Kidde, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1989

294 N.L.R.B. 840 (N.L.R.B. 1989)

840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Business Products-Division of Kidde , Inc. and Team-
sters Union Local 145, a/w International Broth-
erhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, AFL-00.1 Case
39-CA-3342
June 9, 1989
DECISION AND ORDER
spondent, Business Products-Division of Kidde,
Inc., Stratford, Connecticut, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified.
Add the following as paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On September 12, 1988, Administrative Law
Judge David L. Evans issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions, a brief in support of cross-exceptions, and a
reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order4 as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The General Counsel and the Respondent have both excepted to
some of the judge's credibility findings. The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record
and find no basis for reversing the findings
s In adopting the judge's Wright Line analysis that the Respondent's
discharge of employee Marsala violated Sec 8(aX3) and (1) of the Act,
we rely in particular on those cases holding that employees misconduct
discovered dunng an investigation undertaken because of an employee's
protected activity does not render a discharge lawful See, e g, Kut Rate
Kid & Shop Kwik, 246 NLRB 106, 121-122 (1979) (if investigation com-
menced to find lawful reasons for discharges motivated by an actual un-
lawful reason, evidence of misconduct would not render the discharges
lawful), Campbell "66" Express, 238 NLRB 953, 963 (1978), enf denied
609 F 2d 312 (7th Cir 1979) (misconduct uncovered dunng investigation
undertaken because of protected activity and aimed at undermining the
employee's Sec 7 rights does not convert the discharge into a legitimate
one) See also Chrysler Corp, 242 NLRB 577 (1979), American Motors
Corp, 214 NLRB 455 (1974), enfd 525 F 2d 695 (7th Cir 1975)
4 The Respondent filed a motion to reopen the record and a supporting
brief The Respondent requests that the Board receive new evidence re-
garding the unsuitability of Marsala for reemployment based on events
occurring after the issuance of the judge's decision The new evidence
concerns Marsala's alleged untruthfulness dunng a Department of Trans-
portation mandated physical exam conducted pursuant to an offer of rein-
statement by the Respondent The motion is denied Our denial, however,
does not preclude the Respondent, in the compliance stage of this pro-
ceeding , from raising the alleged unsuitability of employee Marsala for
reinstatement
Thomas W. Mieklejohn, Esq., for the General Counsel.
Theodore M. Eisenberg, Esq., of Roseland, New Jersey,
for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
matter was tried before me on December 14-16, 1987,'
upon charges filed under the National Labor Relations
Act (the Act), by Teamsters Union Local No. 145, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) and on a complaint issued by the General Coun-
sel against Business Products-Division of Kidde, Inc. (the
Respondent). The charge was filed on January 26 and
the complaint issued on March 31. The complaint alleges
that Respondent violated Section 8(a)(3) and (1) of the
Act by discharging employee Clarence Marsala on Janu-
ary 21. Respondent filed an answer admitting jurisdiction
but denying the commission of any unfair labor practices.
Respondent and General Counsel have filed briefs which
have been carefully considered. On the record testimony
and the exhibits, and the arguments made at the hearing
and in the briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with an office
and place of business in Stratford, Connecticut, where it
is engaged in the retail and nonretail sale and distribution
of office supplies and furniture. During the year preced-
ing the issuance of the complaint, Respondent, in the
course and conduct of its business operations, received a
gross income in excess of $500,000. During the same
period Respondent purchased and received at its Strat-
ford facility products, goods, and materials valued in
excess of $50,000 directly from suppliers located at
points outside Connecticut. Therefore, Respondent is
now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent disclaims knowledge of whether the
Union is a labor organization within Section 2(5) of the
Act. Paul Keegan, president and business agent of the
' All dates referred to are between November 1, 1986, and March 31,
1987, unless otherwise indicated
294 NLRB No. 72
KIDDE, INC
Union , credibly testified that the Union organizes em-
ployees and negotiates contracts in order to establish
wages and benefits for employees . On this testimony I
find that the Union is now and has been at all times ma-
terial , a labor organization within the meaning Section of
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Individuals involved and contentions'of
the parties
Respondent is a subsidiary of New Jersey Office
Supply which is located in Whippany , New Jersey 2 Re-
spondent 's Stratford operation is a warehouse from
which Respondent wholesales furniture and stationery.
At the time of the events in question Respondent em-
ployed an undisclosed number of furniture delivery driv-
ers and six stationery -delivery drivers, including Marsala.
The immediate supervisor of the drivers3 was Wayne
Landry, warehouse manager . Landry reported to Rich-
ard O 'Hal, operations manager ; O'Hal reported to
Arthur Bouthillier , vice president and general manager
of Respondent 's New England operations . Robert
Caponi is the comptroller of Respondent 's Connecticut
operations ; Caponi also reported directly to Bouthillier.
Marsala was hired by Respondent in 1981 and dis-
charged on January 21 at which time he was the senior
driver. He drove a van which was owned by Respond-
ent; the five other drivers drove 16-foot trucks which
were leased . Marsala, for the last several years of his em-
ployment , made deliveries in the Bridgeport, Connecticut
area.
Marsala was active on behalf of the Union in Novem-
ber and December , and General Counsel contends that
Marsala was discharged because of that activity Re-
spondent does not deny knowledge of Marsala 's union
activity , but it contends that Marsala was discharged for
going home for a 4 -hour period , rather than reporting
back to the warehouse when he had finished the deliv-
eries on his route on January 16 and 19 ; for falsifying
times of deliveries on his driver delivery sheets on four
different dates, and for giving a ride to an unauthorized
person (Marsala 's wife) in the company van. Respondent
further argues that there is no evidence of union animus
in the record . General Counsel responds that Marsala
was given permission to go home any time he finished
his routes ; that he was given permission to falsify the en-
tries on the driver delivery sheets; that Marsala was dis-
criminatorily punished as other employees were not dis-
charged for engaging in the same , or similar , conduct;
and that Marsala was discriminatorily punished as he was
not given the benefit of Respondent 's progressive disci-
plinary program . General Counsel further contends that
all punishment of Marsala should be held to be invalid
2 At the time of the events in question , New Jersey Office Supply was
owned by Walter. Kidde Corporation, 6 months before the hearing New
Jersey Office Supply was acquired by Hanson Industries, Inc
3 For the remainder of this decision the term "driver " applies only to
the stationery-delivery drivers , as opposed to the furniture-delivery driv-
ers
841
because investigation of his conduct was not undertaken
until he announced that he was going to help the Union
organize Respondent 's employees . Finally, General
Counsel contends that evidence of antiunion animus
exists in campaign literature distributed by Respondent
and in a remark by Bouthillier to Marsala.
2. Marsala's union activity and discharge
Marsala testified that on November 14 he met union
representative Paul Keegan at a bowling alley. Marsala
told Keegan that he thought he could organize the em-
ployees of Respondent , and Keegan gave Marsala an au-
thorization card to sign and about 25 more to distribute.
In early December Marsala received an annual review.
Landry conducted the review at which Marsala was
given favorable marks except for "housekeeping " assign-
ments. Marsala told Landry that he should be making as
much as Respondent 's union -represented drivers in New
Jersey Landry replied that he could not grant such a re-
quest . Marsala asked if he could talk to Bouthillier.
Landry said that he had no objection , and Marsala then
went to Bouthillier 's office Marsala testified that he
argued unsuccessfully for a wage increase . Bouthillier
told him that New Jersey was "a whole different ball
game ." Further according to Marsala:
I says, "Art , you know I 'm sure you are aware that
there has been same union talk going on in the
place." He said , "well, Clarence, are you organizing
a union?" I said, "I am getting accused of it," but I
said , "no I'm not organizing a union ." I said , "but, I
will tell you what , if I ever decide , I promise you
that the first guy that I will tell will be you." I said,
"while we are discussing this," I said, "Art, if I
decide to organize how about letting me organize it
within ." He said , "what are you talking about
`within ' " I said , "well, instead of having a Union
business agent go out and pass out leaflets, let me
get a general feeling inside, let me go around asking
questions and post notes on the bulletin board." He
said , "Clarence, let's get one thing now; if you try
to organize a union I will fight you tooth and nail;
get that in your head . [Quotation marks supplied.]
