Salem Transportation Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1103 (N.L.R.B. 1980)

DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
Salem Transportation Co., Inc. and Kenneth H.
Espel. Case 4-CA-10257
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND ME.MBERS
JENKINS AND PENI.I.O
On June 19, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed excep-
tions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Salem Trans-
portation Co., Inc., Wrightstown, New Jersey, its
agents, officers, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
In adopting the Administrative Law Judge's dismissal of the 8(a)(4)
and () allegation or the complaint, we rely on his finding that employee
Epsel was disciplined for his poor record
2 In adopting the Administrative Lass Judge's Decision Member Pen-
ello agrees with his colleagues that Respondent iolated Sec. 8(a)(l) of
the Act clowever. Member Penello is of he ies that this case is distin-
guishable from United Stares Postal Service, 242 NLRB 228 (1979). cited
by the Administrative Law Judge In that case. the Board dismissed the
complaint alleging a violation of Sec 8(a)(l), and Member Penello's con-
currence stated his position that the respodent's action is alleged i the
complaint, een if it were found to constitute a violation of the Act,
would not warrant a Board remedy Member Penello agrees with the
Administrative Law Judge's concern about the wisest use of the Hoard's
limited resources and does not endorse the issuance (if complaints sshere
the alleged misconduct, even if proven, would not warrant a renmed, See
his concurring opinions in UInired Suates Prtal Srvie. 248 NLRH 840
(1980); Peoria Journal Star, 242 NLRB 928 (1979); Unired States Postal
Service 242 Nt.RIB 228 (1979); United Steels,orrkelr of 4merica. .l/-L CIO
(Rucyrus-Eric Companrl 2 NRB 177 (1978) Prl'es Ifod Products,
Inc, 236 NLRH I (1978); and otle hit remark, in aurea of,I Varional
.4ffairs Inc. 235 NlRH 8, fn 2 (1978)
APPENDIX
NoTrICI To EMPI.OYEES
PosiI) 1BY ORI)ER OF THE
NATIONAI LABOR RF.I ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nitv to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL. NOT coercively inform our em-
ployees that they are harassing us by filing
charges in good faith with the National Labor
Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
SAI.EM TRANSPORTATION Co., INC.
DECISION
ST.ri:MINT OF THE CASE
BIRNARD RIES, Administrative Law Judge: This
matter was heard in Philadelphia, Pennsylvania, on Janu-
ary 29-30, 1980. The complaint alleges that Respondent
violated Section 8(a)(4) and (1) of the Act by suspending
the Charging Party' for a -month period on May 14.
1979,2 and further violated Section 8(a)(1) of the Act by
threatening to retaliate against the Charging Party be-
cause he filed a charge with the Board.
A brief has been filed by counsel for General Coun-
sel. a Based on the record,4 the brief, and my recollection
Kllleth HI psel. as amended at he hearing
2 Unless othersAise indlicated, all dates hereafter refer to 1979
' He also filed a moltin to correct the exhibit. hich is unopposed,
and Which I gralt T-he arbitration aard, fornirmerl marked Resp Fxh
is redesignated G C Fxh 7 the motor ehicle accident report has been
designa;lted Resp lxh
lrror, Ill the tranlcrlpt ha',l been nilted and corrected
252 NLRB No. 155
I 103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the witnesses, I make the following findings of fact
and conclusions of law.'
Respondent is engaged in the business of interstate and
intrastate bus and limousine service. It has terminals in
several locations. Its chief operating officer is Vice Presi-
dent Charles Theibauth. The principal question presented
is whether, on May 15, Theibauth imposed discipline
upon Charging Party Kenneth Epsel, a Wrightstown,
New Jersey, driver, because he had filed a charge with
the Board.
Epsei was first employed by Respondent in 1972, as a
limousine and bus driver. He apparently thereafter shift-
ed back and forth between full-time and part-time work.
