Conroe Packaging, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1979

243 N.L.R.B. 812 (N.L.R.B. 1979)

DE('ISIONS (OF NA IO()NAI. LABOR REI.ATIONS BOARI)
Conroe Packaging. Inc. and Salesdrivers, Delivery-
men, Warehousemen and Helpers, local 949, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America. Case
23('A 7150
July 30, 1979
DECISION AND ORDER
BY ME:MBERS PNI.I .O MI RPIIY. ANI) TRUSI)AI 1
On May 22, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
-ions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made hy
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative las judge's resolutions with respect to credibility
unless the clear preponderance of all of' the relevant evidence convinces us
that the resolutions are incorrect Standard Drn Wall Products. Inc. 91
NI.RB 544 (1950). enfd. 188 F.2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMEN] 01 IHt CASt
TIMOItHY D. NIELSON, Administrative Law Judge: This
case was heard in Conroe, Texas. on February 6, 1979.
Upon a charge filed on July 13. 1978,1 by Sales Drivers.
Deliverymen, Warehousemen and Helpers. Local 949, a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (Union) against Conroe
Packaging. Inc. (herein called Respondent or the Com-
All dales are in 1978 unless otherwise indicated.
pany). the Regional Director for Region 23 issued a com-
plaint against Respondent on September I which alleged, in
substance, that the Company violated Section 8(a)(3) and
(I) of the National Labor Relations Act, as amended
(herein called the Act) by threatening an employee with
physical harm for engaging in union activities and by issu-
ing a 2-day disciplinary suspension to that same employee
in reprisal for his union activities. The Company's answer
to the complaint denies those allegations.
UIpon the entire record herein, including mar observation
ofl the witnesses' demeanor and consideration of timel,
post-trial briefs from the G(eneral Counsel and the ('om-
pans. I make the following:
FIN)IN(s 01 A( I
1. J RIS I)i( ION
The Company is a exas corporation engaged at Conroe.
Texas. in canning soft drinks and distributing them to
wholesalers throughout Texas. During the ear preceding
the issuance of the complaint, a representative period. the
Compan) purchased goods and materials directly from
points outside Texas valued in excess of' $50.(X).
II. I AB()R OR(iANI.AI()N
The Company admits that the Union meets the definition
of a "labor organization" as defined in Section 2(5) of the
Act.
Ill. SIUMMARY () Illt- PARlltES ( )NIENII() NS ANI)
PRlt] IMINARY t IN)IN(S
The case primarily involves the Company's 2-day disci-
plinary suspension on June 29 of one of its tractor-trailer
drivers. Morris Leverett, allegedly in retaliation for his sup-
port for the Union when, roughly I year earlier, the Union
had prevailed in a Board election and had become certified
in a unit of production and maintenance employees, includ-
ing truckdrivers.)
The Company never pretended ignorance of' Leverett's
union activities. readily conceding such knowledge through
counsel early in the trial. including his central role in the
preelection organizing campaign, his testimony as a witness
for the Union in a representation hearing, and his serving as
the Union's election observer. Based on these concessions
and on credible supplemental evidence, itself uncontested. I
find that Leverett was, and was known to company man-
agement as, the key employee organizer during the earlier
period: and that he played the other conspicuous prounion
roles just described.
The U nion did not file a brief
Noticing official Board records in Case 23 RC 4533: pursuant to agree-
ment of the parties. an election was held on July 28. 1977, with the Union an
apparent victor by one vote. but with a union-challenged ballot determ!na-
tive. There were also objections filed by the Union Following a hearing and
the issuance of a hearing officer's report and recommendations, the Board
sustained the challenge, thereby mooting the objections, and certified the
Union on April 20. 1978
243 NLRB No. 132
812
(ONRO(). PACKAING. INC.
As a threshold argument. the Company stesses the suh-
stantial length of time which had elapsed between its initial
knowledge of l.everett's union activities and the imposition
of the assertedly "retaliatory" disciplinary action.4 Thus.
Company counsel argues that the General Counsel's case is
lacking in prima trwi' merit.
The Company further maintains. with supporting evi-
dence discussed below, that Leverett's suspension derived
from no more than a measured and nondiscriminator
judgment made by truckdrivers' Supervisor Fred Bracken.
ratified by General Manager Leonard Pillans. that l.everett
had shown a recent tendency to he unjustifiably late in
making deliveries to the Company's wholesale customers.
