C & S Distributors

National Labor Relations Board - Board Decisions

May 31, 1996

321 N.L.R.B. 404 (N.L.R.B. 1996)

404
321 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 20, 1996, the judge issued the attached decision.
The General Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. In affirming the judge’s
findings, however, we do not rely on the adverse inference drawn
by him from the General Counsel’s failure to call employee Richard
Neal as a neutral witness to corroborate the testimony of alleged
discriminatee Stanley Flasinski. However, as recently stated in
Queen of the Valley Hospital, 316 NLRB 721 fn. 1 (1995), a judge
may properly consider the failure to call an identified, potentially
corroborating witness, such as Neal, as a factor in determining
whether the General Counsel has established by a preponderance of
the evidence that a violation has occurred. It is on this basis alone
that we consider Neal’s failure to testify in affirming the judge’s
credibility findings.
1 All dates are 1994 unless otherwise indicated.
2 One of the striking employees was Ronald Baker, a driver and
employee union steward. At the conclusion of the strike, he was re-
C & S Distributors, Inc. and Stanley T. Flasinski
Jr. Case 34–CA–6956
May 31, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issue presented for Board review is whether Ad-
ministrative Law Judge Wallace H. Nations correctly
found that the Respondent did not violate Section
8(a)(3) and (1) of the Act by discharging employee
Stanley T. Flasinski Jr.1 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,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Thomas E. Quiqley, Esq., for the General Counsel.
Thomas M. Cloherty, Esq. and Jeffrey S. Brody, Esq., of
Hartford, Connecticut, for the Respondent Employer.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on December 6,
1995. The charge was filed March 6, 1995,1 and the com-
plaint was issued May 31, 1995. The complaint alleges that
C & S Distributors, Inc. (C & S or Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act) by discharging its employee Stanley T. Flasinski Jr.
on November 9. Briefs were received from the parties on
January 26, 1996. On the entire record, including my obser-
vation of the demeanor of the witnesses, and after consider-
ing the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in the nonretail
manufacture, sale, and distribution of home remodeling mate-
rials at its facility in South Windsor, Connecticut. The Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that Local 671, International Brotherhood of
Teamsters, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issue for Determination and Relevant Facts
C & S Distributors, Inc. operates as a manufacturer and
wholesale distributor of building materials, both its own and
those of other manufacturers. It conducts business from a
large warehouse facility in South Windsor, Connecticut. In-
sofar as is relevant to this proceeding, its management is
composed of CEO Samuel Cohen, Vice President Mark
Cohen, Warehouse Manager Ray McCarthy, and Foreman
Craig Bloking. Its pertinent employee complement consists
of six or seven nonunion warehouse workers who perform
normal warehousing functions including pulling loads for de-
livery and assisting truckdrivers in loading and unloading
trucks. It also employs about nine truckdrivers in a bargain-
ing unit represented by the Union.
The alleged discriminatee in this proceeding is Stanley
Flasinski Jr., who began his employment with C & S in July
1991 and was discharged, allegedly in retaliation for engag-
ing in union or other protected concerted activities on No-
vember 9, 1994. Respondent asserts that Flasinski was dis-
charged by McCarthy on the spot for twice refusing to obey
a direct order to pull an order for delivery. Flasinski was em-
ployed as a bargaining unit truckdriver stationed at Respond-
ent’s South Windsor, Connecticut warehouse.
The Union has represented this unit for over 15 years and
until about May, the relationship between it and Respondent
had by all accounts been a good one. At all relevant times,
the Union’s then business agent, David Lucas, was respon-
sible for representing the unit. The last contract between Re-
spondent and the Union expired in the spring of 1994. The
parties entered into negotiations for a new contract, but were
unsuccessful in reaching agreement. As of the date of this
hearing, there is still no agreement. In late May, the Union
took the Company’s two final offers to its membership and
they rejected the offers. The differences between the unit em-
ployees and Respondent centered on the costs of insurance.
To further its position the Union called an economic strike
at the end of May which lasted about 10 days. This period
is during Respondent’s busiest sales season and apparently
seriously upset Respondent.2 During the strike, on June 1,
405C & S DISTRIBUTORS
called to work and attended a meeting with four or five other return-
ing strikers called by Samuel Cohen. According to the undisputed
testimony of Baker, Cohen told the men that ‘‘The Union didn’t own
the company, that he owns the Company, and when the Union went
on strike, it was just like when the Japs raided Pearl Harbor.’’ He
added that he did not expect the strike and thought everything was
all right. Cohen told the returning strikers not to bother workers
hired to replace them and that if they did bother them, they would
be in trouble.
