Joyce Brothers Storage and Van Company

National Labor Relations Board - Board Decisions

Aug 18, 1982

263 N.L.R.B. 544 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joyce Brothers Storage and Van Company and Pat-
rick Baker. Case 13-CA-20960
August 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 2, 1982, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and the Respondent filed a response to
the exceptions. '
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 has
decided to affirm the rulings, findings,2 and conclu-
sions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Joyce Brothers
Storage and Van Company, Chicago, Illinois, its
officers, agents, successors, assigns, shall take the
action set forth in the said recommended Order.
i The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law 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 Dry Wall Prod-
uctr Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing her
findings.
2 In addition to filing exceptions the Charging Party has filed a motion
to reopen the record. Subsequently, the Respondent filed an opposition to
the motion to reopen the record and motion to strike the Charging
Party's exceptions concerning references to evidence not incl, '-d in the
record. The Charging Party's and Respondent's motions are hereby
denied as lacking in merit.
The Administrative Law Judge cited Wright Line, a Division of Wright
Line. Inc, 251 NLRB 1083 (1980), in finding that the General Counsel
failed to make a prima facie showing that protected conduct was a moti-
vating factor in the Respondent's decision to discharge Baker. In Member
Jenkins' view, the Wright Line analysis is applicable only in cases involv-
ing mixed motives, where a genuine lawful reason and a genuine unlaw-
ful reason exist and are relied on. Thus, Member Jenkins would not apply
that analysis where, as here, protected conduct is not shown to be a moti-
vating factor in the decision to discharge an employee.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: This case
was heard before me on October 27 to 28 and December
263 NLRB No. 78
15 to 16, 1981, in Chicago, Illinois. Pursuant to a charge
filed on March 20, 1981, a complaint issued on April 24,
1981, and was consolidated with a separate complaint
based on a charge filed by William Halliday in Case 13-
CA-21135. However, by order of October 26, 1981, the
Regional Director for Region 13 of the National Labor
Relations Board, sua sponte severed the cases, dismissed
the charge, and withdrew the complaint in Case 13-CA-
21135.1 The surviving complaint in the above-captioned
case alleges, in substance, that Joyce Brothers (herein
called Respondent) discharged and refused to reinstate
Patrick Baker in violation of Section 8(a)(3) and (1) of
the Act because he engaged in union activity. In addi-
tion, Respondent allegedly committed independent viola-
tions of Section 8(a)(1) of the Act by threatening to dis-
miss the Charging Party on January 16 or 17 and on
February 11, 1981, and by threatening another employee
with discharge and other reprisals on various occasions
between February and July 1981 for offering evidence in
support of Baker's grievance.2 Respondent filed answers
denying the commission of any unfair labor practices and
pleaded affirmatively that deferral to the decision of a
joint grievance committee warrants dismissal of the com-
plaint.
Upon the record, including my observation of the de-
meanor of the witnesses and after due consideration of
the briefs filed by counsel for the General Counsel and
for Respondent, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION; THE BUSINESS OF THE EMPLOYER
AND THE LABOR ORGANIZATION INVOLVED
Respondent, an Illinois corporation with an office and
principal place of business at 6228 North Clark Street,
Chicago, Illinois, is engaged in the moving and storage
business. During the past calendar or fiscal year, a repre-
sentative period, Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $50,000 for the transportation of goods from
the State of Illinois directly to points outside that State.
Accordingly, I find that the Respondent is now, and has
been at all material times herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Truck Drivers, Oil Drivers, Filling Station & Platform
Workers, Local No. 705, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), is now, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
The stated grounds for the dismissal was the Charging Party's failure
to cooperate with the General Counsel's preparation of the case.
After advising Respondent of its intent to amend by letter of October
16, 1981, the General Counsel's motion to amend the complaint by
adding allegations of threats purportedly occurring in June and July 1981
was granted.
544
JOYCE BROTHERS STORAGE
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Joyce Brothers, an agent of Allied Van Lines, is a
member of a multiemployer organization, the Movers
Association of Greater Chicago, which, inter alia, en-
gages in collective-bargaining negotiations with the
Union on behalf of its constituents. Respondent, whose
president Dennis Mudd also served as president of the
Association, has had a 15-year relationship with several
locals affiliated with the International Brotherhood of
Teamsters and has been bound to a series of 3-year col-
lective-bargaining agreements. The current contract with
Local 705, which expires on January 14, 1984, and its
predecessor, which was effective from January 15, 1978,
to January 14, 1981, contained a grievance-arbitration
clause which provided at the third step for a hearing
before a six-member joint grievance committee com-
posed of an equal number of union and management rep-
resentatives.3 Decisions reached by a majority of the
committee were to be final and binding.
B. The Charging Party Joins Joyce Brothers
In November 1978, Baker was terminated by his then
employer Pickens-Kane which, like Respondent was a
member of the Movers Association. While awaiting a
grievance hearing on his discharge before the joint com-
mittee, Baker applied for a position with Respondent and
was hired as a packer-helper. Baker testified that he
asked Respondent's operations manager, Fahey, to ask
Mudd to extend to him a personal offer of permanent
employment. Baker further testified that, during a recess
in his grievance hearing, Mudd who served as a member
of the joint committee did offer him a job at Joyce
Brothers. However, he conditioned that offer on extract-
ing from Baker a commitment to avoid any involvement
with the Union. Specifically, Baker stated that Mudd
warned him not to "get associated with the fucking
Union because the Union can only mean trouble for me"
and "if he did not live up to it [his promise to refrain
from union activity] he would be terminated." Accord-
ing to Baker, upon accepting Mudd's offer the joint com-
mittee took no further action on his grievance.