In November 1978 he was discharged for allegedly steal-
ing $8 from Respondent by virtue of a purported mis-
count of passengers. Epsel's discharge was arbitrated; 6
on February 20, the arbitrator held that the evidence was
insufficient to warrant a finding of "actual" theft; and the
arbitration award provided for reinstatement of Epsel,
but without backpay, the arbitrator concluding that
Epsel's conduct and testimony "contributed to the aura
of suspicion" which had caused Respondent to believe
that a theft had been committed. 7
In January 1979, prior to his reinstatement, Epsel filed
complaints with three government agencies, which
charges created a certain amount of extra work for Re-
spondent. He filed a charge with the New Jersey De-
partment of Labor relating to company policy on em-
ployee shortages, vacation pay, and medical examina-
tions; this complaint resulted in Theibauth having to
meet with representatives of that agency on at least three
occasions, for about 4 hours each time. Epsel also filed a
complaint with the Labor Management Services Admin-
istration of the U.S. Department of Labor, alleging some
sort of improprieties in an internal election held by Local
880; in consequence, Theibauth twice met with an inves-
tigator from that office, probably in March and April,
spending the better part of the day on each occasion. Fi-
nally, on January 26, Epsel filed a charge with the
Board, alleging that Respondent had made certain im-
proper statements about his fitness to be a union steward
and had discharged him because of his union activities;
while Theibauth first testified that the subsequent investi-
gation caused him to spend half of a day in supplying in-
formation to a Board agent, he later realized that he had
been erroneously thinking of the investigation of the pre-
sent case. In fact, Theibauth ultimately, and credibly, tes-
tified, the only burden imposed upon him by Epsel's first
charge was two telephone conversations with a Board
agent.
On May 15, Respondent, by Theibauth, suspended
Epsel for a -month period. The General Counsel asserts
that one of the reasons for the discipline was the charge
filed with the Board by Epsel in January. Theibauth tes-
' The answer to the complaint admits that Respondent is an employer
engaged in commerce within the meaning of the Act. I find it appropriate
for the Board to assert jurisdiction here.
6 Respondent's Wrightstown and Atlantic City personnel are represent-
ed by Amalgamated Transit Union, Local 880, in a single bargaining
unit.
A the hearing, Epsel testified that he was again no longer employed
by Respondent, having been discharged in September 1979; the record
discloses no details.
tified that the discipline stemmed from three instances of
improper work performance by Epsel. Two of the inci-
dents were litigated at some length at the hearing. The
General Counsel contends on brief that Epsel was so
clearly blameless on these two occasions that Respon-
dent's reliance on them as a cause for punishment must
be viewed as a subterfuge for retaliation against Epsel's
filing of a charge with the Board in January. With that
argument in mind, I shall discuss the first two incidents.
In doing so, I shall summarize the testimony given both
by Epsel and by Respondent's two witnesses.
Epsel testified that on April 2 he was assigned a run
from Newark Airport to Wrightstown. He left the air-
port about 10 p.m. and, as he neared Princeton, the bus
began making peculiar noises. He subsequently found
that the muffler was dragging and also that the parking
lights on the bus were out. He continued driving, making
his last drop-off in Hopewell, New Jersey and then at-
tempted to call the dispatcher at McGuire Air Force
Base, where he would normally go to do his paperwork.
The dispatcher did not answer. Epsel then attempted to
call the Bell Transportation dispatcher at the Wright-
stown garage where the bus would be finally parked for
the night. That phone was busy. He then "cautiously"
drove 7 miles back to Princeton8 where he again, at or
about 12:30 a.m., attempted to call the Bell dispatcher.
This time, the call went through. Eschewing the offer of
a wrecker, Epsel told the dispatcher that he thought he
could make the return trip safely, but would have to
drive slowly because, inter alia, the muffler was drag-
ging. The dispatcher approved the plan. Epsel arrived at
Wrightstown about 2 a.m. and completed his duties
around 2:15.
Theibauth left a message that Epsel was to see him
before driving again. Accordingly, a few days later, the
two met in Theibauth's Wrightstown office, where Epsel
explained his decision to drive the bus to the garage, and
Theibauth said that "using extra time is an act of stealing
in his eyes."
A few days later, on April 8, Epsel was dispatched
from Wrightstown to Philadelphia around 4 p.m. Ac-
cording to his testimony, as he proceeded in the right-
hand lane of Route 295, a car in another lane skidded in
front of him. Making a split-second decision, Epsel went
off an exit ramp which happened to be nearby ("fortu-
itously," says the G.C. brief). At the top of the ramp, he
decided to make a U-turn by cutting through a nearby
Burger King parking lot; in attempting to turn into the
lot, an oncoming driver ran into him. The police were
called, but Epsel received no traffic citation. Epsel was
subsequently interviewed about the accident by Phil
Stein, Respondent's director of personnel and safety se-
curity.
