NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
St. George Warehouse, Inc. and Merchandise Drivers Local No. 641, International Brotherhood of
Teamsters.[1] Cases 22–CA–25400 and 22–CA–25938
April 30, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On January 10, 2005, Administrative Law Judge Eleanor
MacDonald issued the attached decision.
The Respondent filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.[2]
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions in part, to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.[3]
The Respondent operates warehouses from which employees
load cargo for domestic and international shipment. The allegations here involve the Respondent’s
The judge found that the Respondent violated Section 8(a)(1) by assisting with a decertification petition; Section 8(a)(5) and (1) by engaging in surface bargaining and unilaterally enforcing a 15-minute break limitation; Section 8(a)(3), (4), and (1) by issuing written warnings and suspensions to employee Tony Daniels; and Section 8(a)(3) and (1) by issuing written warnings to employee Purcell Robert Wallace. We dismiss the surface bargaining allegation. We also dismiss or find it unnecessary to pass on certain allegations involving the discipline of Daniels and Wallace. We affirm the remaining violations. Our reasoning is set out below.
i. unlawful assistance with decertification
petition
We agree with the judge that the Respondent violated Section 8(a)(1) in October 2002 by assisting employee Louis Buono in circulating a decertification petition. In affirming the violation, we rely only on the conduct of Supervisor Anthony Oliveri. We find it unnecessary to rely on the conduct of General Manager Gabriel Maldonado and Executive Vice President Linda Kuper.
We affirm the judge’s denial of the Respondent’s motion to
amend its answer to deny Oliveri’s supervisory status. On the second day of the hearing, during testimony
about Oliveri’s conduct, the Respondent moved to amend its answer to deny that
Oliveri was a statutory supervisor. The
judge denied the motion. Pursuant to Section 102.23 of the Board’s Rules, the decision whether to allow
amendment of the answer during the hearing was within the judge’s
discretion. For the reasons stated in
the judge’s decision, we find that the judge did not abuse her discretion in
denying the Respondent’s motion.
ii. alleged surface bargaining
A. Facts
The parties bargained from October 2001 through at least
October 2003. In 2002, the parties began
litigating a prior unfair labor practice case, Case 22–CA–24902. On October 22, 2002, Administrative Law Judge
Steven Davis issued a decision in that case finding that the Respondent
violated Section 8(a)(5) and (1) by engaging in surface bargaining, by refusing
to provide certain information requested by the Union, and by unilaterally transferring
work out of the bargaining unit by replacing departing unit employees (called
direct hires) with nonunit personnel supplied by a temporary agency (agency employees).[4]
At the time of the
While the
On September 27, 2002, the
On October 31, 2002, about a week after the Davis decision
issued, the Respondent proposed contract language permitting it to transfer
unit work to agency employees upon the departure of unit employees—the practice
Judge Davis found to be a mandatory subject of bargaining. The
The parties continued bargaining. On December 27, 2002, the
On February 18, 2003, the Respondent accepted most of a
management-rights clause proposed by the
The hearing in the present case began in July 2003 and, after several breaks, concluded in January 2004. On September 22, 2003, the hearing adjourned until October 14. The judge stated on September 22 that the parties “are attempting to settle the contract, which would wrap up the outstanding cases as well. They are meeting with the mediator tomorrow.”
The parties then participated in a series of mediation
sessions, including one on October 9 with Mediator Alan Budd. On October 29, Respondent’s president, Linda
Kuper,[8]
and Union Representative Jan Katz had a one-on-one meeting. As discussed more fully below, the Respondent
contends that the October meetings were for the purpose of settling the
outstanding unfair labor practice charges as well as negotiating a
contract. In this regard, one issue
discussed by the parties was the Respondent’s October 9 proposal that “[t]he
pending ALJ Case [the Davis case] would be settled and the pending charges
withdrawn,” for which, “[a]s a quid pro
quo,” the Respondent would add 23 agency employees to the bargaining unit,
thus increasing the size of the unit from 7 to 30. The Respondent’s willingness to enter into
this “quid pro quo” agreement was, in turn, contingent upon the
B. Legal Standard
Section 8(d) of the Act defines the duty to bargain collectively
as “the performance of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment . . . but
such obligation does not compel either party to agree to a proposal or require
the making of a concession.” Good-faith
bargaining “presupposes a desire to reach ultimate agreement, to enter into a
collective bargaining contract.” Public Service Co. of Oklahoma (PSO),
334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003) (quoting NLRB v. Insurance Workers, 361
In determining whether a party has violated its statutory
duty to bargain in good faith, the Board examines “the totality of the employer’s
conduct, not just isolated aspects of it.”
