Miesel Co.Download PDFNational Labor Relations Board - Board DecisionsAug 25, 1978237 N.L.R.B. 1192 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Miesel Company and Robert Radyko. Case 7 CA- 14596 August 25. 1978 DECISION AND ORDER BY CHAIRMAN FANNIN(; AND Mi MBI RS JFNKINS AND PENtiLLO On July 10, 1978, Administrative Law Judge Mar- vin Roth issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a 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 I 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 Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. The General (Counsel's m tion Ito correct official records is hereby granted. DECISION STATEMENT OF IHF CASE MARVIN ROTiH Administrative Law Judge: This case was tried at Detroit, Michigan on May 4, 1978. The charge was filed on November 10, 1977, by Robert Radyko, an indi- vidual. The complaint, issued on December 30, 1977, alleg- es that The Miesel Company (herein the Company or Re- spondent), violated Section 8(a)(1) of the National Labor Relations Act, as amended. The gravamen of the com- plaint is that the Company allegedly denied union repre- sentation to Radyko at interviews which he reasonably be- lieved might result in discipline. The Company's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record in this case ' and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments of counsel and the briefs submitted by General Counsel and by Respondent, I make the fol- lowing: FINDINGS OF FACT The Company, a Michigan corporation, maintains its principal office and plant at Detroit, Michigan, where it is engaged in the wholesale sale of institutional foods and related products. In the operation of its business, the Com- pany annually ships products valued in excess of $50,000 from its Detroit plant to points located outside the State of Michigan. The Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Local 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. The Company and the Union are parties to a collective-bargaining contract, effec- tive from June 20, 1976 to June 20, 1979, covering an ap- propriate unit of employees. The contract contains a griev- ance and arbitration procedure which provides, inter alia, that any employee may file a grievance as to his discharge, suspension or warning notice. The contract, and the Com- pany's work rules for its driver and warehouse employees (which were approved by the Union), provide, in sum, that an employee may be discharged for theft or other dishon- esty without prior warning or reprimand. Robert Radyko was employed at the Detroit plant as a truckdriver and was covered by the collective-bargaining contract. Three other members of Radyko's family were also employed at the Detroit plant: his father-in-law, Gor- don Mullins: his brother-in-law, Robert Mullins, who was a plant steward; and a cousin, Frank Panetta, who was the Union's driver-steward. As these facts indicate, Radyko did not have to look far to obtain advice or assistance on job-related matters, or with respect to his rights as a union- represented employee. On September 8, 1977,2 Radyko re- signed from his job with the Company. Ralph Miesel, who is a vice president and assistant to the president, and the son of Company President G. Edward Miesel, was the Company's principal witness with respect to the events which culminated in Radyko's resignation. For reasons which will be discussed, I have credited Miesel's testimony, and as his testimony is dispositive of the merits of the case, I am recommending that the complaint be dismissed. The following is a summary of Miesel's testimony: On August 31, Miesel received a tip that indicated that a com- pany driver might be improperly selling company mer- chandise to the proprietor of a restaurant known as Gar- den of the East, in Fowlerville, Michigan. Miesel subsequently received information which indicated that the driver was Robert Radyko. On the afternoon of Wednes- day, September 7. Miesel, acting pursuant to the advice of G'eneral ( ounsel's mlotion to correct official record is hereby granted Ilosver. the word "truth" rather than "substance" would more accurately reflect mn ruling, which was apparently understood by the parties. 1 All dates herein are In 1977 unless otherwise indicated. 