Alliance Beverage Distributing Co.

National Labor Relations Board - Board Decisions

Feb 15, 2002

337 N.L.R.B. 386 (N.L.R.B. 2002)

386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alliance Beverage Distributing Company, LLC and
John Markiewicz. Case 28–CA–16900
February 15, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On September 14, 2001, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Alliance Beverage Distribut­
ing Company, LLC, Phoenix, Arizona, its officers,
agents, successors, and assigns shall take the action set
forth in the Order except that the attached notice should
be substituted for that of the administrative 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi­
ties.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d (3rd
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall substitute a new notice in accordance with our recent de­
cision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
WE WILL NOT discharge, issue an unwarranted written
warning, or otherwise discriminate against any of you for
supporting the Transport, Local Delivery and Sales Driv­
ers, Warehousemen and Helpers, Construction, Mining,
Motion Picture and Television Production State of Ari­
zona, Teamsters Local Union No. 104, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, or
any other union, or for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer John Markiewicz full reinstatement to his
former job or, if that job no longer exists, to a substan­
tially equivalent position, without prejudice to his senior­
ity or any other rights or privileges previously enjoyed.
WE WILL rescind the unwarranted written warning is-
sued to John Markiewicz.
WE WILL make John Markiewicz whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharge and written warning issued to John
Markiewicz and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the unlaw­
ful discharge and written warning will not be used
against him in any way.
ALLIANCE BEVERAGE DISTRIBUTING COMPANY,
LLC
Sandra L. Lyons, for the General Counsel.

Steven G. Biddle, Phoenix, Arizona, for the Respondent.

DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu­
ant to notice, I heard this case at Phoenix, Arizona, on July 11
and 12, 2001. John Markiewicz, an individual (Markiewicz or
Charging Party), filed an original and an amended unfair labor
practice charge in this case on December 4, 2000,1 and January
4, 2001, respectively. Based on that charge as amended, the
Regional Director for Region 28 of the National Labor Rela­
tions Board (Board) issued a complaint on February 26, 2001.
The complaint alleges that Alliance Beverage Distributing
Company, LLC (Company or Respondent), violated Section
8(a)(1) and (3) of the National Labor Relations Act (Act). The
Respondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices.
1 All dates are in 2000 unless otherwise indicated.
337 NLRB No. 49
ALLIANCE BEVERAGE DISTRIBUTING CO. 387
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi­
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record,2 my consideration
of the briefs filed by counsel for the General Counsel and coun­
sel for the Respondent, and my observation of the demeanor of
the witnesses, I now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is an Arizona corporation, with an office and place
of business in Phoenix, Arizona, where at all times material
herein it has been engaged in the business of wholesale liquor
distribution; and that during the 12-month period ending De­
cember 4, 2000, the Respondent, in the course and conduct of
its business operations, purchased and received at its Phoenix
facility goods valued in excess of $50,000 directly from points
outside the State of Arizona.
Accordingly, I conclude that the Respondent3 is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material, Transport, Local Delivery and Sales Drivers,
Warehousemen and Helpers, Construction, Mining, Motion
Picture and Television Production State of Arizona, Teamsters
Local Union No. 104, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (the Union), has been a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The complaint alleges the Respondent issued Markiewicz an
undeserved and unwarranted written warning on or about June
6, and, thereafter, discharged him on June 13. It further alleges
that the Respondent took this action because Markiewicz, a
union steward, concertedly complained to the Respondent re­
garding, among other matters, its changes in employee starting
times, and its drug testing policies and practices. Counsel for
the General Counsel also contends that Markiewicz’ repeated,
vocal support for the Union generally and for improved wages,
hours, and working conditions caused the Respondent to single
him out for disparate treatment and discipline.
The Respondents’ answer denies the commission of any un­
fair labor practice and affirmatively alleges legitimate business
reasons, rather than union or protected concerted activity, moti­
vated the discipline it imposed on Markiewicz. Specifically,
the Respondent claims that Markiewicz’ written warning re­
sulted from his failure to abide by the company policy requiring
2 The General Counsel’s unopposed motion to correct the record,
dated August 16, 2001, is hereby granted and received into evidence as
GC Exh. 39.
3 In its present form, the Respondent is the result of a number of
mergers and acquisitions.
employees to call with an explanation when absent from work.
The Respondent further alleges that it subsequently fired
Markiewicz for a violation of another company policy, leaving
work without permission. The Respondent denies any disparate
treatment of Markiewicz.
B. The Facts
Markiewicz, first employed by the Respondent on September
17, 1981, worked continuously thereafter for nearly 19 years,
until his discharge on June 13, 2000. At all relevant times, the
Respondent classified him as either a warehouseman or a lead
warehouseman. Pursuant to the parties’ collective-bargaining
agreement,4 the Union appointed Markiewicz as a job steward
on May 28, 1998, and notified the Respondent of this appoint­
ment. He held that position until his discharge.5 Although the
Respondent admits Markiewicz engaged in some union activ­
ity, it argues, contrary to the General Counsel’s principal the­
ory, that he was not a particularly active steward. However, the
record evidence clearly establishes the Charging Party’s exten­
sive union and protected concerted activity.
