McKesson Chemical Co.

National Labor Relations Board - Board Decisions

Nov 23, 1979

246 N.L.R.B. 584 (N.L.R.B. 1979)

IDF('ISIONS 01 NATI)NAI. LABOR REL.AIO()NS BOARI)
McKesson Chemical Company, A Division of Fore-
most-McKesson Chemical, Inc. and Steven Katz.
Case 22- CA- 8742
November 23, 1979
DECISION AND ORDER
BY MEMBI:RS PINEI.LO, MURPHY, ANI) TRUI:SI)AI.
On June 8, 1979, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative L.aw Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made b)
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge made three findings in sec. Ill of his Deci-
sion which are not supported by the record. Thus, the Administrative Law
Judge found that Charging Party Katz denied ever receiving a disciplinary
suspension but admitted on cross-examination that he was suspended on
May 11 1978. There is, however, no testimony in the record that Katz
admitted that he had been suspended. The Administrative Law Judge also
found that Katz testified inconsistently as to whether Plant Manager Cooper
or group leader Bell had ever ordered him to disregard delivery instructions
and that Katz' testimony was inconsistent as to whether Cooper was at work
on September 22. The record indicates, however, that Katz testified consis-
tently with regard to both of these matters. These errors by the Administra-
tive Law Judge do not, however, warrant reversal of his conclusions that
Respondent did not violate Sec. 8(a)(3) and (4) of the Act by suspending
Charging Party Katz.
DECISION
S1TAI MENT OF litlI CASE
MAX ROSENBIERu(, Administrative Law Judge: With all
parties represented, this proceeding was heard before me in
Newark, New Jersey, on March 23, 1979, upon a complaint
filed by the General Counsel of the National Labor Rela-
tions Board and an answer submitted thereto by McKesson
Chemical ompany, A Division of Foremost-McKesson,
Inc., herein called Respondent.l At issue is whether Re-
spondent violated Section 8(a)(3) and (4) of the National
Labor Relations Act, as amended, by certain conduct to be
detailed below. Briefs have been received from the General
Counsel and Respondent, which have been duly consid-
ered.
Upon the entire record made in this proceeding, includ-
ing my observation of' the demeanor of each witness who
testified herein, I hereby make the following:
FINI)IN(S O()F FA( I AN[) CO()N(I SIONS
I. lilt BUSINESS ()I RSP')NI)ENI
During the times material herein Respondent, a Mary-
land corporation, has maintained a business and storage
facility in East Avenel, New Jersey, where it is engaged in
the purchase, sale, and distribution of industrial chemicals
and related products. During the material annual period
Respondent caused to be sold and distributed at the East
Avenel plant products, goods, and materials valued in ex-
cess of $50,000, of which products, goods, and materials
valued in excess of $50,000 were shipped from said facility
in interstate commerce directly to States of the United
States other than the State of New Jersey. The complaint
alleges, the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. 11ttE IABOR ORG(AN.AI'ION INVOI.VEI)
It is undisputed and I find that United Steel Workers of
America, AFL ('1O , herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. 1 liL AI.I.EGEI) UNFAIR ABOR PRA(CICES
This litigation arises out of the General Counsel's claim
that Respondent suspended employee Steven Katz from his
job as a bulk tank delivery driver for 3 days without pay on
September 29, 1978,2 because he joined and supported the
Union in its organizational endeavors at Respondent's East
Avenel facility and because he gave testimony under the
Act and thereby violated Section 8(a)(3) and (4) of the stat-
ute. Respondent asserts that the suspension was triggered
solely by Katz' failure to follow instructions regarding the
delivery of its products to a customer who had complained
about this dereliction.
Respondent sells and distributes industrial chemicals and
related products throughout the Northeastern States. In the
course of its operations it maintains seven sales locations
which receive orders from customers in those areas for
packaged and bulk chemical materials. When orders are
obtained they are transmitted to its transportation facilities,
such as the one centered in East Avenel, for fulfillment and
delivery by Respondent's vehicles or common carriers.
