Pandair Freight, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1980

253 N.L.R.B. 973 (N.L.R.B. 1980)

PANDAIR FREIGH . INC.
Pandair Freight, Inc. and John Conway. Case 29-
CA-7557
December 24, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANDI MEMBERS
JENKINS AND) PENELIO
On September 16, 1980, Administrative Law
Judge Robert T. Snyder issued the attached Deci-
sion in this proceeding. Thereafter, both the Re-
spondent and the General Counsel filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as further explained herein, and to adopt his
recommended Order. 2
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging employee John Conway because of
Conway's activities on behalf of Local 295, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. The Ad-
ministrative Law Judge also found that Respondent
violated Section 8(a)(l) of the Act by soliciting
Conway to write a letter to Respondent renounc-
ing any intention to organize a union or encourage
other employees to exercise their organizational
rights under Section 7 of the Act and by unlawful-
ly promising wage increases and other benefits to
Conway to induce him to refrain from the exercise
of his Section 7 rights. In addition, the Administra-
tive Law Judge dismissed the General Counsel's
complaint allegation that Respondent violated Sec-
tion 8(a)(l) by threatening Conway with discharge
because of his union activities.
In affirming the Administrative Law Judge's
finding that Respondent violated Section 8(a)(3)
and (1) of the Act, we note the April 25, 1979,
memo which Respondent's District Operations
Manager, Thomas Slabowski, sent to Respondent's
Eastern Regional Manager, Peter J. Appleton. In
this memo, Slabowski suggests that Respondent
I ResIpondent has excepted to certain credibility findings made b the
Administrative Law Judge It is the Board's established policy not It1
overridle all adininlsratlse law judge's resolutions sith respecl to redl-
bilitl unless the ileai preponderance of all of the rleanl e idvnce con-ll
viccs us that the resolullons are incorrect Standard Dr Ial/i Prolduct.
Inc, 91 NLRH 544 1950), enfd 188 1 2d 362 (d Cir. 1951) c hlla
carefully examined tIh record and ndti no basis for redersing his filldings
' W have nltilified thc Ad niistrative I a Judge's notice Io c1 tlllfo r I
with his re.omnlenildd ()rdel
offer Conway "a lead position" in order to "con-
trol him." Slabowski further states that he will "lay
down the law" to Conway in private and "monitor
his movements and productivity." 3
We recognize that under Section 10(b) of the
National Labor Relations Act, which provides that
no complaint may be based upon an unfair labor
practice occurring more than 6 months prior to the
filing of the charge with the Board, the April 24
memo cannot constitute an unfair labor practice.4
We find, however, that the April 24 memo is com-
pelling background evidence of Respondent's hos-
tility to Conway's union activities and its intention
to discover a pretextual rationale for Conway's dis-
charge should he persist in engaging in union activ-
ities.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent. Pandair
Freight, Inc., Queens, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
:h' eh April 24 meinlo senlt by Slahbs ith infra in that section of the Decision concerned with Conway's
discharge.
In a form letter dated September 18, 1978, addressed to Conway.
Howard noted that in the election the employees would be deciding
whether they want to keep the personal relationship they had with man-
agement or whether they ant their daily activities under the innuence
of he Union
974
PANDAIR FREIGHT, INC.
consequence of the foregoing events, the results of the
election were certified and the Union failed to achieve
majority representative status.
At the election Conway served as the Union's observ-
er. Immediately following the count, Conway remarked
to Supervisor Borgies, "Well Tom I guess this is it, I
guess I'm going to get fired." Alan Craig, operations
manager, came over to Conway and said, "John, we're
not going to fire you because of this, we're going to keep
you on .... I don't even want you to quit." Company
knowledge of Conway's union activities and sentiment,
generally, was also established shortly afterward.
Conway testified without contradiction that on October
26, 1978, Peter J. Appleton, eastern regional manager, in-
formed him that he understood the reason Conway had
gone to the Union was due to being mistreated by past
mismanagement. In order to correct the existing situation
of salary inequity, Appleton told Conway he would be
receiving a second raise in addition to the one recently
granted. 2
Conway's salary increases in October 1978 were part
of a company plan to review all salaries periodically
over the next 12 months in order to determine which
personnel should receive increases and the cost of such
increases. It was contemplated, and employees had been
informed in October 1978, that further reviews would be
made in April 1980 and again at the completion of the
12-month period in October 1980. As announced, all in-
creases were to be consistent with and subject to the
Company's profitable growth.
