Airborne Freight Corp.

National Labor Relations Board - Board Decisions

Jun 2, 1977

229 N.L.R.B. 1141 (N.L.R.B. 1977)

AIRBORNE FREIGHT CORP.
Airborne Freight Corporation and David L. Cook and
Charles Beasley. Cases 10-CA-1 1849-1 and 10-
CA- I 1849-2
June 2, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 29, 1976, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Airborne Freight
Corporation, Atlanta, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
case, heard before me at Atlanta, Georgia, on June 7 and 8
and July I and 2, 1976, involves a consolidated complaint'
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein Act), which, as amended at the
hearing, alleges in substance that during and shortly after
an organizational campaign by Local 728, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein Union or Local 728),
Airborne Freight Corporation (herein Respondent or
Company), interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights, and
I Issued May 4, on two charges filed and served on March 15, 1976.
2 Following the close of the hearing, Respondent filed with me a 13-page
motion to correct the transcript in the particulars therein set forth which
motion I have identified as Exh. X and now make a part of the record. No
opposition to said motion has been received. In most instances, I find the
motion well taken, and therefore grant the same in its entirety, except for 10
items as to which I find the record correct, and accordingly deny the
motion.
229 NLRB No. 172
discharged two employees because of their assistance to
and support of the Union. By answer, Respondent
admitted certain allegations of the complaint, but denied
the commission of any unfair labor practice. For reasons
hereafter more fully stated, I find and conclude that, except
with respect to one incident, the General Counsel has failed
to prove the allegations of the complaint by a preponder-
ance of the evidence.
At the hearing all parties were afforded full opportunity
to introduce relevant and material evidence, to examine
and cross-examine witnesses, to argue orally on the record,
and to submit briefs. Oral argument was waived. Briefs
submitted by the General Counsel and Respondent have
been duly considered. Upon the pleadings, the stipulations
of the parties, the evidence, including my observation of
the demeanor of the witnesses while testifying, and the
entire record in the case,2 I make the following:
FINDINGS OF FACT 3
As its name indicates, Respondent is engaged in the
transportation of goods by air, and for that purpose
maintains terminals at Atlanta, Georgia, and elsewhere in
the United States, where it receives, sorts, and forwards
goods by air or by connecting truck transportation, to the
consignee thereof. In the late summer of 1975, 4 the Union
began a campaign to organize Respondent's employees,
and, on September 17, filed a petition seeking certification
as their collective-bargaining representative. An election
was scheduled for October 25, but a few days before that
date the Union withdrew its petition, apparently with
prejudice, and the election was canceled. The General
Counsel contends that in the campaign, and within a short
period thereafter, Respondent's supervisors made state-
ments to employees which constituted interference, re-
straint, and coercion, and discharged Charles Beasley and
David L. Cook because of their assistance to and support
of the Union. The facts concerning these incidents are now
separately set forth.
A. The Alleged Interference, Restraint, and
Coercion
I. Larry Burnett, who was employed by Respondent
from September 1973 until November 1975, 5 testified that
he participated in the Union's campaign and went with
Cook to the Union's office to deliver authorization cards
signed by a number of employees. According to Burnett,
on the Sunday following this visit, he received a telephone
call from his supervisor, Richard Estes,6 who asked what
Burnett knew about the union activity at the plant, and
3 No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish those
jurisdictional elements. I find those facts to be as pleaded.
4 All dates hereafter mentioned are 1975, unless otherwise stated.
5 There is no contention that Burnett's employment ceased for reasons
proscribed by the Act.
6 For the purpose of this case, Respondent concedes that Estes was a
supervisor within the meaning of the Act.
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he (Burnett) replied that he knew nothing he could tell
Estes. 7
2. Kenneth Feltman was employed by Respondent
from May 1974 until March 1976 and had been active on
behalf of the Union in its campaign to organize the
employees. Feltman voluntarily terminated his employ-
ment, but testified that, just before doing so, he went to
Supervisor Estes and told the latter that he had a job offer
from another employer, and to assist him in making a
decision asked Estes what his future with Respondent
might be. According to Feltman, Estes replied that he
(Feltman) would not get anywhere with Respondent; that
management regarded him as a union instigator; that as
soon as adequate reason to discharge him could be found,
it would do so; and, if Feltman had what he thought was a
good offer, he would be well advised to take it.8
Estes denied that he made any statements of the nature
attributed to him by Feltman. Estes admits that Feltman
discussed with him the acceptance of another job offer and
claims that he told Feltman that the latter had to consider
not only the immediate monetary increase, but what the
situation would be in the future. According to Estes,
Feltman then made a remark to the effect that as the union
movement had fallen through, he felt management was
against him and he probably would not have good
opportunity, and that he told Feltman that it was illegal for
the Company to discriminate against him, and if it was his
desire to belong to a union, he was free to do so.