Markiewicz actively supported the Union or actively en-
gaged in union activity even before he became a job steward.
For example, as early as June 1997, he attended a contract rati­
fication meeting to vehemently oppose ratification. To exhibit
his outspoken opposition, he carried a “monkey wrench” to the
meeting. When discussions centered on a proposed contract
article that he opposed, he held his wrench aloft and yelled
“monkey wrench, monkey wrench.” Forty or 50 union mem­
bers attended this meeting; and in later years four became su­
pervisors. He and most other employees thereafter engaged in
a 1-week strike over this contract dispute.
Following his appointment as steward, Markiewicz’ pro­
tected activity increased. In April 1999, when Markiewicz
served as a lead warehouseman as well as steward, he spoke to
supervisor Jim LaDune about complaints from employees that
LaDune yelled at, and harassed them. This exchange degener­
ated into a heated and inconclusive argument between LaDune
and Markiewicz as to whether the employees had been talking
rather than working.
In the same month, Markiewicz began voicing employee
complaints about overtime to second shift supervisor Joe
Molnar. These complaints pertained to employee dissatisfac­
tion with the starting time for the weekend overtime that the
Respondent implemented in April 1999. This added overtime
continued over the course of the next 6 months. Initially volun­
tary, the overtime became mandatory in June 1999. Over the
course of this 6-month period, Markiewicz complained to
Molnar nearly every Friday, but Molnar steadfastly refused to
change the starting time. After a while, Markiewicz began
accusing Molnar of being unfair. These accusations usually
ended their discussions. However, increasingly, Molnar’s de­
meanor began to indicate to Markiewicz that the supervisor was
“getting more edgy and irritated” with him. In fact, Molnar
finally told Markiewicz that he did not appreciate the same
4 The current collective-bargaining agreement is by its terms effec­
tive from August 27, 1997, through March 31, 2002. (GC Exh. 2.)
5 Two or three other employees served as job stewards concurrent
with Markiewicz.
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaints from him every week about overtime and that, in
any event, the starting time would not change.
The Charging Party was involved in an accident at work in
June of 1999. The Respondent had a policy which required that
an employee involved in an accident must take a drug test.
Pursuant to that policy, Markiewicz was sent to a medical facil­
ity where the test was to be administered. However, he refused
to sign a “waiver of liability” form and was, therefore, refused
permission to take the test. The Respondent considered
Markiewicz to have refused to take the drug test, which was the
equivalent of a positive test. Therefore, the Respondent dis­
charged him. A grievance was then filed, and a meeting was
subsequently held to discuss the matter with Markiewicz, chief
steward Frank Vasquez, and the Respondent’s executive vice
president, Jim McArdle, present. The Charging Party continued
to object to signing the waiver of liability form, on behalf of
himself and other employees. However, he ultimately agreed to
accept Jim McArdle’s suggestion to sign the form and write
beside his signature that it was “under duress.” He passed the
drug test and his discharge was then rescinded. It is, of course,
the General Counsel’s contention that this initial refusal to sign
the waiver of liability form was done in the Charging Party’s
capacity as job steward.
In August 1999, the Respondent’s facility moved to a new
warehouse. At that point a change was made to the starting
time of the second shift employees. A number of employees
complained to Markiewicz, who in his capacity as steward
brought those concerns to Joe Molnar. The starting time con­
tinued to change and the Charging Party continued to complain
to Joe Molnar, who apparently was unmoved. However, sub­
sequently the Respondent divided the second shift warehouse
employees into two separate starting times. This change was
also not popular with certain employees, who complained to
their steward. In turn, Markiewicz complained on two or three
occasions to Joe Molnar and Supervisor James Ralls.6 Specifi­
cally, Markiewicz was complaining that the Respondent did not
utilize seniority in determining which employees would be
placed in a particular starting time. The Respondent’s supervi­
sors took the position that the contract did not require that sen­
iority be followed.7 On subsequent occasions, the Charging
Party again without success complained about starting time to
Glenn Barker, manager, and Jim McArdle. These conversations
apparently took place prior to the Charging Party’s vacation in
the fall of 1999.
Another example of the Charging Party’s exercise of union
activity occurred about October of 1999. On that occasion, Jim
McArdle reprimanded the Charging Party for being out of his
work area and for stopping the conveyor. McArdle yelled at
Markiewicz and called him “stupid.” Markiewicz then went to
6 James Ralls was identified as the supervisor originally named in
the complaint as “Jimbo.”
7 It is apparently the Respondent’s position that a “Letter of Under-
standing” between the Respondent and the Union dated March 23,
1999, in certain respects alters the seniority provisions of the collective-
bargaining agreement. The Respondent also takes the position that in
the period through December 31,1999, it could transfer, assign, and
schedule employees without objection by the Union, or recourse to the
grievance and arbitration procedures of the contract. GC Exh. 3, pg. 9.
Cheri Gwinner, human resources manager, to complain that
McArdle had been abusive to him and to other employees as
well. Gwinner said she had heard such complaints from other
employees and would report the incident to headquarters.