B. Conway's Subsequent Work History and the
Alleged Promises of Benefit, Threat, and Solicitation
of Disavowel of Union Support
On January 16, 1 9 7 9 ,a while at work, Conway backed
into a piece of equipment and severed an achilles tendon.
Conway had an operation the next morning to repair the
tear and remained out on disability until April 24 when
he returned to work at his normal duties. During this
period of disability, besides keeping the Company in-
formed of the progress of his recovery, Conway tele-
phoned the Company to request that he be employed to
do office work while he was still wearing a walking cast.
Conway was called into a meeting with company repre-
sentatives in late February where he was informed that
because of the risk of reinjury resulting from his use of
crutches he could not return to work at that time.
2 By letter dated October 19, 1978, Howard informed Conway that
based upon a review of all staff salaries Conway's was increased from
$9,360 to 10.998 per year effective from October 9, 1978. Howard ac-
knowledged a recent discussion in which Conway had questioned the size
of this increase, and promised that Conway would be advised by October
27, 1980, as to the Company's decision on further consideration of his
salary. Then by letter dated October 26. 1978, marked "Private and Con-
fidential," Appleton confirmed the meeting at which he informed
Conway that the initial increase of 17 percent was to be supplemented by
another II percent bringing Conway's annual gross salary up to 12,220
The letter recited that the increases were granted in a genuine effort to
correct a salary inequity, expressed the hope that any acrimony that
might have existed (a veiled reference to the recent union election cam-
paign) could be laid aside, and sought Conway's cooperation in working
with his colleagues and supervisors.
I All dates hereinafter will have reference to 1979 unless otherwise
noted.
Upon Conway's return to work from disability leave
on April 24, he returned to the same position he held
prior to the injury. On that date he met with Thomas J.
Slabowski, newly appointed district operations manager,
who offered Conway a 6.38 percent increase pursuant to
the 6-month salary review. Conway complained that the
increase was inadequate.4 During this conversation, Sla-
bowski acknowledged past salary inequities, and stated
that he was trying to get the salaries in order and he
would get back to Conway in a week or two about his
raise. Slabowski also referred to assisting an employee,
Doug Lang, who, after complaints were made about his
work performance as a messenger, was transferred to a
position as telex operator. Slabowski also told Conway
that, if an employee gives him a hard time, he would re-
ciprocate in kind.
Some weeks later, in mid-May, while attending a com-
pany party, Conway told Lynn Zeuner, personnel ad-
ministrator, that he was upset by Slabowski's failure to
get back to him about his raise. Zeuner said she would
find out what happened and get back to Conway the fol-
lowing Monday. Conway testified that during their con-
versation the subject turned to unions and Zeuner told
him how the Company could not afford one. On the wit-
ness stand Zeuner acknowledged speaking to Conway at
the company affair. She recalled that he claimed that he
did not receive any April raise and that he was quite
upset about it, expressing the view that the Company
was again giving him the shaft. According to Zeuner,
the reference to unions came about when Conway said
the Company was probably doing this to him because he
had something to do with the Union. Conway stated his
feeling that everyone was still holding his involvement in
the Union campaign against him, then added that he had
expressed the view to a few people on different occa-
sions that he had nothing more to do with the Union and
did not want anything more to do with the Union. Ac-
cording to Zeuner, Conway concluded by saying, "It's
to the point now where I'm even willing to put that in
writing." Zeuner testified that she said that was not nec-
essary because she first wanted to check out the facts of
the increase. 5 She also responded that she believed he
4 According to a memorandum dated April 25 from Slahbowski to Ap-
pleton, Conway complained that this figure was in disregard of his 2-1/2
years of service and the previous raise awarded him. The memorandum
continues:
It is my opinion that, if his salary is put in line for service rendered
as well as tenure, we can offer him a lead position under Frank Phil-
bin and thereby control him It will also show good faith from PAN-
DAIR TO HIM. A review of his work would he scheduled for no
later than 01 June. Not that we are to be pressured or as you say
victimized by himl or any staff. If approved, I will lay down the
law. in private to him, and will monitor his movements and produc-
tivily
It concludes by requesting Appleton's comments.