This conflict in the testimony I resolve by crediting Estes.
I do so because Estes impressed me as the more credible
witness, and Feltman's version of the conversation is, to
say the least, somewhat suspect.
3. David Cook worked for Respondent from November
1974 until his discharge on December 9.9 At the time of the
incident here involved, Cook was weekend operations
manager. In that position Cook had a number of employ-
ees working directly under him; fixed their hours of work;
located replacements for sick employees; granted time off
to employees; interviewed employees who might be
assigned to work the weekend shift and advised Station
Manager Austin, Cook's immediate supervisor, whether he
would accept those employees in his crew; saw that the
employees who worked weekends properly performed their
duties; and on at least two occasions exercised the
authority to reprimand and discipline employees.'0 Cook
signed a card for the Union, and otherwise assisted it in its
campaign.
Cook testified that, during the weekend following the
delivery of the employee authorization cards to the Union,
he was called to the office of Station Manager Austin.
According to Cook, Austin said that he had heard rumors
7 Based on the credited testimony of Burnett, and the admission of Estes
that, suspecting that union activity was in progress. he telephoned Burnett
(although he claimed that it was sometime in October) and asked the latter if
he knew anything about it.
R When this testimony came out, Respondent objected that it was
beyond the allegations of the complaint. The General Counsel's motion to
amend the complaint was granted with the understanding that, if
Respondent did not have adequate opportunity to locate and interview
Estes, who was then no longer employed by Respondent. the General
Counsel would be required to elect whether he wished to abandon his
amendment or submit to a continuance. When it developed that Respon-
dent would be unable to contact Estes for some time, and the General
that the Union was trying to organize, and asked if Cook
knew anything about it; that he replied that 17 cards had
been turned over to the Union, and this was group action
and not that of any individual; that Austin then asked how
he (Cook) felt about the Union, and Cook replied that
while he did not particularly like the Teamsters, if the raise
he was expecting was less than 10 percent, he would vote
for it. According to Cook, Austin then stated that the
Company had a policy of not promoting from the Union to
management positions, which would affect Cook's career,
because when it became necessary to fill a management job
Respondent would hire from the outside before it would
promote from among its employees who were union
members. According to Cook, he made no reply.
Austin denied that he had any conversation with Cook
regarding the latter's union activity, or what effect such
activity might have on his career with the Company.
Indeed, Austin claimed that he was not then aware that
Cook had engaged in any union activity.t"
4. Charles Beasley was an employee of National
Uniform Service, whose employees are represented by
Teamsters' Local 528. For about a year prior to October
1975, Beasley also worked as a part-time dockman for
Respondent, working virtually a daily schedule from 6 to
10 p.m. During his work hours for Respondent on
September 20, Beasley learned of the union campaign at
Respondent from a fellow employee. Beasley testified that
later that evening Station Manager Austin came to the
dock and appeared quite upset. According to Beasley, he
asked Austin what was wrong and commented, "it isn't
because Teamsters are coming in?", and that Austin
replied, "yes, a petition was filed yesterday," adding that he
was going over to the Ford Distribution Center 2 and talk
to them, so that he would get to the bottom of it. Beasley
testified that during this conversation he told Austin that if
it came to an election, he (Beasley) would support the
Company.
Austin admits that Beasley talked with him about the
Union on this occasion, but denied that he asked Beasley
any question or made any statements concerning the
Union. According to Austin, he merely listened to the
statements Beasley volunteered and made no reply. 3
5. Sometime about early to mid-October, Beasley
claims to have had a conversation with Night Operations
Manager Piper, an admitted supervisor, in the latter's
office. According to Beasley, he was summoned to Piper's
office and told by the latter that things were going to
tighten up if the Union came in; that part-time employees
would be the first to go, and the Company would no longer
employ part-time employees if the Union came in; that
employees would not be allowed to take breaks, or to have
Counsel elected to stand on his amendment, a continuance was granted to
enable Respondent to interview Estes and arrange for his testimony.
9 The circumstances surrounding Cook's discharge are detailed in the
section hereof dealing with the alleged 8(aX3) violations.
'0 Respondent contends, but the General Counsel denies, that Cook was
a supervisor. The issue is hereafter resolved.
H I find it unnecessary to resolve this conflict, because in my view the
issue can be disposed of on other grounds.
12 An area of Respondent's dock which handles Ford Motor Company
freight.
13 This credibility issue is hereafter disposed of.
1142
AIRBORNE FREIGHT CORP.
cokes, as had been the practice theretofore; and that
everything would just have to tighten up.
