Consolidated Freightways Corp. of Delaware

National Labor Relations Board - Board Decisions

Mar 30, 1970

181 N.L.R.B. 856 (N.L.R.B. 1970)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated Freightways Corporation of Delaware
and '%ioma Lane . Case 14-CA-5175
March 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 28, 1969, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in a single, isolated, unfair labor practice
for which a cease-and-desist order was not
warranted, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed cross-exceptions to the Trial Examiner's
Decision, and a brief in support thereof, and in reply
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National' Labor Relations Act, as amended, the
National ,Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the
case, including the exceptions, cross-exceptions and
briefs, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner
ORDER
the unfair labor practices, the complaint alleges in
substance, and Respondent's answer denies, that
Respondent violated Section 8(a)(1) and (3) of the Act by
discharging employee Nioma Lane on April 18, 1969, and
by other specified acts and conduct
A hearing was held before me at St. Louis, Missouri,
on September 17 and 18, 1969. All parties were given full
opportunity to participate in said hearing. On October 14,
1969, the General Counsel and the Respondent filed briefs
which I have fully considered. For the reasons hereinabove
indicated, I recommend that the complaint be dismissed in
its entirety.
Upon the entire record in the case' and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Consolidated Freightways Corporation of
Delaware, a Delaware corporation, maintains an office
and place of business in St. Louis, Missouri, where it is
engaged in the furnishing of interstate highway freight
trucking services This is the only terminal involved in this
proceeding. During the year ending December 31, 1968, a
representative period, Respondent performed interstate
highway freight trucking services from which it derived in
excess of $50,000 for the transportation of goods across
state lines.
Upon the above admitted facts, I find, as Respondent's
answer also admits, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find, that Teamsters Local Union No 688,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety
'These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner The Respondent has excepted to one
of these credibility resolutions After a careful review of the record, we
conclude that the Trial Examiner 's credibility findings are not contrary to
the clear preponderance of all the relevant evidence Accordingly, we find
no basis for disturbing those findings Standard Dry Wall Products. Inc ,
91 NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner- Upon charges filed on
June 30, 1969, by Nioma Lane, an individual, the General
Counsel of the National Labor Relations Board, by the
Acting Regional Director for Region 14 (St. Louis,
Missouri), issued a complaint, dated August 12, 1969,
against Consolidated Freightways Corporation of
Delaware, herein called the Respondent. With respect to
III THE UNFAIR LABOR PRACTICES
A Introduction, the Issues
At all times material herein, Respondent and the Union
were operating under a collective-bargaining agreement
which also covered the office unit of approximately 20
employees. Nioma Lane, the Charging Party herein and a
member of the Union, was employed in various capacities
in Respondent's St Louis terminal office from August
1966 until her discharge on April 18, 1969 In early
October 1968, Frank Fransden, who was employed in the
office unit as a rate clerk, was promoted to office
manager Respondent had been faced with a severe
problem concerning absenteeism and tardiness that year
and Lane had been one of the worst offenders in this
respect before Fransden became office manager. The need
for corrective action seemed imperative to Respondent
Shortly before assuming his duties as office manager,
Fransden informed the office employees of the strict
policy he would follow with respect to absenteeism,
tardiness and other matters Thereafter, Fransden became
'Errors in the transcript have been noted and corrected
181 NLRB No. 137
CONSOLIDATED FREIGHTWAYS CORP. 857
dissatisfied with Lane's absentee record and, after several
warnings, sent her a discharge letter on that ground on
February 14, 1969 Pursuant to a formal grievance filed
by Lane, a hearing was held under the contract grievance
procedure and a decision reinstating her was issued on
February 20 This was the third grievance , against
Fransden's actions as office manager which Lane had filed
and won. Pursuant to her own request, she was assigned
to the position of midnight cashier on February 24
During the month of March, Fransden sent Lane a
number of memoranda, which he also placed in her
personnel file, critical of the performance of some of her
functions, and also spoke to her personally in this regard
at two meetings, summaries of which were also placed in
her personnel file During this period, he also sent her a
memorandum, again warning her against absenteeism and
tardiness On April 1, Lane telephoned Respondent to
advise that she could not report for work because she was
sick Thereafter, she gave no indication as to how long she
would be away from work Her discharge on April 18,
1969, was triggered by her refusal to comply with
Respondent's request that she be examined by
Respondent's doctor.