1 credit Conway's version of this conversation to the extent that no
mention of a writing and certainly no mention of a writing suggested hb
Conway himself was made at this time I also conclude that Conway did
express his feelings on this occasion that his increase was being withheld
because of his past union activities In this respect Zeuner's version of the
conversation is partially credited. My conclusion in this regard is consist-
ent with the nature of the Company's treatment and attitude toward
Conwa) manifested in Craig's comments of September 21, 1978, and Ap-
Continued
975
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
was in error; that she recalled doing the payroll and
seeing an increase for him. Zeuner agrees with Conway
that she advised him she would check the matter out and
get back to him.
On Saturday both Conway and Zeuner were at work.
Zeuner discovered that Conway had received the small
increase, but that $100 had been deducted from Con-
way's net pay because of a $100 cash advance on salary
the Company had provided Conway at the time he
became disabled and before he received his first conmpen-
sation check. When Zeuner explained this to him,
Conway reminded her that Slabowski was also supposed
to be looking into a further increase.
On the following Monday Conway was called to a
meeting with Slabowski and Zeuner in Slabowski's
office. Slabowski began by apologizing for failing to get
back to him as agreed. According to Conway, at this
point Zeuner said she was behind him 100 percent, that
she wanted to see him go somewhere in the Company,
but that she had to have some sort of assurance that he
was not going to bring the Union in because her job
would be in jeopardy.6 Conway stated he responded,
"We've gone over this a number of times, 7 what can I
possibly do." As related by Conway, Zeuner then sug-
gested that Conway write a letter to the Company stat-
ing that he had no intentions of organizing the Union.
Conway testified on cross-examination that, during this
conversation at which the letter was mentioned, Sla-
bowski and Zeuner also asked him if he would just talk
to his fellow employees and tell them what the Company
is doing for them and to forget about the Union. In Con-
way's own words:
They asked me to, realizing that I had been pretty
much influential in getting these guys to sign cards
and what not, they asked me if I would just talk
about pro company . .. [and] forget about the
union.
Conway said that he would but did not recall ever
having done so.
At this meeting Conway was also informed that he
would be receiving an additional raise. According to
Zeuner's uncontradicted testimony, Slabowski stated that
he had gotten approval for an additional increase because
of Conway's seniority, and he would receive it on the
next paycheck. Company records show that the addition-
al raise was $1,500, and that the combined April raise ap-
proximated 18 percent. Conway's new salary had risen to
pieton's comments and Howard's letter to him of October 26, 1978. and
what Conway could logically perceive on his return to work on April 24,
1979., as a change in the Company's perception of him. The matter of the
origin of a suggestion of a letter or writing of disavowl will be rcatcd
shortly, infra.
s These remarks attributed to Zeuner are a synthesis of Conway'. testi-
mony on direct examination, cross-examination, and rebuttal On this sub-
ject, as well as the fact that Zeuner first raised the matter of a letter of
disavowel, Conway's testimony was remarkably consistent.
7 When questioned about previous occasions on cross-examination,
Conway referred to talks he had had with Operations Manager Craig.
and then described the one immediately after the election Another time
when Conway expressed his feelings of being singled out fr his union
role was during his talk with Zeuner some weeks earlier at the company
part y.
$14,500, better by $1.000 to $1,500 than that of 8 of the
11 nonsupervisory warehouse employees employed at the
Queens location.
According to Zeuner, it was Conway who brought up
the matter of a letter when, after stating that he felt the
Company still held his union activities against him,
Conway told Slabowski that he had even told Zeuner he
would he willing to renlounce union involvement in a
letter. Zeuner testified she responded that it was not nec-
essary and to leave things the way they were.
I credit Conway's version of the mid-May conversa-
tion with Slabowski and Zeuner. Slabowski did not tes-
tify in this proceeding. Thus, Zeuner's version was not
corroborated although Respondent had a witness in its
control present during the interchange whose testimony
presumably could have corroborated Respondent's inter-
pretation of the transaction. An inference can be drawn
that Slabowski's testimony here and in other significant
respects would not have aided Respondent's cause. In
this regard Slabowski's comment to Appleton in his
April 25 memo that he would monitor Conway's move-
ments upon approval of a substantial salary increase takes
on added significance. Neither did Zeuner specifically
deny that Conway had been asked to try to induce other
employees to reject further union organizing efforts. As
the subject of Conway's encouraging other employees
originated with the Company, it would have been con-
sistent with its concern that the known union leader
among the employees be asked to put his own disavowel
tn writing. Giveil Conway's subsequent problems in
drafting such a letter, discussed inJi'a, it is highly unlikely
that the suggestion originated with him.
