Pilot Freight Carriers, Inc.

National Labor Relations Board - Board DecisionsOct 18, 1982

265 N.L.R.B. 129 (N.L.R.B. 1982)

PILOT FREIGHT CARRIERS, INC. Pilot Freight Carriers, Inc. and Etta Belle Kirby. Case 1 -CA-9665 October 18, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On June 11, 1982, Administrative Law Judge William A. Pope II issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' The Oeneral Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION WILLIAM A. POPE II, Administrative Law Judge: On March 5, 1981, the Acting Regional Director for Region 11 of the National Labor Relations Board filed a com- plaint alleging that Respondent, Pilot Freight Carriers, Inc., engaged in unfair labor practices, within the mean- ing of Section 8(aXl) of the National Labor Relations Act (the Act), by more stringently enforcing work rules and, on December 16, 1980, discharging its employee, Etta Belle Kirby (the Charging Party), because she had engaged in concerted activities with other employees for the purpose of collective bargaining and mutual aid and protection. The hearing was held on November 4, 1981, in Winston-Salem, North Carolina, before me. 1. ISSUES The primary issue in this case is whether Etta B. Kirby was fired by Respondent, her employer, on or about December 17, 1980, because she had engaged in 265 NLRB No. 23 protected concerted activities with other employees by protesting the selection by Respondent of a particular in- dividual to fill a vacant job, in violation of Section 8(a)(1) of the Act.' A secondary issue raised by the Gen- eral Counsel on brief, but not in the complaint, is wheth- er Respondent violated Section 8(a)(1) of the Act by im- posing on its employees a rule against talking. The General Counsel argues that the actions of Etta Kirby and six or more of her coworkers in Respondent's data center in requesting meetings with various of Re- spondent's officers and officials for the purpose of com- plaining about the selection of the person to fill the open data control clerk job were concerted protected activi- ties, and that the timing of her dismissal from her job was so closely related to the protected activities that it must be found that Etta Kirby was fired because of her involvement in those activities. Although Respondent elected not to file a post-hearing brief, it does not appear that Respondent disputes that the actions of Etta Kirby and her coworkers concerning the data control job were protected concerted activities. Instead, Respondent's po- sition appears to be that Etta Kirby was fired because of excessive absences from her job, poor attitude and dis- ruptive behavior, and insubordination, none of which was related to her participation in protected concerted activities. I agree, in part. II. BACKGROUND In October 1980, Etta Kirby, who had been employed as a keypunch operator (or data entry operator) in Re- spondent's data center for over 8 years, was one of a number of keypunch operators who applied for a vacant data center position as a data control clerk. The an- nouncement on October 28, 1980, by Carroll Hedgecock, the data center manager, of his selection of Barbara Griggs, one of the least senior data center employees, to fill the data control clerk position angered many, if not all, of the other applicants. After discussing Hedgecock's choice among themselves, seven or more of the key- punch operators, including Etta Kirby, decided to com- plain to Respondent's management because they consid- ered Barbara Griggs to be unqualified for the position and to lack seniority. Pursuant to the Company's "open door" policy concerning complaints,2 Etta Kirby asked her immediate supervisor, Carroll Hedgecock, to arrange a meeting with top management. Hedgecock apparently told her that she and her coworkers would first have to meet with his supervisor, Thomas L. Norman, director of management systems. Within I to 2 weeks after Griggs' selection was announced, Norman and his super- visor, John McDermon, vice president of management Respondent stipulated that it has been at all times material herein an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. 2 The Company's personnel manual promises an "open door" policy available to employees to bring their complaints to management's atten- tion, and further promises that there will be no discrimination against anyone for presenting a complaint or discussing problems with his super- visors or anyone in management. According to the manual, complaints are to be made first to the complainant's immediate supervisor, and then to succeeding levels of management until a satisfactory resolution is achieved 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD systems, met with six of the keypunch operators, includf ing Etta Kirby, who expressed their displeasure over the selection of Barbara Griggs to fill the data control clerk job. During the course of the meeting, McDermon made a remark to the effect that he had warned Hedgecock that the selection of Barbara Griggs would not be popu- lar. Apparently not satisfied with the results of the meet- ing with Norman and McDermon, Etta Kirby, speaking for the other employees, again requested a meeting with top management. Within a matter of a few days, seven employees, in- cluding Etta Kirby, met with Lawrence R. Toburen, president of Pilot Freight Carriers, Inc., and Ron Daves, then vice president of personnel. Emotions apparently ran high during the meeting, all of the employees were eager to speak, and, on one occasion, Etta Kirby inter- rupted Toburen, an action for which she quickly apolo- gized. Toburen, for his part, testified that he considered Kirby to be disruptive, and, to bring the meeting to an orderly close, told her that, if she continued to interrupt, he would leave the room. Other witnesses testifying about the meeting felt that all of the employees were talking excitedly, that Etta Kirby was not any more dis- ruptive than anyone else, and that Toburen's threat to leave was not addressed to her in particular. During the meeting, the employees repeated their complaint that Barbara Griggs was not qualified, by experience or se- niority, and raised a new charge that she had been select- ed because she had fraternized with her supervisors, Car- roll F. Hedgecock and Thomas L. Norman. 