Carolina Freight Carriers Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1080 (N.L.R.B. 1989)

1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Carolina Freight Carriers Corporation and Edwin C.
Ward. Case 12-CA-12752
July 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr AND HIGGINS
On October 7, 1988, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel filed exceptions and an answering
brief to the Respondent's cross-exceptions. The Re-
spondent filed cross-exceptions and a brief in sup-
port thereof and in opposition to the General
Counsel's exceptions.
The National Labor Relations Board has delegat-
ed 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, and
conclusions' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' We agree with the judge that the Respondent properly terminated
Edwin Ward's employment . We find that Ward's October 22, 1987 be-
havior in asserting a contract right constituted insubordination because he
persisted in challenging his supervisor 's direct order to clock out . We thus
find that Ward 's conduct lost the protection of the Act. It is our view
that Ward should have followed his supervisor 's order to clock out and
then invoked the appropriate collective-bargaining procedures for assert-
ing his claim that he was entitled to be paid for a minimum of 6 hours.
Member Cracraft does not rely on the work now, grieve later analysis in
finding that Ward's discharge did not violate the Act.
We disavow the judge 's characterization of Postal Service, 282 NLRB
686 (1987), and Atlantic Steel Co., 245 NLRB 814 (1979), insofar as his
comments suggest that any record of past misconduct may be used to
narrow the "leeway an employer must accord an employee when an em-
ployee is engaged in protected concerted activity ." In Atlantic Steel, the
Board merely found that an arbitrator 's decision upholding a discharge
was not repugnant to the Act when the arbitrator relied on both the em-
ployee's unprovoked obscene response to a supervisor 's answer concern-
ing an overtime issue and the employee 's past record of misconduct. The
past misconduct was not used in determining whether otherwise protect-
ed activity had lost the protection of the Act Postal Service is relevant to
this case , but it essentially stands for the proposition that , in resolving the
question of whether an employee 's behavior is so extreme as to cause him
to lose the protections of the Act, a relevant factor to consider is past
efforts by the Respondent to correct similar misconduct by that employ-
ee. Under all the circumstances of this case , including the fact that the
Respondent had counseled Ward in the past about his abrasive behavior
and explosive temper , we agree with the judge 's conclusion that Ward's
conduct on October 22 , 1987, caused him to forfeit the protections of the
Act.
Peter J. Salm and Michael R. Maiman, Esgs., for the
General Counsel.
Peter Corbin and Richard Margulies, Esgs. (Corbin &
Dickinson), of Jacksonville, Florida, for the Respond-
ent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. Re-
spondent Carolina Freight Carriers Corporation (CFC)
operates a multistate trucking business . One of its termi-
nals is in Tampa, Florida. The warehousemen and truck-
drivers that CFC employs at that terminal are represent-
ed by Teamsters Local 79.1
CFC employs both "regular" employees and "casual"
employees at the Tampa terminal . Casual employees
work part time at the terminal and are accorded fewer
benefits and protections by the collective -bargaining
agreement between Local 79 and CFC than are regular
employees.
CFC employed Charging Party Edwin C. Ward as a
casual employee from June 1986 until October 1987. In
October CFC rejected Ward's application for a position
as a regular employee with CFC and then refused to
employ Ward even as a casual employee. The General
Counsel alleges that those actions by CFC-its rejection
of Ward 's application and its refusal to provide even
casual employment to Ward-stemmed from: (1) Ward's
previous role as a business agent of Local 79; and (2)
Ward's attempts to invoke the protections that he be-
lieved the CFC-Local 79 collective-bargaining agreement
accorded him. CFC denies that its actions concerning
Ward were based on either consideration. CFC also con-
tends that this proceeding should be deferred to the
grievance procedures provided by the CFC-Local 79
collective-bargaining agreement.2
My conclusion is that it would be inappropriate to
defer to the agreement 's grievance procedures, but that
the record fails to show that CFC violated the Act in
any respect.
