Spartan Business Equipment, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1487 (N.L.R.B. 1985)

SPARTAN BUSINESS EQUIPMENT
Spartan Business Equipment , Inc. and Jeffrey Cor-
nell. Case 2-CA-19146
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 June 1983 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a memorandum in op-
position to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified.2
The Respondent is engaged in the business of
distributing, installing, and servicing business copy-
ing machines and related products. In August 1981
the Respondent hired Jeffrey Cornell as a techni-
cian responsible for repairing its machines, and in
December 1981 it hired Randy Casiano as a sales
trainee. Pursuant to their hiring ageement, Casiano
received no salary for the first 4 weeks of his em-
ployment, but he was reimbursed for the expenses
he incurred while using his own car to perform
services for the Respondent. Casiano began receiv-
ing a weekly salary in January 1982,3 but the Re-
spondent did not indicate whether any portion of
the payment constituted reimbursement for auto-
mobile expenses. Casiano continued to submit auto-
mobile expense receipts for several weeks after he
became a salaried employee, but he decided to
retain them after concluding that he was not being
reimbursed.
In March Casiano began discussing the reim-
bursement issue with Cornell, who informed him
that other employees were being reimbursed for
performing the same work. Casiano also raised the
issue with the Respondent's general manager Wolf-
sen on two occasions between late February and
early May. Wolfsen first told Cassano that he
would discuss the issue with the Respondent's
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings Our dissenting colleague would reverse the judge's credibil-
ity findings, and we address his arguments, infra
2 The judge inadvertently failed to require the Respondent to notify
employee Jeffrey Cornell in writing that it has removed from its files any
reference to his discharge, and that the discharge will not be used against
him in any way We have modified his recommended Order accordingly
9 Unless otherwise specified, all dates herein refer to 1982
1487
president Vlachos and he next stated that he would
consult with the Respondent's accountant
In June Casiano was given the responsibility of
driving Cornell to his daily servicing appointments.
Cornell began to press Casiano to approach the Re-
spondent about his automobile expenses, telling Ca-
siano that he was "crazy" to drive approximately
150 miles per day without being reimbursed. As a
result of these discussions, Cassano approached
Wolfsen on different occasions in June and again
asked whether he would be reimbursed. On these
occasions Wolfsen replied that Casiano was "really
thinking like Jeff now," and that Cornell was
"really rubbing off on" him. Wolfsen also asked
Casiano, "What happened, you sold your soul to
Jeff?"
In late July Cornell and Casiano went to Vla-
chos' office to receive their paychecks. Cornell
told Vlachos that Casiano should be reimbursed for
his automobile expenses because other employees
were receiving reimbursement for their expenses.
Vlachos then told Casiano to leave the office and
asked Wolfsen to join the discussion with Cornell.
Wolfsen asked Cornell to explain his position, and
Cornell reiterated that Casiano deserved to be re-
imbursed for his expenses in some manner. Vlachos
told Cornell, "You know, it's really none of your
business." He then gave Cornell his paycheck and
asked him to leave the office.
Wolfsen asked Casiano for his expense receipts
later that afternoon, and Casiano submitted the re-
ceipts that he had been accumulating since March.
Casiano inquired about the receipts on two subse-
quent occasions, but Wolfsen first replied that he
had not yet examined them and next indicated that
he would have to discuss the matter with the Re-
spondent's accountant. Wolfsen simply returned the
receipts to Casiano a few days prior to 13 August.
The judge credited the testimony of Cornell and
Casiano with respect to the critical events of 13
August. On that morning Casiano placed his ex-
pense receipts on the desk of Mrs. Vlachos, the
mother of the Respondent's president,4 and he then
drove Cornell to service calls at two different loca-
tions. The judge found that the calls were relative-
ly simple, but that Cornell and Cassano spent sever-
al hours performing the work. During the morning
Vlachos received other customer requests for as-
4 Mrs Vlachos did not testify and the record does not clearly establish
the nature of her duties Vlachos testified that his mother's job was to
answer the phone Cornell testified that service sheets were sometimes
kept on her desk, and he also testified that he and Mrs Vlachos frequent-
ly opened up the shop together in the morning We find no evidence that
Mrs Vlachos was a supervisor or an agent of the Respondent, and we
therefore do not conclude that the Respondent was aware that Casiano
submitted the receipts on 13 August Vlachos denied receiving a request
for reimbursement from Casiano on that date
274 NLRB No. 216
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistance, and he unsuccessfully attempted to reach
Cornell and Casiano to inform them of these re-
quests. When Cornell and Casiano returned to the
Respondent's facility at 1:30 p.m., Vlachos became
"very angry" and started "yelling" at Cornell. The
judge found that Vlachos was "agitated" about the
length of time that Cornell and Casiano spent per-
forming the service calls and "upset" about his in-
ability to reach them during the morning.5 Howev-
er, the judge also credited Cornell's testimony that
Vlachos approached him and said, "I don't have to
take this shit anymore. I'm fed up to here with you
trying to unionize Randy. Leave your tools and get
out." The judge also credited Casiano, who testi-
fied that Vlachos said to Cornell, "I'm tired of this
shit. And what are you trying to do, unionize
Randy?" Casiano testified that Vlachos also told
Cornell to "leave his toolbox and go." Cornell then
left the Respondent's facility.6
The judge rejected the Respondent's contention
that Cornell voluntarily quit his employment. He
concluded that Cornell and Casiano were engaged
in protected concerted activity when they dis-
cussed Casiano's asserted right to reimbursement,
and he found that Vlachos discharged Cornell after
accusing him of trying to "unionize" Casiano. The
judge found under the circumstances that Vlachos'
use of the term "unionize" was a reference to Cor-
nell's protected concerted activity, 7 and he con-
cluded that the discharge violated Section 8(a)(1).
