TNT Skypak, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 1009 (N.L.R.B. 1993)

1009
312 NLRB No. 150
TNT SKYPAK, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge credited the General Counsel’s witness, Derrick Reed,
only in part and did not credit his account of the events on the day
of his termination when it differed from the versions given by the
Respondent’s witnesses. The Respondent relies on this in part in ar-
guing that Reed should not be credited at all. A trier of fact, how-
ever, is not required to accept the entirety of a witness’ testimony,
but may believe some and not all of what a witness says. Brinkman
Southeast, 261 NLRB 204 (1982); Giovanni’s, 259 NLRB 233
(1981); Maxwell’s Plum, 256 NLRB 211 (1981); NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950).
2 All dates are in 1991. 3 Riker’s Island is a New York prison.
TNT Skypak, Inc. and Local 851, International
Brotherhood of Teamsters, AFL–CIO. Cases
29–CA–16046 and 29–CA–16154
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 22, 1993, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order and adopts the recommended Order as
modified.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by soliciting grievances and interrogating
employees about their union activity. The judge dis-
missed two other 8(a)(1) allegations. No exceptions
were filed to these findings, and they are adopted pro
forma. The judge also found that the Respondent vio-
lated Section 8(a)(3) by discharging employee Derrick
Reed for supporting the Union during an organizing
campaign. We reverse and find, contrary to the judge,
that the Respondent rebutted the General Counsel’s
prima facie case.
A. Facts
The Respondent, TNT Skypak, Inc., operates an
international courier service in the State of New York.
The Union began an organizing campaign in June
1991,2 which culminated in the Union’s election vic-
tory September 6, 1991. Reed, one of the Respondent’s
drivers, was known as a vocal union supporter.
The judge largely credited the testimony of Joseph
Macor, a supervisor during the time at issue who is no
longer employed by the Respondent, on the events
leading up to Reed’s discharge. The judge observed
that Mark Lagares, the Respondent’s New York city
operations manager, for the most part corroborated
Macor’s version of the events. The following factual
account is based on Lagares’ and Macor’s testimony.
On July 23, Macor reprimanded Reed for unre-
ported, undelivered packages. Macor noted this oral
warning in Reed’s personnel file. On Friday, Septem-
ber 27, another driver assigned to Reed’s vehicle dis-
covered undelivered newspapers and airbills for unde-
livered packages in Reed’s van. When Reed returned
to work on Monday, September 30, Macor and Lagares
informed him that he would receive a written warning
for failing to report the undelivered packages. As Reed
walked away, he muttered something to the effect of
‘‘stupid mother fucker.’’ Lagares followed Reed into
the warehouse and informed Reed that he would also
receive a written reprimand for insubordination. Reed
then loaded his van and drove away.
Shortly thereafter, Macor and Lagares heard Reed
swearing over the van’s two-way radio. Lagares heard
him say, ‘‘they’re all stupid mother fuckers. I don’t
give a fuck if they hear me.’’ Macor testified that, in
addition to the profanity used on the radio, Reed said
‘‘things to the effect of, you know, I’m going to get
them but I’m going to do it right because if not I’ll
wind up at Riker’s Island.’’3 Lagares heard him say,
‘‘I’m going to sue. I’m going to do it the right way
because if I don’t I’ll end up at Riker’s.’’ Lagares di-
rected a dispatcher to order Reed to return. Upon
Reed’s return, Lagares suspended him, pending dis-
ciplinary action. Later that day, Lagares told Reed that
he was terminated. Lagares stated that he discharged
Reed for ‘‘gross insubordination and threatening and/or
abusive behavior,’’ including Reed’s statements over
the two-way radio.
B. The Judge’s Decision
The judge rejected the Respondent’s assertion that it
discharged Reed because of his repeated misconduct.