As with most of the critical events in this case, Re-
spondent's version of the events in 1978 is completely at
odds with Baker's. Thus, Mudd denied having a private
encounter such as Baker described during the grievance
hearing (or at any other time), pointing out that commit-
tee members avoided any contact with grievants in the
event that their rulings were adverse. In fact, Mudd
stated he was unaware that Baker was on Respondent's
payroll until the president of Pickens-Kane subsequently
advised him of that fact. Further, Fahey denied that
Baker ever requested that he urge Mudd to make a per-
sonal offer of employment.
In contrast to Baker, whose account of the circum-
stances surrounding his employment at Joyce Brothers
seemed improbable, Mudd who impressed me as a credi-
ble witness testified in a consistent and logical manner.
The fourth step provides for the appointment of an arbitrator where
grievances were not resolved at the third step.
As president of an association which had a lengthy and
ongoing relationship with the Union, it is inconceivable
that he would run the risk of making such intemperate
comments to Baker, a virtual stranger, whose union pro-
clivities were unknown to him. Moreover, the minutes of
the grievance hearing disclose that the joint committee
ordered Baker's reinstatement with backpay. Since Baker
had his job back at Pickens-Kane, there was no reason
for Mudd to offer him employment at Joyce Brothers.
Thus, Baker's attempt to attribute antiunion sentiments to
Mudd from the date of his hire was unsuccessful. In-
stead, Mudd's participation in the committee's favorable
decision for Baker suggests that, at least in 1978, Mudd
harbored no animus toward him. 4
C. Baker's Union Activity
In mid-December 1979, the Association and the Union
began negotiations for a new collective-bargaining agree-
ment. On behalf of the Association, Mudd presented a
new wage proposal to the Union which was referred to
as the incentive or percentage plan. The Union's negoti-
ating team immediately predicted that the proposal was
not likely to be well received by the membership. Never-
theless, at management's request, the union representa-
tive promised to present the proposal in a neutral
manner.
Mudd testified that, although he originally favored the
incentive proposal, his support gradually eroded as he re-
alized how unpalatable it was to his employees. Shortly
after presenting the proposal at a bargaining session,
Mudd called several meetings of the Joyce Brothers em-
ployees to explain the measure's complex terms. At each
such meeting, several employees openly and candidly ex-
pressed their opposition to the proposal. For example,
employee Frank Osborne told Mudd he was "not going
for it" and that he would not work under those condi-
tions. Warehouse Foreman Chester Gdula bluntly ad-
vised Mudd that he could "take the incentive plan and
ram it." After these group meetings, other employees
vigorously denounced the proposal to management.
Warehouse Foreman Martin McDonagh 5 told Fahey and
Robert Proctor, Respondent's customer service manager,
that he thought the incentive plan "was a bunch of shit."
Responding to Mudd's personal request to appraise the
incentive plan, long-distance driver Mario Mangarelli
told him that the plan would cost him $50 a day and,
therefore, Mudd could throw the proposal in the garbage
can.
On January 15, Baker attended a union meeting at
which the proposal was presented to the membership
and he joined with most of the other 200 employees
there who overwhelmingly rejected the incentive plan.
By his own admission, Baker was attempting to keep a
low profile and therefore was not among those employ-
ees who spoke out publicly against the proposal either at
4 Mudd also participated in a joint committee decision to reinstate
Baker to his job at Pickens-Kane on at least one prior occasion
' Despite the title of foreman, Odula and McDonagh were unit mem-
bers covered by the Union's labor agreement. The record established that
they exercised none of the authority which typically earmarks a supervi-
sor under the Act.
545
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the company or the union meetings. However, after the
conclusion of the January 15 meeting, Baker, with ap-
proximately nine other Joyce Brothers employees, met
separately with the Union's business agent, William
Dicks, and expressed opposition to the proposal. At the
same time, Baker asked Dicks whether the employees
would be compelled to work without a contract, noting
that if they did so they would be unprotected against
reprisal. Dicks assured Baker and his coworkers that
they need not work without a contract."
D. Events Preceding Baker's Discharge
1. January 16-17
Witnesses for the General Counsel and Respondent
offer widely divergent accounts of a series of events
leading to Baker's discharge. Baker testified that at the
start of the workday, on January 16, with approximately
10 other drivers present, he requested a day off for per-
sonal reasons. Halliday then called him and coworker
John Maudlin into the dispatch office where Dicks,
Fahey, long-distance dispatcher Bill Jay, and employee
McDonagh were present. When Baker repeated that he
wanted the day off, Dicks purportedly erupted that he
was attempting to prevent drivers from working without
a contract. Baker also testified that Dicks singled him out
for trying to block the incentive clause and warned him
that the Union would refuse to grieve any discipline
which might be imposed upon Baker if he refused to
work.
Dicks, Fahey, and McDonagh uniformly denied being
present at the small group meeting in the dispatcher's
office which Baker described. Instead, Dicks testified
that, after being called to Joyce Brothers, he met with a
group of drivers and again assured them that they need
not work and would suffer no reprisals if they chose not
to do so. He asked Fahey to confirm this position to the
drivers and Fahey corroborated Dicks' testimony that he
did so.
