Lone Star Institutional Grocers

National Labor Relations Board - Board Decisions

Feb 4, 1987

282 N.L.R.B. 984 (N.L.R.B. 1987)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lone Star Institutional Grocers and General Driv-
ers, Warehousemen and Helpers, Local Union
745, a/w International Brotherhood of Team-
sters Chauffeurs, Warehousemen and Helpers of
America. Cases 16-CA-12178 and 16-CA-
12224
4 February 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 3 March 1986 Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering 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," and
conclusions2 and to adopt the recommended Order
as modified.3
i The Respondent has excepted to some of the judge's credibility find-
ings 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.
The Respondent argues that the judge erred by allegedly inconsistent
treatment of disparities between testimony by Supervisor Burns and dis-
cnmmatee McGee and their respective pretrial affidavits We note that
the judge's credibility findings, which we have affirmed, were based on
internal inconsistencies in Burns' testimony as well as on inconsistencies
with his affidavit, on inconsistencies with the testimony of fellow Super-
visor Jennings , and on the factor of demeanor.
2 In affirming the judge's conclusion that the Respondent violated Sec.
8(a)(3) by suspending McGee for allegedly refusing to make a "hot shot"
delivery on 24 May 1985, we do not rely on (1) a noncoercive conversa-
tion between Supervisor Jennings and McGee about the Union on the
preceding day or (2) evidence that another driver may have been avail-
able before McGee to make the disputed delivery.
In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(3) by discharging McGee, we agree with the judge that the General
Counsel has established a prima facie case of unlawful discrimination and
that the Respondent has failed to demonstrate that it would have dis-
charged McGee even absent his union activity. With respect to the latter,
we particularly rely on the Respondent's prior unlawful suspension of
McGee in May and on the 7 June threat by Supervisor Burns to McGee
that the Respondent was "after" the employees, and particularly McGee,
who had been named as in-plant organizers in the Union's letter to the
Respondent. We further specifically disavow reliance on (1) the judge's
subjective evaluation of the significance of McGee's unauthorized con-
duct of taking from a customer's desk a blank check made to the Re-
spondent's order and filling in the correct amount owed to the Respond-
ent, (2) the judge's subjective evaluation of the degree of discipline ap-
propriate for McGee's conduct, and (3) the judge's view that the Re-
spondent's failure to post a warning notice to employees after McGee's
discharge indicates "that it did not consider the matter one of significant
importance "
2 We will delete the visitatonal clause from the recommended Order
because we find no need for such a remedial provision under the circum-
stances of this case.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lone Star Institutional Grocers, Dallas,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the recommended
Order as modified.
Substitute the following for paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps have been taken to comply."
Eric V. Oliver, Esq. and Martha Kinard, Esq., for the
General Counsel.
Robert G. Mebus, Esq. and Kenneth E. Broughton Jr., Esq.
(Haynes & Boone), of Dallas, Texas, for the Respond-
ent.
Yona Rozen, Esq. (Hicks, Gillespie, James & Lesser), of
Dallas, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. The
principal conclusion I reach in this decision is that Lone
Star Institutional Grocers unlawfully suspended (May
and July 1985) and discharged (8 July 1985) Johnny A.
McGee.
This case was tried before me in Dallas, Texas, on 9-
10 October 1985 pursuant to the 21 August 1985 consoli-
dated complaint issued by the General Counsel of the
National Labor Relations Board through the Regional
Director for Region 16 of the Board. The complaint is
based on charges filed 10 June 1985 in Case 16-CA-
12178 and on 10 July 1985 in Case 16-CA-12224 by
General Drivers, Warhousemen and Helpers, Local
Union 745, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Union, Local 745, or Charging Party) against Lone Star
Institutional Grocers (Respondent or LSIG).1
In the complaint the General Counsel alleges that the
Respondent violated Section 8(a)(1) of the Act in May
and June by unlawfully interrogating and threatening
employees; Section 8(a)(3) on 28 May by suspending em-
ployee Johnny A. McGee for 3 days; and Section 8(a)(3)
and (4) by suspending employee McGee on 2 July and
discharging him on 8 July.2
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and the Respondent, I make the
following
I All dates are for 1985 unless otherwise indicated.
2 The charge in Case 16-CA-12178 pertains to McGee's suspension in
May, and the charge in Case 16-CA-12224 relates to McGee's July sus-
pension and discharge.
282 NLRB No. 144
LONE STAR GROCERS 985
FINDINGS OF FACT
1. JURISDICTION
A Texas corporation with an office and place of busi-
ness in Dallas , Texas, LSIG is engaged in the nonretail
institutional food sales business . During the past 12
months LSIG purchased and received at its Dallas facili-
ty goods and materials valued in excess of $50 ,000 direct-
ly from firms located at points outside Texas. Respond-
ent admits , and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits , and I find, that Local 745 is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Nature of Respondent 's business
The pleadings reflect that Respondent is engaged in
the business of nonretail institutional food sales in its
Dallas, Texas operation . What that means in ordinary
language, as described by Roy McGowan , LSIG's oper-
ations manager , is that LSIG distributes a full line of
groceries (food and paper goods), except fresh meat and
produce, to restaurants, schools, hospitals, nursing
homes, and the like in the Dallas area (1:45-46).3
Respondent's Dallas facility includes an office and
warehouse. The total number of employees is not shown
in the record , but during the relevant period Respondent
operated approximately 25 trucks with about 28 drivers
(1:113, 121). On 10 July NLRB Region 16 conducted an
election.among Respondent's drivers and warehousemen
in Case 16--RC-8780 . The vote was 38 yes and 17 no.
Certification of the Union issued on 18 July (1:227-228;
G.C. Exh. 13).
Respondent 's president and chief operating officer is
Don Stahl (1:46). McGowan , as mentioned , is operations
manager (1:44-46), Dwight Williams is the credit manag-
er (1:55), Murray Roher is the controller (1:55; 2:341),
Edward Jennings is the driver supervisor (1:120), and J.
L. Burns is the warehouse supervisor (1:87). The ware-
house operates 24 hours a day for 5 , possibly 6, days a
week (2:362-363). Johnny McGee, the alleged discrimin-
atee, drove a truck for LSIG until his suspension/-
discharge in July (1:168).
2. Development of interest in Teamsters Local 745
Beginning in late 1983 Respondent 's drivers began
holding meetings to discuss their common concerns, in-
cluding benefits and hours worked (1:169-170). Eventual-
ly the drivers submitted to Respondent a written list of
improvements which the drivers wanted "immediately."
Dominic S. Crawford is the driver who handed the one-
page itemized memo , dated 8 September 1984, to Presi-
% References to the two-volume transcript of testimony are by volume
and page.
dent Don Stahl (2:320 ; G.C. Exh . 17). Attached to the
memo was a list containing the signatures of 27 drivers
(2:320; G.C. Exh. 18).
The list enumerates five items. The first was for 5 sick
days per year . The second item addressed the matter of
pay.4 By their third item the drivers requested that a
credit union be established . In their fourth item they ex-
pressed the need for a medical insurance package which
would include a dental plan with LSIG paying 80 per-
cent and the employees 20 percent . For their fifth and
last item the drivers wrote, "Explain the term salaried
employees."5
Respondent did meet with the employees on their de-
mands, but not for a couple of months . The first meeting
occurred about 10 November 1984 (1:46, 171). Respond-
ent met only with the drivers' committee (1:121, 171).
Four of the drivers, including Johnny McGee, constitut-
ed a drivers ' committee , with McGee being the spokes-
man (1:171-172, 231). Operations Manager McGowan
and Driver Supervisor Jennings represented management
(1:47, 121, 172). Although Respondent expressed a will-
ingness to establish a credit union, LSIG declined to
meet the drivers' other demands. The drivers considered
the matter critical.
A second meeting was held the next week with the
drivers' committee conferring again with McGowan and
Jennings. Management made some additional conces-
sions, but not nearly enough to satisfy the drivers (1:173-
175). Although the drivers felt the situation was hope-
less, McGee encouraged them to be patient. In January
and again in February 1985 McGee met alone with
McGowan on the subject , but to no avail ( 1:176).
At a Saturday meeting in late April the drivers decid-
ed to contact a union , and they designated McGee to
contact Teamsters Local 745 (1:177- 178). McGee did so
about the first of May (1:178).
On Saturday , 4 May, a Teamsters representative met
with the drivers and some of the warehousemen (1:180).
McGee testified that the following Monday or Tuesday,
6 or 7 May, Supervisor Jennings called him aside and
told him , "McGee, your business is getting in the street."
