Hemingway Transport, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1972

200 N.L.R.B. 245 (N.L.R.B. 1972)

HEMINGWAY TRANSPORT, INC. 245
Hemingway Transport, Inc. and David Jackson. Case
1-CA-8109
November 13, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
be evaluated in terms of his own personal makeup."
The conclusion of the Administrative Law Judge
based upon this evaluation of Austin at the hearing
merits considerable weight.
Considering all these circumstances, and the record
as a whole, we do not find that the General Counsel
has met his burden of showing by a preponderance
of the evidence that Jackson was unlawfully dis-
charged.
On June 19, 1972, Administrative Law Judge 1
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
In agreeing with the Administrative Law Judge
that the complaint should be dismissed insofar as it
alleges that Jackson was unlawfully discharged, we
recognize, as did he, that there are some suspicious
circumstances attending the discharge. But we are
not satisfied that the General Counsel has estab-
lished that Austin's discharge of Jackson was
motivated by the latter's organizational activity on
behalf of the clericals rather than by his unauthor-
ized use of Austin's private office as found by the
Administrative Law Judge. If there was previous use
of this office by other employees without permission,
the record does not disclose Austin's awareness of
that fact. His reaction upon learning that Jackson
had used his office as a meeting place shows him
disturbed 'solely, by that and not because of any
suspicions that the meeting related to organizational
activity. As Grenier testified, Austin, in ordering
Jackson's discharge, declared, "this was America. If
they want to organize, they can organize," but then
he added, "I don't want my office used as a
conference room." Austin himself was a long-time
member of the Teamsters, on withdrawal card, and
the Teamsters already represented the bulk of his
employee complement. There is nothing to show his
opposition to their organization of the unrepresented
clericals during the period involved.
The Administrative Law Judge had the opportuni-
ty to observe Austin and he chose to believe that the
reason given by Austin for the discharge was the real
reason therefor, explaining that "Austin is entitled to
, The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972,
2 N L RB v. Lawson Printers, Inc, 408 F.2d 1004 (C A. 6, 1969). See also
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Hemingway Transport, Inc., New
Bedford, Massachusetts, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order.
MEMBER FANNING, dissenting:
Unlike my colleagues, I view the discharge of
employee Jackson as violative of Section 8(a)(3). A
close analysis of the facts persuades me that he was
discharged solely for union activities, and the
Employer's contention that he was terminated for
misuse of a manager's office is a pretext.
It is settled law that an employer's suspicion rather
than actual knowledge of an employee's union
activity is sufficient to satisfy the requirement of
knowledge.2 The note sent by Respondent's night
supervisor Normandin to the terminal manager,
Austin, surely made him aware that Jackson may
have been discussing union activities. This finding is
supported by Austin's subsequent interrogation of
Shop Steward Boyajian regarding Boyajian's knowl-
edge of any attempts to organize Respondent's
clericals. Such interrogation demonstrates that Aus-
tin was, at the very least, suspicious of union activity.
Austin testified that, when Boyajian answered the
interrogation negatively regarding union activities,
he was no longer suspicious. This testimony is
questionable especially since Austin was aware that
Boyajian had reason to avoid the eppearance of
union activity as he had been told by Austin 3 years
previously that, if Boyajian continued in his attempts
to organize, he would be in "a lot of trouble."
Moreover, Austin, shortly after receiving Norman-
din's note, but before speaking to Boyajian, had
already told John Grenier, Respondent's head rate
clerk, that Jackson was to be fired. I find any claim
that Respondent lacked the requisite knowledge to
be totally without merit.