3 Toburen and Daves concluded the meeting by telling the employ- ees that Griggs would stay on the payroll and retain the data control clerk job. After the meeting, Toburen told Hedgecock and Norman what had been said at the meet- ing with the employees and asked them if the fraterniza- tion charge was true. The charge was denied by both. At some point after Toburen and Daves met with the data center employees, they told McDermon to bring morale and production problems in the data center under con- trol. Beginning on December 16, 1980, each of the employ- ees in the data center was asked to meet individually with McDermon, Norman, and Hedgecock for the pur- pose of discussing, among other things, attendance, lack of productivity, discontent, and alleged harassment of Barbara Griggs.4 Etta Kirby was the eighth employee I Hedgecock and Norman were permitted to enter denials to the charge during their testimony; however, the parties were not permitted to litigate the truth or falsity of the charge because the question of how Barbara Griggs was selected is irrelevant to the issues of this case. Re- spondent does not appear to deny that the employees who protested Griggs' selection were engaged in concerted protected activities, and there is nothing in the record raising the claim that Etta Kirby was fired because she had made untrue charges against her supervisors concerning their behavior towards Griggs. Respondent, in fact, appears to contend that Kirby's discharge was entirely unrelated to the Griggs incident. ' The meetings followed a request by keypunch operator Valjean Grant to Hedgecock for a meeting concerning seating arrangements. McDermon, Hedgecock., and Norman testified that the timing was coinci- dental, that they had been planning to hold the individual meetings for several days, and that the agenda had nothing to do with seating arrange- ments among the employees, although seating arrangements were dis- cussed briefly with several employees. interviewed on December 16. From the start, according to the testimony of everyone involved, the meeting with Kirby went badly. According to Kirby, Norman and Hedgecock had been harassing the employees who had met with Toburen, and, when she was called in at 4 p.m. on December 16 to meet with her supervisors, even though she had earlier that day placed a note on Hedge- cock's desk requesting permission to leave early at 4:15 p.m., a request which Hedgecock denied seeing until the next day, she was accused of excessive absences, talking on the job, and harassing Barbara Griggs, charges which she denied. During the course of the meeting, she told Hedgecock he was discriminating against her, and she said "not guilty" or "no comment" in response to several questions. The meeting ended, according to Etta Kirby, when she was suspended by McDermon, after he asked her what she intended to do about her "absentee record," and she said: . . I told him that I had just talked to Carroll, and I said, "You heard it, and nothing I can say or do will change it." So I said, "I have nothing further to say." Several days later, she received a letter from Respondent informing her that her employment had been terminat- ed. a John McDermon testified that, as the senior company official present, he was in charge of the individual meet- ings held with the data center employees on December 16, and that he encountered no problems with any of the employees until he met with Etta Kirby. When Kirby appeared for the meeting, however, she was uncoopera- tive and hostile from the outset. Although a survey made by Hedgecock showed that Kirby had been absent 22.7 percent of the time during the preceding 6 months, she denied that she had an attendance problem, and chal- lenged the validity of the survey. She responded with "not guilty" or "no comment" to various statements or questions concerning production problems, disparaging remarks by employees about management, and harass- ment of Barbara Griggs." Finally, according to McDer- mon, he asked Kirby if she would devote herself to get- ting her job done and making the Company a better place to work. Her answer was, "No comment." McDer- mon repeated his question, and received the same answer. He then stated that he wanted an answer and re- peated the question a third time. Etta Kirby's response was to the effect that she did not have to answer such questions at that time and place. McDermon then sus- pended her, and the meeting concluded. The following day, McDermon met with Toburen and Daves, Etta Kirby's file was reviewed, and Toburen and Daves con- curred with McDermon's recommendation that Kirby's employment should be terminated. 5 By letter dated December 18, 1980, Respondent informed Kirby that she was dismissed from her job because of excessive absenteeism, ex- tremely poor attitude and disruptive behavior, and insubordination toward management. 