Logemann Bros. Co., 298 NLRB
1018, 1020 (1990). From a party’s total
conduct both at and away from the bargaining table, the Board determines
whether the party is “engaging in hard but lawful bargaining to achieve a
contract that it considers desirable or is unlawfully endeavoring to frustrate
the possibility of arriving at any agreement.”
Public Service Co., supra at
487.
C. Analysis
Contrary to the judge and our dissenting colleague, we find that the totality of the Respondent’s conduct, both at and away from the bargaining table, fails to warrant a finding of surface bargaining. For the reasons stated below, we find that the Respondent’s conduct at the table did not demonstrate bad faith. Furthermore, although the Respondent engaged in some misconduct away from the table, those acts are not sufficient to show overall bad-faith bargaining or to taint the Respondent’s conduct at the table.
1. Conduct at the bargaining table
The parties met about eight times between September 2002
and April 2003. Although not discussed
at length by the judge, the parties’ written communications show agreement on
numerous issues. For example, in letters
to the Union on January 7 and 13, 2003, the Respondent accepted the
Nevertheless, the judge concluded that the Respondent had engaged in surface bargaining. We disagree. We address the evidence relied on by the judge below.
a. The Respondent’s proposal to replace departing direct hires with agency employees
As noted above, on October 31, 2002, after receiving the
b. Conduct at the October 2003 meetings
In finding surface bargaining, the judge and our colleague rely in part on statements made by the Respondent during the mediation session on October 9, 2003, and the meeting between Kuper and Katz on October 29, 2003. The Respondent argues that the judge erred in admitting these statements because the purpose of those meetings was not only to negotiate a contract, but also to settle pending unfair labor practices. The Respondent therefore asserts that statements made in the October 9 and 29 meetings are inadmissible under Federal Rule of Evidence 408, which bars evidence of certain statements made during settlement negotiations.
We agree with the Respondent that the October 2003 meetings were for the purpose of settling the pending charges as well as negotiating a contract.[10] We therefore find, as explained below, that Rule 408 bars the statements on which the judge and our colleague rely. We also find, however, as further explained below, that even assuming the statements were admissible, they do not warrant a finding of surface bargaining.
(i) Statements excluded under Rule 408
Federal Rule of Evidence 408 states:
Evidence of (1)
furnishing or offering or promising to furnish, or (2) accepting or offering or
promising to accept, a valuable consideration in compromising or attempting to
compromise a claim which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is
likewise not admissible. This rule
does not require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This rule also does not require exclusion
when the evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution. [Emphasis added.]
Our dissenting colleague concedes, in effect, as does the General Counsel (see note 10 above), that the purpose of the settlement discussions was both to negotiate a collective-bargaining agreement and to settle the unfair labor practices. Having made this concession, our colleague would nevertheless find the statements at issue admissible under the “for another purpose” exception to Rule 408 for two reasons. First, he views the record as supporting the conclusion that the parties were seeking to settle only—or “primarily”—the unilateral transfer of work issue and not the surface bargaining claim at issue here. Second, assuming settlement of the surface bargaining claim was included in the settlement discussions, our colleague asserts that the statements made at the October 9 meeting are still admissible because they evidence a separate and independent surface bargaining allegation. After we have explained why Rule 408 bars the admission of the conduct at issue here, we will explain why we find our colleague’s arguments unpersuasive.[11]
Under Federal Rule of Evidence 408, “[e]vidence of conduct
or statements made in compromise negotiations is . . . not admissible” to prove
liability for the “claim” at issue. The
record shows that the claims at issue in the settlement discussions included
not only the unilateral transfer of unit work issue in the Davis case, but also
the surface bargaining claims at issue in that case and in the present
case. The judge’s own words make this
clear. In entering into settlement discussions,
the parties were, according to the judge, attempting to settle the contract “which
would wrap up the outstanding cases
as well” (emphasis added). At that time,
there were two outstanding cases pending, the
The evidence establishes that the parties also clearly
understood that the purpose of the settlement discussions was not only to
negotiate a contract, but also to settle the outstanding unfair labor practices
– including the surface bargaining claims.