Piper denied that he ever had any discussion with
Beasley of the nature attributed to him by Beasley.'4
B. The Alleged Discriminatory Discharges
1. Charles Beasley
As heretofore stated, Beasley's regular employment was
with National Uniform Service, but from September 1974,
until his discharge on October 28, he worked regularly
about 4 hours a day for Respondent. In late October, the
employees of National, including Beasley, went on strike
against National in support of contract terms. The first day
of that strike was October 27. During the preceding week,
and in anticipation of the strike at National, Beasley asked
Station Manager Austin if Respondent would provide him
with additional hours of work for the duration of the strike
at National. Austin agreed that beginning Monday,
October 27, Beasley could work full time.
According to Beasley, on October 27, he reported for
work about noon, and worked until shortly before 4 p.m.,'5
leaving at that time to attend a union meeting at a point
near National's premises, which is not too distant from that
of Respondent. While at the meeting, which he testified he
left between 4:20 and 4:30 p.m., he admittedly had two or
three 6-ounce cups of beer, then stopped at a McDonalds
where he had a Big Mac and a cup of black coffee. He
thereafter went to his home where he arrived about 5:30
p.m., and after joining his wife in a cup of coffee left for
Respondent's premises where he claims he clocked in at
about 6:15 p.m. Beasley then attended a short meeting
addressed by Respondent's director of personnel, who
discussed the upcoming election, and then returned to
work. His first task was to complete the loading of a truck
that employee McClama was to drive to the airport. In the
process of doing this, according to Beasley, some of the
freight which had been stacked on a forklift by someone
else fell off and he restacked it. While doing this Beasley
admitted that he was asked by McClama if he had
anything to drink that afternoon, and that he responded by
saying that he did not know what McClama was talking
about. Shortly thereafter Beasley was informed that he was
wanted in Station Manager Austin's office, and when he
arrived Beasley admits that he was asked by Austin if he
(Beasley) had anything to drink that day, and that he
replied that he had a couple of drinks. Austin told Beasley
14 This credibility issue is also disposed of in a subsequent portion of this
Decision.
i' Beasley's timecard for October 27, shows that he clocked in at 10:56
a.m., clocked out at 4:16 p.m., clocked in again at 5:38 p.m., and clocked
out for the day at 7:44 p.m.
16 The record shows that Respondent promulgated and posted by its
timeclock a set of rules governing employee conduct. Rule A8 provides:
using or possessing intoxicants or narcotics while on duty or attempting
to work while under the influence of either. (This included lunch-hour
period also.)
Both Station Manager Austin and Day Operations Manager Upchurch
testified that the above-quoted rule was adopted as a safety measure and
applied to those employees who drive trucks or handle mechanical
equipment. There is no contrary testimony. For this reason, I regard as
that drinking any alcoholic beverage during duty hours was
strictly forbidden,16 and directed Beasley to clock out and
return the next day when he would be told what action
Respondent would take. The following day Beasley was
told that under the circumstances Respondent had no
alternative but to discharge him.'7
The testimony of Austin, Piper, and Smith is substantial-
ly in accord. The substance of their testimony is that two
employees reported to Smith that they smelled alcohol on
Beasley. Smith, after observing that Beasley acted belliger-
ently, and also after smelling alcohol on him, reported to
Piper that he smelled alcohol on Beasley's breath and that
the latter was "driving the hell out of the forklift." Piper in
turn told this to Austin, who directed Piper to personally
investigate the facts and, if he found the allegation to be
true, to send Beasley in to see him. Piper went to the dock
to observe Beasley, and in a few minutes concluded that
the latter was driving the forklift "much too fast for
safety;" on one occasion started the forklift so fast that the
freight on it toppled to the floor; that Beasley stopped and
reloaded the freight, and when he started up again he came
around a conveyor so close that he almost struck one of the
dockworkers. Piper then went to Beasley and told him to
get off the forklift, and that getting the job done could not
justify possible injury to the dock employees, and sent
Beasley to Austin's office. According to Piper, while
talking to Beasley he smelled alcohol on the latter's breath.
Austin testified that, when Beasley came to his office, he
asked the latter if he had been drinking, and that Beasley
admitted that while at lunch he "had a couple of beers."
Dock employee Adams also testified that he observed that
on the occasion in question Beasley was more talkative
than usual and did not seem to be able to work as he
normally did; that he observed Beasley drop the load of
freight in the aisle across from him and shortly thereafter
back the forklift into a steel beam that supports the loading
dock. Adams also testified that he heard dockman
McClama, who observed the foregoing, ask Beasley
whether the latter had been drinking, and that Beasley
replied that it was none of his business.