Since Conway was granted a raise during the course
of the meeting, the Company also had a much greater
stake than Conway in seeking to reinforce a positive re-
sponse to its gesture of magnanimity. Conway was con-
vincing on the three separate occasions he was asked to
testify about this matter in firmly denying that he pro-
posed the letter. Zeuner testified that on two occasions
she rejected the letter with the comment that it was not
"necessary," thus permitting the inference to be drawn
that the Company considered the letter a possible course
of action even if it felt it was not necessary to require its
submission at the time.
Conway testified that he never did write the letter or
submit one to the Company. Initially, Zeuner wanted it
by the Wednesday following the meeting. Conway start-
ed to write it but could not figure out exactly what to
say. He then asked Zeuner for more time and received
her approval. After another week or so, he still had not
progressed further on its drafting and told Zeuner he
would have it by the end of the month. By June 1,
before he had the letter worked out, Conway again
became physically disabled and ceased work again.
On a day sometime in May, probably after the meeting
just described, Conway made mistakes in preparing ar-
rival notices with reference to incoming freight. The
notice described the freight, the number of pieces, their
weight, and destination Conway had noted four pieces
of freight at 120 pounds. Actually, the pieces combined
weighed over 700 pounds but the error was noticed
976
PANDAIR FREIGHT. INC.
before shipment. If the error had gone undetected, since
the Company charged its customers by the weight of
items shipped, the cost would have been substantial. On
another occasion that month Conway, in preparing cer-
tain arrival notices, had failed to follow standing instruc-
tions to specifically note certain restricted articles (which
include flammable, magnetic, and acid items) to prevent
their consolidation for combined shipment with nonres-
tricted freight. The error was discovered and an improp-
er consolidation of freight was avoided but not before
the paperwork relating to the intended shipment had to
be changed late in the day to reflect fewer items shipped.
Conway's immediate foreman, Francis J. Philbin, testi-
fied that he brought this latter mistake to Conway's per-
sonal attention the following day, stressing the time lost
in redoing the paperwork. As a result of these errors
Conway was taken off arrival notice writeups.
Conway also had some problems getting to work on
time because he lacked a car and had to hitchhike from
his then home in Nassau County.
Philbin, called as a Respondent witness, testified that
he recognized Conway's travel problem, and moved
Conway to a later shift in order to make it easier for him
to hitch a ride to work. As for the work errors, Philbin
did not testify that he ever warned Conway that his job
was at stake, and, in fact, he described Conway as a very
good worker. However. by letter dated May 30, Sla-
bowski informed Conway that his removal from han-
dling arriving freight would continue until his attention
to detail had improved, which was not yet the case. Sla-
bowski also placed Conway on notice that his chronic
lateness would no longer be tolerated. Slabowski con-
cluded that, unless Conway showed a definite improve-
ment in motivation and interest and complied with the
work schedule, his resignation or dismissal would be re-
quired. 8
This letter appears to be at some variance with the
treatment accorded other employees who had made
work errors even more serious than Conway's. For ex-
ample, at a general meeting of the work force called
sometime in May, Slabowski stressed the serious conse-
quences of misrouting freight to the wrong destination in
that freight misshipped to the wrong country or conti-
nent had to be returned at great expense to the Compa-
ny, including shipping costs, fines, and possible loss of
the customer. According to Conway, misshipments hap-
pened from time to time in the past and Slabowski
warned that anyone involved in such an error thereafter
would be fired. According to Philbin, he did not recall
that specific warning but did recall discussion of a penal-
ty for the infraction. About a week after the meeting and
before Conway's error regarding arrival notices, employ-
ee Ed Lennon sent nine pieces of freight to the wrong
country and was not even warned about it.9 Conway
8 During the hearing, the General Counsel stated for the record that
this May 30 letter contained the unlawful threat of discharge upon which
the complaint allegation is predicated
U Conway testified specificall and with good recollection concerning
this incident. Philbin, when questioned during the presentation of Re-
spondent's case, acknowledged the timing of Slaboski's meeting ith
employees, that misshipments occasionall) occur, and that he once spoke
to employee l.ennon among others, including Conway, about such an
error, but he could not recall the date Respondent did not call any it
also testified without contradiction that Lennon and one
other named employee were not warned for preparing
improper arrival notices.t Conway also noted that his
latenesses were no more frequent than other warehouse-
men and that the employees pretty much kept the same
practices in this regard.