For the reasons stated below, we agree with the
judge that Cornell was unlawfully discharged.
We conclude that the General Counsel has made
a prima facie showing that protected conduct was
a motivating factor in the Respondent's decision to
discharge Cornell.8 In reaching this conclusion we
first find that Cornell and Casiano were engaged in
concerted activity.9 We note that they discussed
the reimbursement issue with each other and ap-
proached Vlachos together to state their position
on one occasion. In addition, we think it clear that
their joint protest of the Respondent's alleged s o
s The judge apparently relied on Vlachos' testimony to make this find-
ing
s As the judge noted, Cornell left the facility carrying his toolbag,
which contained some of his own tools and some of the Respondent's
tools The record contains some testimony concerning the Respondent's
effort to retrieve its tools from Cornell The judge did not consider this
evidence, and we do not deem it relevant to our determination
7 As the judge noted, there is no evidence that the employees had en-
gaged in any union activity
9 Wright Line, 251 NLRB 1083 (1980) See NLRB v Transportation
Management Corp, 462 U S 393 (1983).
9 Meyers industries, 268 NLRB 493 (1984)
10 The judge found it unnecessary to consider the Respondent's con-
tention that Casiano's weekly check in fact included proper reimburse-
ment for his expenses We agree with the judge that the issue of whether
the employees' conduct was protected does not turn upon the validity of
Casiano' s claim
failure to reimburse Casiano was conduct protected
by the Act i i
The General Counsel has also established that
the Respondent was aware of the concerted nature
of their activity. Wolfsen referred to Cornell when
responding to Casiano's repeated requests for reim-
bursement in June, and Cornell and Casiano to-
gether confronted Vlachos in late July. These en-
counters also demonstrate that over a substantial
period of time the Respondent had harbored re-
sentment toward the employees' protected activity
and had considered Cornell to be the driving force
behind that activity. 12 On several occasions Wolf-
sen accused Casiano of "really thinking like" Cor-
nell and asked him whether he had "sold [his]
soul" to Cornell. In late July Vlachos summarily
dismissed Cornell from his office by stating that
Casiano's expenses were "none of [his] business."
In concluding that the General Counsel has met
its burden, we place particular reliance on the
credited testimony of Cornell and Cassano that
Vlachos discharged Cornell after angrily accusing
him of attempting to "unionize" Casiano.13 Our
dissenting colleague would reverse the judge's
credibility determination and find it inherently im-
probable that Vlachos would be angry about the
employees' protected concerted activity on 13
August. He emphasizes that there is no evidence
that Vlachos was aware that Cornell and Casiano
had engaged in any additional concerted activity
on that date.14 We do not agree that this circum-
stance renders the employees' testimony inherently
improbable. The Respondent had long resented
their point protest, and it particularly resented Cor-
nell in his role as the driving force behind that pro-
test. We note that Wolfsen asked Casiano whether
he had "sold [his] soul" to Cornell, and that only 2
weeks before 13 August Vlachos dismissed Cornell
from his office with the admonition that Casiano's
expenses were none of his business. In view of this
background, we find it plausible that Vlachos' hos-
tility to their protest resurfaced on 13 August, even
though he may not have been freshly provoked by
additional concerted activity on that same day.
11 See Park General Clinic, 218 NLRB 540, 546-547 (1975), enfd 546
F 2d 690 (6th Cir 1976)
12 The judge concluded that Vlachos and Wolfsen were " more than
slightly disturbed at the fact that Cornell was the force behind Casiano's
efforts to obtain equal treatment "
13 We also noted, as did the judge, that the affidavit of the Respond-
ent's accountant Steffans confirms that Vlachos discharged Cornell, and
contradicts the Respondent's contention that Cornell quit his employ-
ment According to the affidavit, Vlachos terminated Cornell by telling
him to "get the hell out of here " Although Steffans' testimony was not
consistent with his affidavit, he also acknowledged that his affidavit was
truthful and accurately reflected what he told the Board agent
14 Our dissenting colleague specifically notes the absence of evidence
that Vlachos was aware that Casiano had placed his expense receipts on
Mrs Vlachos' desk on the morning of 13 August
SPARTAN BUSINESS EQUIPMENT
Our dissenting colleague also asserts that the im-
mediate cause of Vlachos' anger on 13 August was
the employees' absence from the facility during the
morning, and not their protest over Casiano's ex-
penses. The judge did find that Vlachos was "agi-
tated" about their absence from the facility and
"upset" that he had been unable to reach them In
light of the Respondent's antipathy to its employ-
ees' protected activity, however, we find it com-
pletely plausible that Vlachos' anger, once trig-
gered, quickly refocused on Cornell's central role
in pursuing the reimbursement issue which had
been a source of controversy for months. We
therefore do not consider it inherently improbable
that Vlachos discharged Cornell after accusing him
of attempting to "unionize" Casiano.
