McLean Trucking Company

National Labor Relations Board - Board Decisions

May 10, 1982

261 N.L.R.B. 793 (N.L.R.B. 1982)

MCLEAN TRUCKING COMPANY
McLean Trucking Company and Carl D. Daniels.
Case 9-CA-15063
May 10, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On November 20, 1981, Administrative Law
Judge Thomas F. Howder issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs," and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
I Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Iaas Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find nol basis for reversing his findings
3 In adopting the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)({3 and (1) of the Act by discharging Carl
Daniels, we rely on the following. Under Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), the General Counsel has made
a prima facie showing sufficient to support the inference that protected
activities were a motivating factor in Respondent's decision to discharge
Daniels The Administrative Lasw Judge's Decision fully sets forth Dan-
iels' grievance filing and other protected activities, Respondent's animos-
ity toward him because of these activities, the timing of the discharge.
and other acts which more than adequately comprise a prima facie case
for the General Counsel. This evidence effectively shifted the burden to
Respondent to demonstrate that it would have taken the same action
even in the absence of protected activity With regard to Respondent's
burden, the Administrative Law Judge implicitly credited Daniels' testi-
mony that Respondent's stated reason for discharging him was four disci-
plinary letters. These letters were presented at Daniels' discharge hearing
on October 9, 1979. Two of them related to productivity, but because
Respondent had no established productivity standards, the union repre-
sentatives objected to consideration of these letters. Thus, they were not
considered. The other two letters concerned company parking violations.
These violations do not adequately rebut the General Counsel's prima
facie case, particularly in the absence of evidence that other employees
were discharged for such relatively minor offenses. Furthermore, Re-
spondent at each proceeding involving Daniels' discharge has offered dif-
ferent reasons as to why he was discharged. For instance, at the griev-
ance proceeding held by the state panel after Daniels filed a grievance to
protest his discharge, Respondent for the first time contended that one of
Daniels' parking violations caused a work stoppage. In the instant pro-
ceeding, Respondent contends that Daniels was discharged for 6 years of
misconduct. These defenses are clearly afterthoughts. Such shifting of de-
fenses indicates that Daniels was discharged unlawfully. See Taft Broad-
casting Company, 238 NLRB 588, 589 (1978). Accordingly, we affirm the
conclusion of the Administrative Law Judge that Respondent violated
Sec. 8(aX3) and (1) of the Act by discharging Daniels. In view of this
analysis, Respondent's asserted reasons were clearly pretextual, and
Member Jenkins therefore finds that Wright Line, supra, has no applica-
tion to this case. In addition, Member Jenkins would compute interest
261 NLRB No. 112
Judge and to adopt his recommended Order, as
modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
McLean Trucking Company, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Carl D. Daniels immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make him whole, in the manner
set forth in the section of this Decision entitled
'The Remedy,' for any loss of earnings he may
have suffered by reason for his unlawful dis-
charge."
3. Substitute the attached notice for that of the
Administrative Law Judge.
due in accordance with the formula set forth in his partial dissent in
Olympic Medical Corporation, 250 NLRB 146 (1980).
As evidence of Daniels' engaging in protected concerted activities. the
Administrative Law Judge stated that Daniels filed claims for unemploy
ment benefits. Chairman Van de Water and Member Hunter find it un
necessary to rely on such evidence in finding that the General Counsel
made out a prima facie case.
As regards the grievance proceeding before the state panel, we note
that even though said panel upheld the discharge, we do not reach the
issue of whether the Board should defer under Spielberg Manufacturing
Company, 112 NLRB 1080 (1955), because Respondent failed to raise it.
4 In par. 1(b) of his recommended Order, the Administrative Law
Judge included a broad cease-and-desist order against Respondent We
find it unnecessary to impose such a broad order against Respondent As
the General Counsel has not demonstrated that Respondent has a procliv-
ity to violate the Act, or that Respondent has engaged in such wide-
spread or egregious misconduct as to demonstrate a general disregard for
employees' fundamental statutory rights, a broad order is not warranted
here. Hickmota Foods Inc., 242 NLRB 1357 (1979). Accordingly, we will
modify the Administrative Law Judge's recommended Order by substi-
tuting narrow cease-and-desist language for the broad language used by
the Administrative Law Judge. There is no need to similarly modify the
Administrative Law Judge's notice, since it already contains narrow
cease-and-desist language.
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT fire you, because you joined,
helped or supported Truck Drivers, Chauf-
feurs and Helpers Local Union No. 100, an af-
filiate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other union.