The judge found that the Respondent ‘‘vacillated’’ in
its reason for the dismissal and failed to prove it had
the policy against profanity over the radio which it had
alleged as a reason for Reed’s discharge. The judge
compared Reed’s use of profanity to that of another
employee and found that the Respondent had treated
Reed more harshly. The judge concluded that the Re-
spondent had not sustained its burden of showing that
Reed was discharged for ‘‘gross insubordination’’ or
for ‘‘threatening behavior.’’
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
5 The judge made no finding that the first reprimand, issued July
23, was unlawful, and no exceptions were taken.
6 The judge omitted from his analysis Lagares’ warning in the
warehouse and Reed’s threats over the radio.
7 These morning meetings took place during the summer of 1991,
before Reed’s discharge on September 30. Reed testified that he reg-
ularly attended these staff meetings.
C. Analysis
Under the Wright Line test,4 to prove a violation of
the Act turning on employer motivation, the General
Counsel must establish a prima facie case that animus
against union activity or other protected conduct was
at least a motivating factor in the action at issue. The
employer may escape liability for its action either by
rebutting the prima facie case, i.e., disproving one or
more of the critical elements of that case, or by estab-
lishing as an affirmative defense that it would have
taken the same action even in the absence of the em-
ployee’s protected conduct. We agree with the judge
that the General Counsel established a prima facie
case. We disagree, however, with his finding that the
Respondent failed to establish that it would have dis-
charged Reed even if he were not an outspoken union
supporter.
The record as a whole shows that the Respondent
dismissed Reed for a combination of valid reasons.
First, management reprimanded him on September 30
for leaving undelivered newspapers in his van and for
failing to report undelivered packages. The importance
of this incident is highlighted by the fact that this
warning was Reed’s second for the same conduct.5
When Reed swore at Macor and Lagares, Lagares in-
formed him that he would receive another reprimand,
this time for insubordination. The day’s events cul-
minated in Reed’s diatribes and threats voiced over the
radio.6 Regardless of whether the Respondent had a
policy against profanity, management had specifically
warned the drivers, including Reed, about such state-
ments. Reed’s statements, broadcast on the radio for all
to hear, were abusive and threatening, and the Re-
spondent was not obliged to tolerate them.
The judge concluded that the Respondent vacillated
in its rationale for dismissing Reed and inferred that
the Respondent’s asserted reasons for Reed’s discharge
were pretextual. The judge based his conclusion solely
on a letter written by the Respondent’s vice president
of human resources, Anthony Ventiera. On December
5, Ventiera realized that he had not received the Octo-
ber 29 notice of determination on Reed’s unemploy-
ment benefits hearing. He requested a copy from the
New York State Department of Labor and received it
on December 13. Because he had only 30 days to re-
spond, he dictated, ‘‘off the top of [his] head,’’ a letter
requesting a hearing. He did so, he testified, hoping
that the Department of Labor would consider his over-
due request. The letter stated that Reed’s dismissal was
for a ‘‘violation of policy in using profanity on the
two-way radio that was in his van.’’ The judge charac-
terized this statement as ‘‘vacillation’’ by the Respond-
ent because the letter did not mention Reed’s insubor-
dination and threatening behavior.
In relying on the letter written by Ventiera, the
judge omitted Ventiera’s explanation of its contents.
Ventiera’s involvement in the discharge was minimal.
After Lagares suspended Reed, he consulted Ventiera
by telephone. Ventiera asked him to document the
day’s events and fax a memo to him. Lagares and
Ventiera then discussed the matter further, and
Ventiera recommended termination. He suggested,
however, that Lagares call Rick Renner, senior vice
president, before taking action. Renner authorized
Lagares to terminate Reed. Ventiera’s involvement in
the discharge, thus, was indirect, and he did not con-
tact Lagares, or any other company official, to refresh
his memory before writing the December 13 letter.
Thus, the Respondent did not offer shifting reasons:
Ventiera did not establish a new or different expla-
nation for the discharge but, we find, broadly stated
one of several reasons for Reed’s termination.
