized by deceased officials of Respondent to leave loaded
trailers unattended on public streets. Moore claims he
had permission to take the helper from Manpower to
breakfast. It is interesting to note that Moore made this
run to Chamberlain Manufacturing between one and four
times a week for 8 years and yet Moore admits he never
was reimbursed or ever asked for reimbursement for all
the breakfasts he brought the Manpower helper (and
sometimes he says there was more than one helper).
M. BURSTEIN & CO. 721
The negotiations between Respondent and the Union
resulted in a collective-bargaining agreement being
reached by the parties in the spring of 1986. Maxwell
Burstein testified that the negotiations went smoothly.5
Frank Hackett, the union business agent, testified that the
negotiations went about normal for a newly organind
employer.
C. Summary
In short, I must conclude on the basis of the credible
evidence before me that Robert Moore was fired for
cause—mainly for leaving a loaded trailer unattended on
a public street and for goofmg off for several hours—and
not because he engaged in concerted protected activity
on behalf of the Union. Maxwell Burstein credibly testi-
fied that he was the one who made the decision to fire
Moore and that he knew of no one else in Respondent's
employ who had ever left a loaded trailer unattended on
the side of a road. The trailer, as noted above, was
worth between $11,000 and its load of aluminum turnings
worth between $12,000 and 16,000.
Although Maxwell Burstein's initial mind set was to
suspend Moore for 2 or 3 days for his misconduct, he de-
cided to discharge Moore after they both got "hot"
while discussing the trip to Chamberlain when Burstein
confronted Moore on 14 February 1986 with the report
of Moore's activities on 12 February 1986 prepared by
5 Although Respondent was newly organized, Maxwell Burstein had
other business interests and had negotiated with Unions for 30 years
Dee Investigations. He did not violate the Act in dis-
charging Moore and he would not violate the Act if he
changed his mind and rehired him. The General Counsel
put in a prima facie case but Respondent demonstrated
that it discharged Moore for cause and proved it would
have discharged him even absent concerted protected ac-
tivity on his part.6
CONCLUSIONS OF LAW
1. M. Burstein and Co., Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local 25 is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint, as amended.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"'
ORDER
The complaint, as amended, is dismissed in its entirety.
6 This case is not greatly unlike that of Pacific Intermountain Express,
250 NLRB 1491 (1980), a case cited by Respondent, in which the Board
upheld the discharge of three drivers for cause.
7 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 m Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.