Marsala testified that Bouthillier went on to give reasons
why he opposed the Union.
Marsala further testified that within a day or two after
this conversation with Bouthillier , he again went to
Bouthillier 's office. Marsala testified that he told Bouthil-
lier that he had heard rumors that employees were being
questioned about whether he, Marsala , had been handing
out union cards and that he had further heard other em-
ployees say that he, Marsala, should "watch his butt; he
is going to get fired ." Marsala furthered testified that he
told Bouthillier that he was worried because he did not
want to get fired and he added, "I said , I don 't know if
you are aware of the meeting that we had 3 years ago
with Bob Caponi, where he told us we can go home
when we are done delivering." According to Marsala,
Bouthillier replied , "I agree with that 100%; you are the
kind of employee we want making our deliveries; when
you are done, you are allowed to go home." Further, ac-
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cording to Marsala, Bouthillier added that since Landry
and O'Hal worked for him, Bouthillier,, only Bouthillier
could fire Marsala.
On direct examination Bouthillier described four con-
versations with Marsala involving the topics of the
Union and/or the possibility of a wage increase. Bouthil-
lier testified that at the first conversation Marsala ex-
pressed upset at being paid 25 cents per hour less than
truckdrivers because he, Marsala, was a van driver.
Bouthillier testified that he replied by asking Marsala
why he didn't drive a truck if he wanted the differential,
and Marsala replied that he liked his route and he liked
driving the van and wanted to continue what he was
doing Bouthillier replied that it was corporate policy to
maintain the differential. Bouthillier testified that Marsala
argued that he, Marsala, worked very hard, he liked his
route; he was the senior member of the driving staff; he
gave extra effort to the company; he wanted some indi-
vidual recognition; and he trained other drivers. Bouthil-
lier testified that he told Marsala that he would check
with company headquarters to see if more money could
be granted on the basis of Marsala' s training other driv-
ers, but he did not believe there would be a change in
company policy that granted truckdrivers a premium
which van drivers did not receive.
Bouthillier testified that a week later Marsala stopped
by his office again . Marsala asked if there had been any
word on whether he could have the pay differential
Bouthillier told Marsala that he hadn't gotten an answer
on the question of whether training of other drivers
would constitute a basis for granting the differential.
Bouthillier testified that Marsala replied by asking for
permission to organize a union . Bouthillier testified, "I
told him he had a right to do anything he wanted to do
as long as he didn't do it on company time." To that
Marsala replied that he was worried about being fired
"for his activities," and' Bouthillier replied, " as long as
you don't violate company policy and you do a good
job, you will not get fired." Bouthillier testified that at
his third meeting with Marsala in December he told
Marsala that he had spoken to the corporate office and
advised them of his statement about organizing a union.
Bouthillier testified that he told Marsala, "we may have
legal problems at this time if we make any changes, sur-
veys, or alter any programs or what have you. So, ev-
erything really has to go on hold if there was an organiz-
ing taking place." Further, according to Bouthillier,
Marsala opened a discussion about becoming an owner-
operator and asked if he could have a guarantee if he did
so. Bouthillier replied that there could be no guarantee,
and Marsala closed the conversation by stating that he
"wanted to go forth with a union "
Bouthillier testified that the fourth encounter with
Marsala was a few days later in a hallway. Marsala re-
ported receiving some abuse from warehouse employees.
Bouthillier testified that those employees had a right to
their opinion and "if they violate company policy or
break the law, I deal with it."
During December, Union representative Paul Keegan
began passing out handbills at Respondent's gate at least
once a week.
On January 5, Respondent posted a notice signed by
Caponi. The notice solely concerned the topic of union
authorization cards which employees were being asked
to sign. The notice urged employees not to sign them.
Keegan testified that after "a" notice, apparently the Jan-
uary 5 notice signed by Caponi,4 had gone on "the
board," Landry stopped at the gate and spoke to
Keegan According to Keegan, Landry said:
That he knew who the inside person was that was
passing out the cards. He happened to mention that
he thought it was Clarence. I said, "what makes
you think it was Clarence?" He said, "well I know
it was Clarence that is doing it."
This testimony by Keegan is not denied.
General Counsel introduced two notices to the em-
ployees from Caponi; one issued before and one after
Marsala's discharge on January 21. The first was Ca-
poni's notice of January 5 mentioned above. A notice by
Caponi dated February 4 states that some employees had
complained about being harassed by union agents.
Capone states that "the Union agents are paid profession-
al organizers, and it is part of their job to try and create
problems between Business Products and its employees."
The notice further states:
We are against the Union. We do not think the
Union is a good thing for Business Products or for
our employees. But, it is not for Business Products
to make this decision, it is for you, our employees
to decide . . This has been a difficult period for
all of us. We are proud of what we have built here
together as a Company-in terms of our wages, our
benefits, and our policies. It is something worth
fighting for against outsiders who would 'tear it
down.
No other management campaign propaganda was offered
by General Counsel; according to this record, no petition
for election was filed.
It is undisputed that on January 9, 12, 16 and 19 Mar-
sala made his last deliveries between 11:30 a.m. and 1:30
p.m. On each of the days he drove home rather than
back to the warehouse. On the fourth occasion he also
used the van to give his wife a ride to a local shopping
center and then returned home; then he drove back to
the shopping center, picked up his wife, drove her back
to his home, and then proceeded to the warehouse. On
each of these occasions , it is further undisputed, Marsala
falsified his delivery sheets to reflect later-than-actual
times of departing from his appointed delivery stops. Re-
spondent contends that these actions of Marsala consti-
tuted misconduct and that it was for this conduct , alone,
that Marsala was discharged.
Marsala was discharged by O'Hal at the beginning of
the day on Wednesday, January 21. Landry witnessed
the interview which was conducted in Respondent's con-
ference room although he testified that he was not con-
sulted about the discharge beforehand; he did not know
" There is no testimony that any other notice had been posted about
this time
KIDDE, INC
it was going to occur, and he did not know who made
the decision to discharge Marsala.
Marsala's testimony about the discharge interview is.
Marsala was escorted to the interview by Landry. When
they reached the conference room, O'Hal was sitting at a
table and had one of Marsala's delivery sheets before
him. O'Hal asked Marsala where he had been at 11:30
a.m. and 12:30 p.m. on the previous Friday Marsala re-
plied that he was probably at home "just like you guys
tell me, when I get done working, I go home." O'Hal
replied that he, O'Hal, had never told Marsala to go
home. Marsala replied that Caponi had had a meeting
with drivers, at which Landry was present, and had told
the drivers that when they finished their routes they
could go home. Marsala asked Landry for confirmation
and Landry would not respond, other than to shrug his
shoulders. O'Hal then asked if Marsala had a passenger
in his van at the shopping center Marsala replied "Dick,
even if I did . . Willie [Rios] took his girlfriend on the
truck with him for a whole day, a solid eight hours.
Wayne [Landry] found out about it and did nothing
about it." Landry then volunteered that he had given
Willie Rios a verbal warning for the conduct which
Marsala described Marsala asked why, if Rios had
gotten a verbal warning notice, he, Marsala, did not get
one. O'Hal replied:
I don't give out warnings for you; I'm only doing
what I'm told, Clarence; I want you to understand
that. I'm told exactly what to do, and that is to ter-
minate you. I'm doing, what I have to do, and I'm
sure you are going to do what you have to do.
Marsala responded that he was being fired for his union
activities and that he would be back.
