New York Telephone

National Labor Relations Board - Board Decisions

Dec 14, 1990

300 N.L.R.B. 894 (N.L.R.B. 1990)

894
300 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends that the General Counsel’s brief is not, in fact,
in support of the judge’s decision, but an attempt to reargue the General Coun-
sel’s entire case, including the portions decided in the Respondent’s favor (and
to which the General Counsel did not file exceptions). The Respondent argues,
therefore, that the Board should reject the General Counsel’s brief as inappro-
priate. We find no merit to this contention.
2 We find no merit in the General Counsel’s motion to strike the Respond-
ent’s response brief, and we deny the motion. We also deny the General Coun-
sel’s alternative request for leave to file an answering brief, because we find
that the General Counsel’s brief in support of the judge’s decision adequately
sets forth the General Counsel’s position with respect to all the issues raised
in the Respondent’s exceptions.
3 See Wright Line, 251 NLRB 1083 (1980), approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
4 The Respondent contends that DTA payments are made only when an em-
ployee is transferred at the Respondent’s behest, and that Fouhy was not enti-
tled to receive such payments because he was transferred at his own request.
5 The judge stated that this incident occurred on September 26, 1986. Her
error is inconsequential.
New York Telephone, a NYNEX Company and
George Fouhy. Case 2–CA–22915
December l4, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 26, 1989, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision. The Respondent filed a response
brief,1 and the General Counsel filed a motion to strike
the Respondent’s response brief.2
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to rehire
George Fouhy because he had filed a grievance. We
find, contrary to the judge, that the Respondent has
shown that it would have refused to rehire Fouhy even
if he had not filed the grievance. We therefore find
that the Respondent lawfully refused to rehire Fouhy,
and we shall dismiss the complaint.3
Fouhy was employed by the Respondent for some
15 years. He resigned in November 1986 to pursue a
career in alcoholism counseling. At the time he re-
signed, he underwent an exit interview with his imme-
diate supervisor, Dennis Porucznik. On the exit inter-
view form, Porucznik rated Fouhy satisfactory in work
and attendance but poor in attitude, and marked him
ineligible for rehire, stating that Fouhy had dem-
onstrated an undesirable attitude toward his job over
the past few years. When he was filling out the exit
interview form, Porucznik consulted with Fouhy’s sec-
ond-line supervisor, Thomas Muliero, regarding the
ratings Fouhy should receive. Muliero agreed with
Porucznik that Fouhy should not be rehired.
In May 1988, Fouhy applied for reemployment with
the Respondent, but was informed that he was ineli-
gible for rehire because of his poor attitude. He con-
tacted Muliero in June and asked for his job back.
Muliero informed him that he had not been rec-
ommended for rehire because of his bad attitude.
Muliero testified that he would have rehired Fouhy had
it not been for Fouhy’s attitude.
Muliero testified that four factors contributed to his
decision that Fouhy should not be rehired:
(1) Fouhy’s filing a grievance claiming ‘‘daily travel
allowance’’ (DTA) payments for daily commuting ex-
penses following his 1981 transfer from the Respond-
ent’s Manhattan office to Greenwich, Connecticut.
Muliero testified that, in claiming DTA payments,
Fouhy was claiming money he was not entitled to re-
ceive under the collective-bargaining agreement.4
Moreover, according to Muliero, the Respondent and
the Union bent over backward to accommodate
Fouhy’s request for transfer (which was made on a
hardship basis), and Fouhy then welshed on the agree-
ment he had made not to seek those payments, thereby
‘‘biting the hand that fed him.’’ It was the latter aspect
of this episode, not that Fouhy filed a grievance in the
attempt to claim DTA payments, that Muliero stated
was an example of Fouhy’s bad attitude.
(2) Fouhy’s first resignation letter, submitted No-
vember 3, 1986, which stated, in relevant part:
My first ten years in the company were good. I
had the opportunity to work with what I consider
to be some of the best telephone people in the
world. My last five years however, were spent
working in Westchester. The goals of the manage-
ment people in Westchester seem to have nothing
to do with improving telephone service for the
customer. They are an egotistical group concerned
only with improving their own self image, and
when their plans fail they have a habit of singling
out subordinates to use as scapegoats, and then
shifting responsibility for their own failures to
them. I have been a scapegoat, I have been har-
assed, and I have been suspended for no reason
by these people. It is for these reasons that I am
forced to resign.
On receiving that letter, Muliero advised Fouhy that it
was not the kind of letter to submit if Fouhy wanted
to use the Respondent as a reference. Fouhy thereupon
submitted a second letter, which stated only that he
was leaving to pursue a different career.
(3) An incident on September 18, 1986,5 in which
Fouhy left work for a medical appointment but did not
895NEW YORK TELEPHONE
6 Muliero testified that he was not influenced by the fact that Fouhy filed
a grievance claiming DTA payments. That, however, is beside the point. An
employee who honestly and reasonably invokes his rights under a collective-
bargaining agreement is engaged in protected concerted activity, whether or
not the claim takes the form of a grievance. See, e.g., North Vernon Forge,
278 NLRB 708 (1986). It does not matter whether such a claim is meritorious,
as long as it is reasonably invoked. Howard Electric Co., 285 NLRB 911, 912
(1987), enfd. 873 F.2d 1287 (9th Cir. 1989).