In the late fall of 1999, the Charging Party was active in ar­
ranging a union meeting for the Respondent’s employees. He
contacted chief steward Frank Vasquez and a meeting date was
selected. Markiewicz made copies of announcement flyers and
passed them out at work, inviting coworkers to attend the meet­
ing at the union hall. He testified that the day following his
distribution of the flyers, he was approached by Brett Under-
wood, day warehouse manager, and told that he was not al­
lowed to pass out fliers “on company time.” Further, he was
told that he would be written up if he were caught doing this
again. Underwood also told him that he had heard that
Markiewicz had been “harassing workers to join the Union.” A
similar incident occurred in February of 2000. On that occa­
sion, a fellow employee asked Markiewicz when there was to
be another union meeting. Thereafter, he was approached by
Cindy McKellips, receiving supervisor, who told him, “You’re
not allowed to do any union activity on company time.”
Markiewicz indicated he thought she was wrong, and that he
intended to continue his union activity. Thirty minutes later, he
was called to Brett Underwood’s office. In the presence of Jon
Willis,8 Underwood told the Charging Party that he could not
engage in union activities “on company time,” and that he
would be written up if he did so. However, Underwood made it
clear that he could engage in union activity on his coffee break,
lunch break, and after work.
Markiewicz testified about another example of union activity
which occurred in March of 2000. On that occasion, the Charg­
ing Party spoke with Marvin Pinnick, safety director, about the
Respondent’s drug testing policy. The Charging Party com­
plained that the policy was being enforced in a discriminatory
manner. He alleged that not everyone who got into an accident
was being required to take a drug test. Further, he asked to be
given a copy of the written policy so that he might discuss it
with Pinnick.
In my view, the record clearly reflects that the Charging
Party was an active job steward. Over the 2 years that he held
the position of steward, Markiewicz repeatedly engaged in what
can only be described as union or protected concerted activity.
His testimony regarding these incidents is certainly credible,
especially in view of the fact that for the most part the Respon­
dent’s witnesses do not deny that the incidents occurred. The
existence of the “Letter of Understanding” between the Re­
spondent and the Union did not make Markiewicz’ complaints
about starting times, shifts, and seniority anything less than
genuine union or protected concerted activity. Accordingly,
there can be no doubt that the Respondent had knowledge of
that extensive union and protected concerted activity. How-
ever, union and protected concerted activity and knowledge of
that activity by the Respondent does not by itself establish that
the Charging Party’s written warning and subsequent discharge
were in any way related to that activity. It is, therefore, neces-
8 Although the Charging Party testified that Willis is a regional man­
ager, the complaint does not allege him as a supervisor.
ALLIANCE BEVERAGE DISTRIBUTING CO. 389
sary to consider the events leading up to Markiewicz’ dis­
charge.
The sequence of events, which ultimately lead to the Charg­
ing Party’s discharge, began with his placement on “restrictive”
duty from January 1, 2000, until May 12, 2000.9 According to
Markiewicz, this restrictive or light duty was the result of a
right side hernia, which he had developed. However, on May 8,
the Charging Party sustained an injury at work which included
a left side hernia. Subsequently, he was referred to a surgeon,
Dr. Miller, who recommended surgery on both hernias, which
surgery was initially scheduled for May 17. Markiewicz in-
formed the Respondent of his scheduled surgery and was ap­
parently given permission to remain off work from May 17,
until released by the surgeon to return to work. Unfortunately,
he neglected to fast the morning of the scheduled surgery, and
was, therefore, informed by the surgeon that the surgery could
not proceed as scheduled. An apparently unhappy Dr. Miller
told the Charging Party that the surgery would need to be re-
scheduled, and to go home and wait for his call. Subsequently,
he received a call from Dr. Miller’s office rescheduling the
surgery for May 19. Markiewicz acknowledged that he did not
notify the Respondent that the surgery had been postponed,
allegedly because he assumed it was not necessary, as he had
been given permission to remain off of work until released by
the surgeon following the operation. The surgery was in fact
performed on May 19. According to the testimony of the
Charging Party, this was double hernia surgery requiring both a
right and left incision, and the placement of wire mesh for sup-
port.
Following his surgery, Markiewicz saw Dr. Miller twice, af­
ter which he was told by the surgeon to return to work. The
surgeon released him to return to work approximately 2 weeks
following the operation. This release was for “light” duty work
only; however, the Charging Party testified that he was still in
extreme pain. Despite the pain, he returned to work on June 5.
However, prior to actually starting work, he approached Brett
Underwood in the Respondent’s parking lot and informed Un­
derwood that he was “in real bad pain” and wanted to see a
different surgeon to get a second opinion.10 Underwood in-
formed Markiewicz that he had been released for light duty
work, which was available, and that he should remain and
work. Markiewicz was insistent that he needed to see a differ­
ent doctor, and so ultimately Underwood told him to go. Un­
fortunately, Markiewicz was not successful in getting an ap­
pointment with any doctor on June 5, and so he remained off
work on June 6, and continued his unsuccessful attempt to get
an appointment with a doctor. He testified that he remained in
extreme pain.
