Orleans International, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1985

274 N.L.R.B. 1127 (N.L.R.B. 1985)

ORLEANS INTERNATIONAL
Orleans International , Inc. and Charles C. Law-
rence. Case 7-CA-20104
26 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 March 1984 Administrative Law Judge
Stanley N. Ohlbaum issued the attached decision.
The Respondent filed exceptions and the General
Counsel filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
i Although the judge found that Charles Morreale was the Respond-
ent's agent and also a supervisor , we need not reach the supervisory issue
because Morreale's agency status is clear
We correct several factual errors in the judge's decision that do not
affect his ultimate conclusions The judge found that Morreale conceded
he laid employees otT, but Morreale stated he merely relayed already for-
mulated layoff decisions The judge also found that the Respondent's
owner Larry Tushman told Union Steward Charles Lawrence if an em-
ployee joined the Union the employee would probably have to be termi-
nated The judge based this finding solely on Tushman's alleged failure to
deny the statement, but Tushman did deny it, and we therefore find no
basis for attributing the remark to Tushman The judge found that both
Tushman and Morreale threatened to discharge Lawrence for filing
grievances, but there is no evidence Tushman made such a threat Final-
ly, the record does not support the judge's speculation that Lawrence's
truck was more easily overturned because it was empty and topheavy
We find it unnecessary to adopt the judge's discussion of Lawrence's
belief that he was driving with a temporary license at the time of the ac-
cident We also find it unnecessary to adopt the judge's remarks implying
the Union may have breached its duty of fair representation and the Re-
spondent improperly relied on a labor relations consultant to investigate
accidents
2 Assuming without deciding that Lawrence 's negligence caused the 18
July 1981 accident, the judge concluded that the Respondent treated
Lawrence disparately because it had not suspended or discharged any
other drivers involved in accidents, even though between 1977 and 1981
the Respondent 's drivers had 110 accidents Many of the accidents, in ad-
dition to the truck overturns the judge cited , involved driver negligence
and caused property damage We agree with the judge that the Respond-
ent's policy and practice concerning its drivers who had traffic accidents
do not support its suspension or discharge of Lawrence
Moreover , even though the Respondent might have been justified in
taking some action against Lawrence for driving with an expired license,
the timing of Lawrence' s discharge makes clear that he was discharged
for engaging in protected activities, rather than for the accident and driv-
ing with an expired license Lawrence was suspended by the Respondent
3 days after the accident He renewed his driver's license on the follow-
ing day However , he was not discharged until 5-1/2 weeks after the ac-
cident In the interim, the Respondent 's agent Morreale suggested to
Lawrence that it would be beneficial for him to give up his position as
union steward and to drop intraunion charges that he had brought against
Morreale and others Lawrence declined to do so After Lawrence pre-
sented his charges against Morreale to the Union's executive board, Mor-
reale told Lawrence that he would not try to get Lawrence reinstated
because he was angry with Lawrence Lawrence was discharged a few
days later We therefore agree with the judge that the Respondent's dis-
charge and 5-week suspension of Lawrence were disparate and discrimi-
natory
Our conclusion is not altered by the Respondent's treatment of two
other truckdrivers, Koponen and Schieweck, who drove without licenses,
as their situations are not comparable to that of Lawrence After three
traffic accidents , Koponen's license was suspended for 6 months When
the Respondent discovered the suspension , it either laid off or terminated
Koponen Ten months later , four months after Koponen's license was re-
stored, the Respondent recalled Koponen to work Schieweck's license
1127
conclusions2 and to adopt the recommended Order
as modified.3
AMENDED CONCLUSION OF LAW
C.
Substitute the following for Conclusion of Law
"C. By suspending employee Charles C. Law-
rence 21 July 1981 and discharging him about 26
August 1981 because of his union activity, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(3) and (1) of the Act."
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to offer Charles
C. Lawrence immediate and full reinstatement to
his former job 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 to make him whole for
any loss of earnings he may have suffered as a
result of the discrimination against him.4 Backpay
shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 298 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977).
We shall also order the Respondent to remove
from its files any reference to the unlawful dis-
charge and notify the employee in writing that it
was stolen When the Respondent gave Schieweck time off from work to
obtain a duplicate license, Schieweck failed to do so and thereafter re-
ceived a reprimand Neither of these cases concerned an employee whose
license had simply expired , as Lawrence 's had Moreover , unlike Law-
rence, Koponen had been in more than one accident and was barred from
obtaining a license for 6 months Because the license problems of both
Koponen and Schieweck were significantly different from that of Law-
rence, neither of them serve to show that the Respondent would have
suspended and discharged Lawrence because of his traffic accident and
expired license had he not participated in protected activities
3 We reject the judge's remedy requiring the Respondent to reimburse
Lawrence for income tax losses he may incur as a result of his receiving
backpay in a one-time payment See Laborers Local 282 (Austin Co ), 271
NLRB 878 (1984 ) Nor do we adopt the judge 's recommendation that the
Respondent be required to recognize Lawrence as union steward when
he is reinstated , because the Respondent has no authority to designate
stewards Should Lawrence continue to be the steward selected by the
Union, the Respondent will, of course , be obligated to recognize him as
such
Although the judge concluded that Lawrence's suspension and dis-
charge were discriminatory , he inadvertently omitted the suspension from
the conclusions of law
We conform the conclusions of law, remedy , recommended Order, and
notice
4 The Respondent's obligation to make Lawrence whole for loss of
earnings shall not accrue prior to the date on which Lawrence renewed
his driver's license, 22 July 1981 Since Lawrence was employed by the
Respondent as a truckdriver, the Respondent was entitled to suspend
Lawrence until he obtained a valid driver 's license
274 NLRB No. 169
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has done so and that the discharge will not be used
against him in any way.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Orleans International, Inc., Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph B,1.
