Mclane/Western, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 579 (N.L.R.B. 1985)

MCLANE/WESTERN, INC
McLane/Western , Inc. and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Local Union No. 435.
Case 27-CA-6288 -
25 September 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON.AND MEMBERS
DENNIS AND JOHANSEN • -
On 27 August 1980 the National Labor Relations
Board issued its Decision, Order, and Direction of
Election in this case and in a related representation
case (Case 27-RC-5848).1 The Board found that
the Respondent violated Section 8(a)(1) of the.Na-,
tional Labor Relations Act and interfered with' the
conduct of a fair representation election by coer-
cively interrogating and 'threatening its' employees -
before the election. In addition, the Board found
that, after the election, the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
employee Keith McFarland- because of his union
activities. The Board adopted the administrative
law judge's recommended Order directing the Re-
spondent to cease and desist, from these, or any
other like or related, unfair labor practices; to offer
Keith McFarland reinstatement and pay him back-
pay; and to post an appropriate notice.2
On 22 December 1983 the United States Court
of Appeals for the Tenth Circuit issued a decision
enforcing the Board's Order with respect to the
Respondent's preelection violations of Section
8(a)(1), but remanding the case for further proceed-
ings with respect to the postelection discharge of
Keith McFarland.3
Although the court was satisfied that McFar-
land's protected conduct in, connection with union
activities was a "substantial or motivating factor"
in his discharge, it found that the Board had failed
to make the required determination under NLRB v.
Transportation Management Corp.,4 "whether the
company would have discharged McFarland re-
gardless of any anti-union sentiment." 723 F.2d at
1460. Concluding that it could not fairly read the
Board's findings "to rule out the possibility that the
company could prevail on the defense that it
would have discharged McFarland even if he had
1 251 NLRB 1396 (1980)
2 The Board also set aside the election and directed a second election
in the representation case, which is not involved here On 8 December
1980 the Board issued an Order Denying Motion , denying the Respond-
ent's motion for reconsideration , amending the Direction of Second Elec-
tion , and substituting a new notice to employees for that attached to the
judge 's decision
' 723 F.2d 1454 (1983).
4 462 U S 393 (1983)
579
not engaged in protected 'activity,". the court- re-
manded the case for findings bn -that issue: Id.-at
1461.
- Following, the- ,court's remand, the `Respondent -
submitted a, statement, of, position, urging that the
Board should reevaluate . the administrative law
judge's findings of fact in the' original proceeding
in light of the guidelines established, in NLRB v.
Transportation Management -Corp., and Wright Line5
and should, thereafter absolve the, Respondent- of
any alleged violation of Section-'8(a)(3).
-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. Respondent's statement of po
sition and has decided that the Respondent failed
to' sustain its -burden of establishing that it would
have discharged employee Keith McFarland for le-
gitimate reasons , absent his protected union activi-
ties:
In NLRB v. - Transportation Management Corp.,
the Supreme Court held that where it has been
shown that an employer "has acted'o>_it•of a motive
that is declared illegitimate by the. statute[, i]t is fair
that he-bear the risk that the influence' of legal and
illegal motives cannot be separated .. . . ." 462'
U.S. at 403. The Court therefore approved the
Board's determination that if the General Counsel
establishes that "a discharge is in any Way motivat-
ed by a desire to frustrate union activity," the
burden shifts to the employer to show that the em-
ployees would have been discharged for valid rea-
sons in any event.6
In the present case, as the Respondent, acknowl-
edges, the Tenth Circuit was satisfied that McFar-
land's protected union conduct was a substantial or
motivating factor in his discharge. The only issue
remaining to determine in this, remand proceeding
is whether the Respondent has established, as an af-
firmative defense, that it would have discharged
McFarland anyway for a valid reason apart from
his protected union conduct.