6 Although MeDermon believed that Etta Kirby was involved in the harassment of Griggs, he testified that he did not necessarily believe she had organized it. 130 PILOT FREIGHT CARRIERS, INC. According to Respondent's manual, disciplinary ac- tions involving nonunion employees usually involve four steps, beginning with oral counseling, followed by two instances of oral counseling and written documentation, and ending with discharge. The exceptions to the usual procedure involve serious infractions, including gross in- subordination, when the four-step procedure can be waived and the employee immediately discharged. Etta Kirby acknowledged having received a written warning concerning her attendance in December 1978. 7 Beyond that, Respondent offered in evidence several other documents recording reminders or warnings ad- ministered to Etta Kirby concerning her attendance or other aspects of her job performance. These documents, all prepared by Hedgecock and addressed to Kirby, in- cluded a memorandum, dated August 24, 1976, remind- ing her to notify her supervisor as soon as possible if she had to be absent from her job; a memorandum, dated January 12, 1979, warning her that her employment would not be continued unless her attendance improved; and a memorandum, dated April 20, 1979, stating that it was a final warning, and that "[a]ny further unexcused absences within sixty (60) days or failure to follow com- pany policy or instruction in the future will result in im- mediate discharge." Although each of the memoranda was addressed to her, Etta Kirby denied having received any of them. III. FINDINGS AND CONCLUSIONS A. Discharge of Etta Kirby On the record before me, I find that Etta Kirby was fired by Respondent for insubordinate conduct on De- cember 16, 1980,8 which was unrelated to her participa- tion in protected concerted activities, in the form of pro- tests by a group of employees over the selection of their coworker, Barbara Griggs, to file a vacant job as a data control clerk. 9 The General Counsel variously characterizes Etta Kirby's behavior during her meeting with her supervi- sors on December 16 as "frank and forthright, if a bit garrulous," "perfectly understandable," "perfectly ration- al, given the circumstances," and "not any more insubor- dinate than the behavior of.. . other] employees" who were not fired, and argues that the reasons given by Re- spondent for terminating Etta Kirby's employment were I The letter, which confirms a conversation between Etta Kirby, Hedgecock, and Norman on December 11, 1978, indicates that improve- ment was needed in her attendance, attitude towards her supervisors, atti- tude towards her fellow workers, and attitude towards her job. By letter from John N. McDermon, "VP/Management Systems, Pilot Freight Camera, Inc.," dated December 18, 1980, Etta Kirby was informed that her employment had been terminated for excessive absen- teeism, extremely poor attitude and disruptive behavior, and insubordina- tion toward management. From the record, however, it is apparent that the actual reason she was fired was for insubordination. The history of absences and attitudinal problems alluded to in the letter did not precipi- tate the termination of her employment, but were factors considered by Respondent's management in deciding to fire Etta Kirby rather than impose a lesser punishment for her insubordinate conduct on December 16, 1980. 9 It is not disputed that the group actions of seven or more employees in Respondent's data center requesting two meetings with management to protest Gnggs' selection were protected concerted activities within the meaning of Sec. 7 of the Act. pretextual in nature, and designed to cover up the fact "the Respondent took the actions it believed necessary, as quickly as it could, to get the 'rotten apple' out of the barrel." Pointing out that the punishment imposed was disproportionate to the misconduct, the General Counsel argues that the timing of the termination of Etta Kirby's employment was so closely related to the protected ac- tivity that it must be found that she was fired because she had engaged in, and was thought to be leader of, concerted protected activities. As a general matter, an employer is entitled to discuss such employment-related matters as attendance, morale, production, and attitude with its employees, and it is acting within the bounds of the employment relationship when it requests a commitment from its employees to try to improve attendance and working conditions. All of the witnesses presented by both the General Counsel and Respondent, including Etta Kirby, agree that these were generally the subject matter of the individual interviews which management conducted with 10 of the data center employees on December 16 and 17. There is no doubt that Etta Kirby's conduct during the December 16 interview with management was hostile and argumentative. By her own admission, she accused her supervisor of inflating her absence record by count- ing days she was not scheduled to work,10 limited her answers to a number of concerns raised by the manage- ment officials conducting the interview to cryptic re- marks such as "no comment" or "not guilty," and re- fused to make any commitment to improve her attend- ance. Stripped of conclusory testimony and characteriza- tions, there is in fact little material difference between the testimony of Kirby, on the one hand, and Respond- ent's management officials, on the other; however, on balance, after hearing all of the testimony and observing the demeanor of the witnesses, I conclude, and find, that the description of the interview contained in the testimo- ny and notes of John McDermon, Respondent's vice president of management systems, is the most creditable and the most accurate. I further find that it is clear that from the outset and throughout the interview Kirby was haughty, uncooperative, and disrespectful. According to