Associated Retailers' Suburban Delivery Co.

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 456 (N.L.R.B. 1970)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Retailers' Suburban Delivery Company
and John Herr . Case 14-CA-4906
March 4, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On May 27, 1969 Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other alleged unfair labor practices. Thereafter, the
Respondent and General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and finding merit in
certain of Respondent's exceptions, hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.'
The Trial Examiner .found that Respondent
violated Section 8(a)(1) of the Act by discharging
driver-helper John M. Herr, the charging individual
because of his zeal as a union steward in filing
grievances. For reasons set forth below, we find
merit in Respondent's exceptions to such finding.
Respondent furnishes delivery service to
department stores, and its employees are represented
by Teamsters Local Union No. 668, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(hereinafter called the Union). The existing contract
between Respondent and the Union contains a
provision that "theft or other forms of dishonesty,
including beating time," are dischargeable offenses
without any prior warning. Beating time, or the
As the Trial Examiner's Decision , the exceptions , the briefs , and the
entire record in the case adequately present the issues and the positions of
the parties , the Respondent 's request for oral argument is denied In view
of the decision to dismiss the complaint in its entirety, we make no ruling
on the Respondent 's motion to strike the testimony of alleged
discrimination against union stewards, other than Herr. We adopt, pro
forma, the Trial Examiner 's dismissal of the allegation that Respondent
threatened its employees with reprisals if they continued to protest work
assignments , as no exceptions were taken to such dismissal.
taking of unauthorized and/or excessive work
breaks by employees while making deliveries, had
been a problem for Respondent, and it used various
means to detect offenders, including street
surveillance by spotters or supervisors, who reported
their observations to Respondent either orally or in
writing. 2
As set forth in detail by the Trial Examiner, in
May 1968, prior to the period of intensive
grievance-filing by Herr, the latter was suspended
for beating time, and specifically warned that a
recurrence would result in his discharge. Also, as
found by the Trial Examiner, in July or August
1968, Respondent instructed Herr to discontinue his
admitted practice of stopping at the Union's office
for periods extending beyond his authorized coffee
break to transact union business. Finally, on
October 24, 1968, Herr was observed, and admitted,
beating time at the Union office and taverns, as
found by the Trial Examiner, and informed that he
was discharged for that reason. Under these
circumstances, we conclude and find that the
General Counsel has failed to show by a
preponderance of the evidence that the discharge of
Herr was unlawful, and we shall dismiss the
complaint in its entirety.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
Uncontradicted testimony , not adverted to in the Trial Examiner's
Decision , shows that at an employee meeting in February 1968,
Respondent discussed the use of spotters on the street and warned that
beating time could result in discharge
'We join in the Trial Examiner 's finding that Respondent did not have
an inflexible policy of discharging for beating time Unlike the Trial
Examiner , however, we are unable to conclude from the record before us
that the written spotter reports in evidence make a prima facie showing of
discrimination against Herr, nor do we presume that oral spotter reports
would reflect concentration on Herr.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The instant charge
was served upon Respondent on November 20, 1968,' the
complaint issued on January 7, 1969, and the case was
heard on March 10 and 11 The issues related to an
alleged threat in violation of Section 8(a)(1) and the
discriminatory discharge of Herr. Briefs were filed by both
counsel.'
Upon the entire record,3 including observation of the
witnesses' demeanor, it is found as follows.