The principal issues litigated in this proceeding are (1)
whether, as the General Counsel contends, the issuance of
the various written and oral warnings or reprimands,, to
Nioma Lane and her subsequent final discharge were truly
motivated by Fransden's desire to exact "vengeance," and
in reprisal, for her having filed and won three grievances
against him and that the reasons asserted by Respondent
for said conduct were mere pretexts, and (2) whether
Fransden had told Betty Hill, a union steward for the
office unit, that he would get even with certain employees
for having filed grievances against him I
B Allegations Concerning Discrimination Against
Nioma Lane'
I Employment record of Lane
(a) Absenteeism and tardiness
It is not disputed that in 1968, prior to Fransden
becoming office manager, Respondent had a serious
problem at its St Louis terminal concerning absenteeism
and tardiness in reporting for work and returning from
lunch and coffee breaks This problem was first called to
the attention of the office employees by a notice which
was posted by the then Office Manager McCoy in
February 1968. Among other things, the notice
emphasized that "excessive tardiness and absenteeism are
serious problems that threaten the performance of the St.
Louis office, and as such simply cannot be tolerated any
longer," and warned that "repeated tardiness and/or
absenteeism will result in disciplinary action being taken
against offenders."
'Respondent also contends that jurisdiction should not be asserted over
the issues raised by the instant complaint because they are subject to the
grievance-arbitrat ion procedure under the existing collective-bargaining
agreement Nioma Lane did not file a grievance with respect to the instant
issues, which have now been fully litigated and are ripe for decision
without further delay I find no merit in Respondent ' s contention See,
e g , Dresser Industries, Inc, 178 NLRB No 51, McLean Trucking Co,
175 NLRB No 66, Morrison-Knudsen Co. Inc, 173 NLRB No 12
'Unless otherwise indicated , the factual findings in this section are based
on exhibits and credited testimony which are either admitted or undenied
Lane admitted that she saw this notice which continued
to remain posted. Documentary records covering the
period from January 1 to approximately May 25, 1968,
disclose that Lane possessed the second poorest record
among the office employees in these respects.' On May
12, 1968, Lane obtained a leave of absence due to
personal illness and did not return to work until
September 3, 1968. She resumed her same position as file
clerk
Before accepting the position of office manager,
Fransden told the then Terminal Manager Shapiro and
Office Manager McCoy that he thought "the office was in
very bad shape," that "the people had a terrible attitude,"
and that "if I took the job it would take a lot of backing
from the company for the things that would have to be
corrected if I were to stay with the company " He further
testified, without dispute, that when he accepted the
position in October 1968 there was a problem with
"absenteeism" and "tardiness," that "you couldn't get
seven and a half hours from the work," and that it was
"just a bad situation." Before assuming his duties as
office manager in early October 1968, Fransden had
separate personal interviews with each office employee,
including Lane, with Shop Steward Betty Hill being
present at each interview. According to Hill's credited and
undisputed testimony, Fransden at these individual
interviews outlined the program and the procedures which
he intended to follow as office manager, and emphasized,
among other things, that "he wouldn't tolerate
absenteeism or tardiness," that "no one would be allowed
to overstay the allotted time on coffee breaks and lunch
hours," and that "these would be assigned" times and
were to "be taken on the time assigned " He later
reposted the February 1968 notice under his own name
Frank McKinney, who became assistant terminal manager
in October 1968, credibly testified without contradiction
that "we at that time, and since that time have had
vigorous campaigns to eliminate absenteeism and
tardiness And we have issued many, many warning letters
for this. And this has corrected quite a bit of the
situation "
After Fransden became office manager, the record
shows no absences or tardiness by Lane until the latter
part of October Her absences for the remainder of 1968
were on October 23, November 8, 11, 14, and 26,
December 9 and 10. Fransden gave her a leave of absence
during the last 2 weeks of 1968, at her request She was
also tardy several times in November. In 1969, she was
absent on January 14, February 5, 6, and 14, and from
April i until her discharge on April 18.