As to the conflicting versions of this episode, I con-
clude that Baker's story does not ring true. Dicks assert-
ed that it was not his practice to identify or isolate an
individual's union efforts. Moreover, in these circum-
stances, he would have no reason to do so since the tide
of opposition against the incentive plan was virtually
unanimous. Further, I find irrational Baker's assertion
that Dicks on one day would assure drivers that they
need not work, only to reverse himself with drivers
present on the following morning. McDonagh too failed
to support Baker's testimony. I find it significant that the
General Counsel neither cross-examined McDonagh in
this matter nor called Mauldin, the other driver who
Baker said was present, to verify Baker's claims about
this episode. A separate and subsequent incident related
by another Joyce employee, Chester Gdula, casts further
doubt on the accuracy of Baker's description of the Janu-
ary 16 meeting. Gdula stated that on one occasion when
I The candor which characterized the employees' comments to Mudd
about the incentive proposal buttresses the conclusion that Mudd was not
inclined to stifle union activity among his employees and thus would not
have conditioned Baker's employment on his promise to refrain from sim-
ilar conduct.
Baker mentioned he would continue working in the
event of a strike, Gdula promised to "bust both of his
... ears." Baker subsequently reported this threat to
Fahey who in turn relayed it to Mudd. Mudd responded
with an oral warning to Gdula admonishing him that
such threats were inappropriate. I infer from this episode
that Baker's position on not working without a contract
was not strongly asserted and, certainly, not earnestly
maintained.
On the evening of January 16 Baker became embroiled
in another situation about which there is a web of con-
flicting testimony. Baker asserted that, on Halliday's in-
struction, he called Fahey at home at 10:30 in the eve-
ning. Fahey angrily denounced Baker as "a fucking
asshole for . . . trying to block the percentage clause"
and threatened that he would lose his job for that con-
duct and for bringing other employees to the January 15
union meeting in his car.7 When Baker called Fahey a
second time several minutes later to pursue the matter,
Fahey purportedly renewed his antiunion diatribe.
According to Fahey, Baker's version of their phone
calls was a complete fabrication. Respondent called
McDonagh as a witness to explain that he had encoun-
tered Baker in a bar that evening in a drunken condition.
McDonagh testified that Baker had accused him of
making certain unfavorable comments about him to man-
agement and had threatened him with bodily harm.8
McDonagh recounted that he had called Fahey at ap-
proximately 9:30 p.m. somewhat fearful that Baker
would carry out his threats. Fahey testified that at I a.m.
he was awakened by a call from Baker who ranted that
McDonagh was trying to undermine Baker's job. Fahey
suggested that Baker's timing was inappropriate and
hung up, whereupon Baker phoned again and resumed
his tirade. Several days later, Fahey issued a written rep-
rimand to Baker for his unseemly phone calls.
Again, the more plausible account of this episode was
offered by Respondent's witnesses. I found McDonagh
to be a credible witness with no motive to slant his testi-
mony. Moreover, although Baker denied having threat-
ened McDonagh, he did not contradict his testimony as
to other aspects of their barroom confrontation. There-
fore, concluding that Baker was inebriated, I find it far
more likely that he, not Fahey, engaged in an intemper-
ate outburst on the telephone about matters that had
nothing to do with his position on the incentive clause.
2. February II
Baker testified that at the end of the workday on Feb-
ruary 11 Halliday warned him he would be fired in 2
weeks for trying to block the incentive proposal. In a
sworn statement to a Board agent investigating this case,
Baker attested that no one else overheard this remark.
However, Danny Fox, a fellow driver and friend of
Baker's, claimed subsequently that he was standing just
outside Halliday's view and did overhear the threat. Hal-
liday did not testify.
7 It is interesting that Baker failed to include among Fahey's threats
any allusion to Baker's not working without a contract.
8 McDonagh and Baker's encounter apparently had nothing to do with
Baker's opposition to the incentive clause.
546
JOYCE BROTHERS STORAGE
I draw no conclusions about whether Halliday threat-
ened to discharge Baker. However, I have grave doubts
that, even if he did so, the threat bore any relationship to
Baker's opposition to the wage proposal. Baker was less
vocal than any number of other employees who ex-
pressed vigorous opposition to the measure. Moreover,
since by February 11 management had withdrawn the in-
centive proposal from the bargaining table, it could
hardly matter who had opposed the proposition. Further,
attendance cards introduced into evidence reveal that
neither Fox nor Baker worked on February I 11. Al-
though on rebuttal Baker claimed he visited the facility
to check on his future schedules, Fox offered no such ex-
planation for his adventitious presence in the drivers'
room on a day that he was not assigned to work.
3. February 24: Allegations of stealing time
In addition to its moving and storage operations, Re-
spondent was under contract to Cook County to deliver
voting machines by van and absentee ballots in company
or privately owned vehicles during election periods.
During the November 1980 election, Fahey testified that
Baker took an inordinately long time to complete his
election deliveries and pickups and thereby aroused sus-
picions that he was stealing company time.' He also tes-
tified that, because of a shortage of managerial personnel
and out of a desire not to create any friction among the
employees while negotiations were underway, he waited
until the new contract was executed before attempting to
verify whether or not Baker was, in fact, stealing time.