All dates hereinafter relate to 1968, unless otherwise indicated
There was also received after the hearing, pursuant to the direction of
the Examiner, certain documents , which had been offered at the hearing as
G C Exh 5, but had been withdrawn later in the hearing Such
documents are hereby received in evidence There is also hereby admitted
in evidence as TX Exhs I and 2 certain posthearing correspondence from
counsel , together with an affidavit executed by Mertens , Respondent's
general manager , the whole constituting a stipulation that Mertens would
testify in accordance with such affidavit
'For corrections of the record and a ruling on evidence see the orders of
181 NLRB No. 64
ASSOCIATED RETAILERS' SUBURBAN DELIVERY CO 457
I JURISDICTION
Associated Retailers' Suburban Delivery Company,
herein called Respondent, is a Missouri corporation and is
engaged at St Louis, Missouri, in the business of
delivering merchandise to retail customers of local
department stores Respondent annually receives more
than $50,000 for services performed in transporting goods
to out-of-State points ° Respondent is engaged in
commerce under the Act
about one hour During a good part of the day
Respondent' s general manager , Mertens, followed the
truck and observed three of these four stops At the last
stop he approached Herr and Pappert and ordered them
back to their warehouse, where they were questioned
about the reason for the stops Pappert was given a
one-week layoff and Herr was discharged He filed a
grievance which was referred to a bi-partite panel, as
provided by the Union's contract The panel rejected the
grievance, and, when the Union refused to submit the
issue to arbitration, Herr filed the instant charge
II THE UNION
Teamsters Local Union No 688, affiliated with
international Brotherhood of Teamsters, Chauffeurs
Warehousemen and Helpers of America, hereinafter called
the Union, is a labor organization under the Act
III THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues
I Whether Respondent violated Section 8(a)(1) by
threatening reprisals against employees for protesting
Respondent's work assignment policy'
2 Whether the discharge of Herr was discriminatory'
A Sequence of Events
Respondent furnishes delivery service to two large
department stores in St Louis, Famous-Barr Company
and Stix, Baer & Fuller Company Certain of its drivers
handle only parcels others, hereinafter sometimes called
furniture delivery drivers, handle larger items These two
classes of drivers are represented by the Union, but in
separate units The furniture delivery drivers who serve
Stix, Baer & Fuller and those who serve Famous-Barr
work out of separate warehouses, and have separate
immediate supervision, but all are under General Manager
Mertens The drivers serving Famous- Barr , about 65 in
number, have 3 shop stewards, who handle grievances
arising under the contract between Respondent and the
Union One of these stewards, Herr, was hired by
Respondent in November 1967, and was elected shop
steward the following February In May 1968, he was
suspended from work for 2 weeks because on May 9 he
allegedly took 1 1/2 hours for lunch S About the same
time Herr began to process a relatively large number of
grievances, and continued to do so until his discharge on
October 25 The great majority of those grievances
stemmed from a clause in Respondent's current Union
contract, executed in November 1967, which required that
to minimize layoffs, Respondent attempt to spread the
work uniformly among the drivers, or, as the contract
puts it, ` level off the work load "6
Herr's discharge occurred under the following
circumstances
On October 24, he was assigned as a helper on a truck
driven by Pappert It is undisputed that during that day,
in addition to the authorized one-hour lunch period, the
truck made four stops for the purpose of permitting the
two men to partake of refreshments and answer calls of
nature, and that the time thus consumed, over and above
that authorized by Respondent for such purposes, totaled
April 25 and May 21 1969
'Tr p 35
'Respondent allowed only I hour for lunch
'Article VI par I
B Discussion
I The 8( a)(1) issue
The complaint alleges that in November and December
general manager Mertens and furniture delivery manager
Benning ' threatened that, if employees continued to file
grievances protesting the assignment of work to others,
Respondent would take more work away from the
grievants, and that by such threat Respondent violated
Section 8(a)(1) of the Act
In support of this allegation the General Counsel
adduced only testimony by Union Steward Baker that on
several occasions during the past 18 months both Mertens
and Benning stated, in response to complaints about their
failure to equalize the distribution of work for the
furniture delivery drivers,' that they were doing what they
could to level off the work load, that the drivers were
getting work that Respondent "could be sending down to
a different department," and that some work was being
assigned to the drivers that they "wouldn't necessarily
have to get" At a later point in his testimony, Baker
explained that the background for the foregoing
complaints was a jurisdictional dispute between the
furniture delivery drivers and Respondent's parcel delivery
employees,' and that on the foregoing occasions Mertens
said he had taken work away from the parcel delivery
men to give to the furniture delivery men and that such
