Payless Drug Stores

National Labor Relations Board - Board Decisions

May 16, 1994

313 N.L.R.B. 1220 (N.L.R.B. 1994)

1220
313 NLRB No. 216
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 JD fn. 2. The judge inadvertently referred to Case 20–CA–24380
rather than the correct Case 20–CA–24274.
2 All dates are in 1991 unless otherwise indicated.
3 The letter stated in its entirety:
In January of this year, you voted in a National Labor Relations
Board sanctioned election which would have authorized Team-
sters Local #150 to represent the drivers of PLXpress.
A majority of the drivers fell victim to the same old line man-
agement has given the California drivers for over four years.
‘‘We’re going to bring you up to parity with Wilsonville driv-
ers’’ is the redundant statement management always has on their
lips.
I hope every one is fully aware we were taken for suckers. The
only thing we got was a 3.704% raise for hourly work, a
2.941% raise for mileage runs, and a seven day work week.
It is time to make a statement and take a united stand. We need
to let management know we have had enough of their empty
promises and selective enforcement of company and D.O.T. reg-
ulations.
Cliff Webb (newly elected secretary-treasurer of Local #150)
told me, during a meeting I had with him, the Teamsters would
take a greater stand to help PLXpress drivers organize. He felt
a major mistake was made during the last organization attempt.
Please fill out the enclosed card and drop it in the mail today.
4 This letter was part of McDonald’s personnel file which was ob-
tained at the hearing by the General Counsel pursuant to subpoena.
The judge overruled the Respondent’s objection, based on a con-
fidentiality claim, to the introduction of this letter. The Respondent
has not excepted.
5 The letter stated in its entirety:
At your request I reviewed the letter sent by J.E. McDonald
to all the other drivers.
There are some clear misrepresentations and unfounded allega-
tions in the letter. I will call you tomorrow regarding my
recommendations/discipline on this matter.
Also, Mr. McDonald, did make statements regarding the parity
issue on which we have been working. Although we had
planned a 40 cents increase next month, I do not advise
PLXpress now to give it.
If PLXpress was to go ahead with the mid-year increase in
order to reach parity with the Wilsonville drivers, it would be
seen by most drivers as a reaction to Mr. McDonald’s letter.
Letting an employee or employees think they can intimidate you
in order to obtain a greater benefit, would be a terrible mistake.
You can always give the 40 cents in February with the rest
of Pay Less wage reviews.
It is unfortunate Mr. McDonald circulated this letter with this
issue in it. However, I see no other alternative. [Emphasis in
original.]
6 The judge overruled the Respondent’s relevancy objection to the
introduction of this testimony. The Respondent has not excepted.
PLXpress, a wholly owned subsidiary of Payless
Drug Stores NW, Inc. and Chauffeurs, Team-
sters and Helpers Union Local 150, Inter-
national Brotherhood of Teamsters, AFL–CIO
and Jay McDonald. Cases 20–CA–24274 and
20–CA–24380
May 16, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 14, 1993, Administrative Law Judge James
M. Kennedy issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the General Counsel filed an an-
swering brief in support of portions of the decision of
the judge.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order except
as set forth below.
The General Counsel excepts to the judge’s denial
of his motion to amend the complaint in Case 20–CA–
242741 and further requests the Board to find on the
merits that the Respondent violated the Act as alleged
in the motion to amend. We find merit to this excep-
tion; we will, however, remand this allegation to the
judge for further consideration and issuance of a sup-
plemental decision.
The following facts are not in dispute. On Septem-
ber 23, 1991,2 employee Jay McDonald forwarded to
all the drivers at the Respondent’s Woodland facility
a union authorization card and a letter urging the driv-
ers to sign and mail the card. In the letter, McDonald
accused the Respondent of making ‘‘hollow promises’’
of wage parity between Woodland and Wilsonville
drivers.3 On October 1, the Respondent suspended
McDonald for 1 week because he had circulated the
September 23 letter. In the complaint in Case 20–CA–
24274, the General Counsel alleged that this suspen-
sion violated Section 8(a)(3) and (1) of the Act. The
complaint was based on the October 7 charge filed by
Teamsters Local 150 that the Respondent had sus-
pended McDonald ‘‘due to his union organizing activi-
ties.’’
On January 6, 1993, during the hearing in this case,
the General Counsel put into the record a September
26 letter from the Respondent’s attorney, Bob Tiernan,
to the Respondent’s president, Shannon McCord.4 This
letter advised McCord not to go ahead ‘‘next month’’
with a planned 40 cents’ parity increase for Woodland
drivers because, Tiernan stated, drivers would view it
as a reaction to McDonald’s September 23 letter. The
September 26 letter also advised McCord that rec-
ommendations on discipline for McDonald’s Septem-
ber 23 letter would be forthcoming.5 The General
Counsel also questioned the Respondent’s sole witness
at the hearing, Woodland’s trucking supervisor, Bob
Swor, about the parity increase between Woodland and
Wilsonville drivers. Swor testified that the Respond-
ent’s managers had discussed the option of giving the
Woodland drivers a parity increase but that it was, in
fact, not granted the Woodland drivers.6
Based on the Respondent’s September 26 letter and
Swor’s testimony, the General Counsel moved to
1221PAYLESS DRUG STORES
7 The charge in Case 20–CA–24380 alleged that the Respondent
discharged McDonald because of his union organizing activities in
violation of Sec. 8(a)(3) and (1) of the Act.