Deferral Issues
The collective-bargaining agreement to which CFC
and Local 79 are parties contains grievance-arbitration
machinery, CFC is willing to waive any timeliness de-
fense it might have to any grievance filed by Ward, and
ordinarily
Where an employer and a union have voluntarily
elected to create dispute resolution machinery cul-
minating in final and binding arbitration , it is con-
trary to the basic principles of the Act for the
Board to jump into the fray prior to an honest at-
tempt by the parties to resolve their disputes
' CFC admits that it is an employer engaged in commerce within the
meaning of the National Labor Relations Act (the Act) and that Local 79
is a labor organization within the meaning of the Act
2 Ward filed his unfair labor practice charge on November 4, 1987, and
filed an amended charge on January 21 , 1988. The complaint issued on
January 28, 1988 The hearing was held in Tampa on March 31 and April
1, 1988. Due in part to problems with and delays in receiving the tran-
script of the hearing, the General Counsel and CFC did not file briefs
until July 1988 . CFC and the General Counsel have filed unopposed mo-
tions to correct transcript, which motions are granted
295 NLRB No. 124
CAROLINA FREIGHT CARRIERS CORP. 1081
through that machinery . [United Technologies Corp.,
268 NLRB 557, 559 ( 1984).13
But here there is reason to believe that Local 79
would not vigorously pursue the affected employee's
grievance.
Local 79 employed Ward as a business agent for about
a year and a half starting in January 1984. But in Sep-
tember 1985 Local 79's president, Cummings, asked
Ward to resign , saying that Ward's views were "not
compatible with his [Cummings '] political beliefs as far as
union political beliefs ." According to Ward's unrebutted
testimony , when Ward refused to resign he "was notified
on the floor of the local union meeting that [he] had
been terminated" as business agent . Thereafter the offi-
cers of Local 79 put Ward on "withdrawal status" which
precluded Ward from attending union meetings, voting,
and the like . According to the record here, at least,
under the Teamsters Union's rules, withdrawal status is
inappropriate for a Teamster member who is "actively
seeking work at the craft ." And Ward was actively seek-
ing work . Ward accordingly complained to the Interna-
tional . The International , in turn , advised Local 79 that
such action against Ward was "illegal ." Nonetheless,
Cummings continued to refuse to reinstate Ward, finally
doing so only at the insistence of the Georgia-Florida
Conference of Teamsters.
Cummings remains President of Local 79. Ward' s rela-
tionship with Cummings is "not friendly."
That history adds up to the presence of obvious ani-
mosity toward Ward on the part of Local 79's leader-
ship .4 And that being the case,
it would be repugnant to the purposes of the Act to
defer to arbitration in this case as to do so would
relegate the charging [Party] to an arbitral process
authorized , administered , and invoked entirely by
parties hostile to his interests . [Hendrickson Bros.,
272 NLRB 438 (1984).]6
Did CFC Refuse to Accept Ward as a Regular
Employee Because of Ward's Protected Activity
David Hoke is the manager of CFC's Tampa terminal.
In September 1987 CFC authorized Hoke to hire addi-
tional regular employees . (All events referred to in this
8 No grievance has been filed on Ward 's behalf But that does not pre-
clude deferral to the contract 's grievance -arbitration machinery See, e g ,
Blue Cross Blue Shield, 286 NLRB 564 (1987).
4 CFC points out that Local 79 did not stand in the way of CFC hiring
Ward and that the Local did not try to influence the union stewards at
CFC about Ward . But that hardly suggests that the Union could be
counted on to represent Ward vigorously in grievance proceedings
S It is by no means clear that the gnevance -arbitration machinery of
the collective-bargaining agreement applies to casual employees There is
evidence both that it does and that it does not. Compare United Technol-
ogies, supra, in which the Board noted that "the arbitration clause clearly
encompasses the dispute at issue " 268 NLRB 558. On the other hand the
Board has suggested that if a matter is otherwise suitable for deferral, de-
ferral should be ordered "unless it may be said with positive assurance
that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute ." Roy Robinson Chevrolet, 228 NLRB 828, 830
(1977), quoting Steelworkers of America Y. Gulf Navigation , 363 U S. 574,
582-583 ( 1960) Under the circumstances I rest my decision regarding the
inappropriateness of deferral entirely on the hostility of the Union 's lead-
ership toward Ward
decision occurred in 1987 unless stated otherwise.) Hoke
wanted to hire these additional regulars from the ranks
of the casual employees whom CFC employed at the ter-
minal.
That circumstance presented Hoke with some prob-
lems. CFC did employ one casual to whom Hoke unre-
servedly wanted to offer regular employee status, one
Brian Robinson . But Hoke wanted to put on more than
one additional regular employee and, in Hoke's view,
none of the other casual employees were particularly at-
tractive as potential regular employees.