work could be reassigned to the parcel men
Mertens denied that he had made any such remark, but
acknowledged that Benning might have made some
reference to the matter Benning 's version was that on one
occasion, when Baker complained that furniture deliveries
were being assigned to the parcel handlers, the witness
answered that he did not know if that was so, but that, in
any case, some work was being assigned to the furniture
delivery men that could be claimed by the parcel handlers,
and that, if the latter should make an issue of the matter,
the furniture delivery men might lose more than they
would gain, and, Benning denied that he ever threatened
to take work away from the furniture drivers
It is thus clear that the foregoing versions of the alleged
"threat" are not essentially different, both Baker and
Bennmg being in agreement that, in the context of a
complaint by Baker that work was being assigned to the
parcel men which should have been given to the furniture
men, management asserted that, by the same token, the
furniture men were doing work that was claimable by the
parcel men Even if, as Baker testified, Mertens said that
such work might be given in the future to the parcel men,
'He supervised only the furniture delivery drivers serving Famous Barr
'These complaints involved the application of the contract clause
mentioned above
'As already noted both groups were represented by the Union but in
separate units
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no evidence that Mertens conditioned this on
the continued prosecution of the work assignment
grievance by the furniture men. While such a condition
might be inferred, it seems just as plausible to infer that
this remark, whether made by Mertens or Benning, was
meant to imply only, as Benning's testimony indicates,
that, in the event of a showdown between the two groups
of delivery men, the furniture men might lose more than
they would gain In view of this, as well as the silence of
the General Counsel's other witnesses on the matter,'° it is
concluded that the evidence does not preponderate in
favor of a finding that the foregoing remarks by
management were intended as, or constituted, a threat of
reprisal It will, therefore, be recommended that this
allegation be dismissed.
2. The discharge of Herr
As already noted, Herr was discharged on October 25,
the reason assigned being his unauthorized stops on the
24th.
The General Counsel contends that the true reason for
Herr's discharge was his zeal as a Union steward, and
that any misconduct on his part on October 24 was
merely a pretext. Respondent contends that such
misconduct was the only reason for his discharge and that,
in any case, the decision of the bi-partite panel upholding
Respondent's action should be honored by the Board,
pursuant to its policy of honoring arbitration awards."
The latter contention will be first considered. It is clear
that the foregoing Board policy is not applicable here,
since it is undisputed that the issue of discrimination
against Herr because of his activities as a Union steward
was not presented to the panel Dunn, the Union's
business agent, who represented Herr before the panel,
testified at the instant hearing, without contradiction, that
before the panel he relied solely on a procedural point -
the alleged failure of Respondent to give written notice of
Herr's discharge, in the manner prescribed in the contract
Absent any litigation before the panel of the issue of
discrimination, it would not accord with Board policy to
defer to the action of the panel.12
It, accordingly, becomes necessary to consider the
merits of the General Counsel's position that Herr was
discharged because of his grievance activity and not for
taking excessive work breaks, or, as it is described in the
record, "beating time "
The General Counsel's theory is that in the spring and
summer of 1968, in the matter of discipline for "beating
time," Respondent discriminated against all three
stewards - Herr, Bishop, and Baker - because of the
influx of grievances during that period, and particularly
against Herr, because of his belief that he was in some
measure responsible for the initiation of such grievances.
The record shows that there was, in fact, a sharp
increase in the number of written grievances filed after
Herr became steward, beginning in May and continuing
until his discharge in October; and, Mertens admitted
that the number of such grievances increased eight or
"According to Baker, the foregoing remarks were delivered at grievance
discussions between hun and management over a period of 18 months The
record shows that such discussions were generally attended by at least two
stewards , or a steward and a Union business agent However neither of the
other two stewards - Bishop and Herr - testified about the matter, nor
did Dunn , the Union 's business agent for the furniture delivery men.
"Spielberg Manufacturing Co. 112 NLRB 1080
"DC International, Inc, 162 NLRB 1383
nine-fold during that period. It is clear also that the vast
majority of such grievances were written up by Herr
While, ostensibly, Herr was merely performing a
ministerial act in drafting the grievances on behalf of the
affected employees," Herr testified that in actuality he
was constantly on the alert for contract violations and
that, when he detected one, he solicited the employee or
employees affected thereby to initiate a grievance. Herr
added that this was true of every grievance he wrote up.
