Blue Star Services, Inc.

National Labor Relations Board - Board Decisions

May 28, 1999

328 N.L.R.B. 638 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
Blue Star Services, Inc. and Amalgamated Transit
Union Division 757, AFL–CIO, CLC. Case 36–
CA–8132
May 28, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On December 8, 1998, Administrative Law Judge Fre-
derick C. Herzog issued the attached bench decision.
The Respondent filed exceptions and a supporting brief,
and 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.
The judge found that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging employee Ken
Nowack because of his union and other protected con-
certed activities. The relevant facts are established by
credited uncontradicted testimony. On November 6,
1997, Nowack began working for the Respondent.
Nowack discussed wages, breaks, working conditions,
and organizing a union with employee Gustav Knecht on
November 9, 1997, and with employee Harold Garoute
on November 16, 1997. On November 18, 1997, Super-
visor Garnet Brown informed Company President Mike
Bilic that Nowack had initiated and participated in these
discussions. On the same day, Bilic terminated Nowack.
The Respondent has admitted that these Nowack discus-
sions with other employees precipitated his discharge.
We adopt the judge’s finding that the General Counsel
has established a prima facie showing that union and
other protected concerted activities were a motivating
factor in the Respondent’s decision to discharge Nowack
and that the Respondent has failed to show that it would
have taken the same action in the absence of these activi-
ties.

1 The Respondent, a Washington corporation, is engaged in the busi-
ness of airport transportation, charter bus services, and airfreight deliv-
ery, with an office and place of business in Ridgefield, Washington,
and a branch office in Portland, Oregon. During the calendar year
1997, the Respondent had gross revenues in excess of $500,000 and
performed services valued in excess of $50,000. The Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Blue Star Services, Inc.,
Ridgefield, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the judge’s
recommended Order.