The best of the Tampa terminal's casual employees
(apart from Robinson) was Edwin Ward-the Charging
Party . But Hoke had doubts about Ward.
Ward's Record at CFC
On the one hand, Ward was a prodigious worker-he
was exceedingly productive.
On the other hand , Ward carried an oversized chip on
his shoulder . And that greatly diminished Ward 's attrac-
tiveness as an employee.
To begin with , Ward was a "chronic complainer" (in
the words of a July memorandum written by Hoke) and
"explosive ." Ward complained loudly, nastily, and fre-
quently about his CFC supervisors-including Hoke. His
complaints were of two main varieties . One was that
CFC treated its casual employees "like subhumans,"
"like dirt." The other was that CFC's supervisors were
incompetent . That behavior by Ward not only was a
problem for CFC's management , it irritated other em-
ployees.
Second , several customers had complained about
Ward ; they said that Ward had been rude to them.
Third , Ward was inflexible about sudden changes in
his work schedule; he got upset and griped bitterly when
that happened.
As a result, even the union steward at the terminal
told Hoke that Ward had "a bad attitude and an axe to
grind and he wouldn 't be a good long-term employee."6
For all that, Ward was so productive that Hoke decid-
ed to offer Ward a job as a regular employee anyway.
About the time that Hoke made that decision he had two
talks with Ward about the job and about the concerns
that Hoke had about Ward. The talks did not go well.
Hoke said something about wanting to hire someone
who would be a "company" man. Ward responded that
he was not "an ass-kisser." Hoke told Ward that he
"came across to supervisors and fellow workers in an ab-
rasive way" and that if that continued it would keep
Ward from being hired as a regular employee . Ward re-
sponded angrily , telling Hoke that Hoke was narrow-
minded and that Hoke didn 't know what he was doing,
that Hoke had "run morale right to the ground" at the
terminal , and that supervisors at the terminal "don't
know what they're doing and they don't care."
Hoke nonetheless continued to focus on Ward as the
best prospect for regular employee status (after Robin-
6 The steward denied saying any such thing to Hoke . But I credit
Hoke . In the remainder of this decision I will not specifically note con-
flicts in testimony . My resolution of such conflicts will be apparent from
the decision's text.
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son). As a result, on or about October 13 Ward met with
Hoke and with David Morin. Morin is CFC's director of
operations , southern division . He is Hoke's boss. Morin
came away from the meeting satisfied that Ward under-
stood that unless Ward kept himself under control, CFC
would not take him on as a regular employee. Morin ac-
cordingly told Hoke to start processing Ward's papers.
Thus on October 14 Ward was told to fill out the myriad
forms that CFC needed to accomplish Ward's change in
status.
The Period Between October 14 and Ward's
Termination by CFC on October 23
Several incidents-albeit minor ones-occurred almost
immediately. For one, Ward promptly told Hoke that
some of the paperwork that CFC required of Ward was
"stupid" and "ridiculous." For another, part of CFC's
routine, in taking on a regular employee is to require the
employee to take a polygraph test. Ward "cleared the
polygraph without exception ." But according to Hoke's
credible testimony, the polygraph operator told Hoke
that Ward "sure doesn 't care much for Carolina 's poli-
cies."
Then, on October 19, Ward accused CFC of deliber-
ately acting slowly on Ward 's application in order to
delay Ward's change in status . They were doing that,
said Ward , to prevent him from earning a paid holiday
on Thanksgiving.
The situation arose because Ward believed that under
the terms of the CFC-Teamsters collective-bargaining
agreement he had to be employed as a regular employee
for at least 30 days prior to Thanksgiving in order to be
entitled to a Thanksgiving holiday . Ward ran across
David Morin (Hoke's boss) soon after Ward noticed his
application for regular employment "laying in the dis-
patch room." At the time Morin was with John Mulvey,
a vice president of CFC and Morin 's boss . Ward turned
to Morin and said something along the lines of , "Dave,
are you messing around with my paperwork to screw me
out of my holidays?"7
Morin's response was to speak to Hoke about Ward
that same day. Morin told Hoke what had just happened
and to say that he was now dubious about taking Ward
on as a regular employee:
I can't believe it. Ed came up to me and wanted to
know if we were . . . holding his file up because
we were trying to screw him out o [sic] his holidays
.. I can't believe this guy would challenge me
like that ... .
