Savannah Wholesale Co.

National Labor Relations Board - Board DecisionsAug 25, 1980

251 N.L.R.B. 500 (N.L.R.B. 1980)

5(0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Savannah Wholesale Company and International Ladies' Garment Workers' Union, AFL-CIO. Case 10-CA-14444 August 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS JENKINS AN) TRUE.SI)AI.E On January 31, 1980, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed a reply to the General Counsel's exceptions to the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' 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 Respondent, Savannah Wholesale Company, Savannah, Georgia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. i The complaint alleged, inter alia, that Respondent, by its supervisor, Ward threatened its ellployeecs with discharge if they joined or engaged ill ulion actiities I'he Administrative I.aw Judge discussed the incident. which was alleged as a iolatio(l of Sec 8(a)(11 of the Act, and, in fact. used it to find Responldellt had knowl edge oIf I essington's union activity. He did not, however. find whether Respxlildent's conduct violated Sec 8(a)(l) of the Act as lleged The General Counsel excepts to the Admin- istralive Law Judge's failure to make a inding on the 8(a)( 1 allegation. Employee Jones testified that a few days before l essinglton's discharge Supervisor Ward said that "Maguire knew of P'ryor's and Lessington's union activities; that Maguile was going to fire them ad that Jones should stay aay from Pryor and essington because they were a bad influenlce I this conneclion, the Administrative Law Judge stlated, "In general Jnes impressed me more favorably than Ward"; however, he added. "While Jones may ha'e embroidered the conversatilt between him and Waird I am persuaded that Ward indicated to Jones hat Ward was aware of l.essington's union actis\ity" T Ihus, while he crediled Jones to the extent thal he fnd Respondenl had knowledge of Lessilig- otn's union activity he did not resolve credibility as to whelher the al leged threat was alually made. As a result, we atre unable to make a de- terminatiotn on the (a)(ll) llegation, and ill therefore seser the 8(a)(I) allegation from the proceedinlg and remand it to the Administralive l.aw Judge for appropriate findings The outcome of his supplenicital finding on that allegation will not cffect our adoption of the remainlder of the Admlnstratisc l.aw Judge's Decision 251 NLRB No. 87 IT IS FURTHER ORDERED that the 8(a)(1) threat alleged in the complaint be severed from the in- stant proceeding, that the record in regard to that allegation be reopened, and that the proceeding in regard to that issue be remanded to Administrative Law Judge Abraham Frank for the purpose of de- ciding whether or not Section 8(a)(1) of the Act was violated. APPENDIX NoTrici T EPI OYi. ES POSlD) BY ORI)lR OF1 TIl-. NATIONAI. LABOR REL.ATIONS BOARD An Agency of the United States Government WE wii.!. NOT suspend or otherwise dis- criminate against our employees because of their union and protected concerted activities. WE WII.L NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the National Labor Rela- tions Act, as amended. WE wii. make whole Walter Jones for all losses in pay suffered by him as a result of our discrimination against him, with interest. WE wiH. rescind and, if physically includ- ed, remove from the personnel file of Walter Jones any evidence of the unlawful disciplin- ary suspension of February 14, 1979. SAVANNAH WHOI ESAI.I- COMPANY DECISION ABRAHAM FRANK, Administrative Law Judge: The charge in this case was filed on March 7, 1979. and the complaint, alleging violations of Section 8(a)(3) and (1) of the Act, issued on April 6, 1979. The hearing was held on September 20-21, 1979, in Savannah, Georgia. All briefs filed have been considered. At issue in this case are questions whether Respondent discharged one emloyee and suspended another because of their union and protected concerted activities. FINDINGS 0- FACI ANI) CONCI USIONS OF LAW 1. PRELIMINARY FINI)INGS ANI) CONCIUSIONS Respondent, a Georgia corporation, with an office and place of business in Savannah, Georgia, is engaged in the wholesale business of buying, warehousing, and distribut- ing general merchandise. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. SAVANNAIt WHOLESALE COMPANY 501 II. TtlY FACTS A. The Discharge of Israel Lesingron,. Jr Lessington was originally employed by Respondent as a receiving clerk in March 1976. He was discharged in March or October 1978, because of failure to follow instructions. He was reemployed by Respondent in May 1978, as a freight handler in the shoe department under the supervision of Freddie May Hayes. He was dis- charged a second time on October 23, 1978. In the fall of 1978, after making some initial inquiries for the purpose of contacting a union, Lessington called Milford Allen, an organizer for the Charging Party. Allen thereafter met with employees of Respondent on October 5 and 12, 1978. Present at the October 5, 1978, meeting were: Lessington, employees Walter Jones, James Pryor, David Parish, Charles O'Berry, and Mi- chael Brown. At the October 12 meeting, Lessington signed a union authorization card. After the meeting, Lessington visited the homes of a number of Respondent's employees who lived in his neighborhood, and obtained six authorization cards for the Union. Included among the employees vis- ited by Lessington on October 12, was Sheila Phoenix, an employee who worked with Lessington in the shoe department. Phoenix signed a card on that occasion. Thereafter, Lessington solicited and obtained six addi- tional authorization cards. Hayes supervises 13 employ- ees, 10 female shoe clerks, and 3 male freight handlers. Prior to reemnploying Lessington in May 1978, Oper- ations Manager Frank Maguire had asked Hayes if she would consider taking Lessington into her department. Hayes agreed. Maguire interviewed Lessington in the presence of Hayes. Maguire told Lessington that he would be on a 90-day probationary period and must not fall into the habits he had displayed during his prior period of employment, such as not being available when needed and loafing. Maguire said that if Lessington did not do a better job than he had done in the past he would be terminated again. Hayes told Lessington that he would have to perform his work and correct a per- sonal problem. Hayes also told Lessington that she did not want any problems with him. Lessington assured her that he would be a nice employee. Hayes said that she would try him. Lessington completed his 90-day probationary period in a satisfactory manner. On October 23, 1978, he report- ed for work at 8 a.m. By 11 a.m., he had completed his initial assignment of handling freight and went to the rear of the warehouse out of Hayes' sight. Lessington put his arms on a box and his head on his arms in a standing posture. Hayes found Lessington in that posti- tion and fired him on spot for sleeping. Lessington asked for an opportunity to explain, but Hayes refused to listen to his explanation, suggesting that he see Maguire. Lessington met Maguire on Lessington's way down- stairs. Maguire said,"We got you, you were sleeping, huh." Lessington asked for his paycheck, and Maguire i Pursuant to a petition filed b the Union on December 8, 1978, all election was held for Respondent's employees on Februar 9. 1979. A a result or he election, the Union as certified by hc Board oi April 19. 1979 said that Lessington could not get his check until the fol- lowing Friday. Words passed between them and Maguire threatened to call the police. ILessington clocked out. The above facts are uncontroverted. The facts stated below are based on the credited testimony of Hayes, cor- roborated in part by the testimony of employees Phoe- nix, Butler, and Mary Jackson. For some months prior to Lessington's discharge, Hayes had suspected that Lessington was sleeping on the job and had warned him many times about such conduct. During the final 2 weeks of Lessington's employment, Hayes became convinced that Lessington was sleeping and believed that Butler was warning Lessington when Hayes approached by pushing boxes to awaken Lessing- ton. Hayes questioned Butler. At first Butler refused to answer, but on one occasion told Hayes that Lessington had been sleeping. On Thursday or Friday, prior to his discharge on Monday, October 23, 1978, Lessington disappeared for 30 minutes. When Hayes found him, she said, "Israel, I know you are sleeping, and if I catch you sleeping. I'm going to terminate you." On the morning of October 23, Hayes lost track of Lessington and went looking for him. She found him in the rear of the warehouse on his feet, leaning against some boxes, with his head on the boxes. She could see his face, which was turned toward her. He was sleeping. Hayes said, "Israel, you can wake up now. because you are fired." I do not credit the testimony of Lessington that he was crying, not sleeping; that he had been informed that morning that his foster mother had died, and that he had communicated this information to Hayes when he report- ed for work and asked for a few days off. Hayes denied that any such conversation occurred on October 23, 1978. The General Counsel introduced no documentary evidence to support Lessington's testimony that a member of his family had died on or about October 23, 1978. Indeed, Lessington himself had no independent memory of the date of the death of his foster mother. When he gave the Board agent an affidavit in this case Lessington found it necessary