At the times material herein Respondent's East Avenel
work complement consisted of approximately 18 ware-
housemen and drivers. One of those drivers, Steven Katz,
The complaint. which issued on November 16, 1978. is based upon a
charge which was filed and served on October 2, 1978.
2All dates herein are in 1978.
246 NLRB No. 95
584
McKESSON CHEMICAI COMPANY
the Charging Party herein, had been employed as a bulk
tank driver for a little over 1 year prior to this proceeding.
In this capacity he drove a chemical bulk tank truck from
the East Avenel installation to Respondent's customers.
Katz' immediate supervisor is Rick Cooper, Respondent's
bulk plant manager. Another character in this legal drama
is Ray Bell. who is classified as a group leader.
Katz testified that toward the end of August he and his
fellow employees held a meeting during which the subject
of unionization arose. As a result of their discussion the
men designated him as their emissary to seek out a labor
organization to represent them. Shortly thereafter. Katz
contacted an official of the Union who invited him and the
other employees to a meeting at Union headquarters to
learn about the benefits of union representation. To publi-
cize this event Katz posted a notice in a trailer in Respon-
dent's yard which housed the clerical staff and which also
served as Plant Manager Cooper's office. This notice, which
was handicrafted by Katz but did not identify him as the
author, announced that the meeting was to be conducted on
August 30 in Cooper's lounge at 7:30 p.m. and bore the
notation "excluding group leaders."' This was not the first
occasion on which notices of employee meetings had ap-
peared in the trailer, for Cooper's testimony is undenied
and I find that on many occasions prior to the advent of the
Union an employees' grievance committee utilized the
trailer to publicize their meetings, and so far as this record
stands Cooper had no reason to believe that the gathering
scheduled for the evening of August 30 was sponsored by
the Union. In an attempt to attribute knowledge of Katz'
union activities to Respondent the General Counsel drew
from the employee testimony that shortly after the notice
was posted Cooper removed it from the trailer wall and told
Katz that all employees, including group leaders. should be
invited to the gatherings However, Katz admitted that
Cooper did not forbid the employee from reposting the no-
tice as modified, and he also admitted that Cooper never
discussed the subject of the Union with him at any time.
Katz further testified that on or about August 31 a union
meeting was conducted at that entity's headquarters, which
was attended by a number of employees. At the conclusion
of the session the union representative distributed authori-
zation cards and campaign buttons bearing the legend
"Vote Yes For Steelworkers" to the assemblage, and he
advised the men that he intended to file an election petition
with the Board's Regional Office on the following day. Ac-
cording to Katz. he immediately pinned the button on his
jacket and thereafter continued openly to wear it on his
person while at work, and he appended one on the muffler
of his tractor. While Katz contended that he was the only
employee who sported this decal on the job with regularity.
his testimony on this score is hardly supported by the testi-
monial utterances of James Bellina, a repacker employed at
the warehouse until November when he was discharged for
insubordination, who was called as a witness on behalf of
Katz explained that this lounge actually housed the union headquarters
However, there is absolutely no evidence on this record w hich even remotcl
suggests that Plant Manager Cooper was aware of hls happenstance.
' As chronicled elsewhere in this Decision, the two group leaders em
ployed by Respondent voted without challenge in a representation election
conducted by the Board on November 3 among Respondent's emplosees at
East Avenel
the General ('ounsel. Bellina reported that he had observed
Katz wear the button only on "a ew occasions." and Bel-
lina acknowledged that he and employee Dennis Dil.ossi
also wore them on their persons.
The parties stipulated that on September I the Union
filed a petition for an election with the Board's Regional
Office in Case 22 RC 7622: a hearing thereon was held on
September 25, and an election was conducted on November
3. The Union was successful in the balloting and thereafter
received a Board certification as the majority representative
of the employees at the East Avenel facility, including
group leaders.