In this connection our dissenting colleague fur-
ther argues that the record does not support the
judge's finding that Vlachos was referring to the
employees' protest when he accused Cornell of at-
tempting to "unionize" Casiano. We find the
judge's interpretation to be the logical one under
the circumstances, and we see no evidence which
would warrant a different interpretation. Cornell
and Casiano had jointly pursued the reimbursement
issue for several months, and it was only 2 weeks
before 13 August that they approached Vlachos to-
gether to press their case. The Respondent clearly
perceived that the employees were acting together
at the urging of Cornell, and we think it entirely
reasonable to infer that when Vlachos used the
term "unionize" he was simply making a shorthand
reference to Cornell's protected concerted activity.
Our dissenting colleague would also find that
Casiano is not credible because in this proceeding
he testified that Vlachos used the term "unionize,"
while his testimony at Cornell's unemployment
compensation hearing omitted any reference to the
term. In the latter proceeding Casiano testified that
Vlachos first screamed at Cornell, "I'm tired of this
shit," and then said, "Leave your tool box in front
and leave." We first note that in one important re-
spect this testimony is consistent with the testimo-
ny which both he and Cornell gave in the instant
proceeding, because it confirms that Vlachos in
fact discharged Cornell by instructing him to leave
his tools and depart. We also emphasize that Ca-
siano's prior testimony did not contradict his testi-
mony in this proceeding. At the unemployment
compensation hearing Casiano did not refer to the
word "unionize," but he also did not deny that
Vlachos used the term. The Board has noted that a
witness' credibility is not necessarily impaired
simply because his testimony contains a more fully
detailed description of events than his statements
1489
on prior occasions. 15 We see no reason to discredit
Casiano on this basis in view of the other circum-
stances of this case, where the, judge relied in part
on demeanor and where Cornell corroborated Ca-
siano's testimony that Vlachos used the term "un-
ionize."
Our dissenting colleague would also discredit
Casiano because he admitted that he was found to
have made a "willful misrepresentation" on his
own application for unemployment compensation
Casiano's employment ended in late August in con-
nection with the dispute over his automobile ex-
penses, and when he made the application he listed
"financial cutback" as the reason that he was no
longer employed. Casiano testified that he did so
because he believed that the Respondent was "fi-
nancially cutting back on my expenses."16 Casiano
futher testified that a state official subsequently in-
formed him that his interpretation of the term "fi-
nancial cutback" was incorrect. After a hearing,
Casiano's statement was deemed a willful misrepre-
sentation , but his application for benfits was none-
theless granted with only a 4-day penalty.
Casiano's "willful misrepresentation" thus ap-
pears to have been the product of his misunder-
standing of the term "financial cutback." Casiano
expressly denied that he understood the meaning of
the term, and he testified that he made the state-
ment on the application because he thought the
term described the reason that his employment
ended. Consequently, we do not agree with our
dissenting colleague that Casiano's testimony
should be discredited on this basis, particularly
since his version of the events is corroborated by
other evidence.17
In view of the above, we 'see no 'reason to dis-
turb the judge's credibility resolutions, and we con-
clude that the General Counsel has met his burden
of establishing that protected conduct was a moti-
vating factor in the. Respondent's decision to dis-
charge Cornell. We reach this conclusion in reli-
ance on all of the evidence analyzed above, but
particularly on our finding that Vlachos angrily ac-
cused Cornell of attempting to "unionize" Casiano
immediately prior to discharging him.
We also find that the Respondent has not estab-
lished that it would have discharged Cornell even
15 The Board has considered this issue in situations where a witness'
testimony at a hearing does not completely harmonize with the affidavit
he gave during the Board's investigation of the charge See Doral Build-
ing Services, 273 NLRB 454, In 3, 460 (1984), Electrical Workers IUE
Local 601 ( Westinghouse Electric), 180 NLRB 1062, 1066 (1970)
's Shortly before Casiano's employment ended, the Respondent gave
him a check for $41 81 to reimburse him for his automobile expenses Ca-
siano protested the amount of the check because he had submitted ex-
pense receipts totaling over $500 His employment ended soon thereafter
" Medical Investors Assn , 260 NLRB 941, 946 (1982)
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the absence of his protected conduct. We note
that the Respondent does not contend that it dis-
charged Cornell for legitimate reasons Its sole de-
fense is that Cornell voluntarily quit his employ-
ment on 13 August, and its key witnesses testified
in support of that position. Consequently, the Re-
spondent cannot prevail unless its witnesses are
credited with respect to the events of 13 August.