O'Hal's testimony is as follows: He showed Marsala
two driver sheets and asked him if Marsala had filled
them out; Marsala replied that he had. O'Hal asked if the
numbers were correct; Marsala replied that "sometimes
we jump around." O'Hal asked again if they were cor-
rect, and Marsala replied "well, they're fudged, but ev-
eryone knows I do it. We were told do it." O'Hal asked
Marsala who had told him to "fudge" the entries, and
Marsala did not respond. O'Hal asked Marsala what he
did when he completed his routes; Marsala replied that
he went home, and everyone knew it, and everyone else
did it. O'Hal asked Marsala if he had had an unauthor-
ized person in the van, and Marsala denied it. O'Hal
asked a second time if there was someone else in the van,
and Marsala denied it. O'Hal asked a third time, and spe-
cifically asked Marsala if he had picked up anyone from,
or delivered anyone to, a shopping center. Marsala
.denied it. At that point O'Hal told Marsala that he was
terminated for misuse of a company vehicle, having an
unauthorized person in the •van, and falsification of com-
pany records.
Landry testified essentially', consistent with O'Hal
about the discharge interview. -Landry denied that Mar-
sala stated during the discharge interview that he
(Landry) was aware that delivery sheets had been falsi-
fied or that Landry was aware of the fact that Marsala
went home for lunch. Landry did not deny that Marsala
843
said that Caponi had told the drivers that they could go
home after completing their deliveries; however, O'Hal
did.
3. The investigation preceding discharge
Respondent' s management found out about the undis-
puted January 9, 12, 16, and 19 conduct of Marsala by
the employment of a detective agency, Landmark Secu-
rity and Investigations, Inc. [LSI]. Sean Plumb, LSI's
manager of special services, testified that LSI is usually
hired by businesses and attorneys. LSI investigates acci-
dents, personal injury claims, domestic relations, and
criminal matters. Plumb acknowledged that, in the indus-
trial field, LSI is usually employed for the purpose of de-
termining whether employees are engaged in some sort
of wrongdoing.
Caponi, O'Hal, and Plumb testified that Respondent
first contacted LSI in December. Caponi testified that
there were several reasons for contacting a private detec-
tive at the time. Caponi testified "we were looking at
adding` a van to our retail operation in Stanford. We
were looking at adding an additional truck in Stanford.
Our lease with Edart was expiring and we were paying
overtime which I wanted to review " When asked, on
direct examination, what these objectives had to do with
the hiring of a private detective, Caponi replied "we de-
cided to bring in LSI to review all of our truck routes
and let us knew if our drivers were driving safely,
paying attention to traffic laws and regulations, if in fact
they were performing and servicing our customers regu-
larly." The reference to the Stanford operation had to do
with a November 19, 1986 request from O'Hal to Bouth-
illier for the lease of a van in lower Fairfield County,
Connecticut. The reference to the Edart lease had to do
with an expiring lease on the trucks used by Respondent,
but not the van which Marsala drove. When asked how
the company-owned van related to the hiring of LSI,
Capone testified that Respondent was considering using
18 or 20 foot trucks, rather than the then-used 16-foot
trucks and eliminating the use of the van altogether.
Capone concluded, "with LSI reviewing these routes at
the same time, they would see that they were in fact
servicing all of our customers within the eight hours that
we were paying to help us to determine that or if we
would need larger trucks." O'Hal testified consistently
with Caponi, but he added that an additional reason for
hiring a private detective agency was to see if additional
stops could be added to the routes
On cross-examination Caponi testified that he contact-
ed LSI on the recommendation of one "Paula," who was
a friend of his wife and whose last name he did not
know. Paula, according to Caponi, told him that she
knew of LSI because her boyfriend had told her that
LSI could provide an investigative service. Caponi ac-
knowledged that he had no idea the quality of the serv-
ices provided by LSI when he contacted them.
According to the testimony of Plumb and Caponi,
Caponi and O'Hal met with Plumb and one of his associ-
ates in December, some time before Christmas. They tes-
tified that only the nature of the services which could be
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provided and prices were discussed at the December
meeting. If'.
Caponi, O'Hal, and Plumb met during the first week
of January 1987. Plumb testified:
At this point Caponi and Mr. O'Hal agreed to take
on our company to conduct the vehicle surveillance
of the Business Products' vehicles. The discussion
got into, some more specifics of what they were
looking for, in terms of drivers, the routes, were the
routes being completed in a timely fashion, lunch
time irregularities as far as speeding, reckless driv-
ing, and just an overall opinion of how the routes
were being operated.
Plumb also testified that Caponi and O'Hal had stated
that the drivers had complained that they could not even
get a lunch period because they were so overloaded with
work.
At the January meeting, they discussed which routes
would be followed first. Plumb testified that the men dis-
cussed Respondent's various routes, and he suggested
that the Bridgeport route (Marsala 's) be followed first
because his investigators were more familiar with that
area. Caponi also testified that the Bridgeport route was
chosen because Plumb stated that his investigators were
more familiar with that area . In a written position state-
ment submitted to the Regional Office, Respondent con-
tended that the van was followed first because Respond-
ent was considering replacing the van; no other reason
was given O'Hal testified that the reasons for the selec-
tion of the Bridgeport route were both Plumb's state-
ment that his investigators were more familiar with the
Bridgeport route and because Respondent'was consider-
ing replacing the van
The Bridgeport van, driven by alleged discriminatee
Marsala , was followed for 4 days by LSI investigators
before Marsala was discharged, January 9, 12, 16, and
19 The evenings before each surveillance, O'Hal met
Plumb (in a restaurant parking lot) to give LSI the van's
route sheets for the following days. At the end of each
surveillance the investigators reported to Plumb. Also,
each day, Plumb relayed those reports to Caponi or
O'Hal, At some point after the January 21 discharge of
Marsala, Plumb submitted a written investigative report
to Respondent. The introductory paragraph of the report
states as follows:
This report concerns an investigation into the con-
duct of delivery drivers for the client company. Of
specific concern was safety and legality of oper-
ation , timeliness of delivery and unusual or unau-
thorized conduct while in the company vehicle. Ve-
hicles were chosen at random and a prospective list
drawn up so as to facilitate scheduling of investiga-
tors.
The following narrative is based on this written report
of the investigation and the daily delivery sheets com-
pleted by Marsala.
On Friday, January 9, Marsala had 25 deliveries to
make . LSI's investigator, with a delivery schedule in his
possession, stationed himself so as to see Marsala leaving
the warehouse. The investigator lost Marsala immediate-
ly in traffic and did not locate him again until Marsala's
sixths scheduled stop, Bridgeport Hydraulic. Marsala left
Bridgeport Hydraulic at 8:53 a.m.; however the delivery
sheet which he submitted at the end of the day recites
that he left Bridgeport Hydraulic at 9:25 a.m. The inves-
tigator followed Marsala for a while, then lost him, then
observed him at People's Bank on White Plains Road in
Trumbull, Connecticut. This was Marsala's 23rd stop of
the day. The investigator observed Marsala leaving the
bank at 12 noon; however, Marsala recorded the time as
2 p.m. The investigator followed Marsala to his last two
stops but did not record the time. The investigator then
lost Marsala, and his report states, "the investigation was
suspended at 1:00 p.m." Marsala reported on his delivery
sheet that he made his 24th stop at 2.25 p.m., and last
stop of the day at 2:40 p.m., and returned to the ware-
house at 3 p.m.