Events abided until the morning of Friday. September
22. It is Katz' testimony that after punching in at approxi-
mately 8 a.m. in the warehouse he immediately proceeded
to the trailer to pick up his work assignments. Upon enter-
ing he noted the presence of group leader Ray Bell and
several employees, including James Bellina and Peter
Catano. According to Katz. Plant Manager Cooper was ab-
sent that entire week because he was attending a regional
conference called by Respondent in a distant locale and
therefore was not at the facility on September 22. Katz
thereupon proceeded to his assignment bin from which he
withdrew two bills of lading. One hill referred to a shipment
of liquid chemicals destined for a customer named Eaton
Allen. which was located in Brooklyn. New York. and car-
ried a shipment date of September 22 at an unspecified
time. The second bill bore the customer name of Chem-
Power a firm situated in Cedar Knolls, New Jersey. The
Chem-Power bill of lading, which was introduced into evi-
dence by the General Counsel. indicated that the delivery
was also scheduled for September 22 and clearly bore the
typewritten instruction: "Note. Delivery Before Noon." In
a box signifying the mode of shipment the name of a pri-
vate carrier. Keating, whose services Respondent also uti-
lized, was inserted. Turning to group leader Bell. Katz in-
quired, "I wonder which one I should do first?" and Bell
replied. "Do Eaton Allen first. They were supposed to have
a delivery there yesterday and we missed it. Make sure you
go there first." According to Katz. during Plant Manager
Cooper's absences he and the other employees looked to
Bell for shipping instructions and other guidance whenever
problems arose. Upon receiving these instructions Katz
opined that it "would make sense" to service Eaton Allen
first because that company was a very good account of Re-
spondent's and to avoid any complaint about lack of sup-
plies by that enterprises. In his testimony Katz initially de-
nied that the inscription "Note. Delivery Before Noon" or
the name of Keating appeared on the bill of lading for
C'hem-Power which he received that day. On cross-exami-
nation Katz then gave the curious response that "I do recall
seeing that and I recall not seeing that." According to Katz.
written delivery instructions appeared on his lading bills
prior to September 22 on almost a daily basis. and when he
asked Bell or Cooper about following them he received
word "about in every instance" to disregard the instruc-
tions. Katz then admitted that prior to that day Bell had
never told the driver to disregard written orders. Finally,
Katz once more changed gears and allowed as how on a
"few occasions" Bell advised the employee to "do the best
you can" in satisfying delivery schedules.
Continuing Katz' testimonial narrative, he asserted that
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he tarried in the trailer for 45 minutes after he reported at 8
a.m., loaded his vehicle, and departed the yard at 10 a.m. to
make his first delivery to Eaton Allen on Friday, September
22. However, his daily driver's report clearly demonstrates
that, contrary to his testimonial assertion, Katz actually de-
parted the yard at 8:50 a.m. Katz made the delivery to
Eaton Allen and then proceeded to Chem-Power, pulling
into the dock at the plant between 1:30 and 2 p.m. Katz
claimed that when he arrived he received no complaint
from that company's officials about his late arrival but
rather was called to task about improperly parking his
truck at the dock. In describing the scene when he appeared
at Chem-Power Katz acknowledged that "They weren't
prepared for the delivery at all" so he "first ... had to go
inside and help them find enough drums for the material
they ordered."
On Monday, September 25, Katz appeared at the repre-
sentation election hearing conducted at the Board's Re-
gional Office in Case 22-RC-7622 and was the only em-
ployee who testified in support of the Union's petition.
Katz further testified that on September 26 he was sum-
moned to Cooper's office. When he arrived Cooper an-
nounced that he had received a call from Respondent's
salesman who handled the Chem-Power account, that the
salesman reported that this customer had complained about
the late delivery on September 22, the fact that Respon-
dent's truck was improperly docked at its plant, and threat-
ened to cancel the account unless some disciplinary action
was taken against the driver. Cooper further reported that
the salesman asked what discipline he intended to mete out
to placate the customer, and Cooper informed Katz that he
had not made a decision at the time. Katz thereupon ex-
claimed that Bell had given him instructions to make the
delivery to Eaton Allen first, an order which Katz followed
because he believed it was ia the best interests of Respon-
dent to do so. Cooper replied that it was impossible for
Katz to have received such an instruction from Bell because
the group leader was not even at work on September 22.
and the conversation ended.