Although Beasley admits that he had the two or three
cups of beer between 4 and 4:30 that afternoon and claims
that he consumed no other alcoholic beverage that day, the
burden of his testimony is that consumption of the beer he
drank had no effect on his ability to perform his work. Not
only is the uncontradicted testimony of Piper, Smith, and
Adams to the contrary, but, upon consideration of
irrelevant to the issue the testimony of Cook that, on an occasion more than
a year ago, he detected alcohol on the breath of Piper, and that dunng the
last week of May 1976 he observed Piper and Wallace drinking beer at
Lum's. When Cook later called the plant to find out if Piper was working, he
found out that the latter was there, but only to make preparation for the
annual picnic. There is no evidence as to whether Wallace was at work or
not. Not only is there a complete lack of evidence that any official of
Respondent was aware of the facts, but neither Piper nor Wallace was
charged with the duty of operating mechanical equipment. Accordingly, the
rule had no application to them.
i" As a result of a discussion between Austin and District Manager Fite,
a meeting was attended by Austin, Night Operations Manager Piper, and
Dock Foreman Smith to decide what action to take against Beasley. Their
decision was that to avoid establishing a precedent that might later prove
unfortunate Beasley had to be terminated, notwithstanding his pnor
satisfactory work record, and he was notified accordingly.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beasley's entire testimony, I conclude that I cannot credit
him.'8
C. The Discharge of David L Cook
Cook worked for Respondent from November 1974,
until his discharge on December 9, 1975. Cook started as a
dockworker, then moved to the computer system, then as a
rater router, night office supervisor, then to weekend
operations manager, which job I have found was superviso-
ry within the meaning of the Act, and in later September
was assigned as a transfer agent during the day shift, a
nonsupervisory position, which he held at the time of his
discharge. The evidence shows that Cook signed a card for
the Union and accompanied other employees to the union
office to deliver the authorization cards which became the
basis for the representation petition the Union filed.
According to Cook, he received no warnings or reprimands
regarding his work prior to the Union's campaign, but
thereafter received two, both dated September 30, 1975.'9
On cross-examination Cook admitted that he received from
and discussed with Austin a report evaluating his job
performance which listed some seven areas in which his
work needed improvement, and concluded by stating, in
substance, that improvement in these areas would have to
be shown if Cook was to achieve the goals he sought with
the Company. Cook did not deny the testimony of Austin,
which I credit, that he told Cook that the evaluation was
not a good one, and that he would have to show
improvement in his performance.
On Monday following the withdrawal of the Union's
representation petition, Cook, while in the office of Station
Manager Austin on the other matters, asked the latter if his
union activity would hurt his chances with the Company.
Austin replied that he did not think so. Cook then asked
how District Manager Fite felt about it. Austin stated that,
knowing Fite as he did, he did not think Fite would hold it
against him. Cook replied that he wanted to make certain,
18 As an example, when recalled on rebuttal, Beasley was shown his
timecard for the week beginning October 27, and which bore a signature
reading "Charles S. Beasley, Jr.," and testified that the card was not his,
saying that, although the signature there "looked like" his, and was "roughly
my signature," that he believed "somebody could've copied my name
enough to sign my name" to it. When pressed to state whether he denied
that the signature on the card was his, Beasley at first stated that "I don't
think I make an 'S' that way," and then denied that the signature was his.
Beasley admitted, however, that he signed Resp. Exhs. 22 and 23 which are
the Federal and Georgia information forms for income tax withholding
purpose. My comparison for those documents with the timecard involved
convinces me and I accordingly find that the same person signed all three
documents. Why Beasley thought it necessary to deny his signature on the
card is not clear unless he felt that the card which shows that he returned to
work at 5:38 somehow impinged upon his prior testimony that he returned
at or about 6:15. The fact remains, however, whatever his reason might have
been, that he did deny it, and this speaks volumes with respect to the
confidence one can have in the reliability of his testimony. Additionally, in
an effort to show that Respondent had permitted other employees to work
after consuming alcoholic beverages, Beasley testified that on an occasion in
the summer of 1975, dock employee McClama admitted to him that he had
been out all night with his girl friend and that the two of them had
consumed a gallon or half gallon of Vodka, and that he could smell the odor
of alcohol on McClama. Beasley's testimony in this regard is difficult to
believe in view of the Regulation of the Bureau of Alcohol, Tobacco and
Firearms (27 CFR 5.22(ii)) which defines Vodka as:
. . neutral spirits so distilled, or treated after distillation with charcoal
or other materials as to be without distinctive character, aroma, taste or
color.
and asked Austin to discuss the matter with Fite, and let
him (Cook) know how Fite felt. Austin promised to do so
and advised Cook of the result. The following Monday,
Cook was called to Austin's office and told by the latter
that effective immediately he (Cook) was being transferred
from his job of weekend operations manager to transfer
agent on the day shift.20 Cook asked if his union activity
had anything to do with the decision to transfer him.
