P*I*E Nationwide, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1060 (N.L.R.B. 1987)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P*I*E Nationwide , Inc. and Patrick W. Clement.
Case 30-CA-8074
5 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 26 September 1986 Administrative Law
Judge Marvin Roth issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed answering briefs.'
The National, Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, P*I*E Na-
tionwide, Inc., Franklin, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i In view of our decision herein, we find it unnecessary to pass on the
General Counsel's request that the Respondent's exceptions in their en-
tirety, or, alternatively, that a portion of the exceptions, be rejected for
failure to comply with Sec 102.46(b) of the Board's Rules and Regula-
tions
George Strick, Esq., for the General Counsel.
John Paul Jones, Esq., of Clearwater, Florida , for the Re-
spondent.
Jeffrey R. Myer, Esq., of Milwaukee , Wisconsin , for the
Charging Party.
Clement in Case 30-CA-6675, and to discourage employ-
ees from engaging in such activities, and advised employ-
ees that it would not hire an employee who resorts to
the Board's processes and leaves the employment of an-
other employer under the terms of a Board settlement.
The Company's answer denies the commission of the al-
leged unfair labor practices and raises certain affirmative
defenses which will be discussed herein. All parties were
afforded full opportunity to participate, to present rele-
vant evidence, to argue orally, and to file briefs. The
General Counsel and the Charging Party each filed a
brief, and the Respondent filed a letter statement of posi-
tion in lieu of a brief.
On the entire record in this case,3 from my observa-
tion of the demeanor of the witnesses, and having con-
sidered the briefs, statements of position, and arguments
of the parties, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Company, a Florida corporation with an office
and place of business in Franklin , Wisconsin , is engaged
in the interstate transportation of freight . In the oper-
ation of its business, the Company annually derives gross
revenues in excess of $50,000 for the transportation of
freight and commodities from Wisconsin directly to
points outside Wisconsin. I find , as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Patrick Clement worked as a truckdriver-dockworker
at the Milwaukee terminal of Smith 's Transfer Corpora-
tion (Smith's) from August 1978 until 1 July 1981. In the
interim Smith 's terminated Clement, but reinstated him
after he filed an unfair labor practice charge with the
Board (Case 30-CA-5695). By letter dated 1 July 1981,
Smith 's, by its terminal manager, Gary Ryan, informed
Clement as follows:
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case
was heard at Milwaukee, Wisconsin, on 16 July 1986.
The charge and amended charge were filed respectively
on 10 November and 30 December 19831 by Patrick N.
Clement, an individual. The complaint, which was issued
on 5 November 1985 and was amended at the hearing,
alleges that P*I*E Nationwide, Inc.2 (Respondent or the
Company) violated Section 8(a)(1) and (4) of the Nation-
al Labor Relations Act. The gravamen of the complaint
is that the Company allegedly terminated Clement be-
cause he filed charges and gave testimony under the Act
and entered into and sought to comply with a Board set-
i All dates refer to 1983 unless otherwise indicated.
2 The name of the Respondent was corrected at the hearing.
Letter of Lay Off
Dear Mr. Clement:
Due to a downturn in business, it is necessary
that we reduce our work force; subsequently it is
my unpleasant task to inform you that youare laid
off effective with the close of your shift on Friday,
July 3, 1981.
When business conditions warrant your return,
you will be recalled under the terms of your con-
tract.
Clement filed a grievance with his union and also filed
an unfair labor practice charge (Case 30-CA-6675) alleg-
ing that Smith's violated Section 8(a)(1) and (3) of the
Act by laying off three employees, including himself, be-
3 Transcript errors have been noted and corrected
282 NLRB No. 152
P*I*E NATIONWIDE 1061
cause-of their union and protected activities. The -matter
was resolved in July 1982 when the Board' s Regional
Director approved an informal settlement agreement
whereby Smith's and Clement agreed in sum as follows:
(1) Smith 's would make whole Clement and the two
other alleged discriminatees for the, discrimination against
them, (2) although, the other two individuals would
maintain their recall rights on the seniority list, Clement
"is entitled to, but has waived recall at Smith's," (3)
Smith's would prepare a letter of recommendation for
Clement indicating that his attendance was good and
work record satisfactory, furnish copies of same to all in-
quiring prospective employers, and "make no contrary
oral or written statement," (4) Clement would not seek
employment at Smith's, (5) the three alleged discrimina-
tees would keep the terms of the settlement "strictly con-
fidential," and (6) Smith's would post a notice to em-
ployees stating among other things that Smith's "will not
lay off employees because they or any other employees
filed grievances or filed charges with the NLRB," and
indicating the relief described above in (1) and (2), in-
cluding Clement's waiver of recall, but not indicating the
terms described in (3), (4), and (5) above. Smith's posted
the notice on its bulletin board in the employee break-
room from 30 July to 29 September 1982. Terminal Man-
ager Ryan testified,that he signed the recommendation
letter for Clement and read the notice, but did not other-
wise see the text of the settlement agreement.