According to the Company, having earlier issued a mild
written reprimand to Leverett and another driver for taking
too long on round trips between Conroe and Mesquite.
Texas, and being dissatisfied with Leverett's most recent
excuse for lateness in the precipitating incident on June 29.
Bracken resolved to suspend Leverett for 2 days to jostle
him into improvement.
In apparent recognition that a lengthy hiatus between an
employee's union activities and his employer's subsequent
adverse treatment of him tends to weaken the inference that
the former motivated the latter. the General Counsel
stresses, with supporting evidence discussed below. the iol-
lowing: (a) General Manager Pillans showed continuing
hostility towards employees' selection of the Union and to-
wards Leverett as the Union's key supporter:' and (b) the
imposition of a disciplinary suspension was unprecedented
for "late delivery" problems, which were not unusual
among the group of approximately 14 'road" drivers. In
short, the General Counsel argues that the asserted reason
for Leverett's suspension was pretextual. thereby inviting
the inference that there were illegal ulterior motives in-
volved.
I'. IH QOlt S()N o titt ( ()MPANYS ( ()N iNtlll S
"ANIM S
By way of"background," to show that the Company was
strongly hostile to the Union, the General Counsel intro-
duced evidence in the form of preelection campaign letters
as well as the Hearing Officer's Report on Challenges and
Report on Objections and Recommendations (which con-
tain findings of objectionable conduct on the Company's
part s which were not affirmed by the Board because of
mootness see fn. 3, supra). The campaign letters reflect a
vigorously defiant attitude by the Company towards the
Union. One letter (G.C. Exh. 3), signed by General Man-
ager Pillans. reflects a preoccupation with the likelihood
that the Union would strike the Company and that employ-
Since Leveretlt's union activities known to the Company began well be-
fore the July 28, 1977. election, it is found that the Company had such
knowledge for more than I year before the allegedly discriminatory action
was taken.
5 Including by Pillan's allegedly threatening remarks made In June to
Leverelt which are separately alleged in the complaint as violating Sec.
8(a) ), discussed below.
I None of the management representatives involved in the current contro-
versy, i.e.. Pillans or Bracken, was found to have engaged in ohjectionable
conduct, however.
ees would suffer as a result, together with a catalogue of
alleged misfortunes suffered by other employees in Texas as
a result of' strikes following their selection of the Union.
Such evidence clearl b reflects that the (Compan did not
welcome the Utnion's advent in spring 1977. ('ampaign
rhetoric being what it is, however. I would not automati-
call, infer from such background that the Company and
especially key actors Pillans and Bracken was disposed to
single out and discriminate against Leerett for his union
activities over I ',ear after the election campaign. It is nev-
ertheless noted in passing that the CompanN was not happy
about the Union's arrival on the scene in 1977. and nothing
in this record suggests that it as an, more comftortable
with the Uinion I ear later.
As further evidence of Pillans' hostilitN towards the
Union nearer the time of the allegedly discriminators treat-
ment of I.everett. evidence was presented regarding three
conversations involving Pillans. In the first two. which are
not alleged as violative of the Act. Pillans is reported by
l.everett and Paul Babb. another driver, to have announced
sometime in March that the Company was changing driN-
ers' pay from an hourly rate to a trip rate. Both I.es erett
and Babb stated that when Pillans told each of them about
this change in separate conversations. he further com-
mented (to Leverett) to the effect:
he knew I didn't like it but there wasn't a damn thing
I could do about it or my union.
(land to Babb):
I bet before the sun goes down that [the Union's orga-
nizerl Poncho . . . and the NLRB will know about it.
Pillans flatly denied making either comment. but his de-
nials were perfunctory and unconvincing. and I credit
leverett and Babb on the point. Such remarks. while re-
flecting a continuing disdain for the Union on Pillans' part.
have limited value in resolving the issues raised by the com-
plaint, however. As is discussed belo., resolution of the
issues surrounding the alleged threat to Leverett and his
later suspension does not require reliance on the above evi-
dence of hostility towards the Union.
i. AI .I(;:li) I lRA I BY PIIIANS ro LI tRL I Ol N JO N I 9
The complaint characterizes a conversation between
Leverett and Pillans on or about June 19 as involving a
threat by Pillans that he would "inflict bodily harm" on
Leverett if Leverett "continued to solicit support of other
employees on behalf of the Union." Leverett initially testi-
fied that upon returning from a delivery run on June 19
Pillans called him into Pillans' office and immediately'
stated to Leverett (in Leverett's words):
. . .he said he had a driver out there that. if I tried to
push the union on them, would whip my ass.
