Zebra Service Corp.

National Labor Relations Board - Board Decisions

Feb 13, 1968

169 N.L.R.B. 762 (N.L.R.B. 1968)

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zebra Service Corp . and John M . Canonico. Case
29-CA-848
February 13, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 18, 1967, Trial Examiner John P.
von Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge
duly filed, the National Labor Relations Board, by the
Regional Director for Region 29 (Brooklyn, New York),
issued a complaint on April 14, 1967, against Zebra Ser-
vice Corp., herein called the Respondent or the Com-
pany, alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act.
Thereafter the Respondent filed an answer denying the
allegations of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Trial Ex-
aminer John P. von Rohr on June 1, and 2, 1967, in
Brooklyn, New York. All parties were represented by
counsel and were afforded opportunity to adduce
evidence, to examine and cross-examine witnesses, and
to file briefs. Briefs have been received from the General
Counsel and the Respondent and they have been care-
fully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACTS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its
principal office and place of business located in Brooklyn,
New York, where it is engaged in operating a fleet of taxi-
cabs and performing related services. During the year
preceding the hearing herein, the Respondent, in the
course and conduct of its operations, derived gross
revenues therefrom in excess of $500,000. During the
same period, it purchased gasoline and other goods and
materials valued in excess of $50,000, which were trans-
ported and delivered to it and received from other enter-
prises located in the State of New York, each of which
other enterprises received the said goods and materials in
interstate commerce directly from States of the United
States other than the State in which it is located.
The Respondent conceded, and I find, that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
New York City Taxi Drivers Union , D.A.L.U. No.
36, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue in this case is whether the Respondent dis-
criminated against John M . Canonico , its employee, in
violation of Section 8(a)(1) and (3) of the Act by: (1)
transferring him to an allegedly less desirable work shift
on October 13, 1966 , and by, (2) discharging him on Oc-
tober 28, 1966.
B. The Facts
The Respondent is a taxicab company serving the New
York and Brooklyn areas. Prior to October 1, 1965, John
M. Canonico , the alleged discriminatee herein , was em-
ployed as a foreman mechanic with the Fleet Operating
Corporation , also engaged in the taxicab business.
Canonico came with the Respondent when Fleet merged
with Zebra on the latter date . It is undisputed that when
Canonico was hired by the Respondent it was understood
that his principal function was to repair transmissions.
Although not hired as a foreman or in any supervisory
capacity, the Respondent continued to pay Canonico the
same rate of pay which he received while working as
foreman for Fleet.
In the year 1966 , the New York City Taxi Drivers
Union , D.A.L.U. No. 36, AFL-CIO, became the collec-
tive-bargaining representative for the taxi drivers and "in-
side personnel" employed by a number of taxicab compa-
nies, including the Respondent . A contract , to which the
Respondent became a party, became effective on May
17, 1966 . It is significant to note that at all times material
herein this contract between the Respondent and the
Union contained a no-strike clause.
169 NLRB No. 112
ZEBRA SERVICE CORP. 763
Canonico became a member of the Union in May 1966,
and he was appointed acting steward in June. I However,
in view of the General Counsel's apparent position that
the Respondent was motivated in allegedly discriminating
against Canonico because he was active in the processing
of grievances, it should be noted here that employee John
Hoffman was the chief shop steward for Respondent's
employees during the period relevant hereto. I credit the
testimony of William Carlton, Respondent's president,
that Hoffman in fact processed more grievances during
this period than did Canonico.
On June 11, 1966, President Carlton advised the
mechanics that their hours would be reduced in ac-
cordance with the new union contract. He also an-
nounced some reduction in pay, although the record is not
clear as to the extent of or basis for such reduction. In any
event, when the mechanics displayed dissatisfaction over
the announcement, Shop Steward Hoffman called the
Union and the Union responded by sending the Local's
secretary, Al Conforti, to the garage to speak to the men.