"What business?" McGee asked , and Jennings said, "The
Union . They know about it." McGee asked who knew,
and Jennings replied , "The company." McGee responded
that the employees were not trying to hide the matter
and that very shortly LSIG would be receiving a letter
from the Union (1:180-181). 6 Jennings ' remarks are not
the subject of a complaint paragraph.
Warehouse Supervisor J. L. Bums testified that around
the first part of May he heard that the drivers were
trying to bring in the Teamsters, and by mid-May he
heard that McGee was passing out union cards ( 1:88). By
letter dated 10 May to employees, President Stahl ac-
knowledged the organizing campaign .' The initial and
closing paragraphs of Stahls letter read (G.C. Exh. 2):
4 The drivers are salaried . This second item details a pay formula
based on hours worked and apparently provides for a pay raise
5 McGee testified that, as the drivers were salaried, they wondered
why they were required to punch a temeclock (1.222)
6 McGee solicited employees to sign cards and got at least 10 employ-
ees to sign authorization cards (1.181)
7 There is no complaint allegation concerning the letter
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dear Fellow Employees:
Once again, it appears that the Teamsters Union
is back trying to sell its services to Lone Star em-
ployees. This union is not new to many of you who
have been around a while. As some of you will re-
member, Local 745 made a run at us about seven
years ago. Eventually, they just walked away with-
out accomplishing anything. The Company feels
now, as it did then, that we don't need a union
here.
You are dealing with your own future, so take
the time to be very sure of what you may be get-
ting into. In the coming days, the Company will
bring you additional facts concerning unions and
why, in our opinion, the Teamsters would not be to
your benefit. While the decision is yours, I urge you
to get all the facts before signing anything.
Sincerely,
/s/ Don Stahl
Don Stahl
By letter dated 20 May and addressed to LSIG, Local
745, asserting that it represented a majority of Respond-
ent's drivers, warehousemen, and forklift operators, de-
manded recognition (G.C. Exh. Ila). The parties stipu-
lated that the letter was received in due course of the
mail (1 :227). The Union filed its representation petition
on 23 May and NLRB Region 16, by letter of the same
date, forwarded a copy to Respondent with a notice of
anticipated hearing set for 6 June (G.C. Exh. 12a).
On Wednesday, 22 May, the Union addressed a letter
to President Don Stahl advising him that Local 745 was
in the process of organizing LSIG's employees, and that
seven named employees, including Johnny McGee, were
in-plant organizers. The letter concluded by warning that
charges would be filed if LSIG discriminated against any
employee because of his union activities (G.C. Exh. 3).
The parties stipulated that this letter was received in due
course of the mail (1:16). Presumably that could have
been as early as the next day, Thursday, for local mail,
although it possibly was not delivered until the second
day, Friday, 24 May.
3. Allegations of interrogation and threats
Driver Supervisor Edward Jennings admits that after
the Union's letter arrived naming McGee as one of the
in-plant organizers he told McGee that LSIG had re-
ceived the letter naming McGee, and that he asked what
the in-plant organizers were doing. McGee responded
that Jennings would find out (1:125, 155).8
This admitted conversation is the subject of complaint
paragraph 7(a). Although paragraph 7(a) alleges the in-
terrogation as occurring after 28 May, it is clear that it
took place on either Thursday, 23 May, or early Friday
morning, 24 May. This is so because Jennings testified
s Jennings denies having any other conversation with McGee about
the Union (1.155-156) Presumably, therefore, Jennings denies that he
called McGee aside about 6 or 7 May and informed him that his union
business was out "in the street" and that LSIG knew I credit McGee,
who was a more persuasive witness.
that he learned of the union activity when Respondent
received the letter naming McGee, and that such knowl-
edge came before the "hot shot" incident for which
McGee received a 3-day suspension (1:155, 166). As we
shall see shortly, the hot shot incident occurred on
Friday, 24 May.9
As, for complaint paragraph 7(a), I note that McGee
was named in the Union's letter, that Jennings' inquiry
was limited to a single question, and that McGee had no
problem telling Jennings , "You will see," or similar
words. On these limited facts I am unable to find Jen-
nings ' admitted question to be coercive, and I shall dis-
miss paragraph 7(a). Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
Complaint paragraphs 7(b) and (c) allege that about 14
June Warehouse Supervisor J. L. Burns unlawfully
threatened an employee (McGee), and all in-plant orga-
nizers, with discharge.
McGee testified that on the occasion in question Burns
asked him if he would take four hot shots and McGee
said sure.'O They were in the warehouse. Burns then
called him aside and, looking around as if checking to
see whether anyone could see or hear them, said, "You
know they are' after you, don't you?" McGee asked who,
and Burns replied, "The Company." McGee asked why
LSIG was after him, and Burns said that Respondent
had received the letter naming McGee. "Well, they are
after all of us," McGee said. "No," Burns replied, LSIG
was after only those who were named in the letter and
McGee in particular (1:195-196, 234, 236).
Although Burns specifically denies this conversation,
and asserts that he never spoke with McGee about the
Union (2:368, 369), I credit McGee, who testified persua-
sively on this subject.
Arguing that McGee should be discredited (Br. at 10,
24), Respondent points to McGee's testimony that other
employees named as in-plant organizers in the Union's
letter of 22 May are still employed by Respondent
(1:232-233). Whether a threat is implemented is not con-
trolling in resolving whether the alleged threat was ut-
tered. In this instance I have found that McGee testified
persuasively.
9 It is theoretically possible that Stahl or McGowan informed Jennings
of the Union's letter on 23 or 24 May and that it was not until the fol-
lowmg week that Jennings made his remarks to, and questioned, McGee.
However, the following Monday, 27 May, was a holiday (Memorial
Day), and McGee was off work on suspension most of that week (1.135-
136). Actually, the precise date is less relevant to the issues than the fact,
admitted by Jennings, that his knowledge predated the 24 May hot shot
incident. Finally, I find it extremely unlikely that Jennings did not have a
substantially earlier knowledge in view of Warehouse Supervisor Burn's
testimony of hearing by mid-May about McGee's union activities and
President Stahl's letter to employees of 10 May.
io McGee placed the event as about mid-June (1.195, 234) His pretrail
affidavit of 18 June gives the specific date of 14 June to the occasion on
the basis that it was the same date Burns assigned him the four hot shots
(1 235). Respondent's hot shot records do not show McGee making four
shot deliveries on 14 June, but they do show such for 7 June as well as
21 June (2:272-274). McGee credibly testified that he could not be cer-
tain about the exact date, but that he was positive it was the same day as
the four hot shots (1 234, 236). As McGee testified in a positive fashion in
connecting the conversation to the date of the four hot shots, and as the
four hot shots he delivered before his 18 June affidavit occurred 1 week
earlier, 7 June, than his mid-June estimate, I find that the conversation
occurred on 7 June
LONE STAR GROCERS
Based on these facts , I find that LSIG, by Burns' state-
ments, threatened employees with discharge , as alleged
in complaint paragraphs 7(b) and (c), in violation of Sec-
tion 8(a)(1) of the Act.
B. Alleged Discrimination Against Johnny A. McGee
1. McGee suspended 28 May 1985
a. Facts regarding the hot shot for Luther's Barbeque
When McGee returned to the warehouse after com-
pleting his regular route on Tuesday , 28 May, Driver Su-
pervisor Jennings handed him -a written notice advising
McGee that he was suspended for 3 days for refusing to
make a hot shot delivery on Friday, 24 May (1:136-137,
148-152 , 189-190; R. Exh. 3). The suspension notice,
dated 24 May, signed by Warehouse Supervisor Burns, r 1
instructed McGee to return to work "4/1/85." The
return date was in error , of course, McGee in fact was
off (suspended) 29-31 May and returned to work
Monday , 3 June (1:136, 163; G.C. Exh. 16a).
A hot shot delivery is one which is made the same day
a customer calls in the order (1:50, 89 , 125). They are as-
signed after drivers have completed their regular routes.
For extra incentive , drivers earn an additional $5 for hot
shots within Dallas and $7.50 for those which must be
delivered to' a point outside the city limits. The general
policy is that the first driver to return that afternoon is
given whatever hot shot assignment there might be. Hot
shots occur almost daily.
The record contains an abundance of evidence con-
cerning whether hot shots are mandatory , with Respond-
ent saying yes 12 and the General Counsel 's witnesses
saying they were never told any such thing . Hot shots
are not mentioned in LSIG's "Instructions For Truck
Drivers," a one-page list of rules covering instructions
on punctuality , sequence of deliveries , on routes, the re-
quirement that drivers are to make all deliveries on their
regular routes , and calling the office if problems arise
(G.C. Exh. 4). Operations Manager McGowan testified
that the rules were published around early spring 1985
(1:53-54).