Moreover, while professing to attribute the upsurge in the
volume of grievances to the operation of the "leveling ofr'
clause,' ° rather than to any zeal on the part of Herr,
Mertens admitted that he had heard that Herr was alert
to detect contract violations and to solicit the filing of
grievances on account thereof ' S
Moreover, Mertens did not dispute Herr's testimony,
which I credit, that in August, while he was discussing a
grievance with Mertens, the latter made a disparaging
comment on the merits of the grievance, and, in closing
the discussion, remarked that he could not open his desk
drawer without finding another grievance from Herr. And,
Benning acknowledged that, a few weeks after Herr's
discharge, he commented to Bishop on the petty nature of
a grievance that had been filed by Flerr, alluding to the
fact that Herr had seen fit to prosecute the grievance even
though it had not been signed by the affected employee
It is concluded that, during the May-October period
there was a sharp increase in the number of written
grievances filed, that Herr wrote up the vast majority of
such grievances, that he solicited employees to file many,
if not all, of the grievances that he wrote up, and that
management was aware of such solicitation and on
occasion commented disparagingly on his zeal in
prosecuting grievances
We turn now to the reason cited by Respondent for
discharging Herr - the alleged "beating time" incidents.
The Union's contract sets forth certain types of
misconduct on account of which an employee may be
discharged for the first offense, including the following:
Theft or other forms of dishonesty, including beating
time.
Mertens estimated that if each of the furniture drivers
beat time for one hour a day it would cost Respondent
$100,000 a year, and Steward Baker acknowledged that
beating time had always been a serious problem. Mertens
explained that Respondent employed various techniques to
detect offenders, including the surveillance of the drivers
by "spotters" while on the road, the installation of
tachographs on the trucks, and analysis of individual
production records. There was also, evidence that
Respondent sometimes monitored a driver's deliveries
through telephone calls to customers. However, the record
shows that in nearly all instances discipline for beating
time was based on the result of route surveillance - the
"The contract provides for initiation of a grievance by the affected
employee, and , only if the matter cannot be satisfactorily adjusted orally
between the steward and the immediate supervisor is a written grievance to
be submitted by the steward to higher management
I attach no weight to the mere fact that Herr 's grievance output
exceeded that of the other stewards , since it was admittedly agreed among
them that the writing up of grievances would be Herr 's speciality, because
of his superior penmanship , while Baker was to handle most of the oral
discussions with management
"According to Mertens , that clause "automatically" gave rise to a
grievance whenever one driver worked overtime while others were in lay-off
status.
"When asked whether he heard this before or after Herr's discharge,
Mertens became evasive , pleading lack of recollection.
ASSOCIATED RETAILERS' SUBURBAN DELIVERY CO 459
driver having been caught in the act by a spotter or
supervisor
Herr began to work for Respondent in November 1967,
and Mertens professed to have formed the opinion in the
spring of 1968, on the basis of a review of Herr's
production record, his tachographs, and route surveillance,
that Herr was probably beating time On May 9, one of
Respondent's spotters charged Herr with beating time on
that day by taking an extra 30 minutes for lunch," and
the next day he was told he was being suspended for 10
work days on that account This was confirmed by letter
of May 13, which warned of discharge if there was any
recurrence Herr testified that, after returning to work
from this suspension, Supervisor Benning taxed him with
"dragging his feet," but refused to furnish any specifics,
and admitted that Herr's work was satisfactory Benning's
version was that in July or August he concluded from a
review of Herr's production record that his performance
as a driver was deteriorating, and so advised Herr
However, he did not deny admitting, in response to Herr's
query, that his work was satisfactory
The record shows, also, that in July or August a
dispute arose between Herr and Respondent over Herr's
practice of stopping at the Union office during the work
day, partly to take his authorized 15-minute coffeebreak,
and partly to transact Union business When Respondent
contended that the latter activity was not permitted by the
Union's contract," Herr retorted that he was merely
conforming to the practice of other stewards Benning
testified, without contradiction, and I find, that he
suggested to Herr that the issue be resolved by Herr's
consulting Union business agent Dunn, and arranging a
meeting between Dunn and management Although Herr
consulted Dunn, who advised him that it was proper for
him to continue his practice, there was no discussion of
the issue between Dunn and management In any event,
Herr admitted that Kenning ordered him to discontinue
his practice, pending resolution of the matter through the
grievance procedure
Finally, on October 24, there occurred the incident
which allegedly precipitated Herr's discharge From a