The May 30 letter from Slabowski was received by
Conway just before he left work again on a disability
and therefore he had no opportunity to discuss its con-
tents with the manager.
On Saturday, May 12, Conway injured his back while
loading heavy cartons at work. He continued working
but the following Tuesday reported the injury to his
foreman, Philbin. Conway thereafter continued working
but had trouble lifting and his condition grew progres-
sively worse. He was eventually examined by his own
doctor, who advised him to take a week off from work.
On May 31, Zeuner prepared a compensation claim
report and on Friday, June 1, Conway was treated at
Penninsula General Hospital and had his brother report
his absence to Philbin. While out the following week, on
June 5, Conway reruptured his achilles tendon and his
foot was placed in a cast. The next day Conway tele-
phoned Zeuner, informed her of his reinjury, and gave
her an estimate of approximately 2 to 3 months for re-
covery based on the timeframe for the original injury. "
He thereafter called Zeuner after about 10 days to report
on his progress. Then, after another 7- to 10-day period
toward the end of June, Conway called Zeuner again to
advise her of the progress on his foot. Zeuner. who had
reported Conway's most recent injury to Slabowski, did
not advise him of any change in his employment status.
The next day Conway received a letter dated June 25,
signed by Slabowski, initially expressing sympathy over
his recent injury at home and the Company's understand-
ing that as a result he would be unable to return to work
for an extended period. Slabowski then informed
Conway, "'hile we have given special consideration to
your circumstances and have taken all factors into ac-
count, we have been compelled to conclude that it is not
possible for us to keep your position open." The letter
concluded by informing Conway that his employment
was terminated as of June 25 and enclosed a check for
overtime and holiday pay. 12
ness to rebut Conway's assertion that ennon was not disciplined or
warned in writing by any responsible authority in management. including
SlahboAski. Further. although Respondent introduced into evidenlce a
hatch of discipliniary letters issued to arious employees during 1978 and
1979, there is no warning letter directed to t.ennon among them Lennon
was still employed at the time of the hearing.
" No arning letters regarding faulty) preparation of arrival notices
were inlroduced into evidence by Respondent.
l Zeuner corroborated Conw ay that he did give her a time period of
2 to 3 ilonths but claimed that it was during his second call to her about
a week after the accident.
12 Conway's discharge was accomplished without any recommenda-
tiion or direct input from his immediate foreman. Philbin testified that he
occasionally arned employees, Conway among them, about reprtinig
late for work. Philbin also marked attendance on a daily log, reported
absenteeism to management. anld forwarded to personnel a form which he
and he enlployee signed upon the eniployees' return to work and which
noted helthr the eniployce was to be paid for the abseince On one oc-
casion, in late April. Conwa! was docked I day's pay for failing to pro-
(ontinued
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During oral argument at the hearing, Lawrence Bur-
stein, Esq., counsel for Respondent, stated that Conway
had a history of absenteeism, he was sick a lot, and the
Company dealt with him fairly and honorably; and that
ultimately because of his recurring injuries and the fact
that he was going to be unavailable for an "unlimited"
period of time, Conway was dismissed.
In amplification of the matter briefly described in foot-
note 1, supra, during his preelection speech to assembled
employees, Chief Executive Howard illustrated the Com-
pany's favorable treatment of employees by describing
how it had held open the job of a warehouseman, Gene
Dugan, for 2 months and had even given him an office
position after Dugan had injured his knee in an accident
not related to the job. Upon receipt of the June 25 letter,
Conway telephoned Slabowski. Conway asked Slabowski
why he would say one thing and do another, referring to
the company policy of leniency which both Howard and
Slabowski had stressed. 3 According to Conway's un-
contested testimony,' 4 Slabowski finally responded,
"Well, I guess I did say one thing and do another." Sla-
bowski then mentioned the fact that Conway was sup-
posed to have provided a letter saying he would not
bring the union in. Conway replied that he was out on
compensation and just did not have the time to get it in.