The same issue, addressed from a different angle, con-
cerns the timing of requests to take off for personal busi-
ness. The evidence on this is mixed . Burns, testified that
he was unaware of any written rule (1:114; 2:375). Both
Jennings (1:153) and Burns (1:114) described an oral pro-
cedure whereby drivers are to alert Jennings no later
than the beginning of the shift that they want to take off
for personal business when they complete their regular
routes. Jennings then notifies Burns and the latter knows
to select someone else that afternoon for any hot shots.
The General Counsel 's witnesses assert that the practice
of notification applies to situations when a driver wants
to take off all or part of his regular route the next day or
11 Although hot shot deliveries fall under Bums' jurisdiction and su-
pervision (1 87, 98-99), Burns testified that Driver Supervisor Jennings,
not Bums, has disciplinary authority over the drivers and that it was Jen-
nings who decided on this discipline for McGee (1.99-100). Jennings put
his initials by Burns' signature (1 149, R Exh 3)
12 Driver Supervisor Jennings testified that to his knowledge LSIG's
policy on hot shots had not been reduced to writing (1 125)
987
even that same day (1:240-241; 2:279-280, 301, 309). On
13 June Respondent posted a new set of general rules.
On the second of two pages , employees ' are informed
that they are expected to work as long as they are
needed unless permission is granted to take off (G.C.
Exh. 10).
First, I find that as part of its business Respondent
considers it necessary to deliver hot shot orders the same
day it receives them . Second, if Burns tells a driver that
he must deliver a hot shot, then that is a job assignment
that is just as "mandatory" as any other job assignment.
Third, Burns, apparently as a matter of tact, frequently
mentions hot shots to a driver in the form of a request
that he make the delivery . On some of these occasions
the driver , having completed his regular route, will say
he cannot take it because he has personal business that
afternoon . In the past, Burns either made the assignment
mandatory (by telling the driver he had to take it) or
simply found another driver . In short, before the May in-
cident involving McGee , the subject never reached the
point of a driver's refusing to take a hot shot after Burns
had insisted that he do so. Thus, McGee is the first
driver who has been disciplined over a hot shot (1:101,
111-113).13 Respondent contends that McGee refused 1o
take this hot shot assignment on Friday, 24 May, to a
Luther's Barbeque location in Dallas.14 McGee denies
that he refused.
What makes this case rather unusual is that Respond-
ent's witnesses concede that not only was McGee an
overall good employee who had never been disciplined
previously (1:70-71, 138),' but that McGee, who fre-
quently volunteered to do so, made more hot shot deliv-
eries than any other driver (1:91, 126). This resulted from
a combination of factors . First, McGee usually was the
first driver who completed his regular route and he
therefore would be the first driver available.16 Second,
McGee was the first one back not because his route was
short, but because he admittedly was faster than the
others- (1:91, 126). Third, McGee fredquently volun-
teered. He volunteered for two reasons. One reason is
that he needed to earn the incentive payments (1:91, 127,
190, 191). And the other was his feeling of loyalty to the
Company (1:191). McGee liked to take 'hot shots be-
cause, as he put it on cross-examination,, he was con-
cerned about the customer and "because I feel that I'm
being a loyal employee, not because I have been told
that it was mandatory, or because anyone had indicated
that it was mandatory." (1:238 .) Indeed, McGee took so
many hot shots that in both 1984 and 1985 LSIG Presi-
dent Stahl asked Burns why, and Burns explained (1:92-
93).
13 Diver Reginald Proctor was suspended later, in June , for interrupt-
ing a hot shot delivery he had undertaken but failed to complete (1:83,
143-147)
14 Burns testified at several points that Luther's is one of LSIG 's larg-
est customers Luther's is a chain of barbecue restaurants.
15 Hired 15 July 1982, McGee confirms that his May 1985 suspension
was his first discipline (1.168, 195). When asked how he would rank
McGee in comparison with all drivers, Driver Supervisor Jennings testi-
fied, "I would rank him up at the top of the list." (1:165 )
is The drivers leave on their routes about 6 a in. or so ( 1 162, 168, 193,
239) McGee normally is back by about I to 1 30 p in. (1:108, 162, 238).
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the hot shot incident of Friday, 24 May, I
credit McGee rather than Burns. Aside from some addi-
tional factors, which I discuss below, I credit McGee be-
cause he impressed me as, a truthful witness. The cred-
ited account which therefore follows is essentially that
given by McGee.
McGee returned from making his regular deliveries
about 1:30 p.m. on Friday, 24 May. t 7 He backed _ his
truck into the stall opposite that of driver Joe Lyons,
who, already having returned from his route, was un-
loading his truck (1:182).18 McGee began unloading his
own truck when Warehouse Supervisor Burns ap-
proached him. After they exchanged greetings, their first
of two conversations was as follows:
BURNS : Preacher,19 I have a hot shot, could I get
you to take it?
MCGEE: No, I have a dental appointment today.
BURNS: Did you tell Jennings this morning?
MCGEE: No, I didn't know I had to.
BURNS: Well, you are supposed to tell Jennings
anytime that you have something to do.
At that point Burns walked away. I do not credit
Burns' version. In addition to the demeanor factor, I
note that Burns initially testified that he specifically told
McGee that the hot shot was "pressing," that it was for
Luther's Barbeque, and that he needed it gone (1:94). He
subsequently conceded, as his pretrial affidavit relects,
that he did not use the word "pressing." (1:96-97; 2:371;
G.C. Exh. 5 at 2.)20 Although Burns is "positive" he
mentioned Luther's Barbeque to McGee (1:94, 97; 2:366,
371), the version he gave in his pretrial affidavit of 3
July says instead, "I told McGee I had a hot shot that
had to go." (G.C. Exh. 5 at 2.)21 At one point in his tes-
timony Burns affirmed that he asked McGee whether he
had told Jennings about the dental appointment and
McGee said no (1:110). This admission , which confirms a
portion of McGee's version, is not set forth elsewhere in
the versions Burns gave at the hearing, although it is
17 McGee's timecard reflects that he clocked out at 13.50 (G C Exh
16a) As the timecards reflect times into the 90s, it is clear that the time-
clock divides an hour into 100 units. Thus, 13 50 would be 1 30 p in., not
the 1.50 p.m. McGee described (2.287) As the drivers apparently have
some unloading or other matters to attend to on occasion, it seems that
McGee actually arrived back at the warehouse at some point before 1 30
p.m. Bums places the conversation that day about I to 1:30 p in., and that
appears to be the approximate time (1.107, 113).
is Burns testified that McGee was the first driver to return that 24
May (17107). Called as a witness by LSIG, Lyons testified, during cross-
examination, that he could not recall the events of that day (2:391). As
the party in possession of Lyon's timecard for 24 May, LSIG presumably
would have introduced that timecard if it supported Bum's testimony
19 For 16 years McGee has been a volunteer pastor at a church in
Celina, a small town north of Dallas (1.169)
20 Burns concedes that had Jennings told him that morning that
McGee would be leaving after his regular route then Burns would have
bypassed McGee and waited for the next driver-Joe Jackson (1 115-
116).
21 I consider these discrepancies relevant only as to credibility If I
credited Burns' version, even as corrected, I would find that he made a
job assignment of a hot shot to McGee (The sentence quoted from
Burn's affidavit is followed by his version of the balance of the conversa-
tion)
added at the bottom of his, pretrial account (G.C. Exh. 5
at 2).22
It is undisputed that McGee and Burns had a second
conversation that afternoon. On his way out after un-
loading his truck and processing the paperwork, McGee
approached Burns and said that he hoped that this would
not be a problem. Putting his hand on McGee's shoulder,
Bums said, "You know, you are just not going to be a
problem with me; you know you are all right with me
preacher." (1:183, 187, 194, 241-242.)
At that point McGee said he would call and see if he
could postpone his dental appointment until the follow-
ing day, Saturday;23 McGee went to a telephone and
called the receptionist, who told him that the dental
office was not open on Saturday and that the next avail-
able time was 10:30 a.m. the following Tuesday, 28 May.
McGee returned and told Burns he thought he would be
able to help him but that he could not because the next
available appointment would not be until the following
Tuesday morning (1:183-184, 242-243).
As McGee explained at the hearing, he could not take
a Tuesday morning appointment without losing not only
that Tuesday but also without forfeiting holiday pay for
Monday, 27 May, the Memorial Day holiday. This is so,
McGee explained, because LSIG's policy requires em-
ployees to work the last workday before and the next
one following a recognized holiday to be eligible for hol-
iday pay (1:184). For some reason, McGee did not in-
quire whether there was an opening later in the after-
noon on Tuesday or another day that week (1:184, 243).