7 Although the Respondent contends that Fouhy reneged on his agreement
not to file DTA claims, Fouhy testified that he never entered into any such
agreement. He further testified that he understood the collective-bargaining
agreement to provide for DTA payments to any employee who was trans-
ferred, even at the employee’s own request. The judge did not resolve the tes-
timonial discrepancy, and the contract is not in evidence. Accordingly, we can-
not determine on this record whether Fouhy’s claim for DTA payments was
made reasonably and in good faith. For purposes of this decision, we shall
assume that the claim was brought in good faith and that Fouhy’s action in
making the claim was protected.
8 See Wright Line and NLRB v. Transportation Management Corp., above,
fn. 3.
9 We adopt the judge’s finding that the Respondent failed to demonstrate,
as it sought to do, that it would have refused to rehire Fouhy in any event
because he resigned while he was on ‘‘final warning’’ following the Sep-
tember 1986 incident. The Respondent based its contention on the testimony
of John J. Kenny, its director of labor relations, who stated that it was ‘‘incon-
ceivable’’ that an employee who resigned while on final warning would be
rehired, because such an employee would be considered unsatisfactory. As the
judge noted, however, Kenny also testified—in answer to a hypothetical ques-
tion by the Respondent’s counsel—that if such an individual were rehired, he
or she would continue on final warning. Thus, Kenny’s testimony does not
establish unequivocally that the Respondent has a firm policy against rehiring
former employees who resign while on final warning. More important,
Muliero, whose decision it was not to rehire Fouhy, testified that had it not
been for Fouhy’s bad attitude, Muliero would have rehired Fouhy. In the face
of this admission by Muliero, we cannot find that the Respondent has proved
by a preponderance of the evidence that Fouhy was ineligible for rehire simply
because he resigned while on final warning. There is no reason, however,
Muliero should not have relied in part on the events of September 18, which
led to Fouhy’s being placed on final warning, in determining that Fouhy had
an undesirable attitude.
10 Although Fouhy grieved the suspension, Muliero testified that the filing
of that grievance played no part in his forming the opinion that Fouhy had
a bad attitude. The judge found that none of the many grievances filed by
Fouhy, except the one claiming DTA payments, had any bearing on the Re-
spondent’s decision not to rehire him.
appear for the appointment until some 5-1/2 hours
later, allegedly because his car broke down. He did not
attempt to telephone the Respondent in the interim.
Muliero did not believe the story Fouhy told him.
Fouhy was suspended, initially for 30 days; he grieved
the suspension, which was reduced to 10 days. He was
also placed on ‘‘final warning,’’ in which status he re-
mained in November, when he resigned.
(4) Fouhy’s past performance appraisals, which, to-
gether with other undocumented but firsthand observa-
tions of his attitude by Muliero and other supervisors,
indicated to Muliero that Fouhy had a bad attitude.
The judge found that the General Counsel had estab-
lished a prima facie case that the Respondent’s refusal
to rehire Fouhy was unlawful, because Muliero admit-
ted that Fouhy’s attempt to claim DTA payments on
the basis of an entitlement established by the collec-
tive-bargaining agreement contributed to his opinion
that Fouhy had a bad attitude.6 Assuming, as we do
arguendo, that the judge was correct in this finding,7
the Respondent still may avoid a finding that it vio-
lated the Act by demonstrating by a preponderance of
the evidence that it would have refused to rehire Fouhy
even had he not made the contractual claim for DTA
payments.8 We find, contrary to the judge, that the Re-
spondent has carried its burden.
We find that Fouhy’s first resignation letter, the
September 1986 incident, and the numerous reports
from supervisors cited in Muliero’s testimony—consid-
ered together, as Muliero testified that he considered
them—constitute ample reason for the Respondent to
have formed the opinion that Fouhy’s attitude toward
his job was such as to render him undesirable for re-
hire.9 Thus, Fouhy’s letter accused the Respondent’s
managers (including, implicitly, Muliero and
Porucznik) of being egotistical, concerned only with
their own self-images rather than with providing good
telephone service, and of shifting responsibility for
their failures to ‘‘scapegoats’’ such as Fouhy himself.
Fouhy also claimed in the letter that he had been ‘‘har-
assed’’ and that he had been suspended for ‘‘no rea-
son.’’ We find no reason to doubt Muliero’s testimony
that such a broad-brush verbal assault on the Respond-
ent’s management contributed to his opinion that
Fouhy had a bad attitude. (We note that the letter does
not reflect any concerted protest against working con-
ditions.)
Similarly, we find no reason to doubt that the events
of September 18, 1986, contributed to Muliero’s low
opinion of Fouhy. On that occasion, Fouhy was absent
from work for some 5-1/2 hours, and made no attempt
to inform the Respondent where he was or why he was
missing. When he did attempt to explain his absence
to Muliero, he gave Muliero a ‘‘cockamamie’’ story
that Muliero simply did not believe. Although such an
absence is considered a serious ‘‘work time violation’’
by the Respondent (warranting suspension for the first
offense and termination for a second offense within 2
years), Fouhy complained in his resignation letter that
he had been suspended for ‘‘no reason.’’10
In reaching these conclusions regarding the first res-
ignation letter and the September 18 incident, we have
noted the judge’s heavy reliance on the Respondent’s
failure to adduce evidence that it had treated other
former employees as it did Fouhy. We find that the
judge’s analysis places an undue burden of proof on
the Respondent.