Linda J. Scheldrup, Esq., for the General Counsel.
Tom Bilic, Esq., of Ridgefield, Washington, for the Respon-
dent.
BENCH DECISION AND CERTIFICATION
FREDERICK C. HERZOG, Administrative Law Judge. This
matter was heard before me in Portland, Oregon, on October 8
and 9, 1998. At the close of the hearing, I issued a Bench Deci-
sion, pursuant to Section 102.35(a)(10) of the Board’s Rules
and Regulations, in which I found that the Respondent has en-
gaged in certain unfair labor practices
The portion of the trial transcript which contains my Bench
Decision (including the Conclusions of Law, Order, and Notice
to Employees [Appendix B]) is attached hereto as “Appendix
A.”
In accordance with Section 102.45 of the Board’s Rules and
Regulations, I certify the accuracy of the pertinent portion of
the trial transcript (as corrected in Appendix A), and that the
transcript’s pages, from page 242, line 12, through page 247,
line 7, constitute my Decision here.
Dated at San Francisco, California, December 8, 1998.
APPENDIX A
BENCH DECISION
Judge Herzog: All right. I do think this is a case that is ap-
propriate for a bench decision and I am prepared to issue that at
this time. We are on the record, I take it. I’m going to com-
ment and, by the way, as I enter my decision this is not subject
to interruption. It’s not something for commentary. It is my
decision. It may not be the correct decision, but it’s a decision
that can be appealed if I am wrong. This is a case involving the
issue of whether or not Mr. Ken Nowack engaged in either
union activities, or protected, concerted activities, and whether
or not he was discharged as a result thereof. Under well estab-
lished Board authorities, including Washington Aluminum,
either of those activities will suffice to accord Mr. Nowack the
protections of Section 7 of the National Labor Relations Act. I
am satisfied based upon the testimony of Mr. Ken Nowack and
of Mr. Gustav Knecht, both of whom were credible witnesses
in my opinion, that the requisite prima facie case of having
engaged in protected concerted activities under the Washington
Aluminum rationale, or having engaged in union activities, in
the sense of being preparatory to seeking the protection of a
union, has been made out. And, in fact, that is a very strong
showing. The fact is that, indeed their testimonies in this are
unrebutted. The fact of that prima facie violation, that Mr.
Nowack was discharged for engaging in union activities is, in
fact, confessed by the testimony of Mr. Mike Bilic, in which he
stated during his first conversation with Mr. Nowack that his
concern was about him disturbing, bothering and agitating other
employees. There can be no clearer case shown for the viola-
tion than that testimony of Mr. Bilic. And, by the way, in this
regard I do not mean to be understood as being insulting or of
328 NLRB No. 83
BLUE STAR SERVICES 639
being disrespectful of Mr. Bilic. As a matter of fact my im-
pression of Mr. Bilic, and I want to make make a record of this,
is that he seems to be a very honorable and conscientious man.
And I wish to state my respect for you, sir. I feel saddened in
this case because I frankly feel, perhaps incorrectly, that Mr.
Bilic doesn’t understand the law that I am bound by in this
case. But that’s parenthetical. Having said what I’ve said
about the prima facie case and the strength of it that has been
established by the General Counsel, the main question in this
case then turns to whether or not, under the theory of the
Wright Line decision, Mr. Bilic has succeeded in demonstrating
that Mr. Nowack would have been discharged, or suffered the
same fate that he did, regardless of whether or not he engaged
in these union or protected concerted activities in the first place.
And toward that end Mr. Bilic has presented credible evidence,
which I’ve said I accept here, of Mr. Nowack having been once
warned for speeding, for example, by his (Bilic’s) mother.
And, of having been seen by his (Bilic’s) father, I believe, in
another instance of a violation of company, well, not a violation
of company policy, that’s too strong a word, but of engaging in
some sort of a argument or confrontation with the night dis-
patcher. And of having been seen at least two days prior
thereto—of this conversation with—by Mr. Mike Bilic, him-
self, engaged in the violation of the dress code in the sense of
wearing white tennis shoes and of wearing his T-shirt outside
of his pants or a T-shirt outside of his pants. Both of which
would be, I’d accept for the purposes of this discussion and of
this decision, violations of Respondent’s dress code. Now,
whether or not that actually occurred, I don’t know. But for the
purposes of this decision right now I’m going to assume that it
did occur as Mr. Bilic said. Despite the fact that I’m not mak-
ing that finding. Because as I said, I find Mr. Nowack a credi-
ble witness. But, for example on the dress code violation, Mis-
ter Bilic has testified that that occurred. He’s also testified that
it, in a prior instance of another employee engaging in similar
conduct, resulted in that prior employee being discharged on
the spot, or immediately. In this case, however, the exact oppo-
site is established because, by Mr. Bilic’s own words, nothing
happened to Mr. Nowack. Instead Mr. Bilic let it go and it
didn’t form any basis for the decision to discharge until after
these instances of the protected concerted activities had come
up. And, indeed, none of these things ever, aside from the T-
shirt and the dress code violation, came up until they were
made part of an inquiry by Mr. Bilic. And that inquiry didn’t
occur until it immediately followed on the heels of the dispute
about the protected, concerted activities. In short, under those
circumstances, the law is clear that where an employer brings
up violations of policy, but doesn’t bring them up until there
has been a record made of engagement in protected concerted
activities, there is a deep shadow and deep suspicion that is cast
over all such evidence. And that’s the way the trier of fact is
compelled to view that evidence. In other words you, if these
things had been tolerated as they were, Mr. Bilic, by your own
testimony, you did nothing to him. You say you even didn’t
say anything to him as far as I heard, about his violation of
dress code, which in another instance resulted in immediate
termination. But two days go by and nothing is said to him
until after the dispute came up about his engaging in “agita-
tion.” And of his being a “troublemaker.” Of his having a “bad
attitude.” All of which are viewed by the Board with great
suspicion. They’re sort of code words for union activities.
They’ve been known by that over the years. And there’s case
authority again on that. But, where those matters don’t come
up until there has been first the engagement in union activities,
and there’s been similar sorts of activities suffered by the em-
ployer previously, with no adverse consequences being visited
upon the employee until after it’s shown that their union activi-
ties intervened, then I am afraid I must tell you that I view that
evidence as being insufficient to overcome the strong prima
facie case that’s been established by the General Counsel. I do
not wish to be misunderstood here. I do not wish to say that an
employer is bound to simply accept examples of employee
disrespect. He’s not. An employer is not bound to look aside
from examples of employees ignoring it’s work rules. An em-
ployer is not. An employer is free to run his business the way
he wishes to run it. But he has to run it consistently. He can’t
start acting and reacting to union, or protected, concerted activi-
ties and then react differently than he has in the past. He’s got
to behave consistently, or otherwise his evidence about his
motive is going to be held to be insufficient to overcome that
prima facie case. In this case I find that to be the situation and
I will, upon the presentation of the transcript to me, approxi-
mately, well, the contract calls for it to come to me ten days
from now, I will enter an appropriate order. As a result of the
above findings, I issue the following
CONCLUSIONS OF LAW
Respondent, Blue Star Services, Inc., is a employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
1. On or about November 18, 1997, Respondent violated
Section 8(a)(3) and (1) of the Act by discharging its employee,
Kenneth R. Nowack, because he engaged in union, and pro-
tected, concerted activity.
2. Upon these findings of fact, and the entire record, and pur-
suant to Section 10(c) of the Act I hereby issue the following
recommended.
ORDER2
A. Respondent, Blue Star Services, Inc., its officers, agents,
and assigns, shall cease and desist from
1. Discharging employees because they engage in union,
and/or protected concerted activities, including discussing their
wages, hours and working conditions with fellow employees.
2. In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
in Section 7.
B. Respondent shall take the following affirmative action
necessary to effectuate the policies of the act.
1. Within 14 days from the date of this Order, offer Kenneth
R. Nowack immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of the unlaw-
ful discrimination against him.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
2. Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify Kenneth R. Nowack in writing that this
has been done and that none of these records will ever be used
against him in any way.
3. Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
4. Within 14 days from service by the Region, post at its fa-
cility in Ridgefield, Washington, copies of the attached notice
marked “Appendix B.”3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 36, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since November 18, 1997.
5. Within 21 days after service by the Region, file with the
Regional Director in writing a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps the Respondent has taken to comply.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge employees because they have en-
gaged in activities protected by the Act, including discussing
wages, hours, and working conditions with fellow employees.
WE WILL offer Kenneth R. Nowack immediate and full rein-
statement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights or privileges previously enjoyed by
him.
WE WILL notify him in writing that we have removed from
our files any references to his discharge, and that none of these
records will ever be used against him in any way.
WE WILL make him whole for any loss of earnings and other
benefits resulting from his discharge, less any net interim earn-
ings, plus interest.
All our employees are free to engage in protected concerted
activities, or union activities, and to join or support labor or-
ganizations.
BLUE STAR SERVICES, INC.