In finding that a policy against profanity over the
radio did not exist, the judge relied on the testimony
of Michael Yanis, shop steward and driver. Yanis stat-
ed that, at the time of Reed’s discharge, the Respond-
ent did not have such a rule.
We find that, while the Respondent did not have an
explicit policy against the use of profanity, the record
supports the Respondent’s position that it had a policy
requiring its employees to act ‘‘professionally’’ on the
radio and to limit their use of the radio to ‘‘business’’
matters. The judge acknowledged Ventiera’s testimony
about the morning staff meetings, where Lagares asked
the drivers to act ‘‘professional on the airways.’’
Macor, a witness credited by the judge, stated that
management regularly told employees at prework com-
munication meetings that the radio was ‘‘for business
use only.’’7
No reasonable person could consider Reed’s profan-
ity and threats on the radio to be ‘‘professional’’ or to
satisfy a ‘‘business’’ need. We conclude that Reed’s
conduct contravened the Respondent’s policies.
The judge found disparate treatment because he con-
sidered the Respondent’s treatment of another em-
ployee inconsistent with that of Reed. He pointed out
that Rooney, the dispatcher, used profanity over the
radio during the summer of 1991 and merely received
a written warning.
1011TNT SKYPAK, INC.
1 All dates refer to 1991 unless otherwise specified.
We find, however, that Rooney’s profanity was not
nearly as objectionable as Reed’s. Yanis, the shop
steward, characterized Rooney’s profanity as a ‘‘slip-
up.’’ Yanis did not believe Rooney’s ‘‘intention was to
really curse on the radio.’’ Examples of such infrac-
tions given by Yanis included ‘‘oh fuck’’ and ‘‘oh
shit’’ and he described them as ‘‘a word here or two.’’
These ‘‘slip-ups’’ differ considerably from Reed’s pro-
fane diatribe directed toward management.
We find that Rooney’s reprimand, rather than evi-
dencing disparate treatment, supports the Respondent’s
contentions that it had a policy against using profanity
over the radio and that it had enforced this policy prior
to Reed’s discharge. We do not find the Respondent’s
treatment of the two employees disparate because we
find that Reed’s statements were far more serious than
Rooney’s. We find that Reed’s profanity was not a
‘‘slip-up’’; his comments amounted to ‘‘profanity
plus,’’ not an accidental word or two.
Additionally, we note that the Respondent has con-
sistently argued that it did not discharge Reed solely
for one incident but for his entire course of conduct.
Thus we find, based on the foregoing considerations,
that the Respondent has shown that it would have dis-
charged Reed for its clearly lawful reasons even in the
absence of his union activities. Accordingly, we dis-
miss the complaint regarding that allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, TNT
Skypak, Inc., Garden City and Queens, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraphs 1(c) and 2(a)–(c).
2. Renumber the subsequent paragraphs accordingly.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT solicit employee grievances and
impliedly promise our employees that we will resolve
their grievances if they do not select the Union as their
collective-bargaining representative.
WE WILL NOT interrogate our employees regarding
their activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
TNT SKYPAK, INC.
Marcia E. Adams, Esq., for the General Counsel.
Clifford P. Chaiet, Esq. (Kaufman, Naness, Schneider &
Rosensweig), of Melville, New York, for the Respondent.