Pursuing the matter, Leverett extracted from Pillans that
the "driver" was a recently hired individual named Gordon
? Leveretl Introduced Pillans' remarks with the comment: "I don't remem-
ber what he called me up there for." before describing the exchange next
reported n the main text Considering his more amplified estimony on the
subject when recalled on rebuttal. Leverett's initial version appears to reflect
a desire to "edit' the exchange lOr the purpose of obscuring the context.
X813
)t( lISI()NS ()I NA'II)N\I. LABO)R RLATIO)NS BOARI)
Hurst. I.everett then remarked to the etlffect: "Where I come
from. we kicked ass back." Pillans allegedly rejoined, in
Leverett's words:
if I wasn't careful. I might end up like a driving buddy
of' mine.
Pursuing this remark, Leverett established that Pillans was
referring to an employee named Floyd Roberts who had
recently suffered an attack by unknown assailants while
stopped with his truck at a rest area.' According to Lever-
ett, the conversation then ended, and he was directed to
return to work.
Pillans' version of the same exchange was markedly dif-
ferent, both in the explanation of the context in which his
remarks to Leverett occurred as well as in the remarks
which he made. Pillans explained that he had heard from
Plant Superintendent Paul McLain that McLain had over-
heard Leverett refer to another driver as a "garbage scab"
while Leverett was conversing on a citizen's band radio
channel with another driver. McLain is likewise equipped
with a C.B. radio and was familiar with Leverett's "handle"
("Coffee Cup") and recognized Leverett's voice when he
heard the transmission. McLain assumed that Leverett was
referring to the new driver, Gordon Hurst. who was driving
a "garbage run" at the time.0
Accordingly. states Pillans, when he happened to see
Leverett in the coffee area'0 shortly after receiving McLain's
report, he look L.everett to his office and told I.everett what
McLain had reported. Then, by way of advice, he told
Leverett that "that guy [i.e., Gordon Hurst] was mean["]
and if he caught him [i.e., Leverett] saying that, he would
literally, kick his ass." According to Pillans, L.everett replied
that where he came from ". .. we kick each other's butts"
prompting Pillans to say: "Wait a minute. Wait a minute.
That's not what we're going to have around here. If there's
any butt kicking going on, I'll do it all so just leave that up
lo me." Pillans specifically denied that he cautioned Lever-
ett against "pushing the union" on Gordon Hurst. He ac-
knowledged, on cross-examination, that he also commented
to Leverett that he did not want Leverett "... to end ... up
like one of [his] other buddies." Although Pillans acknowl-
edged that he was referring here to the assualt on Floyd
Roberts. he states that he did not mention Robert's name in
this regard. Whether he did is inconsequential.
IThere is no suggestion in the record that the Company had anything to
do with the assault on Roberts. nor that the assault was in any way related to
the labor relations situation at the Company.
I Leveretl denied having referred to Hurst as a "garbage scab." insisting
that he only made reference to some garbage cans that had been lodged
under the axle of the truck driven by the driver with whom he was convers-
ing via C.B. I do not determine whether this is the truth McLain and Pillans
were credible and mutually corroborative in stating that McLain overheard
what he believed was a reference to a "garbage scab" and reported it to
Pillans. I find that this is how McLain reported the incident to Pillans. even
though he may have misheard Leverett's C.B. transmission.
O I do not decide whether Pillans first met Leveretl in the coffee area or
whether, as Leverett reports, Pillans had Leverett summoned to his office-
the discrepancy not appearing to have any bearing on the question of what
was said between the two in Pillans' office,
il Pillans volunteered the opinion at trial that Gordon Hurst "was a pretty
mean old bird. And he's not the kind of employee we'd like to have around,
but we needed someone and we had him." Hurst was apparently terminated
before this matter came to trial.
When recalled to the stalnd during the rebuttal portion of
the General ('ounsel's case, I.everett this lime readil cn-
ceded that which he had earlier omitted about the setting
and context within which Pillans had made his alleged
"threat." This time Leverett admitted that Pillans had told
him about a report from Mcl.ain about a reference to Gor-
don Hurst as a "garbage scab," and that these remarks pre-
ceded the alleged "threat."
As found above, Leverett's initial version of the exchange
with Pillans was tailored to omit the above background.