As explained above, after a caucus during the October 9 session with
Mediator Budd, the Respondent made a proposal which included as its first item
that “[t]he pending ALJ Case [the
For all these reasons, it is clear that a purpose of the settlement discussions was to “wrap up” the surface bargaining claim at issue here. As the Board explained in Contee Sand & Gravel Co., 274 NLRB 574 fn. 1 (1985):
Thus, where as here, the alleged unfair labor practice can be proven only with evidence that otherwise is inadmissible under Rule 408, we do not agree with the dissent that the “for another purpose” exception to Rule 408 [is applicable].
Having found that Rule 408 bars admission of statements made at the October 9 and 29 meetings to establish liability for that claim, we now consider our dissenting colleague’s arguments set out above and explain why we find them without merit.
Conceding as he must that the Respondent was attempting to settle the outstanding charges during the settlement discussions of October 9 and 29, our dissenting colleague nevertheless asserts that the “for another purpose” exception to Rule 408 applies because “the Respondent emphasizes throughout its brief that the ‘primary’ settlement issue was the unilateral transfer of unit work in the Davis case.” First, a review of footnote 14 above and accompanying text establish that our colleague mischaracterizes the Respondent’s position. Second, by even making this argument, our colleague concedes that a purpose of the settlement discussions—whether “primary” or not—was to settle the surface bargaining claim. By making this concession, the dissent contradicts its own argument that the statements are admissible under the “for another purpose” exception to Rule 408 (emphasis added). Thus, we respectfully suggest our colleague’s argument collapses under the weight of its own logic.
The dissent’s second argument fares no better. Conceding, in effect, that Rule 408 bars admission of the statements made at the October 9 meeting to establish liability for the surface bargaining claim, our colleague then asserts that, by virtue of the November 2003 amendment to the complaint (see fn. 7 above), the statements are admissible as independent “wrongful acts” that evidence the Respondent’s liability for that surface bargaining violation.
We find our colleague’s reasoning an attempted end-run around Rule 408, which we reject. The original complaint alleged surface bargaining. As discussed above, we find that the parties were attempting, inter alia, to settle that allegation. Accordingly, under Rule 408, statements made in those settlement discussions cannot be used to prove that allegation. We recognize that the General Counsel, in November 2003, amended the complaint to allege that the Respondent in the settlement discussion of October 9, engaged in conduct that was “indicative of surface bargaining.” Of course, if a respondent engages in independently unlawful conduct during a settlement discussion, evidence of that conduct can be introduced and the matter can be adjudicated. However, we do not read the amendment of the complaint as alleging an independent unfair labor practice on October 9. Rather, we view the amendment as alleging that the conduct of October 9 constituted an indicium of the surface bargaining that had been previously alleged. As we have seen, that allegation was the subject of settlement discussions, and therefore statements made during those discussions that allegedly evidence surface bargaining must be excluded. Inasmuch as the October 9 conduct is assertedly a further indicium of that alleged surface bargaining, the exclusion must extend to the October 9 conduct as well.
Further, assuming as our dissenting colleague argues, that
the surface bargaining allegation of the amended complaint constitutes an independent
surface bargaining allegation, we would still find that the alleged unlawful
conduct of October 9 would be barred by Rule 408 because that conduct “‘was so
closely intertwined with the unfair labor practices then under discussion that
they cannot be separated therefrom.’”
See Contee Sand & Gravel,
274 NLRB 574 fn. 1, discussed above.[15] Our colleague fails to discern this
intertwinement in quoting from the Respondent’s brief that the parties, in
their settlement discussions, “never got beyond” the issue of the work transfer
violation found in the
We also do not agree with the dissent that, even assuming the statements at issue were admissible, they evidence surface bargaining.
(ii) Statements do not evidence surface bargaining
The first statement we address, and the one on which the judge relied most heavily, involves the Respondent’s demand for an election. The judge found that the Respondent offered to convert 23 agency employees to direct hires—increasing the size of the unit from 7 to 30—contingent on an election among the 30 employees. The Respondent stated that there would be no contract without an election. In the judge’s view, the Respondent’s insistence on an election demonstrated bad faith.