Conway also testified that to the best of his knowledge
Slabowski did not refer to his work performance during
this conversation.
C. Analysis and Conclusions
1. The discharge of John Conway
Conway had been the key, if not the only, employee
organizer during the 1978 preelection campaign, culmi-
nating with his service as union observer at the Septem-
ber 21 election. That the Company at the highest levels
recognized and appreciated his union advocacy is estab-
lished at a number of points in the record. Company offi-
cials Craig, Appleton, and Howard each expressed their
understanding of Conway's crucial status, the former
two in conversations with him on September 24 and Oc-
tober 26, 1978, respectively, and the latter in the October
19, 1978, letter to him. The Company had vigorously op-
posed union organization of its Queens warehousemen
and, for the moment, had been successful; but a six to six
tie vote and certification of results one year could very
duce doctors' statements relating to visits he claimed prevented him from
performing Saturday work and a form was forwarded to personnel. In
the case of one employee discharged for chronic absenteeism at the end
of October 1978, Philbin, his foreman, was asked for the overtime and
other costs attributable to the employee's unexecused absences In the
case of Conway Philbin was not asked for any information from his re-
cords before the discharge, had no conversations with Slabowski regard-
ing Conway's employment after Conway again became disabled on June
I1 and recalled no direct involvement with.Conway's performance or at-
tendance after the absentee report of late April.
13 In Slabowski's initial meeting with Conway upon Conway's return
to work from his first disability, it is noted that Slabowski emphasized
flexibility in finding a place for an employee who had not worked out on
his first job with the Company See 4, supra. That comment had preced-
ed one noting that Slabowski expected reciprocity on the part of the em-
ployees.
"4 As previously indicated. Slabowski was not called to testify in Re-
spondent's defense.
easily have become a seven to five vote in favor of the
Union and resulted in a certification of representative the
following year. The Board has also interpreted the statu-
tory -year election bar in Section 9(c)(3) of the Act to
permit the filing of a representation petition within 60
days of the I-year anniversary date of the earlier valid
election.' 5 A new petition would have been timely filed
on July 23, 1979. Of necessity, its filing would have been
preceded by union solicitation of employees. Thus, in the
spring of 1979 it would have been reasonable for the
Company to have anticipated an early resumption of
union activity. The leading if not sole union advocate
was still in its employ.
Following the conclusion of the Union's unsuccessful
1978 election drive, the Company conducted an examina-
tion of salaries and established a process of evaluation by
job title and a periodic review to remove inequities, es-
tablish ranges, and maintain salaries at competitive levels.
There is some evidence in the record that the Company
viewed this endeavor, at least in part, as a means of
avoiding future organization of its work force. However,
in its initial revision of Conway's salary under the new
plan, it failed to satisfy Conway's feelings of past mis-
treatment. Conway was among the most senior ware-
house employees. The initial 17-percent increase was
among the highest granted, but still left him near the
bottom in absolute salary terms. Conway's protest result-
ed in a substantial supplemental increase; and, at the time
that the Company informed Conway of his successful
appeal, it made sure to couple the increase with the
veiled hint that he did not need a union to improve his
conditions of employment. In April Conway was again
successful in substantially raising the salary increase
planned for him. This time the Company was more
direct in its approach to him. After Conway complained
to Slabowski on April 24, Slabowski sent Appleton a
memo, the meaning of which requires little deciphering,
particularly in light of the mid-May meeting which fol-
lowed. The references to offering Conway a lead posi-
tion under Philbin and thereby controling him and to
monitoring his movements are clear. There is nothing in
the record showing that Conway ever soldiered on the
job or spent worktime away from his duties. His foreman
characterized Conway as a very good worker. The only
reasonable inference is that the price of retention, promo-
tion, and a substantial raise was going to be a close
watch on Conway's activities to insure that a union drive
did not get underway.
When Conway continued to voice his displeasure, this
time at a company party, relating it to continued feelings
that the Company was still holding his past union in-
volvement against him, the groundwork was set for the
meeting which followed. Conway received notice of an
11.5-percent supplemental April raise, and it was suggest-
ed that he reciprocate for the Company's recognition of
his worth by assisting it in forestalling another union or-
ganizing campaign among fellow employees by passing
the word of his good treatment without a union and by
himself pledging in writing to remain loyal by refraining
i' Randolph Metal Works, Inc., 147 NLRB 973 (1964)
978
PANDAIR FREIGHT, INC.
from engaging in another organizing effort. As Zeuner
noted, her job was on the line, and she needed some ex-
pression of Conway's fealty.