According to Burns, after their first conversation he
saw McGee go to his car. McGee then left his car, came
to Burns, and asked whether he could get into trouble
for not taking the hot shot. Burns said he did not know,
and McGee then left saying he was going to his dental
appointment (1:97, 101-102).24 Burns testified that he did
not think McGee made any reference to calling the den-
tist to get his appointment changed. Nor did he see
McGee go to atelephone, although there is one there
and Burns concedes that whether he- could have ob-
served McGee using it would depend on where Burns
was standing (2:367-368).
In crediting McGee on his account of the second con-
versation, I have not overlooked the peculiar circum-
stances surrounding his 3 p.m. dental appointment. As
22 The exchange about telling Jennings is as consistent with Burns'
version as it is with McGee's I mention it only in reference to the credi-
bility aspect that Burns' versions give different inclusions and exclusions
each time he was asked , whereas McGee's account is essentially one
simple version and was delivered in a straightforward fashion.
22 McGee testified that his dental appointment was scheduled for that
Friday at 3 p.m (1.247). The appointment was to have his teeth cleaned
(1 243).
24 At the hearing Bums admitted that he knew an employee could be
disciplined for insubordination, and that he did not tell McGee that he
risked being disciplined if he 'did not take the hot shot (1 97-98) As we
shall see, that very afternoon Burns prepared the suspension notice which
Jennings gave McGee on Tuesday, 28 May (1 103, 151 ). On the suspen-
sion notice he prepared , Burns checked the offense of "Insubordination"
for refusing to take the hot shot (R Exh 3) Moreover, Burns testified
that if a hot shot is "pressing" he tells the driver that he cannot take off
(1:94). Yet even though Bums allegedly considered this hot, shot to be
pressing, he admits that he did not tell McGee that he had to take it
(1 94)
LONE STAR GROCERS
earlier noted, McGee did not cancel his appointment and
reschedule it for a later date even though the appoint-
ment was not an emergency. Moreover, he testified that
he missed the appointment in any event because of a
freeway traffic jam resulting from an accident (1:243).
The thought occurs: Did McGee have a, dental appoint-
ment at all, or was he simply leaving town for the holi-
day (Memorial Day) weekend? McGee testified that he
did not leave the city (2:298). As we shall see in a
moment, it is undisputed, that McGee ,and Jennings had a
telephone conversation the evening of either that Friday
(McGee) or Saturday (Jennings). The evidence ,indicates
that McGee was at home when he called Jennings, I fmd
that McGee was not departing; that Friday afternoon for
a holiday weekend out of town. His efforts to change his
dental appointment appear (at this stage) less than per-
sistent simply because Burns had not indicated that the
delivery needed to go right then and McGee therefore
saw no urgency compelling him to cancel his teeth
cleaning and reschedule the appointment for a later date.
I credit McGee's testimony that he would have taken the
hot shot had Burns said there would be a problem ( 1:188,
193; 195).
According to Burns, after McGee left the premises
Burns went about getting another driver to take the hot
shot (1:102). The next driver to return, Joe Jackson, ar-
rived shortly after 2 p.m. (1:114). At 2`15 p.m. Burns dis-
patched Joe Jackson with the hot shot delivery to
Luther's Barbeque (1:103-105; R. Exh. 2). Initially testi-
fying that he had prepared the suspension notice before
he spoke with Jennings ( 1:100), Burns thereafter testified
that he did not draft the suspension notice until after
conferring with Jennings following the latter's return
from downtown Dallas about 4 pm. (1:103).25 In any
event Burns and Jennings , discussed the situation and, ac-
cording to both Burns (1:10(1F, 103, 112) and Jennings
(1:130, 167), Jennings decided that McGee would be
given a 3-day suspension. Jennings testified that such is
the usual discipline he imposes (I:131). -
Although Burns testified that ,he made no recommen-
dation to Jennings (1:100), Jennings asserts not only that
Burns had prepared the suspension notice before he con-
ferred with Jennings, but that Burns told him he had in-
tended to give it to McGee but McGee left before he
could draft it (1:129). It appears that the suspension
notice was filled out entirely in the handwriting of Burns
with the exception of the signature of McGee, the initials
of Jennings (R. Exh. 3; 1:103, 149-151), and McGee's no-
tation, "I was not told but asked if I could take a hot
shot." (1:152.)26 The document shows the employee's su-
pervisor to be J. L. Burns, Burns signed 'in the blank for
the supervisor's signature , and Jennings added his, initials
here.
Notwithstanding Jennings' admitted normal practice of
obtaining an employee's version before imposing disci-
pline (1:129-130), in this instance, Jennings 'testified, he
simply accepted Burns' version that McGee had refused
25 Jennings testified that he left for downtown Dallas about 9 a in. on
24 May and returned about 3 p in (1 128, 159).
26 McGee's note was, a response to the inscribed charge, "Driver was
told to deliver a Hot Shot and refused on the grounds that he had a
Dental Appointment." (R. Exh 3, 1.157 )
989
to take a hot shot without first interviewing McGee
(1:30, 137, 164).27
Driver Dominic S. Crawford28 testified that on the
day McGee was suspended29 Jennings approached him
at the gas -pump and said that McGee had been fired for
refusing to take allot shot (2:313, 323). Crawford said
that refusing a hot shot did not sound like McGee. Jen-
nings, Crawford credibly testified, stated that he had
gone to President Don Stahl and told him that he could
not fire McGee, that it was the wrong time, and that
Stahl had told him to talk to McGee.30 Then Jennings
asked Crawford to help McGee by calling him (2:313-
314)., -,
McGee confirms the nature of Crawford's call and
specifically places it at about 8 p.m. the same day of the
hot shot matter, Friday, 24 May (1:187, 244). McGee
then telephoned Jennings that very evening and asked
what was going on (1:186, 187). Jennings replied that he
could not believe it when he heard about it from Burns
and that is why he wanted to hear McGee's side. McGee
told him the whole episode., Jennings responded, "I told
Mr. Stahl that he couldn't fire you for that," and that
Stahl had told Jennings to contact McGee. McGee asked
whether he was to report for work Tuesday morning (28
May), and Jennings answered definitely. McGee credibly
testified that Jennings made no mention of a suspension
or of any discipline (1:187- 189).31
Jennings ' testimony concerning the conversation is dif-
ferent. Jennings places the conversation on the evening
of Saturday, 25 May, and states that McGee called and
asked whether he had been fired. "No," replied Jennings,
but McGee had earned himself a 3-day layoff. "For
what?" McGee asked. "For not carrying a hot shot,"
Jennings answered. McGee said that he had been asked,
not told, but Jennings replied that McGee knew hot
shots had to go (1:130, 137, 160-161,, 164).
McGee testified in a far more persuasive fashion than
did Jennings, and I credit the version given by
McGee.32 I credit Crawford as well. A witness of obvi-
27 McGee is the same driver who had never previously been disci-
plined by Jennings (1.137-138), the same driver who, Jennings concedes,
volunteered for hot shots when Burns could not find anyone else, who
took more hot shots than anyone, and who was faster than most other
drivers (1.126-127); and the same driver whom Jennings himself rates
among his top drivers, even at the "top of the list" of drivers (1165)
21 Crawford is also referred to in the record as Stanley Crawford.
29 As we shall see, the sequence of events demonstrates that this con-
versation occurred on Friday, 24 May, the day of the incident, not the
following week when McGee received his suspension notice
20 Needless to say, counsel for the General Counsel vigorously argues
the timing factor (Br at 17, et seq )
31 In his pretrial affidavit of 18 June McGee makes no mention of this
conversation He testified that it was because the Board agent did not ask
about it (1.244) As Jennings concedes having a telephone conversation
with McGee that weekend, but merely differs on the contents, I attach
no significance to McGee's omission, of this conversation from his pretrial
affidavit It is well settled that what a pretrial affidavit contains depends
largely on "the energy, skill, experience, and dedication of the mvestigat-
ing Board agent " Baker Mfg. Co, 269 NLRB 794, 815 fn. 72 (1984).
a2 All of Jennings' testimony was given when he was called by the
General Counsel under i ed.R Evid. 611(c). McGee then testified. Jen-
nings was not thereafter called and, consequently, gave no rebuttal to
McGee's version or the testimony given by Crawford
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ous sincerity, Crawford appears to have passed on the
essence of what Jennings told him at the gas pump.
b. Analysis and conclusions
What happened, I find, is that on the afternoon of
Friday, 24 May, President Stahl somehow learned that
Burns had, in effect, excused McGee from taking the hot
shot to Luther's Barbeque. 33 Seizing on this occasion as
an opportunity to rid LSIG of a prominent union orga-
nizer, Stahl told Burns that McGee was to be fired on
the pretext that he had refused a hot shot assignment.