On February 24, with the new contract in place, Fahey
decided that the moment was opportune to have Baker
followed. For most of the morning on February 24 Proc-
tor and Halliday tailed Baker. At the outset, Baker drove
a fellow employee from the plant to his home. He was
accompanied by Fox who was not assigned to work that
day. After following Baker and Fox for several hours
that morning, Proctor and Halliday returned to the facili-
ty and reported to Fahey that, after Baker made his
scheduled stops, he drove the wrong way on a one-way
street, parked, entered a restaurant at 9:45 a.m., ate
breakfast, and remained there for the next 45 minutes.
Then, according to Proctor, Baker drove along an ex-
pressway exceeding the speed limit, exited, and took a
somewhat circuitous route back to the barn, through an
area known as New Town. On one occasion, Baker
parked; Fox then exited from the vehicle and walked
around briefly." Clark and Broadway both lead to the
9 The General Counsel submits that Respondent's failure to call Halli-
day as a witness warrants an adverse inference that his testimony would
not support Respondent's case. I decline to draw such an inference. Judg-
ing by the General Counsel's order severing the instant case from the
complaint, which was based on a charge filed by Halliday subsequent to
his discharge by Respondent, it appears that he was equally available or
unavailable, as the case may be, to either party. Accordingly, no adverse
inference is warranted. 3A Wigmore, Evidence, §§ 1017-18 (3d ed 1970).
See Consolidated Freightways Corporation of Delaware, 257 NLRB 1281,
1290, fn. 19 (1981).
10 In the moving industry a driver's failure to report break periods, for
which he would not otherwise be paid, is commonly referred to as steal-
ing time.
II New Town, as Fahey explained, is an area frequented by so-called
street people and bordered by bars.
Company's facility, but Clark is a wider street and a
more direct route.
Not surprisingly, Baker and Fox offered a different de-
scription of their morning's activities. Baker claimed that,
at the start of the day, he advised Fahey that he was
having difficulties with his car and asked to use a compa-
ny vehicle; however, Fahey denied his request. Baker
conceded that he dropped one employee near his home
and that Fox accompanied him on his deliveries, but
maintained that it was customary to have passengers ac-
company drivers on election days without obtaining
management's prior approval. Baker further explained
that he parked his vehicle at a gas station while he tele-
phoned to the dispatcher as he was required to do after
completing his morning deliveries. Since the station was
closed, he entered a nearby restaurant at approximately
10:10 or 10:15 a.m. to make his call. After twice obtain-
ing busy signals, he finally reached the dispatcher and
was told to report back to the facility. Both he and Fox
claimed that they remained in the restaurant no more
than 20 minutes and denied that they ate breakfast there.
Given the condition of his vehicle, Baker explained that
he decided to return to the bar via Broadway rather than
Clark because it had less traffic and had fewer lights.
Baker and Fox both denied engaging in a detour and
frolic through New Town.
After a lunch break, Baker used his car for deliveries
for the balance of the day without incident. However,
the following day he brought his car to a repair shop. At
the hearing, he produced a bill from the garage showing
that the brakes on his vehicle had been repaired on Feb-
ruary 25.
4. February 26: The discharge
Baker submitted his timecard on February 25 for the
preceding day. In reviewing this card the subsequent
day, Fahey observed that Baker failed to report taking
any break. He then summoned Baker to his office, ques-
tioned him, and, after hearing Baker's denials, discharged
him. On the same day Respondent issued Baker a letter
which recited the route that he had taken on February
24 and attributed the discharge to his transporting unau-
thorized passengers, as well as taking and failing to
record an excessive break.
Fahey conceded that employees were rarely disci-
plined for stealing time if the amount of time involved
was less than half an hour and, when confronted with
the error or omission in his timecard, the employee ad-
mitted his wrongdoing. Under those circumstances,
Fahey explained that the employee's timecard would be
revised by a supervisor to reflect the accurate breaktimes
involved. A number of timecards for employees Kallas,
McDonagh, and Baker were admitted into evidence
showing that reported times had indeed been reduced,
generally by no more than 15 minutes. Thus, the Compa-
ny responded to inadvertent and short breaks by docking
the employees' time and, on some occasions, by verbal
reprimands. On the other hand, intentional failures to
record substantial breaks, that is, those of more than one-
half hour, were punished with disciplinary action, rang-
ing from warning letters to discharge. For example, em-
547
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees Vodicka, Darcy, and Dahle were terminated in
1978, after having been followed, for deliberately failing
to report several hours of breaktime. The record indi-
cates that Vodicka was guilty of only one such violation.
In December 1978, employees Honig and Pecore also
were terminated for failing to report a 2-1/2-hour break.
This, too, was Pecore's and Honig's first reported viola-
tion. The third member of this crew, Burchfield, re-
ceived only a 15-day suspension, because as Fahey ex-
plained he was a 12-year employee and acknowledged
his wrongdoing. Apart from the surveillance of Vodicka,
Darcy, and Dahle, Fahey recalled only one other in-
stance in 1975 when a driver was monitored deliberately.
However, Fahey related that he, Mudd, and Proctor
routinely followed drivers if they encountered them
during the course of the day.
As part of his defense, Baker claimed that the practice
of conveying passengers on election days without man-
agement's consent was well es'ablished and widespread.