Are we kidding ourselves here? We're working
hard as hell to justify putting this man on regular.
I've got a bad feeling about this . He knows we're
putting him on regular and he's still pulling the
7 The transcript , p 34, can be read as indicating that Morin testified
that Ward 's comment had "nothing whatsoever " to do with CFC's action
against Ward . But the transcript is badly garbled at that point Morin ac-
tually testified that Ward 's entitlement to holiday pay if he became a reg-
ular employee had "nothing whatsoever " to do with CFC's actions re-
garding Ward.
same stuff [as] before. . . . [W]e'll discuss it more
... but I want to sleep on this.
Morin spent part of the next day asking questions
about Ward. Morin spoke to Ward's supervisors, to the
shop steward of the Tampa terminal (Shular), and to
Alan Moffitt , who was the terminal's lead mechanic and
who had been a shop steward. of All said that Ward was
a good worker . But all spoke against taking Ward on as
a regular employee . Moffitt, for example , said that Ward
was a good driver and checked out his truck carefully,
but then went on to talk about an incident in which
Ward "flew off the handle and [began] hollering and
screaming and cussing ." Ward "had a bad attitude prob-
lem," Moffitt told Morin, and "was always griping about
Carolina, cussing Carolina, cussing the management."
In the meantime , another casual employee (one who
was competing with Ward for the regular employee slot)
spoke to Hoke about Ward, saying that Ward was con-
stantly badmouthing CFC's management to fellow em-
ployees.
Then, on October 22, Ward exploded in anger about
what he deemed CFC's inconsiderateness , an inconsider-
ateness that, in Ward 's view , violated CFC 's contractual
obligations.
Ward drove a pickup-and-delivery route that day. He
worked hard, got a lot done, and returned to the termi-
nal 4-3/4 hours after he had clocked in. Ward thought
that there would be more work for him at the terminal.
But instead Ward's immediate supervisor, Kevin Fletch-
er, told Ward that there was no more work, and that
Ward should punch out.
Fletcher's order that Ward punch out was not forbid-
den by the terms of the collective-bargaining agreement.
(The language of the agreement gave casuals the right to
at least 4 hours of pay if they worked at all, and to 8
hours of pay if they worked more than 6 hours in a day.
But the agreement said nothing about any minimum
hours entitlement for casuals working between 4 and 6
hours.) Ward, however, had been ordered to take lunch
during the course of his work that day, and he believed
that, under an interpretation given to the agreement by a
grievance panel , casual employees were entitled to 6
hours work if they (1) worked more than 4 hours, and
(2) had been required to take a lunchbreak during those
4 hours. The combination of what Ward felt was a viola-
tion of CFC's contractual obligations and CFC 's failure
to fulfill Ward's expectation of a full day's work was too
much for Ward. He loudly told the supervisor that he
was entitled to 6 hours work and that he would not
punch out until he got it.
Ward thereupon looked for Hoke, found him on the
terminal 's dock, told Hoke what had happened (without,
however, explaining his required-to-take-lunch theory)
and said that "he was going to get his six hours one way
or the other." Hoke said that he would find some addi-
tional work for Ward to do that day (and did in fact do
so), but that Ward should understand that casual employ-
ees were not guaranteed 6 hours' work . When expected
levels of work fail to materialize, Hoke said, CFC was
entitled to order its casual employees to clock out.
CAROLINA FREIGHT CARRIERS CORP. 1083
Ward responded by saying , among other things, that
CFC treated its casual employees inhumanely and that it
was not worth his time to come in for only 4 hours'
work.
Hoke testified that the incident troubled him for two
reasons . The first was that Ward failed to honor a direct
order of a supervisor-the order to clock out. The
second was that-"when he [Ward] came out to me, he
started going over the same things he had been bitching
and complaining about for the longest time."
Hoke telephoned Morin that evening. Morin asked
whether Hoke had thought more about Ward's applica-
tion for regular employee status . Hoke responded by tell-
ing Morin about "what happened with Kevin [Fletch-
er.]" Morin expressed his concern about taking on Ward
as a regular employee . Hoke agreed, saying that Ward
was-
a hell of a producer . But . . . if he's this way now,
what 's he going to be like when he gets regular.
... Is he going to challenge and intimidate every
supervisor every time they do something he dis-
agrees with?