Mid States Sportswear, Inc, 168 NLRB 559 (1967), ExideAlkalme Battery
Division of ESB, Inc, 177 NLRB 778 (1969); Gamble's Inc., 175 NLRB 77
(1969)
200 NLRB No. 29
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further problems exist regarding the "misuse" of
Austin's office. Repeated, uncontroverted testimony
revealed that the office was used by various employ-
ees, particularly for personal telephone conversations
during Austin's absence.3 The office was always left
open and there were no signs, written company rules,
or oral instructions warning against the use of such
office; nor was it marked "private" in any way. On
the night Jackson used the office he was actually
discussing union activities with two other clerical
employees, a fact suggested to Austin by Norman-
din's note. Yet, Austin made no attempt to ascertain
their identity, and, when he was told who the
individuals were, issued no reprimands, oral or
written, much less a termination. Nevertheless
Respondent asserts that Jackson was discharged
solely for misusing the terminal manager's office.
The Board and the courts have inferred an illegal
motivation behind a discharge when the reason given
for a discharge is inconsistent, unconvincing, or
contradictory. In N. L. R. B. v. Melrose Processing Co., 4
351 F.2d 693, 699 (C.A. 8, 1965), the court of
appeals held:
... when every other plausible motive has been
eliminated and the reasons advanced are not
persuasive, the [protected] activity may well
disclose the real motive behind the employer's
action.
The fact that two other individuals were misusing
Austin's office along with Jackson, and have yet to be
disciplined in any manner, demonstrates that the
reason offered by Respondent is unpersuasive,
inconsistent, and utterly incredible. I infer from these
facts that the real motive for the discharge was based
upon Jackson's union activities. Accordingly, I
would find the discharge to be a violation of Section
8(a)(3) and (1) of the Act.
3 The Administrative Law Judge touched upon this testimony very
lightly in his decision, apparently ignoring the importance which it holds,
i e., that other employees habitually used the terminal manager 's office for
personal reasons
4 See also N.L RB. v Bird Machine Co, 161 F.2d 589, 592 (C.A. 1, 1947),
which held that "direct evidence is seldom attainable when seeking to
probe an employer 's mind to determine the motivating cause of his actions."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RALPH WINKLER: Trial Examiner: Upon charges filed by
David E. Jackson, an individual, the General Counsel
issued a complaint on April 4, 1972, alleging violations of
Section 8(a)(1) and (3) of the Act. Respondent filed an
answer denying commission of unfair labor practices, and
a hearing was held on May 11, 1972.
Upon the entire record in the case , including my
observation of the demeanor of the witnesses and upon
consideration of the parties' briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation with its
principal office and place of business in New Bedford,
Massachusetts , and a freight terminal located at East
Providence , Rhode Island, where it is engaged as an
interstate carrier by motor truck . Respondent's annual
revenue from interstate operations exceeds $50,000. I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 251, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization
within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves the discharge of David Jackson on
February 7, 1972.1 Jackson was a billing clerk on the
second shift at Respondent's East Providence terminal, this
being his second "tour of duty" with Respondent; his first
period of employment was from January until September
1969 when he was discharged for poor attendance; he was
rehired in September 1971 and continued until the
February 1972 discharge under consideration.
The Union represents a bargaining unit of approximately
180 employees at the Providence terminal, excluding
approximately 25 office and clerical personnel who are not
organized. James Boyajian, employed by Respondent as a
driver, is the Union's executive officer and a shop steward.
Donald Austin is terminal manager, usually leaving the
terminal at 5 p.m. Ernie Normandin, the night supervisor,
is in charge of all operations in Austin 's absence. John
Grenier, although not a supervisor according to the parties'
stipulation , was head rate clerk at material times; and
Jackson worked under Grenier.
During the second shift on February 3, Jackson
approached union steward Boyajian in the dispatcher's
office and inquired concerning procedures for organizing
the clerical employees in Local 251. In their ensuing
discussion, Boyajian suggested that if Jackson was interest-
ed in pursuing the matter, Jackson might explore the
situation with other clericals but should be discreet in
doing so. Night Supervisor Normandin observed, but did
not overhear, this Jackson-Boyajian conversation.
During a coffeebreak later that same evening , Jackson
called two other clerical employees-Beatrice and Selma
Ginsberg-into Terminal Manager Austin's private office,
which was unoccupied at the time . This office is fully
enclosed and has a large picture window through which
i All dates refer to 1972 unless otherwise indicated.