synthesis of the relevant testimony it is found as follows
with regard to the events of that day
At about 8 a in , Herr reported for work at
Respondent's warehouse and was assigned to act as helper
on a truck driven by Pappert " Their first stop was at the
Union office, for 30 minutes, of which 15 minutes
constituted an authorized coffeebreak, the balance of the
time being spent by Herr in transacting Union business,
admittedly in violation of Benning 's prohibition of such
activity on company time Mertens followed the truck to
the Union office and ascertained the length of time spent
there The truck then proceeded on its assigned route, but
some time during the forenoon Pappert dropped Herr off
at a tavern, while Pappert drove to a comfort station in a
public park Herr admitted that this stop was made at his
suggestion, to permit him to make a telephone call, and
that Pappert did not return until about 30 minutes later "
Herr admitted, also, that, by leaving the truck, he was
"Herr testified that he told the spotter that he might have taken 5 or 10
minutes extra but not 30 minutes However Herr did not directly deny at
the instant hearing that he had run 30 minutes over his lunch hour
"The only contract provision dealing with the matter of the use of
company time by stewards authorizes such use for the investigation and
processing of grievances on the Company location where they are
employed and where mutually agreed to by the Local Union and the
Employer at other locations Admittedly there was no mutual
agreement here regarding other locations
violating a company rule that the helper stay with the
truck at all times 20 Mertens did not observe the foregoing
incident, but resumed his surveillance early in the
afternoon, noting that the men stopped at a restaurant for
lunch Later in the afternoon they stopped at a tavern,
where they had a beer and used the restroom 21 This stop
was also observed by Mertens, as was the next
unscheduled stop, near 5 p m , at another tavern, where
the men, by their own admission, spent about 20 minutes 22
At this point Mertens approached the two drivers and
ordered them back to the warehouse
Mertens testified that he concluded that, over and
above the time allowed by Respondent for the morning
coffee break and lunch, and, without counting the
30-minute morning stop at the tavern (which Mertens had
not observed), the two men spent over an hour on
unproductive activity If one takes the outside estimates of
Pappert and Herr, the corresponding figure would be 45
minutes, and, if one includes the morning tavern stop, 75
minutes Even if one deducts from the latter two figures
the time allowed by Respondent for comfort stops,23 there
could still remain a balance of over half an hour and over
an hour, respectively 24
After the two men returned to the warehouse, Pappert
was questioned by Kenning and Mertens, and was told by
Mertens that Respondent was "after" Herr and not
Pappert, and that Herr would be discharged Herr was
then questioned about the various unscheduled stops Both
Pappert and Herr explained that they were taking
medication which required frequent rest stops The next
day Herr was notified of his discharge and a few days
later Pappert was given a 1-week layoff with the caveat
that, if he chose to file a grievance, he would be
discharged Pappert accepted the layoff
Mertens explained that Pappert was treated more
leniently than Herr because he was a good worker and
this was his first offense With regard to his statement to
Pappert that he was after Herr rather than Pappert,
Mertens admitted that such was in fact the case, but
explained that this was partly because it had been reported
to him that on prior occasions when Herr drove with
Pappert the latter's production declined, partly because
Respondent's tachographs indicated that during the past
few weeks he had been making unduly long stops at the
Union office, despite Benning's aforenoted admonition,
and partly because of Herr's poor production record - all
of which circumstances led Mertens to suspect that Herr
was again involved in beating time Thus, it was, in effect,
Mertens' position that he set out on October 24, to
confirm this suspicion, that the surveillance of Pappert
was merely incidental, and that that was all that was
"Respondent s drivers frequently alternated as helpers for other drivers
"In view of this admission I do not credit Pappert s testimony that he
suggested that the stop be made and that he returned within 10 or 15
minutes
"The record shows that Respondent had explained to the men that when
a driver took an unauthorized work break the helper in order to avoid
responsibility for beating time must stay with the truck
"Herr s estimate of the time spent there was 5 to 10 minutes and
Pappert s was 10 minutes Mertens testimony was that the two men
stopped there for 16 minutes
"Mertens figure was 29 minutes
"The record shows that Respondent authorized the drivers to make three
such stops during the day and Mertens testified that he regarded a few
minutes as sufficient for each such stop
"Since resolution of the foregoing conflict between Mertens and the two
employees as to the total time involved would not in my opinion materially
affect the result it will be assumed for the purpose of this decision that
Mertens figures were correct
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meant by any remark he may have made that Herr, and
not Pappert, was the target of Mertens' investigation.