At that point Morin and Hoke agreed that CFC ought
not employ Ward as a regular employee. Morin subse-
quently spoke about the matter to CFC's labor relations
department, which advised that if Ward 's application for
regular employment were being rejected , CFC ought to
cease employing Ward in any capacity . Hoke heeded
that advice , and CFC has not employed Ward since Oc-
tober 23, 1987.8
Did CFC Violate Ward's Section 7 Rights
An employee who honestly and reasonably believes
that an employer is acting contrary to the employee's
collectively bargained rights is entitled to complain to
the employer about such action. The employee 's conduct
is protected unless the manner in which the employee
made the complaint was too far out of line. NLRB v.
City Disposal Systems, 465 U.S. 822 (1984); Brunswick
Food & Drug, 284 NLRB 661 (1987).
The General Counsel argues that two of the events
that led CFC to reject his application for regular em-
ployee status, and to fire Ward , involved protected activ-
ity on Ward's part: Ward 's comments to Morin about the
Thanksgiving holiday, and Ward's insistence, on October
22, that he was entitled to 6 hours' work.
Turning first to the Thanksgiving holiday dispute,
there is no doubt that one of the reasons that CFC acted
against Ward was Ward 's comment to Morin : "are you
messing around with my paperwork to screw me out of
my holidays ." And it is also clear that the CFC-Team-
8 On October 23 Hoke told Fletcher (Ward 's supervisor) to have Ward
see Hoke (so that Hoke could give Ward the bad news about his employ-
ment with CFC). Fletcher told Ward to see Hoke (without saying why)
just as Ward clocked out for the day. That timing led Ward to explode
with a "Christ, why didn't you tell me before I punched out." According
to Hoke , that outburst by Ward "reconfirmed" his decision. But Hoke, of
course , had already made up his mind about Ward . And the incident
would not have occurred but for CFC 's decision to reject Ward 's appli-
cation . Thus I have not taken the incident into account , even for Wright
Line purposes.
sters contract provided for holiday pay for bargaining
unit members employed at least 30 days prior to the holi-
day in question . Thus, if a regular employee protested
CFC's failure to accord the employee a Thanksgiving
holiday, the protest would fall within the protections of
City Disposal . But Ward was complaining about delays in
the processing of his application , not about CFC's failure
to grant the holiday to someone who was entitled to it.
I suppose one conceivably could argue that the collec-
tive-bargaining agreement might be read as prohibiting
CFC from avoiding holiday pay obligations by delaying
action on job applications. Or rather , one could argue
that it was not unreasonable for Ward to believe that the
agreement ought to be interpreted that way. But that
seems farfetched to me. The likelihood is that when
Ward made his screw-me-out-of-my-holiday remark, he
knew that CFC had no contractual duty to process his
application promptly. And even if Ward did believe that
some contractual duty was involved, that belief was too
unreasonable to serve as the basis for protected conduct.
The situation was quite different regarding Ward's re-
sponse on October 22 to his supervisor 's order that he
punch out after 4-3/4 hours' work.
Ward clearly had the right to complain about that
order . The collective-bargaining agreement to which
CFC was a party did cover minimum-hours matters, and
Ward did honestly believe that the order was contrary to
a collectively bargained right. Under the circumstances
the question of whether Ward 's interpretation of the con-
tract was wrong or right "is irrelevant ." ARO, Inc., 227
NLRB 243 (1976), enf. denied 596 F.2d 7, 13 (6th Cir.
1979). Accord: Corry Jamestown Corp., 238 NLRB 320
(1978), enfd. mem. 622 F.2d 579 (3d Cir. 1980). And
since CFC's action against Ward was based in significant
part on Ward 's response to that order to clock out, CFC
thereby violated the Act unless : ( 1) Ward's response was
so egregious that the protections of Section 7 did not
apply ; or (2) CFC would have taken the same action
against Ward even had the incident not occurred.
Was Ward 's conduct too far out of line? The Act would
lose much of its meaning if employees felt that they had
to tread cautiously, to be "polite," when engaging in the
kinds of activities intended to be protected by the Act.
For present purposes we can thus assume that, standing
alone, the way Ward demanded what he thought was his
right to 6 hours pay was not so extreme as to lose the
protections of the Act. See, e .g., W. G. Diehl Distributing
Co., 283 NLRB 524 (1987); Fall River Savings Bank, 247
NLRB 631 (1980). As the General Counsel points out,
there is no indication that Ward 's behavior hindered the
operation of CFC's business in any way.