to refer to his check stubs to arrive at the date of his discharge and from that date to determine the date he learned of his foster mother's death. Moreover, Butler, whom I find a highly credible witness, testified that he observed Lessington sleeping on about three occasions, and usually warned Lessington that someone was coming by making some noise to awaken him. On the morning of October 23, Butler ob- served Lessington sleeping. but did not have time to warn him by moving some boxes when Hayes ap- proached. I note, also, that Lessington initially testified that he had never slept on the job. On rebuttal, however, following the testimony of Butler, Lessington admitted that he had slept once on the job and had been awak- ened by Butler. Hayes testified that she had no knowledge of union ac- tivity i the warehouse until several weeks after the dis- charge of Lessington. Although I credit her testimony and that of Phoenix that Phoenix did not inform Haves of Lessington's union activity, knowledge may be imput- ed to Respondent if, as Walter Jones testified, Willie 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ward, a supervisor, was aware of such activity. Jones testified that he had a conversation with Ward a few days before Lessington was discharged. Ward told Jones that James Pryor and Israel Lessington were trying to get a Union in, that they had tried the last time and it did not work; that Maguire knew of Pryor's and Lessing- ton's union activities; that Maguire was going to fire them, and that Jones should stay away from Pryor and Lessington because they were a bad influence. Subse- quently, Pryor was promoted to a supervisor. Ward testi- tied that he, Jones, Lessington, and Pryor were friends and went out together on a social basis until a couple of weeks after Lessington's discharge. Ward denied that he had warned Jones about Lessington and Pryor. Ward testified that he had never discussed the Union with Lessington or Jones; that Lessington and Jones had not mentioned union activity prior to October 23, 1978; that, although Lessington was mad, there was no mention of Lessington's discharge among the three friends during the 2-week period after Lessington's discharge and that Ward had no knowledge of union activity at the ware- house until the last of November or the first of Decem- ber 1978 when some of the employees began wearing union buttons. In general, Jones impressed me more favorably than Ward as a witness. While Jones may have embroidered the conversation between him and Ward, I am persuaded that Ward indicated to Jones that Ward was aware of Lessington's and Pryor's union activities, and attempted to steer Jones away from engaging in such activity. I find it difficult to believe that Ward, socializing with his friends, Lessington and Pryor in the evening, when tongues wax free, was totally unaware that they were deeply involved in union activity at the time. It would seem equally unlikely that no mention was made of the circumstances of Lessington's discharge during Ward's social conversations with Lessington immediately follow- ing the latter's discharge. B. The Suspension of Walter Jones Jones was employed by Respondent as a truckdriver on July 24, 1978. At that time, the traffic manager, Tommy L. Hanley, gave Jones a copy of rules for truck- drivers, which included the obligation to call the office before returning from a pickup or delivery. Jones and Leonard Harris, a fellow truckdriver, were reminded by Hanley on September 18, 1978, and, again, finally, on October 4, 1978, that they were not adhering to this rule and were required to do so.2 Jones was an active union adherent, having attended eight to nine union meetings, including the first meeting on October 5, 1978, in the company of Lessington. Jones signed up 6 to 12 employees and talked to about 60 others to induce them to join the Union. Sometime in November 1978, Jones began wearing an ILGW button openly and continued wearing it until the election on February 9, 1979. On one or more occasions, he was 2 Although Jones admitted that he had orally been instructed to call in when making a pickup or delivery, he denied receiving written rules to this elTect prior to his suspension. I credit Hanley on this point. questioned by Hanley, who asked Jones what the button represented. On the morning of February 13, 1979, Jones reported for work at about 8 a.m. He was scheduled to deliver some employees to Respondent's new store at the Hogan Building, about 5 minutes driving time. Jones spent some minutes checking his truck. Between 8 and 8:20 a.m., Peter Robson, the maintenance man, came out and scold- ed Jones because Jones had not yet left with the men for the Hogan Building. Jones became upset and communi- cated his distress to Vice President Harvey