The General Counsel contends that the foregoing
remark should, nevertheless, be construed as an admission
by Mertens that he was seeking a pretext to discharge
Herr, and that the inference should be drawn therefrom
that the true reason for Herr's discharge was his grievance
activity.
As further support for such an inference, the General
Counsel cites Respondent's alleged disparate treatment of
stewards, generally, and of Herr, in particular, with regard
to the matter of beating time after the upturn in the
number of grievances.
As to stewards, generally, the General Counsel
contends that the record shows that all three stewards
involved in processing the great influx of grievances
described above, were disciplined for beating time,
whereas drivers who were not stewards were treated more
leniently. However, while one of the other stewards,
Bishop , seems to have been treated, at least in the first
instance , even more harshly than Herr,2S the remaining
steward, Baker, seems to have been treated more leniently
even than any of the other employees disciplined for
beating time."
With regard to Herr, it is necessary to consider, at the
outset, what period the General Counsel has reference to.
Although he took office in February the record (G. C.
Exh. 5) shows that the period of his intensive grievance
activity began at the end of May, when he submitted 2
grievances, that he wrote up 15 grievances in June, 10 in
July, 20 in August, 17 in September, and 12 in October
prior to the 24th. In view of this, Respondent could not
have had any cause to be concerned about the volume of
his grievances before June 1.
Within this frame of reference, it seems necessary to
exclude from consideration as evidence of disparate
treatment because of grievance activity the 10-day
suspension of Herr on account of the May 9 incident.
Within that frame of reference, the record shows that on
October 25 Herr was discharged for his second offense.
The record of action taken against non-stewards for
multiple offenses is as follows-
In December 1967 Obst and Schuler," who had a prior
record in that regard, were discharged for beating time,
but, when its drivers struck in protest, Respondent
commuted the discharge to a one-week layoff. Haeusser
was found to be beating time on March 8, and on March
13, Respondent sent him a letter, which recited five other
instances of misconduct by him, including drinking on the
job, insubordinate conduct, and lateness in completing
deliveries, and which warned him of discharge if he was
again guilty of beating time. He was, in fact, taxed with a
second offense the very next day - March 14 but was
notified on March 20, that at the request of his steward
(Baker ), Respondent had reconsidered its decision to
terminate him," and, instead, was suspending him for I
week., Habeck, who was Haeusser's helper at the time of
.,On June 19 , Respondent discharged Bishop for his first beating time
offense (not counting a prior occasion when he was discharged, but
Mertens promptly rescinded that action when Bishop explained the
circumstances ) Upon appeal , the bi-partite panel commuted his discharge
to 13-day suspension
"Baker was twice given 1 -day layoffs for separate offenses . Respondent
finally agreed to rescind one of these layoffs . (Baker opined at the hearing
that these incidents occurred early in October However, Respondent's
records in evidence show that they happened late in August . See G. C.