Between July 1981 and September 1983 Clement
worked intermittently at various trucking jobs. On 7
September 1983 Clement applied for work with the
Company at its Franklin terminal . Orren Carr, who was
then a supervisor at the terminal,4 interviewed Clement,
and Clement filled out, and signed a written application
for employment. The application form stated that "any
omission or misleading or untrue statement made herein
or made hereafter may, at the option of [the Company]
render this application void and may also constitute just
cause for discharge, should employment hereafter be
granted." Under employment record, Clement listed
Smith's and, under reason for leaving, he indicated `,`was
laid-off." Under driving history, Clement indicated that
Smith's gave him a safety award. In response to the cap-
tion "list all accidents you have been involved in as a
driver of a motor vehicle," Clement indicated that in
1979, while driving for Smith's, a car ran a red light and
struck the side of his truck. Clement testified that in fact
he had two accidents, but he stopped listing the second
on job applications after prospective employers told him
that the incident was too minor to be classified as a
motor vehicle accident. Smith's records corroborate Cle-
ment's testimony. The Milwaukee terminal manager
maintains an "operator's efficiency record," the primary
purpose of which is to maintain an accident record, par-
ticularly of "chargeable," i.e., avoidable, accidents. The
record for Clement listed only the 1981 accident, which
was classified as "non-chargeable," i.e., unavoidable, on
the part of Smith's driver. Smith'-s personnel files, which
were maintained at 'Smith's personnel office in Staunton,
4 Carr was no longer working for the Company at the time of the
present hearing
Virginia, listed only the second accident, which occurred
in April 1981, classified it as "chargeable," and indicated
that it involved a lens on a lighting fixture that was
broken while Clement was backing up a trailer. The per-
sonnel files also contained papers concerning Clement's
unfair labor practice cases. Terminal Manager Ryan testi-
fied that he did-not see the files- until this case was initial-
ly scheduled, for hearing in May 1984. Clement testified
that in his employment interview Supervisor Carr went
over his application, discussed his experience and work
history, and asked whether he would return to Smith's if
recalled from layoff. Clement testified that he answered
he would not, that he had no future there, and that he
was interested - in finding long-term employment else-
where. Carr, who was presented as a company witness,
testified that he could not remember the substance of the
interview, but that he probably would not "routinely"
ask about recall rights because he was "inexperienced at
that time hiring people." I credit Clement. Carr admitted
that the interview lasted 15 to 20 minutes. He did not
deny Clement's testimony that he questioned Clement
concerning why he left another employer. In view of the
fact that Clement worked at Smith's for nearly 3 years, it
would seem an obvious area of inquiry to ask Clement
whether he might return there. After the employment
interview, the Company never questioned Clement about
his application or record at Smith's.
The Company hired Clement and he commenced
working on 11 September as a line haul driver. On 17
October, after the expiration of Clement's 30-day proba-
tionary period, `Supervisor Carr sent a "request for em-
ployment verification" form on Clement to Smith's per-
sonnel office. The form in sum requested an evaluation
of Clement. Carr testified that he received no reply.
Nevertheless, on 18 October Carr's superior, Terminal
Manager Christian Biller, sent a' memo to the Company's
security office in Jacksonville, Florida, requesting, that
Clement's employment be approved, and stating, "I have
completed the preliminary screening, interviewing and
reference checks" required by personnel policy, and
Clement "meets with my approval and is acceptable for
the position available." However, the next day, 19 Octo-
ber, Biller sent Clement a "letter of discharge," inform-
ing him that "Thru screening of your application, we
find you falsified it" and "Your services are no longer re-
quired." Carr testified in sum that he was not consulted
about Clement's discharge, that Clement's work perform-
ance was satisfactory, and ' that 'Biller told him he dis-
charged Clement because Clement falsified his applica-
tion. Carr also testified that he sent a followup request
for employment verification to Smith's on 26 October to
have a complete file. Smith's terminal manager, Ryan,
testified that he forwarded the Company's written in-
quiry about Clement to Smith's personnel office (al-
though the forms sent out by Carr were addressed di-
rectly to that office) and that Biller made a telephone in-
quiry about Clement, but that he' gave no information
other than Clement's dates of employment.
On receiving his discharge letter, Clement telephoned
Biller and recorded the ensuing conversation. Clement
testified about the conversation, and the General Counsel
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduced in evidence a transcript of the recording.