"1. Offer Charles C. Lawrence immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, 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 his suspension and dis-
charge, in the manner set forth in the remedy sec-
tion of the Board's Decision and Order."
2. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT threaten to discharge, lay off, or
discipline any employee if he joins, supports, or is
active on behalf of a union.
WE WILL NOT threaten to close our plant or to
operate it on a nonunion basis in order to avoid our
obligations under any collective-bargaining agree-
ment to which we are a party.
WE WILL NOT threaten any union steward not to
file grievances on your behalf or not to question
our disciplinary policies.
WE WILL NOT threaten to discharge or discipline
any union steward unless he gives up his status as
your union steward.
WE WILL NOT threaten to discharge or discipline
any union steward if he files, presses, pursues, or
does not withdraw any charge with your Union
against any supervisor, foreman, or agent of ours
who is also a member of your Union.
WE WILL NOT discharge, suspend, or discipline
any employee because he has engaged in or en-
gages in any activity lawful under the Act; and WE
WILL NOT fail or refuse to reinstate or reemploy
him for that reason.
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 Charles C. Lawrence immediate
and full reinstatement to his former job 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
WE WILL make him whole, plus interest, for any
loss of earnings and other benefits resulting from
his suspension and discharge.
WE WILL expunge from our files any reference
to our suspension and discharge of Charles C.
Lawrence, and WE WILL notify him in writing that
this has been done and that the suspension and dis-
charge will not be used against him in any way.
ORLEANS INTERNATIONAL, INC.
DECISION
PRELIMINARY STATEMENT; ISSUES
STANLEY N OHLBAUM, Administrative Law Judge.
This proceeding' under the National Labor Relations
Act (Act) was litigated before me in Detroit, Michigan,
on December 8-9, 1983, with all parties participating
throughout by counsel afforded full opportunity to
present evidence and contentions, as well as to file post-
trial briefs, received on January 12, 1984. All have been
carefully considered
The principal issues tendered are whether, in violation
of Section 8(a)(3) and (1) of the Act, Respondent made
various economic threats against its employees, including
threats of discharge and of plant closure, and whether
Respondent finally discharged the Charging Party be-
cause of his protected concerted union organizational ac-
tivities under the Act.
On the entire record and my observations of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times, Respondent, a Michigan corpora-
tion with principal office and place of business in De-
troit, Michigan, as well as other places of business in
Florida and California, has been and is engaged in the
wholesale meat-selling business. During the representa-
tive calendar year immediately preceding issuance of the
complaint, in the course and conduct of that business,
Respondent derived gross revenues exceeding $1 million
and purchased and caused to be transported and deliv-
ered to its Detroit business location meat and other prod-
ucts valued in excess of $100,000, of which over $50,000
' Based on a complaint issued on May 31, 1983, by the Board's Re-
gional Director for Region 7 (Detroit, Michigan) growing out of a
charge filed on December 7, 1981, by Charging Party employee Charles
C Lawrence of Respondent Employer
ORLEANS INTERNATIONAL
worth were transported and delivered to its Detroit
premises directly in interstate commerce from places, out-
side Michigan
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that,
at all of those times, Local 337, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union) has been and is a labor
organization as defined in Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a wholesale meat dealer based in De-
troit, with satellite locations in Florida and California In
connection with that business , it maintains a fleet of
trucks, the drivers (about 25) of which (together with
Respondent 's 10 or so warehousemen) are and have been
for many years unionized under Teamsters Union Local
337. One of those truckdrivers, Charles C. Lawrence,
employed by Respondent to its satisfaction for over 5
years until his discharge under circumstances to be de-
tailed, is the focus of this proceeding. In 1980, Lawrence
was elected by his fellow bargaining unit members (not, it
is to be noted, appointed by the Union) as steward. Law-
rence's service to his fellow workers was marked by dili-
gence and zeal. Lawrence also became active in Team-
sters for a Democratic Union (TDU), a dissident group
seeking reform of the Union. In connection with his ac-
tivity in TDU, Lawrence ran for union office in October
1980, without success . He has, nevertheless , continued
his activity in TDU, distributing its literature and openly
wearing its button on his clothing at work He is not rep-
resented by the Union in the instant proceeding, but
prosecutes it on his own . There is no indication that Re-
spondent Employer 's relations with the Union have been
marred or that they have been other than congenial; Re-
spondent's principal Jerry Lawrence (Larry) Tushman
testified that he could recall only "two [labor] arbitra-
tions in the last 48 years."
Respondent's hierarchy here involved consists of its
principal Larry Tushman, its office manager Edward
Gammage, and its alleged dock foreman Charles Mor-
reale.
Supervisory/Agency Status of Morreale
Although Respondent denies the agency and supervi-
sory status of Morreale , credited proof establishes and I
find that , at all material times, he was both Thus, Re-
spondent's former truckdriver William F. Denney testi-
fied credibly that he and the other drivers functioned
under the direction of Morreale, who ordered them
when and where to load their trucks and otherwise what
to do, and that they complied with the orders of Mor-
reale who, operating out of his own fully enclosed office
furnished with desk and chair, also approved their time-
sheets and authorized them time off. Indeed, it was Mor-
reale who effectively hired Denney and put him to
work. Another former truckdriver, Richard M. Scott,
who has worked for Respondent for about 5 years, simi-
larly swore credibly that he worked under Morreale's su-
1129
pervision. And Charging Party Lawrence, who also was
in Respondent's employ for over 5 years as a truckdriv-
er, likewise credibly swore that he worked under Mor-
reale, whom he regarded as his supervisor, that it was
Morreale who regularly (as also occasionally Gammage
and even Tushman) initialed his timecards; that it was
Morreale from whom he and the other drivers received
their orders, with which they complied; and that it was
Morreale who directed him and the others when to leave
when work was slow. Indeed, when Respondent's unit
employees at the beginning of January 1981 petitioned
the Union to expel "Supervisors-Foremen- Members
of Management at Orleans International" from union
membership because of their alleged conflict of interest
on the job and their union membership in violation of the
union constitution and bylaws, Morreale's name led the
list of "Supervisor-Foremen-Members of Management
at Orleans International" sought to be expelled (G.C.