When Jennings arrived a little later that afternoon Burns
reported to him on Stahl's direction to fire McGee. Jen-
nings went to Stahl and cautioned that the timing was
bad for discharging McGee.34 Stahl relented only to the
point of reducing the pretext penalty to a 3-day suspen-
sion, rather than an outright discharge, and told Jennings
to inform McGee of the discipline. When Jennings later
saw Crawford at the gas pump he told him what had
happened. Crawford called McGee that evening and
McGee then telephoned Jennings.
One might wonder why Jennings was not more cir-
cumspect in his remarks to Crawford and to McGee.
However, the sequence fits, the unrebutted35 testimony
is credible, and the action attributed to Stahl is plausible
in light of the interrogation of and threat to McGee oc-
curring either the day before or that very morning fol-
lowing the receipt, either 23 or 24 May, of the Union's
letter of 22 May naming McGee as one of the in-plant
organizers. Indeed, Stahl's initial overkill reaction-or-
dering that McGee be fired-shows clearly that Stahl
was highly incensed on seeing McGee's'name as an in-
plant organizer.
Although it is true that McGee is only one of seven
named in-plant organizers, it would overlook reality to
consider him as only one member of a seven-man com-
mittee. As a member of the employees' grievance com-
mittee, he also was the employees' designated spokesman
when the grievance committee met with LSIG' s manage-
ment in late 1984. At the last few meetings, including the
ones in early 1985, Operations Manager McGowan con-
ferred only with McGee. In short, it not only is clear
that McGee was the employees' elected spokesman, he
also was their leader,36 and there is no question that
LSIG's management recognized McGee as such.
33 Stahl did not testify
34 It also is possible that Jennings argued that the facts did not consti-
tute a refusal to take a hot shot and that it therefore would be wrong for
LSIG to discharge McGee over the matter Crawford's testimony is sus-
ceptible of that interpretation However, the evidence is vague on this
point and I find only that Jennings cautioned as to the unfavorable
timing.
35 As noted, Driver Supervisor Jennings testified only during the Gen-
eral Counsel' case-in-chief, under Fed R Evid 611(c), and was not re-
called during Respondent's case-in-chief to address this or other issues
President Stahl did,not testify.
36 Standing about 6 feet 3 inches and weighing about 270 pounds (esti-
mates based on my observations), McGee projects an imposing presence.
Moreover, McGee was a very articulate witness This is not surprising
when we recall that McGee, who studied theology for 6 years, has
spoken from the pulpit for 16 years (1 169)
In conclusion, I find that, as alleged, Respondent vio-
lated Section 8(a)(1) and (3) of the Act by suspending
Johnny A. McGee for 3 days beginning 28 May 1985.
2. McGee fired 8 July 1985
a. Facts regarding the 500 Cafeteria incident
On 2 July McGee filled in a customer's check, already
made payable to LSIG by the customer (500 Cafeteria),
for the amount of Respondent's invoice. The customer
called Respondent and complained. McGee was suspend-
ed pending an investigation. Following its investigation
Respondent, on 8 July, discharged McGee. A summary
of the facts follows.
The 500 Cafeteria is one of Respondent's C.O.D. cus-
tomers (1:62, 198). Respondent requires its drivers to
obtain payment, cash or check, for LSIG's invoices at
the time they make deliveries to C.O.D. customers, and
if they fail to do so any shortage is deducted from their
pay (1:62; 2:282). Under Respondent's general rule, if a
C.O.D. customer is not in a position to pay the amount
of LSIG's invoice at the time of delivery, the driver
must not leave the goods with the customer (1:62-63).
However, LSIG has an exception to this rule. Under the
exception, a driver may call Respondent's office and
obtain authorization to accept, in lieu of payment on de-
livery, a customer's signature on the invoice (1:254-255;
2:343, 344-346).
About 2 or 3 months earlier McGee had called LSIG's
office from 500 Cafeteria for authorization to accept a
signature in lieu of payment. McGee spoke with Control-
ler Murray Roher on that occasion. McGee testified that
Roher authorized him to accept a signature for that de-
livery,, but advised him that any future authorization
would have to come from Credit Manager Dwight Wil-
liams because there was a problem with 500 Cafeteria
(1:204-205, 216, 255; 2:290).37 Operations Manager
McGowan testified that the 500 Cafeteria is not one of
LSIG's larger customers (1:65).
A related rule of Respondent is its routing policy.
Under that policy, initiated the previous month by a
posted memo, drivers are required to make deliveries in
accordance with the order in which the stops are routed
(1:62, 215, 216; 2:295). If a problem develops on making
a delivery, the driver Is to call in for instructions, for a
driver deviating from the routing order without permis-
sion from supervision could be disciplined under the new
policy (1:63; 2:295). The supervisor could authorize the
driver to bring undeliverable goods back to the ware-
house (2:296). Before that June memo McGee could de-
viate from his route, when there was a problem making a
delivery, and come back to that customer later (2:296).
The new routing policy is embodied in General Coun-
sel's Exhibit 10, a two-page document dated 13 June,
titled "Company Work Rules &' Discipline.' In the
middle of the second page the following rule appears:
37 Roher confirmed having a conversation with McGee about whether
to accept a signature on a C.O.D delivery Although he could not recall
the gist of their discussion, he denied asking McGee not to call him about
that again (2 342-346) 1 credit McGee
LONE STAR GROCERS
BRINGING BACK DELI ' VERIES l
Drivers are not authorized to bring a delivery
back to the warehouse without prior approval from
a Supervisor. Supervisors can help you find where
and how to deliver if you call in with a problem.
Drivers who bring back deliveries without an ap-
proval are subject to disciplinary, action.
McGee testified without contradiction that the forego-
ing memo (G.C. Exh. 10) was posted about mid-June
(1:223).11$
Before the memo was posted in mid-June, McGee, on
occasion, had taken a chance by leaving goods at C.O.D.
customers without collecting or obtaining authorization.
These were C.O.D. customers whom he trusted as reli-
able and who had not been a collection problem in the
past (2:282, 289, 294).39 By one direct statement, and by
implication, McGee testified that if the person who could
pay would not be there until later, then McGee would
swing back by the customer biter, in the morning either
to pick up the payment, or a signature, when that person
would be there (1:215-216, 257; 2:289, 296). McGee did
this only for those customers he considered reliable
At the' hearing McGee made it abundantly clear that
the 500 Cafeteria definitely was a problem C.O.D. cus-
tomer, and that he had been told specifically by LSIG's
controller, Murray Roller, 2 or 3 months earlier that any
future authorizations regarding the 500 Cafeteria had to
come from Credit Manager Dwight Williams (1:216, 255,
266; 2:289-291, 294).
On Tuesday, 2 July, McGee's first stop was the 500
Cafeteria (1:197-198, 250). It was early, about 6:30 a.m.,
and the chef, Willie Smith,40 was doing everything, in-
cluding cooking, serving customers, handling the cash
register, and receiving delivered goods, because one
cashier, Pamela Forhriep, was absent,41 and the second
cashier, Assistant Manager Jean Clark, did not arrive
until about, 7:30 a.m. (1:199; 2:381, 395-396).42 As de-
scribed by McGee, Smith was trying to open the cash
register, he had a lot of customers, and he was not in a
good mood (1:198-199, 261). Smith, Forhriep, and Clark
all testified, and all were employed elsewhere (no longer
at 500 Cafeteria) as of the hearing.
There,'is a dispute concerning the substance of the
early morning conversation between McGee and Smith.
Under McGee's version, he referred to the fact that a
311 McGee also testified that the new routing policy was posted in a
different memo also about mid-June (2:195). No copy of that memo is in
evidence,
119' An example McGee gave involved a C.O.D. customer (unnamed)
about whom McGee had made several calls to LSIG in the past and re-
ceived permission to drop the goods without receiving payment. As to
this customer, McGee eventually developed the-practice of leaving the
goods without calling LSIG for permission (2.294). By implication, he
either got a signature then, or came back later that morning for a signa-
ture or payment-whichever LSIG had authorized in the past
40 Although Smith's name is rendered Willy Smith in the ' transcript,
the General Counsel spells it as I have, and that spelling accords with the
way I understood it at the hearing
41 Forhriep testified that she actually had been terminated at the end
of June (2:335-336).
42 The 500 Cafeteria normally was not McGee's first stop, and in the
past at least one of the cashiers had been there when he made deliveries
(1 265, 2.281).
991
partiitlly' completed check was in the desk drawer and
that he also needed to pick up a tray of return items
(1:199-200, 260-261). Smith, McGee testified, said, "Go
get them." (1:199, 261, 262, 292.) McGee interpreted this
to mean the check and the return items (1:199, 261-262;
2:292).