8 Drug Plastic & Glass Co., 309 NLRB 1306 fn. 1 (1992); South-
west Distributing Co., supra; Van Dyne Crotty Co., 297 NLRB 899,
900 (1990).
amend the complaint in Case 20–CA–24274 to include
the allegation that ‘‘on or about September 26, 1991,
Respondent withheld a scheduled pay increase for its
employees because its employees engaged in union
and/or protected concerted activities’’ in violation of
Section 8(a)(3) and (1) of the Act. The Respondent op-
posed the motion on the basis that it was precluded by
Section 10(b). The judge denied the motion on the
basis that the allegation was not reasonably encom-
passed in the charges filed in the case.7
In his exceptions, the General Counsel contends that
the wage withholding allegation arises from the same
factual circumstances as the suspension allegation and
both rely on the same legal theory. The General Coun-
sel thus argues that his proposed amendment to the
complaint in Case 20–CA–24274 is closely related to
the timely filed charge in that case, and that the judge
erred in not permitting amendment of the complaint.
We agree.
To be successful in amending the complaint in this
case the General Counsel must demonstrate that the
charge that McDonald was suspended in violation of
Section 8(a)(3) is closely related to the allegation that
the wage increase was unlawfully withheld. Nickles
Bakery of Indiana, 296 NLRB 927 (1989). In deter-
mining whether there is a sufficient nexus between the
allegations in the charge and the complaint allegations,
the Board examines, among other things, whether the
two arise from the same factual circumstances and are
based on the same legal theory. Southwest Distributing
Co., 301 NLRB 954, 955–956 (1991); Well-Bred Loaf,
303 NLRB 1016 fn. 1 (1991).
Here, we find that the suspension allegation and the
wage withholding allegation arise from the same fac-
tual circumstances. Thus, the judge found, and we
agree, that, as alleged in the charge and complaint,
McDonald was suspended in violation of Section
8(a)(3) because he circulated his September 23 letter to
the Woodland drivers. One of the issues McDonald
raised in his September 23 letter was the Respondent’s
failure to keep its promises about giving the Woodland
drivers wage parity with Wilsonville drivers. The Re-
spondent counsel’s September 26 letter, which ad-
dressed directly McDonald’s September 23 letter,
noted that recommendations about McDonald’s dis-
cipline for circulating the September 23 letter would be
forthcoming, and advised that the planned wage parity
increase for Woodland drivers should be canceled be-
cause of McDonald’s September 23 letter. Thereafter,
the Respondent both suspended McDonald and decided
not to give the wage parity increase to the Woodland
drivers. The factual nexus between the suspension alle-
gation and the wage withholding allegation is clear—
both allegations arose from McDonald’s September 23
letter. The Respondent attorney’s September 26 letter
dealt with both allegations and the Respondent’s con-
duct conformed to the blueprint established in that let-
ter.
In concluding that the wage withholding allegation
is closely related to the suspension allegation, we also
rely on the fact that both the suspension allegation and
the wage withholding allegation involve the same legal
theory—that Respondent discriminated against McDon-
ald and the other drivers in violation of Section 8(a)(3)
and (1) of the Act in retaliation for McDonald’s cir-
culating the letter. McDonald’s September 23 letter
was standard union organizing fare. For circulating it
to the Woodland drivers, the Respondent suspended
McDonald in violation of Section 8(a)(3). As alleged
by the General Counsel, the Respondent additionally
canceled its planned wage increase for the Woodland
drivers because of the letter’s circulation, also in viola-
tion of Section 8(a)(3). Thus, both allegations allege
that the Respondent engaged in acts of discriminatory
conduct in response to McDonald’s letter.
Accordingly, we find that the discriminatory wage
withholding allegation is closely related to the suspen-
sion charge in Case 20–CA–24274, and, therefore, that
the General Counsel should be permitted to amend the
complaint.8 To ensure that the wage withholding alle-
gation is fully litigated, however, we remand this issue
to the judge for a further hearing and the preparation
of a supplemental decision containing specific findings
of fact and credibility resolutions regarding the Re-
spondent’s alleged withholding of a scheduled pay in-
crease in violation of Section 8(a)(3) and (1) of the
Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, PLXpress, a wholly owned
subsidiary of Payless Drug Stores NW, Inc., Wood-
land, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that this proceeding is re-
manded to Administrative Law Judge James M. Ken-
nedy for the limited purpose of reopening the hearing
to allow the judge to make specific findings of fact
and credibility resolutions concerning the allegation
that the Respondent, on or about September 26, 1991,
withheld a scheduled pay increase for its employees in
violation of Section 8(a)(3) and (1) of the Act.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth the resolution of such credibility issues, find-
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1991 unless otherwise noted.