Exh 7.) (It was Charging Party Lawrence who prepared
and delivered this petition to the Union, and Lawrence's
name headed the list of signatories )
Against the testimony of these truckdrivers, each of
whose testimonial demeanor as closely observed by me
impressed me highly favorably, there is the equivocating,
at times truculent, and evasive and purportedly selective
and certainly deficient recall of Morreale, a witness of
low credibility based on his demonstrated testimonial de-
meanor. Morreale characterized himself as the "leader"
of the large unit here. He, but no driver in the unit, has
keys to the building, does not punch a timeclock, and is
not paid by the hour, receiving a weekly salary of $700
plus a yearend bonus of $7500 last year. He reports di-
rectly to the Tushmans, Respondent's owners (as well as
to Gammage), usually to Respondent's onsite head of all
operations, Larry Tushman, Morreale's "immediate supe-
rior " Morreale described his function as "to get the job
done . . . ship out product . . . quality control." I defi-
nitely do not credit his testimony that in carrying out
these functions he does no more than "relay" orders re-
ceived by him and that nobody is subject to his direc-
tion. I do not credit his testimony that he would do
nothing about a driver who refused to comply with his
directions or to help him After testifying that he
"organize[s]" the unit employees' work, he unpersuasive-
ly attempted to back off this by changing it to claim that
it is the "office" which "organize[s]" their work While
denying that he "check[s]" the unit employees' time-
cards, he concedes that he does "initial" them after
"look[ing] at [them]"-but only "to keep them and me
from being . . . in trouble" since they, as well as he, are
"Teamsters." Denying that he possesses any authority to
hire any employees, he concedes he has hired "casual"
employees with the acquiescence or approval of Tush-
man, who relies on.Morreale's advice and recommenda-
tions in that regard. Also denying that he has authority
to or has ever laid any employee off, after a somewhat
incredible degree of testimonial equivocation, evasion,
and contradiction, when confronted with his pretrial affi-
davit, Morreale conceded that he has, indeed, laid off
employees. With regard to truckdriver Denney (supra),
Morreale professes to be unable to "remember" whether
1130 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
he procured Denney, while preferring to put it that he
"was just there" Morreale likewise professes to be unable
to "remember" whether he ever gave Denney time off.
However, Morreale later conceded that he instructed
Lawrence, as well as all other drivers, to go home when
"work was slow" or "there's no more work," and that
the drivers complied with his instructions. Based on my
close observations of testimonial demeanor, I have no
hesitancy in preferring the testimony of Denney, as re-
counted supra, to that of Morreale
On the subject of Morreale's status, Respondent's prin-
cipal Tushman testified that, although Morreale is "clas-
sified" as a "group leader," that "classification" is not to
be found in the collective agreement or other writing;
that although his collective agreement specifies hourly
rates of pay, Morreale receives a weekly salary, for
which he is, unlike the drivers, on call 24 hours per day
7 days per week Tushman conceded that Morreale does
indeed "direct the work of others" who are required to
comply with Morreale's directions; and Tushman further
conceded that he gives weight to Morreale's recommen-
dations on hiring "casual" employees. On brief (p. 2, fn.
1), Respondent concedes that Morreale "directs work on
the loading dock."
I find and determine that at all material times here
Morreale was an agent of Respondent , as well as a super-
visor within the meaning of Section 2(l1) of the Act.
B. Miscellaneous Interference, Restraint, and Coercion
A number of instances of interference with and re-
straint and coercion of employees by Respondent, in vio-
lation of Section 8(a)(1) of the Act, are alleged to have
occurred. These will now be addressed.
The complaint (par. 8 [a]) alleges that in late June or
early July 1981, Respondent's principal Larry Tushman
threatened to lay off or discharge an employee if he
became a member of the union ; and that (id. par. 8[c])
early in July ( 1981), Morreale likewise threatened dis-
charge of an employee because of his union activities As
to these allegations, Respondent's truckdriver Richard
M. Scott testified credibly that on several occasions
around the time in question, after Scott approached
Union Steward Lawrence about joining the Union, Mor-
reale warned or threatened Scott that if he joined the
Union, Scott would be laid off, and that "[I] understand
[you] want[ed] to get in the union and if [you] go for the
union . . you would have to be cut loose from the
company." When Scott sought out and asked Tushman,
"Why wasn't I able to join the union," Tushman's re-
sponse was that, although he could not "legally" tell him
not to, nevertheless Tushman wanted to see Scott obtain
a chauffeur's license (Scott was then only a part-time
warehouseman) Thereafter, when Scott had worked full
time for 90 days (still as a warehousemen), he again ap-
proached Lawrence around September 1981 and joined
the Union, thereby becoming a bargaining unit member.
Scott's account is bolstered by Union Steward Law-
rence, who testified credibly that after Lawrence told
Morreale that he was going to put Rick Scott into the
Union, Morreale responded that in that event Morreale
would probably have to let Scott go, since Scott was
then (as a part-time nonunion employee) being paid only
one-third of what he would receive as a union member.