There is no dispute as to what was said in this conversa-
tion.5 Clement asked Biller what was false on his appli-
cation. Biller answered: "You know exactly how and
why you left Smith. And that is not what you stated to
us. Plus your accident record which Smith has, was not
indicated. You had three additional accidents that are
chargeable." Clement denied that he had three accidents
at Smith's, but Biller insisted that he did.
The employees at the Company's Franklin terminal are
represented by Teamsters Local 200 (the Union). On 8
November Clement filed a grievance over his discharge
and on 10 November he filed the present charge. On 7
December the Wisconsin Joint Area Grievance Commit-
tee (Joint Committee), to which the grievance had been
referred, denied Clement's grievance as untimely filed.
On 11 January 1984 Biller gave an affidavit to the Re-
gion's field examiner in connection with the Regional
Office investigation of the charge. The Company's attor-
ney was present. 6 Biller stated in sum that he decided to
terminate Clement for falsifying his application relative
to his status of employment with Smith's and the number
of chargeable accidents he had on his record as well as
on private property. Biller stated that he received no in-
formation from Smith's about Clement, that when he ter-
minated Clement he did not know that he had filed
charges with the Board, and that he terminated Clement
based on information that he obtained that Clement was
no longer on layoff status and had additional chargeable
accidents not indicated on his application. Biller refused
to identify the source of his alleged information. He ad-
mitted having the telephone conversation with Clement
described above. Biller's affidavit marked the last time
that any company official or supervisor claimed that Cle-
ment's accident record had anything to do with his dis-
charge.
On 31 May 1984 Clement, the Company, and the
Union entered into a settlement agreement in the unfair
labor practice case whereby they agreed that Clement's
discharge would be referred to the Joint Committee for
decision on the merits, the Union would present Cle-
ment's case, the Company waived timeliness as a defense,
and the decision would be final and binding on all parties
in accordance with the collective-bargaining contract.
By reason of the settlement agreement, the Board's Re-
gional Director withdrew the outstanding complaint in
this case, which alleged that the Company violated Sec-
tion 8(a)(1), (3), and (4) of the Act by discharging Clem-
ent, and deferred processing of Clement's charge to the
5 Biller died in April or May 1986, some 2 to 3 months before the
present hearing. The Company did not dispute the foundation or accura-
cy of the transcript. The Company argued that the transcript should not
be received m evidence because Clement recorded the conversation with-
out Biller's knowledge. This does not constitute grounds for rejecting the
transcript. See McAllister Bros., 278 NLRB 601 fn. 2 (1986), and cases
cited
6 I received Biller's affidavit in evidence pursuant to Board policy
which permits receipt of the statements of deceased persons in evidence,
provided however, that such statements must be "carefully evaluated
Self-serving statements by the declarant would not suffice as a basis for
findings or inferences unless corroborated by other evidence, whereas ad-
missions or' statements against interest would not be so circumscribed."
Calandra Photo, 151 NLRB 660, 671 fn 29 (1965)
grievance-arbitration machinery, subject to review of
that procedure under Board policy.'
Clement's grievance came on for hearing at a meeting
of the Joint Committee'on 1 August 1984. The Company
was represented by Labor Relations Representative Don
Bradfield, and Terminal Manager Biller was also present.
Clement was represented by Union Business Agent
Frank Busalacchi. (The Joint Committee did not permit
Clement's attorney to be present at the meeting.) When
Clement's grievance was presented for consideration,
Bradfield read a prepared statement on behalf of the
Company. Bradfield stated: "The reason for [Clement's]
termination was falsification of his employment applica-
tion by his omission of information as to the circum-
stances under which he left one of his former employers,
Smith's Transfer Company." Bradfield went on to state
as follows:
Certainly under Ryder/P.I.E.'s standards, had
Mr. Clement revealed the full and accurate informa-
tion regarding the conditions of leaving Smith's
Transfer Co., he would not have been employed.
Specifically, he stated that he was on layoff status
from Smith's Transfer Co., when in fact he was not
in layoff, but had agreed not to seek re-employment
with Smith under the terms of a NLRB settlement
agreement.
The information regarding Mr. Clement's with-
holding of information on the employment applica-
tion was immediately acted upon by the Company
when discovered.
The fact that Mr. Clement was not on layoff at
Smith's is obvious from the settlement agreement
dated July, 1982, wherein Mr. Clement agreed that
he would not seek re-employment at Smith's Trans-
fer.
There was no verbatim transcript of the Joint Committee
meeting. In accordance with the usual practice, Attorney
Thomas Duffey, who functioned as secretary to the
Committee, took notes in longhand, and subsequently
dictated them to his secretary in the form of formal min-
utes, which were typed and duplicated. Duffey then sent
copies to the employers and local unions who utilized or
were subject to the Joint Committee grievance-arbitra-
tion procedure. At the present hearing, the Company
presented testimony by Duffey, Union Business Agent
Busalacchi, and Charles Schmalz, an employer ' member
of the Joint Committee, in support of its position that the
minutes accurately reflected the substance of the meeting
insofar as it pertained to Clement's grievance.? Clement
testified in sum that the minutes were inaccurate or in-
complete in several respects. Insofar as pertinent to the
merits of the present case, the substance of the meeting is
undisputed. It is understood that at no time'!did Repre-
sentative Bradfield, who did all the talking for the Com-
pany, ever say or even suggest that Clem I ent's accident
record had anything to do with his discharge. Rather, it
7 Unless otherwise indicated, my references to the grievance meetings
pertain to Clement's grievance. The Joint Committee' may consider as
many as 40 grievances during the course of a meeting
P*I*E NATIONWIDE 1063
was Union Representative Busalacchi who argued that
Clement was discharged in part because he allegedly
failed to list certain accidents.8 Clement testified that he
asked Bradfield whether he was discharged because of
the Board settlement, and he answered that they had
considered it when they discharged Clement. Clement
subsequently testified that he asked Bradfield whether
the settlement was the only reason for his discharge, and
Bradfield answered that it was. The minutes fail to indi-
cate that Clement asked either question. However, Attor-
ney Duffey testified that Clement did ask whether he
was discharged only because of the settlement. Duffey
testified that Bradfield did not say that this was the only
reason . However, Duffey did not, indicate Bradfield's
answer, and he did not deny that Bradfield said the set-
tlement was considered. I credit Clement's testimony, in-
sofar as I find that Bradfield said that the Company' con-
sidered the settlement when it discharged Clement.9 The
minutes indicate Clement said that on his job application
he added language to the effect that he gave up his 'right
to recall at Smith's. Clement' testified that he told the
Committee he thought he added language to the effect
that he was not going back to work for Smith's: Which-
ever version is correct (and I fmd it unnecessary to re-
solve that matter), it is evident that the Joint Committee
regarded the question of Whether Clement added such
language as the crucial issue in the proceeding.) ° The
Company had presented only a copy of Clement's appli-
cation. The Joint Committee deferred further consider-
ation of the matter until its next meeting, which was
scheduled for 5 September 1984, and directed the Com-
pany to produce the original application at that time. At
the 5 September meeting the Company produced the
original, which indicated that Clement did not add any-
thing to "was laid off." It is undisputed that at this time
Clement said that he, considered the application to be
truthful. The Joint Committee held: "Based on the facts
presented, the claim of the union is denied."' In the mean-
time, on 17 August 1984, Clement's attorney took a dep-
osition of Terminal Manager Biller in connection with a
pending state court civil action for defamation brought
by Clement against Smith's. At that time Biller testified'
that Clement was discharged for falsification of his appli-
cation, in that he claimed to be on layoff from Smith's
when he was mo longer employed by them, and for no
other reason. On instructions from the Company's attor-
8 Busalacchi initially presented Clement's grievance to the Joint Com-
mittee. Thereafter, Clement spoke for himself.
9 Additional testimony by both sides indicates that the minutes were
incomplete in other respects. The minutes indicate, as admitted by
Duffey, that the committee members asked only three questions of Clem-
ent However, committee member Schmalz testified as to a "line of ques-
tioning," including as many as four or five questions , about whether
Clement considered his application to be a false statement and dishonest
act insofar as Clement said he was laid off This tends to corroborate Cle-
ment's testimony that one of the committee members repeatedly pressed
him on this point
10 It is immaterial in the present proceeding whether Clement ex-
pressed an opinion as to the truthfulness of his application , or whether he
said it would be untruthful without additional language The Company,
not Clement, made the decision to discharge Clement, and it did not ask
his opinion about the matter. It is also immaterial whether Clement ex-
pressed an opinion as to whether he received a full and fair hearing.
ney,"B71er declined to disclose the source of the Compa-
ny's information.
Clement requested review of the Regional Director's
deferral of the pending unfair labor practice charge to
the grievance-arbitration procedure. On 15 January 1985
the Regional Director determined that further proceed-
ings on the charge were not warranted. Clement ap-
pealed to the Board's General Counsel. On 23 August
1985 the General Counsel denied the appeal with respect
to the 8(a)(3) allegation, but remanded the case to the
Regional Director with instructions to issue an appropri-
ate 8(a)(1) and (4) complaint, absent settlement. Follow-
ing issuance of the present complaint, the Company filed
with the Board a Motion for Summary Judgment. By a
reported Order dated 9 April 1986 (279 NLRB 207) the
Board denied the Company's motion, and remanded the
proceeding to the Regional Director for hearing. The
Board held as follows:
The Board, having duly considered the matter, is
of the opinion that under its holdings in Filmation
Associates, 227 NLRB 1721 (1977), and International
Harvester Co. [271`NLRB 647 (1984)], deferral to ar-
bitration of the alleged violations of Section 8(a)(4)
and (1) in this case is inappropriate and the issues
presented can better be resolved following a hear-
ing.
' B. Analysis and Concluding Findings
In Filmation Associates and International Harvester,
supra, the Board unequivocally ruled that issues involv-
ing alleged violations of Section 8(a)(4) will not be de-
ferred to arbitration, but must be decided by the Board.
In the present case, the Board adhered to that policy,
and consequently held that deferral is inappropriate.
Therefore, it is clear that the Board rejected the Compa-
ny's argument that it should defer to the grievance-arbi-
tration decision, and directed that this case be heard and
decided on its merits. In sum, the Board invoked its "su-
perior authority" over the arbitration process, an author-
ity which "may be invoked at any time." Carey v. Wes-
tinghouse Electric Corp., 375 U.S. 261, 272 (1964). L i
II The Company raised seven affirmative defenses in its answer. Five
of these defenses (collateral estoppel, promissory estoppel , equitable es-
toppel, laches, and prior settlement) are substantially repetitious of the
Company's position in support of the seventh defense ("`The Doctrine of
Deferral"), and are rejected The remaining affirmative defense (Sec
10(b) of the Act) is addressed to the 8(a)(L) allegation, which is based on
Labor Relations Representative Bradfield's prepared statement to the
Joint Committee on 1 August 1984, more than 8 months after the original
charge was filed in this case . The defense is without merit lit is settled
law that , the complaint may, as here , allege violations which occurred
after the initial charge was filed, and are related to the subjecl matter of
the charge, or the controversy which produced the charge, without any
necessity for a new or amended charge . See NLRB `v. Font Milling Co,
360 U S. 301, 309 (1959); National Licorice Co. v. NLRB, 309 U.S 350,
369 (1940)
In its position letter to me , the Company states that l said that "it was
a gross inequity 'for Respondent to now have to defend itself in the unfair
labor practice proceeding ." While this may be the Company's opinion, it
does not reflect anything that I said or even implied . I also disagree with
the General Counsel's argument (Br. 2, 16-19) that this case presents a
question whether the Joint Committee proceeding was fair, regular, or
otherwise adequate to resolve the merits of this case If so, then the Gen-
Continued
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning to the merits of this case, company counsel
has not taken a position, beyond a general denial, that
the Company violated the Act, except insofar as a posi-
tion may be gleaned from papers filed prior to the
Board's remand Order. I find that Labor Relations Rep-
resentative Bradfield's prepared statement to the Joint
Committee constituted nothing less than an admission
that the Company discharged Clement because he filed
and pursued to settlement an unfair labor practice charge
against a former employer.12 As indicated, Bradfield
stated:
Certainly, under Ryder/P.I.E.'s standards, had Mr.
Clement revealed the full and accurate information
regarding the conditions of leaving Smith Transfer
Co., he would not have been employed [emphasis
added].
In sum, Bradfield admitted that if Clement had given
what the Company regarded as the truth, the whole
truth, and nothing but the truth about "the conditions of
leaving Smith Transfer," he would not have been hired.
Therefore, it is evident from the statement of the Com-
pany's own representative that the Company discharged
Clement not because of what he said or failed to say on
his application, but because of the fact of the conditions
of leaving Smith's. If there could be any doubt as to
what Bradfield meant by those conditions, he made clear
in his next sentence that he "specifically" referred to the
fact that Clement "agreed not to seek re-employment
with Smith under the terms of an NLRB settlement
agreement." Bradfield simply corroborated his own ad-
mission when he admitted in response to Clement's ques-
tion that the Company considered the settlement agree-
ment when it discharged Clement. In, his prepared state-
ment, Bradfield went on to declare that this information
was "immediately acted upon by the Company when dis-
covered." Therefore, it is evident that the Company, and
specifically the person or persons who decided to dis-
charge Clement, knew of the settlement agreement at the
time they made that decision.
Terminal Manager Biller made a similar, albeit less
blunt, admission in his telephone conversation with
eral Counsel would have also remanded the 8(a)(3) allegation. However,
she did not Indeed, it is difficult to understand why the General Counsel
did not remand the 8 (a)(3) allegation under the policy set forth in Filma-
tion Associates and International Harvester, as that allegation was "closely
intertwined" with the 8 (a)(4) allegation. Here , as in those cases, both alle-
gations were based on the same act, i e, the discharge of an employee.