About 10 days later, according to Epsel, he was called
into a meeting with Theibauth and Shop Steward
Bryant. Theibauth said that he was unhappy about the
two recent occurrences and made reference to an inci-
dent of a few years past in which a passenger had been
late in catching a flight at McGuire Base. Epsel remind-
" It was a "rainy, foggy night"
1104
SAL.EM TRANSP()RTATION C() INC
ed Theibauth that he had been exculpated at the time.
Theibauth told Bryant that he thought the charges were
serious enough to warrant a meeting with Union Presi-
dent Dannehauer.
At that second meeting, held around April 26, were
Theibauth, Epsel, Personnel Director Stein, Bryant, and
Dannehauer.9 Epsel explained again his reasons for "the
lateness on the Princeton run." but Stein expressed dis-
satisfaction with the explanation and said he felt that
Epsel could have temporarily repaired the muffler and
was "malignant timewise." 1 0 A discussion of the acci-
dent was also had, but Stein rejected Epsel's explanation
and "accused me of being off deliberately to see someone
- a friend of mine." Stein recommended that discipline
be imposed, but Theibauth said he wanted to consider
the evidence further before reaching a decision, and a
date of May 7 was set for another meeting.
At the end of the April 26 meeting, Epsel raised a new
subject. He complained that he had not been assigned
enough hours since his reinstatement, and asked Thei-
bauth to sign a "partial unemployment slip." He also "in-
dicated I was annoyed by the situation, and I felt it was
a form of harassment by him in holding this matter up."
At this, testified Epsel, Theibauth exploded, saying that
he had been the one harassed, "by every agency from
New York to Washington." Theibauth "mentioned the
wage and hour, the NLRB, I don't know who he men-
tioned with the NLRB, but he mentioned the L.M.S.A.,
Mr. Shannon, and several other agencies." At some
point, Theibauth said he had "considered some kind of
legal action against me for libel because of the fact that I
went to these various agencies, and it was - cast a bad
image upon the company." After Epsel replied in anger
the meeting was adjourned.
The next scheduled meeting was cancelled due to
Epsel's illness, but at a meeting on May 15, at which
were present Epsel, Bryant, Union Vice President Able.
Union Secretary-Treasurer Liccketto, Theibauth, and
perhaps one or two others, Theibauth said that Epsel's
behavior was blameworthy in the two incidents, and he
announced a 2-month suspension. After a "lot of shout-
ing and hollering," Theibauth cut the discipline in half.
Epsel testified that he thereafter again broached the "un-
employment situation" and Theibauth again stated that
Epsel was "the person doing the harassment in this
case." He referred to his receipt of a letter from New
Jersey unemployment compensation authorities as "an-
other form of harassment" and adverted to "[t]he fact
that [Epsel] had been going to other agencies, Federal
and local and State, and he felt that this was harass-
ment." Theibauth "mentioned the Labor Management
Association [sic], Mr. Shannon. And he stated that he
had wasted two whole days talking to the man, not
counting any phone calls. He mentioned the National
Labor Relations Board; various conversations he has had
over the phone with them, and also a conversation in his
There is conflict in the record as to those in attendance at this and a
suhsequent meeting. but the question is of no moment
in A fetching phrase, but probahly should be "malingering
i While Epsel estifried that Stein and Respondent Presidenl Miro,,
were at this meeting, the iother witnesses. including the General Counsel'%
own, disagreed
office. And he mentioned Mr. Pearson, who had come to
see him previously, and was still sending letters to his
office" 2
Personnel Director Stein testified that he investigated
the April 8 accident. He said that for one-quarter of a
mile preceding the exit, there is a fourth lane for use by
exiting cars, and that there are several signs prior to the
exit which indicate that traffic continuing on route 295
south should bear to the center and left lanes. Because of
the configuration of the road immediately after the exit,
requiring that a Philadelphia-bound driver keep left,
Stein testified that Epsel, accustomed to the highway,
should have been positioned somewhere other than the
right side of the road as he approached the area of the
exit ramp. He also reasoned, and photographs in evi-
dence seem to confirm, that the shoulder of the road just
past the exit was broad enough to accept Epsel's vehicle
even if a car had skidded toward him. Stein further
found that, having gone off the highway, Epsel then at-
tempted to make a turn into the restaurant parking lot by
crossing two sets of double yellow lines (which signify
that there should be no crossing) and he also concluded
that Epsel's asserted attempt to make a U-turn via the
parking lot was "completely unnecessary" since he could
have made a right turn at the top of the ramp or could
have proceeded almost directly across the overpass road
and gone off a down ramp on the opposite side. L:r
In addition, Stein said that he was told by the Burger
King manager that at the time of the accident, the res-
taurant parking lot is normally so full of cars that there
would be no way for Epsel to maneuver the bus through
the lot as he allegedly intended. Stein testified that Re-
spondent is not insured for damage to its own vehicles in
such cases and that there was $250 damage done to
Epsel's bus.