He also said that the union (unit) members, including
Lawrence, would have to do more work if Scott was
terminated. A few minutes later (still according to Law-
rence), Tushman asked Lawrence, "What's this sh-t
you're starting again," to which Lawrence answered,
"I'm just trying to get Rick [Scott] in the Union," elicit-
ing from Tushman the reaction that he would probably
have to let Scott go, since he was paying Scott only
about one-third of union scale and could not see paying
him union scale. Concerning the foregoing, Morreale
professed to be unable to "remember" any conversation
with Lawrence in which Lawrence told him he was
"going to put Rick Scott in the Union," although he
denied telling Lawrence that the Company would let
Scott go in that event. As for Tushman, he admits en-
couraging Scott to obtain a chauffeur's license, but
denies telling Scott that Tushman had "no legal right to
tell him not to join the Union," and denies he asked
Lawrence, "What is this sh -t," claiming he never used
such language with Lawrence . However , Tushman does
not dispute the statement attributed to him by Lawrence
that Tushman would probably have to terminate Scott if
he joined the Union. I have already, for reasons indicat-
ed (supra), expressed my misgivings about Morreale's
credibility; and I accordingly credit the described testi-
mony of the General Counsel 's witnesses in preference to
that of Morreale, and find the allegations of paragraph
8(c) of the complaint established by preponderating cred-
ible evidence . Insofar as Tushman is concerned, in view
of his unexplained failure to dispute the statement attrib-
uted to him by Lawrence concerning terminating Scott if
he joined the Union, I also find the complaint allegation
concerning him (i .e., par . 8[a]) established.
The complaint further alleges (par. 8[b]) that around
late June or early July 1981, Respondent's principal
Larry Tushman "told" Union Steward Lawrence "not to
question Respondent's disciplinary policy pertaining to
other employees." As to this, credited testimony of
Union Steward Lawrence establishes that, on the occa-
sion in question, when Lawrence questioned Tushman's
allegedly discriminatory rescission of a reprimand to
truckdriver Roger Jabalea (the brother of company sales-
man Ronald Jabalea, whose expulsion from the Union
had been sought by Lawrence and other unit members
for lack of community of interest with the unit
truckdrivers/warehousemen, union constitutional mem-
bership ineligibility , and conflict of interest-see G.C.
Exh. 7) for failing to report to work on Saturday, Tush-
man told him to "keep [your] nose out of things where it
doesn 't belong ." Although Tushman denies having ut-
tered the specific aforequoted statement attributed to him
by Lawrence, Tushman concedes he "did lose my com-
posure" and reacted in a "raised voice," apparently be-
cause the circumstances involved Jabalea's working on
Tushman's brother's boat rather than with the other
drivers on Saturdays. Since, however, Lawrence as
union steward was wholly justified in questioning Re-
spondent 's excusing Jabalea from truckdriving unit
chores on Saturdays, because he was thereby presumably
throwing more Saturday work on other unit employees,
ORLEANS INTERNATIONAL
Tushman was clearly wrong in losing his "composure"
with Lawrence and in a "raised voice" berating or dress-
ing him down-and, on my comparative testimonial de-
meanor observations, I prefer and credit Lawrence's ac-
count of the episode in question-for doing no more than
his duty on behalf of unit members as their steward.
Such an unjustified dressing down of the union steward
for carrying out his obligations to the unit members
cannot be regarded as other than coercive and restraint-
ful, in violation of Section 8(a)(1), not only toward
Union Steward Lawrence but also toward the entire
unit. Cf. Johnson Motor Lines, 228 NLRB 393 (1977). 1
accordingly find paragraph 8(b) of the complaint estab-
lished 2
The complaint also alleges a number of threats voiced
to as well as at Union Steward Lawrence by Morreale-
around early May, for protected concerted activity (par.
8[c][1] and, during July, plant closure and conversion to
a nonunion operation to escape from the requirements of
the subsisting collective agreement (id. par. 8[c] 2); fur-
ther, about August 13, that if Union Steward Lawrence
(then on suspension ) wanted his job back, he should give
up his status as union steward and should also drop his
pending intraunion charges against Morreale seeking the
latter's expulsion from the Union (id. pars 8[d] I & 2).
Regarding the foregoing, Union Steward Lawrence
testified that around early May (1981), when he asked
Morreale why Lawrence was assigned no assistance to
help him load his truck, Morreale told him that "[your]
ass [will] be out on the street .. ., [b]ecause you're al-
ready starting [some] sh-t." This was no more than a
crudely worded threat to Lawrence for no more than
asking a legitimate work-related question constituting
protected concerted activity. Cf. Uniworld General, Inc.,
244 NLRB 255, 258-259 (1979); Johnson Motor Lines, 228
NLRB 393 (1977). Further, in early July (1981), Mor-
reale accused Lawrence that "it was [your] fault" that
the employees did not agree to wage "concessions" pro-
posed by the Company and that "if you continue to in-
fluence the men . . the company . . would probably
close down" and that "would be on [your] conscience";
and that the Company would or might "reopen[ing]
under Heritage Trucking" or "transfer into Heritage," a
cartage company located in the same building as Re-
spondent but paying its drivers "freight wages"; adding
that "the company would dust simply . . fire all the Or-
leans [i.e, Respondent's] employees and call back [only]
the ones that they wanted . . . Gale Schieweck and
Mike Wehr, the company wouldn't call them back . . . .
And you know, they're not going to call you back . . . .
Schieweck and Wehr . . caused a lot of problems and
[I can't] understand why they were filing grievances, and
why [you were] defending them." Steward Lawrence
2 In its discussion of par 8(b) of the complaint, Respondent on brief (p.
3) totally ignores the episode in question, instead applying it to a Decem-
ber 1980 incident involving a grievance meeting concerning one Mike
Wehr for allegedly swearing at supervisors, during which Tushman re-
marked to Lawrence that he should not be filing grievances lacking
merit Since this incident is not involved in the complaint allegation and
would, in any event, arguably be no more than privileged expression of
opinion, it need not be dealt with here
1131
(the Charging Party here) thereupon promptly, on July
9, wrote a letter (G.C. Exh. 10) to the Union:
This letter is to advise you about a rumor unsub-
stainted [sic], but nevertheless worth preparing for.