On Monday, January 12, the investigator was able to
follow Marsala to his first two stops, Alloy Engineering
and "X-Services." The report does not mention the ar-
rival or departure time at Alloy Engineering; it does not
report the arrival time at X-Services; but it does state
that Marsala "was not seen exiting there." The van was
lost and the investigator went to the 33rd, and last, stop
on the delivery sheet and then drove the route back-
wards. The report states that the van was observed arriv-
ing at Lipton, Marsala's 19th stop, at 9 a.m., and the van
"departed shortly thereafter." Marsala recorded the time
of his leaving Lipton as' 11:50 a.m. The report recites:
"The van then proceeded to Merit Insurance, Golf
Digest, General Electric, and Oakview in Trumbull, ar-
riving there at 10:40 a.m." The report does not list an ar-
rival or departure time for Merit Insurance , Golf Digest,
or General Electric; it does recite that the van arrived at
Oakview at 10:40 a.m., but was not seen exiting Oak-
view; the investigator searched for it in the area, but
could not find it, so the investigator went to a later stop,
Vitramon. Marsala listed his times of departures at Merit
Insurance as 12 noon; Golf Digest at 12:50 p.m.; General
Electric at 1 p.m., and at Oakview at 2 p.m. The report
cites that the van was "located at 11:36 a.m. at Vitra-
mon, then Technology, and was last seen near Town
Hall on Maine Street, Trumbull." The departure times
from Vitramon and Technology are not stated on the in-
vestigator's report. Marsala listed his departure time
from Vitramon as 3:20 p.m. and from Technology as 3:25
p.m. The investigator's report recites that, after seeing
the van near the Town Hall in Trumbull, areas in and
around Bridgeport were checked without success, and
"[t]he investigation was temporarily suspended at 2:50
p.m.
Plumb testified that he thought it "a bit strange" that
on both January 9 and January 12 his investigators had
lost the van in approximately the same geographic area.
He testified that he requested from the company the ad-
dress of the driver, "so as to check if he lived in the
area, if the vehicle was going home for lunch or some-
thing of that nature."
s The report erroneously calls the stop the seventh
KIDDE, INC
The investigative report submitted after the discharge
recites:
On Friday , January 16 , 1987, at 6 : 50 a.m . an opera-
tive was in surveillance position, furnished with a
schedule and a movie camera His instructions were
to photograph either the van or the operator in any
unauthorized, illegal , or unsafe activity . The van
left at 7:41 a.m. and was followed to City Trust,
Jacob Brothers , The Rehabilitation Center , Bridge-
port Hospital , Bridgeport Janitorial , and Graphics,
completing that stop at 8.14 a.m. Another operative
took over so the first could back trace and set up a
surveillance at the driver 's home. The van was lost
on Park Avenue , Bridgeport and located making a
delivery at Technology in Trumbull at 11:34 a.m. It
then proceeded to Pemberton Ave., Trumbull, and
was stationery there. The van was parked in front
of a green ranch -type house with an attached
garage and white mail box at the front curb. Movies
were taken of the area and the van which did not
move. There was no sign of the operator.
The report of January 16 further recites that the driver
left the house at 3:05, p .m. and , "[m]ovies were taken of
it on Surf Avenue and at 3:20 p . m.; [t]he operation was
suspended."
Marsala's January 16 delivery sheet recites that he left
Graphics at 8:50 a.m. and Technology at 3 p .m The de-
livery sheet submitted recites that Marsala returned to
the warehouse at 3:30 p.m having completed 32 stops
that day. The house on Pemberton Ave., Trumbull, was
the home of Marsala.
The report of the last surveillance of Marsala is as fol-
lows:
On Monday , January 19, 1987, at 7 a.m . the oper-
ative was in surveillance position and saw the sub-
ject vehicle depart Avon Street at 7.45 a.m. It was
followed to Moore Special Tool , Bridgeport Hospi-
tal, Saint Vincent 's Hospital , Hewitt , Lindquist
Hardware , 10 Middle Street , and U I ., from where
it departed at 8:36 a.m. The van was lost in traffic
at 8:37 a .m. and picked up again at 8.47 a.m. on
Iranistan Ave, departing Santa Fuel. It was fol-
lowed to Parents and Friends and lost at 8:48 a.m.
Backtracing again , the operative went to Vitra-
mon in Monroe , waited there and saw the van at
11:05 a.m It was followed to SPATH , south on
route 25, to the intersection of Route 111. There,
the van turned right on to Lake Avenue and turned
right again . At 11:29 a . m. the van was parked in
front of the same house on Pemberton in Trumbull,
facing the wrong way.
At 11:38 a.m ., the van left Pemberton and was
lost. The Brigeport Trumbull area was checked and
the van again located on Pemberton at 12:29 p.m.,
parked again in front of the green house. At 2:04
p.m., the van left the house , was seen at the Trum-
bull Town Hall Shopping Plaza where it picked up
a female passenger and went back to the house.
At 2:57 p .m., the van left the house. Due to ad-
verse weather and road conditions , it was lost, so
845
the operative proceeded to Avon Street . Again, ad-
verse weather made visibility extremely poor and
driving hazardous , so the surveillance was suspend-
ed
It should be noted that movies and 35MM still
photos were taken of the van during the time it was
parked at the house As weather was decidedly dif-
ferent on both days , the movies and photos clearly
established the van was at the green house on Pem-
berton in Trumbull on two separate occasions.
Moreover , it was seen there by two different inves-
tigators as corroboration
Investigation terminated.
On the driver delivery sheet submitted at the end of
the day, Marsala recited that he completed his delivery
at "U.I ." at 9.45 a.m.; his delivery at Santa Fuel at 10:50
a.m.; and his delivery at Vitramon at 320 p.m.
From January 9 through January 20 , nothing was said
to Marsala about his conduct of January 9, 12, 16, or 19.
4. Background
In 1983 and 1984 Respondent employed four drivers:
Marsala, Edward Riclcio , Daniel McFarland , and Dean
Soderberg . All four of these individuals testified at the
hearing, and all four testified that at some time in 1983
or early 1984 Caponi conducted a meeting of the drivers
and John Stewart , shipping supervisor . Marsala, Riccio,
and McFarland placed Landry at the meeting also; So-
derberg testified that Landry was not present . The four
employees also differ in their testimony as to whether it
was a regularly scheduled meeting or one specially
called by Caponi, and there was also disagreement
among the employees as to how the question arose, but
all four testified that at some point in the meeting Caponi
addressed the question of what the employees should do
if they finished their routes early . All of the employees
testified that Caponi told them that they could go home,
or anywhere else, and come back at quitting time, dust as
long as they did not go to a bar.
Caponi and Landry denied that any such meeting oc-
curred ; Stewart , who was a (nonsupervisory ) salesman at
the time of the hearing , was not called to testify by
either party.
McFarland and Soderberg testified that after the meet-
ing conducted by Caponi , they did not "go home" after
they finished their routes. Riccio testified that after Ca-
poni 's meeting , and up until the time Landry introduced
the driver delivery sheets , discussed below , he did go
home when he finished early in the day. Marsala testified
that , from the Caponi meeting until the day of his dis-
charge, he hurried through his deliveries , usually finish-
ing between 11:30 a.m. and 1:30 p .m. each day , and went
home. He would stay there for periods of as much as 4
hours after he finished his routes , and then drive to the
warehouse just before quitting time, 4 p.m.
In 19836 Landry , at a meeting of the drivers , intro-
duced a "Delivery Sheet" form which was to be com-
6 Just when in 1983 is not clear It would necessarily have been after
the above -mentioned meeting conducted by Caponi (which meeting, of
course, Landry and Caponi deny the occurrence of)
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pleted, in part, each day by the drivers. The form has 40
numbered rows. Each row is divided into columns which
are designated for city, control number, consignee name,
consignee's address, "SDI" (unexplained in the record),
signature of the consignee's agent, number of pieces de-
livered, and "Time Out" (delivery times) which was
used to represent time of completion of delivery to each
consignee. Additionally, the sheets have blanks for desig-
nation of date, route number (2, 3, 4, etc.), name of the
driver, truck number, total pieces delivered, total number
of stops made, time of departure from, and return to, the
warehouse, and miles traveled. Drivers were responsible
for getting the signature of the consignee's agents and
entering the delivery times, the total number of pieces
delivered, the total number of stops made, the times of
departure from, and return times to, the warehouse, and
miles traveled. Shipping clerical filled in the other infor-
mation each evening before the days of delivery.