Stein said that he recommended to Theibauth that
Epsel be terminated for his conduct on this occasion, and
Theibauth gave confirming testimony as to Stein's rec-
ommendation. A letter Stein wrote on April 18 to an in-
surance agent states, "We are take [sic] action for dis-
missal on [Epsel]." Another letter, dated April 25, refers
to Epsel as already "terminated because of accident." A
curious entry appears on Epsel's driver's record, kept in
Stein's files, however; dated April 8, it records the acci-
dent, calls it "avoidable," and then says "Recommend 2
week suspension." These latter words are written in blue
ink (in contrast to the red ink on the rest of the line)
over a quite visible pencil notation which appears to say
the same thing. While Stein said that he would normally
be the only person to write in that record, he did not
think that the hand was his, and although there are simi-
larities between his style and that in dispute, there are
also differences.
Theibauth also testified to the series of incidents in
April which resulted in the suspension. He stated that on
April 3, it was brought to his attention that Epsel had
: Epsel maintained on further examination that at this May 15 meet-
ing. 'heibauth wsent through the list of intrusions n his time just as he
had done at the prior meeting iof April 26
':' A diagram dra n b Epsel for Respondent on the day of the acci-
dent shos such a dow:n ramp
1105
DI)'tCISI()NS OF NA 'I()NAI. I.AB()R R.A'II()NS BO()AR[)
taken about 5 hours to make a round trip between
Newark and McGuire Air Force Base. Epsel's manager
(whose identity is not otherwise disclosed in this record)
gave Theibauth a written report, saying that he felt 5
hours was too long a time to make a trip of 80 miles.
Theibauth told the dispatch office that Epsel was not to
be allowed to drive again until he appeared in Thei-
bauth's office with his shop steward.' 4 When Epsel and
the shop steward appeared and Theibauth raised ques-
tions about the trip, Epsel said that he wanted to bring in
his logbook to prove that he had not wasted time. Al-
though Theibauth could see no value in bringing in the
logbook, he scheduled a meeting for the following week,
at which time Epsel and the shop steward again ap-
peared. Epsel did not have his logbook. He told Thei-
bauth that he wanted to contact witnesses. Again, Thei-
bauth postponed the meeting to the next week.
Prior to that rescheduled meeting, however, the shop
steward brought to Theibauth's attention that Epsel had
been involved in the Burger King accident. Also prior to
that meeting, Theibauth received another report on
Epsel. The dispatcher at John F. Kennedy Airport noti-
fied Theibauth's office that, probably around April 17, in
dispatching Epsel for a trip from the airport, the dis-
patcher had assigned him passengers for the Wright-
stown area and for the Philadelphia area. Epsel refused
to take the Philadelphia passengers. When the dispatcher
told him to turn in his keys if he persisted in refusing,
Epsel changed his mind and agreed to take all of the pas-
sengers. However, after Epsel left the international arri-
val building at Kennedy Airport and arrived at the Pan
Am building to pick up the passengers, he called the dis-
patcher and said he was not feeling well and could not
get into Philadelphia. It was necessary for Respondent to
send a bus to Bordentown to pick up the Philadelphia
passengers, while Epsel terminated his run at Wright-
stown.