It seems after all the losses recently incurred by Or-
leans, managment [sic] is silently weighing options
involving going non -union , or closing and re-open-
ing under different names not excluding an affiliate
name Heritage.
I wish to emphasize this is only a rumor, perhaps
a tactic even so, such a catastrophe, threat should
be considered as an altei native, and being known in
advance effectivley [sic] countered and contested, if
said circumstances evolve.
There is no indication, however, that the Union did any-
thing about this.3
As will be shown below, on July 21, 1981, Steward
Lawrence was suspended-and subsequently dis-
charged-allegedly because of an accident he had had a
few days earlier. While Lawrence was thus under sus-
pension , around mid-August he spoke to Morreale about
his job status. Morreale told Lawrence that "it would be
a good idea if [you] were to give up your role as Union
steward." Lawrence replied that "I had planned on run-
ning in the next Teamster's election and I felt that this
might interfere with that role. And that it would look
like a sell out." Morreale responded that "[you are] pro-
tecting the wrong guys," adding that Lawrence' s intra
union charges against Morreale and others (see G.C.
Exhs. 7, 8, 9) "would hurt [you] more than it would hurt
[me]." Lawrence told Morreale that "it [is] too late to
drop my charges against [you] and that I [Lawrence]
wouldn't be pursuing [you] out of malice or anything."
Morreale rejoined that Lawrence "could just give up
[your] role as Union steward for a couple of days or a
couple of weeks or something and then reclaim-be a
`good boy' so to speak, and then reclaim that role,"
adding that Lawrence had "been causing the Tushman's
a lot of problems" and that Morreale's and the Tushman
"families were close together and . . visit one another."
Union Steward Lawrence, nevertheless, presented his
charges against Morreale and others to the executive
board of the Union on August 17. On that evening or the
next day, Morreale gave Lawrence a strong indication
that he would not attempt to get Lawrence's job back
for him in view of the fact that Lawrence was persisting
in pressing the intraunion charges against him, reminding
Lawrence that "I dropped enough hints" and that he
was "angry with [you]." Within a few days, Lawrence
was fired. Although he filed a grievance over it, the
Union declined to take it to arbitration.4
Concerning the foregoing, Morreale denies that he
blamed Lawrence for the employees' not making wage
concessions, or that he told him "that if Mr. Lawrence
3 It is to be noted that the foregoing letter (G C Exh 10) was written
by Lawrence to Union Business Agent Isom , one of the union officials
Lawrence had been unsuccessfully attempting to unseat
° There is no indication that Lawrence took action against the Union
for this failure Cf, e g , Act, Sec 301(b), Bowen v Postal Service, 459
U.S. 212 (1983), Vaca Y Sipes, 386 U S 171 (1967)
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to influence the men, the company would
close the business," or that Lawrence was "causing trou-
ble with the company," while admitting that he "prob-
ably" spoke to Lawrence "considerably" about the "on-
going contract negotiation." In contrast to Lawrence,
Morreale insists that it was Lawrence who suggested to
Morreale that Lawrence give up his union stewardship in
order to get his job back, but that Morreale told him it
would do no good-a concoction I regard, closely ob-
serving Morreale while he uttered it on the witness
stand, as incredible, the same as Morreale's further insist-
ence on the witness stand that he harbored no resent-
ments against Lawrence because of the antra union
charges Lawrence had filed against Morreale. I have had
previous occasion (supra) to comment about my adverse
reactions to Morreale' s testimonial demeanor, which
were fortified as he continued to testify under my close
observation. In marked contrast, I had no such reactions
to Lawrence during his described testimony. Crediting
Lawrence's testimony accordingly, I find the allegations
of paragraphs 8(c) 1 and 2, and 8(d) 1 and 2 of the com-
plaint established.
C. Lawrence's Discharge
It is uncontested that on August 26 or 27, 1981, Re-
spondent discharged from its employment Union Stew-
ard Charles C. Lawrence, Charging Party here (com-
plaint par. 9[a]).
The record is replete with evidence that Lawrence,
who had served Respondent well as a truckdriver for
over 5 years,5 was an ardent and zealous spokesman for
his fellow employees as their elected union steward; and
that, as such, he had become a veritable thorn in the side
not only of Respondent Employer 6 but also of the
Union, since he was active in an insurgent group at-
tempting to bring about changes in the Union by unseat-
ing its hierarchy (Lawrence had been unsuccessful in his
recent efforts to attain office in the Union.) In Law-
rence's straddle against both camps (the Union and Re-
spondent Employer), Lawrence had (with the support of
the unit employees-see G.C. Exh. 7) also crossed
swords with and incurred the enmity of Respondent's
agent and supervisor Morreale (as above described),
whom Lawrence had sought to oust from union member-
ship on the ground that he was a supervisor and allied
with management (see G.C. Exh. 7).
Lawrence had incurred Respondent's displeasure by
reason of what it perceived as his zealousness as elected
union steward in representing the unit employees, in var-
ious important respects, among them (1) his repeated
5 Respondent's principal Tushman himself testified that Lawrence "did
a fantastic job" for Respondent
6 For example, Respondent's former truckdriver William F Denney
testified credibly that around early February (1981), after Respondent's
office manager Gammage criticized his work and Lawrence filed a griev-
ance on Denney's behalf and supported Denney therein, Morreale cau-
tioned Denney not to "believe any of that bullsh-t that's going around"
and that Morreale remarked to Denney, "They're trying to get Charlie
Lawrence by getting to you " Around early May, as noted above, when
Lawrence was required to load his truck without assignment of any as-
sistance by Morreale , he asked Morreale why Morreale's response was
that "[your ] ass [will] be out on the street [b]ecause you 're already
starting [some) sh-t "
filing and pursuing grievances on behalf of the employ-
ees he represented-not only his and their right under
the Act, but also his duty as steward, but resented and
criticized by Respondent's principal Tushman as well as
by Morreale, and for which Lawrence was even threat-
ened by them with discharge, (2) his ardent bargaining
positions and demands, and his open and persistent advo-
cacy of wage betterments (see, e.g., G C Exh. 5); (3) his
bringing of intraunion charges against Respondent's
agent, supervisor, and social friend Morreale (see, e.g.,
G.C. Exhs 7, 8, 9), in connection with which, it is to be
noted, Respondent's labor relations consultant Richard
Travis-who was centrally involved in Lawrence's discharge,
as noted below-appeared on behalf of Morreale and the
other defendants (see, e.g, notation at bottom of G C.