237 NLRB No. 188 1192 THE MIESEL COMPANY company labor relations consultant Richard Travis, and accompanied by company buyer Rem Purdy. drove to the restaurant and waited in the parking lot from about 6 p.m. until about 8:30 p.m., when Radyko pulled up in his truck. Radyko went into the restaurant, came out. took a large case from the truck, placed it in a garage in back of the restaurant, and returned to the restaurant through the kitchen door. Miesel and Purdy then pulled alongside the truck. When Radyko emerged from the restaurant, Miesel signaled him to come over. Miesel asked him whether this was a scheduled stop, and whether he had an invoice for the case. Radyko answered no to both questions. Miesel told him to get the case, which contained garbage can lin- ers, and he did. Radyko said he was sorry, but offered no explanation. Miesel looked inside the truck, and asked about a case of shrimp in the freezer. (Radyko was en route back to the terminal, and there were only four or five items in the truck). Radyko answered that he had not been able to locate the case at the intended delivery stop. Miesel said he would drive the truck back to the terminal, while Purdy followed, but Miesel had difficulty in operating the truck. He proceeded to a rest area and stopped. Miesel asked Radyko why he was selling merchandise at the restaurant. Radyko answered that the had difficulty in making ends meet because he had to pay alimony to his former wife. He gave no other explanation, and continued to apologize. Miesel told him to drive the truck, while Miesel and Purdy followed. Subsequently, Miesel signaled Radyko to pull over at a restaurant known as the Roman Terrace. Miesel then directed Radyko to turn over company cash and in- voices in his possession, and to place the remaining mer- chandise in Purdy's car. Miesel told Radyko to return the truck to the plant, punch out, and to come to his office at 7 a.m. the next day to discuss the matter further. Rem Purdy, who was presented as a company witness, substan- tially corroborated the testimony of Miesel concerning the foregoing events. Miesel further testified that he attempted without suc- cess to contact consultant Travis. Miesel telephoned his father and told him that there would be a meeting about the matter the next day, at 7:30 a.m. Miesel was about to go home, but decided to go to the plant in order to make sure that Radyko had returned the truck. He determined that the truck had been returned, but to his surprise he found that Radyko was still at the plant. Radyko and stew- ard Mullins were together in an office, and one of them was speaking on the telephone. Miesel went to his office, again tried unsuccessfully to reach Travis, and was having a cup of coffee when Radyko came up and asked to speak to him. Radyko again apologized, and asked Miesel to re- consider. Miesel said that he could not change the facts which he saw. Radyko asked him what he should do. Mies- el said he had violated the rules, but that it was not his (Miesel's) decision to make, that they would discuss the matter at 7:30 the next morning, but that if Radyko was not agreeable to this he could resign. Miesel pointed out that either way his family would know what had happened. At no time did Radyko ask for or mention union represen- tation. After Radyko left, steward Mullins came in to see Miesel. Mullins said that Radyko was wrong, and asked Miesel to reconsider. Miesel said there would be a meeting the next morning, and the, went on to discuss other mat- ters. Mullins did not ask to be or sas that he would be present at the meeting. After Mullins left. Miesel again tried unsuccessfully to reach Travis. Miesel testified that he arrived at the plant about 7:25 a.m.. and learned from his father that Radyko had re- signed. It is undisputed that Radyko in fact did not show up at the plant that morning, but instead telephoned the plant and told company President Miesel that he was re- signing. RadNko testified that he called the plant at about 8:30 a.m., that President Miesel answered the phone, and that Radyko said that he would resign rather than face prosecution, that he was sorrN if he did anything wrong, and that he wanted to save his family from embarrassment. President Miesel was not presented as a witness. However, Ralph Miesel, in his testimony, categorically denied that he ever said anything about prosecuting Radyko. Miesel testi- fied that the Company had never prosecuted an employee. Steward Frank Panetta, a General Counsel witness, testi- fied that he arrived at the plant for work between 7 a.m. and 7:30 a.m., went to company President Miesel's office to find out what happened, found him on the phone. and when Miesel hung up, he told Panetta that Radyko had resigned. In light of this testimony. it is evident that Rad,- ko called before 7:30 a.m. Ralph Miesel further testified that upon informing con- sultant Travis of Radyko's resignation, Travis said that there should be a resignation letter for the record. Travis prepared such a letter and Miesel telephoned Radyko at his home, asking him to come to the plant at 4:30 that afternoon, without telling him the reason. Radyko agreed to be there, and he signed the form at the appointed time. The form provided, in substance, that Radyko