Thus, according to Theibauth, "[alt the time of the
hearing . . . I had three things that were to be dis-
cussed." At that hearing, on April 26, in a discussion of
the Burger King accident, the question of the legality of
making a left turn across double yellow lines was raised.
Although Theibauth, a member of the Burlington
County Safety Council, believed that double yellow lines
could be crossed only by an emergency vehicle, Union
Representative Dannehauer insisted that the turn was
proper. Theibauth thereupon rescheduled the meeting in
order to give himself "an opportunity to look into this
personally." Theibauth candidly admitted at the hearing
that he had been dissatisfied with the decision of the ar-
bitrator concerning Epsel's November discharge, and
since "he did not want to have another arbitration case if
there was any loopholes in it," he wanted to investigate
himself. He thereupon went to the scene of the accident
and checked around. He concluded that Epsel could
more readily have made a safe right turn at the top of
the exit ramp rather than the dangerous left turn that he
made. He also spoke to the local police. They told him
that Epsel could have legally gone up one ramp and
'4 This procedure is apparetly authorized by the bargaining agree-
ment
down the other.' ' The police further said that while it
was illegal to cross the yellow lines into the Burger King
lot, the restaurant had complained about enforcement of
that rule and the police had stopped citing drivers for
making the turn into the lot.
At the next meeting, on May 15, with Able, Bryant,
Liccketto, and Epsel present, they "discussed all three
incidents and I stated that I was going to suspend Mr.
Epsel for two months." After one of the union represen-
tatives registered vigorous protest, the suspension was re-
duced to I month. When that was done, Epsel said that
he was being harassed. Theibauth responded that Epsel
was going to be monitored quite closely when he re-
turned to work and that if he continued to misconduct
himself, he would be terminated. Theibauth warned the
union representatives that he did not want them "to
come back saying because we monitored - we were
monitoring him, harassing him." Epsel again expressed
his feeling that he was being harassed. Theibauth testi-
fied, "And my response to this was if anyone was being
harassed it's the company and me - the charges that
have been made against us, the time consumed in re-
sponding to these things. I had no intention of harassing
Mr. Epsel or anyone. I don't want to be harassed
myself." Theibauth also testified that, more specifically,
he had said that "if anyone's being harassed, it's the com-
pany and myself, because of all these charges with the
Wage Board and NLRB." He further recalled saying to
one of the union representatives that the charges filed
against him, particularly the LMSA complaint relating to
his alleged interference in the union election, were un-
founded and that he would like to "be able to bring
charges for libel." Theibauth denied that there had been
discussion of harassment or of the charges filed at any
meeting prior to the final one on May 15.
Discussion and Conclusions
Section 8(a)(4) of the Act makes it an unfair labor
practice for an employer "to discharge or otherwise dis-
criminate against an employee because he has filed
charges or given testimony under this Act." The narrow
issue presented here is whether, by imposing a -month
suspension on Epsel on May 15, Respondent was moti-
vated by the fact that Epsel had filed a charge with the
Board on January 26. Counsel for the General Counsel
expressly stated at the hearing that he was not advancing
a theory that Respondent's disgruntlement at Epsel's ap-
proaches to other governmental agencies might be con-
sidered here as contributing to a violation of the statute;
his brief holds true to that statement of position.
Preliminarily, it should be said that I found Theibauth
to be a much more convincing witness than Epsel. Thei-
bauth struck me as a precise and quite decent individual,
and his testimony was, almost without exception, consis-
tent. While Epsel at first appeared to be a good, careful,
and calm witness, the more testimony I heard from him,
the less faith I had in his reliability. 6
'i "It was a little tricky, but legal."
01 For example. Epsel conceded on cross-examination that he knew
that a dragging mufner could be lied up with an ordinary coal hanger,
Continued
1106
SAI.M IRANSI')RIA1I()N CO() INC'
Similarly, although Epsel insisted that Theihauth de-
scribed at some length his irritation with the filing of
charges at the last two meetings held by the parties,
Union Steward Bryant, a very impressive witness who
testified for General Counsel, could not recall any dis-
cussion of harassment at other than the final meeting.