Yellen, who happened to pass by. Yellen told Jones to see Hanley and Maguire. Jones informed Hanley and then Maguire of the incident. Maguire asked Robson's son and another witness if Robson had cursed or threatened to hit Jones, as Jones had alleged. Neither witness supported Jones' version of the incident and Maguire so informed Jones. That afternoon, Jones was dispatched to the Amtrack freight station to pick up about 50 boxes of merchandise. Prior to that time, Hanley had received a call from the agent at Amtrack that some of the boxes were wet. Hanley told Jones to make sure to obtain an exception from the freight agent because the boxes were wet. Jones reported to the Amtrack station and inspected the boxes of merchandise. He noted that neither the boxes nor mer- chandise were wet, but did observe that some boxes had ink spots on them. Jones concluded that he did not need an exception because there was no problem with the shipment. However, he did obtain a piece of paper from the agent with the agent's initials indicating that some boxes had ink spots on them. Jones was unable to use the telephone at Amtrack to report the situation to Hanley because the phone was busy. Jones returned to the warehouse with the freight. He reported to Hanley with the paperwork. Hanley became angry because Jones had not called Hanley's office and had not taken an exception on the freight bill. Jones said that there was nothing wrong with the boxes and there- fore he did not need an exception. Hanley and Maguire, who had been called by Hanley to investigate the inci- dent, insisted that the freight was wet. In fact, however, neither Hanley nor Maguire inspected the merchandise to determine whether or not it was wet or damaged. I credit Jones' uncontradicted testimony that the freight was not wet. Hanley and Maguire told Jones that he would have to pay for the damaged merchandise and that it would take him a long time to pay for it. Jones said he would not pay anything because there was noth- ing wrong with the freight. Maguire asked Jones why Jones had not called the office from the Amtrack station. Jones told Maguire that Jones was not permitted to use the phone at the Amtrack station. Some time after Jones' suspension Maguire checked with the Amtrack station and was told that Jones had not been denied permission to use the phone. The next morning, Jones reported to Hanley's office. Present were Hanley, Maguire, and Robson. Maguire handed Jones a memorandum suspending Jones for 2 days with a warning of future discipline, including layoff, because of Jones' confrontation with Robson, his failure to call in from the Amtrack station, and failure to SAVANNAH WHOLESALE COMPANY 50) obtain a proper exception on the freight bill for the mer- chandise delivered on February 13, 1979. The following Friday when Jones returned to work Jones asked Hanley if Jones had been suspended because of his union activity. Hanley left without replying and returned with Maguire. Maguire said, "Walter, look here, the reason for that is, because we're going by the book now, we haven't been going by the book in the past, but we're using it now." C. Analysis and Final Conclusions of Law A. I conclude that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging Israel Lessing- ton, Jr. In reaching this conclusion, I have taken into consideration the fact that Lessington was the individual who was responsible for bringing the Union into Re- spondent's warehouse, that he worked actively for the Union, and knowledge of his activity may be imputed to Respondent. I have also taken into consideration the timing of the discharge-within the same month that the first two union meetings were held for Respondent's em- ployees. Nevertheless, it is not an unfair labor practice to discharge an employee for cause, unless, of course, the cause is a pretext to conceal Respondent's real motive-a desire to rid itself of a union adherent. I am satisfied, however, that Lessington's sleeping on the job was the actual cause of his discharge in the absence of evidence of condonation or evidence that other employees were permitted by Respondent to engage in such conduct with impunity. To hold otherwise the tail would have to wag the dog. "The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted activities does not, of itself, establish the un- lawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dis- missal by engaging in conduct for which he would have been terminated in any event, and the employer dis- charges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful." Klate Holt Company, 161 NLRB 1606, 1612 (1966), and cases cited therein. Accordingly, I shall recommend dismissal of this alle- gation of the complaint. B. I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by suspending Walter