WE WILI. NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed by the Na-
tional Labor Relations Act.
WE WILL immediately offer to take Carl D.
Daniels back to work for us at his old job or,
if that job no longer exists, at a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
WE WILL. pay Carl D. Daniels any wages he
lost because we fired him, plus interest.
MCLEAN TRUCKING COMPANY
DECISION
STATEMENT OF THE CASE
THOMAS F. HOWDER, Administrative Law Judge: This
case was heard in Cincinnati, Ohio, on November 17 and
18, 1980. The complaint was filed on May 1, 1980, and
charges that Respondent McLean Trucking Company
violated Section 8(a)(l) and (3) of the National Labor
Relations Act (hereinafter the Act), by discharging its
employee Carl D. Daniels, the Charging Party herein.
The complaint alleges that Respondent discharged Dan-
iels because he joined, supported, or assisted his Union
and/or engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and that Respondent's aim was to discourage employees
from engaging in such activities or other concerted ac-
tivities for that purpose.
Respondent denies the allegations of the complaint and
maintains that the discharge of Daniels was the result of
his poor work during his employment with Respondent.
All parties were given full opportunity to participate
in the hearings by introducing evidence, and examining
and cross-examining witnesses. Based upon the entire
record, including my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
By its answer, Respondent admits jurisdiction. Re-
spondent is a North Carolina corporation, with an office
and place of business in Cincinnati, Ohio, and has been
engaged in the interstate transportation of freight and
commodities. During the 12-month period prior to issu-
ance of the complaint, Respondent derived gross rev-
enues in excess of $50,000 in the course and conduct of
its business for the transportation of freight and commod-
ities from the State of Ohio directly to points outside
that State. At all times material herein, Respondent is,
and has been an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent also admitted in its answer that Truck
Drivers, Chauffeurs and Helpers Local Union No. 100,
an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(hereinafter the Union), is now, and has been at all mate-
rial times, a labor organization within the meaning of
Section 2(5) of the Act.
111. THI RESPONDENT
In addition, Respondent admitted in its answer that at
all times material herein, the persons listed below occu-
pied the positions set forth opposite their names, and are
now, or have been, supervisors of Respondent within the
meaning of Section 2(11) of the Act and agents of Re-
spondent within the meaning of Section 2(13) of the Act:
Jack Carter, labor relations director; James A. Jones, ter-
minal manager (until October 1, 1979) and district man-
ager (October 1, 1979, to present); James M. Stopp, ter-
minal manager (October 1, 1979, to present); Larry G.
Pullen, assistant terminal manager; Tom Johnson, dock
supervisor.
IV. BACKGROUND; CHARGING PARTY'S UNION
ACTIVITY; AI.LiEGED 8(A)(I) AND (3) VIOI.ATIONS
Complainant Carl D. Daniels began his employment
with McLean Trucking Company in September 1973.1
Daniels revealed at the commencement of his testimony that his legal
name is Ralph Wood. He applied for his job at McLean under the name
of Daniels because he had been unable to obtain employment under his
real name due to certain prior felony convictions. Respondent was un-
aware of these matters until the date of the hearing.
794
MCLEAN TRUCKING COMPANY
He was employed as a dockworker, loading and unload-
ing truck trailers at Respondent's Cincinnati, Ohio, termi-
nal. While so employed, Daniels became involved with
an organization known as Teamsters for a Democratic
Union (hereinafter TDU). He served as co-chairman of
the TDU Cincinnati Chapter since 1978. Daniels solicit-
ed memberships for TDU among Respondent's employ-
ees and organized meetings for this organization. He dis-
tributed the TDU publication "Convoy" at various
trucking terminals throughout Cincinnati, including Re-
spondent's terminal. Some of the articles in this publica-
tion raised questions concerning the legality of certain
practices employed by Respondent, including activities at
its Cincinnati terminals.
In addition to his TDU activities, Daniels was very
active in pursuing grievances alleging violations by Re-
spondent of its contract with the Union. During the
course of his employment, Daniels filed approximately 67
grievances against Respondent (Jt. Exhs. 2(a)-2(ooo)).
He had some success in these filings. For example, in
1977 he was awarded 2 days' backpay by the local griev-
ance panel for a 3-day suspension imposed on him by Re-
spondent. Also in 1977, as the result of a settlement of a
grievance that Daniels had filed concerning a 7-day sus-
pension, he was given 6 weeks' backpay.