Conforti suggested that the mechanics file grievances
with the Union over the matter, but urged them to return
to work with the comment that the Union should be given
a chance to work and that they should not go out on
strike. According to Canonico, the men returned to work
but at the same time requested him (Canonico) to make
out grievances for them. Canonico thereupon drafted
written grievances, in duplicate, for seven employees, in-
cluding himself. He submitted the originals to the Union
and gave copies to President Carlton.2
Canonico testified that in July or August he filed
grievances on behalf of some taxi drivers regarding break-
down pay and that during this period he also told the
drivers to talk to Carlton about their problems in this re-
gard. Canonico said that on one occasion Carlton asked
him why he was sending the drivers into his office and
that he replied that "the men were entitled to breakdown
time pay for being broke down over an hour." According
to Canonico, Carlton thereupon stated, "You and Harry
Hoffman are always sending these men in and giving me
more trouble than anything else."
In latter August 1966, the mechanics again became
upset over some wage dispute with the Company.3
Canonico testified that one morning he came to the shop
and found that the night shift had put up signs on the walls
which stated that the mechanics intended to strike over
the matter of the pay dispute. Canonico testified that dur-
ing the morning President Carlton asked him if there
would be a wildcat strike and if the Union would support
any such strike. Canonico said that he told Carlton the
Union would not back the strike, that it would be a wild-
cat strike. Later in the day, according to Canonico, Carl-
ton came up and accused him of putting up additional
signs around the shop, adding that he would be
discharged if he did not refrain from doing so. Canonico
1 Canonico was elected to the position of shop committeeman in August
or early September 1966-
2 There is no explanation in the record as to why the employees
requested Canomco, rather than Steward Hoffman, to take the grievances
at this time,
7 The record is not clear as to the details of this dispute, nor is this rele-
vant to a determination of this case. Although Canonico testified that an
arbitrator's decision concerning wages issued at this time, the only arbitra-
tion award in evidence was not issued until November 1966.
4 The testimony concerning this incident was adduced by the General
Counsel as evidence that Carlton was aware of Canomco's activity in the
shop Since Carlton conceded that he individually asked Canonico about
testified that he responded by telling Carlton, "You better
have proof before you fire me because I wasn't putting
them up." Concerning this incident, Carlton merely
testified that he asked Canonico if he had put up the signs
and that Canonico responded that he had not. He testified
further, however, that at this point he yelled out to the en-
tire shop, "If I catch anybody putting up signs inside my
building, I'm going to fire them."4
Canonico further testified that a day or two later Carl-
ton asked him if the men still intended to strike. Canonico
replied that he thought they did. According to Canonico,
Carlton then stated that other garages "had cut men's pay
and gotten away with it." When Canonico asked for ex-
amples, Carlton gave him the name and address of a
garage in Flatbush. Canonico made a trip to the garage in
question, following which he reported to Carlton that
"the other garage had straightened out their problem and
that the men were receiving their rightful pay."
It is undisputed that on August 29, 1966, the Respond-
ent's mechanics engaged in a strike in violation of the
contract. Although the day on which the strike began
coincided with the beginning of Canonico's vacation,'
Canonico came to the garage to get his check. Canonico
testified that he and the others ascertained "that we were
still getting short one day's pay" and that the men there-
upon decided to strike. Canonico thereupon obtained
material and himself constructed picket signs away from
the shop. Although the record is clear that Canonico gave
the employees the picket signs and directed the picketing,
he did not personally engage in the picketing.5 The strike
ended a day and a half later upon the intervention of
union officials who persuaded the men to return to work
after having reached agreement with Carlton that the
mechanics would receive their full salary until the issue
was determined by arbitration.
A hearing before an arbitrator on the above wage
dispute was held about the first part of October 1966.
Canonico and two other respondent "inside" employees,
Robert Richardson and Noel Muniz, testified at this hear-
ing on behalf of the Union.
Canonico's work hours were changed on October 5,
1966, this occurring approximately 2 days after the ar-
bitration hearing. It is undisputed that on this date Robert
Goode, a mechanic whose work hours were from 11 a.m.
to 9 p.m., went on vacation. Canonico, who prior to this
time worked a shift, from 7 a.m. to 5 p.m., was transferred
to take Goode's place on the later shifts This change in
hours was later made permanent and he remained on the
later shift until the time of his discharge. In testifying as
to the reason for this change in Canonico's hours, Pres-
ident Carlton explained that the busiest hours at the
garage were during the day; and that during this period
Canonico frequently would be interrupted from his prin-
cipal job of repairing transmissions by the necessity of his
having to assist in the repair of breakdowns of taxicabs
putting up the signs, I need not decide which of the above versions is the
more accurate. There is no allegation that Carlton unlawfully threatened
Canonico at this time. Moreover, assuming Canonico's version to be true,
this would not affect my ultimate decision herein.