2 In his brief the General Counsel renews a previously denied mo-
tion to amend the complaint in Case 20–CA–24380 in certain re-
spects. I see no reason to reconsider the matter for it is not reason-
ably encompassed by that charge as filed by McDonald.
ings of fact, conclusions of law, and recommendations,
including a recommended Order. Copies of the supple-
mental decision shall be served on all the parties after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
Boren Chertkov, for the General Counsel.
Bob Tiernan (Tiernan and Orheim), of Lake Oswego, Or-
egon, for the Respondent.
Jay McDonald, of Sacramento, California, pro se.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Sacramento, California, on December
17, 1992, and January 6 and 7, 1993, on two complaints
issued by the Regional Director for Region 20 of the Na-
tional Labor Relations Board and which were consolidated
for hearing on January 28, 1992. The complaints are based
on separate charges filed by Chauffeurs, Teamsters and Help-
ers Union Local 150, International Brotherhood of Team-
sters, AFL–CIO (the Union) on October 7, 1991,1 and by Jay
McDonald, an individual (McDonald), on December 11,
1991. They allege that PLXpress, a wholly owned subsidiary
of Payless Drug Stores NW, Inc. (Respondent) has commit-
ted certain violations of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act.
Issues
There are two issues to be decided. First, whether Re-
spondent could lawfully suspend for a week its employee
McDonald on October 2 because he wrote a letter to fellow
employees soliciting them to join the Union and in which he
made certain allegations regarding Respondent’s treatment of
employees. Second, whether Respondent discharged McDon-
ald on December 9 because he engaged in organizing activi-
ties on behalf of the Union.
Respondent defends the suspension on the ground that
McDonald’s letter inappropriately disparaged management
and resists the discharge on the ground that McDonald, a
truckdriver, had been involved in an accident on December
4. It asserts that it was McDonald’s second similar accident.
As such, it concluded that McDonald had a history of care-
lessness sufficient to warrant his discharge. It therefore as-
serts that its decision to discharge McDonald was not dis-
criminatory. The General Counsel rejoins, arguing that Re-
spondent did not treat McDonald in the same fashion it did
other drivers who suffered accidents and, moreover, it had no
valid accident policy in effect and therefore did not apply
any neutral policy to McDonald.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Both the Gen-
eral Counsel and Respondent have filed briefs which have
been carefully considered.2 Based on the entire record of the
case, as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that it is an Oregon corporation having
a place of business in Woodland, California, and that it is
engaged in the business of hauling merchandise for its parent
corporation, Payless Drug Stores NW, Inc. It further admits
that during the calendar year ending December 31, 1990, it
derived gross revenues in excess of $50,000 from the trans-
portation of freight and commodities from the State of Cali-
fornia directly to points outside California. Accordingly, it
admits that at all times material it has been engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union’s status as a labor organization within the
meaning of Section 2(5) of the Act in not in dispute.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent’s parent, Payless Drug Stores NW, Inc., is a
large retail drugstore chain which operates in 12 western
States. It is headquartered in Wilsonville, Oregon, and has at
least two distribution centers, one in Wilsonville and the
other in Woodland, California. Woodland is a small town lo-
cated approximately 15 miles west of Sacramento. The dis-
tribution center located there services a wide area of Califor-
nia and perhaps other States as well. Prior to 1988, the actual
transportation of merchandise was carried out by two trans-
portation firms, first Leaseway and later, Electrans. In 1988
Payless established Respondent PLXpress, releasing the most
recent hauling firm, Electrans, and hiring most of Electrans’s
drivers and some of its managerial staff. One of the drivers
it retained from that predecessor was Jay McDonald, the
Charging Party. For the most part, McDonald has served as
an over-the-road driver, operating a tractor-trailer rig from
the Woodland distribution center. On occasion, he has been
assigned to be a hostler in the yard.
The Woodland center is quite large, having over 100 load-
ing bays. From that location it provisions about 250 stores
with a staff of about 66 drivers. They drive about 35 tractors
hauling the approximately 200 trailers assigned to that loca-
tion. The terminal manager during the transactions involved
here was Bob Swor. He was the drivers’ immediate super-
visor and was in charge of all safety matters in Woodland.
He reported directly to Jim Foster, Respondent’s fleet man-
ager for trucking operations, and its safety manager, Craig
Southard, both of whom are officed in Wilsonville. They in
turn report to the vice president in charge of operations,
Shannon McCord, who is also located at the Wilsonville
headquarters.
During the winter of 1990–1991, the Union engaged in a
drive at the Woodland facility seeking to organize all the
drivers. That effort resulted in an NLRB election, Case 20–
RC–11674, on January 17, 1991. The Union was unsuccess-
ful in persuading a majority of employees to vote for rep-
resentation and a certification of results was issued shortly
1223PAYLESS DRUG STORES
3 The Wilsonville drivers are represented by a Teamsters Local in
that area.
thereafter. McDonald testified that he had supported the
Union in that drive by providing it with certain computer
services and writing letters to his fellow drivers utilizing his
computer skills.