Austin assured Cook that it did not. According to Cook, he
assumed the duties of a transfer agent at that time and
from then until his discharge on December 9 his work was
never criticized or questioned in any way.
On December 9, according to Cook, he again went to
Austin and asked whether his union activity had hurt him
with the Company. Austin replied that it had not, but he
would check with Fite, and let Cook know what the latter
said. Cook gave no testimony as to his reasons for putting
this question to Austin at this time and the record is
otherwise silent on this point. Later the same day Cook was
called to the office of Day Operations Manager Upchurch
and told by the latter that, based on an evaluation of his
performance, it had been decided to terminate him
effective that day. The termination notice supplied Cook
stated the reasons for his discharge as "poor performance
and poor attitude." Admittedly Cook's only reply was
"Okay, I'll see you in court."
Both Austin and Upchurch, who made the decision to
terminate Cook, agree that two incidents brought about
that decision. Upchurch in particular testified to a number
of problems he had with Cook's performance from the time
the latter came under his supervision after he was made
transfer agent. Upchurch credibly testified that in a
number of instances Cook failed to pouch and label2
packages coming on the dock during his tour of duty and
left this work for the night crew to perform, which
unnecessarily burdened the latter's work and in many
instances delayed movement of the freight. Upchurch
It is also noted that there is no evidence showing that any management
official of Respondent was aware of this incident.
19 One of these related to the allegation that sufficient attention was not
being given on weekends to communications over the message center.
Cook's reply was that on Sundays he processed only those messages that
were sent on Sundays and required an answer the same day, and that this
was in accordance with instructions given him. The other was signed by
District Manager Fite, stating that on Sunday, September 21, Cook was I
hour and 20 minutes late reporting for work, that by reason thereof two
employees had to wait outside for that period of time, and that Cook failed
to call to advise that he would be late. The memo concluded with the
statement that such action was inexcusable and in the future would not be
tolerated. Cook's response was that on Sundays the workday started at 8
a.m. He admitted that he was 20 minutes late on the day in question because
he had overslept; that no one could have waited an hour and 20 minutes
because he was at the plant by 8:20. He gave assurance that this would not
happen again and stated that he did not call to advise that he would be late
because he knew that he would be at the plant before anyone else could get
there.
20 Transfer agent is a nonsupervisory position.
21 This refers to Respondent's practice of attaching a label to each
package in a shipment to facilitate the movement and identification of each
package passing over its dock. The shipping papers, which the consignee
signed when delivery was made, were attached to one of the packages of a
multipackage shipment and were returned to and retained in Respondent's
files as proof of delivery.
1144
AIRBORNE FREIGHT CORP.
credibly testified, and Cook did not deny, that he discussed
with and explained this problem to Cook, and that the
latter had little to say regarding it. According to Upchurch,
his discussion with Cook led him to conclude that Cook's
attitude was that he would do only what he was told to do,
or what he felt his job demanded.
Upchurch referred to another incident involving a roll of
cloth consigned to Butler Manufacturing Company in
Butler, Georgia. The shipment had been delivered to
Butler, but was refused by the latter because the wrapper
had been torn and the cloth was soiled, and it was returned
to Respondent's dock where it stayed for several days.
After some discussion between Respondent's claim repre-
sentative and the consignee, the latter agreed to accept the
shipment if it could get it the following day. Upon receipt
of this information, Upchurch explained the situation to
Cook, particularly that the consignee needed the package
the next day, and directed Cook to prepare the necessary
papers and see that the shipment went forward that day.
When Upchurch got out of a meeting about 7 p.m. that
day, he found that Cook had left for the day and the
shipment was still on the dock. Checking the office,
Upchurch was unable to find that any papers had been
prepared for its movement. Accordingly, Upchurch pre-
pared the papers himself and prevailed upon a trucking
firm to pick the shipment up that night. The following day,
Upchurch asked Cook why he had not prepared the proper
papers on the shipment to Butler Manufacturing and
arranged for the shipment to go forward the preceding day,
as he had been specifically directed to do. Cook at first
claimed that he had done so, but when Upchurch insisted
that he searched for but was unable to find them, and that
he personally prepared the papers and arranged for the
shipment to go forward the preceding night, Cook made a
search of the office himself, but was unable to find the
papers he claimed to have prepared. On December 4,
Upchurch sent a memorandum to District Manager Fite
setting forth the above and pointing out that, had not the
situation been caught and corrected by him, Cook's action
might have cost the Company a customer.
Testifying in chief, the only testimony Cook gave
regarding this incident was that the shipment was sent out
on a truck line that did not serve Butler, Georgia, and for
that reason was returned to Respondent's dock and he then
forwarded it again on a truck line that did serve Butler and
it was delivered. Recalled on rebuttal, after hearing the
testimony of Upchurch, Cook gave no testimony concern-
ing this incident. I can only conclude that he failed to deny
the testimony of Upchurch because he could not truthfully
do so.
