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,
All Pro Vending,
Inc. and Frederic A. Traube. Case 5–CA–32734
July 31, 2007
DECISION AND ORDER
By Members Schaumber, Kirsanow, and
Walsh
On December 27, 2006,
Administrative Law Judge John T. Clark issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an answering brief.
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,[1]
and conclusions and to adopt the recommended Order.
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge and
orders that the Respondent, All Pro Vending, Inc.,
Dated,
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Peter C. Schaumber, |
Member |
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Peter N. Kirsanow, |
Member |
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Dennis P. Walsh, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not impliedly
threaten to not reinstate you because of your protected concerted activities.
We will not tell
you that you are not allowed to engage in union and/or protected activities at
work.
We will not suspend
and discharge you because of your union and protected activities.
We will not discharge
you because you have filed unfair labor practice charges with the National
Labor Relations Board.
We will not in any
like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date
of the Board’s Order, offer Frederic A. Traube full reinstatement 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.
We will make
Frederic A. Traube whole for any loss of earnings and other benefits resulting
from our unlawful action against him, less any net interim earnings, plus
interest.
We will, within 14 days from the date
of the Board’s Order, remove from our files any reference to the unlawful
suspension and discharge and, within 3 days thereafter, notify Frederic A.
Traube in writing that this has been done and that the unlawful suspension and
discharge will not be used against him in any way.
All Pro Vending, Inc.
Lisa M. Daley, Esq. and Thomas P. McCarthy, Esq., for the General Counsel.
Mark J. Swerdlin,
Esq. and Kraig B. Long, Esq.
(Shawe & Rosenthal LLP), of
for the Charging Party.
DECISION
Statement of the Case
John T. Clark,
Administrative Law Judge. This case was
tried in
On the entire record, including my credibility determinations based on the demeanor of the witnesses, as well as my credibility determinations based on the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole and, after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent, a
ii. alleged unfair labor practices
A. Introduction
The Respondent was formed in 1996 by David McDonald and
Clarence Haskett, the Respondent’s president and vice president, respectively. They each have over 30 years of vending
experience. Stadium vending is part-time
seasonal work. Both men have other employment,
as does the Charging Party, and most other vendors. McDonald, who has not worked as a vendor for
the last 3 years, is a real estate agent.
Haskett works for the State of
Aramark Corporation, the concessionaire at RFK Stadium, selected the Respondent as its subcontractor for vendor services. The Respondent’s vendors are paid on a straight commission basis. The Respondent assigns the product the vendor sells based on seniority and prior sales volume. Traube is one of the Respondent’s most successful beer vendors. Some vendors, and others, refer to vendors as “hawkers.” This reference, no doubt, is premised on the ubiquitous siren call used to announce their product, such as “beer here!” heard in professional baseball venues—at least until the seventh inning.
The Respondent’s distribution system begins at a commissary. The commissaries are located throughout RFK. The commissary is where the vendors buy their product. Each commissary has a manager, a cashier, and four support personnel. The manager and the cashier stand behind a counter that separates the entryway from the stock area. A vendor pays the cashier for his product and the cashier produces a ticket. The ticket is used to keep track of the vendor’s sales. Half the ticket is given to the vendor and the other half to the commissary manager. The manager tells the support staff to get the product and give it to the vendor. The vendor never goes behind the counter, nor is he permitted to switch commissary rooms.
The Respondent encourages vendors to buy and carry two cases of beer at a time, except for the first case of the game. The Respondent provides the first case of beer which is paid for from the proceeds from its sale when the vendor returns to buy a second case. After buying the beer, the vendor proceeds to the seating area to sell his product. The Respondent has a written rule that states that vendors must sell in the seating area. It is during this traverse—from commissary to seating area—that the Respondent’s rule prohibiting the vendors from selling beer on the concourse, which is where the concession stands are located, collides with reality.
Concession stands sell food and beverages. Because of this diversity of product it is generally understood that a patron may have to wait an undetermined period of time before being served. Frequently, at least one thirsty patron, on his was to the concession area, crosses the path of a beer vendor. An almost instinctive reaction is for the thirsty patron to stop the vendor and ask to buy a beer. Clearly, for the vendor to react in any way other than to provide instant gratification to his customer, would be not only poor salesmanship but even worse public relations. To avoid that outcome, the Respondent allows its vendors to sell a beer in the concourse area at the request of a customer. The problem arises when other customers, on their way to buy beer at the concession stand, take the path of least delay and also approach the vendor to purchase a beer. In the interest of customer service, the Respondent allows the vendor to serve all the patrons who gather around him after the initial stop by a patron. The parties agree that “setting up,” which entails stacking cases of beer on a table or the ground and announcing “beer here,” is not permitted in the concourse area. For the purpose of this decision “setting up” and “hawking” are synonymous.