Based on this, I am not satisfied that Leverett's account of
the "threat" was any more candid or complete." Accord-
ingly, I credit Pillans' account of the remarks which he
made to [.everett and of the context within which they were
made. From Pillans' account. it does not appear that Lever-
ett could have seriously regarded Pillans' remarks as either
an explicit or veiled threat that Leverett would suffer harm
at the Company's hand for his union activities." Rather,
Pillans' remarks appear to have been in the nature of a
caution not to engage in potentially inflammatory conduct
which might precipitate violence between Leverett and
Hurst. So viewed, such remarks do not have the tendency to
interfere with, restrain. or coerce employees in the exercise
of rights guaranteed in Section 7 of the Act. Accordingly. it
is recommended hereafter that the complaint allegation
dealing with an alleged threat by Pillans to do violence to
L.everett unless he stopped seeking support for the Union
from fellow employees be dismissed.
V. Al l.(;l) I)IS(RIMINAIIRY S SPINSIt)N ()i: I vLRtRlI'I
A. Background
Leverett and fellow driver. Paul Babb. had each received
written warnings on April 21 for taking excessive time on
delivery runs between ('onroe and Mesquite. Texas. The
warning signed by Pillans stated, in pertinent part:
It has been called to my attention that it is taking you
17 hours to go to Mesquite and back. All other drivers
are doing this in II hours: this seems like ample time
to make the trip. (General Counsel's Exhibit No. 5.)
The issuance of that mild reprimand is not alleged as
discriminatory. Indeed, the General Counsel affirmatively
disclaimed such a contention. It therefore must be assumed
for purposes of this Decision that it was issued in good faith
based on reasonable cause, there being no independent evi-
dence to the contrary.'4
u Exactly why Pillans would threaten Leverett "for his continuing union
solicitation . (G.C. Br.. p. I1) where there is no evidence that Leverett
was engaged in such "continuing" conduct is a question not addressed by the
General Counsel.
3 Of course the situation could have been entirely different if everett, in
fact. had been engaged in solicitation of Hurst or other employees to support
the Union, and had Pillans threatened him for such solicitation in the good-
faith belief, but mistaken belief that everett was engaged in misconduct. Cf.
N.L.R.B. v. Burnup & Sims. Inc.. 379 U.S. 21, 23 24 (1964). Here. however.
there was neither such protected activity on Leverett's part in the first in-
stance nor, as is found above, was there any "threat" linked thereto.
" That. "[Tlhere are numerous reasons why it would take longer than
usual to make a Mesquite run .... " as pointed out by the General Counsel
on brief, is not persuasive evidence that the April 21 warning was issued in
814
CONROE PACKAGING. INC.
On at least one other occasion in or around late May or
early June Pillans remonstrated with Leverett for failing to
depart for a local customer's loading area until 30 minutes
after Leverett was due to arrive there. In addition, there
was credible and undisputed testimony from Bracken and
Pillans that a San Antonio customer had complained about
a late delivery in June, for which Leverett was responsible.
When asked about it by Bracken, Leverett acknowledged
that he had gotten a late start due to his having overslept at
home. In addition, Pillans credibly testified to have person-
ally received at least three calls from customers in June
relating to late deliveries-all involving l.everett. ' 5 Pillans
further testified credibly that it was unusual for a complain-
ing customer to seek out Pillans with such complaints-the
more routine practice was for a customer to direct such
inquiries and complaints to Bracken. Further, according to
Pillans' credited and undisputed testimony, it was unusual
for him to personally receive that many calls in I year in-
volving the same driver, let alone in I month. I conclude.
consistent with Pillans' assertion, that there were an
extraordinary number of instances of "late" complaints in-
volving Leverett which had come directly to his attention
and which caused him, on June 29, to go along with
Bracken's recommendation that Leverett needed something
more than a mere warning to get him to become more con-
scientious about timely deliveries.