The other incident which Austin assigned for the
termination of Cook involved a freight bill which came into
Atlanta without a prefix which is used to enter the
computer should it become necessary to trace a shipment
or obtain other information regarding it. The freight bill
showed that the shipment originated at Tecumseh, Michi-
gan, through Detroit, for which the proper prefix is DTW,
and was consigned to a firm in Panama City, Florida. The
freight bill was handled by Cook, who inserted the prefix
MSP (the prefix for Minneapolis). When a request for
information on this shipment came in, and the information
on the face of the bill was fed into the computer, the
request was rejected because of the incorrect prefix. After
some delay the fact that the prefix was erroneous was
discovered and the necessary corrections were made. With
the correct prefix, the computer provided the information
sought. As a result of this incident, Night Operations
Manager Piper sent a memorandum to Day Operations
Manager Upchurch, dated December 4, with a copy to
District Manager Fite, outlining the events of this incident
and the problems it caused. The memorandum concluded:
When the alert is generated with the incorrect origin, as
you know, it causes problems for tracing procedures
and even further it causes (or can cause) immense
problems in Accounting and Claims in the event that
future research is needed. Pls. advise your people to
scrutinize such small items as this, as they can cause
major problems in the long run.
When testifying during the General Counsel's direct case,
Cook gave no testimony concerning this incident. Called
on rebuttal, his testimony on direct consisted only of an
explanation of the fact that it was not essential to have the
correct prefix or, indeed, to have any prefix at all in order
to trace a shipment, and that in performing his duties he
had a number of instances where he had to trace a
shipment when he had an incorrect prefix and, in some
instances, no prefix at all. Cook explained that the proper
prefix could readily be obtained by checking a directory
providing the prefix for all airports, and the airport of
origin appeared on the face of the waybill. Although Cook
claimed that he was not sure that it was he who made the
mistake in question, he did not deny that he did so, and did
admit that the initials DC on the airbill, were his.
Following these incidents Upchurch talked with Austin
telling the latter that he had tried to work with Cook, but
that the latter just did not do his part. Upchurch told
Austin about the Butler Manufacturing incident, referred
to Piper's memorandum to Fite regarding the incorrect
prefix on the airbill, and recommended that Cook be
terminated. Austin said that the matter had to be discussed
with Fite before any action could be taken, which was done
the following day. Fite approved the recommendation, and
Cook was terminated on December 9.
Contentions and Conclusions
A. The 8(a)(1) Allegations
I. I find and conclude that Respondent violated
Section 8(a)(1) of the Act by Estes' admitted inquiry of
Burnett as to what the latter knew about the Union.
Interrogation for the purpose of ascertaining the union
attitudes and sympathies of employees, without adequate
assurance against reprisal which were not given in the
instant case, is inherently coercive, constituting interfer-
ence with the statutory rights of employees, and hence
violates Section 8(a)(1) of the Act. Long Island Airport
Limosine Service Corp., 191 NLRB 94 (1971), enfd. 468
F.2d 292 (C.A. 2, 1972); J.D.B., Inc., d/b/a Jim Bradley's
Bucks Co. Country House, 223 NLRB 1163 (1976). The fact
that Burnett reacted as he did to the question put to him by
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Estes indicates that he was fearful of disclosing to Estes his
activities on behalf of the Union.
2. Having credited Estes' version of his conversation
with Feltman in March 1976, it fol!ows that the General
Counsel has failed to prove by a preponderance of the
evidence that the incident involved constituted a violation
of Section 8(a)(1) of the Act in that regard.
3. 1 also find and conclude that the General Counsel
has failed to prove by a preponderance of the evidence that
the conversation between Cook and Austin, even accepting
Cook's version thereof, violated Section 8(aXl) of the Act.
The evidence clearly establishes, as I have found, that at
the time of this incident Cook was a supervisor within the
meaning of Section 2(13) of the Act and, hence, was not an
"employee" within the meaning of Section 2(3) or 8(a)(1) of
the Act. The proscription of Section 8(a)(1) of the Act
going only to that interference, restraint, and coercion
which is directed at "employees," it follows that the
statements Austin allegedly made to Cook, the latter being
a supervisor, did not violate Section 8(a)(l) of the Act.
Although the General Counsel does not argue that the
evidence fails to establish that Cook was a supervisor, he
nonetheless urges that the incident violated Section 8(a)(1)
of the Act. His brief does not provide the theory for that
position. The contention appears to be based on the
premise that because Respondent included Cook on the
Excelsior list it provided in the representation proceeding,
it is somehow estopped from asserting in this proceeding
that Cook was a supervisor. General Counsel cites no
authority to support his contention, and my independent
research has not revealed the existence of such authority.