We have already affirmed the judge's decision to
credit the testimony of Cornell and Casiano, and
we also agree with the judge, for the reasons cited
by him, that the Respondent's witnesses should not
be credited.18 We therefore find that the Respond-
ent has not met its burden, and we conclude that it
violated Section 8(a)(1) by discharging Cornell for
engaging in protected concerted activity.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Spartan Business Equipment, Inc., Pearl
River, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Jeffrey Cornell immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth above."
2 Inseit the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to Jef-
frey Cornell's unlawful discharge and notify him in
writing that this has been done and that the dis-
charge will not be used against him in any way."
3 Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
My colleagues have adopted the judge's finding
that the Respondent violated Section 8(a)(1) by dis-
charging employee Jeffrey Cornell for engaging in
protected concerted activity with fellow employee
Randy Casiano. I cannot agree that the record sup-
ports the judge's credibility resolutions, which are
18 We note that our dissenting colleague does not find it necessary to
evaluate the credibility of the Respondent's witnesses
As noted above, the judge did accept Vlacho's assertion that he was
"agitated" about the employees' absence from the facility on 13 August
and ' upset" about his inability to contact them We do not disturb this
finding
determinative of the outcome in this case. Accord-
ingly, I dissent.
My colleagues have set forth the facts, which
may be summarized briefly as follows. The Re-
spondent is a wholesale distributor of business
copying machines and it performs service and in-
stallation work on those machines. Jeffrey Cornell
worked as a service technician and was frequently
driven to his service appointments by Randy Ca-
siano, who used his own car when performing
work for the Respondent. In March 1982 Cornell
and Casiano began to discuss the Respondent's al-
leged failure to reimburse Casiano for the automo-
bile expenses which he incurred while working.
Acting on Cornell's advice, Casiano discussed re-
imbursement with the Respondent's general manag-
er Wolfsen in June 1982. Wolfsen stated that Ca-
siano was "really thinking like Jeff now," and that
Cornell was "really rubbing off on" him. Wolfsen
also asked whether Casiano had "sold [his] soul" to
Cornell. The judge also found that in late July
Cornell told Wolfsen and the Respondent's presi-
dent Vlachos that Casiano should receive the same
treatment accorded other employees who incurred
automobile expenses . Vlachos stated that the matter
was none of Cornell 's business.
On 13 August Cornell and Casiano reported for
work, and Casiano placed receipts for his automo-
bile expenses on the desk of Vlachos' mother, who
worked in the Respondent's office. Casiano then
drove Cornell to make two service calls involving
simple ajustments . Although the adjustments appar-
ently could have been performed with relative
ease, Cornell and Casiano did not return to the Re-
spondent's facility until 1 :30 p.m. The judge cred-
ited the testimony of Cornell and Casiano with re-
spect to the critical events which followed on the
afternoon of 13 August. According to their ver-
sion, Vlachos became "very angry" and "started
yelling" at Cornell. Vlachos then said that he was
not going to tolerate Cornell's attempt to "union-
ize" Casiano, and he discharged Cornell by order-
ing him to leave the premises. The judge did not
credit the testimony of the Respondent's witnesses,
who asserted that Cornell voluntarily quit his em-
ployment after refusing to perform additional serv-
ice calls that afternoon. The judge found that Cor-
nell and Casiano were engaged in protected con-
certed activity when they raised the reimbursement
issue, and that Vlachos discharged Cornell because
he had engaged in such activity. He found that
Vlachos' use of the term "unionize" was a refer-
ence to Cornell's attempts to obtain reimbursement
for Casiano.
The Board has recognized that it may independ-
ently evaluate credibility where an administrative
SPARTAN BUSINESS EQUIPMENT
law judge's credibility resolutions are not based
primarily on demeanor.' Even if demeanor has
been cited, its importance is greatly diminished
where the clear preponderance of all of the rele-
vant evidence convinces the Board that the credi-
bility resolutions are incorrect.2 In my view, the
judge's credibility resolutions with respect to the
events of 13 August are not warranted by the
record, and I would find that the General Counsel
has not met its burden of establishing that Cornell
was discharged and that protected concerted activ-
ity was a motivating factor in the Respondent's de-
cision to discharge him.
The judge chose to ignore record evidence
which tends to undermine the credibility of Ca-
siano's testimony concerning the 13 August inci-
dent. At the hearing, Casiano testified that he
heard Vlachos order Cornell to leave after asking
him whether he was trying to "unionize" Casiano.
However, at Cornell's unemployment compensa-
tion hearing before the New York State Depart-
ment of Labor, a transcript of which is in the
record, Casiano testified that Vlachos told Cornell
to leave after simply stating that he was "tired of
this shit." Casiano did not elaborate on the mean-
ing of this statement. Although he was asked sever-
al times about the details of the argument , Casiano
did not testify that Vlachos used the word "union-
ize." It was only at the unfair labor practice hear-
ing in this proceeding that Casiano's testimony cor-
roborated Cornell's.