Although the January election had been unsuccessful, the
union activities of some of the employees did not cease alto-
gether.
B. McDonald’s Union Activities
In September, aware that the 1-year certification bar was
coming to an end, McDonald and another driver returned to
the union office in Sacramento where they spoke to Sec-
retary-Treasurer Cliff Webb and Business Agent Ken Chris-
topher. They obtained additional authorization cards and set
up a game plan for organizing.
Among other things, the union officials gave McDonald a
copy of the election eligibility list which the Company had
provided for use in the January 1991 election. The list con-
tained both the names and mailing addresses of the drivers
employed at that time.
On September 23 McDonald, using his computer, sent a
letter to each driver and hostler in Woodland. He says he
mailed them at his own expense. Included with the letter
were union authorization cards. The letter, itself reads, in
pertinent part:
In January of this year, you voted in a National
Labor Relations Board sanctioned election which would
have authorized Teamsters Local #150 to represent the
drivers of PLXpress.
A majority of the drivers fell victim to the same old
line management has given the California drivers for
over four years. ‘‘We’re going to bring you up to parity
with Wilsonville drivers’’ is the redundant statement
management always has on their lips.
I hope everyone is fully aware we were taken for
suckers. The only thing we got was a 3.704% raise for
hourly work, a 2.941% raise for mileage runs, and a
seven day work week.
It is time to make a statement and make a united
stand. We need to let management know that we have
had enough of their empty promises and selective en-
forcement of company and D.O.T. [Department of
Transportation] regulations.
Cliff Webb (newly elected secretary-treasurer of
Local #150) told me, during a meeting I had with him,
the Teamsters would take a greater stand to help
PLXpress drivers organize. He felt a major mistake was
made during the last organization attempt.
Please fill out the enclosed card and drop it in the
mail today.
One of the drivers, Joe Theriot, immediately gave a copy
of his letter to Swor who telefaxed it to Wilsonville head-
quarters. During this timeframe, McDonald had become a
hostler. The hostling job is available to selected drivers on
a more or less permanent basis. Instead of driving over the
road, the hostler drives a light-weight tractor called a ‘‘goat’’
in and around the Woodland distribution facility, spotting
trailers at loading bays and storage areas. Normally there are
four employees who perform this task on a round-the-clock
basis.
C. The Company’s Response
On September 25, 2 days after McDonald mailed the let-
ter, Terminal Manager Swor pulled him from his hostling du-
ties to speak by telephone to Fleet Manager Foster in
Wilsonville. Foster asked McDonald about the letter. Accord-
ing to McDonald, Foster was ‘‘upset and angry’’ during the
conversation, particularly with that portion of McDonald’s
letter which accused Respondent of ‘‘selective enforcement
of company and DOT regulations.’’ He ended the conversa-
tion telling McDonald that he would discuss the matter with
McCord to decide what punishment McDonald should re-
ceive for sending this letter to the drivers.
On October 1, Foster came to Woodland and delivered a
letter of suspension to McDonald. That letter reads:
On September 23rd, you wrote a letter to some of
the drivers which accused PLXpress of selective en-
forcement of Company regulations, making empty
promises and making ‘‘suckers’’ of the drivers.
We have had conversations about similar accusations
with you before.
Your unfounded, malicious accusations distort the
truth and unfairly badmouth the company.
You are hereby being suspended for one (1) week ef-
fective Wednesday October 2, 1991 through Tuesday,
October 8, 1991. . . .
McDonald acknowledged receipt of the notice by his signa-
ture on that date.
However, the suspension did not deter McDonald from
continuing his organizing activities. During the suspension he
prepared a second letter which he mailed to all the drivers
on about October 7. That letter reads as follows:
Two weeks ago you should have received a letter
and union pledge card from me. To those of you who
have returned the cards by mail, kudos to you. To you
who have not, please keep an open mind and continue
to read this letter.
By now I’m sure you are aware our brother drivers
in Wilsonville have ratified their contract.3 If and when
you send your card in, you will receive a copy of that
contract. Read it. Take note how our California guide-
lines have been cherry picked from this contract. We do
the same work as the Wilsonville drivers [but] are not
being treated the same.
Sending the card back to Local #150 will not mean
a yes vote for the Union at this time. It will mean that
you have an open mind and are willing to listen to the
alternatives. You will never know these alternatives if
you don’t keep an open mind. The company will never
know if you have returned your card to the Union.
October 1, 1991 I was suspended, not terminated as
some rumors indicate, for one week. My card is on file
with the union and I’m protected from such harassment
by federal law.
If you have any question call me at [telephone num-
ber].
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 No party asked McDonald any questions about the candy matter.
As it now stands in the record, the incident is one of unsupported
accusation only for there is no tenable evidence whatsoever. The re-
port is hearsay and no person having firsthand knowledge has testi-
fied about it.