HEMINGWAY TRANSPORT, INC.
personnel on the terminal floor can see inside the office.
Jackson discussed with the sisters the advantages to
clericals of being organized and he inquired concerning
their union views. Selma mentioned at the time that they
would "get into trouble" for being in Austin's office. The
sisters testified in explanation that they never entered the
office without permission.
Normandin observed Jackson and the Ginsberg sisters in
Austin's office, and he later told head clerk Grenier that he
had seen Jackson conversing first with Boyajian and then
with the Ginsberg sisters and that "maybe they [Jackson
and the sisters] were in here talking about the Union."
Normandin then inquired whether Grenier was aware or
had heard of any current organizational activities in the
terminal and he requested that Grenier report any such
activities to him. Grenier said he had no such information
but would advise Normandin if he , Grenier, heard
anything.
Normandin occasionally communicated with Austin
concerning terminal affairs by leaving memorandums on
Austin's desk . Austin found such a note on Friday morning
(February 4) in which Normandin reported that Jackson
had brought two employees into Austin's office and that
they might have been discussing union matters . Later that
day, Austin spoke separately to head clerk Grenier and
union steward Boyajian . General Counsel witness Grenier
testified as follows concerning his conversation with
Austin:
Q. And what was the conversation? What did he
say to you and what did you say to him?
A. He asked me, he said "who was the guy or the
bum-or something like that"-"that used my office
for a meeting or a conference room . And I said, well, I
saw Mr. Jackson come out with the two Ginsberg
-with a couple of billing clerks. I don't know whether
I mentioned the girls by name. I don't recall that. So,
he said , well, he says , he said that he was disturbed
about him using his office as a conference room and
that he-as far as he was concerned, Mr. Jackson was
no longer working at Hemingway . Mr. Jackson had
booked off for the night and I knew that, so I said to
him, well, would you like me to call Mr . Jackson and
tell him not to bother to come in . I said , if I do, for
what reason do you want me to give for his dismissal? I
said, is this a valid reason, you know , for using the
office as a conference room and Mr. Austin said, yes,
he said , I think so. So, I said , well, Ernie has suspicions
of union activity or organizations , I said, and was he
being dismissed because of this and Mr . Austin said no,
he said, I don't give a shit about the union . He said this
was America . If they want to organize , they can
organize. So, I said alright. I walked out and Mr.
Austin, at that time, did not know that Mr. Jackson
had booked off for the night. Austin came back out of
his office and he said , you can call someone else in
because Jackson is all through and I really didn't
believe it, so I went back in and said , Mr. Austin, do
you want me to tell Mr. Woodward to put an ad in the
paper for a biller? Is this final?
And he said , well, I don't care. You can get someone
else to replace him. This is it for him. He's all through. I
247
don't want my office used as a conference room. So, I
went back out and-well, I had told him that Mrs.
Brown would be filling in , anyway, because Jackson
was off and I think, by this time, Austin realized that
Jackson was off and Austin had mentioned that to me,
and I said, well, Mrs. Brown would be in tonight, so
Mr. Austin said , all right, I'll take care of it on
Monday.
Q. Take care of what?
A. The dismissal , I presumed.
Q. Do you recall having another conversation with
Mr. Austin that night?
-A. Well, there was only one other thing when I had
mentioned the union business in the office , in the first
conversation, I had mentioned that Ernie had seen
Jackson talking , when I asked him about the union
business and the second time Mr. Austin came back, I
said, I spoke with Boyajian. Boyajian said he did talk
with Jackson, but it wasn't about union affairs.
Q. Do you recall if Mr. Austin said when he talked
to Mr. Boyajian?
A. I believe he said, I just talked to him , so it was
in between the conversations.
That same day, as indicated, Austin questioned Boyajian
as to his Thursday evening conversation with Jackson and
whether the Union was attempting to organize the clericals.
General Counsel witness Boyajian replied that his discus-
sion with Jackson involved a personal matter unrelated to
union affairs and that the Union had no interest in
organizing the clerical employees.