Casiano's testimony is also damaged by his ad-
mission at the unfair labor practice hearing that he
was found to have made a willful misrepresentation
while making his own application for unemploy-
ment compensation . Casiano's employment with
the Respondent ended in late August 1982 in con-
nection with the dispute over his expenses. Howev-
er, when he filled out his application for unemploy-
ment compensation, he gave "financial cutback" as
the reason that his employment ended. Casiano ad-
mitted that he was penalized as a result of this will-
ful misrepresentation.
In addition to the above weaknesses in Casiano's
testimony, I would find that the events leading to
Cornell's argument with Vlachos on 13 August
suggest the inherent improbability of the testimony
credited by the judge.3 Vlachos is alleged to have
' J N Ceazan Co, 246 NLRB 637, 638 fn 6 (1979), and cases cited
therein
2 W T Grant Co, 214 NLRB 698 (1974)
3 Although the judge makes a general reference to demeanor, it is
clear that his credibility resolutions are based not on demeanor but on the
supposed logical inferences which he drew from his analysis of the fact
Thus, he finds that the "circumstances" of 13 August suggest that Cor-
nell did riot quit his job , contrary to the assertion of the Respondent's
witnesses Because the judge made his credibility determinations based on
his analysis of the facts, the Board is just as capable as the judge of evalu-
1491
angrily accused Cornell of trying to "unionize" Ca-
siano, and the judge found that Vlachos was refer-
ring to Cornell's concerted activity when he used
that term. In my view, the record does not support
a finding that Vlachos was angry about Cornell's
concerted activity on 13 August, because there is
no evidence that Vlachos was referring to Cor-
nell's concerted activity when he used that term In
my view, the record does not support a finding
that Vlachos was angry about Cornell's concerted
activity on 13 August, because there is no evidence
that Vlachos was aware that either Cornell or Ca-
siano had engaged in protected conduct on that
date. The only incident in which Vlachos was con-
fronted with any possible concerted activity oc-
curred weeks earlier, when he stated that Casiano's
automobile expenses were none of Cornell's busi-
ness. Although Casiano testified that he placed his
expense receipts on Mrs. Vlachos' desk on the
morning of 13 August, there is no evidence that
Vlachos was aware that Casiano had done so.
Fair reading of the record establishes that the
immediate cause of Vlachos' anger on 13 August
was the employees' lengthy absence from the shop
to make two relatively simple service calls. Indeed,
the judge finds that Vlachos was "agitated" about
their absence. Because their absence was the source
of Vlachos' anger , it is inherently improbable that
Vlachos would discharge Cornell for trying to
"unionize" Casiano, particularly when there is no
evidence that Vlachos was aware of the occur-
rence of any additional concerted activity on 13
August.
Moreover, even assuming arguendo that Vlachos
did accuse Cornell of trying to "unionize" Casiano,
it is not clear from the record that this comment
was a reference to Cornell's efforts to obtain reim-
bursement for Casiano. There is no testimony that
Vlachos made any specific reference to Casiano's
expenses during the argument. I find unwarranted
the judge's assumption that Vlachos was referring
to Cornell's protected activity when he made the
accusation , assuming it was in fact made.
Finally, I do not find it necessary to evaluate the
credibility of the Respondent's witnesses, who testi-
fied that Cornell quit his job during the argument.
I would discredit the testimony of Cornell and Ca-
siano, who testified that Vlachos discharged Cor-
nell and accused him of trying to "unionize" Ca-
siano immediately prior to discharging him. Conse-
quently, I would find that the General Counsel has
not met its burden of establishing that the Respond-
ating the inherent probabilities of the testimony Herbert F Darling, Inc,
267 NLRB 476 (1983), revised and remanded 732 F 2d 1117 (2d Cir
1984)
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent discharged Cornell and that protected concert-
ed activity was a motivating factor in its decision
to discharge him. Accordingly, I would dismiss the
complaint in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge any employee because
he or she engaged in activities protected by the
Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Jeffrey Cornell immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL remove from our files any reference to
Jeffrey Cornell's unlawful discharge, and WE WILL
notify Jeffrey Cornell in writing that this has been
done and^that his discharge will not be used against
him in any way.
SPARTAN BUSINESS , EQUIPMENT, INC.
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge. Upon
a charge filed on October 4, 1982, by an individual, Jef-
frey Cornell, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 2,
issued a complaint against Spartan Business Equipment,
Inc (Respondent) alleging that it has violated Section
8(a)(I) and (3) of the National Labor Relations Act (the
Act). Respondent's answer, as amended, placed in issue
the alleged discriminatory discharge of Jeffrey Cornell.
The hearing was held before me on March 16 and 17,
1983, in New York City.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
The pleadings establish that Respondent 's place of
business is in Pearl River, New York, where it is en-
gaged as a wholesale distributor of business copying ma-
chines and related products It also performs service and
installation work on these products The pleadings fur-
ther disclose that Respondent 's operations met the
Board 's jurisdictional standard for nonretail operations
II. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent dis-
charged Cornell because he urged a coworker to insist
on getting full reimbursement for his automobile expenses
and because Respondent erroneously believed that Cor-
nell and his coworker were engaged in union activities.