Exh. 8);' (4) his open, avowed, and known activity in
TDU (Teamsters for a Democratic Union), designed to
oust the established union hierarchy with which Re-
spondent had enjoyed a longtime placid relationship
marked, as attested by Respondent's principal Tushman,
by only "two [labor] arbitrations in the last 48 years";
and (5) a number of somewhat unpleasant if not rancor-
ous exchanges with Tushman as well as Morreale, arising
out of Lawrence's pursuit of his stewardship responsibil-
ities, with Lawrence declining to kowtow to either, but,
on the contrary, persisting in his representation of the in-
terests of his constituents.
Considering the intense, and intensely employer-resent-
ed, level of Lawrence's protected concerted activities
under the Act, projected against the frame of reference
of his over 5 years of satisfactory employment history,
there can be no doubt that the General Counsel made
out a prima facie case of discharge in violation of Sec-
tion 8(a)(3) and (1) of the Act. Under these circum-
stances, as the Supreme Court has recently instructed, it
devolved upon Respondent to establish by preponderat-
ing credible proof that he was discharged for some other
controlling reason. NLRB v. Transportation Management
Corp., 462 U S 393 (1983).
Respondent has attempted to meet that requirement by
claiming that it discharged Lawrence because of an acci-
dent in which one of its trucks which he was operating
on July 18, 1981, was overturned. In considering wheth-
er this was the true reason for his discharge , it is neces-
sary to consider not only the circumstances surrounding
the accident in question but also whether Respondent's
action in discharging Lawrence by reason thereof was
precedented and usual or, on the other hand, unprece-
dented and unique and for that or other reason disparate
and discriminatory.
Respondent contends that Lawrence was discharged
for turning over a leased , insured truck (involving, in its
view, "careless and reckless driving"-G.C. Exh. 13; at
the hearing, Tushman, added "speeding"), as well as for
driving on an "expired Michigan driver's license" (G.C.
Exh. 13).
The facts regarding whether the turnover of the trucl
in question, on the occasion and under the circumstance,,
' Although these charges had been filed in early 1981, at the time of
the instant hearing in December 1983 they remained unresolved to Law-
rence's knowledge
ORLEANS INTERNATIONAL 1133
in question, was due to Lawrence's fault, are equivocal
and inconclusive Lawrence's account, which I credit
since it was not only credibly described by him testimon-
ially but is substantially uncontradicted by any eyewit-
ness, indicates that it was, at worst, doubtfully his fault
As a highly experienced truckdriver, in process of com-
pleting a turn, at a rate of speed not established to have
been unreasonable, after coming off an exit ramp from an
expressway, with an empty and therefore seemingly
somewhat top-heavy large truck, the truck's rear wheels
(and the superstructure van atop them) rose off the
ground after hitting a bump, tilting the high conveyance
over. Moreover, according to Lawrence, the leased vehi-
cle's brakes failed to operate properly No other vehicle
or person was involved, nor, other than to the leased in-
sured truck itself, was any property damage, involved A
traffic citation was issued to Lawrence by a policeman
who had not witnessed the accident, for "careless driving"
without a valid Michigan driver's license." Although the
accident was not witnessed by the policeman, it was wit-
nessed-in addition to Lawrence-by another driver of
Respondent, Terrance Cummings, who was driving a
truck directly behind that operated by Lawrence, and
also by a nearby gas station attendant who called the
police 9 The account of Cummings, testifying as Re-
spondent's witness, does not appear to be inconsistent in
major detail with that of Lawrence.
Insofar as the contention of driving without a valid
Michigan driver's license or driving on an "expired
Michigan driver's license" (G.C Exh 13) is concerned,
the undisputed fact is that at the time of the accident
Lawrence was in possession of an official printed form
from the Michigan motorists licensing authority, bearing
the words in bold dark print at the top, "MICHIGAN
RENEWAL TEMPORARY DRIVER PERMIT EX-
PIRES 60 DAYS AFTER DATE ISSUED" (with an
attached or enclosed "Michigan driver license renewal
application" 10), which Lawrence, in my opinion reason-
ably, construed to be a "temporary driver permit" for
the indicated 60-day period, in accordance with its word-
ing. Although Lawrence's interpretation of those words
seems to be in accordance with what they say, certainly
it was not unreasonable, and certainly, I find, he was not
really discharged for that reason (i.e., for driving without
a license or on an expired license).