According to Smith, he was very busy at the cash reg-
ister when McGee approached him concerning the deliv-
ery. Smith told McGee that the cashier had not arrived
and that McGee could leave the groceries and come
back. to get the check later, or take the groceries and
come back later to make the delivery. McGee said he
had a pickup to make. Smith said he knew nothing about
it. McGee said that the items were on top of the file cab-
inet in the office; Smith told him "to go and get his
bags." (2:396.)43
It is undisputed the 500 Cafeteria's owner, in accord-
ance with his usual custom, left checks in his desk
drawer payable to various vendors, including LSIG.44
For this occasion the owner, Leo D. Meier, had left a
check, No. 992, signed by him, dated "7/2/85," and pay-
able to "Lone Star Grocers" with the amount left blank
(1:200, 205, 2:402-403; G.C. Exh. 8). McGee, everyone
agrees, took the check, filled in the amount for $102.99,
the correct amount of the invoice,45 left a copy of
LSIG's invoice on the desk,46 and departed for the next
stop on his route.
A few minutes after McGee left, Smith went into the
office, saw the invoice copy on the desk, and discovered
that the check to LSIG was missing . Smith telephoned
LSIG, reported the matter, and demanded that LSIG's
driver return the check.4 7 At no point did Smith, who
had never before complained to LSIG about McGee, re-
quest that LSIG discipline McGee (2:403-404).
It is undisputed that about mid-morning Operations
Manager Roy McGowan and Credit Manager Dwight
Williams arrived at the 500 Cafeteria and spoke with
Smith.48 Shortly after McGowan and Williams arrived,
49 It is unclear whether the items McGee was to pick up were in bags,
but it seems clear that Smith was referring to bags belonging to LSIG,
and not to any bags of Smith. As actually spoken, the phrase probably
would be rendered, "Go and get the [or "your"] bags "
,44 Called as a witness by Respondent, Leo D Meier identified himself
as the owner, at the relevant time, of the 500 Cafeteria, and confirmed his
policy of leaving checks in his desk drawer (1:27-28).
411 There is no contention by either LSIG (1:57, 72, McGowan) or by
the 500 Cafeteria (2:404, Smith) of theft.
46 There is a dispute between McGee and Smith concerning whether
Smith signed the delivery copy of the invoice at the cash register (1.199,
254, McGee) or when McGee returned about 10:30 that morning (2:399-
401, 408-409, Smith). McGee had unloaded his delivery before learning
that no cashier was there to fill, in the check for payment (1:254). McGee
testified that Smith is the person who always checked the merchandise
and signed the invoice (1 248)
47 There are some discrepancies in the evidence concerning exactly
what happened during this period, such as when Smith called and wheth-
er he called once or twice. I need not resolve these differences The im-
portant point is that he did call and that LSIG responded
411 Assistant Manager Jean Clark was on duty that morning but
McGowan and Williams did not interview her concerning the 500 Cafe-
teria's procedures affidavit, dated 24 September, from Clark (2:383). As
the request of counsel for the General Counsel during his cross-examma-
ti+on of Clark, Respondent, without objection, submitted Clark's statement
to the Government for cross-examination purposes.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and apparently while they were waiting to speak with
Smith, McGee arrived with the check, which he ten-
dered to McGowan. There is a dispute over whether a
conversation ensued in which McGee, admitting that he
had filled in the amount, explained how that came about.
McGee desribed such a conversation (1:202-204), where-
as McGowan asserts that they did not discuss the matter
until that afternoon (1:61).49
I credit McGee to a limited extent. Logic supports his
version that when he arrived he asked McGowan what
was going on, and that McGowan explained that the cus-
tomer had reported that McGee had taken a check from
the desk drawer, and asked' did McGee have it. McGee
said yes and, tendering the check to McGowan, stated
that he had filled in the dollar amount. To McGowan's
question of why McGee had not called LSIG's office to
ask for authorization to accept a signature on the invoice
in lieu of a C.O.D. payment, McGee replied that he had
not done so because it was 6:30 a.m. and no one was at
LSIG to give the authorization until Credit Manager
Williams arrived, and that Smith had authorized it. At
that point, I find, McGowan told McGee to finish his
route and they would discuss the matter that afternoon.
I do not credit McGee's testimony (1:204) that he also
told McGowan and Williams that another reason he had
decided to complete the amount and take the check was
that some weeks earlier one of the cashiers (unidentified)
asked him why he never got the check from the desk
drawer and filled it in as some of the other delivery driv-
ers did (1:200, 253, 263). Both cashiers deny ever saying
this to McGee (2:335, Forhriep; 2:380-381, Clark).50
Forhriep also testified that when an Oroweat driver did
that she reported it to Owner Meier, who told her he
would take care of the matter. In addition to the testimo-
ny of Forhriep and Clark, I note that the account
McGee gave on this point in his pretrial, affidavit of 16
July omits any reference to the story about the cashiers
(R. Exh. 5 at 4).5 t
When McGee completed his route around 1:30 p.m. he
went to McGowan's office where he resumed the discus-
sion with McGowan and Williams (1:61, 207). According
to McGowan, he asked McGee if Smith had given him
permission to take the check or knew that McGee was
taking it, and McGee said he did not know whether the
chef (Willie Smith) was aware that he had taken the
check. McGowan testified that "McGee didn't indicate
to me that there was any conversation [with Smith]
about the check." (1:62.)
McGee testified that McGowan asked him whether he
had ever filled in a check before. McGee said yes, but he
could then recall only one unidentified customer located
in the same building housing the Quadrant Club
(1:207).52 McGowan then asked him why he had filled
49 Credit Manager Williams did not testify.
50 Forhriep was called as a witness by the General Counsel. Respon-
dent called Clark. Neither works for the 500 Cafeteria, and neither ap-
peared to have any reason to feel compelled to testify consistent with the
policies of former 500 Cafeteria Owner Leo D Meier
5 i Although McGee refers to the story about the cashiers earlier in his
pretrial affidavit, that reason is not included in the report of his conversa-
tion that morning with McGowan
52 McGee testified that he had never previously done this at the 500
Cafeteria (1 259). At the hearing McGee named two other customers, Ice
in the amount and taken the check . McGee described the
entire sequence , that Smith had said , "Go get them" in
response to his telling Smith that the check was in the
drawer and the pickup was atop the file cabinet, and that
he had interpreted this as authorization for him to get
both the check and the return items. Also, McGee con-
tinued , he considered the time of the morning and the
fact that Controller Roher some months earlier had told
him to get any further authorization from Williams, who
would not yet have arrived, plus the statement by one of
the cashiers that other drivers do it , plus his desire to sat-
isfy both the customer and LSIG by delivering the
goods and getting the check (1:207-209, 261-262, 266).53
McGowan testified that McGee also said that other
LSIG drivers did the same, and he concedes that he did
not ask McGee for their names (1:64).
McGowan then personally typed out a suspension
notice which he handed to McGee (1:209). 54 McGee de-
clined to sign the document because the duration of the
investigation was not specified and because he felt the al-
legations were false. McGowan then wrote in hand,
"Driver declined to sign because specific duration of in-
vestigation cannot be determined at this time," and
McGee initialed it (1:210 ; G.C. Exh. 9).
Under "Nature of Offense" are seven items ranging
from attendance to, as just noted , "Other." The third
item , "Company Rule Broken ," is not checked . Only the
"Other" line is checked (G.C. Exh . 9). McGowan con-
cedes that LSIG has no written rule specifically forbid-
ding drivers to fill in the amounts on customers' checks
(1:70, 76).
After McGee left that afternoon Respondent continued
with its investigation . At some point that day Credit
Manager Williams telephoned the 500 Cafeteria, spoke
with Owner Leo Meier , 55 and asked him what the res-
taurant's policy was on this matter. Meier informed him
that the cashier would fill out the check and that he did
not want anyone going into the 'desk and removing
checks.56 Meier agreed to put this in writing (1:39). The
Cream Have and Sweet Peas Restaurant, where he on occasion would fill
out the checks (1:212-213, 258-259)
S' Although he did not remind McGowan of Respondent' s routing
policy, McGee testified that he also did not simply drop the goods and
come back later to pick up the payment because that would have violat-
ed LSIG's routing policy (1 215-216, 255-256) This was in addition to
the situation, previously summarized , concerning the 500 Cafeteria's
being a problem C 0 D customer.