Concerning the resignation letter, the judge found
that the Respondent had the burden of showing that the
letter was, in fact, an indicator of Fouhy’s poor atti-
tude, and that it had not met that burden. (Presumably
the judge applied the same burden to the September 18
incident, although she did not say so explicitly.) In so
finding, the judge determined, in effect, that Muliero
actually had not relied on the resignation letter (or,
presumably, on the September 18 incident) at all in de-
ciding that Fouhy had a bad attitude; she found that
those reasons were pretextual. It is well established, of
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).
12 See, e.g., M. Burstein & Co., 284 NLRB 718 (1987) (no violation where
disparate treatment not shown); Pacific Intermountain Express, 250 NLRB
1451, 1454 (1980), affd. sub nom. Desper v. NLRB, 672 F.2d 893 (D.C. Cir.
1981) (the General Counsel failed to prove pretext by preponderance of evi-
dence, where, inter alia, no evidence of disparate treatment); NLRB v. United
Sanitation Service, 737 F.2d 936, 940 (11th Cir. 1984) (evidence of disparate
treatment rebutted respondent’s defense, proving it pretextual). See also Wright
Line, in which the Board stated that the respondent’s having departed from
its usual practice by terminating the charging party contributed to the General
Counsel’s prima facie case. 251 NLRB at 1090.
13 Unlike the judge, we find little significance in the Respondent’s failure
to include on the exit interview form specific reasons for deeming Fouhy’s
attitude poor. The form provides little space for explanation, and thus evi-
dently was not intended to contain a detailed discussion of the underlying rea-
sons for the Respondent’s evaluation of the employee.
14 Peker testified, but did not mention this event. Fouhy, however, did not
deny that it had occurred.
15 Both Oesterling and Foreman Herb Mocbeichel corroborated Muliero’s
account of this event. Mocbeichel, in fact, testified that Fouhy had accused
Oesterling of stealing his check. Fouhy did not testify about this episode.
16 Porucznik corroborated Muliero’s generalized testimony by describing an
occasion on which he had upbraided Fouhy for not working fast enough, and
had asked Fouhy why he was trying to ‘‘screw’’ Porucznik and was not trying
to do the job better. Fouhy replied that Porucznik should not take the matter
personally, because Fouhy did that to everyone. Fouhy did not contradict this
testimony.
17 Those supervisors also testified about other events that could be inter-
preted to indicate a bad attitude on the part of Fouhy. Muliero, however, did
not rely on those events in explaining why Fouhy’s attitude made him, in
Muliero’s opinion, unsuitable for rehire. Accordingly, we do not consider
those events in evaluating the Respondent’s Wright Line defense.
course, that an employer’s assertedly lawful reason for
taking action against an employee will be found to be
pretextual if it is shown that that reason either did not
exist or actually was not relied on.11 The judge, how-
ever, apparently placed on the Respondent the burden
of demonstrating that its asserted reasons were not
pretextual, rather than requiring the General Counsel to
prove that they were pretextual. In this the judge went
too far. We will not find the resignation letter and the
September 18 episode (which seem perfectly reason-
able grounds for concluding that Fouhy had a bad atti-
tude) to be pretextual merely because of the absence
of corroborating evidence.12
In addition, regarding the September 18 incident, the
judge stated that the Respondent had not shown that
other employees with similar violations on their
records had been rated as having poor attitudes and
had not been rehired.13 The judge thus apparently
placed the burden on the Respondent to demonstrate
that, because of the September 18 episode alone, it
would not have rehired Fouhy. That, however, is not
what Muliero said. He testified clearly that that epi-
sode was one of several factors—as he put it, ‘‘just an-
other building block’’—that influenced his opinion that
Fouhy was an undesirable employee. Contrary to the
judge, we shall not require the Respondent to prove a
defense it never asserted.
Muliero also testified that he considered both written
and oral accounts of several supervisors indicating
Fouhy’s attitude problem. Muliero stated that in fore-
men’s meetings and in direct telephone conversations
with foremen, he had been informed that Fouhy was
difficult to work with because he was argumentative
and uncooperative, threw up road blocks whenever he
was asked to perform tasks, and was ‘‘just a general
pain in the neck.’’ More specifically, Muliero testified
that he had been told by Foreman Francis Rogers that
Fouhy’s lack of productivity had led to an unsatisfac-
tory work evaluation, and that whenever Fouhy was
asked to do something he was argumentative and ques-
tioned why he was being asked to do it and why it had
to be done a certain way, instead of just performing
the task. According to Muliero, Foreman Charles Peker
had complained that Fouhy had failed to follow in-
structions because he had not paid attention to them.