When called by General Counsel, Landry testified that
the purpose of the delivery sheets "is [so that] we would
have a signed proof of delivery for the particular number
of pieces for a particular control number, from our cus-
tomer." When asked specifically for the purpose of
having the drivers record their delivery times, Landry
answered, "so that we could keep track of the stops they
had, and where they were."
Regular statistical compilations were made by the ship-
ping clerks. These compilations included the number of
pieces, the number of stops, the amount of mileage, the
times the drivers left the warehouse, and the times they
returned. Landry testified that he regularly reviewed
these compilations to check on each driver's perform-
ance. The delivery times were not recorded in the com-
pilations by the shipping clerks, and they were not used
in any other statistical compilations. Landry testified that
he "occasionally" looked over driver delivery sheets, the
only company document upon which delivery times
were recorded.
For the argument that Marsala had permission to falsi-
fy the delivery times, General Counsel relies solely on
the testimony of Marsala. Marsala testified that at the
meeting, which Landry introduced the delivery sheets,
he addressed Landry and stated:
Bob [Capone] told us when we get done working
we could go home, we could do what we want, and
now all of a sudden he wants to know where we
are each minute of the day. You are getting away
from the original idea trying to pin down a truck
driver, then you can end up not getting your deliv-
eries done. He [Landry] said, "Clarence," he said,
"let me put it this way here; the sole purpose of
these papers are if we get a call from somebody
saying a Business Products truck just ran over my
lawn, okay what number was the truck, what time,
I want to be able to say to the lady well no, I
looked at the sheet and that truck was somewhere
else." He said this was the sole purpose of this doc-
ument . [Punctuation supplied.]
None of the other drivers testified that they witnessed
this exchange between Landry and Marsala although all
of the three other drivers (Riccio, McFarland, and So-
derberg) did testify that they were at the meeting. More-
over, Riocio denied that there was any discussion at that
meeting of any permission given to drivers to go home.
Marsala further testified that:
When the meeting was over, I stayed a little longer,
had a discussion with Wayne, I said, "what am I
going to do with these sheets?" He said, "Clarence
do what you want, because that is not aimed at you.
Don't worry about it." At that point I drew the
conclusion that they must be trying to get some-
body, fine, that's what I did. [Punctuation supplied.]
Landry denied that he had any such exchanges with
Marsala, either at or after the meeting at which the de-
livery sheets were introduced.
McFarland acknowledged that he knew that it was his
responsibility to ask supervision for other work to do in
those instances when he finished his route early and re-
turned to the warehouse before quitting time Riccio ac-
knowledged that, once or twice a month, he was sent
back out on deliveries when he had returned to the
warehouse before quitting time.
Marsala testified that for the first 3 or 4 weeks after
the delivery sheets were introduced he did not fill them
out. Then Landry called him to the office and told him
that O'Hal had reprimanded him (Landry) because Mar-
sala was not filling out the times on he delivery sheets.
Further according to Marsala:
I said "well, Wayne home on, let's be honest, some
days I got 8 stops, some days I got 48. I'm out until
3:30, I don't want to put times on the sheets, and
put down the wrong-times, I don't like the idea of
lying on paper, I don't like that idea." He said
"Clarence, look," he said, "you have to cover all
day on that sheet. That is what you got to do."
[Punctuation supplied ]
Landry denied this testimony by Marsala.
Marsala testified that after receiving the permission
from Landry, he `fudged the times to finish at 3.30."
Marsala added that at some time after Landry told him
to "cover" the whole day, Night Shipping Supervisor
Bacello also told him to "fudge" the figures Marsala tes-
tified that Landry was present when Bacello made the
statement and that Landry said nothing. Landry and Ba-
cello denied that any such exchange occurred.
Landry testified that the period during which Marsala
did not fill out the timesheets was 6 months, not 3 or 4
weeks. Landry testified that during that period Marsala's
family had several problems with illnesses, "and I just
kept reminding him that he has got to fill these out. And
finally, it had to be March or April of '86, he started to
fill them out on a regular basis."
Marsala testified that he usually wore a green uniform
and safety shoes as he left on his route each morning, but
in the evenings he sometimes returned in Bermuda
shorts, a sport shirt, and sneakers. He further testified
that Landry and Bacello at times commented on his
KIDDE, INC
dress by asking him if he had gotten in 9 or 12 holes of
golf.
Landry and Bacello denied joking with Marsala about
his dress and or making any comment which would have
indicated that they knew that he was taking enough time
during the day to play 9 or 12 holes of golf. Landry did
not deny seeing Marsala dressed casually when he re-
turned from his route . He testified that there was nothing
unusual in this because, " [h]e had ample opportunity to
change 'his clothes . He could change at a customer; he
could change in his van ; he could stop at home at lunch
and change them."
Landry testified that the drivers were allowed to stop
on their routes at home for lunch . The drivers were per-
mitted 45 minutes per day for lunch , 4 days a week, and
1 hour per day on the fifth day . (The fifth day was
payday, and the employees were given the extra time to
cash their checks ) Landry further testified that the em-
ployees were allowed 15 minutes each day for a morning
break and that they could combine their lunch and break
times into one break of 1 hour (or 1 hour, 15 minutes on
payday).
It is undisputed that, up until the surveillance by LSI,
Marsala was considered a good employee As noted, at
the time of the discharge Marsala was the senior driver.
Landry acknowledged that throughout Marsala's em-
ployment he always completed his routes , was very good
with customers , and did everything that was asked of
him. It is undisputed that he consistently delivered all the
packages which were placed on his van each day; he re-
ceived at least one glowing letter of praise from a cus-
tomer , and there is no evidence that Respondent ever re-
ceived any complaints from any of the customers on his
routes during his entire tenure of employment . As noted,
Respondent did not make productivity studies on the
basis of times of deliveries although it did so on the
number of stops made each day, the number of pieces
delivered , and the number of miles traveled. Landry ac-
knowledged that , on the basis of those statistics, he had
concluded that Marsala was doing a good job. Respond-
ent repeatedly emphasized to employees the necessity of
holding down overtime ; although Marsala did claim
same overtime , he was consistently lowest in such claims
of all the drivers. Landry did give Marsala poor marks in
keeping his van and certain work areas clean.
Once, in May or June 1986, the Stratford supervision
was awarded a country club golfing weekend , but none
of the members of management could attend. Marsala, an
accomplished golfer , was given the opportunity to go.
According to the undisputed testimony of Marsala, he
was informed of the golf outing by O'Hal who told him:
Clarence , I want to compliment you . because
you are the exact kind of driver we want, you don't
get any complaints from any customers , you never
bring anything back to the building, you complete
your run. You work the minimum amount of over-
time; we are going to reward [you]; we know you
are a golfer , we are going to reward [you] with a
trip to New York 's exclusive country club, on us.
Take a day off; have a good time. It's a . . . dinner
847
at night. Bring a sports jacket and take the day off
with pay. [Punctuation supplied.]
Marsala credibly testified that he made a strong at-
tempt not to work overtime , but sometimes it was un-
avoidable . He testified that the occasions on which he
did have to work overtime were usually caused by
delays in the shipping clerical procedure.7
During the two summers before the discharge , Landry
gave Marsala permission to punch out 45 minutes early,
I day each week , so that Marsala could participate in a
golfing league. Marsala acknowledged in his direct testi-
mony that Landry conditioned the permission on Marsa-
la's representation that he had worked straight through
his (45-minute) lunch period.
On cross-examination , Landry acknowledged that Re-
spondent has a progressive disciplinary system for em-
ployees. The first step is a verbal warning; the second
step is a written warning; the third step is a suspension;
and the fourth is a discharge . On redirect examination
Landry also testified that Respondent has a personnel
manual which states that for some offenses immediate
discharge is "appropriate ." The manual was not intro-
duced by either party, and Landry did not give examples
of what offenses Respondent considered appropriate for
immediate discharge.