But Ward 's conduct on October 22 did not stand
alone . CFC had long been concerned about Ward be-
cause he seemed unable or unwilling to control his ex-
plosive temper, because he came close to insubordination
in the way he spoke of and to his supervisors, and be-
cause he so often spoke ill of CFC. Not long before, in
fact, Hoke had talked to Ward of such matters.
An employee 's past behavior does affect how much
leeway an employer must accord an employee when an
employee is engaged in protected concerted activity. In
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order to claim the protections of the Act, employees
with histories of misbehavior must hue closer to the in-
dustrial norm when engaged in protected kinds of activi-
ty than must employees with better records. Postal Serv-
ice, 282 NLRB 686 (1987); Atlantic Steel Co., 245 NLRB
814 (1979).
Ward's behavior on October 22 displayed many of
Ward 's worst traits . During working hours and in a
working area Ward lost his temper , refused to follow an
order of his supervisor (the order that he clock out), and,
at some length , criticized CFC and its management.
Hoke and Morin, in turn, considered that behavior in
light of Ward's history with CFC when they decided to
reject Ward's application for regular employment and to
cease employing Ward.
There are, moreover , additional factors to consider.
Ward 's conduct was not a response to any unfair labor
practice on CFC's part and did not occur in a grievance
meeting or contract discussions . See Atlantic Steel Co.,
above . And CFC's actions against Ward were not based
on the fact that Ward was attempting to obtain the rights
he believed he had under the collective -bargaining agree-
ment; CFC was concerned only with the manner in
which Ward sought to obtain those rights. Compare,
e.g., Antenna Department West, 266 NLRB 909 (1983).
Under all the circumstances, therefore, my conclusion
is that CFC did not violate the Act when CFC acted
against Ward because of the manner in which Ward
complained that CFC was not honoring his collectively-
bargained rights.
Was CFC's Decision to Reject Ward's Application
for Regular Employee Status Based on Ward's
Previous Position as a Union Business Agent
Ward testified that Hoke told Ward: "I'm afraid of
you because of your prior union affiliation , being a busi-
ness agent and all that ." I do not credit that testimony.
On the other hand the record does show that in late Sep-
tember or early October Hoke spoke to union steward
Shular about Ward. Hoke asked Shular, among other
things, whether Ward's "previous position in the local
union would have anything to do with his work."
(Shular responded , "no.")
But taking into account the entire sequence of events
relating to CFC's action against Ward, I am convinced
that Ward 's past job as union business agent had nothing
to do with CFC's actions regarding Ward.
Wright Line Matters
CFC argues that even assuming that protected activi-
ties did figure in CFC's action against Ward, the record
shows that CFC would have acted the same way absent
those activities. CFC thus contends that it would have
rejected Ward's application for regular employee status
and then terminated Ward 's employment even had Ward
not claimed entitlement to 6 hours ' work on October 22.
Considerable evidence supports CFC's claim. As dis-
cussed above, even when Hoke and Morin decided to
encourage Ward to submit an application for regular em-
ployment, they were not altogether confident about their
choice. Then, in the days immediately before CFC acted
against Ward : (1) Morin and Hoke received unfavorable
comments about Ward from several supervisors and
fellow employees of Ward; and (2) Ward behaved in
ways virtually calculated to bring himself to the unfavor-
able attention of CFC's management . In particular, Ward
accused CFC's management of underhandedly manipu-
lating clerical processes in order to avoid paying Ward
holiday pay; and Ward chose to address that accusation
to a CFC Director of Operations (Morin) who was ac-
companied at the time by a CFC vice president.
The deciding factor here is burden of proof. If it were
up to the General Counsel to show that Ward would not
have been fired but for his demand for 6 hours' pay on
October 22, I would have to find in CFC's favor. But
the burden rests with CFC, not with the General Coun-
sel. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981 ); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
Even with CFC having to carry the burden on this
issue, I think the matter is extraordinarily close. But in
view of the emphasis that Morin and Hoke gave to the
October 22 incident in the telephone call in which they
decided to reject Ward 's application , and given the
chronological connection between that incident and that
decision, I cannot conclude that CFC carried that
burden.
My conclusion that CFC has not met the Wright Line
test does not affect the outcome of this proceeding, of
course, given my earlier conclusion that Ward's behavior
during the October 22 incident was not protected.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed9
ORDER
The complaint is dismissed.
9 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.