In fact, he claimed that, on the preceding election day in
November 1979, the drivers' room was crowded with
the employees' companions. Respondent acknowledged
that the failure to seek permission to transport a passen-
ger without prior consent would not, standing alone,
normally constitute grounds for discharge. It did not
concede, however, that a policy prohibiting passengers
without permission was nonexistent. Thus, a series of
witnesses, including supervisors and employees, testified
uniformly that drivers were required to obtain prior con-
sent before taking passengers when making election day
deliveries.
E. The Grievance Proceeding
At Baker's request, Dicks met with Fahey on the day
following Baker's discharge in an effort to persuade him
to reinstate Baker. Dicks' efforts failed and a formal
grievance was filed which was not resolved at the
second step. Therefore, a hearing was scheduled before
the joint grievance committee on March 19, 1981. 2
In testifying before the committee, Baker explained
that he believed that his discharge was due to his in-
volvement with union activity. However, according to
Baker, the chairman of the committee refused to consid-
er that assertion because it was undocumented and un-
provable. Moreover, Baker contended that, although he
was permitted to read aloud a sworn statement provided
to him by Fox, the committee would not receive that
document into evidence nor would it grant Baker a con-
tinuance to obtain Fox's appearance at the hearing.
Dicks, however, could not recall either that the commit-
tee rejected the Fox affidavit or that Baker requested or
was denied a continuance.
Minutes of the joint committee hearing, admitted into
the record of this case, reflect that the Fox statement
was appended to that summary. Further, although the
minutes indicate that Baker's grievance was denied, they
reflect none of the factors upon which the committee
may have relied in reaching its decision. Rather, the min-
Ia Dicks' conduct in pursuing Baker's grievance is altogether inconsist-
ent with Baker's claim that the business agent exposed him to manage-
ment as the opponent of the incentive proposal and threatened not to
process his grievance if he were disciplined for refusing to work.
utes simply state that "After a further discussion, a
motion was made . . . that based on the evidence pre-
sented and the violation of the company rules, the griev-
ance be denied."
F. The Alleged Threats to Fox
Fox testified to a series of threats made to him in the
months following Baker's discharge which allegedly
were designed to restrain him from supporting the
Charging Party's version of the events of February 24.
The first of these warnings occurred on February 27,
according to Fox, when Halliday pointedly remarked to
him that he was married and that jobs were hard to
come by. Then, in explicit terms, Halliday threatened to
fire Fox if he testified in Baker's behalf at his grievance
hearing. Fox immediately reported this threat to Fahey
and asked him to have Halliday apologize. Several days
later, Fahey told Fox he best forget about the threat,
that Halliday was not willing to apologize.
Fahey presented a somewhat different picture of this
incident. After Fox related Halliday's threat to him,
Fahey admonished Halliday against making such re-
marks. Fahey then informed Mudd of the episode. Mudd,
too, rebuked Halliday and sent him a memo instructing
him that such remarks were inappropriate. Fahey main-
tained that, subsequently, he assured Fox there would be
no retaliation against him for participating in Baker's
grievance.
Fox next testified about three conversations with
Dennis Mudd. The first of these occurred on March 25
after the joint committee denied Baker's discharge griev-
ance. Fox stated that Mudd thumbed his nose at him and
said, apparently in a facetious manner, "It was very nice
of one of my senior men to put in a written statement
against me to the Union." This was followed by Mudd's
threatening to assign Fox to third floor work.'3
Mudd described his conversation with Fox in this
way: As Fox was passing his office, he gestured him
inside and asked why he lied to the joint grievance com-
mittee. When Fox shrugged his shoulders and said,
"That's the way it is," Mudd responded that if he were
still dispatching drivers, Fox would be assigned to the
more onerous third floor work because of his lies.
On another occasion in May, Fox related that he tried
to persuade Mudd to reinstate Baker. Mudd refused to
reconsider the discharge but suggested that Fox could
bring a halt to the matter by altering his version of the
February 24 events and admitting that he knew Baker
had taken a break and failed to report it.
Mudd readily acknowledged one conversation which
Fox initiated immediately after he was interviewed by
Respondent's counsel during her investigation of Baker's
charge. According to Mudd, Fox urged him to settle the
case and put Baker back to work. Mudd replied that, al-
though he had a lot of money invested in training em-
ployees such as Fox and Baker and did not relish dis-
charging anyone, he would not settle since he believed
the discipline Baker received was proper. He did ask Fox
13 Third floor work are industry code words referring to strenuous
moving assignments up and down flights of stairs.
548
JOYCE BROTHERS STORAGE
why he had lied in his statement to the joint grievance
committee. At this, Fox admitted he may have stretched
the truth by 20 minutes.
Again, sometime in June or July, Fox stated that
Mudd asked him if he had considered changing his story,
that it would be in his best interest to do so. Fox ex-
plained that Mudd's suggestion occurred in conjunction
with a separate incident in which he and several other
employees were accused of stealing time. Fox conceded
that Mudd apologized to the three men when he discov-
ered that the accusation was unfounded.
In responding to Fox's last indictment, Mudd recalled
that, in Proctor's presence, he merely assured the drivers
that the accusations of stealing time had nothing to do
with Baker. Other than that one reference, he denied
making any other comment to Fox or suggesting to him
that he alter his testimony.
III. DISCUSSION
A. Deference to Arbitration Is Not Warranted
At the outset, a question is presented as to whether the
decision of the joint committee upholding Baker's dis-
charge precludes a decision on the merits in this forum.