Although the Board has held that, under certain circum-
stances, employer action directed at a supervisor may
violate Section 8(a)(1), such a finding has been limited to
two types of cases: (1) where the supervisor is disciplined
for having testified in a Board proceeding brought to
vindicate employee rights under the Act, Oil City Brass
Works, 147 NLRB 627 (1964); Better Monkey Grip
Company, 115 NLRB 1170 (1956); and (2) where the
supervisor is disciplined for refusing to assist the employer
in committing unfair labor practices. Transitron Electronic
Corporation, 129 NLRB 828 (1960); Talladega Cotton
Factory, Inc., 106 NLRB 295 (1953); Brookside Industries,
Inc., 135 NLRB 16 (1962). In both types of cases, the
Board's theory in finding a violation is that such conduct
on the part of an employer had a clear and direct impact
on the Section 7 rights of "employees," and obviously
tended to impinge on the exercise of such rights. Great
Lakes Towing Company, 168 NLRB 695, 702 (1967). Where
the employer's conduct directed at a supervisor falls in
neither of the two aforementioned categories, as in the case
here, no violation of Section 8(a)(1) of the Act occurs. Karl
Kristofferson and Sigvold Kristofferson, Co-partners d/b/a
United Painting Contractors, 184 NLRB 159 (1970).
Accordingly, I find and conclude that the General Counsel
failed to prove that the incident involved violated Section
8(a)(1) of the Act, and dismissal of this allegation of the
complaint will be recommended.
22 Whether adoption of the rule was wise or unwise or whether it was
perhaps unduly broad is, of course, not an issue here. The Board's only
interest is that rule was not disparately applied, or seized upon in
4 and 5. With respect to both of these incidents, I
likewise find and conclude that the General Counsel has
failed to prove a violation of the Act by a preponderance of
the evidence. As indicated in the section hereof setting
forth the facts regarding the alleged 8(a)(3) violations,
Beasley did not impress me as a witness whose testimony I
could accept with confidence in its reliability. As Austin
and Piper both denied the testimony of Beasley regarding
the statements they allegedly made to him, and as I do not
credit Beasley's testimony in that regard, it follows that the
General Counsel has failed to prove those allegations of his
complaint, and I shall recommend that said allegations be
dismissed.
B. The 8(a)(3) Allegations
1. The Beasley discharge
The facts surrounding Beasley's discharge, as heretofore
detailed, are in the main undisputed. That Beasley
consumed a quantity of beer during the approximately I
hour and 20 minutes he was absent from Respondent's
dock for his evening break is admitted. That Beasley's
action in this regard violated Respondent's work rules,
there can be no doubt; he plainly undertook to work after
having partaken of alcoholic beverages. The issue then
boils down to whether Respondent's motive in discharging
Beasley was its good-faith effort to enforce a rule of
employee conduct,22 or whether it seized upon the rule, in
circumstances that it would not ordinarily have done so, in
order to discriminate against Beasley because of his
assistance to and support of the Union, and thus rid itself
of a union adherent. The question is, therefore, one of
motive, which must be determined upon consideration of
all the evidence. My review of the entire record convinces
me, and I therefore find and conclude, that Beasley was
discharged for cause; namely, his admitted consumption of
intoxicants during his duty hours. I reach this conclusion
upon the totality of the following considerations:
I. Although Beasley had worked for Respondent since
September 1974, Respondent knew that this was part-time
employment, and that Beasley's regular employment was
with National Uniform Service, and that he was a a
member of Teamsters Local 528, which represented
National's employees. Thus Respondent was well aware of
Beasley's union membership during the entire period of his
employment.
2. The weekend prior to Beasley's discharge, the latter
told Station Manager Austin of the impending strike at
National and obtained Austin's permission to work a
greater number of hours for Respondent for the duration of
that strike. If Respondent had any desire to retaliate
against Beasley for his union activity, such permission
would hardly have been granted.
3. Before Beasley was discharged, Respondent knew
that Local 728 had withdrawn its representation petition
and had no reason to fear that Beasley's vote might be in
favor of the Union.
circumstances for which the employee would not ordinarily have been
discharged, in order to discriminate against Beasley because he supported a
union.
1146
AIRBORNE FREIGHT CORP.
4. The General Counsel's attempt to show that Respon-
dent knowingly permitted other employees to work after
having consumed intoxicants does not stand up under
scrutiny. The evidence so relied on by the General Counsel
is that given by Beasley and Cook. I have heretofore
indicated (fn. 17, supra) that I do not credit Beasley, stating
my reasons therefor. Cook's testimony likewise fails to
support the General Counsel's contention in this regard
(see fn. 15, supra).