Jackson did not work that Friday, and Austin fired him
when he reported on Monday. Austin told Jackson on this
occasion that he had no idea what Jackson had been
discussing with the two other employees in his office but
that Jackson had no right to use the office as a "private
clubhouse." Jackson replied, in effect, that "I guess
Normandin won out after all." The record indicates in this
connection that Jackson had been having difficulties with
Normandin concerning a matter unrelated to union
activities and that Jackson had feared losing his job for
such reason.
Austin is a long-time member of the Teamsters Union,
on withdrawal card, and he testified that he would not
have discharged Jackson if he had known that Jackson's
conversation with the Ginsberg sisters involved union
organizing. Testifying in this connection to his awareness
that a discharge in such circumstances could make
Respondent vulnerable to unfair labor practice charges,
Austin explained that it was for the purpose of avoiding
such implication that he had sought to ascertain from
Boyajian whether Jackson 's conversation with the Gins-
bergs pertained to union activities.
Austin disclaimed knowledge of organizing efforts at the
time of Jackson's discharge , and he first testified that he
just learned of Jackson's activity some days later at a state
proceeding involving Jackson 's claim for unemployment
compensation . Boyajian testified that Austin thereupon
rebuked him for not being candid and not telling Austin in
the Friday conversation that Jackson was in fact seeking to
organize the office . "Don't you know," Austin told
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boyajian, "that I can't fire a man while they are in the
process of bringing in a union?"
Other clerical employees were, in fact, interested in
union representation at the time of Jackson's discharge and
the Union subsequently did file a representation petition in
their behalf. Except for the Jackson incident, however,
there is neither a showing of overt organizational activity
nor evidence of Austin's knowledge thereof. And the
record is also bereft of probative evidence of union
animus.2
Use of Austin's Office
Austin's office is left open in his absence, in part, to
enable employees to accept business calls made to the
telephone in that office . It also appears that whenever calls
are made to that number, the telephone continues ringing
until the phone is answered. With the office open during
periods of Austin's absence after 5 p.m., some-but not
all-employees used the telephone in that office for
personal calls.
Jackson testified that he used Austin's telephone nightly,
and that to his knowledge no special permission was
required to use that facility. The Ginsberg sisters testified,
on the other hand, that except for the aforementioned
occasion of their conversation with Jackson at the latter's
behest, they had never before entered the office without
permission. The record shows some use by employees of
Austin's office for personal conversation purposes, but that
Austin was probably unaware of such use without
permission.
Respondent concedes that there are no outstanding
instructions, oral or written, respecting employee use of
Austin's office for nonbusiness purposes. Austin neverthe-
less asserts that he expects employees to know that the
terminal manager's private office should , in effect, be
regarded as a sanctum sanctorum and not available to
employees for private meetings or conferences which is his
description of the Jackson-Ginsberg incident.
Concluding Findings
The issue thus drawn is whether Austin discharged
Jackson because he knew or suspected Jackson's union
interest or because of strongly held views that Jackson had
violated or abused a terminal manager's territorial preroga-
tives. Evidence of unlawful motive "must usually be
discovered by inference ," the court said in F. W.
Woolworth Co. v. N.L. R.B., 121 F .2d 658, 660 (C.A. 2);
"the evidence does not come in packages labelled, `Use
me,' like the cake , bearing the words , `Eat me,' which Alice
found helpful in Wonderland."
Discharge does seem strong medicine , if indeed any
medicine was at all required, for Jackson 's purported
dereliction in the circumstances presented . Suspicions are
raised , therefore, even though one also must be mindful
that, however one may consider Austin 's dosage to exceed
usual norms, Austin is entitled to be evaluated in terms of
his own personal makeup . To these suspicions one also
must add Normandin 's interrogation of Grenier , and the
2 The General Counsel refers to evidence of purported union hostility 3
years earlier , but which I consider as too remote to support a finding of
further fact of Normandin's advising Austin that Jackson's
conversation with the Ginsbergs might have concerned
union affiars. And, as the General Counsel asserts, there
are some factual inconsistencies in Austin 's testimony.