It is at this juncture that economic realities must be acknowledged. Standing in place and selling beer is far more efficient, and less tiring, than carrying two cases of beer up and down the aisles in the stadium. Equally apparent, is that because the vendors are paid solely on a commission basis, it is in their interest to sell as much beer as possible, regardless of the point of sale. Additionally, the more beer sold by the vendors, the more money the Respondent makes, with a corresponding decrease in revenue from the sale of beer by the Respondent’s contractor—Aramark. This conflict caused some Aramark concession managers to tell Traube to leave the concourse area. Traube admits that he was admonished more than once but less than 10 times. The parties also agree that initially the Respondent’s service at the baseball games was less than satisfactory. Traube submits that part of the reason for the poor service was the vendor’s low commission rate.
B. Events Preceding Traube’s Discharge
Traube testified that the Aramark vendors in Camden Yards, the home field for the Baltimore Orioles, receive a 16-percent commission on sales. At the beginning of the baseball season at RFK the commission was less than 10 percent. Traube testified that he initially discussed the rates with Haskett and McDonald and later with other senior vendors, including the brothers Hahn, Daniel, Perry, and Jay. Haskett and McDonald deny that Traube mentioned his dissatisfaction with the commission rate to them. Sometime around the second week of April, Traube complained to David Cope, the vice president of sales and marketing for the Nationals, and a longtime acquaintance. Cope suggested that Traube talk to Rob Sunday, Aramark’s general manager for operations at RFK Stadium.
Although Traube said that his talk with Sunday happened sometime between “early to mid-May,” he was clearly was mistaken. It is undisputed that the commission rates were changed effective May 1, thus the meeting most likely occurred shortly after he talked with Cope. At the meeting Traube addressed the low commissions as well as other employment concerns of the vendors. Traube opined that if the concerns were addressed it would be less likely that the vendors would vote in a union. Sunday agreed and said that he would discuss the issues with McDonald and get back to Traube.
Consistent with Traube’s testimony, McDonald testified that Sunday called him sometime in mid to late April. McDonald also admitted receiving an e-mail from Sunday, sent on April 28 at 7:55 p.m., stating that he wished to discuss the commission rates, because he had heard rumblings from the guys about the rates (GC Exh. 12). McDonald testified that Sunday told him that “a little bird” told Sunday that “things are unorganized. Clancy’s up at [the] Orioles working, while down here at RFK the beer is warm and, you know, I’m hearing talks of union (Tr. 28).” McDonald acknowledged that when he heard “union” he thought of UNITE HERE and that he believed that the “little bird” was one of the Respondent’s vendors. The new commission rates were effective May 1. Sunday was replaced by Greg Costa around mid-May.
Sunday never got back to Traube and on April 27 Traube
called John Boardman, the executive secretary-treasurer of UNITE HERE Local
25. Traube had been a member of UNITE
HERE since the early 1980’s and was the shop steward at
Also within this time frame, McDonald testified that he was receiving reports from Aramark concession supervisors about Traube. The supervisors complained that after being told to stop selling beer in the concession area and to move along, Traube would respond by saying the “the union’s coming” and that the vendors would soon be “union organized.” (Tr. 37–38, 83, 335, 340.)
Vendor Chudi Ugboaja testified for the Respondent and recounted his observations during a game in June or July. He stated that because it was a very hot day beer was selling well and the vendors were buying and selling two cases at a time. Ugboaja stated that on entering the commissary in room 327 he observed Traube putting ice on a case of Miller Lite. In addition to the case Traube was icing down, Ugboaja noticed another case of Miller Lite in front of Traube. Although the commissary manager and other vendors were in the room, no one responded to Ugboaja’s general inquiry as to who owned the unattended case of Miller Lite. McDonald, who apparently entered the room as Ugboaja made his announcement, saw the unattended case and returned it to the cooler. McDonald’s only verbal response was to tell the manager “there’s a perfect example right there of [not] following procedures. How did it get over there? (Tr. 419.) Ugboaja testified that later that day he thinks that he told McDonald that something was going on for an extra case to be lying there and he and Traube were the only two Miller Lite vendors. (Tr. 328.)
In mid-July, Costa told McDonald that Aramark was allowing
the
Traube testified that sometime in July Linda Floyd, inventory manager for the commissary in room 327, returned to work after a few days absence. Traube was assigned to buy his product from room 327. On seeing Floyd in room 327, Traube remarked to the vendors in the room that “Linda’s back in the room now. You know, this room is going to run on time now. There’s not going to be any fun and games in this room now.” Traube explained that the commissary room is very small and there is no room for vendors to loiter. In that regard he considers Floyd exceptional at keeping the vendors moving in and out of the room. His comment was meant as a joking reminder to vendors that they could no longer dawdle in the commissary room, in essence it was a complement to Floyd’s management of the commissary room.