was allowed to quit "as a means of settlement" and that in consider- ation of being allowed to quit, he was releasing the Compa- ny from any liability arising out of the events of September 7. The form said nothing about Radyko's potential liabili- ty: however, Radyko testified that Miesel said that if he signed the form he would not be prosecuted. As indicated. Miesel denied ever making such a statement. Radyko testi- fied that after Miesel called, he tried to reach steward Pan- etta, but that Panetta was already on the road. Steward Mullins was in the plant: however, Radyko testified that he did not tell Mullins about the afternoon appointment be- cause he thought Miesel might be offering to reinstate him. Radyko, Mullins, and Penetta testified as the principal witnesses for General Counsel. Their testimony contained serious inconsistencies and improbabilities which cast doubt on the accuracy of their version, or more correctly, versions of the events which began on September 7. With respect to his presence at the Garden of the East Restau- rant, Radyko testified vaguely about an event which had allegedly occurred some 2 weeks earlier, when the restau- rant proprietor stuck his head out the door at a time when a suspicious looking character was standing near Radyko's truck, and thereby supposedly prevented a robbery. There is no evidence that Radyko ever reported this alleged inci- dent, and his immediate supervisor, James Hogan, testified without contradiction that he had never been told about it. Radyko testified that on September 7. in gratitude for being saved from a possible robbery, he detoured off his 1193 DECISIONS OF NATIONAL LABOR RELtATIONS BOARD regular route in order to offer the proprietor a container of trash can liners. According to Radvko, the proprietor said that he did not use liners. According to Radyko. the pro- prietor said that he did not use liners, but would accept them anyway. It is not necessary for me, in determing the merits of the present case. to decide whether the Company had just cause to terminate Radyko. However. Radyko's explanation for his presence at the restaurant, which was given on his direct testimony, raises credibility questions which must be considered in resolving the conflicting and crucial versions of Radyko and Miesel about the events after they returned to the plant. I find it unlikely that Ra- dyko would have detoured off his regular route on the pos- sibility, of which he could not even be sure, that the propri- etor would be interested in accepting a gratuity because of an unreported incident. I find it even more unlikely that if. as indicated by Radyko's testimony, it was a spontaneous gesture on his part, that Miesel would have had correct reason to believe that Radyko was stopping at the restau- rant that evening? If Radyko had reason to detour from his route, it would have been to deliver the case of shrimp which he allegedly was unable to locate, but which Miesel had no difficulty in spotting upon looking into the truck.4 More serious, however, are the contradictions among the testimony of Radyko, Mullins. and Panetta concerning the events after Radyko and Miesel returned to the plant. Ra- dyko testified that before their return, Miesel would not give him a chance to explain, but that when they stopped at the Roman Terrace, Miesel told him to drive the truck back to the plant and meet him in his father's office. Radv- ko testified that he returned to the plant between 10:30 p.m. and II p.m., but did not speak to anyone on the way to President Miesel's office. Radyko later qualified this tes- timony, stating that he telephoned his wife, but was not sure whether this was before or after he met with Miesel, or whether steward Mullins was with him when he made the call. According to Radyko, he met alone with Ralph Mies- el. Miesel said that Radyko was in serious trouble, and that he told his father that he caught Radyko stealing. Radyko asked if he should have union representation. Miesel alleg- edly answered that it was not necessary because the Union was not involved, it might hurt or embarrass Radyko's family, and if the Union were involved, Radyko might be prosecuted, but that Radyko could voluntarily quit. Miesel told Radyko to leave the plant, and to return at 8 o'clock the next morning, but gave no reason. However, Radyko subsequently testified that Frank Panetta was to be there at 8 a.m., "because he is my steward." Radyko testified that after leaving Miesel's office he saw Robert Mullins, and told him that he thought he was in trouble because he gave some liners away, adding that Miesel gave him the option of resigning or facing possible prosecution, and had direct- ed him to leave. Radyko asked Mullins what he should do, and Mullins answered that if Miesel told him to leave the 3 In slew of the questionable role of the proprietor in this matter. I hase not drawn any adverse inference from the failure of either side to present him as a witness. 