Red Line Transfer & Storage Co., Inc.

National Labor Relations Board - Board DecisionsJun 13, 1973

204 N.L.R.B. 116 (N.L.R.B. 1973)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Red Line Transfer & Storage Company, Inc. and Wan- da J. Lawhon and Highway and Motor Freight Em- ployees Local No. 667 affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America . Cases 26-CA-4421 26-RC-4304 June 13, 1973 DECISION, ORDER, AND DIRECTION BY MEMBERS JENKINS , KENNEDY, AND PENELLO On March 15, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and Respondent 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent con- sistent herein. The Administrative Law Judge found, and we agree, that the interrogation by Ronnie Ivy and F. A. King concerning the employees' union activities vio- lated Section 8(a)(1) of the Act. The Administrative Law Judge also found that the discharge of employee Wanda J. Lawhon did not violate the Act, and he recommended that the 8(a)(3) allegation be dismissed. We disagree. In our opinion, Lawhon's discharge was motivated by her union activities and Respondent thereby violated Section 8(a)(3) and (1) of the Act. The facts show that Lawhon, who had been rehired on February 7, 1972, was employed as a night billing clerk. Her duties at Respondent's terminal were to prepare billings on a billing machine and she worked under the supervision of Ronnie Ivy. On July 1, 1972, Lawhon and the two other full-time billing clerks on her shift commenced organizing for the Union. When they discussed whether to ask Ivy to sign a card, Law- hon agreed to approach him. After she asked him to sign a card, on July 5, 1972, Ivy inquired as to who else had signed since he did not want to be the first.' Lawhon answered that he would not be the first, but she declined to state the names of the others. When Ivy arrived for work the next day, he met The Administrative Law Judge found, and we agree , that such interroga- tion violated Sec. 8 (a)(1) of the Act with L. D. Davis, secretary-treasurer and part owner of Respondent. The record discloses that they dis- cussed Lawhon's poor work and that Ivy recommend- ed that she be discharged. Accordingly, Davis wrote a discharge letter and had a check prepared and, when Lawhon appeared for work that evening, Ivy present- ed the items to her. The Administrative Law Judge found that although the record does not support Respondent's contention that the quality of Lawhon's work became twice as bad in the few weeks prior to her discharge, neverthe- less the record does demonstrate that Lawhon was committing many errors in her work and that she was Respondent's "worst" billing clerk. He further stated that, although the timing of the discharge is suspi- cious, he could infer illegality only by showing that Ivy communicated his knowledge of Lawhon' s union activities to Davis, which was not shown. As a result, the Administrative Law Judge concluded that the allegation should be dismissed. In our view, it is not necessary to establish that Ivy informed Davis of Lawhon's union activities in order to prove that her discharge violated the Act. While it is fundamental that in order to prove that a discharge was for discriminatory reasons it must be shown that the employer was aware of the employee's union or other protected concerted activities, it has long been held that a supervisor's knowledge is imputed to the employer to fulfill that element of proof.' Here, it was Ivy who recommended Lawhon's discharge and his knowledge of her union activities charges the Respon- dent with knowledge. Furthermore, although it is clear that the quality of Lawhon's work left much to be desired and that her work in the months prior to her discharge was uniformly of a poor quality, yet the discharge did not take place until the day after Ivy learned of her union activities. Considering all the circumstances, we are convinced that it was Lawhon's union activities, not her poor work record, that actual- ly precipitated her discharge, and we therefore find that Respondent violated Section 8(a)(3) and (1) of the Act.3 Inasmuch as it appears from the record that Lawhon was reinstated sometime in September 1972, we shall order that Respondent make her whole by payment of a sum equal to that which she normally would have earned from the date of the discrimina- tion to the date of her reinstatement, less her net earnings during that period. The backpay provided herein shall be computed in accordance with our for- 2 See , for example , UNeCO, INC, 175 NLRB 567, 570, enfd. 433 F.2d 974 (C A 8, 1970); N L.R.B v Eclipse Lumber Co, Inc, 199 F.2d 684 (C.A. 9, 1952), enfg . 95 NLRB 464. 