5 Canonico testified that he stood outside the shop, but that he did not
carry a picket sign because he was instructed to do so by Union Repre-
sentative Hy Schapiro. Canonico testified that insofar as he knew the
Respondent's officials were not aware that he had furnished the picket
signs.
8 Canomco's hours were changed so that he worked from 12 p.m. to 10
p in The Respondent operates its garage on a 24-hour basis with stag-
gered shifts.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which continually came into the garage for minor repairs
during the daytime hours. He therefore took the occasion
of Goode's vacation to change Canonico's hours so as to
thus enable Canonico to perform more work and to con-
centrate more freely on his principal and more skilled job
of rebuilding transmissions. My findings with respect to
the allegation that this change in Canonico's hours was
violative of Section 8(a)(1) and (3) of the Act are noted in
the succeeding section hereof.7
Canonico was discharged on October 28, 1966. Since
it is undisputed that the facts surrounding his discharge
involve a refusal by him to assist in the performance of
body repair work, I shall first consider the evidence with
respect to Canonico's involvement in body repair work
prior to the time of his discharge. First, it is undisputed
that Canonico was qualified to perform body repair work.
Indeed, he conceded that he performed such work while
employed with the Fleet Operating Corporation before it
merged with the Respondent. I credit the testimony of
President Carlton that when he hired Canonico at the
time of the merger he told Canonico that although his
principal job would be that of rebuilding automatic trans-
missions , he would also be required to perform bodywork
and other types of repair work if needed.
Canonico testified that shortly after he was hired he
heard a rumor from another employee that he would be
asked by the foreman to assist employee Lopez (Fernan-
do Fausto),8 Respondent's bodyman, in body repair
work. Canonico thereupon asked Shop Steward Hoffman
if he would be required to do any such work. Hoffman, in
turn, called the Union and the Union sent two of its
representatives, Hy Schapiro and Mike Scibelli, to the
shop to investigate the matter. According to Canonico,
the union officials discussed the matter with management,
following which Scibelli advised him "that I was to do
light body' work, more or less as a helper, and if I didn't
want to do it, to put in a grievance on it and the Union
would find out if I had to do it." Canonico testified that he
filed a grievance with the Union over the matter on the
following day. Peculiarly, although Canonico testified on
cross-examination that he did not receive an answer from
the Union on the grievance, he at this point added, "I
asked [union representative] Schapiro a couple of times
[concerning the grievance] but there was never again any
time where I was pressed into doing body work, so
nothing was said about it."9 This testimony is not in ac-
cord with the facts nor is it consistent with further of his
own testimony. Thus, in his direct testimony, Canonico
testified that following his employment with the Respond-
ent it was'his custom to voluntarily help Lopez when his
' Canonico testified that he was notified of this change in hours by
Ralph Carlton, the garage foreman and a brother of President William
Carlton. He said that Carlton told him that the change was made so that he
could rebuild transmissions at night Canonico protested the change of
hours to both Carlton and then filed a complaint about the change with
Charles Petses, the vice president of the Union According to Canonico,
Petses advised him that "according to the contract the boss had the right
to switch you to any hours he wanted you to work."
8 Fernando Fausto is also known as Lopez Since the latter name was
most frequently used in the testimony, I shall refer to him by this name
hereinafter in this Decision.
9 Sebastian Scibelh, a shop committeeman employed by the Respond-
ent as a taxicab driver, was called as a witness by the General Counsel.
own work was finished. This, he said, occurred "maybe
once a week or so" and included heavy bodywork as well
as light bodywork. This he said he did notwithstanding
the fact -that-Foreman Ralph Carlton had told him not to
assist Lopez because "it only made Lopez lazier." How-
ever, Canonico's testimony on the subject became all the
more confused when he later conceded that he did per-
form bodywork with Lopez after the union officials ad-
vised him to do so, but, he said, from this point forward he
did not volunteer his services, but only assisted Lopez on
those occasions when Ralph Carlton requested him to do
so. Upon the entire testimony on the subject, I am
satisfied and find that the work for which Canonico was
hired by the Respondent included that he assist in the per-
formance of bodywork when the situation required. In
commenting upon this aspect to Canonico's duties up
until his discharge, I have no doubt but that Foreman
Ralph Carlton accurately summed up the situation by
stating, "When Lopez was overloaded with work and
could not complete it I would always ask John
[Canonico] to assist him and it was very seldom a
problem."