On November 26, 1968, Lane was issued a warning
letter by Fransden, cautioning her about her absences,
advising that Respondent "will not tolerate absenteeism"
and warning that "future recurrence of a similar offense
will result in disciplinary action, up to and including
possible discharge " On November 29, 1968, she received
a warning letter because she had reported for work 20
minutes late Fransden stated therein that Respondent
"will not tolerate tardiness. You must be on time," and
again warned that "future recurrence of a similar offense
will result in disciplinary action up to and including
possible discharge " Later, when Lane explained the
reason for her tardiness, Fransden felt that she had a
'The poorest record was held by Dianne Thompson who was discharged
in October 1968 for this reason but was later reinstated as a result of a
grievance which she had filed It is not disputed that after her
reinstatement , her record greatly improved
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"fairly good excuse" and was justified in complaining
about that warning letter He thereupon rescinded the
warning letter of November 29
On February 7, 1969, Fransden sent Lane a "Final
Warning Letter," pursuant to the provisions of the
contract with the Union, because of her failure to
"protect" her "bid shift" by being absent on February 5
and 6 He again advised that "we will not tolerate
absenteeism" and again warned that a similar offense
"will result in disciplinary action up to and including
discharge." On February 14, 1969, Fransden sent Lane a
discharge letter for failing "to protect" her "bid shift" by
being absent that day The letter reviewed her previous
absences' and concluded that Respondent "has no other
alternative but to terminate your employment with us
effective immediately " McKinney, who by then had
become terminal manager, testified that he made the
decision to discharge her that day because of "her past
record of absenteeism " Pursuant to a grievance filed by
Lane the next day and a subsequent hearing thereon, a
decision was issued on February 20, reinstating her with
full seniority and 2 days' pay (see section on grievances,
infra)
On March 8, 1969, when Lane admittedly was late in
reporting for work, Fransden sent her a memorandum in
which he stated, among other things, that "I thought it
was made very clear that you must be at work every day
and on time unless you have a doctor's certificate " He
also pointed out that "there is no reason why you should
not take your lunch and coffee breaks as they have been
assigned," and that "This is expected of you in the
future " As previously noted, thereafter, she was absent
again from April 1 until her final discharge on April 18,
1969
(b) Work performance and attitude
Following Lane's reinstatement as filing clerk on
February 21 after her discharge on February 14, she
successfully bid for the midnight cashiering job and
assumed her new duties on February 24 Her hours on her
new job were from midnight to 8 a m Although Fransden
felt that she was not qualified for this position and his
normal work hours were from 7 a.m to 5 p.m , he
nevertheless volunteered to help her Thus, during her first
week, Fransden stayed with her three nights and answered
whatever questions she had about her functions During
March, Fransden was dissatisfied with the manner in
which Lane handled certain matters and called these to
her attention, with instructions as to their proper
performance, in a number of interoffice memoranda and
notes which he left for her and which he also placed in her
personnel file The first one, dated March 5, was purely
instructive regarding the handling of freight bills and
delivery receipts. The next two, dated March 13, referred
to certain errors in the handling of freight bills and in the
execution of drivers' collection envelopes, with instructions
as to the correct manner of handling them The same and
similar errors were called to her attention in the same
manner in memoranda, dated March 14, 17, and 19
Lane admittedly threw into the waste basket the
memoranda and notes immediately upon receiving them
On one occasion, she admittedly tore the memorandum
into small pieces, placed them in an office envelope,
'Included was an absence on October 24, although Lane later filed and
won a grievance for full pay for that day on the ground that she was
available for work See section on grievances, infra
addressed it to Fransden and placed it on his desk on the
same day on which she had received it On other
occasions she returned some of Fransden's instruction
notes to him with "smart answers" written on them
In addition to the memoranda and notes, Fransden had
two meetings with Lane in connection with her work
performance The first one, held on March 11, 1969, was
also attended by Night Superintendent Webber and Shop
Steward Hill. At this meeting Fransden reviewed the work
and functions of the job of midnight cashier and asked
Lane it she understood them Lane replied that she did
The second meeting took place on March 24 Also present
were Shop Steward Hill and McKinney who at that time
was terminal manager Lane's lack of capabilities and
qualifications to perform the job were discussed. Fransden