Examples of prior instances of warnings were entered
into the record.
On May 25 , 1984, Landry gave employee Ed Riccio a
written warning notice. It is entitled, "Standard Operat-
ing Procedures ," and the text is: "This is to inform you
that the standard operating procedures require you to
call in regarding any discrepancies which occur with
your deliveries or your paperwork."
On October 5, 1984 , Landry gave employee Dean So-
derberg a memorandum entitled, "Employee Warning
Notice." As "Nature of Violation" Landry checked
"Disobedience ." The form has squares for designating
"first notice" and "second notice," and the former is
checked Under "Remarks" Landry wrote: "Failure to
fill in `Time Out' on your delivery sheet after having
been reminded on several occasions . Soderberg acknowl-
edged that he was warned several times for his failure to
fill out the "Time Out" columns on his delivery sheets
and that ultimately he was fired for, in part , his failure to
do so. General Counsel does not contend that Soderberg
was warned for falsifying his "Time Out" columns; So-
derberg simply left that column blank on all his delivery
sheets
The reference to Willie Rios during the discharge
interview (in Marsala 's account) involves an incident in
which Rios was given a verbal warning which was me-
morialized by Landry . The memorandum , dated Febru-
ary 8, 1985, states in full:
7 The procedure was the clerical took packing slips from the warehou-
semen and brought them to the drivers in the afternoons The drivers
were to arrange the packing slips in the order of the next day ' s delivery
The clerical then listed the stops on the delivery sheets , the loaders
loaded the trucks (or the van ) in the reverse order of that which was
listed on the driver delivery sheets Marsala testified that overtime oc-
curred when the clerical failed to get the slips to him by his quitting
time, 4 p in
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This is a written statement of a -verbal warning
given to Willie Rios yesterday.
I saw his girlfriend in the truck. I told him it was
against company policy. I explained if it happened
again he would be terminated.
I let it go as a verbal warning because he is a
new employee and this was only his third week on
the road.
I feel I was fired for organizing a union. Although
we do not work under a union contract, we have a
written policy contract. In this contract it states
must be one verbal , one written warning , a suspen-
sion & termination. On 1-21-87 I was fired because
Co. said I used Co. vehicle for personal use during
Co. time which is not true, for falsifying times on
Co. delivery sheets which I deny.
When asked to distinguish the cases of Rios and Mar-
sala, as far as having an unauthorized person in a compa-
ny vehicle, Landry testified that Rios was treated differ-
ently from Marsala because Rios had not driven a truck
before and could not be expected to know all of the
rules of the road ; Marsala was a 20-year truckdriver and
he should have known better. Landry further testified
that he once gave Marsala, and all the other drivers, a
copy of DOT regulations, one of which prohibits trans-
portation of unauthorized persons. Marsala denied re-
ceipt of the regulations and denied knowledge of the
prohibition against transportation of unauthorized per-
sons.
On April 19, 1985, Landry gave employee Robert
Ryan a written "first Notice" for an absence . The text of
the notice is: "On Thursday, 4/18/85, you returned from
your run at 12:30 p.m. You punched out and left for the
day. You have done the same on more than one occa-
sion. Your hours are 7:30 a.m.- (:00) p.m."
No other evidence of warnings to employees was en-
tered into the record.
On November 7, Alan Wishengrad, vice president of
New Jersey Office Supply (Respondent's parent compa-
ny) issued a memorandum to various company execu-
tives including - Bouthillier, Caponi, and O'Hal. The
notice states:
Under no circumstances are employees to use
company trucks or vans for personal use or com-
mute from their homes to the office. Recent
changes in insurance coverage , as is imposed by
Kidde, has made this policy even more important to
enforce.
There are to be no exceptions to this policy.
Caponi testified that he received the memorandum
within a day or two after November 7; that he posted it
by the timeclock where notices to employees are usually
posted; and that the notice remained posted for approxi-
mately 2 weeks. Marsala was not called, in rebuttal, to
deny that he saw the posted November 7 notice from
Wishengrad.
5. Events following the discharge
Plumb and O'Hal testified that LSI's investigation of
the drivers routes continued after the Marsala discharge.
One driver, Rios, was discovered drinking on duty and
was discharged. Plumb testified that LSI had followed
drivers "10 or 11" times between the discharge of Mar-
sala and the date of the hearing.
Marsala filed an unemployment claim with the State of
Connecticut on January 29. The accompanying statement
filed by Marsala includes:
The statement by Marsala continues that he had been
given permission 3 years before to do what he had done.
6. Credibility resolutions
Although given ample opportunity to explain, Marsala
could advance no justification for his written, sworn,
statement that he had not used the company vehicle for
personal use. Respondent contends that Marsala's false
statement to the unemployment commission warrants dis-
crediting Marsala in the entirety of his testimony. Gener-
al Counsel advances the theory that Marsala's reference
to "company time" qualifies what would otherwise be a
concededly false statement to the unemployment com-
mission . However , Marsala advanced no such theoretical
justification, and the only logical conclusion is that Mar-
sala lied to the Connecticut unemployment commission
for the purpose of advancing his claim with that body. I
have no reason to believe that Marsala was more dis-
posed toward candor in advancing his claim before the
Board.
It is possible, of course, that a claimant would lie to
one authority and tell the truth to another, but I am un-
willing to give Marsala the benefit of the doubt. The
reason for this is Marsala's admitted conduct in taking as
much as 4 hours a day, for a period of years, to engage
in paid loafing. As discussed below, I credit the testimo-
ny of the four drivers, including Marsala, that at some
time during 1983 or 1984 Caponi told the employees that
they could go home if they finished their routes early.
At the same time it is necessary to point out that McFar-
land, a particularly credible witness, injected into his tes-
timony about the Caponi meeting the statement that, "we
were very slow at the time , very slow . ..." Apparent-
ly Caponi was, back then, giving the drivers more sched-
ule flexibility because of the slowness of business. How-
ever, business later picked up substantially; Landry intro-
duced the driver delivery sheets; and even Riccio quit
going home when he finished his routes . But Marsala
continued to "go home" for great periods of time (in ad-
dition to those periods permitted for lunch, breaks, and
check cashing) although he assuredly knew that Re-
spondent needed greater driver productivity.
In the circumstance of increased business volume, an
honest employee who could loaf as much as 4 hours a
day would tell his employer, categorically, that he had
extra time (for which he was being paid) and that he
could do more . Marsala, however, took advantage of Ca-
pont's remark made in a different context; he took advan-
tage of the of the bad management which permitted his
abuses; and he played the situation to the hilt. Any em-
ployee who would do this, for years, is a dishonest em-
ployee and is, I feel, a dishonest person.
KIDDE, INC.
Therefore, while I credit Marsala's testimony on the
"tooth and nail" remark he attributes to Bouthillier, I
further credit him elsewhere only if his testimony is un-
contradicted or where his testimony is corroborated by
other extrinsic evidence. The reason that I credit Marsala
on the "tooth and nail" remark is that, at that one point,
Marsala displayed a more credible demeanor than did the
one denying his assertions, Bouthillier.
I specifically reject Marsala's testimony that, at the
meeting at which Landry introduced the driver delivery
sheets, Landry stated that the "sole purpose" for record-
ing the delivery times was to defend against accident
claims. Such use would be of 'marginal effectiveness, at
best; there is no logic to the argument that Landry in-
tended the use of the document only for that purpose;
and no other driver corroborated Marsala's testimony in
this regard.