Etta Kirby's testimony, however, she felt that she was being discriminated against, and that it would have been useless on her part to try to defend herself against the untrue and unfounded accusations with which she was confronted. Thus, it appears, she contends that she did not have any problems with her at- tendance, production, or attitude, and it was unnecessary for her to make any commitment to try to improve them. The real question presented here is whether Kirby's conduct during the December 16 meeting was provoked by management officials and used as a pretext to termi- nate her employment because of her participation in pro- tected concerted activities. If the interview on December 16 was but the last in a pattern of harassment directed at her, as argued by Kirby, then her insolence towards her '1 Hedgecock testified that the survey which he had prepared showing that Kirby had been absent from her job 22.7 percent of the time during the preceding 6 months covered only days when she was assigned to work. 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors on December 16 may be excusable. If not, and Kirby was not asked to make any more of a commit- ment toward improving her attendance and her dedica- tion to her job than her coworkers, then Kirby's behav- ior was clearly insubordinate, and Respondent was within its rights to terminate her employment. Unfortu- nately for the Charging Party, I find the latter to be the case here. The record does not support the conclusion that the reasons cited by Respondent for firing Etta Kirby were mere pretexts intended to hide the real reason, which was resentment towards Kirby because of her role in complaining about the selection of Barbara Griggs to fill the data control clerk job. Although the firing was rea- sonably proximate in time to the meetings between the data center employees and management concerning the Barbara Griggs' issue, it appears from the record that 3 to 4 weeks, or longer, actually elapsed between the last meeting with management concerning Griggs and the in- dividual employee interviews conducted by management on December 16 and 17, which resulted in Kirby's being fired. Thus, while the firing and the concerted protected activities were sufficiently proximate in time to warrant closely examining the circumstances of both to determine if they were related, there was ample time for an inde- pendent intervening cause to arise, and, therefore, timing, alone, is insufficient to prove the tainted relationship al- leged by the General Counsel Neither can any support be found in the record for the General Counsel's argument that Etta Kirby was singled out for harsh disciplinary action, as an example to others, because she was perceived to be one of the leaders of the protests over the selection of Barbara Griggs. It is indeed clear from the record that Kirby, in fact, was not a leader of the protest action, which was more in the nature of a spontaneous, but leaderless, coalescing of in- dividual interests. Although Kirby made two requests for group meetings on behalf of her coworkers, she was not a spokesperson for the group. During each of the two group meetings, each participant spoke for herself; indeed, the problem during the meeting with the compa- ny president seems to have been too many people trying to speak at the same time. Moreover, not only was there no factual basis for a perception on the part of manage- ment that Kirby was a leader of the protest, but also nei- ther McDermon nor Toburen, whose testimony on this point I find to be creditable, believed Kirby to be acting in a leadership capacity. Similarly, there was no perception on the part of man- agement that Etta Kirby was leading any form of harass- ment of Barbara Griggs. Although never clearly defined, it appears that the so-called harassment amounted to nothing more than a refusal on the part of some of the employees in the data center to associate with Barbara Griggs. On this point, I credit the testimony of John McDermon, who stated that he thought that Kirby was involved in the harassment of Griggs, but did not neces- sarily believe that she was the organizer of it. " I find that McDermon's testimony outweighs the effect of any "ad- missions" contained in the position letter of February 10, 1981, from counsel for Respondent. I find no evidence that the company president, Law- rence R. Toburen, directed or suggested that Kirby's em- ployment be terminated because of her conduct during the group meeting while he attended. Thus, if there was any intent on the part of Respondent's management to fire Kirby because of her participation in the protected concerted activities, it would have to have been by John McDermon, Thomas L. Norman, or Carroll F. Hedge- cock, the three management officials who conducted the interview with Kirby on December 16. It is at least arguable that Norman and Hedgecock might have had ulterior motives to fire Kirby, since they were both aware of the fraternization charges made against them by employees of the data center to the company president, although there is nothing in the record suggesting any basis for their suspecting that Kirby, in particular, was responsible for the charges. Or, it can be further argued, their goal may simply have been to intimidate the employees into silence by the ex- ample set by firing one of their number, and Kirby, be- cause of her previous problems, was the most vulnerable. The weakness of these arguments, however, is obvious because neither Hedgecock nor Norman made the deci- sion to fire Kirby. That decision, which was approved by President Toburen and Vice President Daves, initially was made by John McDermon, himself a vice president