expressed his dissatisfaction with her work performance
McKinney stated that "we weren't in a business to
disqualify people or terminate people, we were in the
business to move freight, and to do it in a profitable way
And the only way we can do this is sit down and get the
problems, and get to work, and get to our job, and that's
what they are paying us for " Lane stated that she felt
perfectly capable to perform the job and that she
understood the duties and detailed phases of the job
Fransden offered to assist her and again volunteered to
work the midnight shift to help her She declined his offer,
stating that it would not be necessary because she "would
be all right " The meeting concluded with all parties
agreeing that Lane would remain as midnight cashier and
that everyone would "start anew "
2. Grievances filed by Lane
Lane filed three formal grievances against Fransden's
actions and rulings and won all of them
The first one was formally filed on November 15, 1968,
and involved a claim for 1 day's pay resulting from the
following circumstances. On October 23, 1968, Lane was
absent due to illness At that time, her shift ended at 4
p.m. At 4 30 p m. that day, she contacted Fransden and
advised that she would report to work the following day
She was told that the Company has a rule that an
employee must call in before the end of the bid shift in
order to work the following day She was therefore not
permitted to return to work until October 25. Shop
Steward Hill wrote up one copy of a grievance on this
matter and submitted it on October 25 for the purpose of
discussion Fransden advised Hill that he would decline
the claim because of the alleged company rule Hill
disputed his claim as to the existence of a work rule
covering this situation. When the matter "dragged on too
long" without settlement, a formal grievance was filed on
November 15 The claim was formally declined by
Fransden for the above-stated reason, as he had previously
indicated to Hill After further discussions between Lane,
Hill, Fransden and the then Terminal Manager Shapiro,
the grievance was finally settled in December by granting
Lane's claim for "eight (8) hours straight time" for
October 24
The second grievance was filed on February 7, 1969,
and involved a claim for 4 hours overtime because another
employee was permitted to perform Lane's regular work
on a Saturday Normally, Lane did not work on
Saturday The written grievance stated that this
constituted a violation of a contract provision which stated
that "Employees regularly on a job calling for overtime
shall be entitled to such overtime." This grievance was
promptly settled by granting Lane's claim for the 4 hours
CONSOLIDATED FREIGHTWAYS CORP. 859
overtime
The third grievance was filed on February 15, 1969,
because of her discharge for excessive absenteeism, as set
forth in the discharge letter of February 14, supra She
sought reinstatement with full backpay This grievance
was processed through a hearing before the
Joint-Local-Employer Grievance Committee on February
20. Fransden and McKinney, who had already become
terminal manager, appeared on behalf of Respondent.
Union Business Agent Porter appeared for the Union
Also present were Shop Steward Hill and Lane At this
hearing Respondent's representatives discussed Mrs.
Lane's absences due to alleged illness, questioned her
honesty in this respect and pointed out that some of the
doctor's certificates submitted by her appeared to contain
different signatures from the same doctor The
Committee's written disposition of the grievance provided
that (I) the warning letters of November 26, 1968, and
February 7, 1969, be rescinded in view of an affidavit
submitted by Dr. Walsh that he had treated her on those
days, (2) Lane be reinstated with full seniority as of
February 21, 1969, with 2 days' pay for the 4 days lost,
and (3) that "Future absences for illness must be proven
by Doctor's certificate " Although not so specified in the
written disposition, it was understood as part of the
grievance settlement that such a certificate could be
required from the Company's doctor whenever the
Company so desired."
3 Lane' s final discharge
On the evening of April 1, 1969, Lane telephoned the
Company and told the road dispatcher that she would not
be able to come to work that midnight because she was
sick A few days later, she went to see her doctor and
obtained a doctor's certificate which she subsequently
mailed to Shop Steward Hill at the plant in an envelope
postmarked April 9
Meanwhile, during the April l week, Fransden was at
the Memphis terminal, helping out with some of their
office problems. However, he had occasion to telephone
the St Louis office during the week for certain needed
information and was informed by Jack Gates, his
replacement, that he was having a problem because Lane
was out again. Fransden returned to the St Louis office
on April 8 and tried to ascertain when Lane would return
to work because this was a key job and it was difficult "to
find people on the spur of the moment" to "fill in" at
"bad hours." He received information at two different
times from Betty Hill and Betty Jarvis, shop steward and
acting shop steward, respectively, that Lane did not know
when she would be back or that she would be off
indefinitely.