5 McDonald was not found to have been under the influence of
any drug. He did tell the test taker that he was under medication,
but did not cite it as an excuse for the accident. Respondent now
argues that McDonald never told any management official about the
medication prior to driving that morning, expanding its significance
to either being a cause of the accident or at least a violation of DOT
regulations. McDonald replies he had previously advised the dis-
patcher he was taking the medication. The dispatcher was not called
to refute McDonald’s factual testimony. I credit McDonald on each
point, particularly noting there is no contrary evidence. There is no
proof that he violated any company policy or DOT regulation in tak-
ing the medicine.
McDonald, as he had with the September 23 letter, enclosed
union authorization cards with the October 7 missive.
He also testified that during his off-duty hours he engaged
in a certain amount of organizing activity, speaking to fellow
drivers about the pension plan, the health plan, and other
working conditions which the Union would seek in the event
it was selected. Swor obtained a copy of the second letter
and also faxed it to Wilsonville as he had the first.
For the next month or so, Respondent appears to have
given McDonald some extra scrutiny. One example is that
sometime around Thanksgiving, according to Swor, a secu-
rity department report was made accusing McDonald of hav-
ing taken candy from the lunchroom, contrary to the Compa-
ny’s honesty policy. Swor agrees the candy in question was
unsalable, its shelf life having expired. It had apparently been
placed in the lunchroom as a holiday season good will ges-
ture by the Company for consumption by its drivers and
other employees stationed at the center. Swor immediately
sent that report to his superiors in Wilsonville. Curiously, the
incident was not cited as a reason for his discharge after the
accident on December 4, probably because it did not breach
the honesty policy. However, Respondent raised it at the
hearing before me as an additional reason contributing to the
decision to fire McDonald. Whatever it is, there can be little
doubt Respondent was paying special attention to McDon-
ald.4
On December 4, McDonald was working as a hostler. At
about 10 a.m., while driving the yard goat and moving a
trailer from a warehouse bay to a storage space, he turned
too quickly to his left and the front portion of the trailer
slipped over a 3-1/2 foot concrete street lamp base and
knocked the lamp pole down.
After McDonald made out his accident report, Swor placed
him on an investigative suspension pending the results of fur-
ther investigation of the accident, including a drug test.5
By letter dated December 9, Swor terminated McDonald
saying:
On 12/4/91 you were involved in another preventable
accident. On 8/22/89 you were involved in a similar ac-
cident and were warned at that time if another accident
of this nature occurred, it could result in termination.
Based upon our investigation of this accident, the
safety committees finding, and your history of careless-
ness, we have decided to terminate your employment
from the company effective 12/9/91. [Emphasis in
original.]
Swor testified that he was not really the person who made
the decision to terminate McDonald. He said that the deci-
sion itself was made by Wilsonville executives, although he
agrees that he did discuss the matter with them. None of
those executives testified in the preceding before me.
As noted, the termination letter, refers to a 1989 accident,
asserting it was ‘‘similar’’ and that the two, when taken to-
gether, demonstrate a ‘‘history of carelessness.’’ I think it is
fair to say that the earlier accident, which occurred at a Pay-
less parking lot in San Jose, California, does have some su-
perficial similarities. In that incident, McDonald was trying
to maneuver a tractor trailer through a parking lot which had
been disrupted by extensive construction. In the course of
avoiding the construction debris and equipment, his trailer
struck a light pole. Respondent’s records show it gave
McDonald a warning and a retroactive 2-day suspension, ap-
parently covering the days off he was given while they in-
vestigated the matter.
What is unclear about this kind of incident, as well as
about numerous other accidents which have befallen drivers
stationed at Woodland, is that there is no written company
policy regarding the appropriate discipline to be levied on
the drivers for preventable accidents. Swor says the reason
there is no written policy is because each accident is dif-
ferent. He gave a great deal of testimony trying to explain
the predominant factors by which he judges the relative cul-
pability of a driver in an incident. He asserts that if a driver
has an accident caused by an ‘‘error of judgment,’’ he treats
such drivers more leniently. On the other hand, if the acci-
dent is due to a driver shown to be ‘‘careless,’’ then the dis-
cipline is likely to be more severe. Frankly, a review of
McDonald’s first accident, using Swor’s own test, suggests
that an error of judgment, not carelessness, is the more likely
cause of that minor mishap. Clearly, in that incident, there
is room for disagreement over which category was appro-
priate.
In either event, the level of discipline is uncertain at best.
Sometimes individuals receive no discipline, at other times
they receive written admonishments and at other times writ-
ten warnings or even suspensions. Discharges are quite rare.
Moreover, there does not seem to be any logical progression
in how any particular discipline is chosen. Individuals have
received warnings or suspensions on occasion and then when
involved in a succeeding preventable accident, have often es-
caped more serious consequences despite the ‘‘history’’
which they have developed.