In addition to his own considerable grievance-filing ac-
tivities, Daniels rendered assistance to other employees
of Respondent in filing grievances. On a number of occa-
sions he wrote grievances for individual employees at
their request. In fact, there was testimony that some em-
ployees sought out Daniels, rather than the union ste-
ward, to assist them in filing grievances.
Daniels also engaged in the protected concerted activi-
ty of filing claims with the Ohio Bureau of Employment
Services for benefits covering layoff periods. He filed six
such claims and was successful in four instances, with
one claim pending resolution at the time of hearing. In
addition to being successful in obtaining unemployment
benefits for himself, Daniels also advised other employ-
ees regarding their legal rights to unemployment bene-
fits, and the procedure necessary to process those claims.
It should be noted that Respondent opposed Daniels'
claims for unemployment benefits.
Daniels testified that, in the course of his employment
with McLean, various statements were made by supervi-
sory personnel which reveal animosity toward him be-
cause of his union activities.
Early in 1977, Daniels and employee Mike Allen were
processing a grievance involving call-in times for 10-per-
center employees.2 Ron Williams was the terminal man-
2 This category of employee was described by Daniels as follows:
In very bnef form, in a trucking company ninety percent of em-
ployees are guaranteed a shift or a forty hour work week. The
bottom ten percent of the employees on the senionty scale are still
full-time employees but they are not guaranteed any particular start-
ing time or they're not guaranteed forty hours. In other words, you
can be called in to work at any time. They may call you at midnight
today and they may call you at 7:00 o'clock the next day or-I'm
sure you see the drift of it
About ten percent of the employees have no regular starting times or
quitting times
ager at the time. In the processing of this grievance, ac-
cording to Daniels, he made the statement to Williams
that, as the grievance procedure was not going to result
in justice for 10-percenter employees, the only alterna-
tive would be to get better organized. Daniels testified
that Williams became outraged and responded to the
effect that Daniels would not be permitted to do that
kind of thing. On another occasion, during a conversa-
tion about obtaining justice for 10-percenter employees,
Daniels claimed he was told by Williams that he would
never get a regular shift as long as he was the terminal
manager. Williams denied making such statements.
During the summer of 1977, Daniels brought a griev-
ance to Larry Pullen, assistant terminal manager, to
obtain Pullen's signature on the document, which would
thereby acknowledge its receipt. Daniels testified that
Pullen told him that Pullen was going to find a way to
get rid of him because he filed too many grievances; and
that Pullen also stated that "grievance hearings would
not have to be held but every three months if it wasn't
for grievances that I'd filed, that I'd filed too many
grievances" Daniels testified that on many other occa-
sions, Pullen expressed hostility towards his grievance-
filing activities by refusing to sign the grievances to ac-
knowledge receipt. Pullen denied that he made these
statements.
In November 1978, Daniels allegedly had a conversa-
tion with then Terminal Manager Benny Keen. Com-
plainant stated that during this conversation, Keen told
him that Respondent was a big company, they had ways
to get rid of people like Daniels, and that the Company
could "load me up with people." Daniels understood this
to mean that Respondent could put disciplinary letters in
an individual's file in response to his having filed griev-
ances, and that "they can call a hearing whether they're
justified or not." Daniels also testified that in December
1978, on the occasion of being sent home from work as a
result of a dispute over whether he was wearing proper
safety shoes, Keen told him that he need not file a griev-
ance because Keen had the votes to get rid of the com-
plainant at the grievance panel. Keen denied that these
conversations took place.
There was other testimony offered on complainant's
behalf as to statements made to other employees con-
cerning Daniel's union activities.
On one occasion during the time Keen was Respond-
ent's terminal manager, employee Michael Allen testified
he attempted to file some grievances with Keen. Accord-
ing to this witness, Keen brought up Daniels' name and
asked Allen if Daniels was "some kind of fanatic" about
filing grievances. On another occasion, according to
Allen, he was told by Pullen that he had been in the top
10 percent of the terminal's employees, but that he had
gone to the bottom 10 percent because he had been
"hanging around with Mr. Daniels" and another employ-
ee, Gene Smith. In addition, employee Jeremy Bender
testified that he attended a disciplinary hearing sometime
in 1977, at which Keen was present representing Re-
spondent. At one point, according to this witness, Keen
asked Bender if he thought he was a union activist, like
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniels. As stated above, Respondent's supervisors uni-
formly denied that these incidents occurred.