Fransden discussed the situation with the then Terminal
Manager McKinney and the decision was reached to send
her the following letter, dated April 9, 1969, and signed by
Fransden-
On April 1, 1969 you notified the company of your
intent to be absent from your bid shift of 2300, April 2,
1969 Since that time you have failed to report for
work
This finding is based on the undemed testimony of Fransden Although
Hill and Lane were witnesses for the General Counsel, neither denied
Fransden 's testimony in this respect Moreover , Porter, the Office Local's
business agent who represented the Union at this hearing , was not called as
a witness to refute Fransden's testimony and no claim of his unavailability
was made
This is to advise that you have seventy-two (72)
hours to report for your regular work shift, at which
time we require that you furnish a doctor's certificate
stating that you are able to return to work If you are
unable to report for work, a doctor's certificate stating
that you are unable to perform your duties will be
required.
Under the provisions of the St. Louis Office
Employees Rider of the Central States Area Local
Cartage Supplemental Agreement, we are hereby
exercising our right under Article 45 and require that
you obtain a release to return to work or certificate of
inability to perform duties from our company doctor,
Sutters Clinic, 819 Locust Street, St Louis, Missouri.
Your failure to comply with these instructions will
result in the removal of your name from our seniority
roster.
After mailing this letter, Fransden received the
envelope, postmarked April 9 and addressed to the
Company but to the personal attention of Betty Hill. In
this envelope was a statement, dated April 4, 1969 and
addressed "To Whom It May Concern," which certified
that Lane had been under the undersigned doctor's
professional care and was totally incapacitated from April
1, 1969, to the "present." At the bottom appeared the
name of Dr Walsh. As Fransden interpreted the word
"present" to refer to the day the statement was dated,
April 4, 1969, he did not regard it as a reply to his April
9 letter giving 72 hours' notice
After further discussion with McKinney, it was decided
to pursue the matter to a conclusion. McKinney thereupon
instructed Fransden and McCoy, Freight Operations
Manager, to have Lane informed that the Company
desired to bring a company doctor to her house to have
her examined at the Company's expense On April 18,
Fransden asked Acting' Shop Steward Jarvis to telephone
Lane to tell her that the Company wanted to send its
doctor to examine her in order to determine whether she
was too ill to go to work Jarvis made the telephone call
as requested, and told Lane that Fransden was listening in
on another line Lane at that time admittedly agreed to be
examined by a company doctor. Fransden thereupon went
to Sutter's Clinic to make the necessary arrangements
While he was at the clinic, Lane admittedly telephoned the
Company and told McCoy that she had changed her mind
and refused to have a company doctor come to her home
to examine her because she "felt this was just Mr.
Fransden's way of trying to pressure" her. McCoy replied
that he would relay her message to Fransden who was not
in the office at that time Fransden was contacted at the
clinic and informed of Lane's change of mind
Fransden consulted with McKinney who reviewed
Lane's file and decided that she be sent the following
termination letter, dated April 18, 1969, and signed by
Fransden'8
On April 9, 1969, you were issued a letter advising
you to report to work within seventy-two (72) hours or
your name would be removed from our seniority roster
If unable to report within this time, you were instructed
to obtain a certificate from our company doctor, Sutter
Clinic, 819 Locust Street, St Louis, Missouri, stating
your inability to perform your duties.
Since this time you have failed to comply with these
instructions. Further, it was our intention to send our
'Shop Steward Hill was in an automobile accident at that time
'Lane testified that she also received a telegram that evening from
Fransden, stating that she was discharged
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company doctor to your home to examine you, but you
advised both your Shop Steward (Betty Jarvis) and our
Freight Operations Manager (Jack McCoy) on this
date, April 18, 1969 (by phone), that you would not
permit our company doctor to examine you
We, therefore, have no alternative but to terminate
you and to remove your name from our seniority roster
for failure to report to work as required in our letter of
April 9, 1969
Enclosed find our payroll drafts for all monies
due
4 Contentions and concluding findings
It is the General Counsel's position that the written and
verbal reprimands issued to Nioma Lane and her final
discharge were in reprisal for the grievances which she
filed and won against Fransden and hence violative of the
Act, as alleged in the complaint No unlawful or
discriminatory motivation is attributed to Terminal
Manager McKinney who, the General Counsel recognizes,
ultimately made the discharge decision His position is
based on the theory that Office Manager Fransden, acting
without McKinney's knowledge, was the person who
sought and took this retaliatory action to bring about her
discharge. Thus, the General Counsel argues in his brief
that "Fransden as office manager bitterly resented that
Lane had filed and won grievances against actions he had
taken and rulings he had made," that "it is apparent from
his course of conduct" after the February 20 grievance
decision "that he was going to cause her to be discharged"
and that "to that end he built up a fairly impressive
record" of "disciplinary warnings and written reprimands
sufficient to prove a reasonable basis for discharge
without his superior, who would ultimately be the person
to make the discharge decision, being aware that Fransden
was exacting vengeance for the employee having filed
grievances against him in the past, rather than taking
legitimate supervisory action." On the other hand,
Respondent contends that its actions and conduct with
respect to Lane were motivated solely by her bad
attendance record, her bad attitude on the job and her
inability acceptably to perform the specific work assigned
during the last month or so of her employment, and her
refusal to submit to an examination by the company
doctor to verify her contention that she was too ill to
report to work
In his brief, the General Counsel makes the following
principal assertions in support of his theory: (1)
Respondent's failure to produce Lane's attendance records
for 1969 indicates an improvement in her attendance; (2)
the timing of the reprimands and disciplinary warnings
indicate retaliatory action against her for filing grievances,
(3) the nature of the reprimands and written warnings
after February 20 indicates a change in tactics designed to
cause her discharge by building up an impressive record of
written warnings concerning her work, and (4) her refusal
to be examined by a company doctor was seized upon as a
pretext to trigger her discharge An examination of the
record with respect to these assertions discloses no
warrant for the inferences which the General Counsel
would have me draw.