Turning now to the circumstances of Canonico's
discharge on October 28, 1966, there are certain basic
facts involving his refusal to perform bodywork on this
date which are not in dispute. On the other hand, the
testimony is complicated by the fact that witnesses from
both sides in varying degrees gave different versions as to
just what occurred at the time of the discharge. I set forth
below the relevant testimony of all the witnesses.
First, it is undisputed that in the afternoon of October
28, Lopez came over to Canonico and asked Canonico to
assist him in the body repair of one side of a damaged
taxicab.i° I shall continue here with the testimony of
Canonico. Thus, Canonico testified that, when Lopez
made this request, "I told him I was busy doing my own
work and that I wasn't hired as a body man." According
to Canonico, Lopez thereupon left and went into the of-
fice. He promptly returned and this time told Canonico,
"The boss wants you to do body work. You take one side
of the job, the car, and I'll take the other side." According
to Canonico, he at this point again told Lopez, "I have my
own work to do. I wasn't hired as a body man." Canonico
said that Lopez thereupon returned to the office and that
Carlton then came out and asked that he and Shop
Steward Harry Hoffman step into the office. Canonico
said that when he and Hoffman entered the office Carlton
stated, "I want you to do body work on that car; other-
wise punch your card and go home." Canonico said that
he responded, "Bill, the men in the shop '.know you are
looking to fire me, that if you do you will have a walk-
Scibelli testified that he received a complaint from Canonico to the effect
that Canonico heard a rumor that he would be discharged if he refused to
do bodywork. Scibelh testified that he and another union representative
took this up with President Carlton and that Carlton denied that he had
any intentions of firing Canonico or anyone else Scibelli testified that
Carlton also remarked that he did not know how such rumors got started
around the shop
io Lopez testified that in the morning he requested permission from
Foreman Ralph Carlton to have Canonico help him in this work, but that
the foreman at this time told him that "Johnnie wasn't supposed to do
body work." Lopez further testified that in the afternoon he went to Pres-
ident William Carlton and made the same request Lopez said that the
President approved this request and told him to ask Canonico to assist
him in the bodywork.
ZEBRA SERVICE CORP. 765
out." 11 Carlton thereupon stated, "Are you threatening
me?" Canonico said that he replied, "No, I'm just telling
you what the men had told me." Canonico's testimony
reflects that the conversation thereupon became heated,
with Carlton stating that he would have his attorney ob-
tain an injunction if the men went on strike. Canonico
stated that at this point Hoffman spoke up and said that
they should cool down and that he would call down a
union representative "to see who was right and who was
wrong." 1l[offman thereupon made a telephone call to the
Union and he and Canonico left the office. Canonico
testified that outside the office he went over to Sebastian
(Mike) Scibelli, a taxicab driver employed by the Re-
spondent, and advised him of what had occurred. Cano-
nico said that it was Scibelli' s suggestion that he "make
out a grievance and do the work in the meantime until the
Union gets down here and settles it." Canonico testified
that he and Scibelli then went over to Hoffman and that
"Hoffman agreed to this, that I should make out the
grievance and do the work." Canonico testified that Carl-
ton was standing nearby and overheard this conversation.
According to Canonico, Carlton thereupon stated, "No,
its too late, you're fired, your suspended." Continuing,
Canonico testified that Carlton started to walk away, at
which point Charles Copperman, a partner in the Re-
spondent Company, came up to Carlton and said some-
thing to him. Canonico said that he then overheard Carl-
ton say to Copperman, "No, its too late; he is a trouble-
maker; he caused me more trouble than anything else....