McFarland was discharged allegedly for picking
up a broken saltine cracker from a crushed case on
the warehouse floor and eating it while continuing
his work. As noted, the Respondent's initial con-
tention that eating the cracker was the sole reason
for McFarland's 'discharge was rejected by the ,
court, which determined that the Respondent's an-
tiunion sentiments were a substantial or motivating
factor in the discharge. In this remand proceeding,,
' 251 NLRB 1083 (1980), enfd on other grounds 662 F 2d 899 (1st.Cir
1981), cert . denied 455 U S 989 (1982)
' 462 U S at 399 -
276 NLRB No. 63
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent urges the affirmative defense that
McFarland would. have been discharged for eating
the cracker anyway, absent union animus. The' Re-
spondent relies on its policy against pilferage and
on its rule that "[a]ny employee found guilty of any"
act of dishonesty will be subject to' immediate dis-
charge without prior notification."7
Briefly, the credited or undenied record evidence
establishes the following facts. The Respondent
sells and distributes food and related grocery prod-
ucts. McFarland - was'a-forklift operator in the Re-
spondent's Denver, Colorado warehouse. On 10
July 1979, as McFarland was moving stock, he
came upon a case of saltine crackers on aisle J that
had apparently been run over by a forklift on the
preceding shift. The case was crushed so that only
one corner remained upright. McFarland picked up
a broken cracker -from -the case and began eating it
while he continued working. In the meantime, em-
ployee •Ed Noll,. who had' apparently seen McFar-
land with the -cracker; reported. to Warehouse
Manager Stephen Jacobson: "You know, you are
always getting-on our case about pilfering and why
don't- you take a walk down to aisle J[?]"8 , . -
Manager Jacobson . went to aisle J, saw McFar-
land, and asked. what he was eating. When McFar-
land- answered that it. was a cracker from the
crushed case in the aisle, Jacobson picked up the
case and. told McFarland to come with him. They
went to Jacobson's office, where they discussed the
incident briefly with McFarland's supervisor, Pat
Johnson. Jacobson -reported the incident to Divi-
sion. President Neil McCarty, who met with
McFarland and suspended him when he admitted
eating the cracker. McCarty told McFarland that,
before a decision was made .whether to discharge
him, it would be. necessary to check to determine,
what the Respondent's past- practice had ,been in
such circumstances.
The next day,. -11, July, the Respondent dis-
charged McFarland, after he refused to resign. The
reason given for the dischargedischarge was "eating prod-
uct-pilfering." President McCarty,, Manager Ja-
cobson, and Personnel Manager John Schwartz
participated in the, discussions leading to the dis-
charge. '
McFarland testified that the case of crackers
from which he took and ate a broken cracker was
so crushed that it was unsalvable and that goods in
that condition were . customarily - discarded in the
trash dumpster at the end of aisle J. Manager Ja-
r As the Respondent points out , employees were informed of the rule
and of the need to control pilferage
8 When the Union's campaign began in March 1979, No11 had reported
to Manager Jacobson that union authorization cards were being distribut-
ed among the employees , prompting Jacobson to ask McFarland if he
had received a card
cobson, who had ample opportunity to check the
condition of the case, did not dispute McFarland's`
testimony -that it was unsalvable. To establish its
Wright Line defense, the Respondent must there-
fore show that it maintained a rule requiring the
discharge of an employee ' for eating some demon-
strably unsalvable goods before they were thrown
out. We conclude that the Respondent has not
made such a showing.
On its face, the Respondent's' rule authorizing
discharge for "any act of dishonesty" does not
clearly apply to the eating of a broken and unsalea-
ble cracker. The judge found that "McFarland was
sincere in his obvious bewilderment" about his
action being characterized as stealing . None of the
instances cited by the Respondent where employ-
ees were terminated for stealing involved taking
demonstrably unsalvable goods. The Respondent
cited-two instances where its. rule against stealing
had. been applied in the year and a quarter before
McFarland's.discharge.
In the first instance, in May 1978 an employee
was caught when candy bars fell from his coat
pocket as he was leaving the warehouse on the
way .to his car in the parking lot.. The employee
claimed that the department manager had brought
the candy bars into the department.9 But the de-
partment manager denied that he had done so,
management did not credit the employee's explana-
tion, and the employee resigned.