Markiewicz apparently was of the initial opinion that he did
not need to call the Respondent on June 6, in order to report his
continued absence from work. He allegedly thought following
9 A letter from Brett Underwood dated May 1, 2000, set out the Re­
spondent’s position that Markiewicz’ restrictive duty was to end on
May 12, 2000. (GC Exh. 5.)
10 Consistent throughout the Charging Party’s testimony was his dis­
satisfaction with Dr. Miller’s treatment of him, and his desire to obtain
a different physician.
his conversation with Brett Underwood on June 5, that he had
permission to remain off work until he was able to see a doctor.
However, on June 6, he received a letter at home from Cheri
Gwinner essentially directing him to report back to work, or
face possible disciplinary action.11 Following receipt of that
letter, the Charging Party returned to work on June 7. He testi­
fied that he attempted to work, but continued to be in pain.
Finally, he asked for and was given permission by Brett Un­
derwood to go to the Respondent’s medical clinic in order to
see a doctor. Unfortunately, no doctor was available and so he
returned to work. In any event, he did not remain at work long,
as he informed Brett Underwood that he would like to petition
the Industrial Commission for a change in doctors.12 Under-
wood told him he could go to the Industrial Commission for
this purpose, and he did so. After that he went home.
Brett Underwood testified the Respondent had an attendance
policy that essentially required that if an employee was going to
be absent and had not secured permission in advance from his
supervisor, the employee must call the Respondent as soon as
possible and report the absence.13 It was apparently on June 7,
that Brett Underwood presented the Charging Party with a writ-
ten warning dated June 6, for allegedly violating the Respon­
dent’s attendance policy by failing to call in when he was ab­
sent from work on May 17 and 18, and on June 6. These ab­
sences were considered “No Call, No Shows” by the Respon­
dent. (See GC Exhibit No. 8.)
According to Markiewicz, he remained in extreme pain and
so on June 8, he called Brett Underwood from home and asked
for permission to take the day off as his birthday holiday. Un­
derwood gave his permission, and the remainder of the conver­
sation was taken up with a discussion of whether Markiewicz
could take leave under the Family Medical Leave Act. Basi­
cally, the Charging Party wanted to take leave without pay so
that he could use the time to heal and obtain medical treatment.
However, it was Underwood’s position that the Charging Party
would first have to exhaust all of his vacation leave before he
could use leave without pay.
On June 9, the Charging Party reported for work, but be-
cause he was in extreme pain, he asked for and was given per-
mission by Underwood to leave work. The next day that
Markiewicz was scheduled to work was June 12. Respondent
contends the events of that day resulted in Markiewicz’ dis­
charge.
The Charging Party testified that his pain had been getting
worse. He credibly described the pain as “extreme” in his groin
and back with pressure going from his chest to his legs. He
attempted to work on the morning of June 12, although he felt
“awful.” Markiewicz described himself as “desperate,” and
when he was unable to get an appointment to see Dr. Miller, he
11 According to this letter, he must either return to perform light duty
work, or obtain medical documentation supporting an inability to work.
See GC Exh. 29.
12 Apparently this was necessary, as the Respondent’s insurance car­
rier, Hartford Insurance, had informed him that he was not permitted
under the Respondent’s workers’ compensation policy to see a physi­
cian other than Dr. Miller.
13 See Respondent’s “Attendance and Tardiness Standards” GCExh.
28.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told Underwood that he wanted to go to an emergency room at
a hospital to see a doctor. According to the Charging Party,
Underwood said that if he left he would need to take vacation
time, to which Markiewicz objected. The Charging Party then
told Underwood that he wanted to talk with chief steward Frank
Vasquez. Almost 45 minutes passed before Vasquez arrived.
Markiewicz explained to Vasquez that he needed to go to the
hospital and that Underwood wanted him to take vacation time.
Vasquez agreed that this was unfair, and the two of them went
to talk with Underwood. Surprisingly, there is relatively little
dispute between the three men as to what was said at their
meeting.14 Underwood does not deny that the Charging Party
was asking permission to leave work in order to see a doctor,
although he emphasizes that Vasquez had told the Charging
Party to go to the union hall and file a grievance. According to
Underwood, he told Markiewicz that he must either follow the
doctor’s restrictions or get the doctor to change them, and that
if Markiewicz left without taking vacation time, it would con­
stitute an unexcused absence. Finally, Underwood claims that
he told the Charging Party that whatever Markiewicz decided to
do, he should let Underwood know. According to Vasquez, it
was clear from Markiewicz’s demeanor that he was in pain, and
he indicated that because of his pain he was not able to do the
work. Further, Vasquez testified that while Underwood wanted
Markiewicz to remain at work, he gave him three options.
Those were to either go back to the doctor who had restricted
him to light duty work, to take vacation time and get the matter
resolved, or to leave and have it considered an unexcused ab­
sence. Vasquez testified that he told Underwood that the
Charging Party was trying to see a doctor, and since this was an
industrial injury, it was unfair to make Markiewicz use his va­
cation time. Finally, Vasquez advised the Charging Party to go
by the union hall and file a grievance.