Muliero also stated that Fouhy had induced another
employee to call Peker at home at 2 or 3 a.m. on one
occasion to clarify certain instructions, even though the
instructions were clear.14 Muliero also cited an episode
in which Fouhy accused Foreman Emil Oesterling of
purposely withholding his tuition reimbursement check,
which Oesterling had returned because it bore a dif-
ferent name and lacked a social security number that
would have identified the proper payee.15 Muliero also
cited Porucznik’s statement that he had difficulty deal-
ing with Fouhy because Fouhy was not happy with his
job assignment and often had to be prodded to get his
work done.16 Finally, Muliero cited the undisputed fact
that Supervisor Ray Carroll had rated Fouhy’s attitude
unsatisfactory in 1984.17 We find that, in addition to
his own personal observations of Fouhy, Muliero rea-
sonably relied on those reports of other supervisors in
determining that Fouhy’s attitude was unsatisfactory.
In this regard, we disagree with the judge’s analysis
of the evidence concerning the supervisory reports. She
discounted Muliero’s reliance on the reports of other
supervisors that Fouhy’s attitude was poor because the
supervisors’ evaluations of Fouhy were mixed, Fouhy
had not been warned about his attitude by anyone but
Carroll, and the supervisors’ written reports were gen-
erally satisfactory and did not state that Fouhy had an
attitude problem.
We view the evidence differently. That the super-
visors generally rated Fouhy’s work acceptable is be-
side the point. The Respondent does not contend that
Fouhy was denied reemployment because he was a
poor worker. As Muliero admitted, it was only
Fouhy’s attitude that stood in the way of his returning
to work for the Respondent. It is true that the great
majority of the documentary evaluations of Fouhy
were favorable, but nearly all those evaluations were
‘‘work evaluation records,’’ which appear to be assess-
ments only of Fouhy’s performance on specific jobs or
tasks, and not of Fouhy as an employee. There is no
place on those forms for an evaluation of Fouhy’s atti-
tude, and no discussion of his attitude is found on any
of them. We therefore attach scant significance to the
897NEW YORK TELEPHONE
18 Chairman Stephens observes that, with regard to Fouhy, Muliero and
Porucznik were somewhat like diners in a bad restaurant who, although they
do not take the trouble to send back unsatisfactory food, nonetheless resolve
not to eat there again.
19 Although Muliero was not asked whether he would have rehired Fouhy
had it not been for his claiming the DTA payments, we do not deem disposi-
tive his failure to testify on this point.
Muliero testified that, when he was questioned by a Board agent during the
investigation of this case, he was asked to give examples of Fouhy’s poor atti-
tude, and that Fouhy’s claim for DTA payments was the last of several exam-
ples that came to his mind. That event, then, evidently was not uppermost in
Muliero’s mind when he decided not to rehire Fouhy.
fact that most of the documents evaluating Fouhy’s
performance do not contain criticisms of his attitude.
Moreover, Muliero testified that he relied on unwrit-
ten as well as written observations of Fouhy’s attitude.
Those unwritten reports have been discussed above.
The judge, however, ignored those accounts almost en-
tirely, and concentrated instead on the supervisors’
written reports (which, as we have explained, generally
do not address the attitude issue one way or the other).
Had the Respondent terminated Fouhy because of
his attitude, we might view with more concern the lack
of documentation of the problem and the supervisors’
general failure to warn Fouhy of what might happen
to him if his attitude did not improve. In such a case,
the Respondent’s failure to apprise Fouhy of his pre-
carious position, and to give him a chance to mend his
ways, might be more significant. But Fouhy was not
discharged; the Respondent apparently had decided
that, at least for the time being, it could live with his
poor attitude. However, when Fouhy voluntarily re-
signed, there remained little reason for the Respondent
to inform him about the problem with his attitude, be-
cause it was unlikely he would return and, in any
event, the Respondent would be in no position to ob-
serve changes (if any) in his attitude. On the basis of
their previous experience with Fouhy’s attitude, then,
Muliero and Porucznik simply seized the opportunity
to ensure that Fouhy could not return to work for the
Respondent by marking him ineligible for rehire.18 In
such circumstances, the Respondent’s failure to warn
Fouhy about his attitude is less indicative of an intent
to discriminate.
On the basis of all the foregoing—the initial res-
ignation letter, the September 18 incident, and the su-
pervisors’ reports to Muliero—we find, contrary to the
judge, that the Respondent would have determined that
Fouhy had a poor attitude, and would have refused to
rehire him, even had he not filed the grievance claim-
ing DTA payments.19 We therefore find that the Re-
spondent’s refusal to rehire Fouhy was not unlawful,
and we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Ruth Weinreb and David E. Leach III, Esqs., for the General
Counsel.
Beverly Gross, Esq., of New York, New York, for the Re-
spondent.
Alan E. Wolin, Esq. (Lecci, Wolin & Wolin), of Hicksville,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on February 23 and
24, and May 15, 1989. The complaint alleges that Respond-
ent, in violation of Section 8(a)(1) and (3) of the Act, refused
to rehire George Fouhy because of his union activities. Re-
spondent denies the material allegations of the complaint and
asserts that the matter is barred by Section 10(b).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice in New York, New York, is a public utility providing
telephone services. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Commu-
nications Workers of America, Local 1103, AFL–CIO (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Credibility of the Witnesses
I found that most of the witnesses were generally reliable.
However, I observed that Respondent’s witnesses tended to
color their testimony somewhat to favor the conclusion de-
sired by Respondent and that they were antagonistic to
George Fouhy. I have taken this tendency into account in
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Fouhy lived in Westchester County at that time. He was eager to work
closer to home so that he could more easily attend Alcoholics Anonymous
meetings after work.