Although, as has already been indicated, Lawrence's
account of how and why the accident occurred has not
been shown by any eyewitness, or credibly otherwise"
3 Since Lawrence was discharged before this citation was returnable, it
is conceded (testimony of Respondent ' s witness Travis) that the outcome
thereof-about 3 months after his discharge-played no part in that dis-
charge
Discussed infra, fn 11
10 While the forms submitted and received here (G C Exh 12) are not
those of Lawrence , it is undisputed that his forms were the same
11 The "investigation" of Lawrence's accident by Richard Travis, who
testified here on Respondent's behalf as its "labor relations labor law spe-
cialist" (not admitted to the Bar ), engaged by Respondent to "assess what
had transpired in the accident involving Charles Lawrence" (how or
why a "labor relations labor law specialist," as distinguished from an
automobile accident investigator or specialist , could be helpful in this
connection is unexplained), may hardly be regarded as a model for emu-
lation For example, Travis was professedly unable to locate a note of a
telephone conversation he allegedly had with the policeman who had
to be false or wrong, it is unnecessary here to determine
that question, in somewhat the fashion in a negligence
case, for two reasons (1) Even assuming arguendo that
Lawrence was at "fault" in relation to the accident, arti-
cle VII ("Discharge or Suspension") of the governing
collective agreement requires that no employee may be
discharged or suspended "without dust cause" and "at
least one warning notice . in writing" (concededly
none given here), unless "dishonesty or drunkenness or
recklessness resulting in serious accident" is involved
(G C Exh 4, art VII) The described circumstances
here would not appear to rise to the level of "reckless-
ness," but at most carelessness, which is not a specified
basis for discharge or even suspension without "at least
one warning notice in writing", indeed, even the ci-
tation, in this regard, was only for a "careless" act. (2)
Basically and perhaps even more importantly, it is estab-
lished and undisputed by Respondent, from its own
records (G C. Exhs 15, 16, 17, 18, 23A, 23B, 23C, 23D,
23F, 23G, 23H, 231, 23J, 23K, and 23L), that numerous
of its other drivers had also (some repeatedly) been in-
volved in serious, seemingly really "careless" (and even
arguably "reckless") accidents, including at least three i2
other truck overturns (Nowicki, G C. Exh 18, Jabalea,
G C. Exh. 15; Pencak, G.C. Exh 17), with no discharge
or other discipline.' 3 Indeed, there is no evidence that
any driver of Respondent, other than Lawrence, has
been discharged or suspended because of driving result-
ing in an accident accidents in the period 1977-1981).
And, insofar as Respondent's contention that Lawrence
was discharged for driving on an "expired . . license"
(G C Exh. 13) is concerned, here, too, Respondent's
own records establish that in a case where another of its
drivers (Schieweck) unquestionably operated one of its
trucks without a driver's license, he was neither dis-
charged nor suspended, but merely reprimanded (G C.
Exh. 16). 14
Under the circumstances, including Respondent's own
records, I find and conclude that in any event Respond-
ent's discharge of Lawrence was disparate and discrimi-
natory, and that his alleged traffic infractions, even as-
suming them to have been such, were not the real reason
issued the traffic citation to Lawrence And, although Travis conceded
that he was informed by Lawrence that Lawrence had a statement from
a witness to the accident-a gas station attendant at or near the scene of
the accident-for some inexplicable reason Travis failed to visit or speak
to the witness , or even to look at his statement (G C Exh 25 ) in Law-
rence's possession As asserted by Lawrence , that statement of the wit-
ness (presumably an impartial eyewitness), received here only for the lim-
ited purpose indicated in the transcript (pp 409-412) is exculpatory of
Lawrence, and could well have served that purpose if Travis had
deigned to consider it Travis also conceded that he did not review or
consider other accidents (including vehicle overturns , as shown below) of
other drivers of Respondent in reaching his recommendation that Law-
rence, of whose protected concerted activities as Union Steward Travis
was concededly aware, uniquely be discharged
i2 According to uncontradicted testimony of Lawrence, there were
four or five
13 Of these, all but Jabalea's truck overturn preceded Lawrence's truck
overturn , Jabalea 's occurred later (September 30, 1981)
14 Lawrence 's grievance "hearings" before the Union, based upon his
suspension and his discharge by Respondent following the accident, were
held before a 6-man board including 4 union officials Lawrence had ac-
tively been attempting to oust (supra ) This group also declined to pro-
ceed to arbitration on behalf of Lawrence (See In 4 supra )
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for his discharge, t 5 but that his lawful but employer-dis-
favored zeal in pursuing his activities as elected union
steward was the real, true, and actual reason for his sus-
pension and discharge. On this aspect of the case, we
must be heedful of the Supreme Court's admonition that
employer imposition of more severe sanctions upon em-
ployees who are union officials or spokesmen than on
other employees violates Section 8(a)(3) and (1) of the
Act. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983)16-in that case notwithstanding the Employer's
imposition of such sanctions on union officials on four
prior occasions, twice upheld by arbitrators. See also
Blue Arrow, Inc. v. NLRB, 725 F 2d 682 (6th Cir. 1983)
It is accordingly determined that the allegations of
paragraphs 9(a) and (b) of the complaint, concerning Re-
spondent's discharge of Union Steward Charles C. Law-
rence, have been established.
On the foregoing findings and the entire record, I state
the following
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2 By engaging in the acts described and found in sec-
tion III,B, above, Respondent has interfered with, re-
strained, and coerced employees in the exercise of their
rights under Section 7 in violation of Section 8(a)(1) of
the Act.
3. By discharging employee Charles C. Lawrence
about August 26, 1981, under the circumstances de-
scribed and found in sections III,A, sections 111,13, and C
above, and failing and refusing to reinstate or reemploy
him since then, Respondent has discriminated and contin-
ues to discriminate in regard to the hire, tenure, and
terms and conditions of employment of employees, there-
by discouraging or encouraging membership in a labor
organization, in violation of Section 8(a)(3) of the Act;
and has interfered with, restrained, and coerced employ-
ees in the exercise of their rights under Section 7 and
continues to do so, in violation of Section 8(a)(1), of the
Act.