3 McCarthy denied any knowledge of Flasinski’s role in this inci-
dent, I credit the denial as there was no showing that he had such
knowledge, and it is unlikely it would come to him in the regular
course of business.
4 Union Steward Ron Baker recounted an incident involving
Flasinski and Mark Cohen that took place in the spring of 1994 on
the dock. Cohen said, ‘‘good morning’’ to Flasinski, who did not an-
swer him. Cohen followed him to the warehouse and told him if he
did not like working there, why didn’t he leave. Flasinski did not
respond.
5 This testimony was not specifically denied though McCarthy cat-
egorically testified that employees did not joke with him in this fash-
ion.
6 Neal drove a truck for Respondent on occasion though he was
not in the bargaining unit. He was paid as a warehouse worker at
an hourly wage considerably below that of the drivers. Baker testi-
fied that he had complained to McCarthy about this practice, but that
no formal grievance had been filed objecting to it.
Mark Cohen hit the Union’s business agent, David Lucas,
with a truck at the picket line. Flasinski observed the inci-
dent and gave a statement to the police who investigated it.
Other people at the site also gave statements to the police.
Flasinski never thereafter spoke to Cohen or any other mem-
ber of management about the incident. He did speak with
Cohen’s attorney who called him in August about the matter,
telling the attorney what he had seen and reported to the po-
lice. Cohen received a form of probation for this incident.3
During the strike, Respondent filled a number of driver’s
positions with permanent replacements. When the Union of-
fered to return to work, Respondent recalled five drivers by
seniority. Flasinski was recalled to his position in the third
week of August when an opening came up. Flasinski was
next to last on the seniority list. On the day of his return to
work, he spoke in private with Supervisor McCarthy before
beginning work. According to Flasinski, McCarthy told him
that he did not want to hear anyone being called a ‘‘scab,’’
did not want any union rabble-rousing, did not want
Flasinski causing trouble and to ‘‘Just keep your mouth shut
and do your job.’’ Flasinski said, ‘‘Okay’’ and the conversa-
tion ended. Flasinski’s affidavit to the Board describes this
conversation thusly, ‘‘He said the strike is over, we want to
put that behind us. He said I don’t want any name calling,
I don’t want any arguments. He said just keep your mouth
shut and do your job.’’ Flasinski admitted that at this point,
he and McCarthy shook hands and McCarthy said ‘‘go to
work.’’
According to McCarthy, he was instrumental in getting
Flasinski back to work after the strike. Flasinski had been re-
placed by another driver, and McCarthy did not consider him
competent. He on several occasions asked the Cohens to fire
the replacement and return Flasinski. The Cohens at first re-
fused saying they had to give the replacement a chance.
They eventually complied with McCarthy’s request, fired the
replacement, and recalled Flasinski. McCarthy considered
Flasinski the best driver he had. On the other hand, he con-
sidered Flasinski moody and not friendly. In this regard, he
testified that in the meeting with Flasinski when he returned
to work poststrike, he told Flasinski he had an attitude prob-
lem and a chip on his shoulder and that he hoped that would
change. Flasinski admitted that it was common knowledge
that he and McCarthy did not get along, and that this had
been the case before he was recalled from the strike.4
Flasinski described the working conditions on the dock
after he returned from the strike as very tense, as opposed
to conditions existing prestrike. He also testified that employ-
ees joke around at work to relieve the tensions. He added
that he joked around with Dock Foremen Craig Bloking and
Bill Dyer and tried to joke with McCarthy. A little later in
his testimony, Flasinski testified that about 2 weeks prior to
his discharge, he had joked around with McCarthy, stating
that McCarthy ‘‘Probably asked me to pull something. The
way they ask you to pull an order, they say, ‘Do you want
to get this order,’ and being a jokester, I said, ‘No, I don’t
WANT to get that order’ and then they say, ‘Well, do it any-
way.’’’ On this occasion, according to Flasinski, he pulled
the order and nothing came of the incident.5
Flasinski wore his union hat to work every day after the
strike, as did a number of other union member employees of
Respondent. No one from management commented on this
practice. He testified that he had heard McCarthy speak
about unions on occasion, stating that McCarthy did not like
unions, saying they just take your money and do not do any-
thing for you. According to Flasinski, these comments were
made well before the strike. McCarthy, on the other hand,
stated that he had no animus toward the Union and was a
former member of the Teamsters and a union steward before
becoming a supervisor.