Robert Archer, Esq. (Meyer, Suozzi, English & Klein), of
Mineola, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on January 20
and 21, 1993. On charges filed on October 15 and November
29, 1991,1 a consolidated complaint was issued on January
31, 1992, alleging that TNT Skypak, Inc. (Respondent) vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
The parties were given full opportunity to participate, ex-
amine and cross-examine witnesses, argue orally, and file
briefs. Briefs were filed by the General Counsel and by the
Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with offices in Gar-
den City and Queens, New York, is engaged in the operation
of an international courier service. Respondent admits that it
annually purchases and receives at its Queens facility goods
valued in excess of $50,000, directly from entities located
outside of the State of New York. At the hearing, Respond-
ent took the position that it may be subject to the Railway
Labor Act, as amended, 45 U.S.C. § 151. On January 26,
1993, the National Mediation Board issued a decision finding
that Respondent is not within the jurisdiction of the Railway
Labor Act. 20 NMB 153 (1993). Accordingly, Respondent
has moved to amend its answer to admit jurisdiction by the
National Labor Relations Board. I grant Respondent’s motion
and find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. In addition, it has been admitted, and I find, that Local
851, International Brotherhood of Teamsters, AFL–CIO (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 General Counsel’s motion to withdraw par. 8 of the complaint
was granted at the hearing.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Alleged violations of Section 8(a)(1)
In June 1991 the Union commenced an organizational
campaign among the drivers employed by Respondent at its
Queens location. Derrick Reed had been a driver for Re-
spondent since October 1989. In the early part of the summer
of 1991 he signed a union authorization card and subse-
quently had meetings concerning union activities with other
drivers in the warehouse and in the parking lot of the Queens
facility. On July 2 a meeting was held between management
and the drivers. A number of issues were discussed, includ-
ing medical benefits, problems with the vehicles, and salary
increases. Reed credibly testified that Mark Lagares, the op-
erations manager, told the drivers ‘‘if we have any problems
we could . . . come to them.’’ Among the drivers Reed was
the ‘‘key’’ speaker.
On July 17 the Union filed a petition for certification. On
July 23 another meeting was held between management and
the drivers. Michael Yanis, a driver, credibly testified that
representatives of management told the employees that ‘‘they
think that a union is not good for us’’ and if the drivers had
any problems they could come to either Lagares or Joseph
Macor, the assistant operations manager. Yanis also credibly
testified that representatives of management were ‘‘asking
drivers about problems,’’ were ‘‘taking down lists of prob-
lems,’’ and said that they would ‘‘try to achieve the best that
they can to solve these problems.’’ Yanis credibly testified
that Reed questioned management about overtime, salary,
working conditions, and vans being properly maintenanced.
William Lindo, another driver, signed a union authoriza-
tion card sometime prior to July 17. He credibly testified that
after he signed the card, Lagares and Macor approached him
in the warehouse and asked him ‘‘what have you heard lately
about the Union,’’ when the union meetings were going to
take place and who was going to attend. Lindo replied that
he did not know.
Yanis credibly testified that beginning in July management
held frequent meetings with the drivers. Representatives of
management would continuously tell the drivers that they felt
that the Union was ‘‘not good for them.’’ Yanis testified that
Reed always spoke up at the meetings, that he was ‘‘very
outspoken about the way he felt’’ and that he would gen-
erally express his views on wages, overtime and discuss why
‘‘we’re being treated unfairly.’’ Similarly, Lindo credibly
testified that at these meetings ‘‘the main person who spoke
up was Derrick Reed,’’ and that the other drivers did not say
much.
On September 4 an evening meeting was held at a local
bar between management and the drivers. John Ovens, a
member of management, did most of the speaking on behalf
of Respondent. Yanis credibly testified that Ovens said that
‘‘they wanted to be given a chance and that they don’t think
the Union’s good for them.’’ Ovens also said that he wanted
to hear the drivers’ problems and ‘‘things that they can work
out with us.’’ Reed told Respondent’s representatives that
‘‘you had your chance, why don’t you give the Union a
chance?’’ Reed further credibly testified that at this meeting
William Brannan, president of Respondent, also told the em-
ployees to ‘‘come to us with your problems.’’ On September
6 a secret-ballot election was held, at which time a majority
of the drivers voted in favor of the Union.