2 Muliero began his career with Respondent as a switchman. He was a union
member and served as steward and then chief steward.
evaluating the testimony. I also observed that Fouhy was
evasive, especially when he was confronted with contradic-
tions or changes in his testimony, and found that Fouhy’s
testimony was inconsistent with the documentary evidence in
some instances. I shall not rely on Fouhy’s testimony when
it is contradicted by other more reliable evidence.
B. Background
The evidence shows that George Fouhy was hired by Re-
spondent in 1971 as a switching equipment technician. He
worked in Manhattan maintaining central office telephone
equipment until September 1981. At that time, in response to
Fouhy’s written request for a hardship transfer closer to
home, Respondent transferred Fouhy first to Greenwich,
Connecticut, and then to various locations in Westchester
County, New York.1 Fouhy was told that he was being given
a temporary transfer and that if there were no problems, the
transfer would be made permanent after 1 year. In fact,
Fouhy continued to work in Westchester County until No-
vember 1986, when he resigned his position with Respondent
in order to begin a career as an alcoholism counselor in a
rehabilitation facility.
In May 1988, Fouhy filed an application for rehire with
Respondent. Fouhy was informed that he would not be re-
hired because at the time of his exit interview in 1986, he
had been marked ‘‘ineligible’’ for rehire due to ‘‘poor atti-
tude.’’ Fouhy called Area Operations Manager Thomas
Muliero in June 1988, and said he wanted his job back.
Muliero said Fouhy did not have a job with the Company;
he had not been recommended for rehire because of his bad
attitude. This was the only reason for ineligibility that
Muliero cited. It is clear that Muliero had the authority to
change Fouhy’s attitude rating and determination of eligi-
bility for rehire if he was so minded. Muliero testified that
had it not been for Fouhy’s bad attitude, he would have re-
hired Fouhy.
C. The Facts
1. Fouhy’s exit interview and rating
Thomas Muliero, now an area operations manager for Re-
spondent, was a foreman in Greenwich and in a number of
locations in Westchester County from 1981 to 1985. At var-
ious times he had direct supervisory authority over Fouhy. In
1985, when he was promoted to his current position, he as-
sumed second-line managerial responsibility over Fouhy.2
Muliero testified that although Fouhy did his job in a sat-
isfactory manner, he had a bad attitude. At foremen’s meet-
ings, Muliero heard complaints that Fouhy was argumen-
tative and uncooperative. According to Muliero, he counseled
Fouhy to get along with his supervisors and to listen to criti-
cism. In August 1986, according to Muliero, he saw Fouhy
at his work station looking unhappy and not working.
Muliero asked Fouhy what was wrong and Fouhy replied that
he was agonizing over a career change. He was taking
courses in counseling. Muliero advised Fouhy to do some-
thing that would make him happy.
Muliero stated that when Fouhy resigned in November
1986, the exit interview was conducted by Fouhy’s imme-
diate supervisor, Dennis Porucznik. On the draft exit inter-
view form, Porucznik had indicated that Fouhy was satisfac-
tory in attendance and work, but that he was poor in attitude.
Further, Porucznik had rated Fouhy ineligible for rehire.
After the interview, when Porucznik consulted with Muliero
over the ratings on the exit interview form, Muliero told
Porucznik that he agreed with him and that Fouhy should not
be rehired. Muliero and Porucznik gave as the reason for in-
eligibility for rehire that ‘‘[Fouhy] has demonstrated an un-
desirable attitude toward his job over the past few years
which is possibly attributable to his indecision whether to
stay in his present position or move on to another career.’’
Muliero’s affidavit given to a Board agent states that certain
considerations went into his decision that Fouhy should not
be rehired:
1. A grievance over DTA filed by Fouhy.
2. A September, 1986, incident.
3. Fouhy’s initial resignation letter.
4. Fouhy’s past performance appraisals taken to-
gether with other undocumented but first hand observa-
tions of his attitude.
Porucznik testified that he had been a craftsman at the
Company and had spent a lot of time working side by side
with Fouhy. Then, in 1986, Porucznik became a supervisor
with authority over Fouhy. At the time of the hearing,
Porucznik was working for IBM.
Porucznik stated that Fouhy created a lot of problems for
a manager. He was negative toward management, negative
toward his job, and he had a poor attitude toward the busi-
ness. Fouhy often referred to certain supervisors as jerks and
said they did not know how to manage the business.
Porucznik conducted the exit interview with Fouhy on No-
vember 6, 1986. He asked Fouhy the questions indicated on
the form relating to Fouhy’s experiences while working for
Respondent. Fouhy told Porucznik, in response to the latter’s
questions, that most of the aspects of his employment had
been satisfactory except advancement opportunities and su-
pervision. He stated that improvement was needed in com-
munication between craft and management.
Porucznik testified that when he filled out the exit inter-
view form, he knew Fouhy was a shop steward and he was
familiar with two grievances filed by Fouhy. One of these
was the DTA grievance. According to Porucznik, these mat-
ters were not on his mind when he filled out the ratings on
the exit interview.