While it appears that there was no specific conclusion to the
meeting, both Vasquez and Markiewicz contend that Under-
wood knew that Markiewicz was leaving work to try and see a
doctor about his continuing pain. Underwood does not deny
that he knew that Markiewicz wanted to see a doctor; however,
he contends that he never actually gave Markiewicz permission
to leave work, and was surprised when he learned that
Markiewicz was gone, because Markiewicz had not told him he
was leaving. The Charging Party testified that while he was
aware of what was happening, he was in extreme pain and was
willing to let Vasquez do the talking, as things were becoming
“fairly fuzzy.”
After he left work, the Charging Party followed Frank
Vasquez’ advice and went to the union hall. There, he met with
business agent Cliff Davis and informed him as to what had
transpired. He was at the union hall for approximately 30 min­
utes. From the union hall, Markiewicz went directly to the
emergency room at John C. Lincoln Hospital. At the hospital,
he saw a doctor who diagnosed his problem as sever constipa­
tion, a reaction to the surgery. The doctor informed
Markiewicz that the constipation created pressure and pushing
against the surgical incisions and his back. This in turn, caused
14 Although Cindy McKillips was also apparently at the meeting, she
did not testify.
the pain. The doctor gave Markiewicz instructions for treat­
ment of the constipation, and also gave him a signed note
which read, “No work until re-evaluated by surgeon on 06-15-
00 and medically cleared.” (See GC Exhibit No. 10.) After
about 4 hours, the Charging Party was released from the hospi­
tal. He then went to a grocery store which had a fax machine,
and faxed the doctor’s note to the Respondent’s office.
The following day, June 13, Brett Underwood called
Markiewicz and asked him to come in for a talk. The Charging
Party asked Cliff Davis and Frank Vasquez to attend, and they
met with Brett Underwood and Cindy McKellps. Underwood
then informed Markiewicz that he was being terminated, and
handed him a notice of disciplinary action setting forth the
reasons for the termination. (GC Exhibit 11.) Underwood then
refused to discuss the matter further.
The notice of disciplinary action reflects that the Respondent
terminated Markiewicz because he left work on June 12 with-
out authorization, meaning without permission from Brett Un­
derwood or any other supervisor.15 Underwood admits that the
Charging Party’s fax was sent to the Respondent’s place of
business on the evening of June 12, and placed on his desk the
morning of June 13. However, it is the Respondent’s position
that this was too late, as Markiewicz had already left his work-
station without authorization, in effect, abandoning his job. It
should be noted, the Respondent also takes the position that the
prior written reprimand which the Charging Party received for
not calling in when he was going to be absent from work (GC
Exh. 8), was not a contributing factor to the decision to termi­
nate him. Brett Underwood testified that the prior written rep­
rimand was listed on the notice of disciplinary action of June
13, merely because the form had a place to list any previous
discipline. The Respondent plainly contends that it fired
Markiewicz solely because he left work on June 12, without
authorization.
IV. ANALYSIS AND CONCLUSIONS
It is clear that the issues before the undersigned center
around the question of the Respondent’s motivation in issuing a
written warning to and subsequent termination of the Charging
Party. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in­
ference that protected conduct was a “motivating factor” in the
employer’s decision. This showing must be by a preponder­
ance of the evidence. Then, on such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct. The Board’s Wright Line test was approved by the
United States Supreme Court in NLRB vs. Transportation
Corp., 462 U.S. 393 (1983).
In the present case, I conclude that the General Counsel has
made a prima facie showing that the Charging Party’s protected
15 The notice of disciplinary action cites rules nos. 12 and 14 of the
Respondent’s work rules. (GC Exh. 12.)
ALLIANCE BEVERAGE DISTRIBUTING CO. 391
conduct was a motivating factor in the Respondent’s decision to
discipline and subsequently terminate him. In Farmer Bros.
Co., 303 NLRB 638, 649 (1991), enfd. 988 F.2d 120 (9th Cir.
1993), the Board held that in order to establish a prima facie
case, the General Counsel must show: (1) that the discriminatee
engaged in protected activities; (2) that the employer had
knowledge of such activities; (3) that the employer’s actions
were motivated by union animus; and (4) that the employer’s
conduct had the effect of encouraging or discouraging member-
ship in a labor organization. As has been noted in detail above,
Markiewicz engaged in extensive union and protected con­
certed activities regarding such matters as making complaints
to management about shift starting times, overtime, seniority,
drug testing, and harassment of employees. Further, his union
activities included arranging for union meetings and notifying
fellow employees of those meetings. Without question, the
Respondent had knowledge of that protected activity, as the
Charging Party had interaction directly with a number of the
Respondent’s supervisors.16
Regarding the question of whether the Respondent’s actions
were motivated by union animus, it appears fairly obvious that
the Respondent’s supervisors were not very happy with
Markiewicz’s actions. As is reflected in the credible testimony
of Markiewicz,17 Supervisor Joe Molnar got mad at him and
was visibly “edgy and irritated” because Markiewicz repeatedly
complained to him about starting time for overtime work.