I further discredit specifically Marsala's, testimony that,
after the meeting at which the driver delivery sheets
were introduced by Landry, Landry told Marsala that he
could do what he wanted with the sheets because they
were not "aimed" at Marsala; and I specifically discredit
Marsala's testimony that a few weeks later Landry told
him to "cover all day on that sheet." Marsala was per-
ceived to be a good employee; however, General Coun-
sel advances not the slightest reason to believe that Mar-
sala was "rewarded" with permission to falsify company
records while other employees were required to maintain
them honestly. I further discredit specifically Marsala's
testimony that Bacello told him, in Landry's presence,
that he should "fudge" the delivery times; that Landry
and Bacello joked with him that he had enough spare
time to play 9 or 12 holes of golf before returning from
his route; and that Bouthillier told him that he could go
home after finishing his route.
As stated above, I do believe the testimony of the four
drivers that Caponi told them in 1983 or 1984 that they
could go home when they finished their routes. Each
employee, including Marsala, appeared credible on the
point, the differences in their accounts are not significant;
and Respondent advances no cogent argument for con-
cluding that McFarland, Riccio, and Soderberg perjured
themselves for the benefit of Marsala. Indeed, McFarland
was still an employee and was in an obvious position to
fear reprisal for his testimony, especially if it had been
false.
B Analysis and Conclusions
The legal analysis to be applied in cases of allegedly
unlawful discharges was recently restated by the Board
in Joseph De Rarto, DMD, PA., 283 NLRB 592, 594
(1987):
In NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Supreme Court affirmed the
test enunciated by the Board in Wright Line10 for
determining whether an employee was discharged
because of the exercise of Section 7 rights. Under
Wright Line the General Counsel, under Section
10(c) of the Act, has the burden of establishing a
prima facie case that the employee's protected con-
duct was a substantial or motivating factor in the
849
employee'sidischarge or other adverse action taken
by the employer. Once the General Counsel satisfies
this burden, the employer can avoid liability under
the Act by proving by a preponderance of the evi-
dence an affirmative defense that it would have
taken the same action even if the unlawful motives
had not existed.
10 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st
Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v
Transportation Management Corp, 462 U S 393 (1983)
The first question presented under Wright Line is
whether General Counsel has presented a prima facie
case.
There is no question of Respondent's knowledge of
Marsala's union activities. Indeed, Respondent defends its
actions, in part, on the theory that it has known for years
that Marsala was a proponent of unions and that he as-
sisted in organizational attempts by the Steelworkers and
another local of the Teamsters in 1983 and 1985, respec-
tively. Specifically, in regard to the 1986-1987 campaign
by the Charging Party, Bouthillier's testimony included
Marsala's statement that Marsala "wanted to go forth
with a union," and Respondent has not denied the testi-
mony by union representative Keegan that Landry told
Keegan that Respondent knew that Marsala was "the
inside person" who was passing out union authorization
cards.
Evidence of animus toward unions, in general, and
toward Marsala's activity, in particular, exists in the
record. Caponi's February letter of plainly states- "We
are against the Union. We do not think the union is a
good thing for Business Products or for our employ-
ees . . . It [the Company] is something worth fighting
for against outsiders who tear it down " Finally I have
credited Marsala's testimony that when he told Bouthil-
lier that he was going to engage in an another organiza-
tional attempt, Bouthillier replied, "I will fight you tooth
and nail."
Marsala's misconduct came to light only because of
LSI's investigation; I find that the investigation would
not have been conducted had it not been for Marsala's
protected activity.
Therefore, General Counsel has presented a prima
facie case of unlawful discrimination, and the reasons
with which Respondent has come forward must be ex-
amined.
Respondent contends that the investigation was under-
taken not because of Marsala's protected activities but
for other reasons, many other reasons: (1) Respondent
wanted to know if it should add a van to its Stanford op-
eration; (2) Respondent was considering eliminating the
Stratford van (driven by Marsala); (3) the lease of the
then-used trucks (but, of course, not the owned van
driven by Marsala) was expiring; (4) Respondent wanted
a review of overtime being paid to drivers; (5) Respond-
ent wanted to know if drivers were "driving safely,
paying attention to traffic laws and regulations"; (6) Re-
spondent wanted to know if "drivers were performing
and servicing customers regularly", (7) Respondent
wanted, to know if the drivers "were, in fact, servicing
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all of our customers within the eight hours that we were
paying"; (8) Respondent wanted to "determine that, or
if, we would need larger trucks."These reasons, and the
quotes, are from Caponi's testimony. Another reason was
given by O'Hal: (9) Respondent wanted to see if addi-
tional stops could be added to the routes. In his testimo-
ny, Plumb added another reason: (10) whether there
were any "lunchtime irregularities."8
With this multiplicity of reasons, the first logical ques-
tion is why some sort of survey was not conducted
sooner. No explanation is given. The next question is
why Respondent chose, for its industrial research, LSI.
The firm had nothing to recommend it except that the
boyfriend of the girlfriend of Caponi's wife had reported
only that LSI performed an investigative service. Plumb
acknowledged that in the field of labor relations LSI's
investigations involved cases of employee misconduct.
Therefore, as this record stands, rather than hire a
business consultant, or simply making a few telephone
calls to customers, or just talking to the direct supervisor
of the drivers, 9 Respondent hired a private detective
agency which investigated employee misconduct. From
this, it must be concluded that Respondent's litany of
"business" reasons for employing a private detective is a
sham. Respondent hired LSI to do what LSI did in the
field of labor relations, investigate employee misconduct
Respondent also advances a multiplicity of reasons for
the selection of Marsala as the first driver10 who was
subjected to professional surveillance: (1) Plumb and
Caponi testified that the Bridgeport route of Marsala was
selected because Plumb's investigators were more famil-
iar with the area; neither Plumb nor Caponi mentioned
the possibility of replacement of the van with a truck as
a consideration. (2) Respondent's statement of position
submitted to the Regional Office before complaint al-
leged that the Bridgeport route was selected because Re-
spondent was considering replacing the van; the Bridge-
port familiarity of LSI's investigators was not mentioned
(3) O'Hal, obviously covering the fact that his comptrol-
ler had omitted replacement of the (capital investment)
van as a reason, testified that considerations involved
were both (3a) replacement of the van and (3b) the fa-
miliarity of LSI's investigators with the Bridgeport area.
LSI, itself, added another theory of route/driver selec-
tion. (4) Its written report states, "vehicles were chosen
at' random and a prospective list drawn up so as to facili-
tate scheduling of investigators." (Emphasis added.) No
mention is made of a greater familiarity with the Bridge-
port area, although it was supposedly Plumb, himself,
who advanced this reason at the January meeting. More-
over, the regularity with which the investigators lost the
8 Plumb also mentioned driver safety in his testimony and in the intro-
duction to the written LSI report quoted above Driver safety was listed
concern No 5 mentioned by Capone, however, the extensive LSI report
of the surveillance of Marsala makes no mention of the degree of safety
which Marsala was driving I find that this reason, like others, is a sham
9 Landry was consulted neither about the employment of a detective
agency nor the discharge of Marsala
io Respondent's witnesses had obviously been coached to say that the
routes, rather than the drivers, were being surveilled However, as noted
above, Respondent did not hire a business consultant, it hired a firm that
investigated employee misconduct At any rate, how "routes" could be
investigated without the investigation of drivers is not understandable
van (even when they had the addresses for the deliveries
with them) makes it unlikely that they were more famil-
iar with Bridgeport than any other of the communities
served by Respondent.
The multiplicity and inconsistencies of "reasons" for
initiating the investigation, and a multiplicity and incon-
sistencies of the "reasons" for selecting Marsala to be the
"first" to be followed belies any contention that the sur-
veillance was prompted by, and that Marsala was fol-
lowed because of, legitimate business considerations.