On October 8, the day before he was discharged, Dan-
iels was elected union steward at the McLean Cincinnati
terminal. Employee Donald Frietch was assisting in the
counting of the ballots. Pullen, who at that time was as-
sistant terminal manager, was present. Frietch testified
that Pullen was obviously upset by the way the balloting
was going and that he made several remarks, when bal-
lots for Daniels were counted, which were derogatory of
those employees who had voted for Daniels. After the
ballot tabulation was concluded, Frietch testified that he
remained in the break room. According to this witness,
Pullen (with his back to Freitch) remarked to the union
officials who were present, including the defeated union
steward, that they should leave the ballot box there be-
cause Respondent was going to have a hearing on Dan-
iels and discharge him the next day. Pullen denied that
this occurred.
Respondent presented a far different account of its rea-
sons for dismissing Daniels. It points to a long list of
warning letters, suspensions, and a prior attempt to dis-
charge complainant.
During the approximately 6 years (73 months) that he
was employed at McLean Trucking Company, complain-
ant was on layoff status for 32 of those months and sus-
pended for 12-1/2 days. Therefore, he worked only for
approximately 36 actual months of the 6 years.
During those 36 months Daniels received 33 warning
letters while serving under four different terminal man-
agers (See Jt. Exhs. J-3 (a) through (11)). The warning
letters were issued for various asserted offenses, summa-
rized as follows:
1. Unauthorized absence from his work place on nine
different occasions.
2. Unacceptable work habits resulting in poor perform-
ance-nine occasions.
3. Failure to follow instruction--six occasions.
4. Failure to make himself available for work-three
occasions.
5. No call-on show-two occasions.
6. Failure to report an injury timely-one occasion.
7. Participating in a sick-out-one occasion.
8. Parking in reserved parking-violation of company
policy--one occasion.
9. Auto in unauthorized area-one occasion.
According to Respondent, complainant worked ap-
proximately 475 days in the 6-year period, and either re-
ported late to work or left work early on 148 of those
occasions (31 percent of the time). While either on layoff
status or 10-percenter status, complainant was offered
158 work opportunities which he did not accept.
As a result of his many warning letters, complainant
was suspended for 3 days in February 1977. However,
when this matter was, grieved, the grievance panel re-
duced the suspension to I day. Then, in May 1977 (3
months later) he was suspended for 5 days, and the sus-
pension was upheld.
According to Respondent, Daniel's performance con-
tinued to deteriorate during that year, and he was dis-
charged on August 24, 1977. A grievance panel hearing
was thereafter scheduled in October 1977, and shortly
before the hearing, a settlement was reached between
complainant and Respondent. The compromise agree-
ment reinstated complainant and reduced the discharge
to a 2-week suspension on the condition that complainant
become a productive employee and not cause any more
problems.
During 1978, the same problems continued, including
unauthorized absences from his workplace, unacceptable
work habits resulting in poor performance, and failure to
make himself available for work. Accordingly, in No-
vember 1978 complainant was again suspended for 3
days.
Complainant resumed work in December 1978 and
problems developed immediately. He was issued four
warning letters in December 1978 for failure to follow
instructions and failure to make himself available for
work 46 percent of the time.
Subsequently, complainant was laid off between Janu-
ary and March 1979. He returned to work in March 1979
and problems started anew. He was issued a warning
letter in May for unacceptable work habits resulting in
poor performance and was suspended again in June 1979
for 5 days. He returned to work in the latter part of June
and promptly received another warning letter for unac-
ceptable work habits resulting in poor performance.
During July 1979 he was on layoff, being recalled to
work on July 30, 1979.
In August 1979, two more warning letters were issued
to complainant and a hearing was scheduled to discuss
his work record in contemplation of possible termination.
The hearing was scheduled to be attended by a repre-
sentative of the Respondent, the complainant, and the
Local Union. This meeting was first scheduled for Sep-
tember 4, 1979. Since complainant happened to be on va-
cation at the time, the hearing was postponed. When the
matter was rescheduled, complainant was not able to
attend (nor did he receive proper notice), and it was fi-
nally set for October 9, 1979.
Daniels was discharged at the October 9, 1979, disci-
plinary hearing, at which he was represented by Union
Business Agents Charles Justice and James Matheson and
by Dave Bloemer, the former union steward. The Re-
spondent was represented by Larry Pullen, who con-
ducted the meeting, and by Operations Manager Jim Cal-
lahan.
According to complainant, four disciplinary letters
issued to Daniels dated July 2, August 22, August 31,
and September 21, 1979, were the basis for the Compa-
ny's decision to discharge him. The actual decision to
discharge was made by Terminal Manager, Jones, on the
recommendation of Pullen.