He won't even listen to me and take my orders," Canon-
co testified that at this point he spoke up and said that he
wanted to find out from the Union whether he had to do
the bodywork. According to Canonico, Carlton there-
upon said, "I'm the boss here." to which he said he re-
plied, "Your are my boss but the Union is also my boss,
too. I have a right to know whether I have to do this or
not." Canonico said that Carlton then remarked, "See,
I am not even the boss." 12
Scibelli, who was called as a witness for the General
Counsel, testified that he was in the waiting room at the
garage at the time of Canonico's discharge. He said that
while inside he overheard a loud conversation taking
place between Canonico and President Carlton outside of
the office. He testified that he thereupon came out of the
waiting room and heard Carlton say to Canonico, "When
I give you an order you are supposed to listen and if you
don't want to do it you are fired." Scibelli testified that
Canonico replied to the effect, "You fire me and we will
pull out the garage." Scibelli said that at this point he "in-
terceded" by taking Canonico to one side and telling him,
"When the boss gives you an order, do the job and com-
plain afterwards. Don't make threats, because it's not the
Union's policy to make threats." However, Scibelli
testified, Carlton at this point came over and said, "I'm
suspending him. Let him take it up with arbitration."
President William Carlton testified that upon being ad-
vised by Lopez that Canonico refused to help with the
bodywork, he went out to the floor and took the matter up
with Canonico. He said that Canonico in a loud voice
refused to do the work, whereupon he had Canonico
come into his office.13 Inside the office he again asked
Canonico to do the work and Canonico again refused.
According to Carlton , he thereupon told Canonico, "If
you don't do the work, I will dismiss you."14 he said that
Canonico responded by threatening to pull the men out
on strike if he was fired and that he (Carlton) thereupon
stated that the men would not go out for that reason. Con-
tinuing with Carlton's testimony, he said that at this point
Canonico left the office, but that he followed him out to
the floor and again tried "to talk him into going to work,"
telling him that he was "finsished" unless he did. Carlton
said that Canonico again refused, repeated the statement
that he would pull the shop out on strike if he was
discharged, and then shouted to him "You're not my
boss, the Union is my boss." Terminating the conversa-
tion, Carlton merely stated, "If the union is your boss, let
them pay you your salary."
Nathan Copperman, a partner in the Company, was
present in the office when Canonico was discharged.
Copperman testified that after Lopez came to the office
and requested assistance, Carlton left the office and
asked Canonico to give him a hand. Copperman said this
took place just outside the office and that Canonico told
Carlton in a loud voice "that he wasn't supposed to do
body work, that the Union had told him not to do body
work." Copperman testified that Carlton thereupon
brought Canonico into the office; there he again asked
Canonico to do the bodywork; Canonico refused; and
Carlton then ordered him to perform the work or be sub-
ject to dismissal . Copperman said that Canonico
responded, "You can't fire me, I will pull the whole
garage out on strike. The mechanics and the men." Ac-
cording to Copperman, Carlton then stated that this
would be against the union contract, but that Canonico
responded, "I have been told by my union that I didn't
have to do body work, and if you fire me, I'll pull the
garage out on strike." Continuing, Copperman testified
that at this point Carlton told Canonico he was dismissed,
he was suspended, and he should get his timecard and
punch out. Copperman said that he and his son followed
Canonico to the door, at which point he overheard
Canonico shout in the presence of other employees, "I'm
going to pull this garage out on strike, he can't fire
me...."
11 On cross-examination Canonico admitted that he "refused to do the
body work " He testified that there were two reasons for his refusal, his
testimony, being as follows.
One, because I did not want to do body work first of all, and second
.. because [Lopez] had been harrasing [sic] the men, trying to
make them do bodywork. He was slowing down in his work and he
knew that nobody wanted to help do body work and he was doing this
on purpose where he would make me or Bob or somebody else in the
shop have to go over and help me
Still later in his testimony , Canonico indicated that his refusal was
based upon a personal dislike for Lopez because Lopez had testified ad-
versely to the mechanics in an arbitration hearing. This, of course, did not
justify Canonico's refusal to comply with a valid work order of his em-
ployer Canonico also said he refused to work with Lopez because the
work involved "heavy" bodywork rather than "light" bodywork. How-
ever, I must regard this testimony as speculative, since Canonico never
reached the point of assisting Lopez. In any event, Canonoico conceded
that in the past he had performed heavy bodywork with Lopez as a part of
his duties.