The Board has established a policy of deferring to the
decisions of arbitral panels to encourage the voluntary
settlement of labor disputes, but only where (1) the pro-
ceedings were fair and regular; (2) the parties agreed that
the proceedings were final and binding; and (3) the
award was not clearly repugnant to the purpose and
policies of the Act. Spielberg Manufacturing Company,
112 NLRB 1080 (1955). In addition, the Board also re-
quires that evidence bearing on the unfair labor practice
must have been presented to and considered by the arbi-
trator if the Board is to refrain from hearing the matter.
Suburban Motor Freight, Inc., 247 NLRB 146 (1980)."4
The General Counsel insists that the proceedings
before the joint committee were far from fair and regular
for a number of reasons, not the least of which was the
committee's purported refusal to receive into evidence
the Fox affidavit or to grant Baker a continuance. More-
over, the General Counsel contends that the minutes of
the meeting were not properly authenticated and there-
fore cannot accurately be relied upon as reflecting what
occurred. With equal insistence, Respondent points out
that the minutes of the hearing establishes that the Fox
affidavit was admitted and that Baker acknowledged on
the record that the hearing was fair and impartial.
It is difficult to believe that the joint committee failed
to take the Fox statement into account, particularly since
Baker was permitted to read it aloud. However, since the
evidence is somewhat ambiguous on this matter, I am un-
prepared to say that Respondent has met its burden of
proving that the proceedings met the first Spielberg crite-
rion. However, a more fatal infirmity marks this hearing.
Baker stated that, when appearing before the committee,
14 As in Suburban Motor Freight. supra at 152, fn. II, no contention is
made here that the committee did not constitute an arbitration body
within the meaning of Spielberg. But see Member Jenkins' dissenting opin-
ions in Automobile Transport. Inc. 223 NLRB 217 (1976), and Terminal
Transport Company. Inc., 185 NLRB 672 t1970), on grounds that arbitral
panel lacked neutral members.
he alluded to his union activity. However, apart from his
representations, no proof exists that the committee took
his testimony into account or gave any consideration to
the factors germane to the statutory issue. The minutes
clearly do not mention Baker's alleged protected activi-
ty. Indeed, they are barren of any analysis of the evi-
dence presented nor do they reflect the reasoning which
underlay the committee's decision denying Baker's griev-
ance. Thus, there is simply no basis upon which to deter-
mine whether the unfair labor practice aspect of Baker's
grievance played a part in the committee's deliberations.
Accordingly, without proof that the Suburban Motor
Freight criterion was satisfied, deferral to arbitration
would be inappropriate.
B. The Discharge Was Lawful
In cases such as this involving an alleged violation of
Section 8(a)(3), the issue posed is whether an employee's
concerted activity was the motivating factor in the em-
ployer's decision to discipline him. In resolving this issue,
the General Counsel bears the burden of proving by a
preponderance of the evidence that Baker engaged in
union or other concerted activity and that Respondent's
knowledge of this activity was a significant factor in its
decision to discharge him. See Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). I conclude
that the General Counsel has failed to meet his threshold
burden, for the evidence fails to establish that, even if
Respondent was aware of Baker's union involvement,
that knowledge played any part in its decision to termi-
nate him.
There can be no dispute that Baker's opposition to the
incentive clause and his inquiries about working without
a contract constitute protected concerted conduct. See
Soundesign Corporation, 232 NLRB 993, 998 (1978).
However, given the record in this case, a serious ques-
tion must be addressed as to whether Respondent knew
of Baker's sentiments.
By his own admission, Baker was reluctant to publicly
express his views. Nevertheless, the General Counsel
contends that management's knowledge is revealed by
(a) the January 16 meeting at which Dicks, in manage-
ment's presence, branded Baker a militant opponent of
the incentive clause and the leader of a potential
walkout; (b) Fahey's 10:30 p.m. telephone conversation
with Baker on January 16; and (c) Halliday's threats of
discharge on February 11. As discussed above, I found
Baker's accounts of these incidents wholly implausible.
Accordingly, they do not provide evidence that manage-
ment had specific knowledge of Baker's union activity.
Nevertheless, management may have had some reason to
believe that Baker opposed the incentive clause, if only
by virtue of the fact that almost all of the union members
similarly were opposed. It is also possible that Baker's
participation with some nine other Joyce Brothers em-
ployees at a meeting with Dicks on January 15 came to
management's attention. A more likely source of knowl-
edge stems from Baker's participation in a group demand
that Fahey guarantee against reprisals if they chose not
to work without a contract. Although such evidence is
549
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
circumstantial at best, it is minimally sufficient to give
rise to an inference of knowledge.
Assuming, therefore, that management was aware of
Baker's attitude, a more fundamental question arises
which is never satisfactorily answered: That is, why
would management single out Baker for discipline when
a number of his coworkers were far more vocal than he
in their opposition to the incentive plan. Baker vastly ex-
aggerated his own opposition to the plan and magnified
the significance which management attached to his
views. The truth of the matter is that in comparison to
the positions taken by far more outspoken employees
such as Osborne, McDonagh, and Mangarelli, none of
whom was disciplined for his conduct, Baker's opposi-
tion was negligible. The reason for Baker's exaggeration
is not hard to find: Unless he portrayed himself as a fire-
brand, any motivation for his discharge, which might
otherwise be cognizable under the Act, evaporates.