B. The June 20 Incident
On June 29 Leverett was scheduled to make a run to
Victoria, Texas. Under well established and undisputed
practice, drivers making this run were expected to leave
Conroe by 3:00 a.m. and to arrive at Victoria between 7
and 8 a.m. The distance between the two points is approxi-
mately 150 miles. The 3 a.m. "leave time" is intended to
provide some "slack" in the event of breakdowns or the
driver's need to stop for a nap. Driving nonstop at 55 miles
per hour would take slightly less than 3 hours. Leverett
departed Conroe at the scheduled 3 a.m. "leave time" but
did not arrive at the Victoria destination until about 10
a.m. 6
According to Leverett's uncontradicted and credited tes-
timony, the delay was caused as follows: After making a
other than good faith. The warning addresses itself to a pattern of Leverett's
taking 17 hours for the run. Leverett acknowledged that the run usually
takes 12 to 14 hours, and that he has done it in less time than that. Leverett
admitted that on at least one tnp" he took 17 hours, and he did not explain
why that trip took that long. He never specifically denied that he was taking
more than the usual time on other Mesquite runs prior to the April 21
warning.
's These included the San Antonio customer, Logan Huntress, who called
on June 6 about the delivery which was delayed due to Leveret's having
overslept; a call from Austin customer, Scott Sindahl. on June 12: and a
second call from Huntress in San Antonio on June 26. The record does not
reveal whether there were exculpatory circumstances in the latter two cases.
Leverett did not testify regarding them.
6l Leverett thought that he had arrived at "about 9:30," but his freight
bills had been marked by the destination customer with two entries-one
from a mechanical time stamp showing "9:59." and the other a handwntten
entry showing "10:00." These entnes were made by the customer at
Bracken's and Pillans' request after each had earlier received separate com-
plaints from the customer that Leveretts delivery had not yet been made (see
below).
timely departure from Conroe. Leverett stopped en route to
Victoria at a filling station for coffee and there discovered
that his wallet was missing. Believing that he might have
left it at the Company's premises, he drove his truck back to
Conroe and searched the Company's loading area without
success. This diversion took an unstated amount of time,
but it was sufficient to cause Leverett to realize that he
would not arrive at his destination by the expected time.
Leverett admitted that when a driver encounters difficul-
ties which ma) delay a delivery beyond the expected time
"usually we stop and call in .... if we are going to be late
and tell him [Bracken] what our problem is." Other drivers
called by the General Counsel, including Babb and Car-
rington, likewise acknowledged that this is the usual prac-
tice. Notwithstanding this, Leverett admittedly did not call
in to advise Bracken that he was running late.
In the meantime. at around 8:15 or 8:30 a.m., Bracken
had received a telephone call from Dale Campbell. the cus-
tomer in Victoria who was awaiting Leverett's delivery.
Asking where "the damn truck" was, Campbell was told by
Bracken that the latter did not know, but that the load had
left Conroe. At about 9:30 a.m. Pillans also received a call
directly from Campbell who was "very upset" that the
truck still had not arrived. Pillans was unaware of any
problems, and, with Campbell waiting on the line, Pillans
summoned Bracken to his office, asking who the driver was
and where he was. Bracken told Pillans that Leverelt was
the driver, but that he did not know where Leverett was.
Both Bracken and Pillans then left a request with Campbell
to have Leverett call Bracken when he arrived at Victoria
and also to note the time of Leverett's arrival on the freight
bills.
Upon arrival to Victoria Leverett telephoned Bracken
and admittedly failed to disclose to Bracken the real reason
for his running late. Instead, Leverett simply responded to
Bracken's inquiry by saying. according to Bracken's cred-
ited version, that Leverett had lost his wallet on his front
lawn and that he had been required "to take it easy about
getting there. He didn't want to get a ticket."'
Bracken and Pillans were substantially mutually corrobo-
rative as to the decision to issue Leverellt a 2-day disciplin-
ary suspension without pay as a result of the June 29 inci-
dent. When Bracken had been called to Pillans' office to
talk to Campbell at 9:30 a.m. Pillans had told Bracken that
he ought to do something about Leverett. At this point Pil-
lans reminded Bracken about Leverett's having been
warned about taking excessive time in his Mesquite runs
and also referred to having received a recent spate of "late"
complaints about Leverett. Bracken agreed but did not de-
cide what to do until he spoke to Leverett after 10 a.m.
Realizing that the run to Victoria-even at a prudent
speed-could not take more than 3 hours, Bracken found
Leverett's false excuse for taking 7 hours to be unsatisfac-
1 According to Levereti. he did not learn until after his call to Bracken,
when he called his wife at home. that his wallet was on his ront lawn He
acknowledged saying to Bracken, however. that he was required to drive
slowly out of fear of being stopped by the highway patrol and being discos-
ered not to be in possession of his dnver's license. Even by Leverett's version,
it is clear that L.everett sought to leave the impression that prudent driving
had caused him to be 2 hours overdue at his destination, when, in fact. the
real problem was the undisclosed diversion back to Conroe to search for the
wallet
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory. Accordingly, after speaking with Leverett by phone
and instructing him to return promptly to Conroe, Bracken
decided, and so informed Pillans, that Leverett should re-
ceive a 2-day suspension. Pillans concurred. When Leverett
returned to the Company from Victoria at about 3 p.m.