12 Although Canonico was discharged, he did not leave the shop until
after two union representatives came down and discussed his termination
with President Carlton. Canonico, however, did not speak to Carlton
further after the above conversation in which he was terminated.
13 Carlton did not testify whether Hoffman came into the office with
Canonico Hoffman was not called as a witness by the General Counsel
and he did not testify in this proceeding.
14 Carlton testified that he was not sure whether he should use the word
"dismiss" or "fire," and that he changed the word to "suspend."
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
Starting with Canonico's change of hours on October
5, 1966, I am persuaded and find that the General Coun-
sel has not established by a preponderance of the
evidence that this action was taken by the Respondent in
violation of Section 8(a)(1) and (3) of the Act. I have no
reason to doubt President Carlton 's explanation for this
action, as heretofore set forth, and I do not believe that
such action was motivated, as the General Counsel con-
tends, by reason of the fact that Canonico testified in the
arbitration hearing . Indeed , Canonico' s testimony, as
well as the General Counsel's brief, is somewhat mislead-
ing in that both alluded only to the fact that Canonico had
testified before the arbitrator. An examination of the ar-
bitrator's decision, however, reveals that two other em-
ployees, Robert Richardson and Noel Muniz, also
testified at this hearing.15 There is no indication that
Canonico testified any more extensively than did these
other two employees. At any rate, although Canonico
was disadvantaged by the change in hours which came
about when another employee went on vacation, I am not
satisfied that the evidence establishes that such action
was motivated by Respondent ' s desire to retaliate against
him because of any protected activities in which he may
have engaged . If it had not been Canonico, undoubtedly
another employee would have been inconvenienced by an
assignment to the later shift . Absent an intent to dis-
criminate, which I find lacking here, the Respondent had
a right to utilize its employees in the manner it best saw
fit. Accordingly, I shall recommend that this allegation in
the complaint be dismissed.'6
I also find and conclude that Respondent discharged
Canonico on October 28, 1966, for cause, not because of
his engaging in any activities protected under the Act or
for the purpose of discouraging membership in the Union.
Although there is some variance in the testimony as to
certain details surrounding Canonico's discharge, the
salient facts are undisputed and admitted by Canonico
himself. Thus, Canonico admitted that President Carlton
ordered him to assist Lopez with bodywork (which I have
found to be a part of his duties) and that he refused.'7
Canonico further admitted that during the discharge con-
versation he told Carlton that the men would engage in a
strike if he were discharged. Finally, on cross-examina-
tion, Canonico conceded that he told Carlton in front of
the employees "you are my boss but the Union is also my
boss." As to this latter remark, I credit the testimony of
Carlton that Canonico phrased the remark as he (Carlton)
testified, i.e., "You're not my boss, the Union is my
boss." On the entire record, I have no hesitancy in finding
that the Respondent had ample cause to terminate
Canonico. Specifically, I credit the testimony of Carlton
that he discharged Canonico because of his refusal to
obey a valid work order, in addition to which Canonico
further aggravated the situation by contemporaneously
15 This decision was introduced for a different purpose than to show
who testified at the hearing . I do not infer, however, that the General
Counsel intended to be misleading.
16 As heretofore indicated, the Union found no merit to the grievance
which Canonico filed over this matter. Canonico testified that he sub-
sequently told Ralph Carlton that the Union was not standing behind him.
He said that Carlton on this occasion told him that although he could not
prove it, he thought that "the boss" had made the change in hours for
harassment purposes . While Ralph Carlton did not specifically deny this
testimony , he corroborated President Carlton, whom he said consulted
threatening to call a walkout in violation of the contract's
no-strike clause and by telling him that the Union, rather
than he, was his boss. Since Canonico's ill-advised re-
marks to Carlton (including his refusal to do bodywork)
occurred in the presence of other employees, I find that
his entire conduct not only constituted rank insubordina-
tion which fully warranted his discharge, but that in fact
it provoked Carlton into discharging him. This conclusion
is buttressed by the fact that Canonico's conduct caused
Carlton to become highly upset when he finally ter-
minated Canonico outside of the office. Thus, Canonico
testified that when Carlton at this point walked away the
drivers went up to Carlton and "tried to calm him down."