Respondent's employees are not organized. Respondent
asserts that Cornell quit his employment and that he was
not discharged. The merits of this case depend on credi-
bility resolutions.
Surprisingly, the first credibility issue has to do with
the date Cornell began his employment with Respondent.
Cornell testified that he began his employment with Re-
spondent in August 1981 Respondent's president, John
Vlachos, testified that Cornell worked on an occasional
"free-lance" basis for Respondent for a short period in
late 1981 and that Cornell did not become a full-time em-
ployee until sometime in early 1982 Vlachos' testimony
was clearly not offered in passing merely as incidental
background information as the issue of his credibility
thereon was extensively examined and as the size of Re-
spondent's employee complement is small indeed.
Two witnesses called by Respondent corroborated
Cornell's testimony. Thus, a certified public accountant,
who maintained Respondent's books, testified that Cor-
nell had worked on a full-time basis for Respondent for a
year before his last date of employment with Respond-
ent, August 13, 1982 The testimony of Vlachos' own
secretary also corroborated Cornell's as to the date he
began working on a regular basis with Respondent. I
credit Cornell's testimony thereon.
The individual with whom Cornell is alleged to have
engaged in protected activities is Randy Casiano. Ca-
siano was an acquaintance of Respondent's general man-
ager, Samuel Wolfsen, who hired him as a sales trainee
in December 1981, under the following arrangement, ac-
cording to Casiano's uncontraverted account Casiano
would not receive any salary for his first 2 weeks, but
would be reimbursed for his automobile expenses That
arrangement was followed for the first 4 weeks of Ca-
siano's employment. Casiano testified that, in addition to
his being reimbursed for his actual automobile expenses,
he was also given "a little extra for lunches." Thus, he
once submitted expense receipts totalling $80; he was re-
imbursed for that amount and also given $20 extra-a
total of $100. Incidentally, it appears that Casiano's auto-
mobile expenses were quite high because he lived a con-
siderable distance from the location of Respondent's fa-
cility and also because he was performing messenger
services for Respondent on a fairly regular basis.
SPARTAN BUSINESS EQUIPMENT 1493
Beginning in January 1981, Cassano began to receive
from Respondent a weekly check in the amount of $125
He was given no stub or other record to indicate to him
that social security taxes or other taxes were being de-
ducted from a gross wage amount he may be earning.
When he began getting those weekly checks, he no
longer was being reimbursed, so far as he could observe,
for his automobile expenses ' In about March 1982, the
amount of Casiano's weekly check was increased to $150
and in June 1982, to $185 Throughout the early part of
1982, he continued to turn in his automobile expense re-
ceipts. These were not returned to him
Cassano testified that in about March 1982 he began to
talk with Cornell about his not getting reimbursed for his
automobile expenses, as the others in Respondent's
employ were getting Cassano testified that he then asked
Respondent's general manager, Wolfsen, about getting
paid for his expenses and that he was told once by Wolf-
sen that he would take it up with Vlachos and later that
he would take it up with "the accountant."
Cornell and Cassano testified that they continued to
discuss what they perceived as, in effect, the disparate
treatment Casiano was being accorded. When Cornell's
company car was destroyed in June 1982, Cassano was
assigned to act as Cornell's chauffeur and, incidental
thereto, to learn how to service machines. Their testimo-
ny reveals that Cornell pressed Cassano to seek equal
treatment as to getting reimbursed for his automobile ex-
penses Cornell testified that he told Casiano that it was
"crazy" that he was driving 150 or more miles a day
without getting reimbursed and that he, Casiano, should
"approach" Respondent for payment
Cassano testified that, in June 1982, he asked Respond-
ent's general manager, Wolfsen, about the expense
moneys due him. Cassano further testified that Wolfsen
replied that he, Casiano, is "beginning to think like Jeff
(Cornell) now," that "Jeff is really rubbing off on you"
and that Cassano has "sold (his) soul to Jeff " Wolfsen
did not testify I credit Casiano's uncontroverted account
of the discussions he and Wolfsen had
Cornell testified that on one occasion in late April
1982, Casiano asked Vlachos, in Cornell's presence, for
reimbursement of his automobile expenses and that Vla-
chos replied only by asking, "Who am I talking to, Jeff
or Randy?" Cassano did not allude to that incident in the
course of his testimony. Vlachos testified that the first
time Casiano asked him about his automobile expenses
was after Cornell left Respondent's employ. I do not
credit Cornell's account as it was not corroborated by
Cassano.
Cassano did testify that, about two weeks before Cor-
nell was discharged when he and Cornell were in Vla-
chos' office getting their paychecks, Cornell told Vla-
chos that Cassano should get the same treatment on his
auto expenses as the servicemen received. Cassano testi-
fied that Vlachos told him to leave the office, that he did
so, and that Wolfsen was called to the office. According
to Casiano, Wolfsen asked him later that day for his ex-
pense receipts and he gave those to him. He had been
accumulating receipts since March.