Accordingly, I shall recommend that the complaint
herein, to the extent that it alleges that Respondent
discriminatorily discharged Charles Beasley, be dismissed.
2. The discharge of David Cook
Upon review of the entire record, I am convinced and
therefore find and conclude that, in the case of David
Cook, the General Counsel has likewise failed to prove by
a preponderance of the evidence that, in discharging Cook,
Respondent was motivated by his assistance to or support
of the Union. I reach this conclusion basically for two
reasons.
To begin with, the evidence summarized above shows
that in the late summer and early fall of 1975, Cook was
employed in a supervisory capacity and while so employed
he was given a merit review in August which stated that his
performance was deficient in certain respects and that he
had to show improvement in his work. In late September,
after Cook told Austin, pursuant to the latter's inquiry, that
the activity on behalf of the Union was group action and
not that of any individual, Cook was transferred to the
nonsupervisory job of transfer agent, in which position he
remained until terminated on December 9. Although Cook
claimed that except for the two memoranda dated
September 30, which he received and to which he replied,
he was never criticized for his work, he did not deny the
testimony of Upchurch and Piper regarding his failure on
numerous occasions to pouch and label shipments, leaving
that work for the night shift and his failure to comply with
the direct order of Upchurch, that the shipment to Butler
go forward that day. Although Cook testified that he was
not certain that it was he who made the error regarding the
prefix on the airbill, I must conclude, absent clear evidence
to the contrary, that he did so, in view of his admission that
his initials appear on the document. In view of the fact that
Cook's activity on behalf of the Union, all of it occurring
while he was a supervisor, was rather minimal, the length of
time that elapsed between that activity and time of his
discharge, at which time the Union's petition had been
withdrawn and all activity on its part had ceased, and the
rather strong evidence that Cook failed on a number of
occasions to properly perform his duties, I must and do
find and conclude that Respondent's conclusion that Cook
failed to properly perform his duties, and not his activities
on behalf of the Union, was the motivating cause for his
termination. Whether Respondent acted wisely or unwisely
in making its decision in that regard is not an issue;
dispositive of the case is the fact, as I have found, that
Respondent's motive for terminating Cook was not his
union activity.
Secondly, during the entire union campaign and Cook's
participation in it, the latter was a supervisor, and it was
not until after the Union withdrew its petition in October
that Cook's status changed to that of an "employee,"
entitled to the protection of the Act. While Cook was a
supervisor, Respondent was free to discharge him even for
his union activity, except in the limited areas delineated
above, and which do not apply to the facts of this case. If
Respondent in fact decided to terminate Cook because of
his union activity it strains credulity to believe that
Respondent would have passed up the opportunity to do so
when Cook was a supervisor, and the discharge would not
have violated the Act, but wait and within the relatively
short period of 6 weeks thereafter, when the discharge
would be unlawful, terminate Cook because of his union
activity.
Accordingly, I shall recommend that the complaint
herein, to the extent that it alleges that Cook's discharge
was discriminatory, be dismissed.
Upon the foregoing findings of fact, and the entire
record in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 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 Estes' interrogation of Burnett as to what the
latter knew about the Union, Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act, and thereby
engaged in, and is engaging in, unfair labor practices
proscribed by Section 8(aX 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Except to the extent set forth in Conclusion of Law
3, above, the General Counsel has failed to establish by a
preponderance of the evidence that Respondent engaged in
any conduct alleged in the complaint, as amended, to
constitute a violation of the Act, and with respect to all
such allegations said complaint should be dismissed.
THE REMEDY
Having found that Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, I recommend that
Respondent should be required to cease and desist from in
any other manner interfering with, restraining, or coercing
its employees in the exercise of their Section 7 rights.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 23
Respondent Airborne Freight Corporation, Atlanta,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees regarding their membership
in, sympathies for, or activities on behalf of Local 728,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization of its employees.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist a 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 other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at its premises in Atlanta, Georgia, copies of the
attached notice marked "Appendix." 2 4 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees 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.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that, except to the extent herein
specifically found that Respondent violated the Act, all
allegations of the complaint, as amended, are hereby
dismissed.
23 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.
24 In the event that the Board's 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 hearing in which all parties had the opportunity to
present their evidence, it has been decided by the National
Labor Relations Board that we violated the National
Labor Relations Act, and we have been ordered to post this
notice. We intend to carry out the order of the Board and
abide by the following:
Section 7 of the Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do any or all these things.
WE WILL NOT interrogate our employees regarding
their membership in, sympathies for, or activities on
behalf of Local 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
WE WILL NOT interfere with you in the exercise of the
aforementioned rights.
All our employees are free to become or remain a
member of Teamsters Local 728, or not to become or
remain a member of that or any other union.
AIRBORNE FREIGHT
CORPORATION
1148