The second instance occurred, in May 1979,
when a new driver reported that driver Jim Pardoe
had proposed that they divide between themselves
some groceries from a truckload: Several weeks
-before, two employees had reported seeing Pardoe
taking product out of the trailer of one of the Re-
spondent's trucks' and loading it into a pickup truck
that was later identified as Pardoe's by the license
number. Management confronted Pardoe with the
two reports, and -he subsequently -resigned when
given the option of resigning or being dis-
charged.10 -
The Respondent also cited two applications of its
rule against stealing in -the 3 < months following
McFarland's discharge. On 12 July 1979, the day
after McFarland's discharge, an employee was seen
eating candy in the candy department. The em-
9 Complimentary products that the Respondent receives from manufac-
turers are sometimes distributed to the employees
10 Pardoe first denied loading goods from the Respondent's truck trail-
er into his pickup truck and then claimed that he had purchased the
goods He admitted that he "might have" offered to split some groceries
from a truckload with another driver and that he had taken product from
the Respondent' a few times , but claimed that the product taken was
always damaged The record does not show any corroboration for Par-
doe's claims
MCLANE/WESTERN, INC. . , -f 581
ployee admitted that he had eaten the candy, of-
fered no explanation, and resigned the next day.
The last incident cited by the Respondent oc-
curred in September 1979. Three damaged boxes of
animal crackers had been set aside in an-office to
be sent to the salvage department.. Warehouse
Manager Jacobson noticed that one of the boxes
was missing and discovered an empty animal
cracker box in the trash can. A supervisor admitted
that he had eaten the box of animal crackers and
that he knew they were to be sent to the salvage
department. He resigned the next day at manage-
ment's request.
In all the above instances, there was no-showing
that the -goods taken were 'not salvable. Although
driver Jim Pardoe claimed to have taken only
"damaged" goods (see fn. 10 below), he did not
claim that the foods were -unsaleable. Moreover,
there, was no way to verify even the claim that the
foods were damaged_or Pardoe's further claim that
he had purchased the goods he was seen loading
from the Respondent's truck trailer into his pickup
truck. The Respondent could justifiably have
viewed both claims :with some skepticism; given
Pardoe's `initial denial -and 'subsequent admission- '
that he had loaded goods from 'the truck trailer
into his pickup truck, as well as his admission that-
he "might have" offered to split groceries from a
truckload with a fellow driver. Neither the em-
ployee caught removing candy bars from the ware-
house in his coat pocket nor the employee ob=
served eating ' candy in the candy department
claimed that the candy they took was unsalvable.
Rather, the former made the discredited claim that
the department manager had brought the candy
into the department and the latter merely. acknowl-
edged that he had eaten the candy without any jus-
tification. Finally, the supervisor who ate the box
of animal crackers did not claim that it was unsal-
eable and admitted that, he knew it was to be sent
to the salvage department. By contrast, undisputed
testimony in. the present case establishes that
McFarland ate a broken cracker from a case that
was so crushed only one corner remained upright;
that goods in that condition were customarily put
in the trash-dumpster at the end of the aisle; and
that Warehouse Manager Jacobson saw and had
full opportunity to inspect the damaged case. I t
11 When Manager Jacobson was asked at the hearing, "Was a portion
of that case, any or all of it, salvag [e]able" he replied, "I couldn't give
you an answer on that " Accordingly , McFarland 's testimony that mer-
chandise in that condition would be "thrown into the trash dumpster"
and "end up in the trash" is undenied Although President McCarty testi-
fied initially that "[a]lmost everything that we have is salvag [e]able, with
the exception of lunch meats eggs, [and] flour where they get
infestation or problems with it," he subsequently acknowledged that a
crushed case of saltine crackers also might be thrown away as unsaleable
Moreover, management 's reaction at the time of
the incident belies the claim that the Respondent
had a hard-and-fast rule unequivocally requiring
McFarland's discharge. President McCarty admit-
tedly told McFarland it would be necessary to
check the Respondent's past practice before decid-
ing whether to 'discharge -him, and to determine
what had happened to other employees in similar
circumstances. Had the Respondent's rule been as
unequivocal as it claims, there would have been no
need to check its; past practice. 12 Furthermore, as
discussed above, past applications of the Respond-
ent's rule are distinguishable from the circum-
stances present here. We therefore conclude that
the Respondent has not met its burden, of showing
that McFarland would have been discharged
absent his protected union activity. Accordingly,
since the Respondent has failed to establish an af-
firmative defense in response to the proof that
McFarland's protected union activity was a moti-
vating factor in the Respondent's decision to dis-
charge him, that discharge violated Section 8(a)(3)
and (1),of the Act. ,
We reaffirm our original Order, 251 NLRB 1396
(1980), adopting the judge's recommended Order as
it relates to the above violation. with minor modifi-
cations. 13 In , addition we reaffirm, with minor
modifications, the relevant provisions of the notice
to employees attached to our Order Denying
Motion, dated 8 December 1980, denying the Re-
spondent's motion for reconsideration in this case.