Conway never supplied the letter he had agreed to
submit. Its delay and ultimate nonproduction must have
caused some uneasiness among higher company officials
such as Zeuner and Slabowski, who had committed the
Company to a policy of appeasement and control of
Conway. When Conway again became disabled, the
Company chose to sever its relationship with him on the
ostensible ground of an indefinite absence from work,
which was reasonable on its face, but which in fact
shielded its true unlawful motive.
Conway had been a good employee of long standing.
He had some shortcomings with respect to tardiness but
his foreman recognized Conway's lack of transportation
and made some allowances for it. Conway's first disabil-
ity did not cause any problems for the Company and
Conway returned to his regular job after more than a 3-
month absence. But the continued coupling by Conway
of his perception of company hostility toward him with
his recent protected conduct alerted the Company to the
dangers implicit in its policy toward him.
The Company's ambivalence toward Conway is fur-
ther illustrated by the events of May and June.
Conway made some mistakes in preparing arrival no-
tices which could have caused substantial losses if they
had not been recognized in time. Still, Conway was not
discharged. Another employee had committed a substan-
tial error even after having been placed on notice to spe-
cifically avoid the error. That mistake had cost the Com-
pany. Yet, that employee had not been formally disci-
plined or fired. Further, the Company failed to produce
any evidence that Conway had a history of poor produc-
tion or workmanship over his 2-1/2 years of employ-
ment. While the work errors and tardiness did result in a
formal warning, they could not legitimately form the
basis for an immediate termination of employment. Fur-
ther, since Conway performed only a few days work fol-
lowing his receipt of the warning, it could not reason-
ably form the basis of a discharge made 3 weeks after the
commencement of a work-related disability and aggrava-
tion of a preexisting work-caused disability. Yet, the
Company in its case-in-chief adduced evidence relating
to these matters, permitting the inference to be drawn
that perhaps Conway's work performance contributed to
his discharge. That inference was ultimately negated by
its counsel's statements made during summation. The fact
remains, however, that to the extent the termination
letter of June 25 contains some ambiguity on this
score,' 6 Respondent has shifted somewhat in its reasons
for the discharge, a factor often examined by the Board
in weighing an employer's true motive. 7
If any doubt still remained that Respondent seized on
Conway's second disability to rid itself of the outstand-
ing union adherent among its employees whose contin-
ued retention posed the only threat of renewed union ac-
tivity, it was resolved as a result of Conway's conversa-
tion with Slabowski a day or two after his discharge. At
s Noted are the words "and have taken all factors into account"
A See, eg. Slolkowski Sausage Companv. 242 NLRB 931, 935-93
(1979), and cases cited at fn. 14
that time Slabowski admitted that even under the Com-
pany's existing lenient practices Conway had not been
treated fairly and, finally, that the Company had a con-
tinuing concern that Conway had failed to keep his part
of the bargain to demonstrate his disavowel of further
union activities in exchange for substantial improvement
in the salary terms of his employment.' Accordingly, I
conclude that Respondent has violated Section 8(a)(3)
and (1) of the Act by its discharge of employee John
Conway on June 25, 1979.
2. The threat, promises of benefit, and solicitation of
union disavowel
As noted, the General Counsel relies solely on the
May 30 letter from Slabowski to Conway to establish the
unlawful threat of discharge alleged in paragraph 10 of
the complaint. That letter, described supra, was con-
cerned with a review of Conway's recent work deficien-
cies regarding arrival notice writeups and his chronic
lateness. While I have concluded that Conway was ulti-
mately discharged because of his protected concerted ac-
tivities in violation of the Act, I did not base that conclu-
sion on the contents of this letter. Those contents, while
demonstrating a toughening of position toward Conway,
did not form the basis even for the Company's avowed
grounds for discharge. The letter does illustrate that in
certain respects Conway appeared to have been treated
somewhat differently than Lennon, who did not receive
a written warning for an even more serious infraction
committed during the same period of time. However, I
cannot fault the Company for expressing its concern for
work defects having such potential negative conse-
quences and tardiness. On its face the letter is benign,
and, as it did not contribute to Conway's ultimate dis-
missal, I will recommend dismissal of this allegation.