3 We hereby overrule the challenge to Lawhon's ballot and, since her vote is determinative of the results of the election , we shall order that the Regional Director open and count her ballot, prepare a revised tally, and issue the appropriate certification RED LINE TRANSFER & STORAGE CO. mula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 per- cent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Red Line Transfer & Storage Company, Inc., Pine Bluff, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees in order to discourage their membership in Highway and Motor Freight Em- ployees Local No. 667 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor orga- nization. (b) Coercively interrogating employees concerning their and other employees' union activities and aims or in any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or any other mutual aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Wanda J. Lawhon whole for any earn- ings she lost as a result of her discharge on July 6, 1972, plus 6-percent interest. (b) Post at its terminal in Pine Bluff, Arkansas, copies of the attached notice marked "Appendix .114 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to clerical employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. DIRECTION 117 It is hereby directed that the Regional Director for Region 26 shall, within 10 days from the date of this Decision, open and count the ballot of Wanda J. Law- hon, the challenge to which has been overruled herein, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballot. If the revised tally discloses that a majority of the votes has been cast for, or against, the Petitioner, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations. 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we irtend to carry out the Order of the Board and abide by the following. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT coercively interrogate our em- ployees about their or other employees' union activities or aims. WE WILL NOT discharge our employees in order to discourage membership in Highway and Mo- tor Freight Employees Local No. 667, affiliated 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL make Wanda J. Lawhon whole for any earnings she lost as a result of her discharge on July 6, 1972, plus 6 percent interest. RED LINE TRANSFER & STORAGE COMPANY, INC (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE PAUL E. WELL; Administrative Law Judge: On July 25, 1972,1 Wanda Joy Lawhon, an individual, filed with the Regional Director for Region 26 of the National Labor Relations Board, hereinafter called the Board, a charge that Red Line Transfer & Storage Company, Inc., hereinafter called the Respondent, violated Section 8(a)(1) and (3) by terminating her because of her membership in Chauffeurs, Teamsters, and Helpers, Local Union 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America,2 hereinafter called the Union. On September 12, the Regional Director on behalf of the Board's General Counsel issued a complaint and notice of hearing, alleging that Respondent violated Section 8(a)(3) by the discharge of Lawhon and Section 8(a)(1) by two incidents of interrogation by Ronnie Ivy, a supervisor. On July 26, the Union filed a petition requesting an elec- tion among various clerical employees at Respondent's Pine Bluff, Arkansas, terminal. Pursuant to a Stipulation for Cer- tification Upon Consent Election, an election was conduct- ed on September 25. The result of the election was 11 votes cast for the Union, 11 votes cast against the Union, and one challenged ballot, that of Mrs. Lawhon. The Regional Di- rector on October 4 consolidated the representation case All dates hereinafter are in the year 1972, unless otherwise specified. 2 It appears that the correct name of the local is Highway and Motor Freight Employees Local No. 667 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America with the charge case, in which a complaint had already been issued, for purposes of hearing, ordering that thereafter the representation case , 26-RC-4304, be transferred to and continued before the Board in Washington, D.C. On Octo- ber 6, General Counsel issued an amendment to the com- plaint alleging additional 8(a)(1) violations by the interrogation of employees by the vice president of Respon- dent. By duly filed answers to the complaint and the amend- ment thereto, Respondent denied the commission of any unfair labor practices. Upon the issues thus joined, the matter came on for hear- ing before me at Pine Bluff, Arkansas, on October 26 and 27. All parties were present or represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. At the close of the hearing, with permission, the General Counsel reserved the right to file a late exhibit based on evidence which had been subpenaed from Respondent, but was not brought to the hearing room. Such late exhibit was timely filed on Decem- ber 18 and has been received and accepted, together with a stipulation as to its authenticity which was agreed to by Respondent. The parties waived oral argument. Briefs have been received from Respondent and the General Counsel. On the entire record in this matter, in consideration of the briefs, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a corporation, operates an interstate truck- line with a terminal at Pine Bluff, Arkansas. Respondent annually performs services valued in excess of $50,000 by the interstate transportation of freight. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES Wanda Lawhon was employed as a billing clerk, working during the evening hours at Respondent' s Pine Bluff, Ar- kansas , terminal. She had been employed and had resigned her employment at an earlier time and returned to work as a billing clerk on February 7. As a billing clerk, Lawhon's job consisted of preparing billings on a billing machine. Two other women did the same work as well as 8 or 10 male part-time employees, 2 or 3 of whom worked each evening. The billing clerks all worked under the supervision of Ron- nie Ivy, who is the rate clerk in charge of the night force at Respondent's Pine Bluff terminal. Respondent denied that Ivy was a supervisor; Respon- dent also denied that the secretary-treasurer of the corpora- tion and the general manager were supervisors. The record reveals that Ivy could hire employees, that he was the only RED LINE TRANSFER & STORAGE CO. person who directed them who was familiar with their work, and that his recommendations with regard to discipline and discharge were followed. I find that Ivy was a supervisor within the meaning of the Act. On about July 1, the three ladies on the night force com- menced organizing on behalf of the Union. Talk about or- ganizing had gone on sporadically ever since Lawhon went to work for Respondent. This talk had been engaged in by the employees among themselves and with Ivy, who testified that he did not know until after the events herein that he was a supervisor and thought that he was eligible to join the Union. On July 5, Lawhon consulted with the other two ladies on the night force about whether to ask Ivy to sign a card. Apparently they agreed that Ivy should be asked, but none of them wanted to be the one to ask him because they were not sure that he was not a supervisor. Lawhon finally asked him to sign a card. During the conversation, Ivy asked her who else had signed, stating that he did not want to be the first. She told him that he would not be the first, but declined to state who else had signed cards. The next night when Lawhon came to work, she was stopped from clocking in by Ivy who handed her a letter of discharge.3 The General Counsel contends that the dis- charge resulted from Lawhon's union activity. A few nights later Ivy asked the two remaining ladies about the union organization and again sought to ascertain who had signed cards. The General Counsel contends that the interrogation by Ivy, first of Lawhon and then of the other clerical employ- ees, violated Section 8(a)(1) of the Act. Respondent con- tends that a necessary element to a violation of Section 8(a)(1) is proof that the employer had knowledge that the employees are engaged in protected activity and points out that there is no proof that Secretary-Treasurer Davis knew that Lawhon was engaged in protected activity nor should he be charged with such knowledge. Sometime in September, a few weeks before this matter came on for hearing, F.A. King, who is known as "Dutch,", arrived at Respondent's office late at night. Ivy ushered him into the office and stopped the clericals at their work, stating that Dutch King had something that he wanted to say. Ivy then departed and King said that he wanted the employees to know that he didn't like the Union and he wanted to know why the employees wanted a union. Mrs. Lawhon, who had been reinstated sometime in September, answered King, who apparently left shortly thereafter. It appears that King was, at least to some extent, under the influence of alcohol at the time of this interrogation. General Counsel contends that this interrogation, too, was violative of Sec- tion 8(a)(1) of the Act. Discussion and Conclusions The timing of Lawhon's discharge would support the in- ference that she was discharged because she had the temeri- ty to ask Ivy to sign a union card. Ivy testified that he at no time informed Davis, who discharged Lawhon, of the union organization and that he in fact thought that he would be 3 The discharge letter was signed by L D Davis, who is the secretary- treasurer of the Company and a part owner 119 a union member. Davis, too, denied that he had any information until after the discharge that Lawhon was engaged in organizing on behalf of the Union or that any union organization was taking place among the employees. It appears that Lawhon was the only employee who did any organizing at the termi- nal, at least until her discharge. Respondent, however, con- tends that Lawhon was discharged because in her work as billing clerk she was making so many errors that the amount of trouble having to be taken by other employees was exces- sive. Respondent contends that she had been making these errors ever since the beginning of her employment, but that they got much worse during the last 3 or 4 weeks of her employment. Respondent introduced 70 erroneous bills made out by Lawhon between June 20 and July 6, which it compared with 12 mistakes for the same period of time committed by Jeanette Lofland, another billing clerk, whose employment began after Lawhon's. Respondent's evidence indicates that the errors adduced were all that they could find, but not necessarily all that were committed, inasmuch as some mistaken billings could have been retyped and would not show up in the records. Davis testified that al- though he had repeatedly admonished Ivy to do something to correct the numerous mistakes by Lawhon on the morn- ing of July 6 he had received complaints from customers and copies of errors found by other employees, all attributa- ble to Lawhon, in such number that he determined that something would have to be done about her. Accordingly, on that evening when Ivy came to work he consulted with Ivy about it and Ivy recommended Lawhon's discharge, whereupon Davis wrote the discharge letter, had a check prepared, put them both in an envelope, and gave them to Ivy to give to Lawhon when she arrived at work .4 The General Counsel attempted without success to show that the mistakes attributed to Lawhon might have been committed by Lofland, since they