The timing of Baker's discharge, a factor often relied
on to prove discrimination in 8(a)(3) cases, works to the
General Counsel's disadvantage here and reinforces the
conclusion that the discharge was not discriminatorily
motivated. By February 11 when Baker accused Halliday
of threatening to fire him because of his union involve-
ment, or by February 24 when he was followed, the per-
centage clause had been withdrawn from the bargaining
table and the entire issue had been put to rest with the
execution of a new contract. Similarly, Baker's inquiries
about working without a contract never were converted
into a reality and were irrelevant by the time Baker was
discharged. Moreover, on one occasion when Baker was
threatened by a coworker for implying he would contin-
ue working if a strike occurred, management came to his
defense.
Further, the element of union animus is wholly absent
from this case. As I found above, it is inconceivable that
Mudd made the antiunion remarks which Baker attribut-
ed to him in 1978. In terms of recent conduct, credible
evidence from several witnesses established that Mudd
was exposed to and even solicited far more abrasive
comments about the incentive proposal than were ever
forthcoming from Baker. Indeed, by mid-January it is
clear that Mudd was disenchanted with the proposal and
was among those on the management team who urged
that it be abandoned without resort to hard bargaining
tactics. In these circumstances, the suggestion that Baker
was penalized for opposing a clause which the Compa-
ny's president had abandoned a month before the dis-
charge is insupportable.
The General Counsel contends that Respondent's ap-
plication of its policy against stealing times was so dis-
parately applied to Baker as to constitute evidence of its
unlawful motivation.
Baker did not deny Fahey's assertion that he took an
excessive period of time in delivering ballots in Novem-
ber 1979, that he transported two passengers on Febru-
ary 24, nor that he failed to report a break on his time-
card on that date. Therefore, the only factual dispute is
whether he remained in the restaurant for 45 minutes and
then deliberately took an indirect route back to Respond-
ent's facility, or whether he and his companion, Fox, re-
mained in the restaurant no more than 20 minutes and
took a relatively straightforward road back to the barn.
Because of my previous findings with respect to
Baker's penchant for distorting the truth, I am not in-
clined to believe his version of the events of February
24. There are independent reasons why I find that Proc-
tor, and not Baker, should be credited. First, I was im-
pressed with the authenticity of the contemporaneous
notes which Proctor kept during his surveillance of
Baker. If Proctor wished to dissemble it would have
been a simple matter to build a case against Baker by
stretching the time Baker lingered in the restaurant well
beyond 45 minutes, and to invent a far more bizarre
route back to the barn. In contrast to Proctor, Fox did
not reconstruct the events of February 24 until 3 weeks
later. His ability to recall his and Baker's whereabouts
and timetable with computer-like precision is too remark-
able to be believed. Indeed, Fox partially admitted that
he had stretched the truth when he told Fahey that he
and Baker might have been in the restaurant 20 minutes
longer than he originally reported. I also find no reason
to assume that Proctor invented each of Baker's twists
and turns through the New Town area. Proctor had no
purpose to do so, whereas Baker and Fox had ample mo-
tivation for dissembling. Even if Broadway is somewhat
less trafficked than Clark, the city street map shows that
Clark is a much more direct route back to the barn.
Since it was the street most frequently used by Joyce
Brothers drivers, I fail to understand why Baker would
chose to avoid it. Moreover, even if Baker had trouble-
some breaks, they were not damaged enough to prevent
him from weaving through some of New Town's side
streets.
It is true, as the General Counsel points out, that Re-
spondent's past practices with respect to disciplining em-
ployees for stealing time were less than uniform. Surveil-
lance was rare and discipline infrequently imposed. How-
ever, the record shows that neither surveillance nor dis-
charge for stealing time was altogether unprecedented
when the circumstances were egregious. Although this
was the first time Respondent documented Baker's steal-
ing more than one-half hour, Fahey's response to this
violation was not based solely on an unreported 45 to 60
minutes. Rather, it was apparent that he reacted to
Baker's denying any wrongdoing when confronted with
what Fahey had good reason to believe was unassailable
evidence of his theft of company time. Further, even if
the record does arouse some suspicion regarding the rea-
sons for Baker's discharge, suspicion alone is not suffi-
cient to meet the General Counsel's burden of proof that
Respondent's motives were unlawful. See Pork King
Company, Inc., 252 NLRB 99, 100, fn. 8 (1980); Carrom
Division, Affiliated Hospital Products, Inc., 245 NLRB
703, fn. 1 (1979).
It is a well-established principle that where the trier of
fact "finds that the stated motive ... is false, he certain-
ly can infer that there is another motive. More than that
he can infer that . . . the motive is one that the employ-
er desires to conceal-an unlawful motive-at least
where . . . the surrounding facts tend to reinforce that
inference." Shattuck Denn Mining Corporation (Iron King
550
JOYCE BROTHERS STORAGE
Branch)v. N.LR.B., 362 F.2d 466, 470 (9th Cir. 1966).