Generally speaking, I am inclined not only to give cre-
dence to Theibauth's testimony over Epsel's, insofar as
they are in conflict, but I am also inclined to believe
Theibauth's testimony about his own motivation, insofar
as any man may be thought to comprehend his own rea-
sons for acting.
I disagree with the General Counsel's contention that
the asserted grounds for the suspension were suspicious.
I would say, to the contrary, that there was ample
ground for Theibauth to believe that the behavior of
Epsel on April 2, 8, and 17 reflected poor workmanship
and an improper attitude. 7 Given Epsel's prior dis-
charge in November, there was a basis for Theibauth to
believe, on the facts presented to him, that Epsel may
have loafed on the job in returning to the garage on
April 2, or at least that the matter was worth investigat-
ing.'8 There certainly seems to have been good and suf-
ficient reason for Theibauth to think that Epsel did not
"fortuitously" drive off the highway and wind up in an
accident in a Burger King parking lot on April 8; consid-
ering Epsel's story and the time of day, anyone might
have believed that Epsel was in that lot for the purpose
normally associated with being there. 9 The April 17 in-
cident, involving the refusal to take passengers to Phila-
delphia and then calling in sick after agreeing to do so,
thus requiring that another bus be sent to pick up the
Philadelphia-bound passengers-none of which was dis-
puted at the hearing by Epsel-provided a further
ground for a belief by Theibauth that Epsel was engag-
ing in an unacceptable pattern of conduct. 20
and he went on to state that he had called a clerk at a motel in Borden-
town from the highway on the night of April 2 to ask if he could hase
such a hanger: the clerk would not give it to him. But when he was then
asked if he had attempted to secure a hanger from the Nassau In in
Princeton, before he set off for Wrightstown, he stated, "I don't recall
right now. I think I did." Thereafter he said, "1 don't remember "
7 Although Epsel testified in rebuttal, he did not challenge the testi-
mony of Theibauth about the April 17 incident at Kennedy Airport
Is The arbitrator had stated in his decision that he was "not complete-
ly satisfied with various elements" of Epsel's testimony, saying that his
testimony on one issue "was vague and at times inconsistent and was spe-
cifically denied by the dispatcher."
19 I recognize the inherent conflict between Stein's estimony and the
entry in Epsel's driver's record. Stein was a good witness, and it may
well be that the recommendation of a 2-week suspension was not written
by him Even if Stein were to be disbelieved (which I do not, because
Theibauth corroborated him), however, the worst the entry shows is that
Stein, knowing about only I of the 3 incidents, thought that Itpsel should
be suspended for 2 weeks
20 Counsel for General Counsel states, on brief, "[T]he record does not
show that this [third] incident was discussed at any of the meetings"
While it is true that no mention of it is made at the cited page, Theihauth
testified at the hearing, referring to the May 15 meeting, "We discussed
all three incidents" 'the brief then goes on, "Epsel testified that Thel-
hauth had discussed this matter a few months before " The erroneous ci-
tation should he Tr 128; at that page, Epsel testified that he "bhelievseld]"
that Theibauth had mentioned the matter a few months before, but could
not "remember" whether it was brought up again at the series of meet
ings in April-May Moreover, Epsel appeared Io acquiesce in the conten-
lion that the incident in facl ccurred on April 17 This sort f teghgent
There is no showing in this record that any other em-
ployee who had engaged in similar behavior wenit undis-
ciplined. The General Counsel, in fact, stated at the hear-
ing that he did not "want to go into other employees."
Without any demonstration of disparate treatment of
Epsel, it becomes quite difficult to conclude that the pen-
alty meted out to him was not the same penalty which
any other employee would have suffered in similar cir-
cutnstances. The fact that Theibauth, after finally deter-
mining the length of the suspension, stated, in responding
to Epsel's claim of harassment, that he himself felt har-
assed by the charges Epsel had filed, in no way proves
that the suspension was motivated by that pique. At this
late date in the history of the statute, it should be quite
clear that when an employer has what appears to be
ample basis for disciplining an employee, the fact that he
merely expresses his dissatisfaction with the protected
activities of the employee is not sufficient to establish a
violation of the Act. Something more, some showing of
causality, is required. Had there been evidence that
other, similar, conduct had gone unnoticed, or only
lightly punished, the General Counsel might have had an
argument. Without that extra something, he has nothing.