A review of the accident records and the discipline con-
nected to them took up more than a day and a half of testi-
mony and very little can be said about these accidents except
that the policy which the Company follows is no policy at
all. I note that the record demonstrates that Respondent’s
predecessors, Leaseway and Electrans did have written acci-
dent policies and did enforce them. At no time has Respond-
ent ever advised the drivers that those policies had ever been
dropped in favor of Swor’s ‘‘poor judgment’’ versus ‘‘care-
lessness’’ test.
Curiously, higher risk conduct than McDonald’s parking
lot maneuvering, such as excessive speed, excessive number
of highway citations, and the like are not tracked at all. Had
1225PAYLESS DRUG STORES
6 Most of the forms used for discipline are called ‘‘corrective inter-
view report.’’ All contain boilerplate language advising the employee
that if he does not correct the situation, he will be subject to further
discipline or termination. These reports are usually signed by the
employee. They are not regarded as warnings unless the word
‘‘warning’’ is stamped on it. Whether and when that stamp is placed
on the form is problematical.
7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st. Cir. 1981),
cert. denied 455 U.S. 989 (1982).
those drivers become involved in accidents at the speeds at
which they were traveling, the speed alone, a so-called judg-
ment matter, would have caused unacceptable damage.
McDonald, on the other hand, has never had a highway acci-
dent nor has he ever been cited for excessive speed. Indeed,
in 1990, he received the standard safety award given drivers
who had no accident. It should be noted here that he did not
get one in 1988 because of a broken mirror, an incident
which by 1991 would have been regarded as so minor it
would not have been counted as an infraction serious enough
to have denied him the award. Moreover, in a May 1991
‘‘ride-a-long’’ report, Swor found McDonald to be a ‘‘very
careful & safe driver. One of the smoothest drivers I have
ridden with. Should never get a speeding ticket.’’
The General Counsel has attached to his brief a summary
of accident records, all of which are supported by exhibits
in the record. The summary describes the accident and traffic
citation records of some 30 drivers. Only two of these were
discharged, Roland Haymore and James Wilson. Wilson was
a probationary employee who had two collisions with fixed
objects within 3-1/2 months in 1989, together dropping a
trailer which he had improperly hooked up, considered to be
an accident. He was not fired until after the third incident.
He is also an example of an individual whose discipline was
not progressive. After the first he was suspended for 2 days,
together with a warning;6 after the second he received a cor-
rective interview letter without a warning. Finally he was
discharged.
Haymore had five incidents, one of which was regarded as
nonpreventable and another in which he damaged his truck
while driving continuously with a flat tire, a clear abuse of
the equipment. The others were hitting a wall at a store load-
ing dock and two collisions on the road. For these accidents
he received two corrective interview reports, a warning letter
and, finally, discharge. All of these incidents occurred be-
tween July 1989 and the end of September 1990. Suspension
as a means of discipline or progressive discipline was not
utilized.
Yet, suspension is a common disciplinary measure used by
Respondent. There are numerous drivers who received a sus-
pension for accidents of one sort or another, but were not
discharged. The summary shows at least 10. One of those
was a 5-day suspension given hostler Vaughn after he
knocked over a light pole in the yard with the goat in June
1990. McDonald testified that after his December 4 accident
with the yard goat he expected he, too, would suffer a sus-
pension because he knew his accident record fell in the less-
than-discharge category. He was well aware that under nor-
mal company practice suspension was the most probable dis-
cipline to be imposed. Accordingly, the discharge, to him,
was a total surprise.
IV. ANALYSIS AND CONCLUSIONS
Although Respondent argues that its treatment of McDon-
ald on October 1 was lawful, it virtually concedes most of
McDonald’s letter was fully protected by Section 7 of the
Act. I certainly have no difficulty in concluding the letter
was fully protected. It was written as the first salvo in a
union organizing campaign which was then beginning. In
large part, it was standard organizing fare. It made conten-
tions that Respondent was not treating its employees as it
should, that it was not living up to promises it had made,
and that it was time for the employees to ‘‘let management
know we have had enough of their empty promises . . . .’’
Indeed, Respondent’s only stated objection to McDonald’s
language was his reference to the alleged ‘‘selective enforce-
ment of company regulations,’’ omitting any reference to
McDonald’s claim that it also selectively enforced DOT reg-
ulations. Respondent now contends it is very sensitive to al-
legations that it does not properly enforce the DOT rules.
Swor says McDonald and the Company had been through
such allegations before, that they had been fully investigated,
and that Respondent had been found not to be guilty of such
conduct. Whether that is objectively true or not, McDonald
did not, and does not now, agree. Even Respondent does not
contend that the findings of ‘‘innocence’’ were made by any-
body other than an investigator who did not find sufficient
proof. It is not even clear who conducted those investiga-
tions, Respondent itself, a Government agency or an outside
private investigator. If the DOT rules were a concern, why
did Respondent not include that reason in its letter?
In any event such contentions are standard grist for the de-
bate mill which labor and management grind during an orga-
nizing campaign. It is quite common for a labor union to as-
sert that employees’ working conditions are being affected
by ‘‘selective enforcement’’ of various things, company
rules, state or Federal regulations, and supervisory matters.
Unions generally seek to have rules applied to their members
in a uniform fashion and a contention that the rules are not
being applied uniformly is a legitimate campaign appeal.
This Respondent, however, did not recognize it as such
and, thin-skinned, took a reprisal against McDonald by sus-
pending him, using as a justification that the language was
‘‘bad mouthing’’ the Company. I agree; McDonald was bad-
mouthing the Company. Within certain parameters, the Act
permits him to do so; indeed, it protects him when he does
so in an organizing context, as long as the remarks are not
disparaging and disloyal. See Cincinnati Suburban Press,
289 NLRB 966 (1988); cf. Community Hospital of Roanoke
Valley, 220 NLRB 217 (1975), enfd. 538 F.2d 607 (4th Cir.
1976). McDonald’s remarks nowhere approach that level.
Therefore, Respondent’s discipline and suspension of him for
writing the protected letter violated Section 8(a)(1) and (3)
as alleged in the first complaint.
The harder question, though not much harder, is whether
Respondent used the December 4 yard accident as an excuse
to rid itself of a known union organizer or whether its deci-
sion to discharge McDonald was based on nondiscriminatory
factors. I think it is clear that under the Wright Line7 and
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 462 U.S. 393 (1983).
NLRB v. Transportation Management Corp.8 doctrine the
General Counsel has made out a prima facie case that Re-
spondent’s December 9 discharge of McDonald was unlaw-
ful. All the elements of a 8(a)(3) and (1) violation are
present. McDonald was a union organizer and Respondent
had instantly become aware of it. Furthermore, Respondent
harbors animus against individuals who engage in organizing
activity. Its quick suspension of McDonald for writing his
first letter and for distributing authorization cards is ample
proof of that fact. In a sense, the December 9 discharge can
be seen as a continuation of the unlawful suspension given
him in October. It occurred within 2 months of his having
been punished for protected conduct. Therefore, the element
of timing is also present. There is no doubt the General
Counsel has presented a strong prima facie case.
Under the doctrine of those cases, after the prima facie
case has been established, the burden shifts to Respondent to
demonstrate that it would have discharged McDonald even
had he not been a union organizer. I conclude that Respond-
ent has failed to meet its burden here.
In scrutinizing Respondent’s defense, several things are
apparent. First, the fact that Respondent has no written policy
regarding how to deal with employees who have accidents
allows it a great deal of subjective flexibility. It need justify
none of its decisions against a written policy. Therefore,
there is no way for a reviewer to measure Respondent’s re-
sponse to an accident against any nondiscriminatory policy.
That means, in essence, that the policy becomes whatever
Respondent’s decisionmaker wants it to be in any given cir-
cumstance.
Second, assuming that one accepts Swor’s claim that he
evaluates accidents based on his determination of whether it
was due to an error in judgment or carelessness, neither of
those terms is very helpful. Clearly judgment errors readily
become carelessness. A simple example is the one of exces-
sive speed. If a driver uses bad judgment and drives at a
speed in excess of what is prudent and safe for the cir-
cumstances, and an accident ensues, that decision might well
be regarded by some other evaluator as either carelessness or
recklessness, even if Swor thought it only bad judgment.
Swor’s use of this terminology is simply not helpful. Even
he acknowledges that there are times when the two concepts
merge.
Third, the very lack of guidance, either because of no writ-
ten policy or because Swor has defined his concepts in a way
peculiar to him, has resulted in disciplinary procedures which
are most inconsistent. Individuals who have been involved in
accidents or misconduct far in excess of that committed by
McDonald have escaped discipline altogether or have suf-
fered lesser or slower discipline. Indeed, neither of McDon-
ald’s accidents involved a large monetary loss. Yet Swor
contends that monetary loss is not a significant factor in de-
termining whether a driver should be subjected to discipline.
I agree that dollar figures standing alone do not tell the entire
story, but I find it inconceivable that the amount of the loss
is given no weight whatsoever in evaluating a preventable
accident. That is particularly so when Swor says an error in
judgment can excuse a driver from discipline. Frankly, I can
think of numerous circumstances where a driver’s error in
judgment, though small, and therefore easily avoided, could
result in a large monetary loss. That does not even take into
account the question of whether a small judgment error acci-
dent may have resulted in injury or loss of life.
Curiously, despite Swor’s testimony that the Company has
no accident policy, Respondent now argues that McDonald’s
conduct constituted a breach of another company policy con-
tained in a booklet called ‘‘Payless Pride.’’ That booklet
clearly applies to Payless’s retail store employees, not drivers
employed by its transportation subsidiary. The booklet does
contain a rule prohibiting ‘‘associates,’’ i.e., sales personnel,
from engaging in ‘‘willful, deliberate or reckless conduct.’’
Yet Swor admitted he does not use the booklet as a policy
for drivers nor did he ever tell McDonald that it was being
used at the time of the discharge. The argument today, made
by counsel, seems off the mark.