Even if I were to surmise that Respondent's stated
reason for following and then firing Baker was not its
real reason, it does not follow that its true motive was an
unlawful one. It is unnecessary to engage in idle specula-
tion as to what, if any, other motive Respondent may
have had, for I am convinced that it bore no relationship
to Baker's concerted activity. As long as the decision to
sever Baker from its employ was not generated by dis-
criminatory considerations, Respondent was free to fire
Baker for good cause, poor cause, or no cause at all. 15 It
follows from the above discussion that Respondent did
not violate Section 8(a)(3) and (1) of the Act by dis-
charging Baker on February 26, 1981. Accordingly, I
shall recommend dismissal of those paragraphs in the
complaint alleging that the discharge was unlawful.
C. Conclusions as to Independent 8(a)(1) Violations
As evident from the discussion supra I did not credit
Baker's story that Fahey threatened to discharge him on
January 16 or 17 or that Halliday's threat to discharge
him was tied to his union involvement. Accordingly, I
shall recommend the dismissal of paragraphs V(a) and
(b) of the complaint.
Fox's account of his February 27 encounter with Hal-
liday is more troublesome. The issue here is not whether
Halliday made the unlawful statements Fox attributed to
him, but whether, after being advised of those remarks,
Respondent took appropriate steps to retract them. If a
copy of Mudd's memo chastising Halliday had been sent
to Fox, or if Halliday had apologized as Fox requested,
there would be little difficulty in resolving this matter.
However, without any unequivocal documentation that
Respondent formally communicated its disavowal of
Halliday's threat, Fahey's comment that Fox need not
fear retaliation may not have appeared sufficiently reas-
suring. As the Supreme Court observed in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969):
. . .the precise scope of employer expression . . .
must be made in the context of its labor relations
setting. .... And any balancing of those rights must
take into account the economic dependence of the
employees on their employers, and the necessary
tendency of the former, because of that relationship,
to pick up intended implications of the latter that
might be more readily dismissed by a more disinter-
ested ear.
It was within Respondent's power to make its retraction
clear and convincing. Since it failed to do so, ! conclude
that Respondent must be held liable for violating Fox's
rights guaranteed by Section 7 of the Act.
Resolution of the conflicts between Fox's and Mudd's
accounts of their conversations is even more problemat-
ic. I am mindful, on the one hand, that Fox's credibility
is enhanced by the fact that he offered testimony adverse
to Respondent although still in its employ. See, e.g. Sani-
tas Cura, Inc., d/b/a Parkview Acres Convalescent Center,
255 NLRB 1164 (1981); Motz Poultry Company, 244
1' See N.LR.B. v. Ace Comb Company, 342 F.2d 841 (8th Cir. 1965);
Borin Packing Co.. Inc., 208 NLRB 280 (1974).
NLRB 573, 575, fn. 7 (1979). On the other hand, Mudd
was seasoned in labor-management relations. Especially
after Baker filed an unfair labor practice charge, Mudd
would have been exceedingly cautious in overstepping
the bounds of propriety.
Balancing these considerations, I conclude that Re-
spondent must be faulted for whatever ambiguity arose
as a result of Mudd's remarks to Fox after the March
grievance hearing. Mudd initiated the conversation and
acknowledged raising questions regarding Fox's state-
ment to the joint committee. He also admitted alluding
to third floor work and certainly was in a position to im-
plement such discipline if he chose to do so. It was not
unreasonable, then, for Fox to read a warning into
Mudd's remarks. I conclude, therefore, that however un-
intended Mudd's comments to Fox in March violated
Section 8(a)(1) of the Act.
I decline to draw the same conclusions about any sub-
sequent statements Mudd was alleged to have made. Fox
conceded that his recollection of their exchanges was
vague. Further, when questioned closely, he revealed
that Mudd did not ask him to change his testimony;
rather, that Mudd expressed his disbelief in Fox's ac-
count of the events of February 24. In these circum-
stances, Respondent cannot be held accountable for
whatever inferences Fox drew. Accordingly, I shall pro-
pose the dismissal of paragraph V(e) of the amended
complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Truck Drivers, Oil Drivers, Filling Station & Plat-
form Workers, Local 705, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening Danny Fox with reprisals in March
1981 to restrain him from presenting evidence at Patrick
Baker's grievance proceeding and for providing a writ-
ten statement which was offered at that proceeding, Re-
spondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not unlawfully threaten to discharge
Patrick Baker nor terminate him for discriminatory rea-
sons on February 26, 1981.
THE REMEDY
Having found that Respondent has engaged in several
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and from any like or
related conduct. Affirmatively, Respondent will be re-
quired to take certain affirmative actions including post-
ing copies of the notice appended to this Decision.
Upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
551
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER '
The Respondent, Joyce Brothers Storage and Van
Company, Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening any employee with reprisals in order
to prevent him from offering evidence or because he has
offered a written statement for use at a grievance pro-
ceeding.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Post at its Chicago, Illinois, facility copies of the
attached notice marked "Appendix."17 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that, insofar as the
complaint as amended herein alleges other violations of
sa 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 be deemed waived for all purposes.
17 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
the Act which have not been found, these allegations are
hereby dismissed.
APPENDIX
NOnce To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence and cross-examine witnesses, the Na-
tional Labor Relations Board found that we have violat-
ed the National Labor Relations Act, and has ordered us
to post this notice. We intend to abide by the following:
The Act gives all employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
Accordingly, we assure you that:
WE WILL NOT threaten any employee with repri-
sals in order to prevent him from offering evidence
or because he has offered a written statement for
use at a grievance proceeding.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
JOYCE BROTHERS STORAGE AND VAN
COMPANY
552