Cornell testified in detail respecting that incident. His
account in substance corroborates Casiano's testimony.
In addition, Cornell related the discussion that took place
among himself, Wolfsen, and Vlachos when Cassano was
no longer in the office. Cornell testified that Wolfsen
asked him what he wanted and that he responded by
saying that they should reimburse Cassano at least in part
for his auto expenses. According to Cornell, Vlachos
told him it was none of his business and dismissed him
by giving him his paycheck. As noted above, Wolfsen
did not testify in this case. I credit the accounts of Ca-
ssano and Cornell as to that incident.
Casiano testified that he asked Wolfsen about the re-
ceipts he had given him and that Wolfsen first replied
that he had not yet looked them over and later respond-
ed that he would have to discuss them with Respond-
ent's accountant. In any event, Wolfsen returned the re-
ceipts to Cassano, according to Casiano's uncontroverted
account.
Casiano's testimony that, on the morning of August 13,
1982, he placed those receipts on Mrs. Vlachos', desk is
also uncontroverted Cassano then drove Cornell to make
two service calls. Although those calls appeared to in-
volve the making of simple adjustments which could be
done rather quickly, Cassano and Cornell took several
hours to do them. In the meantime , some customers had
telephoned Vlachos in order to have him send a service-
man out to take care of their copying machines. Vlachos
testified that he tried to locate Cornell and Cassano by
calling the locations where they were sent to work but
he was unsuccessful in reaching them.
Cornell and Casiano returned to Respondent's facility
about 1 30 p.m. that day. Cassano went directly to the
men's room. Cornell and Vlachos had an angry ex-
change As a result, Cornell was either discharged for his
part in influencing Casiano to seek equal treatment with
the servicemen respecting reimbursement of automobile
expenses-if General Counsel's witnesses are credited as
to what then transpired-or Cornell quit his employ with
Respondent-if Respondent's witnesses are credited. The
testimony of the respective witnesses as to the ensuing
events is now set out.
Cornell testified that when he and Cassano returned to
Respondent's facility about 1.30 p m. that day, Vlachos
was "very angry" and "started yelling," saying in less
than formal language that he does not have to put up
with Cornell's "trying to unionize Randy." Cornell testi-
fied that Vlachos told him to leave his tools and get
out 2 Cornell testified he left hurriedly with the tool bag
' Respondent offered testimony to indicate that it always reimbursed
Cassano for those expenses in that the checks it issued him each week
included payments therefor I do not need to decide that they did include
expense payments as I am only concerned with whether or not Casiano
later discussed with Cornell his claim for reimbursement It is immaterial
for my purposes whether or not Casiano's claim was valid Cf Maryland
Shipbuilding and Dry Dock Co, 256 NLRB 410 (1981)
2 A great deal of testimony had to do with whether or not Cornell and
Cassano entered via the front door or the back door, how many of the
tools belonged to Cornell, and where the various participants were stand-
ing or sitting at any given time No useful purpose is served by resolving
these matters , as they are about equally in dispute with the matter as to
what Cornell was told
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as it contained several valuable tools he personally
owned. Casiano testified that Vlachos' shouting was so
loud that he could hear it from the men's room; Ca-
siano's account corroborated Cornell's.
Vlachos testified that when Cornell and Casiano re-
turned to Respondent's facility that afternoon, he (Vla-
chos) asked Cornell to go out on other assignments, that
Cornell refused and quit his employment. Vlachos re-
sponded in the negative when asked if he had said to
Cornell that he was fed up with Cornell's trying to un-
ionize Casiano
Don Steffans, a CPA, was called by the General
Counsel and testified pursuant to Rule 611(c) of the Fed-
eral Rules of Evidence He testified that something was
said that caused Cornell to leave Respondent's facility
that afternoon but that he, Steffans, missed hearing what
was said. Steffans then acknowledged that his prehearing
affidavit contained his earlier account of what had been
said. Thus, his affidavit related that Vlachos had "told
Cornell to 'get the hell out of here' thereby terminating
his employment "
Donna Spadafino, Vlachos' secretary, testified that
Vlachos began questioning Cornell as to why he took so
long on his morning calls, that Cornell was trying to
"defend" himself, that the discussion got "loud," that
Vlachos made reference to Cornell's "riding around with
Randy . . . and not getting anything done," that Cornell
responded by saying he was not doing any service calls
until Vlachos explained that statement, that Cornell sat at
a desk for 2 minutes when Vlachos told him that if he
was not going to do his service calls, he should give his
tools to Vlachos, or "something to that effect." She con-
cluded her account by stating that Cornell then ran out
the door with his tool bag.
The General Counsel contends that Vlachos had
become incensed on August 13 at Casiano's having left
his auto expense receipts with Mrs. Vlachos and that
Vlachos' anger culminated in Cornell's discharge as soon
as Vlachos saw him that day. Respondent asserts that
Vlachos was simply questioning Cornell as to his where-
abouts that morning and that Cornell quit his job when
Vlachos pressed him for an explanation.