Also, he testified that in the fall of 1999, he was approached by
Brett Underwood and told not to engage in union activity “on
company time,” or he would be written up. In February of
2000, both Cindy McKellips and Brett Underwood made simi­
lar statements to Markiewicz about not engaging in union activ­
ity on company time, and Underwood again told Markiewicz
that he would be written up if he were caught doing it.
But, even without direct evidence, animus or hostility to-
wards an employee’s union activity may be inferred from all
the circumstances. Shattuck Denn Mining Corp., v. NLRB 362
F.2d 466 (9th Cir. 1966); and U. S. Soil Conditioning Co., 235
NLRB 762 (1978). Such an inference is warranted here. The
16 Through amendments made at the hearing to both the complaint
and answer, counsel for the Respondent ultimately admitted the super­
visory and agency status of the individuals named in paragraph 4(a) of
the complaint, as amended. However, the Respondent continued to
deny the agency status of Joe Nasser, as alleged in paragraph 4(b) of
the complaint. While I concluded that the General Counsel has not
established that Joe Nassar was an agent of the Respondent, it is not an
allegation essential to the finding of a violation of the Act.
17 The undersigned has had the opportunity to observe the demeanor
of John Markiewicz while testifying, as well as to evaluate the inherent
plausibility of his testimony. On that observation, it is my conclusion
that he has testified credibly. Further, the Respondent’s witnesses do
not dispute his version of events to any material extent. In evaluating
his credibility, I have considered, among other matters, the affidavit
given by Markiewicz to agents of the Board on January 4, 2001, which
affidavit was at the t ime of the hearing placed in the rejected exhibit
file as R. Exh. 4. On further reflection, I have concluded that my origi­
nal ruling was in error, and that the affidavit should have been admitted
into evidence pursuant to Rule 613(b) of the Federal Rules of Evidence
(Prior Statements of Witnesses). Therefore, I now admit the affidavit
into evidence despite objection by counsel for the General Counsel.
Respondent had attempted to obtain the acquiesce of the Union
in its unilateral establishment of employee transfers, assign­
ments, and scheduling, through December 31, 1999, by means
of the Letter of Understanding. (See GC Exh. 3.) I find that the
Charging Party’s repeated complaints about these very matters
became a considerable source of irritation to management.
Supervisor Molnar admitted as much when he indicated that he
was under no obligation to follow the seniority provisions in
the contract and was upset that Markiewicz kept bringing these
matters to him. While Markiewicz’ characterization of himself
as a “pain” may have been accurate, it does not in any way
detract from the fact that his complaints on behalf of employees
constituted legitimate union activity. Under these circum­
stances, I believe my inference about Respondent’s animus
towards Markiewicz for his protected activity has considerable
support in this record.
The Charging Party served as a very vocal and persistent job
steward who brought repeated employee complaints to man­
agement. Any disciplinary action taken against him because of
his union activity would unquestionably have had the chilling
effect of discouraging membership in the Union. In this way,
the Respondent warned other employees that persistent activity,
in the nature of union or protected concerted activity, would not
be tolerated.
The General Counsel, having met its burden of establishing
that the Respondent’s actions were motivated, at least in part,
by antiunion considerations, the burden now shifts to the Re­
spondent to show that it would have taken the same action ab­
sent the protected conduct. Senior Citizens Coordinating
Council of Riverbay Community, 330 NLRB 1100 (2000); and
Regal Recycling, Inc., 329 NLRB 355 (1999). The Respondent
must persuade by a preponderance of the evidence. Peter Vi­
talie Co., 310 NLRB 865,871 (1993). The Respondent has
failed to meet this burden.
Regarding the written warning of June 6, it is the Respon­
dent’s position that it issued this warning to Markiewicz be-
cause he had failed to report for work on 3 separate dates, and
had also failed on those occasions to call in and notify his su­
pervisor that he would not be coming to work. The Respondent
refers to this type of absence as a “No Call, No Show.” (GC
Exh. 8.) As is noted above, Markiewicz does not deny failing
to call in on the three occasions in question, but he offers rea­
sonable explanations for each of them. In any event, the warn­
ing indicates that Markiewicz “is expected to adhere to com­
pany attendance polic[ies] and work when scheduled.” How-
ever, the only written attendance policy that the Respondent
offered into evidence indicates that less than 4 unscheduled
absences in a 12-month period are considered within accepted
standards. It is not until the 4th unscheduled absence that a
verbal warning is issued, and not until the 5th unscheduled
absence that a written warning is issued. (GC Exh. 28, “Atten­
dance and Tardiness Standards.”)
Therefore, it appears that the Respondent has exceeded its
written attendance policy by issuing a written warning to the
Charging Party after only three unscheduled absences. While
some of the Respondent’s witnesses suggest that a “No Call,
No Show” absence is more serious than an unscheduled ab­
sence where the employee calls in with an excuse, no other
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
written attendance policy was produced. As the only written
attendance policy in evidence establishes that Markiewicz’
three unexcused absences in a 12-month period were within the
Respondent’s standards and did not require discipline, it must
be concluded that the Respondent’s defense is a pretext for its
true motive.