Bracken told Leverett that he would have to be laid off for
a few days. Leverett did not seek to argue the issue.
Discussion and Concluding Findings
Respondent does not dispute that the June 29 suspension
of Leverett was the first case of imposing a disciplinary
layoff as a penalty for late deliveries. From this the General
Counsel argues that ulterior motives must have entered into
the decision to suspend Leverett. In support of that position
the General Counsel devoted an arguably inordinate
amount of trial and briefing effort to show that late deliver-
ies were commonplace among the Company's drivers. Thus,
each employee witness was invited by the General Counsel
to explain how it could happen that a driver might arrive
late at a destination due to circumstances beyond the driv-
er's control such as mechanical breakdowns, heavy traffic,
driver fatigue requiring a nap stop, etc. Each driver was
also invited to admit to have been late on occasion without
having received disciplinary measures. This. the General
Counsel argues, shows that everett was treated differently
from the other drivers. Since Leverett was admittedly
known to the Company as the principal supporter of the
Union during the election campaign I year earlier, the Gen-
eral Counsel argues that L.everett's union activities must
have been at the heart of the Company's allegedly disparate
treatment of him. In this regard, the General Counsel in-
vokes the frequently cited (and unexceptionable) comments
of the United States Court of Appeals for the Ninth Circuit
in Shatuck Denn Mining Corporation (Iron King Branch) .
N.L.R.B. 362 F.2d 466. 470 (C.A. (9th Cir. 1966) to the
effect that demonstrably false or implausible explanations
for adverse treatment of an employee may justifiably sup-
port the inference that the explainer is concealing an illegal
motivation for such treatment.
Without belaboring the point, there are two principal
and related frailties in the application of that notion to the
instant case. First, the Company's explanation for its treat-
ment of Leverett is not implausible under all the circum-
stances. It is not inherently unlikely that an employer, con-
fronted with the recent pattern of late deliveries and/or
excessively long trips shown to have occurred in Leverett's
case, might decide to impose some form of punishment.
And the choice of a relatively brief disciplinary layoff does
not strike me as inherently disproportionate. This view of
things might be revised, however, were it convincingly
shown that this particular Employer did not really care
about shortcomings of the type attributed to Leverett and
had consistently tolerated the same in the case of other
employees. This leads to the second difficulty with the Gen-
eral Counsel's theory, namely, that there never was a clear
showing that such a pattern of toleration of such shortcom-
ings existed at the Company. More specifically, it was never
shown that any other employee had, over the course of 3
months: (a) received a written warning for round-trip tardi-
ness: (b) been the subject of several "late" complaints. in-
ciuding at least one attributable to dereliction (i.e., late start
due to oversleeping): and (c) given a patently lame and
improbable excuse upon being questioned about lateness.
as in the case of the June 29 Victoria delivery. Instead, the
record reveals only that drivers were sometimes late due to
circumstances beyond their control, that they usually
"called in" to notify Bracken of that fact, an that they were
not disciplined as a consequence. This is not remarkable
and does not constitute a pattern of tolerance of deficiencies
of the type attributed to l.everett.
Under those circumstances it would be purely speculative
to impute to the Company an intention to retaliate against
Leverett for his earlier union activitiest Accordingly, I
conclude that the General Counsel has not satisfied the
Government's burden of' showing by a preponderance of'
credible evidence that the ('ompany's treatment of' Leverett
was tainted by a discriminatory and retaliatory motivation,
and I recommend that the complaint be dismissed.
CO(N( I SIONS ()I LANA
I. Respondent is an employer engaged in commerce
within the meaning of Section 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. Respondent did not commit unfair labor practices as
alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law.
upon the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER"
The complaint is dismissed in its entirety.
I Sricl as a "moreover" observation, It is noted that both Pllans and
Bracken were highly complimentary of Leveret's performance after his re-
turn from the brief disciplinar) suspension. Such concessions are not readily
made by employers who are Ikxsking for ways to discriminate against union
adherents
' In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order. and all objections thereto shall he deemed
waived for all purposes.
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