Respondent further asserts that the Board should defer
to the findings by the Department of Labor of the State
of New York whereby Vlachos' account was credited
over Cornell's As to that contention, the Board has held
that a decision of a state board, which was rendered
under a statute with purposes different from those of the
National Labor Relations Act and where there is no
showing that the unfair labor practice issue was consid-
ered by the state agency in reaching its decision, is not
determinative of the unfair labor practice issue 3 Accord-
ingly, I find no merit in Respondent's procedural defense
and proceed now to an evaluation of the critical issue of
credibility in this case, relating to the unfair labor prac-
tices alleged.
At the outset, I note that Casiano had several times
before August 13 submitted his auto expense claims with-
out having thereby brought Vlachos' temper to the boil-
ing point. On the other hand, the uncontroverted evi-
S Justak Bros. & Co, 253 NLRB 1054 (1981)
dence discloses that Vlachos and Wolfsen were more
than slightly disturbed at the fact that Cornell was the
force behind Casiano's efforts to obtain equal treatment.
The evidence clearly indicates that Vlachos was upset
with the fact that he was not able to contact Cornell on
the morning of August 13 and my observation of Vla-
chos' personality is that it could not be characterized as
easygoing. I have no doubt that he was agitated over the
fact that Cornell and Casiano were out the whole morn-
ing of August 13 handling two minor service problems
and also that Vlachos viewed Cornell as a bad influence
on Casiano
The circumstances of that afternoon suggest that Cor-
nell did not quit his employ, as Respondent contends. All
accounts have Cornell leaving Respondent's premises
hurriedly in his effort to retain possession of his tool bag
It seems unlikely to me that an employee would quit his
employ and then dash out of the building with a tool
bag. More likely, Vlachos had told him to get out and
not to take the tools with him, as the testimony of Cor-
nell has it. More significantly, the affidavit given by the
CPA who kept Respondent's books confirmed a material
aspect of Cornell's account. Spadafino's account tends to
suggest that Cornell had elected to stage a one man sit
down strike, that Vlachos reacted to that effort by
giving him the option of working or of quitting without
his tools and that Cornell opted for the latter. Her testi-
mony thereon does not comport with the accounts of
Vlachos or of Steffans, Respondent's CPA. I hesitate to
accept her account as it seems improbable to me that
Vlachos would let Cornell sit down at a desk for 2 min-
utes in his presence while stating he, Cornell, would
refuse to work. Vlachos' temperament seems such to me
that Cornell would have had at most 2 seconds of sitting
time before Vlachos would have ejected him from the
premises.
Overall, I find that the General Counsel has met the
burden of persuading me that Vlachos angrily accused
Cornell of trying to unionize Casiano, told him to get
out and to leave his tools behind, thereby discharging
him.
The credited testimony discloses that Cornell and Ca-
siano discussed Respondent's disparate treatment of Ca-
siano insofar as reimbursement for his automobile ex-
penses is concerned and that Cornell was dischargd on
August 13, 1982, because Respondent perceived that
Cornell, in those discussions , sought to "unionize" Ca-
siano. In discussing Casiano's asserted right to be treated
equally with his coworkers on his auto expense claims,
Cornell and Casiano were clearly engaged in an activity
protected by the Act.4 Respondent's discharge of Cor-
nell therefor clearly interfered with, restrained, and co-
erced employees from engaging in such activity.-' There
is no probative evidence however that Cornell's dis-
charge was aimed at discouraging Respondent's employ-
ees from joining or supporting any labor organization. In
context, Vlachos' comment that Cornell was seeking to
4 See Park General Clinic, 218 NLRB 540, 546-547 ( 1975), enfd 546
F 2d 690 (6th Cir 1976)
5 Matthews Ready Mix, Inc, 259 NLRB 739, 744-745 (1981)
SPARTAN BUSINESS EQUIPMENT
"unionize" Casiano could refer only to his opposition to
their having acted in concert
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2 Respondent's discharge of its employee Jeffrey Cor-
nell violated Section 8(a)(1) of the Act.
3 The allegation of the complaint that Respondent
violated Section 8(a)(3) of the Act lacks merit
4. The violation referred to in paragraph 2 above is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent is obligated to make Cornell whole for
all moneys he lost as a result of his unlawful discharge,
in an amount to be computed in accordance with the
Board's decision in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977).6
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent , Spartan Business Equipment, Inc.,
Pearl River , New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging any of its employees because they
have engaged in activities protected by the Act.
6 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962)
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1495
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action
(a) Offer Jeffrey Cornell immediate and full reinstate-
ment to his former job or, if it no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges, expunge from his
personel file any reference to his discharge, and make
him whole for all losses he suffered as a result of his un-
lawful discharge, in the manner prescribed above
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Pearl River, New York, copies
of the attached notice marked "Appendix."8 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegation of
the complaint that Respondent violated Section 8(a)(3) of
the Act be dismissed.
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "