Sagamore Pulp Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1964

148 N.L.R.B. 452 (N.L.R.B. 1964)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National *Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Amalgamated Meat Cutters
and Butcher Workmen of North America , Local Union No. 634 , AFL-CIO,
as the exclusive representative of all employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment , and other
terms and conditions of employment and embody in a signed agreement any
understanding reached.
The bargaining unit is:
All employees at our Grand Junction plant exclusive of clerical help,
guards, watchmen , nonworking supervisors , plant managers , and all other
supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain collectively on behalf of the employees in the above-described
appropriate unit.
WESTERN MEAT PACKERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 609
Railway Exchange Building, 17th and Champa, Denver, Colorado, Telephone
No. 534-3161, if they have any questions concerning this notice or compliance
with its provisions.
0
Sa, amore Pulp Corporation ; Yank Waste Co., Inc. and Herr-
mann Lydecker. Case No. 3-CA-2212. August $5, 19641
DECISION AND ORDER
On April 15, 1964, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that Respondents
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety,. as set
forth in the attached Decision. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Decision, the exceptions, and the brief,
148 NLRB No. 50.
SAGAMORE PULP CORP. ; YANK WASTE CO., INC. 453
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, but only for the reasons noted below.
The complaint alleged that Respondents unlawfully discharged
Charging Party Herrmann Lydecker for having engaged in protected
concerted activities. Respondents contended, and the Trial Examiner
found, that Lydecker was discharged for cause. General Counsel has
excepted.
Lydecker was employed in February 1963 as a truckdriver and was
discharged on November 8, 1963. During the 8-month period from
March to November, his timecards show that he was late 36 times, 28 of
them an hour or more. Lydecker's propensity to lateness far exceeded
that of any other truckdriver. Several times during that period Re-
spondents' officials spoke to him about his lateness and, according to
credited testimony, in the middle of October Dispatcher Cenate warned
him that he would be discharged if he did not report on time. On
November 7, Lydecker admittedly knew from a posted dispatch notice
that at 7 a.m. on the following day he was to deliver a truckload of ma-
terial to a customer 50 miles away, which required him to leave Re-
spondents' plant at 5 a.m. Instead of appearing at 5 a.m., Lydecker
reported at approximately 8 a.m., without having received permission
to report late or even notifying Respondents that he would be late.
According to, the testimony credited by the Trial Examiner, Cenate re-
ported Lydecker's lateness to company officials who reviewed his en-
tire employment record, including his persistent lateness, and in-
structed Cenate to discharge him.
General Counsel contends that the assigned reason for Lydecker's
discharge was a pretext; that the real reason was Cenate's resentment
of criticism which Lydecker voiced against him, at union meetings.
Respondents Sagamore Pulp Corporation and Yank Waste Co.,
Inc., are an integrated enterprise with common ownership, officers,
management, and labor policy and interchangeable employees and
equipment. Cenate, a truck dispatcher and supervisor, is employed by
Yank, but he also dispatches for Sagamore. Lydecker was employed
by Sagamore.
In October 1963, Sagamore's drivers, who were unorganized, asked
Cenate to arrange a meeting with the Union.' Yank's drivers were
already organized and Cenate was their spokesman or steward. On
October 25, 1963, a union meeting was held at which Cenate was
'Local Union #294, International Brotherhood of Teamsters, • Chauffeurs, Warehouse-
men and Helpers of America ( Ind.).
454 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
present by invitation of the employees. At this meeting Lydecker,
acting as spokesman for the Sagamore drivers, criticized Cenate's
dispatching methods and advocated separate units, separate seniority
lists, and separate dispatchers for the employees of the two companies.
At a second union meeting held on November 7, which Cenate did
not attend, although he was in a room adjoining that of the meeting
room, Lydecker reiterated what he had said at the first meeting. After
the close of this meeting, Lydecker and Cenate had a rancorous ex-
change during which Cenate accused Lydecker of "hav[ing] it in for
me [Cenate]."
Upon the basis of credibility resolutions, the Trial Examiner con-
cluded that Lydecker's lateness on November 8 was the real reason why
he was discharged, and that the happenings at the November 7 union
meeting were only coincidental. In support, he referred to the fact
that there is no evidence that Respondents were hostile to union or con-
certed activity of their employees; indeed the opposite appears to be
true.
In order to reject the conclusion drawn by the Trial Examiner as
to the real reason for Lydecker's discharge, the Board would have to
overrule the Trial Examiner's credibility resolutions which were based
in large part on the demeanor of witnesses. It is the Board's estab-
lished practice not to overrule such resolutions except where the
clear preponderance of all the relevant evidence convinces the Board
that the Trial Examiner's resolutions were incorrect.' There is not
such a clear preponderance of relevant evidence to justify overruling
the Trial Examiner's resolutions. Accordingly, we adopt the Trial
Examiner's finding that Respondents did not unlawfully discharge
Lydecker, and we shall dismiss the complaint.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the complaint be, and
it hereby is, dismissed.
2 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A. 3).
3 Member Leedom concurs in the result , because he finds on the basis of the underlying
facts, as found by the Trial Examiner, that the alleged violation has not been established
by a preponderance of the credible evidence . In his opinion , however, it is erroneous to
apply the Standard Dry Wall test , as his colleagues appear to apply it, to so-called
credibility resolutions concerning testimony as to subjective reasons for conduct , here the
discharge of Lydecker •, A determination as to the real reason for such conduct repre-
sents a legal conclusion which must be based on consideration of all the relevant facts as
revealed by the record . In determining what those relevant underlying facts may be,
the Trial Examiner must necessarily make credibility resolutions of testimonial conflicts ;
to the extent those resolutions are based on demeanor , they are subject to the Standard
Dry Wall test Once those underlying facts have been found, however , and the question
becomes their legal significance , the Trial Examiner has no special competence and his
conclusions are entitled to no special weight . This is so whether the Trial Examiner
acknowledges that they are legal conclusions or whether , as here, he calls them credibility
resolutions because there is testimony which coincides with his legal conclusions.
SAGAMORE PULP CORP. i YANK WASTE CO., INC., 455
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding,, with all parties represented, was heard before Trial Examiner
Stanley N. Ohlbaum in Glens Falls, New York, on March 2 and 3, 1964, on a com-
plaint dated January 17, 1964, of General Counsel of the National Labor Relations
Board, issued through the Regional Director for Region 3, based upon a charge filed
November 21, 1963, by Hermann Lydecker, herein called Lydecker or Employee,
and the answer of Sagamore Pulp Corporation, herein called Sagamore, and Yank
Waste Co., Inc., herein called Yank; *collectively called with Sagamore, Respondent,
Respondents, Employer, or Employers. The issue litigated was whether Respondents
violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended,
herein called the Act, by discharging Lydecker. Briefs received from counsel sub-
sequent to the hearing, as well as all testimony and exhibits received at the hearing,
have been carefully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENTS
At all material times, Respondents have been and are affiliated New York corpora-
tions, with principal offices and places of business in the State of New York, con-
stituting an integrated business enterprise and operation , with common ownership,
officers, management, and labor policy and with interchangeable employees and equip-
ment.' At all such times, Sagamore was and is engaged in the manufacture, sale, and
distribution of pulp and related products, and Yank was and is engaged in the sale
and distribution of wastepaper and related products. During the representative
year immediately preceding issuance of the complaint, Sagamore manufactured, sold,
and distributed, and shipped directly in interstate commerce from the State of New
York to other States, products exceeding $50,000 in value; during the same period,
Yank sold and distributed, and shipped directly in interstate commerce from the
State of New York to other States, products exceeding $50,000 in value.
I find that at all material times Respondents, individually and collectively, have
been and are employers engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that assertion of jurisdiction in this case is proper.
H. THE LABOR ORGANIZATION INVOLVED
At all material times, Local Union #294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Ind.), herein called the Union,
of which the Charging Party, Herrmann Lydecker, was a member, has been and is a
labor 'organization within the meaning of Section 2(5) of the Act.
In. THE ALLEGED UNFAIR LABOR PRACTICE: DISCHARGE OF LYDECICER
The only issue to be decided in this case is whether Herrmann Lydecker, the
Charging Party, was discharged on November 8, 1963,2 because (as alleged in the
complaint) he engaged in protected concerted activities, or because (as Respondents
contend) he did not perform his job, properly. More specifically, in defense, Ly-
decker's former Employer, Sagamore, alleges he was discharged because of his (1)
latenesses, (2) misuse of equipment, (3) speeding, and (4) leading a customer to
believe Respondents were short -weighting.
A. Lydecker's employment history
After brief military service (1952-53) and return to his former employment as a
papermaker, Lydecker entered the employ of Respondent Sagamore as a truckdriver in
February 1963. His duties included the readying, driving, unloading, and mainte-
nance of trucks and associated equipment under his supervision. He took his instruc-
tions from Joe Cenate, who was Respondents' dispatcher and in charge of motor
maintenance.
i In view of these and other findings and conclusions , Respondents ' motion , upon which
ruling was reserved at the hearing, to dismiss the complaint as to Respondent Yank upon
the ground that it is not a necessary or proper party, is denied . At the hearing, Re-
spondents In effect conceded that the corporations constitute an integrated enterprise for
purposes of this proceeding.
2 Unless otherwise specified, all dates refer to 1963
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Latenesses
Respondents' truckdrivers' morning reporting time is 7 o'clock. Although Lydecker
concedes this, he claims that when a truckdriver is placed on long-haul (i.e., about
50 miles or over) as distinguished from short-haul assignments, he is free to report
for work at any time he wishes, in his own discretion, unless he has orders for delivery
at a specific time, in which event he also decides when to leave. The testimony of
Lydecker's fellow employees, called by him as witnesses, as well as the testimony of
Respondent's witnesses, does not support the existence of such a practice, but rather
that all drivers are required to report in at 7 a.m. unless they receive specific prior
instructions to the contrary from Dispatcher Cenate. Lydecker further testified that
since he had been assigned to long hauls "exclusively," he was not required to report
in at any specific time (unless he was scheduled for a short haul). Respondent Dis-
patcher Cenate, whom I credit, denied that Lydecker had been assigned to long hauls
"exclusively," but that he had only been detailed to such work for a period of about
30 days until restoration of the temporarily suspended license of Latterell, a regular
long-haul driver. I therefore do not credit Lydecker's testimony (which was itself
evasive and inconsistent) in the foregoing aspects, and find that: (1) Respondents'
truckdrivers were required to report in at 7 a.m. unless they received express prior
orders to the contrary from Dispatcher Cenate; and (2) Lydecker was not assigned to
long hauls "exclusively," but was only temporarily placed by Cenate on such detail.
According to his own testimony, in May, within about 3 months of entering Saga-
more's employ, because of his persistent lateness pattern over a period of time Ly-
decker received a serious warning from Sagamore Plant Manager Maxam to come
in on time if he wished to avoid consequences. Although Lydecker first testified
he received only one such warning from Plant Manager Maxam (Dispatcher Cenate's
superior), and none from Cenate, he changed his testimony so as to admit on rebuttal
that he received three or four such warnings from Maxam. I have taken this con-
tradiction or revision, as well as others, into account in weighing Lydecker's veracity.
Dispatcher Cenate testified that he, as well as Maxam, warned Lydecker repeatedly
about his latenesses, and that he even had occasion at times to telephone Lydecker
at home to find out when he was coming in; and that in mid-October, about 3 weeks
before his dismissal, Cenate placed Lydecker on express notice that he would be fired
if he came in late again . I fully credit Cenate's testimony in this aspect, and I do not
believe Lydecker's testimony that Cenate never even once spoke to him about
lateness. Lydecker admitted that despite all warnings he received, he not only
continued to come in late but failed to apply for permission to do so and (unlike
other drivers) even failed to notify Respondent that he would be in late. Lydecker's
timecards show 36 recorded latenesses in the 8-month period from March to Novem-
ber, 28 of them an hour or more. The accuracy of these timecards is undisputed.
Lydecker contends other employees were late, too. Whether or not this is true may
be beside the point, since there is no evidence that the latenesses of the other em-
ployees were unpermitted, unjustified, or unexcused; nor that the Employer was un-
willing to tolerate in better employees than Lydecker what it was not willing to
forgo in Lydeckers case, considering his other derelictions Furthermore, analysis of
the actual reporting times of employees, including Lydecker, as established by
stipulated timecard evidence, does not assist Lydecker's contentions, since it is
apparent from those records that Lydecker was regularly substantially later than any
of the other employees, and that Lydecker alone of all employees made it a Practice
to come in not iust a few odd minutes late but one or more Precisely calculated
even hours late, for some reason best known to him, exactly "on the hour" or exactly
"on the half-hour." Additionally, I accept the explanation of Respondent 's executive,
Slawsby, with regard to one of the other employees, Archambault (Archibald), as
being a special case in view of the nature of his duties (driving only between freight
yard and mill, and not to any customers), which were different from those of any
other driver. Lydecker's lateness pattern was thus unique among the drivers.
On the record Presented there is no doubt in my mind, and I accordingly find,
that prior to his discharge on November 8 Lydecker had established a record of un-
excused and unjustable latenesses in reporting for work; that he had failed to notify
his Employer in advance of such latenesses ; and that he persisted in such misconduct
notwithstanding repeated warnings from his Employer (including an express warning
in mid-October by Cenate, carrying out Slawsby's instructions, that in the event of
continued lateness he would be fired).
Events of November 8
Lydecker was discharged on November 8 for lateness. According to his testi-
mony, before leaving work on November 7 he knew from posted dispatch instruc-
SAGA-MORE PULP' CORP.; YANK WASTE CO., INC., 457
tions that-he was assigned to deliver a load of merchandise at the premises of Steiner
Tissue Mills in Albany, New York, a distance of approximately 50 miles, so as
to arrive there at 7 a.m., the required and usual delivery time to Steiner, a regular
and valued customer of Respondents. Also according, to Lydecker's testimony, he
knew from past experience that in order to arrive at Steiner's by 7 a.m. he had
to pick up his truck and trailer and leave Respondent's garage by 5 a.m.
According to Lydecker's testimony, he went to bed around midnight on Novem-
ber 7 and, upon waking up between 4:30 and 5,3 he found that his wife was not
feeling well.4 He testified that he thereupon telephoned and awakened a fellow
truckdriver, McDonald, who had made a delivery to Steiner the day before, and
asked him whether he thought the Steiner factory had enough merchandise on
hand; and, when McDonald said he thought so, Lydecker told McDonald to go back
to sleep and that Lydecker would be in late. (At no time has Lydecker taken any
instructions from McDonald, nor has McDonald occupied any supervisory or com-
parable status toward Lydecker or any other driver.) Concededly, Lydecker did not
ask McDonald to let Respondent (through Cenate or otherwise) know that Lydecker
would be late when McDonald reported for work that morning. Concededly,
Lydecker did not himself (nor did anybody else) let Respondent (through Cenate
or otherwise) know that he would be late. Concededly, Lydecker carried Cenate's
home telephone number around with him in his pocket. On the morning of Novem-
ber 8 Lydecker reported to work just before 8 a.m., concededly about 3 hours
after the time he should have reported in order to make the delivery on time to
Steiner. According to the testimony of Sidney Nuss, Steiner's assistant mill
manager in charge of purchasing, called as Lydecker's witness, Steiner has an un-
derstanding with Respondents requiring deliveries at 7 a.m., and needs, expects, and
awaits those deliveries at that time because its production schedules and system
are geared accordingly.5 Although there is no evidence that Steiner suffered mon-
etary loss because of the late delivery on November 8, there is indication that Steiner
set afoot inquiries to Respondents about the late delivery which were embarrassing
and at least potentially economically hazardous to Respondents.6 When Lydecker
returned to Respondents' garage shortly after noon, he was told by Cenate (who,
after discussing the situation with his superiors, had been instructed to notify
Lydecker) that he was fired. Calling attention to the episode of that day, com-
prising his latest lateness and failure to notify Cenate so that , he could send an-
other driver to Steiner's, Cenate told Lydecker (as Cenate expressed it) "that he
had been late too many times; that he wasn't responsible-you couldn't depend on
him, and I just had to let him go. I had to get somebody else I could depend on."
Respondent's executive, Slawsby, confirmed that Lydecker was discharged primarily
because of his lateness that morning, as well as his past record, including his misuse of
trucks and his speeding, which the incident of that morning had brought up for review.
When Lydecker went to see Maxam the next day or so, Maxam told him he could
do nothing about it but would find out what happened; according to Lydecker, how-
ever, although he was friendly with Maxam, he never spoke to Maxam about it again.
Lydecker's friendly fellow employee, McDonald, whom he had allegedly tele-
phoned around 5 a.m. on November 8 to consult with on the subject of Steiner's
inventories and Lydecker's assignment to make the required 7 a.m. delivery, was
called as a witness by Lydecker. McDonald admitted that Lydecker did not ask him
to inform Respondent that Lydecker would be late. McDonald testified, however,
that he told Plant Manager Maxam that morning (November 8) that Lydecker
would be late. I find that this testimony was sheer fabrication on McDonald's part,
since it was established not only by Lydecker's testimony but by the indisputable
evidence of Maxam that Maxam was in Philadelphia that entire day (as well as the
entire previous day and part of the succeeding day). I have taken this prevarication
3 According to Lydecker's testimony, he should have been leaving his employer' s garage
with the trailer truck for Steiner's by 5 a in., about the time he woke up.
4 According to Lydecker, his wife was pregnant. She delivered on January 18, 1964,
according to him after term She did not testify.
Occasionally deliveries would be made to Steiner later than 7 a.m. for reasons un-
connected with driver fault (e g, mechanical difficulty, traffic, delay In loading or unload-
ing) On such occasions either Steiner would call Respondent or Respondent would notify
Steiner. And, if an assigned driver (other than Lydecker) was unable to report to work
on time, he would telephone Respondent in advance so that arrangements could be made
for a substitute driver If necessary.
6 According to Lydecker's testimony, when he arrived at Steiner's around 9:30, the
yard boss told him that his company had already called Respondents for the next day's
load.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the part of McDonald into account in assessing his testimony ,7 including his
"corroboration" of the alleged 5 a.m. telephone call from his friend Lydecker, which
itself is open to extremely grave doubt under all of the circumstances.
I find that Lydecker did not report to work on time on November 8, as required,
but was approximately 3 hours late, resulting in an extremely late delivery to Steiner
Tissue Mills in Albany, a valued regular customer of his Employer, as well as in em-
barrassment, disruption of work schedules and operations, nonuse of equipment, and
potential economic loss to his Employer. I further find that permission for this late-
ness was neither sought nor given, and that the lateness and failure to inform his
Employer on time to make appropriate alternative arrangements was unjustifiable
and was not excused; and that this lateness and failure to notify his Employer was
the immediate actual cause of Lydecker's discharge on November 8.
2. Misuse of equipment
It is undisputed that in the spring of 1963 a motor of a truck, operated by
Lydecker while in Respondent's employ, broke down while being operated by
Lydecker, to the extent that it could not be repaired or salvaged but had to be dis-
carded and replaced. The precise circumstances of this breakdown, and whether
it was due to Lydecker's fault, are in issue. Lydecker in effect contends that it was
an old motor which simply wore out while he was driving it. According to Re-
spondent, corroborated by facts testified to by Lydecker himself at the hearing,
the motor loss occurred in consequence of or immediately attendant upon Lydecker's
use of an improper gearshift while hauling down a steep incline a 65,000-pound-
gross load, the point or nose of which had already cleared the crest of the hill by
about 50 or more feet and the tail of which was also already about 10 or more
feet down the incline.
The only opinion which could be considered to be potentially qualified on the
question of the actual cause of the motor loss was offered by Cenate, who among
other things is a mechanic having responsibility for motor maintenance on Re-
spondents' equipment. Whether or not Cenate's testimony alone would support
a finding that the motor loss was due solely to the fault of Lydecker, I am fully
persuaded that Respondents, including their president and principal, Yanklowitz,
Executive Slawsby, and Motor Maintenance Chief Cenate, were convinced-with
apparent good reason-that it was due to Lydecker's fault. I find that Respondents
were in good faith convinced, and reasonably so, that the motor loss in- question
was due solely to Lydecker's inept operation of the vehicle-trailer assembly of which
it formed a part. Upon the basis of undisputed, credible evidence, I further find that
although Lydecker was not at the time discharged or disciplined therefor (he was
.critically spoken to by Yanklowitz and others, however), other employees of Re-
spondent had been summarily discharged for similar conduct in the past.
3. Speeding
Although there was proof, including concessions by Lydecker himself, that Ly-
decker exceeded speed "limits" on occasion, it was conceded by Respondents that their
other drivers did, too, and that this alone was not the reason for Lydecker's discharge.
I find that Lydecker and other drivers in Respondents' employ comparably ex-
ceeded legally applicable speed limitations on occasion, without however finding or
implying illegality by reason thereof, and that such speeding played only a minor if
any role in Lydecker's discharged.
7 It is to be noted that McDonald also testified that he, too, came in late on Novem-
ber 7, the day before Lydecker's discharge, for a Steiner Albany delivery which McDonald
was scheduled to make. I credit this portion of McDonald's testimony, since it was cor-
roborated by Cenate, who pointed out, however ( as, indeed , McDonald himself testified),
that McDonald had notified Cenate in advance that he would have to be late, enabling
Cenate in turn to notify and check with and make explanations to the customer in ad-
vance in order to ascertain whether alternative delivery arrangements should be made.
This late delivery to Steiner is therefore readily distinguishable from that of Lydecker
the following day. Although the same could be said about other occasional or sporadic
delayed deliveries by other drivers, Respondent was under no obligation to tolerate short-
comings in Lydecker that it might have been willing to put up with in other drivers
who might or might not have had an overall better performance recor(l), so long as Re-
spondent did not discharge or otherwise discriminate against Lydecker for exercising his
rights under the Act.
SAGAMORE PULP CORP.; YANK WASTE CO., INC. 459
4. Short-weight practices
Respondent alleges that a further reason for Lydecker 's discharge was that a week
or two before the date of that discharge , Lydecker had entered into discussion with a
customer in which Lydecker indicated that Respondents engaged in short-weighting
loads. While admitting that he had discussed this subject with a customer, Lydecker
indicated that he supplied no information justifying the conclusion that short-
weighting was being practiced. Upon the meager evidence presented on this point,
and in the absence of testimony of the other party to the conversation with Lydecker
and as to precisely what was conveyed to Lydecker's Employer, a finding on this
matter would be unwarranted, since it would involve speculation and conjecture, based
in large part on hearsay perhaps several times removed.
I accordingly find that it has not been established by substantial credible evidence
that Lydecker entered into discussion with a customer involving, or from which it
could reasonably be inferred that Respondents or either of them were or had engaged
in, short-weighting; and that, although such an alleged discussion on the part of Ly-
decker was mentioned during the management conference on November 8 on what
to do about Lydecker, it has not been established by substantial credible evidence
that such a discussion by Lydecker was the basis in whole or in part for Lydecker's
discharge.
B. Lydecker's organizational activities
It is Lydecker's contention that he was not discharged for any of the foregoing
reason, but for participation in self-organizational activities protected under the Act.
These activities consisted of his attendance at two organizational meeting, the first
on Ocober 25 and the second on November 7. Lydecker maintains that at or in
connection with these meetings, the first of which was attended by Cenate and both
of which were attended by other fellow employees, there arose differences of opinion
between him and Cenate on the subjects of seniority and assignment of drivers to long-
haul trips , and that it was these " organizational" differences which brought about
his discharge. For a number of reasons I am unable to agree with this conclusion.
To begin with, it is conceded that it was Cenate who spearheaded the organizational
activity, arranged for the organizational meetings, and brought it about that the men
attended those meetings , and that it was Cenate who. introduced and recruited Ly-
decker and the other employees into membership into the Union, of which Cenate was
a sort of informal shop steward. Moreover, the evidence is clear that 'long prior to the
first organizational meeting on October 25, Lydecker and Cenate had been building
up an explosive head of disagreement steam , not only because of Lydecker's apparent
inability to get to work on time. On one occasion, for example, in or around May,
according to Lydecker's testimony, Lydecker went over Cenate's head directly to
Respondents President Yanklowitz to complain about the fact that Cenate was not
assigning Lydecker to long-haul trips because Cenate thought Lydecker did not have
sufficient experience. It would appear that Lydecker's complaint to Yanklowitz met
with a cool reception, since Yanklowitz merely confirmed the authority of Cenate
and Slawsby in these matters-"Whatever they say is the decision." This incident,
recounted by Lydecker himself, does, however, serve to point up that long before any
organizational activity, and in fact only 3 months after he entered Respondent's
employ, Lydecker was already experiencing problems with his Employer-or, perhaps
more accurately, Lydecker's Employer was already experiencing problems with him.
As has been pointed out, the prime mover in the organizational activity was not
Lydecker but Cenate. Indeed, the undisputed evidence establishes that Cenate actually
advanced the union initiation fees of the employees by his own personal check, filled
out by Lydecker and signed by Cenate. To be sure, the usual bickering between Ly-
decker and Cenate appears to an extent to have spilled over into the first organizational
meeting (October 25) and into a barroom sequel to the second (November 7)
meeting (Cenate was not present at the second meeting itself , but only in the bar
following it). The question of whether there were "organizational" differences be-
tween Lydecker and Cenate of the type emphasized by Lydecker is itself not free from
doubt. Lydecker's testimony as to the nature of his alleged disagreement with Cenate
at the organizational meeting(s) thrown into sharp doubt by the testimony of Cenate,
whose countervailing testimony to the effect that he had no organizational quarrels
with Lydecker I credit based upon the record as a whole, including demeanor and
veracity comparisons; and also by the testimony of Lydecker's own friendly fellow
employees, McDonald and Staley, called as his own witnesses. Thus, McDonald
swore unequivocally that Cenate gave no indication at the October 25 meeting that he
favored a different type of seniority system than Lydecker (as Lydecker had claimed),
and that the same was true of the November 7 meeting since Cenate was not there.
460 DECISIONS -OF NATIONAL ' LABOR RELATIONS BOARD
McDonald testified that at the October 25 meeting Lydecker made critical remarks
about Cenate; and Staley testified that also at the November 7 meeting "Mr. Ly-
decker said he thought Mr. Cenate was not doing his job properly." Lydecker's own
testimony indicates that following the November 7 meeting a rancorous exchange
took place between him and Cenate, who accused Lydecker of "hav Ling] it in for me
[Cenate]," and that when Cenate told Lydecker he wanted to have a talk with
him Lydecker said, "Tomorrow is the place to talk to me. I will answer anything
you have to say." 8 In any event, however, even if Lydecker and Cenate disagreed
on organizational matters, this did not gain Lydecker exemption from discharge (as
herein ) for nonorganizational matters.
I am thus totally unable to subscribe to Lydecker's thesis that organizational ac-
tivities on his part , or organizational differences with Cenate as a representative of
management ,9 caused his discharge . It is apparent from Lydecker 's own testimony
that substantial grounds for his eventual discharge, in particular his inability to get
to work on time, were already building up in strength soon after he was hired, and
that, despite repeated warnings , he either deliberately persisted in or was unable to
remedy these faulty habits or misconduct. It is equally apparent from testimony of
his friendly fellow employees, that the differences between him and Cenate at the
first union meeting and at the barroom sequel to the second ( involving Lydecker's
throwing down of the gauntlet in open defiance of Cenate 's authority , in the presence
,of other employees ) were of a deep-seated personal nature, arising out of their in-
compatibly rancorous relationship rather than in any sense objections by Respondent
or Cenate (himself the sparkplug of the organizational activity ) to organizational
activity on Lydecker's part. In view of the facts that there was admittedly a consider-
able history -of serious infractions on Lydecker's part prior to the November 7 meet-
ing, that the feud between Lydecker and Cenate was of long standing prior to Novem-
ber 7 and was not organization -related , and that the specific cause for Lydecker's
discharge was the renewed serious lateness infraction if not misconduct on Nov-
ember 8, I cannot on the basis of this record read significance into the November 8
discharge date in relation to the coincidental November 7 union meeting.
In order to draw into sharp focus from another direction the frame of reference
within which the evidence has been viewed , it is essential to point out that on com-
parative lines my final reactions to testimonial demeanor were heavily weighted on
the side of Respondents ' witnesses , whom I found without exception 10 to be highly
credible . Because of substantial contradictions" under oath at the hearing itself,
coupled with incredible testimony 12 and what struck me as an unnecessary degree of
8 McDonald 's version of this incident is similar , and perhaps indicates even more clearly
the climate of relationship prevailing between Lydecker and Cenate . McDonald , who said
that "The voices [ of Lydecker and Cenate ] got kind of loud," described the scene as
follows: "There was an argument going on at the [barroom ] table between Joe Cenate
and Berm Lydecker . . . . Joe was asking Herm what he thought he was doing, why he
was hounding him, whether or not he wanted his shirt , criticizing him and so forth.
Herm kept telling Joe that he didn 't understand what he was talking about . . . Joe
said he was still boss , he would send anybody any place he wanted to. Herm said, 'We
will see about it.' . . . Herm said if he wanted to talk about it, talk about it down to the
garage in the morning. Berm turned his attention elsewhere."
9 There is not a shred of evidence , nor charge , suggestion , or basis for inferring that
Cenate's Employer knew about , sanctioned , objected to, or was concerned with what
Cenate or any other employees were doing organizationally , or in any way at any time
attempted to exert any influence therein or to obtain any information thereof.
Is It is true that there were occasional possible surface inconsistencies in unessential
aspects of the testimony of Cenate While basically a highly truthful witness, Cenate
gave me the impression of occasionally involuntarily lapsing in complete attentiveness
while on the witness stand , perhaps due to a hearing or associated comprehension defect.
As to overall general credibility , however, I have no reservation in rating him high.
n E.g, Lydecker 's initial testimony that Maxam only warned him once, in contrast to
his subsequent testimony ( on rebuttal ) that Maxam warned him three or four times, about
lateness . ( Lydecker gave the appearance of attempting to pass this off through minimiz-
ing it by remarking offhandedly, "Well, if they are important ; yes ")
12 E.g , Lydecker's flat insistence , which I cannot credit, that Cenate never spoke to him
about lateness . I believe the testimony of Slawsby , Maxam, Cenate , and others, that
Cenate's job as dispatcher required him to see to it that Respondents ' merchandise de-
liveries left and arrived on time and that he carried out these duties as best he could.
I also believe Cenate's testimony that this included his constant importuning of Lydecker
over the telephone at home to get to work , and constant warnings to Lydecker regarding
latenesses.
SAGAMORE PULP CORP.;, YANK WASTE CO., INC. 1 461
evasiveness and "canny" irresponsiveness,13 to say nothing of instances of demon-
strated outright prevarication, I cannot say the same for the Charging Party's side
of the case.
Analysis and Conclusions
This, then, is a case involving a new employee who concededly began having
problems of a serious nature with his Employer soon after he was hired. The most
serious of these problems was lateness in coming to work-substantial, repeated,
unexcused, unreported latenesses; perhaps particularly serious in a truckdriver
for a business working on time schedules and whose customers work on time sched-
ules. Notwithstanding repeated warnings, he persisted in this serious misconduct.
Considering the nature of his duties and his Employer's business, persistent lateness
was an extremely serious matter directly affecting the efficiency of his Employer's
operations, if not the continued goodwill of its customers, and thereby the very
viability of its business. On the day when he was discharged, the employee concedes
he was again drastically (3 hours), late, on the heels of a recent warning that he
would be fired in case of further lateness. Although he knew what work was
assigned to him for that morning, he admits and can offer no justification for his
failure to notify his Employer of the fact that he would be late, so that the Em-
ployer could make other arrangements for the delivery, in this case to a valued
regular customer whose production schedules were tailored to timely delivery
arrivals. Instead of notifying his Employer, he claims he telephoned a friendly
fellow employee but did not even ask him to let the Employer know when the fel-
low employee reported to work; and this alleged telephone call is "corroborated" by'
the testimony of a fellow employee who flatly prevaricated under oath on the witness
stand. Particularly considering his sustained lateness history in the face of repeated
warnings, and, his other unsatisfactory employment record, there is not the slightest
question in my mind that the episode of November 8 amply merited Lydecker's
discharge. Nor is there any doubt in my mind that this was the real reason he was
discharged.
There is here no history, indication, or suggestion of any antiunion sentiment on
the part of the Employer; 14 indeed, the opposite appears to be true.15 Further,
the undisputed evidence establishes that Lydecker was not singled out for discharge
upon the grounds alleged: other employees,16 not claimed to be union-affiliated
were discharged for the same or lesser reasons, some of them summarily. The
mere fact that Lydecker was not also summarily discharged prior to November 8,
does not mean that he thereby gained immunity from discharge for the same reason
if repeated, nor even for the same reason if not repeated but reviewed or recon-
sidered, particularly in the light of contemporaneous misconduct or infractions in-
dicative in the aggregate of unsuitability for employment retention. The fact that
the Employer's rule against latenesses was not rigidly enforced does not mean that
when it was enforced the Employer acted discriminatorily.17
Although there would be no doubt, as General Counsel contends, that if Lydecker
was discharged for his participation in protected concerted activity it would be
unlawful under the Act, there is also no doubt that if his discharge was for reasons,
or a reason, other than such activity-whether or not "justifiable"-it was not un-
lawful under the Act. As has been pointed out many times in many ways, inso-
far as the legality or illegality of employee discharge under the' Act is concerned,
13 E g.:
.Q. Lest there may be any misapprehension , do you know what punctuality means?
Being on time.
A. (By LYDEC1cER.) I don't misunderstand the whole meaning of it; no.
1* Cf. NLRB v . Jamme8town Sterling Corp., 211 F. 2d 725, 726 ( CA. 2) ; N.L R.B. v.
Linda Jo Shoe Company, 307 F. 2d 355, 357 (CA. 5).
18 As already indicated , Cenate himself was an active union man. Other than Lydecker's
present claim , there is no suggestion that anybody was ever discharged by Respondents
for "union" reasons. And there appears to have been a continuing background of amicable
collective bargaining , agreements , and renewals.
19 B g , Holmes, Capone, and Shaver.
17 "But to Dunson [ Employer ' s personnel manager] , already exasperated by the num-
ber and perseverance of Hughes 's creditors, the final batch of threats of garnishment was
enough . . . . Proof that a rule is flexible is not tantamount to a showing of discrimina-
tion, if there is reason for its strict application . To Dunson 's personal knowledge, at
least three other employees had been dismissed because of excessive garnishments. Thus
Hughes was not alone in feeling the brunt of the company policy." N.L R B. v. Georgia
Rug Mill, 308 F. 2d 89, 93 (CA. 5). °
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so long as the discharge is not for "anti-union" reasons, "Management can discharge
for good cause, or bad cause, or no cause at all. It has, as the master of its own
business affairs, complete freedom with but one specific qualification: it may not
discharge when the real motivating purpose is to do that which Section 8(a)(3)
forbids." IS Although there is here an employee record of various shortcomings
and serious infractions, some of which in themselves would undoubtedly have con-
stituted valid causes for discharge,° and the Employer for tolerant or other reasons
stayed his hand from the act of discharge, I am convinced that "the straw that broke
the back of [respondent's] tolerance and condonation" 20 of Lydecker's unsatis-
tory employment record was his failure on November 8 to come to work on time
to make the important Albany delivery on time or to notify his Employer thereof.
There is also no doubt in my mind that the November 8 incident triggered a review
by responsible officials of his Employer of his past employment record. As re-
counted by Respondents Executive Slawsby, whom I found to be an impressively
objective and credible witness, after the serious infraction of November 8, a man-
agerial meeting was held, at which, after consideration of Lydecker's entire past
record, it was decided to separate him from Respondent's employ. The factors
involved in that review of his employment record, resulting in the decision of
November 8 to discharge him, were not only the immediate episode of November 8,
but his persistent latenesses after continued warnings, his supposed fault in ruining
a costly truck motor, his supposed involvement with a customer in a discussion of
short-weighting practices by his Employer, his general insouciance, nonconformity,
and resistance if not defiance of supervisory authority, and last but probably not
least his open hostility to and incompatibility with Cenate (a proven employee of
18 years' standing, whom Respondents undoubtedly did not wish to sacrifice on the
altar to a new, petulant, and unsatisfactory "problem" employee),21 bordering on
insubordination such as to set an intolerable example-in sum, he, had finally be-
come persona non grata to his Employer. It cannot be said to be discriminatory,
nor unus 1, for an employer, when an employee infraction occurs (as herein on
Novemberj8) to engage in such a review of the employee's entire past record, in
order to reassess his suitability for retention, weighing the current infraction in
the scales of his past performance. In this case, according to Respondents, just
this was done. In Cenate's words, "I discharged him on the 8th of Novem-
ber, 1963,1 because he wasn't to Albany at 7:00 o'clock with the load, where he
should have been there, and the reason was because he didn't call me. I took it
to the office and talked to my bosses, and they told me it was enough, that I had put
up with him long enough, that I had put up with enough, that they had, too ... .
He had been late so many times and not on time and with the truck blowing up,
that was the end of it. I had to get another man to drive." In Slawsby's words,
"We examined the record. We examined Mr. Lydecker's tardiness habits and work-
ing habits I.. This [incident of November 8 involving Steiner Tissue Mills]
is what brought the other matters into focus and brought about this meeting of the
minds." Upon the record as a whole, I credit these statements. It cannot be said
that the decision to discharge was unjustified; but, whether or not justified, it cer-
tainly cannot be said that the decision was for any reason proscribed by the Act.
The discharge of Lydecker having been upon the immediate ground of the de-
scribed November 8 incident and for the total background reasons explicated, it
was in no way connected with any union activity on his part and therefore does not
come within the proscription of Section 8(a)(3) or (1) of the Act.
I accordingly find and conclude that the discharge of Lydecker was not for dis-
criminatory reasons in violation of the Act, and that the allegations of the com-
plaint to that effect have not been established by a preponderance of the credible
evidence.
CONCLUSIONS OF LAW
1. Each Respondent is, and Respondents collectively are, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union, of which the Charging Party is a member, is a labor organization
within the meaning of Section 2 (5) of the Act.
11 N.L R B. v. T. A. McGahey, Sr.; et al., d/b/a Columbus Marble Works, 233 F. 2d
406, 413 (CA. 5).
39 Cf. N.L R B. v. Linda Jo Shoe Company, 307 F 2d 355 (C A. 5)
ro Magnolia Petroleum Company v. N L R.B , 200 F. 2d 148, 149 (C.A. 5).
a It was impossible for me, observing Lydecker and Cenate throughout the hearing,
upon the record presented, to avoid the conviction that deep animosities provide an un-
bridgeable gulf between these two incompatible persons.
KELLEY & JAMISON , INC. 463
3. Respondents , individually and collectively, have not violated Section 8(a)(3)
or (1) of the Act as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
Kelley & Jamison, Inc. and Memphis Newspaper Printing
Pressmen's Union, Local No. 24, Petitioner . Case No. 26-RC-
2192. August 05, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition filed under Section 9 (c) of the National Labor Rela-
tions Act, a hearing was held before Hearing Officer Roger B. Holmes.
The Hearing Officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
Upon the entire record in the case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act and it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The Petitioner and the Intervenor 2 are labor organizations within
the meaning of the Act and claim to represent certain employees of the
Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act .3
4. The Petitioner seeks an election among the Employer's pressmen
and a cameraman-platemaker, referred to in its petition as "all litho-
graphic production employees."
For many years, in separate bargaining units, the Petitioner has
represented the pressmen and the Intervenor has represented the com-
positors. Ina recent proceeding pursuant to Section 10 (k) of the Act,
in Case No. 26-CD-15, involving the same parties, the Board issued its
Decision and Determination of Dispute,4 in which the Petitioner and
1 The parties stipulated that the transcript of testimony and exhibits In Case No.
26-CD-15 be made a part of the record herein.
2 Memphis Typographical Union, Local No. 11, was permitted to intervene on the basis
of its contractual interest.
3In view of our disposition In this case, we deem It unnecessary to pass upon the con-
tention that the Intervenor's contract constitutes a bar to this proceeding. We also reject
as lacking in merit the contention that Petitioner Is disqualified from doing business for
not filing under State law.
4 146 NLRB 1614.
148 NLRB No. 58.