Furthermore, counsel’s resort to the candy incident as a
partial justification for the discharge, though Swor never in-
cluded it in the discharge letter, does not assist Respondent’s
corporate credibility here. It may properly be regarded as
make weight and therefore evidence of unlawful purpose. Fi-
nally, Swor testified that the decision to discharge McDonald
was made by Wilsonville executives, Southard, Foster, and
McCord after a review of McDonald’s entire personnel file.
None of those individuals testified on Respondent’s behalf,
and Swor asserts that he himself did not actually make the
decision to discharge McDonald. If that is so, Respondent
has not presented any evidence by any decisionmaker regard-
ing the basis for the decision. Is that because the decision-
makers would have had to testify that a significant factor
contributing to the decision to discharge McDonald was his
having engaged in union organizing activity? After all, his
entire file included the recent suspension for having written
a protected letter seeking to organize the drivers.
Frankly, I see nothing in Respondent’s policies or prac-
tices which would lead to the conclusion that Respondent
would have discharged McDonald in the absence of his pro-
tected activity. Specifically, it seems to me that its more mild
responses to the transgressions of other drivers who had
committed worse acts than McDonald, but who were not dis-
charged, leads to the opposite conclusion. The only dif-
ference between McDonald and the others is that he was en-
gaging in union organizing activity. Had he not been so en-
gaged, it seems most probable that the discipline to be levied
on him would have been less severe, perhaps a short suspen-
sion, or perhaps only a warning. Moreover, the two employ-
ees who were discharged were allowed at least one more ac-
cident than was McDonald. I find, therefore, that Respondent
has failed to rebut the General Counsel’s prima facie case
and I conclude that Respondent discharged McDonald on
December 9, 1991, because he was a union organizer and not
because of the rather minor accident he had on December 4
or the ‘‘history’’ it supposedly evidenced. Accordingly, I
find that Respondent violated Section 8(a)(3) and (1) of the
Act as alleged in the second complaint.
V. THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(a)(3) and (1) of the Act, I shall rec-
ommend that it be it be ordered to cease and desist therefrom
and to take certain affirmative action to effectuate the poli-
cies of the Act. The affirmative action will include an order
requiring Respondent to make Jay McDonald whole for
1227PAYLESS DRUG STORES
18 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.
10 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
losses resulting from his suspension from work without pay
from October 2 through October 8, 1991, plus interest as set
forth by the Board in its decision in Ogle Protection Service,
183 NLRB 682 (1970). It shall also include an order requir-
ing Respondent to immediately offer McDonald reinstate-
ment to his former job or, if it is not available, to a substan-
tially equivalent position, and to make him whole for any
loss of earnings and other benefits, computed on quarterly
basis from the date of his discharge to the date of a proper
offer of reinstatement, less 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). Finally, it shall also include an order requiring
Respondent to expunge from its records any reference to its
suspension and subsequent discharge of McDonald, requiring
it not to use either of them against him in any way. See Ster-
ling Sugars, 261 NLRB 472 (1982).
On the foregoing findings of fact and on the entire record
in this case I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(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. On October 1, 1991, Respondent suspended its em-
ployee Jay McDonald because he had engaged in the pro-
tected activity of serving as a union organizer and because
he had written a letter to Respondent’s employees seeking to
organize those individuals on behalf of the Union, and there-
by violated Section 8(a)(3) and (1) of the Act.
4. On December 9, 1991, Respondent discharged its em-
ployee Jay McDonald because of his activities for and on be-
half of Chauffeurs, Teamsters and Helpers Union Local 150,
International Brotherhood of Teamsters, AFL–CIO and there-
by breached Section 8(a)(3) and (1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, PLXpress, a wholly owned subsidiary of
Payless Drug Stores NW, Inc., Woodland, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise affecting the hire
and tenure of employees because they choose to engage in
activity protected by Section 7 of the Act, such as serving
as union organizer.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jay McDonald immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings together with inter-
est or other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(b) Remove from its files any reference to the unlawful
suspension and unlawful discharge of Jay McDonald and no-
tify him in writing that this has been done and that neither
the suspension nor the discharge will be used against him in
any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Woodland, California distribution center
copies of the attached notice marked ‘‘Appendix.’’10 Copies
of the notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT suspend or discharge employees or other-
wise affect their hire and tenure for engaging in activity pro-
tected by Section 7 of the Act, such as serving as a union
organizer for Chauffeurs, Teamsters and Helpers Union
Local 150, International Brotherhood of Teamsters, AFL–
CIO or any other labor union.
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Jay McDonald immediate and full rein-
statement 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 he previously en-
joyed, and WE WILL make him whole for any loss of earnings
together with interest, or other benefits suffered as a result
of our discrimination against him.
WE WILL remove from our files any reference to the un-
lawful suspension and unlawful discharge of Jay McDonald
and notify him in writing that this has been done and that
neither the suspension nor the discharge will be used against
him in any way.
PLXPRESS, A WHOLLY OWNED SUBSIDIARY OF
PAYLESS DRUG STORES NW, INC.