of the Company. As reflected in the record, it was McDermon who was in charge of the December 16 in- terviews with the employees of the data center, it was his request for a commitment to improve attendance and performance which Kirby refused to answer, and it was his decision to suspend Kirby. The following day, after asking for the opinions of Norman and Hedgecock, McDermon made the recommendation to fire Kirby which President Toburen approved. Unlike Norman and Hedgecock, who knew Kirby and had supervised her for several years, McDermon was unfamiliar with her work record until after the insubordination incident. McDer- mon was not named in the fraternization charge raised by the data center employees during their meeting with President Toburen, and, accordingly, it would seem un- likely that he was motivated by a desire to seek revenge or retribution. On the evidence of record, therefore, I conclude that McDermon had no reason to single out Kirby for punishment because of her participation in concerted protected activities, or to make an example of her in order to intimidate and silence data center em- ployees. The commitment which McDermon asked of Kirby was reasonable under the circumstances12 and no differ- ent from that requested of her coworkers. There is no evidence of a pattern of harassment of Kirby culminating in the December 16 interview, or that the purpose of the interviews conducted by management with the data center employees on December 16 and 17 was anything other than to improve morale, efficiency, and productiv- ity among the employees. There is no evidence of any intent on the part of McDermon prior to the interview 12 Kirby apparently had one of the poorer attendance records during the preceding 6 months among the data center employees, and her prior record indicates that she had been warned previously about attendance. 132 PILOT FREIGHT CARRIERS, INC. to discipline, suspend, or fire Kirby, and the decision by management to terminate Kirby's employment following the interview was neither disproportionate to the offense nor inconsistent with the Company's established person- nel procedures. The December 16 and 17 interviews con- ducted by management with the data center employees were unrelated to the protected concerted activities in which some of the employees, including Kirby, had en- gaged in protesting the award of the data control clerk job to Barbara Griggs.' 3 On the basis of this record, therefore, I find that there was no excuse for Kirby's be- havior during her interview with management on De- cember 16, and that her conduct was insubordinate under the circumstances. Respondent had good cause to termi- nate Kirby's employment, and its decision to do so was unrelated to any protected concerted activity in which she may have previously participated. Accordingly, I find that the General Counsel has failed to show by a preponderance of the evidence that Respondent violated Section 8(a)(l) of the Act by termi- nating the employment of its employee, Etta B. Kirby, on or about December 17, 1980. B. The No Talking Rule Although not raised as an issue either in the complaint or during the hearing, the General Counsel argues in his brief that Respondent committed an unfair labor prac- tice, in violation of Section 8(a)(1), by attempting "to put a muzzle on employee interaction which might lead to further protected activities," by the oral promulgation of "a rule against talking across the room by data process- ing employees."14 Upon consideration of the record, 'S Although alleged harassment of Barbara Griggs was one subject raised during the December 16 and 17 interviews, it was not the principal purpose of the interviews. In any event, harassment of Griggs, if it oc- curred, would not have been a protected concerted activity. 14 No motion has been received to amend the complaint pursuant to Sec. 102.17 of the Board's Rules and Regulations; however, because I find that the allegation is without merit, there is nothing to be gained by however, I find that there is no evidence to sustain a finding that Respondent violated Section 8(a)(1) by im- posing any such rule. The factual basis relied on by the General Counsel is testimony by Etta Kirby to the effect that, after the em- ployees met with President Toburen, their supervisors, Tom Norman and Carroll Hedgecock, harassed them by telling them not to talk across the room. Kirby also testi- fied, however, that such a rule was in existence before Norman's and Hedgecock's remarks following the meet- ing with President Toburen. The record is devoid of any other evidence which might serve to further explain the scope and application of the purported rule, or to differ- entiate the rule following Norman's and Hedgecock's re- marks from the rule as it existed and was applied previ- ously. In short, there is nothing in the record which would indicate that whatever rule Respondent maintains against talking is not properly limited to talking in the work area during working hours. In the absence of any evidence as to the scope of the rule and how it was ap- plied, I find that the General Counsel has failed to show by a preponderance of the evidence that Respondent vio- lated Section 8(a)(1) of the Act by imposing upon its em- ployees a rule against talking. Accordingly, I am issuing the following recommended Order: ORDER ' It is hereby ordered that the complaint in this case be, and it hereby is, dismissed in its entirety. deferring consideration of it, and I will dispose of it in this Decision as though it had been properly raised as an issue. is 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 findings, 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. 133