However, as the General Counsel did not do so, the alleged 8(a)(3) viola-
tion is not before me.
12' At the time of the present hearing, Bradfield was no longer em-
ployed by the Company. He lived in Texas and was employed by an-
other trucking firm. Any of the parties to this proceeding could have at-
tempted to subpoena Bradfield, but they chose not to do so. In these cir-
cumstances, no adverse inference is warranted by reason of the failure of
any party to present Bradfield as a witness, i e., I have not drawn any
inferences as to how Bradfield would have testified if he had been pre-
sented as a witness Compare Martin Luther King Sr. Nursing Center, 231
NLRB 15 In 1 (1977) Indeed, no such inferences are necessary Brad-
field's admissions are, on the record, in the form of his prepared state-
ment and other statements before the Joint Committee , and reasonable in-
ferences may be drawn from those admissions
Clement.13 Biller told Clement: "You know exactly how
and why you left Smith. And that it is not what you
stated to us." In his affidavit, Biller asserted that by this
statement he meant that Clement was not in layoff status.
Biller's self-serving assertion was patently false because
this would not explain "how and why" Clement left
Smith's. Rather, the purported absence of layoff status
would be a consequence of the "how and why," i.e., the
settlement agreement.14 Additional evidence demon-
strates that the Company discharged Clement because of
his actions in filing and processing unfair labor practice
charges against Smith's, and not for other suggested rea-
sons. First, the Company's initially stated reasons for dis-
charging Clement were demonstrably false. Clement told
the truth when he stated that he was laid off from
Smith's. Smith's informed Clement that he was laid off,
and nothing in the settlement agreement altered that fact.
The application form did not call for an explanation of
why Clement was laid off or whether he had recall
rights. As indicated, Clement told Supervisor Carr that
he would, not return to Smith's even if he were recalled
from layoff. Therefore, assuming that the Company was
not discriminatorily motivated, it knew all it needed or
could reasonably want to know about Clement's separa-
tion from employment. The only missing information
was the fact of the settlement agreement itself, including
the terms of settlement. However, Clement was bound
by the settlement to keep those terms "strictly confiden-
tial." By not disclosing those terms, Clement was honor-
ing his obligations under the settlement, and such nondis-
closure constituted activity protected by Sections 7 and
8(a)(4) of the Act. See NLRB v. Scrivener, 405 U.S. 117
(1972), holding in sum that Section 8(a)(4) should be
broadly construed to protect employee access to the
Board's processes. Therefore, the Company would vio-
late. Section 8(a)(4) by discharging Clement for failing to
disclose the settlement or its terms. The Company also
falsely asserted that Clement was discharged in part be-
cause he had three chargeable accidents at Smith's. As
indicated, Smith's own records squarely contradict this
assertion. Indeed, the assertion was so blatantly false as
to suggest that Terminal Manager Biller was warning
Clement that this was not the real reason for his dis-
charge.
Second, the Company advanced shifting reasons' for
Clement's discharge. Initially, the Company, by Biller,
claimed that Clement was discharged in part because 'he
falsified his accident record. The Company adhered to
this position when it anticipated that this case would be
heard by the Board. However, when the case was de-
'a As Biller is deceased, obviously no adverse inference could be
drawn from the Company's failure to present him as a witness. Here, as
with Bradfield , the admissions are on the record ; in Biller's case , they are
in the form of his recorded conversation with Clement, his affidavit, his
testimony on deposition, and company documents, all undisputed as to
authenticity Here, also, reasonable inferences may be drawn from these
admissions.
14 On the basis of the admissions of Bradfield and Biller, the General
Counsel has presented a puma facie case that the Company discharged
Clement because he filed and processed to settlement the unfair labor
practice charge against Smith's As will be discussed, the Company has
failed to meet its burden of establishing that it would have discharged
Clement in the absence of his protected activities under Sec 8(a)(4)
P*I*E NATIONWIDE 1065
ferred to grievance-arbitration, the Company shifted
gears, so to speak, and dropped this assertion. Company
counsel admitted in a position letter to the Board's Re-
gional Office that Representative Bradfield made an in-
tentional decision to abandon the assertion when the case
was deferred to arbitration.15 It is evident that the Com-
pany, knowing that the Board might be unsympathetic to
a defense which suggested that an employee was dis-
charged because he honored a Board settlement agree-
ment, decided to rely on the alleged falsification of the
accident record as a fallback defense. However, when it
became apparent that the case would proceed to arbitra-
tion, the Company decided to abandon this defense, i.e.,
one involving subject matter in which the Joint Commit-
tee was experienced and familiar, in favor of a defense
which might receive a more hospitable reception from
the Committee. Whatever the Company's motive, a re-
spondent's "inability to adhere with consistency to any
explanation for its action" in terminating an employee
warrants an unfavorable inference against that respond-
ent. Zurn Industries, 255 NLRB 632, 635 (1981), enfd.
680 F.2d 683 (9th Cir. 1982), and cases cited; Steve Aloi
Ford, supra, 179 NLRB at 230.
Third, the Company's course of conduct toward Clem-
ent was inconsistent with a nondiscriminatory motiva-
tion. It is understandable that an employer might be con-
cerned if an applicant failed to disclose that he had recall
rights elsewhere. The employer might be reluctant to
hire an employee who might leave if another employer
offered work. However, it is difficult to see (and the
Company never explained) why the Company would be
concerned if Clement did not have recall rights else-
where. It is also understandable that an employer might
be concerned if the applicant said he was laid off but in
fact he was discharged for cause, as this might reflect on
his qualifications. In the present case, however, Clement
gave up his recall rights only because of a Board settle-
ment, and this would not constitute a lawful basis for dis-
crimination against him. If the Company was not discri-
minatorily motivated, but was sincerely concerned that
Clement made a material misrepresentation on his appli-
cation, then it is probable that Terminal Manager Biller
would have first confronted Clement and given him an
opportunity, to admit, deny, or explain the alleged mis-
representation. This is particularly true where, as here,
the person who interviewed the employee and was his
immediate, supervisor was not consulted about the dis-
charge, the employee had a good work record and had
completed, his probationary period, and the person who
signed the discharge letter had only the day before rec-
ommended the employee for permanent employment.
The last factor, coupled with the explanations offered by
Biller which he obviously knew to be false, also tends to
indicate that the decision to terminate Clement was prob-
ably made at a higher level, possibly in consultation with
officials of Smith's at a comparable level.16
15 Company counsel's statement may be considered as an admission by
the Company. Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969).
16 As indicated, Biller, on the advice of company counsel, declined to
disclose the source of his information. At the present hearing, company
counsel, who was not called as a witness, declined to answer the General
Counsel's questions in this regard On consideration of company counsel's
Representative Bradfield 's statement to the Joint Com-
mittee, previously discussed , is significant in another re-
spect . As indicated , Bradfield - stated that Clement "cer-
tainly" would not have been employed had he disclosed
the conditions of leaving Smith's, "under Ryder/PIE'S
standards" (emphasis added). Those "standards" would
pertain to the fact that Clement filed and processed to
settlement an unfair labor practice charge, against a
former employer . Therefore, it is evident that Bradfield
was saying in effect that the Company had a policy
against employing individuals who engaged in such con-
duct . I find that this aspect of the statement constitutes
further evidence of unlawful motivation.17
I find that the Company discharged Clement on learn-
ing that, and because he filed and processed ' to settlement
unfair labor practice charges against a former employer.
The Company ' thereby violated Section 8(a)(1) and (4) of
the Act. See B. T Mancini Co., 269 NLRB 869 (1984)
(Prudhoe Bay Incident), enfd . per curiam 760 F.2d 276
(9th Cir . 1985). The Company learned that Clement had
successfully pursued an unfair labor practice charge not
only on his own behalf, but on behalf of two fellow em-
ployees, and that the charge involved alleged retaliation
against employees for filing grievances or charges with
the Board . It is also probable that the Company learned
that Clement had been reinstated as a result of a prior
charge. As indicated , Representative Bradfield admitted
that the Company knew, as of 19 October 1983, that
Clement "had agreed not to seek reemployment" under
the terms of a Board settlement . That commitment is
contained in the text of the settlement, but not in the
posted notice . Therefore, it is evident that the Gampa-
ny's source of information had, access to the settlement
agreement, and that such source would also know of the
prior charge. In sum, the Company learned that Clement
was what it regarded as a troublemaker, and therefore
immediately discharged him. I further find that the Com-
pany, by Bradfield , violated Section 8(a)(1) by threaten-
ing employees that it would not hire ' an employee who
resorts to the Board 's processes and leaves the employ-
ment of another ' employer under the terms of a Board
settlement . At least one "employee," i.e., Clement, was
position, I find that he acted within his rights in declining to answer such
questions, and that no adverse inference is warranted, If Biller were alive
and testified at the hearing, but declined to answer such questions, then a
different result might be warranted. I further find, on consideration of the
entire record, that the matter is not crucial to the outcome of this case. In
light of Representative Bradfield's admission that the Company learned
of the settlement agreement and took it into consideration when the
Company discharged Clement, it is not necessary, for purposes of this
case, to determine the source of that information, notwithstanding the
General Counsel's understandable curiosity in this regard
17 The General Counsel has requested (Br. 11-12) that with respect to
the merits of this case, I find on the basis of reported Board decisions
that the Company "will not tolerate employees who seek to enforce their
contractual rights and/or who engage in activity protected by the Act "
However, the General Counsel has not requested a broad remedial order.
On consideration of those decisions, I am, not persuaded that the Compa-
ny has,demonstrated a proven proclivity to violate the Act in this regard
Ryder/P.LE. Nationwide, 275 NLRB 599 (1985), involved a different type
of,violation, and in Ryder, Truck Lines, 273 NLRB 713 (1984), remanded
sub nom. Taylor Y. NLRB, 786 F 2d 1516 (11th Cir 1986), the Board has
not yet made a determination on the merits. The remaining decision
(Ryder/ALE. Nationwide, 278 NLRB 713,(1986)), standing alone, is insuf-
ficient to demonstrate a proclivity in this regard
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present when Bradfield read his prepared statement. See
Briggs Mfg. Co., 75 NLRB 569, 570-572 (1947). There-
fore, as Bradfield's statement was communicated to at
least one employee , his assertion that the Company
would not have hired Clement under its "standards" vio-
lated Section 8(a)(1) as it constituted a threat proscribed
by that section . Nabisco, Inc., 267 NLRB 1236, 1238
(1983).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Patrick Clement because he filed
charges and gave testimony under the Act, the Company
has' violated and is violating Section 8(a)(4) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has, engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
4. The ,aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of'Section 8(a)(1) and (4) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and from like or related conduct , and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that the Company discriminatorily ter-
minated Patrick Clement , it will be recommended that
the Company be ordered to offer him immediate and full
reinstatement to his former job or, if it no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges , and make
him whole for any loss of earnings and benefits that he
may have suffered from the time of his discharge to the
date of the Company 's offer of reinstatement . I shall fur-
ther recommend that the Company be ordered to
remove from its records any reference to the unlawful
discharge of Patrick Clement , to give written notice of
such removal to Clement, and to inform him that its un-
lawful conduct will not be used as a basis for further per-
sonnel actions against him . See Sterling Sugars, 261
NLRB 472 (1982). Backpay shall be computed in accord-
ance with the formula approved in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed in the
manner and amount prescribed in Florida Steel Corp., 231
NLRB 651 (1977).111 It will also be recommended that
the Company be required to preserve and make available
to the Board , or its agents, on request , payroll and other
records to facilitate the computation of backpay due. I
am rejecting the General Counsel's request for a visita-
torial clause because the General Counsel has failed to
demonstrate that there are circumstances in this case
which warrant such a remedy. See Rebel Coal Co., 279
NLRB 144 fn. 2 (1986).
'8 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)
On these findings of fact and conclusions of law and
ori'.the entire record , I issue the following recommend-
ed19
ORDER
The Respondent , P*I*E Nationwide , Inc., Franklin,
Wisconsin, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they file or process charges, enter
into or honor settlement agreements , give testimony
under the National Labor Relations Act, or otherwise
make use of the processes of the National -, Labor Rela-
tions Board.
(b) Threatening employees that it will not employ
anyone who engages in such activity.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Patrick Clement immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position , without prejudice to
his seniority or other rights and privileges previously en-
joyed , and make him whole for losses he suffered by
reason of the discrimination against him as set forth in
the remedy section of this decision.
(b) Remove from its files any reference to the dis-
charge of Patrick Clement, and notify him in writing
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
actions against him.
(c) Preserve and, on ' request, 'make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due.
(d) Post at its Franklin, Wisconsin place of business
copies of the attached notice marked "Appendix."20
Copies of the notice, on forms provided by the Regional
Director for Region 30, after being signed by the Re-
spondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt and,maintained
for 60 consecutive days in conspicuous 'places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
19 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.
20 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
P*I*E NATIONWIDE
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES .
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against employees because they file or process charges,
enter into or honor settlement agreements, give testimo-
ny under the National Labor Relations Act, or otherwise
make use of the processes of the National Labor Rela-
tions Board.
1067
WE WILL NOT threaten you that we will not employ
anyone who engages in such activity.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the ' exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Patrick Clement immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed , and make him whole for losses he suf-
fered by reason of the discrimination against him, with
interest.
WE WILL remove from our files any reference to the
discharge of Patrick Clement , and notify him in writing
that this has been done and that evidence of this unlaw-
ful discharge will not be used as a basis for future per-
sonnel actions against him.
P*I*E NATIONWIDE, INC.