54 It is unclear whether McGowan typed all or a portion of the notice.
As the basic portion simply identifies the employee and describes the of-
fense as being "Other," which in turn is summarized as "Investigation
into the complaint from customer," etc, it is quite likely that most of the
form was complete before the afternoon discussion and that McGowan
simply typed in "Suspended until investigation completed" for the cate-
gory of what disciplinary action was taken (G.C. Exh 9) This is likely
because McGowan testified that the suspension was a point decision be-
tween him and President Stahl (1 64, 73). Those two, obviously, reached
their point decision before the afternoon conference with McGee-a con-
ference not attended by Stahl
55 Whether this conversation occurred before or after McGee received
his suspension notice is not established. Meier testified that he arrived at
the 500 Cafeteria in the late morning and left in the afternoon between 2
and 4 (1136)
55 Meier testified that Smith, the chef, also had authority to fill in
checks in Meier's absence but that Smith had always declined to exercise
Continued
LONE STAR GROCERS
following day, 3 July, Meier drafted and sent to' LSIG
the following letter (1:35, 39; R. Exh. 1):
Dear Sirs:
This is to state that it is our policy at 500 Cafeteria
that all checks to purveyors must be filled out by
one of the owners or by the cashier in charge.
Sincerely,
500 Cafeteria
/s/ Leodegar Meier
Leodegar Meier
Following the 2 July suspension meeting with McGee,
McGowan directed Williams to contact some of the
C.O.D. customers on McGee's route to determine what
their practice was regarding drivers filling out checks.
Of the dozen or so customers on McGee's route; Wil-
liams, McGowan testified, contacted six or seven of, the
larger C.Q.D. accounts and they reportedly informed
Williams that they did not permit drivers to fill in checks
(1:65-68, 75).57 McGowan testified that Williams report-
ed back to him on either 3 or 5 July (1:84).
Also as part of the additional investigation McGowan
and Stahl conferred with Driver Supervisor Jennings
concerning whether Jennings was aware of any such
practice by the drivers. McGowan testified that Jennings
said he was unaware of any and would not condone it
(1:68), but Jennings testified that they asked him whether
this was a common practice and he answered no (1:140).
Jennings testified that when one driver (Moreno) asked
him 3 or 4 years ago whether such was permitted Jen-
nings said it was not (1:141, 142).
Jennings also testified that after McGee's suspension
he talked with about half the drivers. However, it ap-
pears from Jennings' testimony that such drivers (indi-
vidually, apparently) came to Jennings rather than Jen-
nings going to them (1:142).. According to Jennings,
driver Harold Morrison said he had filled in amounts on
checks. Jennings told him, "]Don't do it." (1:142-143.)
Morrison did not testify.
Warehouse leadman George Gipson testified that, over
2 years ago Jennings and Burns told the drivers not to
fill in amounts on checks and that until this incident in-
volving McGee he had never heard of other, drivers
doing this (2:352-353, 356-357).58 Jennings testified that
before this incident involving, McGee he never had a
policy of telling drivers not to do, something that seems
wrong anyway (1:141-142). However, he also admits
that, when he learned one or more drivers filled in
amounts on checks, no meeting; was called to instruct the
drivers not to do this (1:158).
that authority (1.29) Smith denies that he had such authority (2:395, 403)
Meier testified that Smith reported the incident to him, and that he did
not contact LSIG nor did he recommend that McGee be terminated
when Williams called (1:33, 39).
57 McGowan did not specifically say that the dozen or so were C.O D.
accounts Unless McGee had many items to unload at each place, it
would seem that the number of customers, both C.O.D and credit, could
be several more than 12
58 Gipson works to the warehouse most of the time and serves as a
substitute driver (2:357)
993
'I'ra drivers, Samuel L. Green and Dominic S. Craw-
ford, testified that, unknown to management, they regu-
larly fill in amounts on the checks of a couple of smaller
customers, and that they had never been told that Re-
spondent had a policy forbidding this.
Crawford testified that on 2 July he told Jennings that
he does this all the time, and that Jennings simply shook
his head and said he did not understand what the prob-
lem was (2:317, 325). Green testified that he similarly
told Warehouse Supervisor Burns, but it is unclear
whether the conversation occurred the day of McGee's
suspension or discharge (2:306). McGee also testified that
before 2 July no one at LSIG told him he was not to fill
in amounts on customers' checks or that he could be dis-
ciplined for doing so (1:213, 214).
It appears that the examples Green and Crawford de-
scribed involve situations where the customer, even if
not present, has by past practice permitted the driver to
fill out the amount of the check. A practical aspect de-
scribed by Green (2:305) and Crawford (2:315) is that
some customers, either because of a language difference
or other problem, are unable to fill out the amount and
rely on the driver to do so. As Green credibly described,
when a driver has a regular route he can develop a rela-
tionship of trust with the customer and in these situations
the customer sometimes wants the driver to fill in the
amount of the check (2:305). And as leadman Gipson tes-
tified regarding hot shot deliveries, it is part of an em-
ployee's job "to satisfy our cutomers." (2:351.)
11 Driver Joe L. Lyons, called as a witness by Respond-
ent, testified that at the request of customers who cannot
write he fills out checks, that he has heard of other driv-
ers doing the same, and that he has never filled out a
check without being asked to do so by the customer
(2:289). Lyons is one of LSIG's more senior drivers,
with only' four or five having more seniority (2:392).
Driver Green testified' without contradiction that fol-
lowing McGee's discharge Respondent has not posted or
distributed any notice forbidding the drivers to fill in
amounts on checks or warning them that they could- be
disciplined for doing so (2:307).
As McGowan testified, on Monday, 8 July, McGowan
informed McGee that he would be -terminated for violat-
ing the customer's policy, and that if he violated the cus-
tomer's policy, then he had- violated LSIG's policy
(1:70). McGee's version is somewhat different,59 but
McGowan's seems more logical and I accept it. A nota-
tion was placed on the suspension notice: "7/8/85 Inves-
tigation completed-final decision-termination." (1:220;
G:C. Exh. 9.)
When asked at the hearing why Respondent terminat-
ed McGee, McGowan testified (1:69):
He was terminated because he took it upon himself
to take a check out of a drawer, the customer's
desk, without permission, filling in the amount, and
leaving the invoice on the desk, and leave without
59 McGee has McGowan saying at one point that perhaps McGee did
not violate the customer's policy (1 219) The weight of the evidence is
to the contrary concerning the policy of 500 Cafeteria.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notifying anyone that he had done so, and without
permission -from the company.60
Two days later , on 10 July, NLRB Region 16 con-
ducted an election in Case 16-RC-8780 among the em-
ployees of the stipulated unit, which the Union won by a
vote of 38 to 17 (1:226-228).
b. Analysis and conclusions
The significant problem is the contradiction of McGee
by 500 Cafeteria's former employees Smith , Forhriep,
and Clark of,key points in McGee's story. The weakness
of the General Counsel's case was her failure to adduce
any evidence at the hearing, or to suggest in the brief
based on the record, why Smith, Forhriep, and Clark, or
any of them, would be in error or have a motive to falsi-
fy. Smith's testimony , in particular, is critical.
On the other hand, McGee had every reason to be
careful regarding a delivery to the 500 Cafeteria. I credit
McGee regarding his testimony about Controller Roher's
instructions to call Credit Manager Williams regarding
any future authorization for the 500 Cafeteria.
A distinction can be, made and argued that McGee, if
Smith is credited, could have reached Driver Supervisor
Jennings and obtained permission to come back to 500
Cafeteria later and attempt delivery, and that this would
have avoided the need to contact Williams. Although
that solution appears viable, it also is the product of
Monday morning quarterbacking . Even if Smith is cred-
ited it is clear that turmoil abounded, and who can say
that a driver should have made nice distinctions among
LSIG's posted rules and the instructions from'Controller
Roher.
If Smith is credited in full, however, no explanation
appears as to why McGee would leave LSIG's goods at
a problem C.O.D. customer, particularly this C.O.D. cus-
tomer, with, neither (1) payment, (2) signed invoice, or
(3) the prospect of coming back later that day to collect.
If Smith is credited, then why did not McGee, perceiv-
ing that he could call only Williams, reload the goods
and proceed on his route, choosing that course as the
best of bad options? The reason, I would find, was that
McGee feared more the prospect of discipline, including
discharge, for violating Respondent's newly posted rout-
ing policy than he did the possibility that he might have
to make good the relatively small C.O.D. bill of $102.99.
Stated differently, he would choose the risk that he
might have to pay $102.99 rather than the risk of possi-
ble discipline.
But attempting to unravel the disputed, contentions
concerning events at the 500 Cafeteria may be' an aca-
demic exercise. For the moment let us consider the view
from Respondent's position. In doing that, we necessarily
must accept the version that Smith gave LSIG. Citing
various cases, and relying on several factors such as
timing, the, acknowledged rating of McGee as one of Re-
spondent's best drivers, the severity of the penalty, the
failure of LSIG to follow up with a posted notice pro-
hibiting such conduct, and other contentions, counsel for
the General Counsel argues that the facts nevertheless
60 The last reference to the company apparently refers to LSIG.
compel the conclusion that Respondent seized on the in-
cident as a convenient pretext to get rid of McGee when
it would not have done so absent his union activities (Br.
at 21-27).