Flasinski’s normal workday began about 5 a.m., and he
would pull orders until 7 to 9 a.m., and then make deliveries
and pickups until 2:30 to 7 p.m. With respect to the events
of November 9, Flasinski testified that he worked on that day
with a nonunion dockworker named Richard Neal, who was
helping him load his truck in the morning for deliveries. He
testified that he and Neal were in the back of the truck load-
ing it and talking. According to Flasinski, Neal was com-
plaining that he did drivers’ work, but was being paid the
lesser dockworkers hourly wage.6 Flasinski responded by
saying, ‘‘Well, join the Union. Stand up and have somebody
fight for you.’’ Neal did not comment on this statement as
they then saw McCarthy standing at the end of the truck
some 10 feet away. They had not seen McCarthy when the
conversation started. Flasinski contended that it was quiet in
the truck at the time of this conversation and that McCarthy
could have overheard them. McCarthy did not comment to
the men and walked away.
This alleged conversation is crucial to the General Coun-
sel’s case as it is the protected activity that the General
Counsel contends triggered Flasinski’s discharge. McCarthy
denied ever seeing or hearing Neal and Flasinski having a
conversation that morning and I credit his denial for the rea-
sons that follow. First, Neal, though still employed by Re-
spondent, was not called to testify. The General Counsel has
the initial burden of proof in this proceeding and not calling
the only neutral witness to this alleged conversation must be
considered in an adverse manner. Perhaps more important,
however, is the fact that this alleged conversation is first
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Flasinski also testified that he did not file an unfair labor practice
charge over his discharge until March 1995 on advice from Lucas
that the matter would be taken up in negotiations for a new contract.
This is difficult to believe as the parties did not meet to negotiate
between the date of the discharge, and the filing of the charge some
4 months later.
8 Flasinski testified that he did not mention the matter for fear of
getting Neal in trouble. This makes no sense whatsoever as if the
conversation occurred as related by Flasinski, McCarthy heard the
conversation and would have known of Neal’s complaints.
9 ‘‘Bud’’ is Flasinski’s nickname.
10 McCarthy testified that union activity played no part in the deci-
sion to fire Flasinski and that he was fired for insubordination. He
also testified that if Flasinski had told him on November 9 that he
was only kidding, he probably would have retained him. McCarthy
kept some notes of the events in question which show that the first
time anyone contended that Flasinski was kidding was in a grievance
meeting with the Union over the discharge held on November 15.
11 Flasinski was aware that Respondent had a work rule that stated
that an employee could be terminated for refusing to carry out a
work order.
12 In the unemployment compensation proceeding initiated by
Flasinski and which Respondent contested, C & S asserted
Flasinski’s refusal to obey an order as the reason for his discharge,
and added that he had also been given a written warning for attend-
ance. Flasinski denies he was ever given a written warning or any
other discipline during his employment with Respondent. Respondent
introduced a letter or memorandum to Flasinski dated April 20,
1995, called a ‘‘Stage One Absence Reminder’’ and which states
that Flasinski was absent 2 days in April, and reminding him that
pursuant to the Company’s policy, additional absences will result in
discipline. The part of the memo calling for employee acknowledg-
ment is not signed by Flasinski. Respondent introduced a similar
document dated April 28, 1992, also unsigned by Flasinski. Re-
spondent had a similar warning for Ron Baker, who was also un-
aware of its existence.
mentioned in an affidavit given by Flasinski to the Board in
mid-April 1995, some 5 months after the alleged fact.7 It was
not mentioned in any conversation between Flasinski or the
Union and Respondent’s management after the discharge,
though they met to discuss the matter on two occasions.8 It
was likewise not mentioned in a sworn statement given to
the State of Connecticut in relation to an unemployment
compensation claim filed by Flasinski.
According to Flasinski, about 10 minutes after the above
conversation is alleged to have taken place, he was at his
truck finishing his morning loading when McCarthy ap-
proached and said, ‘‘Bud, do you want to pull this order.’’9
The order in question was a small one that did not require
help in loading. Flasinski testified that jokingly, he said,
‘‘No, I don’t want to get this.’’ And again, according to
Flasinski, McCarthy replied, ‘‘No, really, do you want to get
this?’’ And Flasinski said, ‘‘No, I REALLY don’t want to
get this,’’ horsing around. McCarthy then said, ‘‘Go home,
you’re fired.’’ Flasinski testified that McCarthy should have
known he was kidding because of the way he refused the
order and by the fact he was smiling. Flasinski testified that
he was ‘‘flabbergasted’’ and said ‘‘No,’’ and just walked
away, though not before McCarthy pulled the order form
from Flasinski’s hands.