4 In light of these findings, it is unnecessary for me to determine Whether and to what extent the Company had a practice of permitting its drivers to give away small gifts of merchandise. usually a case of fruit juice, because of assistance rendered at a delivery point or in an on-the-road emergency. plant, he should do so. Radyko testified further that after he arrived home he received a call from Panetta, who wanted to know what was going on. Radyko testified that he did not know how Panetta learned that there was a problem. but assumed that Mullins told him. Mullins testi- fied that he did not see Radyko make any telephone calls at the plant, that after Radyko left, he went to Miesel's office and discussed the Radyko matter with Ralph Miesel, and that Miesel said he had given Radyko an ultimatum to quit or be discharged, but said nothing about a meeting the next morning. Mullins testified further that after leaving Miesel's office at about 11:30 p.m.. he first contacted Pan- etta. However, Panetta testified that at about 11:30 p.m., he received a call from a steward (either Mullins or one "Leo", he could not remember which). The steward said there was a problem. that Radyko had been suspended, and that he was in Miesel's office. The steward then put Radyko on the phone. Radyko said that Miesel had fired him for giving away garbage liners. Penetta testified that he told Radyko to go home and not to talk to anyone, and that he (Panetta) would be at the plant at 7:30 the next morning, but that no meeting was mentioned. Panetta testi- fied that it was his understanding that the steward and Radyko were calling him in his capacity as driver-steward. Whichever, if any, of these versions is followed, there is no evidence that prior to his resignation, Radyko asked for or was given any advice from a union representative as to whether he should resign or meet with Miesel on Septem- ber 8. Additional questionable testimony was presented by Ra- dyko and Panetta concerning an alleged written grievance by Radyko over the circumstances of his termination. Ra- dyko testified that on the night of September 8 he wrote two grievances. One related to an alleged denial of vaca- tion pay, and the other to the circumstances of his termina- tion. Radyko testified that he gave one to Mullins and the other to Panetta, but that the second grievance somehow was misplaced, and that with the help of another employee he rewrote the second grievance at a grievance meeting between the Company and the Union on September 27. Panetta testified that he received only the second grievance from Radyko, that he placed it in a locked filing cabinet, but was subsequently unable to locate it. Panetta testified that he filed away the grievance because he saw no need to present it after Radyko quit. This explanation does not make sense, because the circumstance of his resignation presumably constituted the very subject matter of the grievance. Although Radyko allegedly rewrote his griev- ance. even this alleged document was not identified or of- fered in evidence to corroborate his testimony. I credit the testimony of company labor relations consultant Travis, who testified that the Company was presented only with the grievance over vacation pay. that such grievance was presented at the September 27 meeting, and rejected by him as being untimely filed, but that following another meeting on November 8, the Company agreed to give Ra- dyko the alleged accumulated vacation pay.5 I further the contract pros ides that A ritten grievances must be presented within 10 diss after the aggrieved has knowledge of the occurrence complained of. Travis testified that when he rejected the grievance. the union representa- 1194 THE MIESEL COMPANY credit the testimony of Travis that the matter of Radyko's termination was first raised at the November 8 meeting, when the Union's attorney adivsed Radyko that he could go to the NLRB if he wanted. Radyko filed the present charge on November 10. As indicated, in light of material inconsistencies and im- probabilities contained in the testimony of General Coun- sel's principal witnesses, I have credited the testimony of Ralph Miesel. I find no comparable defects in the testi- mony of the Company's witnesses, or other significant rea- son to disbelieve Miesel. The fact that Ralph Miesel was unable to contact consultant Travis on the evening of Sep- tember 7, does not evidence that Miesel did not intend to have a meeting about the matter the next morning. RadNko conceded in his testimony that Miesel requested his pres- ence the next morning, and that he (Radyko) expected steward Panetta to be present. Moreover, Travis testified that on the afternoon of September 7, he told Miesel that if he did not hear from Miesel, he would be at Miesel's office the next morning at 7:30 a.m. Even in the absence of such an arrangement, it is unlikely that a competent labor rela- tions consultant would not have promptly checked to find out the result of his plan of action. In fact, Travis came to the plant at 7:30. 