2. Suspension and discharge of Reed
Reed did not work on Friday, September 27. Macor, who
appeared to me to be a credible witness, testified that another
driver, Gregg Edwards, was assigned to Reed’s vehicle on
that day. After inspecting the truck, Edwards told Macor that
he found some newspapers and other items in the cargo area
of the van which had not been delivered. When Reed re-
turned to work on Monday, September 30, Macor and
Lagares spoke to him about this. Reed denied that he left the
material in the van. Either Lagares or Macor then told Reed
that he would receive a written warning. Macor credibly tes-
tified that at this point Reed muttered something to the effect
of ‘‘stupid mother f.’’ Reed then walked into the warehouse
to get his freight and his van. As he was leaving the facility
he asked Lagares and Macor ‘‘if we were racist.’’ They both
answered that they were not.
Reed then started on his route. Lagares credibly testified
that a short time afterward he heard Reed say over the two-
way radio, ‘‘Everybody should watch out. They tried to get
me.’’ Lagares also testified that Reed said over the radio
‘‘they’re all stupid m— f—. I don’t give a f— if they hear
me.’’ Macor corroborated this testimony and testified that he
then instructed the dispatcher to have Reed report back to the
building.
Reed returned to the facility at approximately 9:30 a.m.
Reed testified that Lagares then told him ‘‘I’m suspended
pending a hearing.’’ Reed further testified that later that
afternoon he returned to the warehouse and told Lagares that
when the hearing takes place he would like the Union to rep-
resent him. Reed testified that at this point Lagares told him
that he was terminated. Lagares testified that when Reed re-
turned to the warehouse in the morning he told him that he
was suspended pending disciplinary action up to and includ-
ing discharge. Lagares further testified that Reed came back
to the facility in the early evening and asked him whether
a decision had been made. Lagares replied that a decision
had been made to terminate Reed’s employment effective
immediately. Lagares testified that Reed never asked for a
hearing and was terminated for ‘‘gross insubordination and
threatening and/or abusive behavior’’ and for the ‘‘comments
that he made over the radio.’’ In a letter dated December 13,
written by Anthony Ventiera, vice president, of human re-
sources, it was stated that Reed was terminated for ‘‘his vio-
lation of policy in using profanity on the two-way radio that
was in his van.’’
B. Discussion and Conclusions
1. Solicitation of employee grievances
The complaint alleges2 that at various times during July
and August Respondent solicited employee grievances, and
by so doing, impliedly promised its employees that it would
resolve their grievances if they did not select the Union as
their collective-bargaining representative.
At the meeting between management and the employees
held on July 2 Lagares told the employees ‘‘if we have any
1013TNT SKYPAK, INC.
problems we could . . . come to them.’’ At the meeting be-
tween management and the employees held on July 23 man-
agement representatives asked the drivers about problems
they were having and made lists of the problems. Manage-
ment told the employees that they would try the ‘‘best that
they can to solve these problems.’’ As stated in Enterprise
Products Co., 265 NLRB 544, 549 (1982):
Although making inquiries about employees’ dis-
satisfaction is not unlawful, standing alone, when it is
done in the context of a union organizing campaign of
which the Employer has knowledge and is accompanied
by assurances that methods of rectification of the prob-
lems are under consideration or active study, it becomes
unlawful interference by solicitation of grievances and
conveying an implied promise to better working condi-
tions in order to remove any reason for union represen-
tation.
These solicitations of complaints and grievances were done
during the organizing campaign, both before and after the pe-
tition for certification was filed. In that context, I find that
Respondent impliedly promised its employees that it would
resolve their grievances if they did not select the Union as
their collective-bargaining representative, in violation of Sec-
tion 8(a)(1) of the Act.
2. Interrogations
The complaint alleges that at several times during August
members of management interrogated employees regarding
their activities on behalf of the Union. Lindo credibly testi-
fied that sometime after he signed his union authorization
card Lagares and Macor approached him in the warehouse
and asked him when and where union meetings were going
to take place and who was going to attend the meetings. No
showing has been made that Lindo was an open, active union
supporter. Lindo had signed the union authorization card in
his automobile and, to his knowledge, Respondent was not
aware that he had signed a card.