From the discussion of the testimony of Muliero and
Porucznik above, it is clear that Fouhy’s job performance
was satisfactory and played no part in Respondent’s decision
not to rehire Fouhy. Thus, I shall consider the reasons given
by Muliero and Porucznik for their finding that Fouhy’s atti-
tude was poor and should preclude his rehiring. Muliero,
who had the final authority to approve Porucznik’s rating,
detailed the four components of his decision about Fouhy’s
attitude. I shall discuss these components.
899NEW YORK TELEPHONE
3 The parties did not specify the facts relating to the calculation of this
amount.
2. The letter of resignation
Porucznik testified that Fouhy gave him a letter of resigna-
tion from Respondent on November 3, 1986. The letter stat-
ed, in part:
My first ten years in the company were good. I had the
opportunity to work with what I consider to be some
of the best telephone people in the world. My last five
years however, were spent working in Westchester. The
goals of the management people in Westchester seem to
have nothing to do with improving telephone service
for the customer. They are an egotistical group con-
cerned only with improving their own self image, and
when their plans fail they have a habit of singling out
subordinates to use as scapegoats, and then shifting re-
sponsibility for their own failure to them. I have been
a scapegoat, I have been harassed, and I have been sus-
pended for no reason by these people. It is for these
reasons that I am forced to resign.
Since he was new to his supervisory position, Porucznik
did not know what to do with the letter. He telephoned
Muliero and read the letter to him. Muliero told Porucznik
that he was happy that Fouhy had decided what he wanted
to do.
Then, Muliero spoke to Fouhy by telephone. According to
Muliero he told Fouhy that the letter was not a pleasant part-
ing of the ways and that if he wanted to use the telephone
company as a reference in the future this was not the kind
of letter to submit. Muliero told Fouhy that he might be
burning his bridges. According to Fouhy, Muliero told him
that if he wanted to be recommended for rehire he would
have to give the Company a more favorable letter. As de-
scribed above, I have found that Muliero is a more reliable
witness than Fouhy and I credit Muliero’s version of the con-
versation. I find that Muliero told Fouhy that the letter was
not good if Fouhy intended to use the Company as a rec-
ommendation and I find that Muliero did not mention rehire
to Fouhy.
A few days after this incident, Fouhy gave Porucznik a
second letter of resignation which stated simply that Fouhy
was leaving the Company to pursue a different career.
3. The DTA grievance
The DTA matter related to Fouhy’s transfer from New
York City in 1981. Fouhy testified that a person who is
transferred is usually given a daily travel allowance (DTA),
for 1 month. He was not given any DTA for his transfer to
Greenwich in 1981. In December 1982, Fouhy filed a griev-
ance over his failure to receive DTA. He claimed that he was
owed about $11,000.3 Although the record is not clear on
this point, it seems that the grievance was held in abeyance
and then revived in 1984, when Fouhy requested DTA of
$25,000. The grievance was pursued by the Union to the
third step where it was denied. The International Union did
not seek arbitration of the matter.
Muliero testified that the filing of the DTA grievance
showed that Fouhy was looking for something he was not
entitled to. In Muliero’s view, the Union and Respondent
bent the usual transfer rules to permit Fouhy to transfer on
a hardship basis, and Fouhy reneged on the arrangement and
tried to take advantage of the situation. Muliero saw this as
an example of a bad attitude by Fouhy. Muliero stated that
it was not the filing of the grievance that caused him to con-
clude Fouhy had a bad attitude, but the fact that Fouhy was
asking for money to which he was not entitled.
4. The September 26, 1986 incident
Fouhy testified about the September 26, 1986 matter
which caused Muliero to decide that he had a bad attitude.
He had been out sick with back trouble and he called
Muliero to ask to be scheduled for a medical appointment
upon his return to work. On the appointed day of his return,
Fouhy got to work at 7:30 a.m. and at about 8:15 a.m. he
left in his own car for the 9 a.m. medical appointment.
Fouhy claims that he was stuck on the road, that he walked
to the main road where he found a truckdriver to help him
jump start his car, and that before he went to the medical
department he stopped for lunch. When Fouhy finally arrived
at the medical department at 1:30 p.m., Muliero was there.
Muliero wanted to know where he had been for 5-1/2 hours
and he did not believe the story Fouhy told him. Eventually,
Fouhy was suspended for 30 days for this incident and
placed on final warning. Fouhy filed a grievance over the
suspension. The penalty was reduced by the Respondent to
a 10-day suspension and a final warning.
Muliero testified about this incident. Respondent found
that Fouhy was AWOL and this was regarded as a serious
violation. Fouhy did not call when his car broke down and
he did not call from the diner where he had lunch. The Com-
pany did not believe his story about getting stuck on the
road. Muliero testified that he was influenced in deciding
that Fouhy had a bad attitude by this occurrence but not by
the fact that Fouhy grieved the 30-day suspension.
John J. Kenny Jr., director of labor relations of Respond-
ent’s headquarters staff, testified that Fouhy was on a final
warning because of the September 26 absence from duty for
5-1/2 hours. The applicable rules provide that for a first of-
fense ‘‘work time violation’’ a long service employee may
be given up to 30 days’ suspension. Fouhy was originally
given the full 30-day suspension by Muliero, but this was
subsequently reduced to 10 days and a final warning. Kenny
testified that an employee on final warning is ineligible for
transfer or rehire. He then testified that if a person on final
warning were rehired, he would continue on final warning
after the rehire. Thus, it is clear that Respondent has not
shown that it has any firm policy against rehiring employees
on final warning status.