1 also do not attach significance to minor discrepancies on insignificant matters between the testi- mony of Miesel and that of Rem Purdy, concerning the long chain of events which occurred on the evening of Sep- tember 7. Even on the basis of Radyko's own testimony, which I have not credited, the present case comes close to the line delineated by the Supreme Court in N.L.R.B. v. J. Wein- garten, Inc., 420 U.S. 251 (1975). 6 That testimony indicates tives left the room and returned with a freshly written gnevance dated Sep- tember 15. whereupon everyone broke into laughter In Certified Grocers of California Lid. 227 NLRB 121I. 1212 13 1977) the Board summed up the holdiag of K4eingarten as followss The Supreme Court in 14 eingurten cited with approvsal the Board's decisions in Qualir, Manufacturing Companm and Mobhil Oil Corpral nion, indicating that the Board had set forth in those cases the basis of the statutory right of an employee to refuse to submit without union representation to an interview which he reasonably fears mas result In his being disciplined The Supreme Court. citing relevant language In Mobile and Quality found that (1) the right inheres in the Section 7 guarantee of the right of employees to act in concert for mutual aid and protection; (2) the right arises only in situations where the employee requests representation, i.e.. the employee may forgo his guaranteed right and. if he prefers. participate in an interview unaccompanied by his union representative; (3) the employees' right to request representa- tion as a condition of participation in an interview is limited to situa- tions where the employee reasonably believes the investigation will re- suit in disciplinary action: (4) exercise of the right may not interfere with legitimate employer prerogatives and the employer need not Justi- fy his refusal and may leave to the employee the choice between having an interview unaccompanied by his representative, or having no inter- that when Radyko left the plant on the evening of Septem- ber 7, he understood that the Company would make its final decision the next day, when Panetta would be present, that Miesel did not interrogate Radyko at the September 7 meeting, and that Radyko had an opportunity to, and did consult with Mullins and Panetta, but nevertheless made an independent decision to resign. However, having credit- ed Miesel. it is unnecessary for me to resolve the case on that basis. I find, in light of the credited testimony of Mies- el and the admissions by General Counsel's witnesses, that Radyko consulted with one and possibly two stewards be- fore he voluntarily saw Miesel and attempted to persuade him to head off a possible discharge. If Radyko were con- cerned about union representation, he probably would have asked Mullins to accompany him. However, he did not do so. When his effort failed, Radyko made an inde- pendent decision to resign. probably to avoid embarrass- ment to his family. Radyko further acted independently when he agreed to sign a resignation form, although he could have sought the assistance or advice of Mullins. In sum, the Company did not deny or interfere with Radyko's statutory right to union representation, and therefore the complaint must be dismissed. CONCLoSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor prac- tice alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. view and foregoing any benefits that might be derived from such Inter- sler: and I5) the emploser has no duty to bargain with any union representative who may be permitted to attend the investigatory Inter- siew. JFn nl omited In Soutrheietern Bell Telephone (£ompanr. 227 NLRB 1223 (1977). the Board further held that "tlhe Employers' threat that the exercise of the right to representation would lead to more severe discipline or that the employees' fate would be In more capricious and hostile hands is no less interference and restraint than an outright denial of his right." In the event that no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and Order herein shall, as provided In Sec 102.48 of the Rules and Regulations. be adopted by the Board and become its findings. conclu- sions. and Order. and all objections thereto shall be deemed waived for all purposes 1195 Copy with citationCopy as parenthetical citation