I find that the Respondent has simply failed to establish by
anything approaching a preponderance of the evidence that the
Charging Party was issued a written warning because he was in
violation of the attendance policy. The General Counsel’s
prima facie case has not been rebutted, as the reasons advanced
by the Respondent are pretextual. It is, therefore, appropriate to
infer that the Respondent’s true motive was unlawful, that be­
ing because of union or protected concerted activity. Williams
Contracting, Inc., 309 NLRB 433 (1992); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F. 2d (6th Cir. 1982);
and Shattuck Denn Mining Corp., supra. Accordingly, the un­
dersigned finds that the Respondent has violated Section
8(a)(1) and (3) of the Act by issuing a written warning to
Markiewicz on June 6.
In considering the circumstances surrounding the discharge
of the Charging Party, it is important to note that he had been
employed by the Respondent for 19 years. Further, it is very
significant that the Respondent does not criticize the quality of
his work as a warehouseman. To the contrary, the Respondent
is in fact highly complementary of his work. Brett Underwood
testified that, “John was a great warehouseman, and you need
to have people like him, with his knowledge and experience—
very intelligent, and you don’t want to lose people like that.”
Marvin Pinnick testified that one of the reasons the Respondent
had agreed to reinstate Markiewicz following his problem with
taking the drug test was because, “He was always a good, faith­
ful employee” The Charging Party’s long employment history
and the quality of his work are very significant in light of the
fact that the Respondent contends that he was fired solely be-
cause he left his work without permission, in effect abandoning
his job.
The Respondent alleges that Markiewicz was not treated in a
disparate fashion, as every employee who left his workstation
without permission was terminated. The Respondent offers
employment records to support its position that other employ­
ees were fired for the same offense. However, I am not im­
pressed with these comparisons, as the individuals given as
examples by the Respondent were either short time employees
or had significant disciplinary records. None of these individu­
als approached Markiewicz’s 19-year tenure with the Respon­
dent, nor was there any evidence that their work was as highly
praised as was the Charging Party’s work. It is not surprising
that the Respondent was not able to offer closer examples as
comparisons, since it would be highly unusual for a long time
employee with a good work record to be fired for a single in-
fraction of leaving work without permission, and even then
under very extenuating and, literally speaking, painful circum­
stances.
However, in my view, comparisons with employees who left
their work without permission are misplaced, as the circum­
stances surrounding the Charging Party’s departure from the
job on June 12, do not support the Respondent’s contention that
he “abandoned” his job. Without question, Markiewicz had a
serious medical problem, which was certainly apparent to Brett
Underwood since June 5, the first day that Markiewicz at-
tempted to return to work following his double hernia surgery.
Underwood did accommodate the Charging Party on a number
of occasions between June 5, and June12, by allowing him to
leave work to see a doctor or to go to the Industrial Commis­
sion for the purpose of trying to get permission to change doc-
tors. Further, Underwood knew that Markiewicz continued to
be in extreme pain, and had not been successful in getting to
see another doctor. He knew this because Markiewicz had so
informed him. On June 12, the Charging Party advised Under-
wood that he was still in severe pain and needed to go a hospi­
tal emergency room. Underwood does not deny that
Markiewicz said he needed to see a doctor, and he testified that
there was a disagreement between the two men about whether
Markiewicz would need to take vacation time in order to leave
work. Subsequently, Frank Vasquez met with Underwood,
Cindy McKellips, and Markiewicz. There was apparently addi­
tional conversation and disagreement about what kind of leave
Markiewicz would take, vacation leave or leave without pay, if
he left to see a doctor. Vasquez advised Markiewicz to go to
the union hall, and file a grievance over Underwood’s refusal to
allow him to take leave without pay. Finally, Underwood con-
tends that he told the Charging Party to let him know what he
decided to do, meaning stay at work, or go see a doctor, and if
so, whether he was taking vacation leave or an unexcused ab­
sence. Underwood testified that he was surprised to later find
out that Markiewicz had left work, as Markiewicz had not got-
ten back to him to inform him as to what he intended to do. It
is Underwood’s position that Markiewicz left work without
authorization, as he had never actually given Markiewicz per-
mission to leave. This, he contends, constituted job abandon­
ment.
Brett Underwood’s testimony regarding the Charging Party’s
alleged job abandonment is, in my view, incredible. In light of
the totality of the circumstances surrounding the events of June
12, his testimony is simply inherently implausible. Certainly,
any reasonable person would construe the comments made by
Markiewicz on June 12, to mean that he intended to leave work
to see a doctor at a hospital emergency room. Underwood ac­
knowledged that he was aware that Markiewicz continued to be
in pain. Further, he testified that he had “never denied” any
employee who was in pain or had a medical condition the right
to leave work to see a doctor. However, he incredibly claims
that Markiewicz did not actually ask him for permission to
leave work, and he did not know that Matkiewicz had gone to
the doctor until he received the fax from the emergency room
doctor the following day. One can only wonder what Under-
wood thought that he, Markiewicz, and Frank Vasquez were
discussing on June 12, prior to Markiewicz’ departure. The
issue of leave was certainly discussed, as all 3 witnesses agree.