Canonico further testified that later in the afternoon two
union officials came to the premises and that after speak-
ing to Carlton they reported "that the boss was still pretty
mad, that he was starting to cool down a bit, that they
would go back and talk to him again in a couple of
minutes." I think it thus clear that Carlton's termination
of Canonico was not based upon any premeditated intent
to discharge this employee for discriminatory reasons,
but rather came about as a heated and spontaneous reac-
tion to Canonico's immediate conduct in refusing to
comply with his order, including Canonico's entire de-
portment in connection therewith.
There is one further aspect of the case which requires
comment, this arising from the Union's negotiations with
the Respondent to have Canonico reinstated. Thus, later
in the same afternoon when Canonico was discharged
(Friday, October 28), Union Representative Anthony
Villani and Charles Petses came to the shop and held a
discussion with President Carlton in an effort to have
Carlton rescind the discharge. They returned and spoke
to him on Saturday and again on the following Monday.
Although Carlton discussed the matter with the union of-
ficials and agreed to give consideration to their arguments
that Canonico be reinstated, he finally advised them on
Monday that he and Copperman had decided that the
discharge would stand. Pertinent here is testimony that at
one point during the discussions with the union officials
Carlton made a proposal to the effect he would give con-
sideration to taking Canonico back if the Union would
agree that Canonico's salary be reduced. Thus, Villani
testified that this proposal was made on Friday, at which
time he said that Carlton stated "that he would take him
back on a reduction in salary because he was getting more
than the foreman of the shop." Villani testified that he
thereupon told Carlton "that the Union would not go for
any reduction at this time." Petses testified that a
proposal of this nature was made during their meeting
with Carlton on Saturday, at which time Carlton said that
he would "think about" taking Canonico back if the
Union agreed to a reduction in pay. Petses testified,
"Right away I dismissed the idea." Carlton testified that
during one of his discussions with the union officials, they
asked whether he would consider taking Canonico back
with him concerning the change in Canonico's hours, as to the reason this
action was taken . In any event , assuming that Ralph Carlton voiced a
suspicion in the manner testified to by Canonico , this would not alter my
conclusion that a preponderance of the evidence does not support this al-
legation of the complaint.
11 1 credit Carlton's testimony that he requested Canonico three times
to do the work and that Canonico refused on each occasion. This occurred
first outside the office and for the second time inside the office. I also be-
lieve that Carlton gave him a third opportunity after he left the office.
ZEBRA SERVICE CORP.
"under any consideration." Carlton said that in response,
and after first pointing out that Canonico was receiving
higher wages than the foreman, he offered to discuss with
his partner the possibility of taking Canonico back on the
basis that his salary be reduced "to $2 below the
foreman." Carlton testified that the Union promptly re-
jected the idea and that it was not discussed further.
Upon consideration of all the testimony, I find that
Carlton did not make a definite offer to take Canonico
back at a reduced rate, but that he merely proposed this
as a basis for giving further consideration to the Union's
request that Canonico be reinstated. The General Coun-
sel argues that by this proposal the Respondent "con-
doned" Canonico's conduct and that "therefore the in-
subordination of Canonico was not so heinous to the
Respondent as to warrant a dismissal and that the reasons
alleged for the dismissal of Canonico were pretexts."
Under all the circumstances of this case, I find no merit
to this argument. Carlton's proposal was made during the
course of his bargaining with the Union over the matter
and I think that he gave the union representatives a valid
reason for making the proposal. Nor did Carlton's
proposal for possibly reinstating Canonico at a lesser rate
constitute condonement of Canonico's conduct. Thus, in
cases involving discrimination, condonation in the legal
sense is found to occur where an employer first forgives
767
an employee for some misconduct, but upon later
discovery that the employee had engaged in union or pro-
tected activity then utilizes such condoned misconduct as
a pretext for discrimination. Clearly, such was not the
case here.
Having found that the General Counsel has not
established by a preponderance of the evidence that the
Respondent discriminated against Canonico, it shall be
recommended that the complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
RECOMMENDED ORDER
It is recommended that the complaint herein be
dismissed in its entirety.