The first two letters referred to above related to pro-
ductivity, but because the Company had no established
productivity standards, the union representatives object-
ed to consideration of these letters. According to the
complainant, they were not considered at the discharge
hearing.
The August 31 letter stated that Daniels' car had been
parked in a reserved parking space between midnight
and 5 a.m. (Jt. Exh. 3C). Daniels admitted at the hearing
that he had parked in a parking space reserved for office
796
MCLEAN TRUCKING COMPANY
personnel, but stated that Pullen had given employees
oral permission to park in reserved spaces during hours
when they were not occupied by the individuals for
whom the spaces were reserved. This testimony was sup-
ported by employee witnesses Allen, Bender, Thorn-
berry, and Freitch, who testified on behalf of the com-
plainant. McLean Supervisors Keen and Pullen denied
that employees were given any permission to park in re-
served spaces when they were unoccupied.
The letter of September 21, concerned yet another
parking violation (Jt. Exh. 3A). Daniels had come to the
terminal at night to pick up his pay check (he was then
on vacation), and his car had been driven into a restrict-
ed area where automobiles were not permitted. Although
Daniels admitted having his car in the restricted area, he
stated that he was driving it at the time, and that he
wanted to leave the car where it was so he could get his
paycheck without getting wet, since it was raining heav-
ily that night. Complainant's witnesses Bender, and per-
haps Allen, testified that Daniels got out of the car on
the passenger side. Respondent's witness Johnson testi-
fied that Daniels exited from the the driver's side.
According to Respondent's witness Pullen, Daniels'
appearance in this restricted area (close to where several
employees were working) led to a work stoppage. How-
ever, according to Daniels, there was no mention of a
work stoppage resulting from this incident at the Octo-
ber 9 hearing. In addition, none of the other employees
were disciplined for stopping work on that occasion.
Daniels filed a grievance to protest his discharge of
October 9, which became deadlocked at the local panel.
The grievance then was heard by the state panel in Co-
lumbus, Ohio, which upheld the discharge. According to
Daniels, it was at the latter hearing that Respondent first
claimed that Daniels' action of September 14 (for which
the September 21 letter was issued) created a work stop-
page.
V. THE ISSUE
The issue in this case is whether Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, by discharging its employee,
complainant Carl D. Daniels, for engaging in lawful
union activity.
VI. DISCUSSION
The central question for resolution is whether Re-
spondent's discharge of Daniels was based on poor per-
formance, warnings, and suspensions throughout the
tenure of his employment or, as the General Counsel
argues, was due to resentment of the complainant's filing
of grievances and his union activism, which was exacer-
bated by his election to the position of shop steward.
That Daniels was a union activist is not disputed. He
was active on behalf of TDU, he wrote many griev-
ances, both for himself and for others, and he filed var-
ious claims with the Ohio Bureau of Employment Serv-
ices.
It is clear that the complainant's union activities con-
stitute protected concerted activities which are protected
by the Act. It is also clear that Respondent was aware of
these activities, despite the denials of at least one super-
visor (Jones).
However, complainant's status as an active unionist
does not immunize him from discharge or discipline at
the hand of Respondent. "It is established that union
membership is no 'shield against discharge' [citation
omitted], and that an employee may be discharged for
any reason, good or bad, so long as union activity is not
the basis of the discharge."' Betts Baking Co. v.
N.L.R.B., 380 F.2d 199 (10th Cir. 1967).
Examining complainant's employment record in rela-
tion to the many statements that are attributed to Re-
spondent's supervisors (although denied by them), it ap-
pears that the reasons cited for Daniel's discharge were
not pretextual. This case, then, presents an instance
where an employer may be said to have a "dual motive"
in its treatment of its employee. Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). In "dual
motive" cases, the decision to discipline involves two
factors, i.e., a legitimate business reason, and the employ-
er's adverse reaction to employees engaging in union or
other protected activities. Id. at 1084.
Under this test, the General Counsel must first make a
prima facie showing that the protected activities were a
motivating factor, and, once such a prima facie showing
is established, the employer must demonstrate that its dis-
ciplinary action would have been taken in the absence of
any participation in protected activities by a complain-
ant. Id. at 1089.