ORDER - '
The National Labor Relations Board reaffirms its
original Order, 251 NLRB 1396 (1980), adopting
the relevant provisions of the recommended Order
of-the administrative law judge ,as modified below
and orders the Respondent, McLane/Western, Inc., -
Denver, Colorado, its officers, agents, successors,
and assigns ,-shall
1. Cease and desist from
(a). Discharging or otherwise discriminating
against employees with regard to hire or tenure of
employment or any term-or condition of employ-
ment for engaging in activity protected by Section
7 of the Act.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
12 The Respondent claims that its rule requires the discharge of an em-
ployee who takes an item of any value, no matter how trivial - -
13 Provisions of the Order not related to the above violation have
either already been enforced by the United States Court of Appeals for
the Tenth Circuit, in the prior review proceeding, or were not before the
court in that proceeding and thus are not before us in this remand pro-
ceeding
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of the rights guaranteed them by Section 7
of the Act. -
2. Take the following affirmative action neces-'
sary to effectuate the policies of the Act.
(a) Offer Keith Sterling McFarland immediate'-
and full reinstatement to, his former job, dismissing, •
if necessary, anyone who may have been hired or
assigned to perform the work that he had been per-
forming prior to '1 f July 1979 or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision. 251 NLRB at 1405.
(b) Remove from its files any reference to the
unlawful discharge and notify Keith Sterling
McFarland in writing that this has been done and •
that the 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 copy-
ing, all payroll records, social security payment •
records, timecards, personnel' records and reports,
and all other- records necessary to analyze the
amount of backpay due under the terms of .this
Order.
(d) Post at its Denver, Colorado facility, copies
of the' attached notice marked "Appendix." 14
Copies of the notice, on forms provided'by the Re-
gional Director for Region 27, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent -immediately
upon receipt and maintained for 60 consecutive
days in conspicuous - places including all places
where notices to employees are customarily posted.
Reasonable steps, shall be' taken by McLane/-
Western, Inc. to ensure that the notices are not al=
tered, 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 the Respondent has taken to comply.
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 ordered 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 representa-
tives of their own choice -
To act together for other mutual, aid or pro- -
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge,or otherwise discrimi-
nate against you for engaging in activities on behalf
of the International Brotherhood 'of Teamsters, -
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 435, or any other labor orga-
nization. •
WE WILL NOT in any like or related manner
interfere • with, restrain, or coerce you in the exer-'
cise of the rights guaranteed you by Section 7 of
the Act:
WE WILL offer Keith Sterling McFarland imme-
diate and full reinstatement to -his former job, dis-
missing, if necessary, anyone who may-have been
hired -or assigned to perform the work, which he
had been performing prior to the time that he was
terminated on 11 July. 1979 or, if that job no longer
exists, to a substantially equivalent position,-- with-
out prejudice to his seniority-dr any other rights or
privileges previously enjoyed and WE WILL make
him whole for any loss of earnings and other bene-
fits resulting from his discharge, less any net inter- -
im earnings , plus interest.
WE WILL notify Keith Sterling McFarland that
we have removed from our files any reference to
his discharge and that the discharge will not be
used against him in any way. •
14 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " •
MCLANE/WESTERN, INC.