were identified by initials and both girls had the same initials. However, it appears that immediately after Lofland was hired Lawhon com- menced initialing her work with a single "J," whereas Lof- land continued using the initials "J.L." and there is no evidence that any confusion resulted therefrom. The General Counsel had subpenaed Respondent's re- cords in an attempt to show the true course of Lawhon's progress. Respondent pointed out that to comply with the subpena meant bringing to the hearing room many thou- sands of unassembled records. Respondent agreed that the General Counsel could go over these records at the terminal and the parties would stipulate as to what they contained. The stipulation later received revealed that the General Counsel had gone over 20 percent of the material between the dates of May I and June 19 and turned up some 134 errors. The General Counsel thus argues that he has dis- proved Respondent's defense that Lawhon's work deterio- rated in the last 3 or 4 weeks, showing that it had in fact improved. I note from the stipulation that of the 134 mis- takes, 45 were identical mistakes, the omission of the shipper's number on bills from the Memphis terminal, all between May 22 and May 31 and that 32 of them took place ° Ivy worked from 4 p.m. till 2 30 a in , Lawhon did not arrive at work until 8 30 or 9pin 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on May 26 almost all on consecutively numbered bills. Ex- cluding this group, for which it would appear some special explanation should exist, the General Counsel's study shows some 90 errors during the 7-week period. The General Counsel contends that, since he went through only 20 per- cent of the bills, the number of errors shown should be multiplied by 5 to get a true figure. However, there is no showing that the 20 percent he went through was a represen- tative sampling. The General Counsel made no attempt to compare the number of errors by Lawhon with those of any other em- ployee. The evidence adduced by Respondent indicates that Mrs. Duggan, the oldest billing clerk, made very few errors and that Lofland made far less than Lawhon. Inasmuch as the General Counsel had before him Respondent's records and could readily have prepared comparisons, I could only assume that his failure to do so indicated that such compari- sons would not support his argument that Lawhon was no worse than the others . I conclude that the testimony ad- duced from all of Respondent's witnesses that Lawhon was by far the worst billing clerk stands undenied, and I credit it., I agree with the General Counsel that the record does not support the assertion of Respondent 's witnesses that Lawhon's work became twice as bad in the last 2 weeks or 3 or 4 weeks, as they variously testified. However, the record reveals that the quality of her work could scarcely be said to be improving. I believe that Respondent has a right to expect that an employee engaged in an operation such as billing, which requires the application of extreme care , will continue to improve and after 5 months turn out work of a higher quali- ty than was demonstrated to have been performed by Law- hon. Accordingly, I conclude that Respondent has shown good cause for the discharge of Lawhon and the General Counsel has failed to show that the motivation assigned by Respondent to the discharge was pretextual. Nevertheless , the General Counsel argues under all the circumstances of this case that an inference is raised by the timing of the discharge that it was at least in some part motivated by the union activities of Lawhon. Unquestion- ably, Lawhon was discharged within 24 hours of her at- tempt to enlist her supervisor in the union organization. She and her fellow employees recognized a danger in ap- proaching Ivy because of his supervisory status and almost certainly believed that the discharge was to some extent s Except to the extent that evidence was adduced from Jeanette Bell, whose testimony was so internally contradictory and incredible that I relied to no extent on it. attributable to Lawhon's solicitation of Ivy to sign a union card. But, suspicion is no substitute for evidence. The timing herein would support an inference based on substantial evi- dence, but cannot supply substantial evidence to support the inference of an unlawful discharge. The 8(a)(1) viola- tions committed by Ivy are not shown to have come to the attention of Davis or for that matter of any company offi- cial superior to Ivy. I could reach an inference of illegality in the discharge only by basing it in part on an inference of company knowledge based on communication between Ivy and Davis which is denied by both. The chain of logical reasoning is stretched too far in my opinion. Accordingly, I find that the General Counsel has failed in his burden of supporting the allegation with substantial evidence on the record as a whole and I must recommend that the complaint be dismissed insofar as alleges the violation of Section 8(a)(3). I also find that Ivy's and King's interrogations of employees concerning their and other employees' union adherence violated Section 8(a)(1). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. By coercively interrogating employees concerning their and other employees' union activities and aims, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. [Recommended Order omitted from publication.]