In Rossmore House, 269 NLRB 1176 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985), the Board required that all the cir-
cumstances involved in an interrogation be examined to de-
termine whether the interrogation tended to restrain, coerce,
or interfere with rights guaranteed by the Act. Among the
factors examined are the background of the interrogation, the
nature of the information sought, the identity of the ques-
tioner, and the place and method of interrogation. Sunnyvale
Medical Clinic, 277 NLRB 1217, 1218 (1985); Raytheon
Co., 279 NLRB 245, 246 (1986). The interrogation was done
by the operations manager and the assistant operations man-
ager. At the time of the interrogation Lindo was not known
by management to be a union supporter. After reviewing all
the circumstances, I believe that the interrogation was unlaw-
ful, in violation of Section 8(a)(1) of the Act.
3. Direction to refrain from speaking on behalf
of the Union
The complaint alleges that in September Lagares directed
employees to refrain from speaking out on behalf of the
Union at employee meetings. Reed testified that in August
Lagares asked ‘‘why in every meeting do I have to speak.’’
Reed replied, ‘‘don’t I have a right to speak, it’s a meeting.’’
Reed conceded that Lagares never told him not to speak at
the meetings. Reed also credibly testified that a week or two
after the election Lagares approached him in the warehouse
and told him, ‘‘I should have never spoken in any of the
meetings, I made a big mistake.’’ The complaint alleges that
Lagares directed its employees to refrain from speaking out
on behalf of the Union. Reed conceded that Lagares never
in fact told him not to speak up at the meetings. As dis-
cussed below while I believe Lagares’ statements are a factor
in considering the reasons for Reed’s discharge, I do not be-
lieve that they constitute an independent violation of Section
8(a)(1) of the Act. Accordingly, the allegation is dismissed.
4. Request for union representation
The complaint alleges that on September 30 Reed re-
quested that a union representative accompany him to an in-
vestigatory interview. I have credited Lagares’ testimony that
on the morning of September 30, when Reed returned to the
warehouse, Lagares told him that he was suspended pending
disciplinary action. I also credit Ventiera’s testimony that the
Company has no procedure by which an employee is given
a hearing before being terminated. I further credit Lagares’
testimony that when Reed returned to the warehouse in the
afternoon of September 30, he asked Lagares whether a deci-
sion had been made. Lagares told him that a decision had
been made to terminate his employment, effective imme-
diately. At that point Reed told Lagares that he was going
to call the Union. I do not find that Reed requested that a
representative of the Union accompany him at an ‘‘investiga-
tory interview.’’ Accordingly, the allegation is dismissed.
5. Discharge of Reed
I have largely credited Macor’s version of the events
which took place on September 30. Macor appeared to me
to be a credible witness and his testimony is for the most
part corroborated by Lagares. His version of the events ap-
pears to me to be more plausible than Reed’s account. I find
that on the morning of September 30 Lagares and Macor
spoke to Reed about several items which were not delivered
and newspapers being left in the van. Either Lagares or
Macor then told Reed that he would receive a written warn-
ing. At this point Reed uttered some profanity and he walked
into the warehouse. Before he left the facility he asked
Lagares and Macor whether they were ‘‘racist.’’ Shortly
afterwards Lagares and Macor heard Reed say over the two-
way radio ‘‘Everybody should watch out. They tried to get
me’’ and ‘‘They’re all stupid mother f—.’’ Reed was then
instructed to report back to the warehouse. When he re-
turned, Lagares told him that he was suspended. Later that
afternoon Reed returned to the warehouse and Lagares told
him that he was terminated effective immediately.
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982) the Board requires that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established the burden shifts to the em-
ployer to demonstrate that the ‘‘same action would have
taken place even in the absence of the protected conduct.’’
Reed’s discharge took place just 3 weeks after the election.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
4 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.
It is clear from the record that Respondent was not in favor
of the Union. The record is also clear that Reed was ‘‘out-
spoken’’ in his support of the Union. I have credited Lindo’s
testimony that Reed was the ‘‘main’’ person who spoke up
at the meetings between management and the employees.