Jones. Jones was an active union adherent and known as such to Re- spondent. Jones testified without contradiction that Ma- guire had complimented Jones as the best truckdriver Respondent ever had. Yet Jones was given a 2 day sus- pension because: (I) he failed to deliver men to Respond- ent's new store, as instructed, and had made an unwar- ranted complaint against Robson; (2) he had not called Hanley from the Amtrack station on the afternoon of February 13, 1979; and (3) he did not obtain an exception on the freight bill for wet merchandise with respect to (I), Jones' failure to deliver the men to Respondent's store was due, at least in part, to his corollary obligation to inspect his truck before departure. It was at the sug- gestion of Vice President Yellen that Jones complained to Hanley and Maguire about Robson. Even assuming that Maguire reasonably conclude, based on his cursory investigation of the incident, that Jones grieancie w as not meritorious, it has not been shown that Respondent had the unusual policy of punishing employees because their grievance against a supervisor was not meritorious. With respect to (2), at the time of Jones' suspension Ma- guire had no evidence that Jones untruthfully stated that he was not permitted to use the telephone at the Am- track station. Maguire suspended Jones before checking with Amtrack on this point. With respect to (3), neither Hanley nor Maguire inspected the merchandise to deter- mine if it was wet or damaged before suspending Jones, despite his insistence that there was no problem with the freight. Indeed, so far as this record shows, no agent of Respondent inspected the merchandise and I have. above, credited Jones' testimony that the merchandise was not wet. Obviously, Jones could not obtain an ex- ception from a freight agent that the freight as wet when, in fact, it was not wet. Yet Jones was suspended, in part, for failing to obtain an unobtainable exception. Jones was suspended on February 14, 1979, 5 days after the Union had won an overwhelming victory in a Board election. When Jones returned to work and com- plained about his suspension, asking for the real reason, Maguire replied that Respondent had not previously been going "by the book," but was going "by the book now." Respondent adduced no evidence of business mo- tivation to support its sudden decision to enforce its work rules more stringently against its employees follox- ing the election of February 9, 1979. 1 infer and find that the reason for Respondent's decision to go by the book "now" was the expressed desire of its employees to be represented by the Union for the purposes of collective bargaining. Based on the foregoing, I conclude that Jones was sus- pended for 2 days on February 14. 1979, to discriminate against him because of his union and protected concerted activity and to discourage union membership among Re- spondent's employees. Such conduct violates Section 8(a)(3) and (1) of the Act. The above unfair labor practice is an unfair labor prac- tice within the meaning of Section 2(t) and (7) of the Act. ORDER 3 The Respondent, Savannah Wholesale Company. Sa- vannah, Georgia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Suspending or otherwise discriminating against em- ployees because of their union and protected concerted activities. (b) In any like or related manner interfering with re- straining, or coercing employees with respect to the rights guaranteed them in Section 7 of the Act : In he ellt il cc'cpion s ,are filed ais proildcd h\ S,. 11)2 46 of thl Rules and Reguilatiorls If the National I ahor Rlam, lli,l . the finj- ings, conclitons, ad recinlmcnded Order hertill hal] is plicd iri SeC 102 48 of he Rule, aindi Reguil;tio,ls he .idplcd h5 Ie hard II111 he'orle its findings, crnl ,1OIIS, Artld ()rdcr i alll ; h t lntlS therehi shall he deemed .,aiecd fr iall purpocs 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Walter Jones for all losses in pay suf- fered by him as a result of the discrimination against him in the manner set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950); Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Rescind and, if physically included, remove from the personnel file of Walter Jones evidence of the unlaw- ful disciplinary suspension of February 14, 1979. (c) Post at its warehouse in Savannah, Georgia, copies of the attached Notice marked "Appendix".4 Copies of said Notice on forms provided by the Regional Director for Region 10, after being duly signed by an authorized Ill the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." representative of Respondent, shall be posted by Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Preserve and, upon request, and make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Israel Lessington, Jr.