We disagree. The
Respondent’s demand for an election cannot be isolated from the context in
which it was made. In October 2003, the
Our colleague, in finding that the Respondent’s election
demand is evidence of bad faith, removes the Respondent’s statements from their
clear and logical context. The judge’s
findings and the testimony demonstrate that the Respondent’s demand for an
election was a “quid pro quo” for its proposal to convert 23 nonunit agency
employees to direct hires. This
proposal, in turn, was contingent upon the settlement of the
Furthermore, contrary to our colleague’s argument, Kuper’s
testimony that she would sit down and negotiate a contract if the
Also based on statements at the October 2003 meetings, the
judge found that the Respondent changed its position from a 3-year contract to
a 1-year contract. We find that the
Respondent’s change in position does not indicate bad faith. The
The judge also found that during the October 9 mediation
session, after the parties had agreed to an $8 starting wage for new hires, the
Respondent’s counsel said that $8 was “too rich.” Contrary to the judge and our colleague, we
find this statement too inconclusive to indicate surface bargaining. Although a withdrawal of an agreed-upon
provision may indicate bad-faith bargaining, see Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), the Respondent here never withdrew the
$8 offer and the complaint does not allege that it did. Rather, the complaint alleges only that the
Respondent “was considering
withdrawing its offer[.]” (See fn. 7
above; emphasis added.) As far as the record
shows, neither the
Finally, the judge found that at the October 29 meeting
between Kuper and Katz, Kuper thanked Katz for filing new charges, said that
would add 2 years to the proceedings, and stated that she would retire in 7
years and it would make no difference if the dispute was still going on. Based on these statements, the judge and our
colleague find that Kuper’s attitude was “the antithesis of a sincere desire to
agree to a collective-bargaining contract . . . .” We disagree. The remark was simply a sarcastic
one, and an expression of unhappiness with the prospect of further
litigation. In this sense, the remark
favors negotiation over litigation.
Further, “[a]lthough some statements by negotiating parties may show an
intention not to bargain in good faith, the Board is especially careful not to
throw back in a party’s face remarks made in the give-and-take atmosphere of
collective bargaining.” Logemann Bros. Co., 298 NLRB 1018, 1021
(1990). “To lend too close an ear to the
bluster and banter of negotiations would frustrate the Act’s strong policy of
fostering free and open communications between the parties.”
c. Other conduct at the table
The other at-the-table conduct on which the judge relied needs little discussion. The judge found that on January 7, 2003, the Respondent made a regressive vacation proposal.[21] However, the proposal appears to have been a mistake and was corrected 2 days later.
The judge further noted that on January 13, 2003, the Respondent proposed a $7 starting wage, even though its prior proposal had been $8. As with the vacation proposal, the evidence fails to show that the $7 offer was anything other than a mistake. In later negotiations, the $8 proposal was back on the table.
Finally, the judge found that the Respondent took an unreasonable position regarding union access to the warehouse to investigate grievances. The judge stated that the Board, in dismissing the surface bargaining allegation in the prior case,[22] “did not disturb” the judge’s conclusion that the Respondent had taken an unreasonable position on access. We disagree. The Board found that the evidence in that case—which included the Respondent’s position on access—failed to show surface bargaining. Furthermore, the parties here exchanged several proposals on access and discussed the issue at the table. The Respondent offered reasons for its position and showed some movement. We find that the Respondent’s position on access does not indicate bad faith.
In sum, we have examined the evidence on which the judge relied in the context of the Respondent’s overall conduct at the bargaining table. The evidence fails to show that the Respondent was “unlawfully endeavoring to frustrate the possibility of arriving at any agreement.” Public Service Co., supra at 487.