Yanis corroborated this testimony. Indeed, during August
Lagares asked Reed why he has to speak at every meeting
and in September 1 or 2 weeks after the election Lagares
told Reed that he made a ‘‘mistake’’ and should not have
spoken up at the meetings. I imply from this statement that
Respondent was very unhappy with Reed for the role he
played at the meetings. In view of the above, I find that Gen-
eral Counsel has made a prima facie showing that Reed’s
union activities were a motivating factor in his discharge.
Lagares testified that Reed was discharged for ‘‘gross in-
subordination and threatening and/or abusive behavior’’ and
the ‘‘comments that he made over the radio.’’ In a letter
dated December 13 to the New York State Department of
Labor, Respondent stated that Reed was terminated for his
‘‘violation of policy in using profanity on the two-way radio
that was in his van.’’ There was no mention in the December
13 letter of ‘‘insubordination’’ or of ‘‘threatening’’ behavior.
The Board has long expressed the view that ‘‘when an em-
ployer vacillates in offering a rational and consistent account
of its actions, an inference may be drawn that the real reason
for its conduct is not among those asserted’’ Aluminum Tech-
nical Extrusions, 274 NLRB 1414, 1418 (1985); F.W.L.
Lundy Bros. Restaurant, 248 NLRB 415, 428 (1980). Such
an inference is warranted in this proceeding.
I believe that Respondent has not sustained its burden of
showing that Reed was discharged for ‘‘gross insubordina-
tion’’ or for ‘‘threatening’’ behavior. Respondent also con-
tends, however, that Reed was discharged for ‘‘violation of
policy in using profanity on the two-way radio.’’ I credit
Yanis’ testimony that prior to October 4 there had been no
policy regarding the use of profanity over the radio. Indeed
Ventiera conceded on cross-examination that Lagares merely
had spoken to the employees with regard to being ‘‘profes-
sional on the airways.’’ In addition, in uncontroverted testi-
mony, both Yanis and Reed credibly testified that the dis-
patcher, Rooney, used profanity over the radio. Yanis also
credibly testified that prior to Reed’s discharge no driver had
been terminated for the use of profanity. While Rooney re-
ceived a warning, he was not terminated. I find, therefore,
that Respondent has not satisfied its burden of demonstrating
that the ‘‘same action would have taken place even in the
absence of the protected conduct.’’ Accordingly, I find that
by its discharge of Reed on September 30, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By soliciting employee grievances and impliedly prom-
ising its employees that it would resolve their grievances if
they did not select the Union, and by interrogating its em-
ployees regarding their union activities, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Derrick Reed because of his union ac-
tivities, Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act in any other manner
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain action de-
signed to effectuate the policies of the Act.
Respondent having discharged Derrick Reed in violation
of the Act, I find it necessary to order Respondent to offer
him full reinstatement to his former position, or if such posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings that he
may have suffered from the time of his discharge to the date
of Respondent’s offer of reinstatement. Backpay shall be
computed in accordance with the formula in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, TNT Skypak, Inc., Garden City and
Queens, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Soliciting employee grievances and impliedly promis-
ing its employees that it would resolve their grievances if
they did not select the Union as their collective-bargaining
representative.
(b) Interrogating its employees regarding their activities on
behalf of the Union.
(c) Discharging employees for activities protected by Sec-
tion 7 of the Act.
(d) 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 Derrick Reed immediate and full reinstatement to
his former position, or if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges and make him whole
for any loss of earnings, with interest, in the manner set forth
in the remedy section above.
1015TNT SKYPAK, INC.
5 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.’’
(b) Remove from its files any reference to the unlawful
discharge of Reed and notify him in writing that this has
been done and that the discharge will not 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 facility in Queens, New York, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt 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, de-
faced, 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.
IT IS FURTHER ORDERED that those allegations of the com-
plaint as to which no violations have been found are dis-
missed.