The General Counsel's pretext argument is persuasive.
The contention as to timing, however, carries weight
only because of the findings I made earlier regarding Re-
spondent's knowledge, its threats to McGee, and the un-
lawful suspension of McGee. Standing alone, the termi-
nation occurred shortly before the election because the
incident itself occurred shortly before the election. When
the whole panorama of events is considered, however,
the timing factor points to an unlawful motive, and I find
that Respondent was unlawfully motivated in discharg-
ing McGee.
As for the severity of the penalty, I note that the 500
Cafeteria witnesses made no request that McGee be 'dis-
ciplined (1:39, Meier; 2:403, 404, Smith). McGowan
admits that the incident was an isolated situation,61 al-
though he terms it serious (1:69). The only serious aspect
is that McGee filled in the check with the correct
amount and took it for payment without the customer's
permission. As the preponderance of the credited evi-
dence reflects, the drivers regularly assist some custom-
ers, at their request or by an understanding, who have
difficulty filling out checks. By doing this without the
customer's permission McGee did wrong because it dis-
turbed the customer.62
But even though McGee's presumed act was improper,
did his error in judgment merit industrial execution? The
General , Counsel shows no specific disparity,` but neither
does Respondent point to any similar discipline of an-
other employee in the past. If Respondent suspends em-
ployees for first offenses (as with the hot shot inci-
dent),63 then in this instance the penalty should have
been limited to a suspension inasmuch as Respondent
was not at liberty to rely on the tainted hot shot inci-
dent. I therefore find that the penalty, being excessive,
suggests that the discharge was unlawfully motivated.
The General Counsel contends that Respondent's "in-
vestigation" was cursory. Although there is evidence so
indicating,64 I need not pause to resolve that issue.
Respondent's failure to post a warning to all employ-
ees following McGee's discharge also indicates that it
did not consider the matter one of significant impor-
tance. Because it did not care enough to make certain
that its staff of drivers clearly understood its policy on
this, I infer that it never viewed the McGee incident as
61 In view of McGee 's spotless record before advent of the union ac-
tivity, McGowan could hardly say that the situation was'anything other
than isolated
62 I find that under any version of the facts McGee acted with the
overall goal of delivering the goods the customer needed plus securing
payment for LSIG The "wrong" involves only a violation of customer
relations.
6a There is no other evidence that Respondent uses written warnings
or any system of progressive discipline
64 For example, Respondent in fact did not interview the drivers about
their practices on filling out checks, although Jennings testified concern-
ing what several told him when they heard of McGee's suspension For
further example, Respondent chose to interview the large C.O D. cus-
tomers rather than the small ones such as the 500 Cafeteria, and it is the
small customers where drivers, when they do so, fill out checks.
LONE STAR GROCERS 995
anything more than an isolated mistake in judgment by
McGee, but a mistake Respondent could use as a pretext
to discharge McGee.
Respondent, I find, seized on the 500 Cafeteria inci-
dent as a convenient excuse to rid itself of not only one
of the in-plant organizers for the Union, but, more im-
portantly, a man viewed by his peers as a leader and ar-
ticulate spokesman for their mutual interests. It was Re-
spondent's burden to go forward and rebut the General
Counsel's prima facie case by showing that notwithstand-
ing McGee's union activities it would have imposed this
or some other penalty. Respondent failed to carry this
burden. I therefore find that absent McGee's union and
protected activities' Respondent would not have dis-
charged him on 8 July. Accordingly, I find that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging McGee on 8 July.
3. The 8(a)(4) allegation
Complaint paragraph 11 alleges that Respondent sus-
pended McGee on 2 July and discharged him on 8 July
"because Johnny A. McGee filed a charge with the
Board and gave testimony to the Board against Respond-
ent." The initial charge in this case (pertaining to the
May suspension), filed by Local 745 on behalf of McGee,
reflects that it was filed and served on 10 June, a
Monday. No return receipt is attached to the service
letter (G.C. Exh. lb). By law, service is effected by mail-
ing. Presumably, however, Respondent received its copy
within a day or two of the 10 Jlune service letter.
Pointing to the close timing between the filing` of the
charge and the July suspension-discharge of McGee,
contending that the 500 Cafeteria "inquired" about the
check "without [expressing] a,great deal of concern over
the matter," and stating that the charge was "immediate-
ly preceded by an abrupt change in Respondent's behav-
ior towards McGee," the General Counsel argues that
the facts, including the "precipitous" decision to dis-
charge McGee, compel a finding' that Respondent's deci-
sion to suspend and ultimately discharge McGee was
motivated by the filing of the 10 June charge (Br. at 27-
28).65
Counsel for the General Counsel does not explain
what he refers to by an abrupt change. In relation to the
8(a)(4) allegation, it would seem that the General Coun-
sel would be arguing that there was an abrupt change
after the charge was filed. Counsel points to no evidence
about any abrupt change after the charge was filed.
Indeed, the record contains practically nothing concern-
ing events between 10 June and 2 July.66
I am left, in effect, with an argument that the discrimi-
nation found justifies an inference that an additional mo-
tivation was the filing of the charge. Such inference
might be justified if there were evidence of even a single
adverse reference by Respondent to the charge or any
evidence that following the charge Respondent's treat-
ment of McGee took an abrupt change for the worse.
Absent either factor, it would seem that the charge, if
considered at all as to McGee, was nothing more than an
incidental factor in Respondent's consideration, and not a
motivating reason for its July decision to suspend and
discharge him.
Because the General Counsel has failed to establish a
prima facie case supporting this allegation, I shall dismiss
it.
CONCLUSIONS OF LAW
1. Lone Star Institutional Grocers is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local Union 745 is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening employees about 7 June 1985 with
discharge for engaging in union activities, Respondent
violated Section 8(a)(1) of the Act.'
4. By suspending Johnny A. McGee for 3 days begin-
ning 28 May 1985, again suspending him on 2 July 1985,
and discharging him on 8 July 1985, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. Respondent did not unlawfully interrogate employee
Johnny A. McGee about 23 or 24, May 1985.
6. By suspending Johnny A. McGee on 2 July 1985
and discharging him on, 8 July 1985, Respondent did not
violate Section 8(a)(4) of the Act.
7. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent must offer Johnny A. McGee immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and any other rights and
privileges previously enjoyed. Respondent must also
make him whole, with interest, for any loss of earnings
and other benefits he may have suffered as a result of
Respondent's discriminatorily suspending him in May
and July 1985 and unlawfully discharging him on 8 July
1985. Backpay shall be computed in the manner estab-
lished in F. W. Woolworth Co.,^ 90 NLRB 289 (1950),
with interest calculated as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977): See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
- Moreover, Respondent must remove from its files any
reference to its unlawful suspensions (May and July
1985) and discharge (8 July 1985) of Johnny A. McGee.
It must notify him in writing that this has been done and
that evidence of the suspensions and discharge will not
be used as a basis for further personnel action against
him. Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed67
ss In its'brief, Respondent does not address the 8(a)(4) allegation
66 As I found earlier, the threats by 'Warehouse Supervisor Burns were
made on 7 June and related to the Union's letter
67 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Continued
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Lone Star Institutional Grocers,
Dallas, Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge for engag-
ing in activities supporting Teamsters Local Union 745
or any other union.
(b) Discharging or otherwise discriminating against
any employee for supporting Teamsters Local Union 745
or any other union.
(c) 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 Johnny A. McGee immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him , in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the unlawful
suspensions and discharge and notify the employee in
writing that this has been done and that the suspensions
and discharge will not be used 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 Dallas, Texas facility copies of the at-
tached notice marked "Appendix."fib Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply. For the purpose of determining or se-
curing compliance with this Order, the Board or any of
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.
68 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."
its authorized representatives may obtain discovery from
the Respondent, its officers, agents, successors, or as-
signs, or any other person having knowledge concerning
any compliance matter, in the manner provided by the
Federal Rules of Civil Procedure. Such discovery shall
be conducted under the supervision of the United States
court of appeals enforcing this Order and may be had on
any matter reasonably related to compliance with this
Order, as enforced by the court.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual' aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
In recognition of your rights, we notify you that:
WE WILL NOT threaten to discharge you for engaging
in activities supporting Teamsters Local Union 745 or
any other union.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting Teamsters
Local Union 745 or any other union.
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 Johnny A. McGee immediate and full
reinstatement to his former job or, if that job no longer
exixsts, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him whole
for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.
WE WILL notify him in writing that we have removed
form our files any reference to his two suspensions and
to his 8 July 1985 discharge and that the suspensions and
discharge will not be used against him in any way.
LONE STAR INSTITUTIONAL GROCERS