On September 29 Katz was again called to the plant
manager's office. In an ensuing conversation Cooper stated
that he had learned from Respondent's salesman that
Chem-Power's officials were furious over the September 22
incident and had threatened to cancel their account unless
some form of discipline was taken against the offender. Al-
though Katz repeated his explanation for his failure to
make a timely delivery to that customer, Cooper announced
that he had decided to punish Katz by suspending him for 3
days without pay to demonstrate to Chem-Power that Re-
spondent had taken care of the complaint. At this juncture
Cooper drafted a disciplinary suspension form which Katz
refused to sign. Katz protested that he had merely followed
Bell's orders and "couldn't believe that he [Cooperl was
doing this to me because a customer maybe got upset be-
cause we were late or whatever." When the discussion con-
cluded Katz retorted that he "would just lose personal re-
spect" for Cooper and left the office. On direct examination,
Katz emphatically denied that he had ever been previously
disciplined with suspension for contravening Respondent's
instructions. In doing so Katz demonstrated his lack of re-
gard for the truth, for he was forced to confess on cross-
examination that he had indeed been suspended on May 11
for his failure to obtain weight tickets for a delivery and
was warned that the next infraction would lead to his dis-
charge.
In his attempt to prove that Respondent's suspension of
Katz on September 29 for violating delivery instructions
was merely a pretext to cloak its design to punish him for
joining and assisting the Union in its organizational drive
and for having given testimony on behalf of the Union in
the representation proceeding, the General Counsel labored
at length to establish that group leader Bell, who allegedly
altered the delivery instructions on that day, was an agent
of Respondent whose actions in the regard were binding on
Respondent. I deem it unnecessary to resolve this issue be-
cause even were I to find that Bell did occupy this status I
am not convinced that Katz' testimony regarding the events
which transpired on September 22 is worthy of belief.
In the normal course of operations customer orders are
received in Respondent's sales office in Woodbridge, New
Jersey, and are then phoned into the East Avenel trailer
where the substance of the order is typed on bills of lading
by the office secretary. The secretary then reproduces the
name and quantity of the product bought, the name and
address of the customer, and any special handling instruc-
tions. When he is on duty Cooper makes the delivery as-
signments himself by placing the bills of lading in the driv-
ers' bins which are located in the trailer where he maintains
his office. While Respondent attempts to utilize its own
drivers, it also contracts for deliveries with common carriers
such as Keating when the need arises.
Cooper testified without contradiction and I find that on
Monday, September 18 he left work at the East Avenel
yard to attend a regional meeting of Respondent's manag-
ers at Rochelle Park. New Jersey, and did not return to the
jobsite until 5:30 p.m. on September 21. Not finding Bell on
duty. Cooper inquired of the office secretary into Bell's
whereabouts and learned that earlier that afternoon Bell
had accidentally splashed some sulphuric acid from one of
the storage drums on his chest and had rushed to the hospi-
tal for treatment. Cooper explained that when he is at work
at the facility, which is about 95 percent of the time, he
does the final scheduling of deliveries between 4 and 4:30
p.m. with the secretary for delivery either by his trucks or a
common carrier the next day.