But, clearly, the central issue was Markiewicz’s continuing
pain, and his need to leave work to see a doctor.
As noted above, Underwood testified that he had “never de­
nied” any employee the right to leave work to see a doctor.
However, it appears to me that on June 12, he was denying the
Charging Party the right to leave work to see a doctor, by with-
ALLIANCE BEVERAGE DISTRIBUTING CO. 393
holding permission after a clear request was made. In failing to
give Markiewicz permission to leave work, Underwood was
certainly treating him in a disparate fashion. Further, the Re­
spondent’s decision to terminate Markiewicz for allegedly
abandoning his job was even more suspect in light of the re­
ceipt the following morning of the faxed emergency room doc-
tor’s note. It certainly was clear at that point, even assuming
there had been some doubt, that Markiewicz had in fact been to
see the doctor. Nevertheless, the Respondent persisted in ter­
minating him. It is important to remember that Markiewicz
was a 19-year employee with a good work record. This is sim­
ply not the kind of employee who would be fired for job “aban­
donment,” especially when the Respondent has a practice of
permitting employees to leave work for medical reasons. It is,
therefore, apparent to me that the true reason for the Charging
Party’s termination was because of his union and protected
concerted activities. The Respondent’s stated reason for dis­
charging Markiewicz, that of job abandonment, was merely a
pretext. Accordingly, the Respondent has failed to rebut the
General Counsel’s prima facie case by any standard of evi­
dence. Williams Contracting, Inc., 309 NLRB 433 (1992);
Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982); and Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Therefore, I find that
the Respondent has violated Section 8(a)(1) and (3) of the Act
by discharging the Charging Party on June 13.
In summary, I find and conclude that Counsel for the Gen­
eral Counsel has established a prima facie case, and that the
Respondent has failed to rebut that evidence. Accordingly, I
find and conclude that the Respondent has violated Section
8(a)(1) and (3) of the Act by issuing a written warning to the
Charging Party on June 6, and by discharging him on June 13.
CONCLUSIONS OF LAW
1. The Respondent, Alliance Beverage Distributing Com­
pany, LLC, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Transport, Local Delivery and Sales Drivers,
Warehousemen and Helpers, Construction, Mining, Motion
Picture and Television Production State of Arizona, Teamsters
Local Union No. 104, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (3) of the
Act by issuing a written warning to its employee John
Markiewicz on June 6, 2000, and by discharging John
Markiewicz on June 13, 2000, because he had engaged in union
and protected concerted activities.
4. The above unfair labor practices have an effect uon com­
merce as defined in the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
Having found that the Respondent discriminatorily dis­
charged employee John Markiewicz, my recommended order
requires the Respondent to offer him immediate reinstatement
to his former position, displacing if necessary any replacement,
or if his position no longer exists, to a substantially equivalent
position, without loss of seniority and other privileges. My
recommended order further requires the Respondent to make
Markiewicz whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of his discharge to date
the Respondent makes a proper offer of reinstatement to him,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent unlawfully issued a writ-
ten warning to employee John Markiewicz in June 2000, the
Respondent will be required to rescind that warning.
The recommended order further requires Respondent to ex­
punge from its records any references to Markiewicz’ discharge
and written warning mentioned above, provide Markiewicz
with a written notice of such expunction, and inform him that
the unlawful conduct will not be used as a basis for further
personnel actions against him. Sterling Sugars, Inc., 261 NLRB
472 (1982).
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended.18
ORDER
The Respondent, Alliance Beverage Distributing Company,
LLC, Phoenix, Arizona, its officers, agents, successors and
assigns, shall
1. Cease and desist from
(a) Issuing unwarranted written warnings to any of its em­
ployees if they engage in union or protected concerted activi­
ties.
(b) Discharging or otherwise discriminating against any of
its employees for supporting the Transport, Local Delivery and
Sales Drivers, Warehousemen and Helpers, Construction, Min­
ing, Motion Picture and Television Production State of Ari­
zona, Teamsters Local Union No. 104, an affiliate of the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO, or any other union, or be-
cause they have engaged in concerted activity, or have engaged
in other acts which are protected by the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer John
Markiewicz full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
18 In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as
provided in Section 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.
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prejudice to his seniority or any other rights or privileges previ­
ously enjoyed.
(b) Make John Markiewicz whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of this
decision.
(c) Rescind the unwarranted written warning issued to John
Markiewicz.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and written
warning, and within 3 days thereafter notify John Markiewicz
in writing that this has been done and that the discharge and
written warning will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi­
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa­
cility in Phoenix, Arizona, copies of the attached notice marked
“Appendix.”19 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Re­
spondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con­
secutive 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, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed the facility in­
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em­
ployees and former employees employed by the Respondent at
any time since June 6, 2000.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
19 If this Order is enforced by a judgment of the 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.”