2. Conduct away from the table
The judge also found that certain conduct away from the table indicated bad faith, specifically the October 2002 unlawful assistance with the decertification petition and the November 2003 implementation of a new health plan. We disagree. The Board is “reluctant to find bad-faith bargaining exclusively on the basis of a party’s misconduct away from the bargaining table.” Litton Systems, 300 NLRB 324, 330 (1990), enfd. 949 F.2d 249 (8th Cir. 1991), cert. denied 503 U.S. 985 (1992). Instead, such conduct “has been considered for what light it sheds on conduct at the bargaining table.” In the present case, as we have found, the Respondent’s conduct at the table does not show an intent to frustrate agreement. Therefore, the Respondent’s conduct away from the table does not, on its own, warrant a finding of overall surface bargaining. Furthermore, as explained below, the conduct away from the table is not sufficient to taint the Respondent’s conduct at the table. See Litton, supra at 327.[23]
In finding that the Respondent unlawfully assisted with the decertification petition, the judge relied on conduct by Supervisor Anthony Oliveri, General Manager Gabriel Maldonado, and Linda Kuper. As stated in section I above, we affirm that violation based solely on Oliveri’s conduct. We note, however, that none of the three individuals’ actions tends to show an intent to frustrate agreement. Neither Oliveri nor Maldonado played any role in negotiations. There is no evidence that any bargaining representative of the Respondent encouraged Oliveri’s or Maldonado’s actions with respect to the decertification petition. Although Kuper was involved in negotiations, her alleged assistance with the decertification petition is based on a single isolated conversation with employee Louis Buono in October 2002. The judge did not find, and the parties do not contend, that Kuper (or, for that matter, Oliveri or Maldonado) gave any further assistance after that time. The parties continued bargaining for another year after October 2002. In these circumstances, the actions of Oliveri, Maldonado, and Kuper are not evidence of overall bad-faith bargaining. See, e.g., River City Mechanical, 289 NLRB 1503, 1505 (1988) (away-from-the-table violations were insufficient to prove surface bargaining).
The judge also found that in November 2003, the Respondent
unilaterally implemented a new health insurance plan while negotiations were in
progress.[24] When the Respondent’s existing health plan
was due to expire, the Respondent obtained new, nationwide coverage, which
resulted in a decrease in the dollar amount paid by employees. The Respondent contends that the percentage
of the total premium paid by employees and by the employer remained the same,
and therefore the new coverage did not change the status quo. Although
the record does not show how the premiums for past plans were divided between
the employer and employees, it does appear that the Respondent had a past
practice of changing providers each year and passing premium changes along to
employees. Therefore, it is unclear
whether the Respondent made a material and substantial change to the status quo. Moreover, even assuming the Respondent’s
conduct was not consistent with past practice, the record fails to show that
the change affected bargaining. See Litton, supra at 330. Linda Kuper testified without contradiction
that the
D. Conclusions on Surface Bargaining
When considered in the context of the overall negotiations and the parties’ efforts to resolve the unfair practice claims, the Respondent’s bargaining proposals and other actions fail to show an intent to frustrate agreement. We therefore conclude that the totality of the Respondent’s conduct does not warrant a finding of surface bargaining. We reverse the judge and dismiss that allegation.
iii. discipline of employee tony daniels
A. Discipline Other Than the April 26, 2002 Suspension
We adopt the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by issuing a written warning and final warning to employee Tony Daniels on September 4, 2002, and by issuing him a written warning on October 14, 2002.[26] We also adopt the judge’s findings that the Respondent violated Section 8(a)(3), (4), and (1) by issuing Daniels a written warning on July 24, 2003, and a 2-week suspension on July 25, 2003. Finally, we agree with the judge that the Respondent violated Section 8(a)(3), (4), and (1) by issuing Daniels a “final final” warning on October 9, 2003.[27]
In affirming each of these violations, we agree with the judge that the General Counsel carried his initial burden under Wright Line of proving that Daniels’ union activity (as to the 8(a)(3) violations) and testimony before the Board (as to the 8(a)(4) violations) were motivating factors in the discipline.[28] However, we find it unnecessary to rely on the Respondent’s prior 8(a)(5) violations (see St. George Warehouse, 341 NLRB 904) or on the October 2002 unlawful assistance with the decertification petition as evidence of animus. Instead, we rely, as did the judge, on the Board’s findings in a prior case that the Respondent violated Section 8(a)(1) and (3) by discharging and disciplining employees because of their union activities and by interrogating employees, giving the impression of surveillance, soliciting grievances, promising benefits, and imposing an unlawful no-solicitation rule. See St. George Warehouse, 331 NLRB 454 (2000), enfd. 261 F.3d 493 (3d. Cir. 2001).[29] This prior case included the same types of violations at issue here—retaliating against employees because of their union activity—and involved one of the same managers, Gabriel Maldonado. Furthermore, we adopt the judge’s findings that the Respondent’s asserted reasons for the September 4 and October 14, 2002 warnings and for the July 25, 2003 2-week suspension were pretextual, and that the suspension also constituted disparate treatment. Pretextual reasons and disparate treatment are among the factors that may support an inference of discriminatory motive. See Michigan Roads Maintenance Co., 344 NLRB No. 77, slip op. at 9 (2005); W. F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995).