Exh. 6 , under "August 29 "
the March 8 incident , was sent a "warning letter" on
March 13, putting him on notice that in the future, to
avoid responsibility for his driver ' s conduct in beating
time, it was incumbent upon Habeck , as a helper, to stay
with the truck and not join the driver in his unauthorized
activities . Habeck was also Haeusser ' s helper on the
occasion of his second offense, on March 14, and on
March 20, Habeck was sent a "final warning letter,"
reminding him of the procedure to be followed by a helper
when his driver is involved in beating time, and stating
that he would be discharged for the next offense. Such
offense occurred on May 9, when Habeck was acting as
Herr's helper, and on May 13, Habeck was notified of
discharge for that incident . At the same time, Herr, as
related above, was suspended for 10 workdays However,
when the Union , in grievance discussions , urged that
Respondent give weight to Habeck ' s family
responsibilities , Respondent agreed to convert his
discharge to a 1-month suspension , provided that both
Habeck and Herr would withdraw their grievances. Both
men accepted this condition. In October , Schuler and
Shormann were discharged for beating time. This was
Shormann's first offense,39 but Mertens admitted that,
while he intended to discharge Schuler, he was prepared to
"back off" with regard to Shormann at the grievance
discussion level, and for that reason did not mail him the
notice of discharge prescribed by the contract . However,
for reasons not explained in the record , Mertens did not
meet with the Union about Shormann ' s case, and both
discharges were referred to the bi-partite panel, which
considered them at the same time as it reviewed Herr's
discharge . In all three cases , the Union relied on the same
defense - the failure of Respondent to comply with the
discharge notice requirement in the contract . This defense
was upheld with respect to Schuler and Shormann, but
not as to Herr. It is evident from this action of the panel
that Respondent failed to perfect the discharge of Schuler,
as well as Shormann , but did complete its action in the
case of Herr.
To sum up , during the period of his grievance activity,
Herr was discharged for a second offense and there is no
clear showing that Respondent made a bona fide effort to
treat anyone other than Bishop as severely as Herr.30
Whether or not this be deemed sufficient proof of
disparate treatment , it is clear, in any case, that
Respondent did not have an inflexible policy of
discharging for a second , or even a third , offense, as
witness the cases of Habeck , Haeusser, Baker, and the
peculiar circumstances of Schuler ' s second "discharge."
The General Counsel sought , in addition, to show
disparate treatment of stewards during the critical period
through the allegedly more intensive surveillance of the
stewards , including Herr , while on their routes, and for
this purpose there was placed in evidence as General
Counsel 's Exhibit 6 a number of reports received by
"They worked for Respondent in delivering furniture for Stix Baer &
Fuller, and were under Mertens' overall supervision
"Mertens explained that Haeusser would have been discharged had he
not proved certain extenuating circumstances with regard to this incident
"Schuler had been involved in the December 1967 incident discussed
above
"As for the "discharge" of Obst and Schuler in December 1967,
Mertens admitted only that they had a record of beating time, but did not
specify how extensive that record was Schuler's second discharge in
October cannot be considered as bona fide . and, in any case , that incident
involved at least his third offense While there is no reason to doubt that
the initial discharge action with regard to Habeck was taken in good -faith,
that was his third offense
ASSOCIATED RETAILERS' SUBURBAN DELIVERY CO 461
Respondent from its 'spotters" who were assigned to
follow trucks and report on their operations, which reports
were furnished to the General Counsel pursuant to
subpoena While it seems debatable whether such reports
show more intensive surveillance of the stewards as a
group, they do show that Herr received special attention
from Respondent's spotters during the period of his
grievance activity Thus, of the four written reports"
submitted by spotters during that period, two12 deal with
Herr, containing a description of the movements of his
truck through a series of stops and the two remaining
reports for that period relate only to chance encounters
with other trucks, and not to any prolonged trailing of a
particular truck over a series of stops It is thus apparent
that during a period of 5 months, of the approximately 30
trucks" involved in Respondent's Famous-Barr operation,
Herr's truck was the only one that was both followed by a
spotter and made the subject of a written report 31
Moreover, with regard to the October 24 incident
Mertens admitted that he had never before spent such a
large part of the day in personally trailing a truck It
seems a strange coincidence that this concentration of
surveillance on Herr occurred at a time when he was
besieging management with grievances No explanation
was offered by Respondent at the hearing to overcome
this prima facie showing from Respondents own records
of discrimination against Herr in the matter of
surveillance While Mertens testified that in the spring
Herr's tachographs and production records gave rise to
the suspicion that he was beating time, there was no
attempt to relate this suspicion to the surveillance on June