Yet, so far as this record establishes , there was no other
evidence of overt organizational activity known or even
suspected by Austin, and the record does not otherwise
demonstrate or even indicate Respondent hostility toward
the unionization of clericals . I am unable, in the circum-
stances of this case, to infer such animus from the fact of
discharge and then to predicate a finding of unlawful
motive upon such inference.
With less assurance than I like in these matters, I find
that the record does not preponderantly establish that
Austin discharged Jackson for union reasons . The General
Counsel contends , however, that the discharge was
nevertheless unlawful on two other independent bases.
Citing Burnup and Sims3 as support for his first alternative
theory, the General Counsel asserts that the discharge was
based on Austin 's claim of a mistaken belief that the
conduct alleged to have precipitated Jackson 's discharge
was not related in any way to union or protected concerted
activities ; and the General Counsel adverts in this
connection to admissions by Austin that he would not have
discharged Jackson if he, Austin , had known the union
nature of the Jackson -Ginsberg conversation.
Burnup and Sims holds , in effect, that "an employer's
honest belief is no defense if it affirmatively appears that
the employees' misconduct while engaged in activity
protected under Section 7 of the Act did not occur." Gooch
Packing Company, 162 NLRB 1, 9 (fn. 27). But I have
found that the Act did not insulate Jackson from
disciplinary action for using Austin's office , and the effect
of that finding is that such use was not "protected" in the
circumstances under consideration . It does not follow,
certainly Burnup and Sims does not hold, that an employer
loses his right of lawful disciplinary action merely because
he might have foregone exercising such right in order to
avoid legal entanglements.
The General Counsel's other alternative theory is that,
even assuming Austin's bona fides, the discharge was
nevertheless unlawful because precipitated by Norman-
din's note to Austin and that Normandin was motivated to
write such note because he knew or suspected the union
nature of Jackson's activities . But I have found that Austin
discharged Jackson for lawful reasons and Jackson's own
testimony is to the effect that Normandin's animosity
toward Jackson had nothing to do with union affairs.
I accordingly conclude that Respondent did not unlaw-
fully discharge Jackson. And while I find that Respondent
violated the Act by Normandin's conduct in interrogating
Grenier and requesting him to report concerning union
matters, I do not find in the somewhat unusual circum-
stances of the particular occasion that Austin 's interroga-
tion of Boyajian also was unlawful.
current hostility absent a more proximate showing.
3 N. L. R. B. v. Burnup and Sims, Inc., 379 U.S. 21.
HEMINGWAY TRANSPORT, INC. 249
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within Section 2(6) and (7) of the Act.
2. Teamsters Local 251, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within Section 2(5) of the
Act.
3. By coercively interrogating employees concerning
union or other organizational activities and by requesting
them to report such activities, Respondent has violated
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
5. Except as found herein, Respondent has not engaged
in the unfair labor practices alleged in the complaint.
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 be
deemed waived for all purposes.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
6 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 1, in wasting, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, ][ shall recommend that it cease and desist
therefrom and take appropriate affirmative action to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 4
ORDER
Hemingway Transport, Inc., Providence, Rhode Island,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union or other
organizational activities.
(b) Requesting employees to report concerning union or
other organizational activities.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its terminal in Providence, Rhode Island,
copies of the attached notice marked "Appendix." 5 Copies
of said notice on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.6
4 In the event no exceptions are filed as provided in Sec . 102.46 of the
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning
activities in behalf of Teamsters Local 251, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization.
WE WILL NOT request employees to report concern-
ing union or other organizational activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights under Section 7 of the Act.
Our employees, including clerical employees, are free to
join or remain members of Teamsters Local 251 or any
other union, or not to join or remain members, unless such
membership is required under a lawful contract under the
Labor-Management Relations Act.
HEMINGWAY TRANSPORT,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Seventh Floor, Bulfinch
Building, 15 New Chardon Street, Boston, Massachusetts
02114, Telephone 617-223-3300.