However, LSI's report bears the most telling of the evi-
dence that Marsala was the object of the surveillance. At
the conclusion of each of the first three days of surveil-
lance, when obvious grounds for some imposition of dis-
cipline had been established, the report recited: "Investi-
gation Suspended " When, however, Marsala was caught
(and photographed) committing a more serious offense,
carrying an unauthorized person in the van, the report
closes with the pointed conclusion: "Investigation termi-
nated." ,
While track-covering surveillance of other drivers
were conducted later, the conclusion of LSI's report,
and the sham nature of the reasons advanced for the ini-
tiation of the surveillance and the selection of Marsala to
be the first driver followed, compel the conclusion that
LSI was commissioned to catch Marsala in misconduct
which would colorably justify discharge, and LSI's "In-
vestigation terminated" when it believed it had fulfilled
that commission.
Employee misconduct, discovered only because of an
investigation prompted by the employee's protected ac-
tivity, cannot serve as a lawful basis for discipline.' I
This conclusion actually ends the inquiry. However,
there is more
On the evenings of January 9, 12, and 16, Plumb ver-
bally reported to Caponi or O'Hal the results of each
day's investigation. On each occasion of the verbal re-
ports, Respondent had knowledge that Marsala was
guilty of misconduct, falsification of company records,
and/or parking at home for hours. However nothing was
done; certainly Marsala was not given the benefit of Re-
spondent's progressive disciplinary system and warned.
The reason is obvious: If Marsala had been warned, he
might not have committed a putatively dischargeable of-
fense, and Respondent knew it. Therefore, instead of
warning Marsala when this conduct was first discovered
(or second discovered, or third discovered), Marsala was
given more rope in the obvious hope that he would hang
himself on a more serious offense, like giving a ride to an
unauthorized person.12 Such observing of misconduct
without direction or discipline, while case-building, has
11 Fixtures Mfg Corp, 251 NLRB 778 ( 1980), Kut Rate Kid & Shop
Kwik, 246 NLRB 106 (1979) The cases cited by Respondent involve in-
vestigations of employee misconduct , but each investigation was prompt-
ed by circumstances other than the employees ' protected activities
12 Respondent knew better than to . rely on the falsification of delivery
times , alone , as a pretext , Landry acknowledged that delivery times were
not used in any of his compilations of statistics for productivity analyses,
and he acknowledged that he looked only at the drivers' recordings of
delivery times "occasionally "
KIDDE, INC
before been held to be evidence of discriminatory
motive, i 3 and I find it to be such here.
Independent of the factors that the discharge was pre-
mised on a spuriously initiated investigation and that Re-
spondent laid in wait rather than dispensing some disci-
pline when it was plainly called for, discrimination is
demonstrated by the factor that Respondent did not
afford Marsala the benefit of its progressive disciplinary
system.14 Landry acknowledged that Respondent had a
system of verbal warnings, written warnings, and suspen-
sions, before discharges. Respondent did not take issue
with Marsala's statement on his unemployment applica-
tion that this system was included in a "contract," appar-
ently some sort of employees' booklet or personnel
manual. Indeed, on redirect examination, Landry was led
to testify that the policy somewhere states that, for some
offenses, immediate discharge is appropriate. Therefore,
there is no question that Respondent has an established
disciplinary system, an element brought out by the Gen-
eral Counsel at the hearing and an element which Re-
spondent, tellingly, does not mention in its extensive, and
otherwise excellent, brief.
As found in Transportation Enterprises, 240 NLRB 551,
560 (1979), not only is failure to afford an employee the
benefit of a progressive disciplinary system evidence that
management is not really interested in improving em-
ployee performance, it is evidence of a subterfuge, and it
may raise the "strong inference" that discipline is being
imposed for protected activities. I find it raises that infer-
ence here See also Ducane Heating Corp., 254 NLRB
112 (1981).
When Landry was led to testify that some offenses
were grounds for immediate discharge, Respondent was
doing no more than hinting that something Marsala had
done constituted such an offense The failure to produce
its written disciplinary program raises the strong infer-
ence that the conduct of Marsala, known at the time of
discharge, i s did not constitute conduct described therein
as grounds of immediate discharge.
Of course, even without written policy statement, or
past practices, same offenses would assuredly be consid-
ered grounds for immediate discharge by any employer.
However, a review of the evidence demonstrates that
Marsala's conduct did not fall within any such policy,
written 16 or unwritten.
13 NLRB v Amber Delivery Service, 651 F 2d 57 (1st Cir 1981), Cham-
pion Parts Rebuilders, 260 NLRB 731 fn 1 (1982), enfd 717 F 2d 845 (3d
Cir 1983), Continental Radiator Corp, 283 NLRB 234 (1987)
14 It is to be noted that Respondent does not contest Marsala's testimo-
ny that O'Hal told Marsala, in the discharge interview, that O'Hal was
under instructions to discharge Marsala , not to warn him Just who in-
structed O'Hal to discharge Marsala is not disclosed by the record It
probably was Bouthillier, the executive who told Marsala that only he
could discharge Marsala, but resolution of this question is not necessary
I5 At the time of the discharge, Respondent did not know that Marsala
had been going home for hours for years, it knew only of his doing so
for 2 days, January 16 and 19
38 On November 7, Respondent did issue a "no exceptions" policy
statement regarding personal use of company vehicles This was no new
rule, and it announced no new policy of discharge on first offense It also
did not change the policy of allowing drivers to stop at home to take
their allowed lunch periods, Landry testified that the practice is still in
effect
851
Respondent knew that Marsala falsified timesheets on
January 9, but he was not discharged for his first offense
of doing that; he was not even discharged on his second
known offense, committed on January 12, either. Re-
spondent knew that Marsala went home for several
hours on January 16, but he was not discharged for his
offense of doing that. Therefore, it must be concluded
that the entering of false delivery times, and staying at
home for several hours, are not included in whatever in-
fractions which Respondent ordinarily considers grounds
for discharge on first offense. Nor did Respondent there-
tofore consider giving a ride to an unauthorized person
such an offense, because employee Rios kept his girl-
friend in his truck all day and received no more than a
verbal warning.
Landry attempted to distinguish the cases of Marsala
and Rios on the basis that Rios was a new driver and
Marsala had been driving for 20 years and should have
known better. While there is no general duty to be
"fair," Landry's attempted distinction is necessarily pre-
mised on an underlying claim of an effort to be fair to
Rios. However, Marsala was the senior driver and had
been acclaimed and rewarded as an exemplary (if not
perfect) employee; holding Marsala to a higher standard
and discharging him, while merely verbally warning
Rios, stands any concept of "fairness" on its head.
Therefore, I find that Marsala was a victim of dis-
criminatory treatment; he would not have been dis-
charged but for his protected activity, being the "inside
person" who distributed union authorization cards.
Accordingly, I conclude that, by the January 21 dis-
charge of Marsala, Respondent violated Section 8(a)(3)
and (1) of the Act.
On the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended17
ORDER
The Respondent, Business Products-Division of Kidde,
Inc., Stratford, Connecticut, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or in any other manner discriminating
against any employee because of the employee's activity
on behalf of Teamsters Union No. 145, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Clarence Marsala immediate and full rein-
statement to his former position of employment or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority and other rights
i'! If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and privileges previously enjoyed, and -make him whole,
with interest,18 for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him.
(b) Remove from its files any reference to Clarence
Marsala's unlawful discharge and notify him, in wasting,
that it has done so and that it will not use the discharge
against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and.copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Stratford, Connecticut facilities copies of
the attached notice marked "Appendix." 19 Copies of this
notice, on forms provided by the Regional Director for
Region 34, after being signed by Respondent's authorized
agent, 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.
18 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
19 If 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 Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you for your activities on behalf of Team-
sters Union Local 145, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Clarence Marsala immediate and full
reinstatement to his former position of employment or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority and other rights
and privileges previously enjoyed, and make him whole,
with interest, for any loss of earnings or other benefits
suffered as a result of the discrimination against him.
WE WILL remove from our files any reference to Clar-
ence Marsala's discharge and notify him, in writing, that
we have done so and that we will not use the discharge
against him in any way
BUSINESS PRODUCTS-DIVISION OF KIDDE, INC.