5. Past appraisals
Respondent introduced some testimony by former super-
visors of Fouhy in an attempt to show that Fouhy’s work
was not satisfactory. However, it is clear that Muliero and
Porucznik rated Fouhy’s work satisfactory, and Muliero testi-
fied that he would have rehired Fouhy had it not been for
his ‘‘poor attitude’’ rating.
The testimony of the former supervisors is also relevant to
Respondent’s rating of Fouhy’s attitude.
Francis Rogers supervised Fouhy between spring and fall
1983. He testified that he had trouble with Fouhy relating to
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Fouhy told various of his supervisors that he felt harassed at times. Appar-
ently, these claims were related to his sensitivity as a recovering alcoholic.
There is no indication that Fouhy ever related his claims of harassment to his
activities as a union steward.
5 I am not convinced that Fouhy’s activities as a shop steward had any bear-
ing on Muliero’s decision to rate him poor in attitude. Nor am I convinced
that Fouhy’s filing of grievances other than the DTA grievance were of any
moment. The record shows that Fouhy did not file, on the average, more
grievances that the other stewards. Although Fouhy claimed harassment, he re-
lated it to his status as a recovering alcoholic. Furthermore, Muliero candidly
testified that he rated Fouhy poor in attitude because of his filing of the DTA
grievance. It is thus unnecessary to dwell at length on Fouhy’s other activities.
low productivity and lack of attentiveness. On May 16, 1983,
he wrote an unfavorable evaluation of Fouhy for working at
an unacceptable pace for the 3 days he was assigned to a
particular task. Fouhy expressed his resentment at being
given a number of assignments he considered less than desir-
able and he stated that he was being harassed by the Com-
pany.4 Since Rogers’ evaluation referred to ‘‘prior satisfac-
tory evaluations,’’ there must have been prior satisfactory
evaluations by Rogers of Fouhy that were not introduced into
evidence by Respondent.
Herbert Mocbeichel supervised Fouhy at various times be-
tween 1983 and 1986. Respondent called him to testify that
he observed a shouting match between Fouhy and another
foreman in 1983, that he observed a disagreement over a late
tuition refund check, and that Fouhy questioned the way jobs
were run at the Company. However, the only documents pre-
pared by Mocbeichel relating to Fouhy show that he praised
Fouhy for jobs well done in 1983 and 1986, and there is no
indication that Mocbeichel ever warned or disciplined Fouhy
for a poor or unsatisfactory attitude.
Emil Oesterling testified that he was a switchman and
worked with Fouhy for a time. He believed that Fouhy was
difficult to work with and was antagonistic in his method of
handling matters that were brought to him as shop steward.
Eventually, Oesterling became a foreman and supervised
Fouhy for a short time. Although Oesterling testified that
Fouhy was a slow worker, no documentary evidence was
produced showing that Oesterling ever warned or disciplined
Fouhy for a poor attitude or any other failing.
Raymond Carroll testified that he supervised Fouhy from
January to November 1984. Carroll described an incident
which resulted in his suspension of Fouhy. However, the sus-
pension was not upheld because proof of Fouhy’s fault was
lacking. In addition, other employees had not been dis-
ciplined for similar occurrences. Carroll stated that another
example of Fouhy’s uncooperativeness arose when the Com-
pany requested that he furnish an emergency telephone num-
ber; however, this matter was resolved in a mutually accept-
able manner. Carroll gave Fouhy an unsatisfactory attitude
and conduct rating in July 1984; he mentioned a poor atti-
tude and uncooperativeness. In November 1984, Carroll gave
Fouhy an unsatisfactory rating, stating in his ‘‘remarks’’ that
Fouhy had made progress since his last rating and that more
progress was needed.
Charles Peker testified that he supervised Fouhy for a time
before 1985. He wrote several favorable appraisals of Fouhy.
He also recalled writing two unsatisfactory work evaluations.
One of these Peker removed from Fouhy’s file and tore up
1 month later when Fouhy’s work improved; another one in-
volved a call store problem that occurred while Fouhy was
on duty. Respondent did not show that Peker had warned or
disciplined Fouhy for a poor attitude.
Benjamin De Clemente was Fouhy’s foreman and ap-
praised him in January 1986. He rated Fouhy satisfactory in
attitude and conduct and in his ‘‘remarks’’ stated that Fouhy
was a pleasure to work with.
Finally, Muliero himself supervised Fouhy in 1981 and
then again from late 1984 to mid-1985. Muliero did not tes-
tify that Fouhy was a problem to him as a supervisor nor that
he warned Fouhy for a poor attitude during the times when
he supervised him directly. His testimony indicates only that
he told Fouhy to get along with other supervisors.