4. The foregoing unfair labor practices and each of
them have affected, are affecting, and unless permanently
restrained and enjoined will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent's application for costs and legal fees is
devoid of merit and should be denied.
vacation pay, and hospitalization and other medical bene-
fits, including reimbursement for any expenses or obliga-
tions incurred by reason of any cancellation, withdrawal,
lapse or nonpayment of premiums thereon, by Respond-
ent) lost or reduced by reason of the discharge and
during any immediately preceding period of suspension
without pay, and with full restoration of seniority and
recognition of status as elected union steward as though
the discharge had not occurred, and also to make the dis-
charged employee whole for any added income tax obli-
gation on his part resulting from payment to him of any
sums due hereunder in a lump sum rather than as and
when originally due and payable, so as to increase the
amount of his tax liability through change in his income
tax bracket or otherwise in consequence of such delayed
lump-sum payment;" all as determinable in a supplemen-
tal backpay proceeding if necessary Sums and interest
should be computed as explicated by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing Co.,
138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977). All references in Respondent's
records to Lawrence's discharge should be deleted and
Lawrence so informed in writing Respondent should be
required to desist and refrain from indicating to any pro-
spective employer, unemployment insurance agency, ref-
erence seeker, credit agency, or character inquiry that
Lawrence was so discharged. Respondent should also be
required to preserve and make available to the Board's
agents its books and records for backpay and compliance
determination purposes, and to post the usual informa-
tional notice to employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, Orleans International, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
A. Cease and desist from
1. Threatening to lay off, discharge, or discipline any
employee for membership in or lawful activities on
behalf of any labor organization
2. Threatening, in violation of the Act, to close Re-
spondent's plant or facility or to operate it as a nonunion
REMEDY
Respondent should be required to cease and desist
from its actions here found to have been violative of the
Act, as well as from like and related actions. Respondent
should also be required to offer full and unconditional re-
instatement to the discharged employee to his former job
(if available; if not, to a substantially equivalent job) and
to make him whole, with interest, for any wages, over-
time pay, accruals, bonuses, health and welfare and pen-
sion fund payments, and benefits (including vacations and
15 It will be recalled that Respondent's principal Tushman himself con-
ceded that Lawrence "did a fantastic job" for Respondent
16 Seemingly overruling Fournelle v. NLRB, 670 F 2d 331 (D C Cir
1982)
17 Cf Sears v Atchison, Topeka & Santa Fe R R Co, 31 EPD par 33,
388 (U.S D C Kans 1983) Board and courts have repeatedly pointed
out that the purpose of backpay is to make the unlawfully treated em-
ployee whole Payment to such employee of backpay in a delayed large
sum could be substantially detrimental to the innocent employee through
forcing the employee into a higher income tax bracket , thereby reducing
the employee's net income he or she would have derived if he or she had
been paid on time Since that result would be a direct consequence of the
nonpayment of moneys due on time , when they would and should have
been paid but for Respondent's unlawful actions in preventing that, it
seems utterly clear that the Respondent who brought that about should
indemnify the innocent employee for any such loss The foregoing is the
rationale for including the indicated requirement in the remedial order
here
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORLEANS INTERNATIONAL 1135
operation to avoid Respondent's obligations under a sub-
sisting collective agreement with a labor organization
representing Respondent's employees
3 Threatening, in violation of the Act, any union
steward or other official or agent of any labor organiza-
tion representing Respondent's employees, for filing
grievances or for questioning Respondent's disciplinary
policies.
4 Threatening any union steward or other official or
agent of any labor organization representing Respond-
ent's employees with discharge or other discipline unless
he relinquishes his status as such union steward, official
or agent.
5. Threatening any union steward or other official or
agent of any labor organization representing Respond-
ent's employees with discharge or other discipline in the
event he pursues or does not withdraw any intraunion
charge against any supervisor or agent of Respondent
who is also a member of said labor organization.
6. Discharging, suspending, laying off, furloughing, or
disciplining any employee because he has engaged or en-
gages in any activity lawful under the Act; or failing or
refusing to reinstate or reemploy any employee for that
reason.
7. Taking or threatening to take any like or related
action against any employee
13. Take the following affirmative action necessary to
effectuate the policies of the Act
1. Offer to Charles C Lawrence immediate, full, and
unconditional reinstatement to his former position in Re-
spondent's employ in Detroit, Michigan (or, if not avail-
able, to a substantially equivalent position), without prej-
udice to his seniority and other rights, privileges, bene-
fits, and emoluments, including but not limited to any
and all wage and pay scale increases and progressions as
if not discharged about August 26, 1981, and make him
whole for any loss of income (including overtime pay,
holiday and vacation pay, health and welfare and pen-
sion fund payments, and reimbursement for all hospitali-
zation, surgical, medical, and other payments or obliga-
tions incurred by reason of any cancellation, withdrawal,
or nonpayment of premiums or any applicable insurance
coverages) in consequence of Lawrence's discharge and
nonemployment on and since August 26, 1981, and any
immediately preceding period of suspension without pay,
and also for any additional tax liabilities, together with
interest, in the manner set forth in the remedy portion of
the decision of which this Order forms a part.
2 Expunge from all of Respondent's books and
records any entry indicating or to the effect that the dis-
charge and subsequent nonemployment of Lawrence was
for cause, refrain from making any such statement or
report voluntarily or in response to any inquiry from any
employer, prospective employer, employment agency,
unemployment insurance agency, reference seeker, or
character inquiry, and promptly notify Lawrence in writ-
ing that such entries have been expunged and that evi-
dence of the discharge and nonemployment will not be
used as a basis for any future personnel action against
him.
3. Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, wage rate and income records, work sched-
ules, overtime records, health and welfare and pension
and insurance records, personnel records and reports,
and all other records necessary to determine the amounts
of backpay and other sums due under and the extent of
compliance with the terms of this Order.
4. Post at its premises at 6030 Joy Road, Detroit,
Michigan, copies of the attached notice marked "Appen-
dix."19 Copies of the notice, on forms provided by the
Regional Director for Region 7, 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 cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
5. Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Respondent's application
for costs and legal fees is denied.
19 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 "