Cooper's testimony is undisputed and I find that at 9:20
a.m. on September 21 the office secretary received the
Chem-Power order by phone and typed it on a bill of lad-
ing. This document reflected the customer's desire for deliv-
ery on September 22 before noon. Late that afternoon upon
his arrival at the trailer from Rochelle Park. Cooper sched-
uled the order to be dispatched by the Keating firm. On
September 20 Respondent had also received an order from
Eaton Allen fbor a delivery out of the ast Avenel yard on
September 22. Cooper reported for work at 8 a.m. on Fri-
day, September 22, and completed and then placed the Ea-
ton Allen bill of lading in Katz' bin which the driver ob-
tained shortly thereafter. After making other work
assignments Cooper noticed the ('hem-Power order, and
observing that Keating had been scheduled to make the
delivery before noon Cooper decided to give this assign-
ment to Katz in view of the fact that the latter had only one
scheduled delivery for that morning. (Cooper thereupon
ventured out onto the loading platform between 8:30 and
586
McKESSON CHEMICAL COMPANY
8:45 a.m. where he found Katz, and the plant manager
handed the Chem-Power bill of lading to him. It is Cooper's
testimony that when he turned over the document to Katz
the driver did not ask about any changes in the order of
deliveries, and Cooper did not direct any change.
Cooper further testified that on the afternoon of Septem-
ber 22 he received a telephone call from a salesperson at the
Woodbridge warehouse who reported that Chem-Power
had lodged a complaint against Katz because he had failed
to make the delivery before noon, had improperly backed
his truck into the loading area, and had refused to correct
the situation when asked to do so. As a result of this inci-
dent Chem-Power announced that it contemplated cancel-
ing its account with Respondent. When Katz returned from
his rounds at 4 p.m. on that day Cooper noted on the deliv-
ery form that Katz had not arrived at Chem-Power until
1:30 p.m. Cooper decided to question Katz about the mat-
ter, but Katz had already left work.
Cooper did not speak about the subject with Katz on
September 25, the next work day, because Katz had visited
the Board's Regional Office to give testimony in the repre-
sentation proceeding. On September 26 Cooper contacted
the Woodbridge branch manager to investigate further the
Chem-Power incident, and the manager reconfirmed that
Respondent had lost that firm's account because of Katz'
derelictions on September 22. Because Katz had left with a
delivery to New England on September 26 and did not re-
turn until the morning of September 28 Cooper testified
that he was unable to obtain Katz' side of the story in the
interim. On September 28 Cooper called Katz to his office
and inquired into the reason for Katz' failure to make the
Chem-Power delivery on time. Katz responded that he had
been instructed either by the office secretary or group
leader Bell to give preference to the Eaton Allen order on
that morning. Cooper thereupon contacted the secretary
who denied that she had altered the order of deliveries.
Because Bell was still on sick leave Cooper awaited his re-
turn on the following day.
On September 29 Cooper inquired whether Bell was re-
sponsible for ordering a change in the delivery priority for
Chem-Power on September 22, and Bell stated that he
knew nothing about it. Cooper accepted Bell's explanation
because he was aware that because of his accident on the
afternoon of September 21 Bell was not in the yard at the
time the bills of lading for the following day were drafted.
Cooper then summoned Katz and informed the latter of the
results of his investigation which led to the plant manager
to conclude that Katz had deliberately failed to obey Coo-
per's orders regarding the Chem-Power delivery. When
Cooper announced that he had decided to suspend Katz for
3 days the driver rejoined that he "did not recognize
McKesson discipline" and warned that if the plant manager
"followed through with this, [Katz] would lose all respect"
for Cooper, and that "this means war." Katz refused to sign
the disciplinary form and left the office. Rounding out Coo-
per's testimony, he denied ever observing any union buttons
on Katz' person and denied discussing Katz' appearance at
the representation hearing on September 25 with the em-
ployee.'
Cooper testified without contradiction that Respondent had experienced
between two and three Board elections at East Avenel In the past. and that
Respondent had never presi.lusl. been charged with v!olating the Act.
Group leader Bell testified that at approximately 3:45
p.m. on September 21. while loading drums of sulphuric
acid, some of the chemical spilled on his torso, and he im-
mediately left the yard for hospital care, not to return for
the rest of the day. Bell related that during the early part of
the week of September 18 Plant Manager Cooper had been
absent from the yard, and Bell issued delivery instructions
to the drivers. However, Bell posses:sed no authority to per-
form this chore while Cooper was on duty. It is Bell's testi-
mony that on September 21 he did not discuss the work
assignments for the following day because of the injury
which occasioned his departure tfor the hospital that after-
noon and had no conversations with Katz at any time that
day.