D. Discussion
It is clear that the General Counsel has met the burden of
showing that Fouhy’s protected activity was a significant fac-
tor in Respondent’s decision not to rehire Fouhy. Muliero
testified that of the four bases for his approval of the ‘‘ineli-
gible’’ for rehire rating based on a ‘‘poor attitude,’’ one was
Fouhy’s filing of the DTA grievance. Although Muliero
sought to distinguish the filing of the grievance from the fact
that Fouhy was asking for DTA money, there is in fact no
distinction to be made. Fouhy was seeking to vindicate an
asserted right to DTA by filing a grievance under the collec-
tive-bargaining agreement. It is irrelevant whether the griev-
ance had any merit or whether it was in fact an attempt by
Fouhy to obtain money to which he was not entitled.
Fouhy’s right to file the grievance is protected by the Act.
See NLRB v. Interboro Contractors, Inc., 388 F.2d 495 (2d
Cir. 1967).5
The General Counsel having shown that Fouhy’s filing of
the DTA grievance was a motivating factor in causing Re-
spondent to rate him ineligible for rehire, the Respondent
must demonstrate by a preponderance of the evidence that it
would not have rehired Fouhy even if he had not filed the
grievance. Wright Line, 251 NLRB 1083 (1980), enfd. as
modified 622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Thus, I turn to a review of the other factors cited by
Muliero.
Muliero testified that Fouhy’s first letter of resignation
contributed to the finding of a poor attitude. The letter is bit-
ter and expresses certain complaints, but by no means does
it exceed the bounds of decency. Further, there is no evi-
dence that the type of grousing expressed in the letter was
unusual at the Company, had not been tolerated by Respond-
ent, or had ever been a reason for a failure to rehire an em-
ployee in the past. Respondent has the burden of showing
that the letter of resignation was in fact an indicium of a
poor attitude in the prevailing environment at the Company,
and it has not met that burden.
The September 26 incident resulted in a 10-day suspension
and final warning being given to Fouhy. As discussed above,
Respondent has not shown that it has a policy of refusing to
rehire employees who resign on final warning. Significantly,
Porucznik and Muliero did not include the September 26
matter in the exit interview discussion of Fouhy’s bad atti-
tude. That discussion, quoted above, refers to an ‘‘undesir-
able attitude’’ but gives no supporting specifics. Respondent
did not show that employees with similar violations on their
901NEW YORK TELEPHONE
6 I note that Muliero did not testify that even if Fouhy had not filed the
DTA grievance he would have rated his attitude poor and found him ineligible
for rehire.
records have been rated poor in attitude and that it has re-
fused to rehire them.
Finally, a review of the testimony of some of Fouhy’s
former supervisors shows that their views of his attitude was
mixed. In 1986, De Clemente stated that Fouhy ‘‘was a
pleasure to work with.’’ Peker both praised and criticized
Fouhy for his work, but he never wrote any criticisms of
Fouhy’s attitude. Carroll, in 1984, was the only foreman who
ever rated Fouhy unsatisfactory for his attitude. Oesterling
never criticized Fouhy for a poor attitude while he supervised
him. Mocbeichel praised Fouhy for his work in 1983 and
1986 and he never warned Fouhy about his attitude. Rogers
gave Fouhy both satisfactory and unsatisfactory evaluations
in 1983, but he did not criticize Fouhy for his attitude.
Porucznik testified that Fouhy had a bad attitude because he
criticized management and he was negative. But Porucznik
never warned Fouhy about this or gave him a negative ap-
praisal for his attitude. The evidence presented by Respond-
ent to bolster Muliero’s testimony that supervisory reports
convinced him that Fouhy had a poor attitude is thus not
very strong. Only one supervisor ever warned Fouhy or gave
him a poor appraisal for his attitude. The testimony shows
that Fouhy got along with some supervisors and did not get
along with others. He apparently got on well with Muliero.
I find that Respondent has not shown that supervisory reports
provide a basis for Muliero’s belief that Fouhy had a bad at-
titude.
I conclude that Respondent has not shown that the other
reasons given by Muliero for a rating of poor attitude were
sufficient to have rendered Fouhy ineligible for rehire in the
absence of the DTA grievance.6
Furthermore, Respondent did not show that it had ever re-
fused to rehire other former employees who had been rated
poor in attitude. There is no evidence from which I can con-
clude that Respondent’s policies precluded it from rehiring
Fouhy because he received a poor attitude rating on the exit
interview. Indeed, Respondent’s policies provide for changes
in the exit interview ratings under certain circumstances.
E. Respondent’s 10(b) Defense
Respondent argues that it determined that it would not re-
hire Fouhy in November 1986, when Muliero and Porucznik
rated Fouhy ineligible for hire. Respondent thus urges that
Section 10(b) of the Act bars the instant proceeding. That
position is without merit. The facts make it clear that Fouhy
did not learn until June 1988, that Respondent deemed him
ineligible for rehire and that it would not rehire him. The
charge was filed on July 5, 1988, well within the period pre-
scribed by the Act. Pennsylvania Energy Corp., 274 NLRB
1153, 1155 (1985).
CONCLUSION OF LAW
By refusing to rehire George Fouhy because he filed a
grievance, Respondent violated Section 8(a)(1) and (3) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent having discriminatorily refused to rehire
George Fouhy in June 1988, must make him whole for loss
of earnings and other benefits, computed on a quarterly basis
from the date of the refusal to rehire to date of proper offer
of rehire, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Since the record does not permit a finding of
the exact date of the refusal to rehire, this determination shall
be made in the compliance stage of the proceeding.
[Recommended Order omitted from publication.]