McCarthy gave a different version of this incident. He tes-
tified that on the morning of November 9, he observed
Flasinski standing by his truck doing nothing. At this time,
Neal was in the warehouse pulling an order. McCarthy ap-
proached Flasinski and asked what he was doing. Flasinski
said he was waiting for Neal to bring an order to him.
McCarthy looked at Flasinski’s list of jobs for that day and
noted there was one more order to pull. He told Flasinski to
go pull that order so it would be ready when Neal returned.
According to McCarthy, Flasinski said, ‘‘No.’’ McCarthy
told him again to pull the order, and Flasinski put his finger
in McCarthy’s face and again said, ‘‘No.’’ McCarthy then
fired him. McCarthy testified that Flasinski was not kidding
and was not smiling when he refused to pull the involved
order. McCarthy testified that he has the authority to fire em-
ployees and did not consult with any other member of man-
agement before firing Flasinski.10
Flasinski went to the men’s room to cool down and then
returned to his truck. McCarthy came to him and said, ‘‘I
want to see you upstairs.’’ Then he went to get another su-
pervisor, Craig Bloking, and Flasinski walked over to em-
ployee Union Steward Ron Baker and asked him to accom-
pany him to the office.11 Flasinski and Baker went to the of-
fice and after waiting a few minutes with McCarthy, Super-
visor Craig Bloking joined them. According to Flasinski,
McCarthy looked at Baker and said, ‘‘As far as I’m con-
cerned, he’s all through here,’’ and walked out the door.
Flasinski testified that he did not say anything, and Baker
told him to go to the union hall. Baker testified about this
meeting and said that McCarthy said, ‘‘I told Buddy to pull
an order two or three times, and he refused, and as far as
I’m concerned, he was fired,’’ and that concluded the meet-
ing. Bloking testified that after McCarthy spoke, Baker twice
asked Flasinski, ‘‘What happened? Do you have anything to
say?’’ Both times Flasinski said nothing. In his testimony,
McCarthy indicated that Baker twice asked Flasinski if he
had anything to say and both times Flasinski said nothing.
If, as he contends, Flasinski was joking with McCarthy, there
was nothing to prevent him from making this assertion dur-
ing this meeting. He was not refused the right to speak.
Moreover, he did not even tell Baker that he had been joking
before going into the meeting so Baker could defend him. As
best as can be discerned from the record of Baker’s testi-
mony, Flasinski did not tell Baker that he was joking after
the meeting.
Flasinski then went to the union hall, but it had not
opened and he returned home. A little later, he called Lucas
and told him what happened. On learning from Flasinski that
he had been fired, Lucas faxed a protest to Respondent. He
talked with Samuel Cohen who told him that he was not
going to put up with someone not following a direct order
and that Flasinski had also threatened one of his salesmen.
Cohen called back a little later and said he was mistaken
about Flasinski threatening a salesman.12
Lucas arranged a grievance meeting over the discharge
about a week later with Sam Cohen, Mark Cohen, Ray
McCarthy, himself, and Flasinski. According to Flasinski, the
meeting went as follows:
We all sat down. Mr. Cohen said, ‘‘Well, let’s get
on with it. You guys wanted this meeting.’’ So I pro-
ceeded to tell my story about the little joke I tried to
play on Mr. McCarthy, and Mr. McCarthy gave his ver-
sion of it saying that I flatly refused to pull the order
twice, saying that he gave me a chance to explain,
when he didn’t. ‘‘Ron Baker was there.’’ I said, ‘‘You
407C & S DISTRIBUTORS
can ask Ron Baker.’’ Samuel Cohen then proceeded to
tell us that nobody fooled around at C & S. Nobody
ever told jokes. Everybody worked very hard. That’s all
that went on at C & S, and he said that as far as he
was concerned, he had to take Ray McCarthy’s word
for it and I was all done. Mark Cohen said, ‘‘We all
work very hard here,’’ which I knew since I had been
there for three years.
The meeting then ended. Flasinski made no mention of his
conversation with Neal that he believed McCarthy overheard.