Bell further testified that he visited Respondent's facility
at 8 a.m. on September 22 to fill out an accident report and
collect his paycheck, and that Plant Manager Cooper was
present at the yard when he arrived. After spending about I
hour attending to these personal chores Bell left the prem-
ises. In his testimony Bell flatly denied that he saw Katz at
the yard on September 22. had given the employee any
instructions to disregard deliver) orders for that day, or had
even seen the Chem-Power bill of lading on that day.
On September 29 Bell visited Cooper's office while still
on sick leave. During his stay Cooper inquired whether the
group leader had given Katz any delivery instructions on
September 22, and Bell responded that he had not and
could not fathom why Cooper had made this inquiry. Con-
cluding his testimony, Bell reported that he had never ob-
served Katz wear a union button while at work and had no
input on Katz' suspension. However, Bell frankly acknowl-
edged that he was aware of Katz' union sympathies because
the former had been invited to the union meeting held prior
to the election due to his eligibility to vote in the scheduled
Board balloting.
I do not credit Katz' testimony that he had been in-
structed by Bell to alter the delivery instructions for Chem-
Power on September 22. not only because it is fraught with
internal inconsistencies, but also because it lacks corrobora-
tive support at salient junctures from the other witnesses
whose interests lay on his side of the barricades in this liti-
gation.
Thus, Katz claimed that Bell had instructed him to disre-
gard the prenoon delivery order to Chem-Power on Sep-
tember 22 because Cooper, whose instructions Katz and all
other employees unswervingly followed during his presence
at the facility, was absent that day. However, in an effort to
paint his suspension with antiunion overtones Katz then
made the surprising testimonial admission that Cooper was
indeed on duty on September 22 because, when the plant
manager mentioned that he expected to see Katz at work
on September 25 after the weekend break, the driver cor-
rected his supervisor by advising him that Katz would be
absent from duty on the latter date due to his attendance at
the Board's representation hearing. Moreover, Katz as-
serted that he had reported for work at 8 a.m. on September
22 and lingered in the trailer office for about 45 minutes,
after which he loaded his truck and left on his rounds at 10
a.m.. thereby attempting to infuse with plausibility his con-
tention that Bell was in the trailer office that morning long
enough to discuss anti change Katz' delivery instructions.
This attempt pro,ed abortive. for his daily driver's report,
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was submitted into evidence, clearly shows that he
departed the yard at 8:50 a.m. that morning. If Katz' testi-
mony is to be believed and he actually had spent 45 min-
utes in the trailer after reporting for work I deem it implau-
sible that he could have loaded his truck in only 5 minutes
prior to his departure.
In support of Katz' contention that Bell gave him deliv-
ery instructions and that Cooper was absent from the East
Avenel establishment on September 22 the General Coun-
sel elicited the testimony of Peter Catano, Dennis DiLossi,
and James Bellina. Catano, who had been employed by
Respondent as a repacker for more than 7 years, flatly de-
nied that he had seen Bell at the facility at any time on that
day. Although he initially testified that he did not observe
Cooper there either on that day, Catano recanted and al-
lowed as how he had noticed the plant manager on duty
that afternoon but not during the morning hours. However,
Catano then acknowledged that he had not visited Cooper's
trailer office between 8 a.m., when he reported for work,
until noon. DiLossi, a truckdriver who was on disability
leave at the time, testified that he went to the trailer office
before noon on September 22 to collect his paycheck. Dur-
ing his sojourn he encountered Cooper, with whom he en-
tered into a discussion regarding a new tractor which
DiLossi had acquired. James Bellina, another repacker who
was discharged by Respondent in November for inciting a
fist fight with Cooper and who was therefore hardly a disin-
terested observer, testified that he had entered the trailer
office at 7 a.m. on the morning of September 22 to obtain
his work orders. According to Bellina, he reported I hour
earlier than his usual starting time because Bell had been
injured on the previous day, and Bellina was substituting
for the injured group leader. However, Bellina's timecard
clearly establishes that the employees actually clocked in at
8 a.m. Bellina further testified that when he arrived in the
trailer he found Katz and Catano but not Bell. Sometime
between 8:45 a.m. and 9:30 a.m. Bell arrived to pick up his
paycheck. Bellina claimed that during Bell's stay he over-
heard a conversation between Bell and Katz pertaining to
deliveries. In Bellina's words, "there was two stops to be
made that day and I don't know the stops myself because I
don't drive or deliver, but I heard [Bell] tell [Katz] to do one
and then do the other. Which one he said, I don't know."