I cannot attach any great significance to Respondent's
failure to produce the 1969 attendance records in view of
the fact that neither Lane nor the General Counsel at any
time disputed the accuracy of her 1969 absentee record set
forth in the discharge letter of February 14 Four of the
absences listed in this letter occurred in 1969 Moreover,
Lane admitted her tardiness on March 8, 1969, as
indicated in the warning letter of that date
With respect to the factor of timing, the General
Counsel asserts that "each time she filed or refiled a
grievance, there followed the same day and thereafter a
spate of activity on Fransden's part critical of her
attendance or her performance " As an example, the
General Counsel states that Fransden overlooked and took
no action over Lane's absences on November 8, 11 and
14, and her tardiness on November 13, 1968; but that
after she had filed a formal grievance on November 15
(concerning Fransden's action in not permitting her to
work on October 24 because she had failed to call in
timely, as required by an alleged company rule, supra), he
issued formal warning letters on November 26 and 29 for
absenteeism and tardiness on those dates As another
example, the General Counsel states that Fransden
overlooked and took no action over Lane's absences on
December 9 and 10, 1968 and on January 14, 1969; but
that after she filed a formal grievance on February 7, he
that day issued a final warning letter for her additional
absences on February 5 and 6.
I find the foregoing to be insufficient to warrant the
inference of a retaliatory pattern or motivation The
General Counsel's examples cut both ways and prove too
much. It is conceded that the formal grievance of
November 14 was first written up and filed with Fransden
on October 25 (supra) Indeed, the General Counsel even
states in his brief that Lane's "first challenge to his
(Fransden's) authority is the grievance first filed on
October 25, 1968 " Yet, despite this "challenge,"
Fransden, according to the General Counsel, overlooked
and took no action over Lane's absences and tardiness
record until her absence on November 26 and her
tardiness on November 29 This was her fourth absence
and second tardiness during the month of November It
may also be argued with equal force that despite the
formal grievance filed by Lane on November 14, Fransden
nevertheless overlooked and took no action with respect to
her three absences in December and January. Nor does
the record show whether the final warning letter of
February 7 was dictated before or after Fransden became
aware of the grievance which she filed on that date.
Furthermore, after six additional absences since the last
warning, it is not unreasonable to conclude that the
issuance of a final warning letter at that time does not
warrant the inference that it was in retaliation for her
conduct in having filed a grievance that same day. Further
militating against the General Counsel's retaliatory
assertions is Fransden's conduct in voluntarily rescinding
the tardiness reprimand letter of November 29 after Lane
had explained the circumstances causing her tardiness, in
changing Lane's work schedule in December to the
midnight shift either at her request or by mutual
agreement, in granting her request for 2 weeks leave
during the Christmas holidays for her personal reasons, in
voluntarily spending 3 nights to help her in the latter part
of February 1969 when she began her job as midnight
cashier and in offering on March 14 to stay with her again
to help her Lane's testimony also indicates the fallacy of
the General Counsel's arguments Thus, she testified that
"Right after that (having reference to the grievance which
she filed on February 7, 1969) I received memorandums,
interoffice memorandums criticizing how many mistakes
and how many errors I was making in my filing and that
my filing was not getting done " In reply to a question by
Respondent's counsel as to whether she was "guilty of the
CONSOLIDATED FREIGHT WAYS CORP 861
criticism levied" at her, she testified, "I am sorry, I don't
know. We changed our filing procedure at that time and I
dust don't know " There is no dispute of Fransden's
testimony that the procedures were changed at that time
"throughout the system" as a matter of "company
policy," that an "administrative manual was reissued in
reference to these changes" and that the changes were not
made on Fransden's "motion " In view of all the
foregoing, it is not unreasonable to conclude that the
General Counsel's contention is subject to the fallacy of
post hoc prop ter hoc
In support of his assertion relative to an alleged change
of tactics to cause Lane's discharge, the General Counsel
states in his brief that "Fransden concentrated through
February 14 on Mrs. Lane's attendance record as
providing a basis for her discharge on that date" and that,
"having been told by the grievance committee that his
having discharged her on that basis was unjustified, he
thereafter concentrated on her work performance [as a
basis for her discharge] and made no further mention of
her attendance record." Here again, the inference urged
by the General Counsel is not warranted by the record
In the first place, Lane was starting on a new job of
midnight cashiering, effective February 24 A new filing
procedure had recently been installed The interoffice
memoranda and notes which she received from Fransden
during the month of March dealt with the nature of her
functions and were instructive as well as sometimes
critical Lane admitted that she made errors during that
period and that a new filing procedure had been installed
As Fransden's normal hours were from 7 30 a.m to 5
p m. and Lane worked on the midnight shift,
communicating with her through the means of
memoranda and notes was a feasible and not unreasonable
method Her conduct in tearing one such memorandum
into small pieces and returning them in an envelope
addressed to Fransden, strikes me as bordering on the
insolent Respondent took special care to compile and to
document all pertinent information and incidents involving
each employee and keeping them in the individual
employee's personnel file. The purpose for this was to be
able to defend its position in the event an employee filed
and processed a grievance through the contract grievance
procedure Thus, Lane's personnel file was not unique in
this respect Moreover, Lane admitted that she received
complaints about her work as far back as December 1968
and also received a warning letter for tardiness as late as
March 8, 1969, when she admittedly was tardy. Finally,
Frandsen's conduct in voluntarily spending 3 nights to
help Lane when she first started the midnight cashiering
job in the latter part of February and his further offer on
March 24 to work the midnight shift again in order to
help her would seem to negate and to be inconsistent with
any alleged plan on his part to concentrate on her work
performance as a basis for her discharge
In support of his assertion that Lane's refusal to be
examined by a company doctor was seized upon as a
pretext to trigger her discharge, the General Counsel
states in his brief that the collective-bargaining agreement
did not apply in this case, that the grievance settlement of
February 20 required only a doctor's certificate and "that
requirement did not go so far as to make her submit to an
examination by the Company doctor at the Company's
pleasure," and that in the past no employee out for any
extended sick period had been required to submit to an
examination by a company doctor. An examination of the
record with respect to these statements discloses no
warrant for a pretextuous inference
With respect to the collective-bargaining agreement, the
General Counsel correctly points out in his brief that
Article 40, as amended by the St Louis Office Employees
rider, provides for sick leave benefits and permits the
Company to "request satisfactory medical evidence of an
employee's right to claim benefits under this Section." He
therefore contends that this provision is not applicable to
Lane", case However, in its 72-hour notice letter of April
9, 1969, Respondent specified that it was relying on
Article 45 of the agreement This article states, in
pertinent part, that
Physical, mental or other examinations required by a
government body or the Employer shall be promptly
complied with by all employees, provided, however, the
Employer shall pay for all such examinations
The Employer reserves the right to select its own
medical examination or physician and the Union may,
if it believes an injustice has been done an employee,
have said employee re-examined at the Union's expense
[Emphasis added ]
Additionally, as the General Counsel admits, Lane's
grievance settlement of February 20, 1969, specifies in
writing that "future absences for illness must be proven by
Doctor's certificate" (supra) As this satisfied the
requirement of the above-quoted portion of the first
paragraph of Article 45, it automatically made the
above-quoted portion of the second paragraph applicable
to Lane's case I therefore find that Respondent properly
exercised a valid contractual right in requiring Lane to be
examined by a company doctor' Moreover, aside from
any contractual provision and contrary to the General
Counsel's assertion, it was understood at the February 20
grievance hearing that as part of the settlement the
doctor's certificate required to prove Lane's future
absences for illness could be one from the Company's
doctor whenever the Company so desired, as previously
found Finally, Respondent had a reasonable and
good-faith basis for questioning Lane's illness and
therefore insisting on proof by a company doctor's
examination Thus, as was discussed at the February 20
grievance hearing with respect to her past absences for
illness, Respondent questioned Lane's honesty in this
respect because some of the doctor's certificates previously
submitted by her appeared to contain different signatures
from the same doctor' In addition, the testimony is
undisputed that McKinney became aware that Lane came
into the office to pick up her check on April 4, that
Fransden was informed either by Shop Steward Hill or
Acting Shop Steward Jarvis that Lane did not know when
she would be back and that she really was not ill and was
able to work, and that Fransden was also informed by
Acting Shop Steward Jarvis that Lane was planning a trip
out of town, a trip which Lane did in fact take Fransden
relayed his information to McKinney who thereupon made
the decision to send the 72-hour notice letter of April 9,
requiring Lane to obtain a certificate from the company
doctor
While there is some evidence which raises a suspicion
' it seems significant in this respect that Lane ' s reason for refusing to be
examined by a company doctor, adduced on cross-examination , was that
"the type of illness I suffer from when I get upset and nervous cannot be
detected by a doctor " However, she failed to explain how her own doctor
was able to detect this illness
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to Fransden's true motivation'" and the matter may not
be entirely free from doubt, I am not persuaded that the
General Counsel has sustained his burden of proving by a
preponderance of the credible evidence that the issuance of
the various written and oral warnings and reprimands to
Lane in 1969 and her discharge on April 18, 1969, were in
reprisal for her conduct in having filed and won three
grievances against actions and rulings of Office Manager
Fransden I will accordingly recommend dismissal of this
allegation
C Allegations Concerning Interference, Restraint,
and Coercion
The complaint alleges that on March 5, 1969 and on
other unknown dates in 1969, Office Manager Fransden
told a union steward that he would get even with
employees for filing grievances In support of this
allegation, the General Counsel relies on the testimony of
Shop Steward Hill that in March 1969, after employee
Neuman had won a grievance claim for 15 minutes pay,
Fransden told Hill that he considered it a petty grievance
and that if she was going to act in that manner he was
going to react in a manner that he would get even with
her for filing the grievance Fransden admitted having had
a conversation with Hill concerning the March grievance
filed by Neuman When asked if he told Hill that he
would "get even with Mrs Neuman for filing the
grievance," he testified, "not in those terms, not exactly "
When asked what he did say, he testified, "I can't
remember my exact words." After further prodding by
Respondent's counsel, he testified, "I could have said that
she is the type that can really get to a person the way she
performs her work and roams the office and so forth."
Under all the circumstances, I do not credit Fransden's
testimony to the extent that it may be regarded as a
denial of Hill's testimony and find that Fransden did
make the statements hereinabove attributed to him by
Hill
I find that Fransden's statements to Hill constituted a
threat of economic reprisal against an employee for filing
grievances, in violation of Section 8(a)(I) of the Act.
However, in view of the isolated nature of this incident"
and the fact that Fransden is no longer employed by
Respondent, I find that, under all the circumstances, the
issuance of a cease-and-desist order based thereon is not
warranted.' 2 I will therefore recommend that the
complaint be dismissed in its entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend
that the complaint against Respondent Consolidated
Freightways Corporation of Delaware, St. Louis,
Missouri, be dismissed in its entirety.
"See section C and In 11, infra
"Although the General Counsel also relies on the undenied testimony of
Hill that at the time when Lane won her first formal grievance , filed on
November 15, 1968 (a claim for I day's pay for not having been permitted
to work on October 24), Fransden told Hill that he would get even with
Lane for it , I cannot base any unfair labor practice finding on this
testimony because the record does not disclose that this statement was
made within the 10(b) period
"See, e g , The Frohman Manufacturing Co, Inc. 107 NLRB 1308,
1315; The Great Atlantic & Pacific Tea Company, Inc, 129 NLRB 757,
760, and Craftsman Electronic Products, Inc, 179 NLRB No 68