At this grievance meeting, Lucas remembers telling Cohen
that a mistake had been made and Lucas asked Flasinski to
tell his side of the story. Flasinski did so and then McCarthy
told his version. According to Lucas, Flasinski told Cohen
that McCarthy had given him an order to fill and Flasinski,
kiddingly, as he had in the past, refused, saying, ‘‘No, I
don’t want to get it.’’ The asking and kidding refusals hap-
pened a couple of more times, and McCarthy told Flasinski
he was fired. According to Lucas, McCarthy told a different
version, saying he gave Flasinski a chance to redeem him-
self. According to Lucas, the meeting was going nowhere
and ended with Flasinski fired.
Lucas testified that he attempted to formally arbitrate the
discharge but was advised by the Company that because the
contract had expired, they would not agree to arbitrate. He
testified that he tried to wrap up Flasinski’s discharge with
contract negotiations, but was not successful. On cross, how-
ever, he admitted that there were no negotiations between the
date of Flasinski’s discharge and the filing of a charge with
the Board in March 1995.
Both the General Counsel and Respondent introduced evi-
dence of past discipline given to other employees to bolster
their respective cases. Insofar as this information is relevant,
it tends to support Respondent’s position. The General Coun-
sel asserts that the strike and/or the incident involving Mark
Cohen are the reasons for Respondent’s alleged animus
against the Union and its employee members. Yet the record
reveals that three drivers, including Flasinski, were dis-
charged after the strike. Both of the other discharged drivers
were replacement workers. One was discharged for incom-
petence to make way for Flasinski’s recall, and the other was
discharged for not reporting to work for 2 consecutive days.
Another driver, Beauvais, was only given a verbal warning
for calling a replacement driver a ‘‘scab,’’ even though both
Baker and Flasinski stated they had been specifically warned
about this type of conduct on returning to work after the
strike. If Respondent was seriously looking for ways to rid
itself of the union drivers, it could have seized on Beauvais’
conduct to mete out more serious discipline. I also cannot
find any evidence that Respondent was harassing its drivers
in any fashion after the strike.
The General Counsel also points out that employees are
normally accorded progressive discipline by Respondent. But
where McCarthy is concerned it appears to me that the type
of offense, specifically direct personal confrontation, is what
triggers immediate termination. For example a nonunion em-
ployee, Ty Kohler, was fired by McCarthy much like
Flasinski, on the spot for insubordination. McCarthy inter-
vened in an argument between Kohler and another employee
and Kohler turned on McCarthy and said, ‘‘You put the
fucking stuff away. I don’t need this shit.’’ McCarthy fired
him at that point. Though the record shows that Kohler had
been previously given some warnings, McCarthy did not ask
for his personnel file and weigh what discipline to mete out,
he just fired him.
B. Discussion and Conclusions
The applicable test for determining whether Respondent
violated the Act in this proceeding is that set out in Wright
Line, 251 NLRB 1083 (1980). Under Wright Line, the Gen-
eral Counsel has the initial burden of establishing a prima
facie case of discrimination by showing (1) employer ani-
mus, (2) protected activity on the part of the discriminatee,
and (3) employer knowledge of that activity. I find that
under the credible facts presented, the General Counsel has
not met this initial burden.
Whether one agrees with the decision to discharge
Flasinski over the involved incident is not the issue in this
case. The issue is whether or not the discharge was
discriminatorily motivated by activity protected by the Act
and I cannot find that such unlawful motivation has been
proven. I find that Respondent discharged Flasinski for the
reasons given by it. I have heretofore credited McCarthy’s
testimony that he did not overhear a conversation between
Flasinski on November 9, which would have given an unlaw-
ful motivation for his actions toward Flasinski later that day.
I have credited his denial that he knew of Flasinski’s in-
volvement in Mark Cohen’s run in with Lucas. Flasinski ad-
mits to having refused to carry out McCarthy’s order on No-
vember 9, and I have credited the evidence which established
that the first time Flasinski asserted to management that he
was joking was on November 15, a week after his discharge.
Though the Cohens may have harbored union animus, there
is no proof that McCarthy did and he was the person who
did the firing. As I have noted earlier, there is no evidence
that Respondent was harassing or otherwise discriminating
against the unit members because of the strike or the Cohen
picket line incident. Flasinski’s discharge occurred some 5
months after these events. Flasinski was not engaged in any
protected activity at or near the time of his discharge which
could be found as a motive for the discharge.
Having concluded that Respondent did not discharge
Flasinski in violation of the Act, I will recommend that the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent did not commit the unfair labor prac-
tices alleged in the complaint.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The complaint is dismissed.