B. April 26, 2002 Suspension
The judge also found that the Respondent violated Section 8(a)(3), (4), and (1) by suspending Daniels on April 26, 2002, for loading four “overweight” containers (containers in which the weight of the cargo was improperly distributed). Contrary to the judge, we find that the Respondent carried its burden of proving that it would have suspended Daniels even absent his protected activity. We therefore dismiss that allegation.
As a loader, Daniels is responsible for loading freight
into containers, which are then driven or shipped to their ultimate
destination. Loaders are required to
load the freight in such a way that its weight is evenly distributed within the
container. If the weight is improperly
distributed, the container will be returned to the warehouse to be reworked.
According to the suspension notice, in a given week four of Daniels’ containers were returned to the Respondent “due to the way [they were] loaded,” and one of the containers missed its shipping deadline. Daniels admitted that he misjudged one container when loading it, and that the container was “leaning.” As to another container, he said that he asked for, but did not receive, help in loading it. He did not recall the other two containers.
The judge found the suspension unlawful. She found that the Respondent treated Daniels disparately, both in deciding to discipline him for the overweight containers and in issuing a suspension rather than a warning. The judge reasoned that Louis Buono was not disciplined for loading an overweight container and that as far as the record shows, no employee other than Daniels had been disciplined for overweight containers. The judge also noted that Daniels had never received a written warning before this incident and that the Respondent generally warned employees before suspending them for problems involving freight.
The judge also questioned whether Daniels was responsible
for two of the four incidents cited in the warning. She reasoned that the Respondent introduced
no evidence connecting Daniels to those two incidents, and Daniels himself did
not recall the incidents. The judge also
noted that when issuing disciplinary notices for problems with freight, the
Respondent usually listed the freight numbers on the notice, but did not do so
here.
The Respondent argues that it would have disciplined
Daniels regardless of his protected activity, because he loaded four overweight
containers in the same week, and one of the containers missed its shipping
deadline as a result.
We find merit in the Respondent’s exception. To the extent the judge suggests that two of the incidents cited in the warning did not occur or were not attributable to Daniels, the record does not warrant such a finding. First, Daniels did not deny that those two incidents occurred; he simply said he was not aware of them. Second, there are other warning notices in the record that do not list specific freight numbers.[30] Third, although Linda Kuper did not personally make the decision to suspend Daniels, she did remember the incident and the fact that it involved four overweight containers in a single week, one of which missed its shipping deadline.
Furthermore, the absence of other discipline for overweight containers does not show disparate treatment. There is no evidence that any other employee was responsible for four overweight containers in 1 week. The only other employee specifically named as having an overweight container was Louis Buono. As far as the record shows, Buono had only one overweight container and therefore is not similarly situated to Daniels.
For similar reasons, the fact that Daniels had not received
a written warning prior to the April 26 incident does not establish disparate
treatment. Although most employees who
were suspended had received prior warnings, there is no record of any other
incident involving four infractions in a week.
A particular form of discipline is not
necessarily unlawful solely because an employer has imposed it for the first
time. See National Steel Supply, 344 NLRB No. 121, slip op. at 3 (2005). Here, because Daniels’ conduct was
unprecedented, there are no similarly-situated employees with whom to compare
him.
Therefore, the record does not support a finding of disparate
treatment.
Therefore, assuming that the General Counsel proved that
Daniels’ protected activity was a motivating factor for the suspension, we find
that the Respondent carried its burden of proving that it would have suspended
Daniels even absent that activity.
Accordingly, we reverse the judge and find that the suspension did not
violate Section 8(a)(3), (4) and (1).
iv. discipline of employee purcell robert wallace
The judge found, and we agree for the reasons stated in her decision, that the Respondent violated Section 8(a)(3) and (1) by issuing Wallace a written warning on September 4, 2002 and a final warning on September 5, 2002.[31]
The judge also found that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to Wallace on July 31 and August 2, 2002. We disagree. For the reasons stated below, we find that the Respondent proved that it would have issued the warnings even absent Wallace’s union activity.
A. July 31, 2002 Warning
Like Daniels, Wallace was a loader. On July 31, 2002, the Respondent issued a
written warning to Wallace for “carelessness” based on his failure to load 52
cartons of freight. Wallace admitted that he mistakenly
failed to load the cartons.