In this case, the General Counsel has met its burden of
persuading me that complainant's grievance-filing and
other union activities may have been a motivating factor
in Respondent's decision to discharge Daniels. Various
statements of Respondent's supervisors, the timing of the
discharge immediately after Daniel's election as shop ste-
ward (despite the fact that the hearing had been sched-
uled prior to his election), and other evidence detailed in
this Decision, support the General Counsel's position.
In addition, the fact that Respondent cited different
reasons at various levels in terminating Daniels is sugges-
tive of a discriminatory motive. Taft Broadcasting Com-
pany, 238 NLRB 588-589 (1978); Stoll Industries, Inc.,
223 NLRB 51 (1976).
However, Respondent has convincingly demonstrated
that complainant's overall work-performance record
amply justified his discharge. It is impossible to find that
Respondent's action arose out of Daniels continuing ex-
ercise of protected rights ". . . in the face of supporting
and convincing evidence that the disciplinary action was
one reasonably deemed warranted and appropriately
taken by Respondent independently thereto...."
Meijer Wholesale. Inc., 239 NLRB 382, 391 (1978).
Complainant's long history of absences and tardiness,
prior suspensions and warnings, all demonstrate a work
record that is considerably less than exemplary.
Respondent has not exaggerated complainant's weak-
nesses as an employee to justify his discharge. Taft
Broadcasting Co., supra. In fact, Respondent had the op-
portunity to discharge Daniels at an earlier time, but re-
frained from doing so in response to promises on his part
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would become a productive employee and stop
causing problems.
Nevertheless, I am compelled to find in favor of com-
plainant in this case. This is because the collective-bar-
gaining agreement in effect between Respondent and the
Union at the time of complainant's discharge provides, in
pertinent part, that any warning notice to an employee
does not remain in effect more than 9 months from the
date of issuance. Thus, according to the understanding of
Respondent's former Terminal Manager Keen, Respond-
ent could only consider warnings issued to Daniels
during the 9-month period preceding his termination, as
justification for his removal. Despite the large number of
warnings issued to complainant during the course of his
employment, only four or five appear to be in the rele-
vant category.
All but two of these relevant warnings concern alleged
lack of productivity on the part of complainant. As here-
tofore noted, Respondent had no objective productivity
standards in effect, and, according to complainant, these
letters were not considered at the discharge hearing be-
cause of the objections of union representatives.
The other two warnings were based on alleged park-
ing violations by Daniels, described earlier in this deci-
sion.
In my view, none of these warnings during the rele-
vant 9 months, taken separately or together, adequately
rebut the prima facie showing regarding complainant's
participation in protected activities. Such a result may
well not have been reached were complainant's overall
work record allowed to be considered. I hold simply
that Daniel's "offences" committed during the pertinent
period were insufficiently serious when considered apart
from the other blameworthy factors in this case.
CONCLUSIONS OF LAW
1. Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) and (3) of the
Act by unlawfully discharging its employee, complainant
Carl D. Daniels, for engaging in protected concerted ac-
tivities under the Act.
4. The unfair labor practices engaged in by Respond-
ent, as set forth in Conclusion of Law 3 above, affect
commerce within the menaing of Section 2(6) and (7) of
the Act.
5. Respondent has not engaged in any unfair labor
practice not specifically found herein.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(aX)(1) and (3) of
the Act, my order will require Respondent to cease and
desist from these practices, and to take such affirmative
action as is consistent with the policies of the Act.
Therefore, my order will require Respondent to offer
full and immediate reinstatement to Carl D. Daniels and
to make him whole for any losses he may have suffered
by reason of the discrimination practiced against him.
Any backpay found to be due to Daniels shall be com-
puted in accordance with the formula set forth in F W.
Woolworth Company, 90 NLRB 289 (1950), and shall in-
clude interest in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). Accordingly, upon
the basis of the entire record, the findings of fact, the
conclusions of law, and consideration of remedy dis-
cussed above, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER3
The Respondent, McLean Trucking Company, Cincin-
nati, Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees because they have engaged
in protected concerted activity.
(b) In any other manner interfering with, restraining,
or ceorcing employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives to
their own choosing, or to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of
the National Labor Relations Act, as amended, or to re-
frain from any or all such activites.
2. Take the following affirmative action which it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Offer Carl D. Daniels immediate and full reinstate-
ment to his former job, without prejudice to his seniority
to other rights and privileges, and make him whole, in
the manner set forth in the section of this Decision enti-
tled "The Remedy," for any loss of earnings he may
have suffered by reason of his unlawful discharge.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its premises in Cincinnati, Ohio, copies of
the attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
798
MCLEAN TRUCKING COMPANY
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
799