Bellina initially professed that he did not see Cooper at any
time that morning in the trailer. He then reported that he
had spent most of his time during that span on the dock
loading trucks and therefore had no opportunity to observe
whether Cooper was in the trailer on the morning in ques-
tion.
In sum, I do not credit Katz' testimony that he failed to
make a delivery to Chem-Power before noon on September
22 because he had received contrary instructions from
group leader Bell. On the basis of the credible evidence
before me I am convinced and find that having received his
written orders which plainly directed that the Chem-Power
delivery be completed before noon, Katz deliberately
chose to disregard these instructions and failed to arrive at
that customer's dock until 1:30 p.m. I find that in addition
to discomfiting the customer by the late arrival Katz also
improperly docked his truck, as he testimonially confessed,
and refused to realign the vehicle which was impeding
Chem-Power's business operations.
Nor am I persuaded that Katz' 3-day suspension from
work without pay was motivated by any antiunion consid-
eration. I have heretofore found that when Katz posted a
notice in the trailer office and was ordered by Cooper to
take it down unless the poster invited all employees of Re-
spondent to attend Cooper had no reason to, and did not,
know that this notice was of any different import than the
others which had previously been hung in that location by
an employees' grievance committee which had no union
affinity. The record demonstrates and I find that while Katz
claimed that he was the only union adherent who had regu-
larly worn a decal on his clothing supportive of the Union
James Bellina belied this assertion when he testified that
Katz had worn the decal only to "a few occasions," and
that he and Dennis DiLossi had also sported these buttons
on their persons while at work.
The only remaining indicia of Katz' union activities por-
trayed on this record stems from his attendance on Septem-
ber 25 at the Board's hearing on the Union's petition for an
election and his rendition of testimony on its behalf. In this
connection it is the General Counsel's apparent contention
that the timing of Katz' suspension on September 29 is sus-
pect inasmuch as it followed hard on the heels of his open
identification with the Union's cause. However, Cooper tes-
tified without contradiction and I find that on the afternoon
of September 22 he learned of Katz' failure timely to make
the delivery to Chem-Power and of the threat by that cus-
tomer to cancel its account with Respondent, and the plant
manager was unable to speak with Katz about this matter
because the latter had already left work. Katz was unavail-
able to Cooper on September 25 due to his attendance at
the Board proceeding and could not be reached for a dis-
cussion of the Chem-Power incident until he returned from
an out-of-state delivery on September 28. On the latter date
Cooper pressed Katz fbr an explanation of his reasons for
failing to make the customer delivery on time and, after
hearing Katz' explanation, undertook a further investiga-
tion to give the employee the benefit of any doubt. In light
of this backdrop I am not convinced that Katz' suspension
was triggered by Respondent's knowledge that he had given
testimony under the Act.
In short, I find that Katz was accorded a 3-day suspen-
sion from work without pay not because he had joined the
ranks of the Union or had given testimony in a Board pro-
ceeding but solely because he deliberately failed to heed
Respondent's delivery instructions which threatened the
loss of a customer's business. By so doing, I conclude that
Respondent did not violate Section 8(a)(3) or (4) of the
statute. I shall therefore order that the complaint be dis-
missed in its entirety.
ORDER 6
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
588