27 and September 18 Moreover, there was no evidence
that Herr was the only driver who was suspected of
beating time during the 5-month period in question and it
would have been strange if that had been the case
In view of the foregoing remarkable coincidence in
timing, as well, as Mertens' equivocal admission to
Pappert that he was "after" Herr, and the evidence cited
above of Respondent's awareness of, and displeasure with,
various aspects of Herr's grievance activity, it is found
that beginning at least on June 27 Respondent
discriminated against Herr with respect to a condition of
employment - extent of surveillance - because of his
involvement in grievance activity
There remains to be considered whether it was unlawful
for Respondent to discharge Herr on the basis of the
information obtained through such discriminatory
surveillance Even it be assumed that Respondent might
properly have discharged him had the same information
come to its attention as a routine matter, I would find
that, since the information on which the discharge was
based was the fruit of a discriminatory surveillance, the
discharge is tainted with the same defect as the
surveillance It was Respondent's singling out of Herr for
"The dates of the four reports are June 27 August 29 September 18
and September 23
'=The reports for June 27 and September 18
"This figure is based on the fact that Respondent had about 60
employees delivering furniture for Famous Barr and each truck was
manned by two men
"According to the stipulated testimony of Mertens (TX Exhs I and 2)
the written reports in the record represented only about one fourth of all
reports made in 1968 by Respondents only regular spotter the balance of
his reports having been made orally However there is nothing in the
record to rebut the presumption that the written reports submitted are
typical of the activity of the spotter and that his oral reports would reflect
the same concentration on Herr (The spotter was not called to testify
about tl•e matter )
special scrutiny because of his grievance activity that set
in motion the chain of events leading to his discharge
Had there not been such a singling out, there would have
been no discharge It follows that, whether or not the
discharge, itself, constituted disparate treatment of Herr,
it resulted from disparate treatment of him in the matter
of surveillance, which was induced by his grievance
activity, and the discharge therefore violated the Act's
The foregoing finding of a discriminatory discharge is,
moreover, reinforced by the consideration that, as found
above, Respondent did not have an inflexible policy of
discharging for a second "beating time" offense Under
such circumstances, it would be highly unlikely that, in
exercising his discretion with regard to what penalty to
impose on Herr, Mertens' judgment was not affected by
the animus that motivated his singling out of Herr for
surveillance and Mertens' admittedly unprecedented
pursuit of Herr on October 24 36
IV THE REMEDY
It having found that the Respondent discriminatorily
discharged Herr, I shall recommend that Respondent be
required to make him whole for any loss of earnings
suffered by reason of the discrimination against him
Backpay shall be computed in accordance with the
formula stated in F W Woolworth Company 90 NLRB
289, interest shall be added to backpay at the rate of 6
percent per annum Isis Plumbing & Heating Co 138
NLRB 716 Reinstatement will also be recommended
CONCLUSIONS OF LAW
Respondent has violated Section 8(a)(1) of the Act by
the discharge of John M Herr on October 25, 1969,
because of his grievance activity
[Recommended Order omitted from publication ]
"One may challenge the soundness of this reasoning by posing the case
of an employer who upon subjecting a union adherent to special scrutiny
detects hun in some egregious misconduct - e g setting fire to the plant
Does the employer have to condone this because his motive in shadowing
the employee was discriminatory? It may be that in such a case the
enormity of the offense would outweigh other considerations and create a
sanction for discharge In any case even if the discharge in such case were
deemed unlawful there would be no obligation to reinstate the employee
under the familiar rule that a discrimmatee need not be reinstated if he has
engaged in conduct that has rendered him unfit for reemployment
Here however the misconduct in which Herr engaged did not reach
such egregious proportions even if one accepts Respondents estimate of
the time involved in the three stops that were observed and adds the 30
minutes spent at the fourth stop This was only Herr s second offense As
already noted other employees had not been discharged after a second nor
even a third offense and were presumably deemed by Respondent to be fit
to continue in its employ, despite such misconduct
"Mertens insisted that in deciding to discharge Herr he gave weight to
his poor production record However no documents pertaining to Herr s
production were put in evidence and as noted above although Kenning
testified that in July he took Herr to task for not doing better Herr
testified without any contradiction that Kenning agreed at that time that
Herr s work was satisfactory While Kenning testified that in July he noted
an increase in Herr s overtime Mertens admitted that he made no attempt
to determine if Herr s overtime was excessive although it would seem that
that would be a matter of major concern to Respondent and at least one
objective measure of Herr s relative diligence in completing deliveries