The complaint also alleges promises of benefit made
on Respondent's behalf by Zeuner and Slabowski to em-
ployees on unknown dates during May 1979. This has
reference to the mid-May meeting at which Conway was
granted his second April increase and the disavowel was
solicited. As the grant of the $1,500 supplemental raise
was announced, but had not yet been received, in the
context of a discussion of ways in which Conway could
demonstrate his loyalty to the Company and his dis-
avowel of future union activities, I find and conclude
that a promise of a wage increase was made to Conway
to induce him to refrain from exercising Section 7 rights
in violation of Section 8(a)(1) of the Act.
1. Respondent's brief is not convinlcing In arguing to the contrary. he
fact that the letter as never produced at the hearing nly serves to
strengthen the General Counsel' case it's very absence served to con-
vince the Company that Conwav could not be trusted Respondentl did
not condition Consway's raises or return to ork from his first disability
onl union renunciation The "kid gloe-" treatment was deemed the more
appropriate tack, especially with an employee hio appeared at first to he
so receptive to encouragement of proemplloer sentinent Finally. the
Company's records of employee discharges for arlilos infractons and its
concern with more efficient and profitable operations do not overcome
the fact that In the case of Conss h, ho was not guilty of the cxccssi.e
nisconduil t or infractions lof any of th rse termilnated, the Compal,'s un-
lawful motle has een established by a preponderance of the record e i
dence
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company solicitation from an employee of a written
expression of abandonment of union adherence and orga-
nizational rights and the solicitation of a promise that he
will encourage other employees to refrain from union
support are both items of conduct violative of Section
8(a)(1). Respondent in its brief cites N.L.R.B. v. Monroe
Tube Co., Inc., 545 F.2d 1320 (2d Cir. 1976), in support
of the proposition that certain circumstances may vitiate
the impropriety of a solicitation of withdrawal of union
support. But even the court in Monroe Tube recognized
that those circumstances became crucial in determining
legality. Here, all the surrounding circumstances support
the conclusion that the Company's conduct toward
Conway was coercive of his Section 7 rights. Conway
and his interrogators were both well aware of the crucial
role he played in the recently concluded union drive. By
hints and by open appeal Conway was made to under-
stand that the improvement in his employment status
and, indeed, the Company's willingness to forget and for-
give were related to his providing the Company with a
sign of his continuing loyalty. The meeting at which
high-level supervisory and managerial representatives
coupled announcement of his raise with a suggestion of
the nature of the concrete support Conway would be ex-
pected to provide placed Conway under coercive pres-
sure which he ultimately failed to survive. These circum-
stances, under the Monroe Tube test warrant a finding of
conduct violative of Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promising employees wage increases and other
benefits to induce them to refrain from giving any assist-
ance or support to Local 295, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and by encouraging employees to abandon in
writing their right to organize on behalf of the Union, or
any other labor organization, and to induce other em-
ployees to refrain from such activites, Respondent herein
violated Section 8(a)(l) of the Act.
4. Respondent did not violate the Act by threatening
employees.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discharged John
Conway in violation of Section 8(a)(3) and (1) of the
Act, I shall recommend that Respondent be ordered to
reinstate him to his former position or, if that job is no
longer available, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges, and make him whole for any loss of earnings
or other monetary loss he may have suffered as a result
of the discrimination against him, less interim earnings, if
any. The backpay shall be computed in the manner set
forth in F W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon to be computed in the manner de-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). 19
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 0
The Respondent, Pandair Freight, Inc., Queens, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting or refusing to refrain from
or to abandon support for Local 295, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
(b) Promising employees wage increases and other
benefits to induce them to refrain from giving any assist-
ance or support to Local 295, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
(c) Encouraging employees to abandon in writing their
right to organize on behalf of Local 295, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union, and to
induce other employees to refrain from such activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer John Conway immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges, and make him
whole for his lost earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Queens, New York, warehouse copies of
the attached notice marked "Appendix."21 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
19 See. generally, Isis Plumbing & lealing Co., 138 NLRB 716 (1962)
2- In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
21 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of' the National Labor Relations Board.
980
PANDAIR FREIGHT, INC.
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered.
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
11 is IS RIHFR ORI)IRtI) that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.