The judge found that the Respondent treated Wallace disparately and that the warning therefore violated Section 8(a)(3) and (1). In finding disparate treatment, the judge relied solely on the lack of evidence that the “checker” (an employee who assists the loader by checking the freight before loading to make sure it is all there) was disciplined. The Respondent excepts, arguing that Wallace’s warning is consistent with warnings to other employees for similar infractions.
Contrary to the judge, we find that the record does not show disparate treatment. There is no evidence that Wallace was assisted by a checker in loading this cargo. Although Wallace testified that a checker is supposed to check every load, the Respondent’s president, Linda Kuper, testified that there is not always a separate employee acting as “checker.” Even assuming there was a checker, no witness was asked at the hearing whether the checker was disciplined. Therefore, it is impossible to conclude that the checker was not disciplined.[32]
The Respondent has issued written warnings to other
employees for failing to load all their cargo.
For example, Felipe Rivera received a one-day suspension on March 14,
2000, because he “left one case off” his load.
Eduardo Cuyuch received a written warning on August 31, 2000 because he “said
16 [cartons] were loaded and they were left behind.” Cuyuch received a one-day suspension on
October 27, 2000 when he again left one pallet behind on the dock. Kuper testified that employees are always
disciplined for short shipments if the Respondent knows about them.
In light of the evidence that the Respondent issued
written warnings to other employees for similar conduct, and in the absence of
affirmative evidence that Wallace was assisted by a checker who was not
disciplined, we find that the Respondent has carried its burden of proving that
it would have disciplined Wallace even absent his union activity. See, e.g.,
B. August 2, 2002 Warning
On August 2, 2002, the Respondent issued Wallace another
written warning for “carelessness,” based on loading cargo into the wrong
container. As a result of the mistake,
the cargo went to
The judge found that the warning constituted disparate treatment and therefore violated Section 8(a)(3) and (1). Again, in finding disparate treatment, the judge relied solely on her finding that there was no evidence the checker or night crew were disciplined for the incident. The Respondent excepts, again arguing that Wallace’s discipline was consistent with the discipline of other employees for similar incidents.
As with the July 31 warning, no witness was asked whether the checker or night crew were disciplined. The record does not identify the checker and night crew members for this load.[33] Wallace did not even recall if a checker assisted him that day. Therefore, on this record, it is impossible to conclude that the checker and night crew members were not disciplined.
The Respondent has issued written warnings to other employees for mistakes in loading cargo. For example, the Respondent issued a written warning to Louis Buono on September 6, 2002, for loading cargo to the wrong destination. The Respondent issued a written warning to Eduard Ortoloza on December 5, 2000, for an incident in which an extra 48 cartons were shipped. As noted above, the Respondent has also issued several warnings to other unit employees for mistakenly failing to load all their freight.
In light of the evidence that the Respondent issued
written warnings to other employees for similar infractions, and in the absence
of affirmative evidence that the checker and night crew were not disciplined,
we find that the Respondent has carried its burden to prove that it would have
issued the warning to Wallace even absent his union activity. See, e.g., Advance Auto Parts, supra at 910.
Accordingly, we dismiss the allegation that the warning violated Section
8(a)(3) and (1).
Amended Conclusions of Law
1. Substitute the following for the judge’s Conclusions of Law 6 and 7.
“6. By issuing a written warning and final warning to Tony Daniels on September 4, 2002, and by issuing a written warning to Tony Daniels on October 14, 2002, the Respondent violated Section 8(a)(3) and (1) of the Act.
“7. By issuing written warnings to Tony Daniels on October 30, 2002 and July 24, 2003, the Respondent violated Section 8(a)(3), (4), and (1) of the Act.”
2 .Substitute “2002” for “2003” in the judge’s Conclusion of Law 11.
3. Delete the judge’s Conclusions of Law 4, 5, and 10, and renumber the subsequent paragraphs accordingly.
ORDER
The National Labor Relations
Board orders that the Respondent, St. George Warehouse, Inc.,
(a) Assisting in the circulation of a decertification petition.
(b) Issuing warnings to,
suspending, or otherwise discriminating against any employee for supporting Merchandise
Drivers Local No. 641, International Brotherhood of Teamsters, or any other labor organization.
(c) Issuing warnings to, suspending, or otherwise discriminating against any employee for giving testimony under the Act.
(d) Failing and refusing to
bargain in good faith with the
(e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours, or other terms and c