There is, furthermore, a rather difficult issue of burden
of proof to which these facts give rise, a problem which
might have to be resolved against the General Counsel
even if the facts showed some connection between the
filing of charges and the suspension. For some 45 years,
the Board and the courts have been grappling with the
question of the quantum of causation which the General
Counsel must demonstrate in order to prevail in discrimi-
nation cases. The Board has often referred to "partial"
motivation, as in Gould Corporation, 237 NLRB 881, 891
(1978): the employer's decision "was affected or motivat-
ed, in part, by the fact that Moran had filed charges with
or complained to EEOC and OSHA, and also because he
had filed a charge with the NLRB" See also Charles
Edkwin Laffey d/b/a Consolidated Services, 223 NLRB
845, 846 (1976). ("It is well established that a discharge
motivated in part by an employee's exercise of Section 7
rights is a violation of the Act even though another valid
cause may also be presented.") Sometimes the Board has
required a showing of "material" or "substantial" causa-
tion; in M.S.P. Industries, Inc., 222 NLRB 220, 240
(1976), the test applied was whether the employer was
moved by an unlawful purpose, "in whole or substantial
part."2 I
Some courts have accepted the Board's formulation.
For instance, in M.S.P. Industries, Inc. v. N.L.R.B., 568
F.2d 166 (10th Cir. 1977), enfg. in pertinent part 222
NLRB 220 (1976), the court of appeals found the partial
motivation test "proper and not unreasonable," constru-
ing it to require that the General Counsel demonstrate
that the improper motivation "contributed to the dis-
charge." Other courts, most expecially the Court of Ap-
peals for the First Circuit, have insisted that "the Board
treatment of the evidence is inappropriate on the part of counsel for the
(il: ernmenlt
21 In Ratrund C'orren Co. Inc da Raysor Co., 249 NLRB 5,S fn
3 (1980). Member Penello declined to adopt the "in part" test apparently
approved h the other pallel members
1107
DECISI()NS ()OF NATI()NAL IL.A()OR RIl.ATI()NS O()ARI)
has the burden of making a clear showing that the em-
ployer's dominant motive was not a proper business one,
but union animus." N.L.R.B. v. Fibers International Cor-
poration, 439 F.2d 1311, 1312 (Ist Cir. 1971).22 See also
Coletti's Furniture, Inc. v. N.L.R.B., 550 F.2d 1292, 1293
(Ist Cir. 1976). (Board erred in applying an "in substan-
tial part" test.)
In Gould Incorporated v. N.L.R.B., 612 F.2d 728, 734
(Cir. 1979), the Court of Appeals for the Third Circuit
took the Board to task for using the "affected or moti-
vated in part" test, as quoted above, in a case also in-
volving a purported violation of Section 8(a)(4). The
court held that such a conclusion "falls short of holding
that Moran was discharged 'because of these protected
activities."
In the present case, even if there were a finding that
the filing of charges and complaints by Epsel entered
into the decisional process which resulted in or contrib-
uted to his suspension, it would be most difficult to con-
clude that the charge he filed with the Board played any
"substantial" or "material" part in that decision. There
clearly were several "parts" of which the decision was
comprised. It would be hard in any view of the case to
conclude that Epsel's work performance did not in some
measure have an influence on the decision to discipline
him. Other arguable "parts" of the decision assuming ar-
guendo that the charges contributed to the decision, were
those filed with the State Department of Labor and the
LMSA. On an assumption that Theibauth was affected to
some degree by any of the charges these would clearly
predominate in his mind. His testimony shows that he
spent several days with the agents who were investigat-
ing these charges. From the General Counsel's point of
view, this compares most unfavorably with the two tele-
phone conversations Theibauth had with a Board agent
investigating the Board charge. Even under the Board's
test, it would not be easy to infer that the charge filed
with the Board could have played any meaningful "part"
in the decision to punish Epsel, and I think the First and
Third Crrcuits would reject out of hand, even on find-
ings of fact most helpful to the General Counsel, that
Epsel was punished "because of" his having filed a
charge with the Board.
On these considerations, I shall therefore recommend
that the 8(a)(4) and (I) allegations based on the suspen-
sion imposed upon Epsel be dismissed.
The complaint further alleges that, on or about May
15, Respondent "threatened to retaliate against an em-
ployee because an employee filed a charge with the
Board." On brief, General Counsel refers to Theibauth's
statement that Epsel was harassing him because of
charges filed with "the Wage Board and NLRB," to the
comment about filing a libel suit against Epsel, and to the
statement that Epsel would be closely monitored upon
return from his suspension.
22 Id. at 1312, fn 1, the court stated: "So that there may be no misun-
derstanding about what we mean by dominant motive, we state it again
Regardless of the act that enforcing the penalty may have given the em-
ployer satisfaction because of the employee's union activ ties the burden
is on the Board to establish that the penalty would not have been im-
posed, or would have been milder, if the employee's uion activity. or a
union animus, had not existed"
Unlike the situations in S. E. Nichols Marcy Corp., 229
NLRB 75 (1977), and Razco, Inc., 231 NLRB 660, 675
(1977), cited by the General Counsel, Theibauth did not
"threaten" to sue Epsel; in fact, he indicated his belief
that it was legally impermissible for him to bring a law
suit even though he "would like to." 2 3 I further do not
believe that the threat to closely monitor Epsel's perfor-
mance when he returned to duty could, in the circum-
stances of apparent misbehavior on three occasions
within 2 weeks, seriously be construed by Epsel as being
related to his having filed a charge with the Board in
January.
I do think, however, that it may fairly be said that Re-
spondent violated the Act when Theibauth told Epsel
that "if anyone's being harassed it's the company and
myself, because of all these charges with the Wage
Board and NLRB." I recognize that Theibauth was only
responding to an accusation of harassment made against
him by Epsel. Nonetheless, his retort, indicating displeas-
ure about Epsel's proclivity to file charges with, inter
alia, the Labor Board, might foreseeably have served to
restrain Epsel in filing such charges on future occasions.
The well-settled test is whether a comment had a reason-
able tendency to coerce or restrain an employee in the
pursuance of protected activities under all the circum-
stances. I would think that such a remark, in the context
of a meeting in which discipline was imposed, would
have such a tendency.2 4
I find, accordingly, that by telling Epsel that he and
the Company were being harassed because of charges
filed with the Labor Board and other government agen-
cies, Theibauth violated Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Salem Transportation Co., Inc., is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By telling an employee, on May 15, 1979, that he
was harassing Respondent by filing charges with govern-
mental agencies, including the National Labor Relations
Board, Respondent violated Section 8(a)(l) of the Act.
3. In no other manner described in the complaint did
Respondent violate the Act.
4. The unfair labor practice referred to in paragraph 2
above is an unfair labor practice affecting commerce
within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I shall recommend that the tradi-
tional remedies be applied to it. While I have found only
z' Because-as a matter of fact, I elaborated on it and slated that to
Mr. Dannehauer-or at least to Mr Able, that particularly on the one
with the charges about my interfering in the vote and trying to influence
people in voting, that unfortunately, that employees could make all kinds
of charges and continue with this time after time, and the management
seemed to have no recourse, and I do not recall management seemed to
have no recourse, and I d not recall the exact words, but I probably
said something to the effect that I would like to be able to bring charges
for libel on this, because of something these statements made.
24 There is no basis for believing that the January charge by Epsel was
filed in other than good faith.
1(8
SALEM TRANSPORTATION CO., INC.
a single violation of the Act, I conclude that a present
majority of the Board would approve of doing so, and I
am, of course, bound by the guidelines set by the Board.
United States Postal Service, 242 NLRB 228 (1979). I shall
therefore recommend that Respondent be required to
post the customary notices, and that a cease-and-desist
order be entered.
Upon the foregoing findings of fact, and conclusions of
law, I hereby issue the following recommended:
ORDER 25
The Respondent, Wrightstown, New Jersey, Salem
Transportation Co., Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively informing its employees that they are
harassing Respondent by filing charges in good faith
25 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
with the National Labor Relations Board, among other
governmental agencies.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is con-
sidered necessary to effectuate the policies of the Act:
(a) Post at its place of business in Wrightstown, New
Jersey, copies of the attached notice marked "Appen-
dix." 26 Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
26 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1109