During the evening of August 4, Traube was walking through
the concourse to the seating bowl area when a patron stopped him and bought two
beers. When he finished the sale he
noticed Aramark Floor Supervisor Donald Washington approaching. Washington, who stands 6 feet 8 inches tall,
is readily visible. Although Traube did
not know him by name, he had complained to Haslett in the past about
Earlier that evening
Before McDonald took Traube’s stadium identification and escorted him out, Traube attempted to tell him what happened. According to Traube, McDonald said that Traube “shouldn’t have been there,” but agreed that Traube was right in defending himself (Tr. 91). McDonald admits that as soon as Traube began his version of the incident by stating that a customer had stopped him for a beer, he “pretty much heard enough” (Tr. 466) and that he “chose not to believe him” (Tr. 53). McDonald’s conclusion that Traube was lying was based on a single incident that occurred 3 weeks earlier at the same location on the concourse. McDonald alleges that unbeknown to Traube he watched him serve several customers and yell “cold beer” for 90 seconds (Tr. 54). When McDonald approached, Traube told him that a fan had initially stopped him. Based on this 90-second observation, McDonald concluded that Traube was lying, but did not confront him.
Traube contends that he never sold beer on the concourse unless first stopped by a customer. McDonald, who exhibited no tenancy towards reticence, admits that he never confronted Traube with his belief that he thought Traube had lied to him on either August 4 or 3 weeks before. (Tr. 57.)
Immediately after being escorted from the stadium, Traube reentered and went to Cope’s office. Although Cope is no longer employed by the Nationals, his testimonial demeanor was that of a truthful witness who was trying to recollect the facts to the best of his ability. Although he has been a professional acquaintance of Traube’s for about 13 years, he appeared to testify without bias. I fully credit his testimony regarding the following discussion between him, McDonald, and Traube.
After Traube told Cope what had happened they went to the scene of the altercation. Cope asked Traube if there were witnesses to the altercation. Traube said “Yes,” but none were when present. They found McDonald and they discussed the altercation. Cope listened as Traube and McDonald discussed Traube’s selling beer on the concourse. Traube reiterated that he was only selling to patrons who had stopped him and that his sales were in the interest of customer service. Traube, who thought that Aramark had discharged him, asked McDonald what he could do to get him reinstated. McDonald mentioned Traube’s membership in an organized group of vendors that wanted to do something about the commissions. Traube asked, “[W]hat has that got to do with?” McDonald responded by using the term “rabble-rousing” in referring to the group and he stated that he did not know how much he could do for someone who was trying to organize people. It is also during this discussion that McDonald told Traube that he was not going to back him. (Tr. 57.) The discussion ended when Cope returned to work. Traube remained in the stadium and located a witness.
Traube claims that McDonald said that Traube was always
making threats about bringing in the
Anthony Coleman was the commissary cashier in room 327 on the evening of August 4. Sometime during that evening, after learning of the altercation, Coleman talked to McDonald. Without providing any context, Coleman told McDonald of a statement Traube had made to him and Linda Floyd, the commissary room manager, a couple of weeks before. According to Coleman, Traube entered the commissary room and told them that all the vendors knew to come to their commissary “to get away with stuff,” because “you guys didn’t know what the hell you were doing.” (Tr. 376.)
McDonald states that he heard this comment from both Floyd and Coleman after the altercation. McDonald contends that this information confirmed his suspicion that Traube was responsible for shortages of cases of Miller Lite in room 327 of the commissary that occurred throughout the season. The sole initial cause for McDonald’s suspicion was what he refers to as “a theft in progress” that Ugboaja testified about, where Ugboaja stated that he saw an unclaimed case of Miller Lite beer near Traube in room 327 of the commissary.
C. The Discharge and Subsequent Events
Notwithstanding McDonald’s belief that Traube’s selling on
the concourse caused the altercation with
Thereafter, Traube called McDonald and asked about the possibility of reinstatement.
McDonald replied that Traube had not been discharged on August 4. McDonald then explained that he was being discharged then because of an inappropriate comment he made to Linda Floyd, and shortages in the commissary room. Traube responded that McDonald’s statement was “an outrageous accusation” and that he was going to fight his discharge. McDonald said “fine.”
On September 1, Traube reported to Ravens Stadium in
Traube reported early to Ravens Stadium on September 11. While Traube was waiting to enter he saw McDonald addressing a group of new hires. McDonald saw Traube, pointed his finger at him, and asked him to come. When Traube got near McDonald he said “Yes.” McDonald said, “You don’t work here anymore.” Traube asked, “[W]hat do you mean?” McDonald replied, “I’m not going to have you stirring up union trouble in this stadium, as well. I’ll see you at the hearing.” Traube said “fine” and walked away. McDonald denies saying “I’m not going to have you stirring up union trouble in this stadium, as well.”
iii. discussion
A. The 8(a)(1) Allegations
The General Counsel alleges that McDonald made two unlawful
statements to Traube. The first occurred
during the evening of August 4 when Cope, Traube, and McDonald were discussing
the possibility of Traube’s reinstatement.
Traube claims that McDonald stated that Traube was always threatening
about bringing in the
Cope, whose testimony I credit over Traube and McDonald, testified that the “union” was never mentioned. Cope also testified as to McDonald’s response to Traube’s asking him for help in getting reinstated. McDonald noted that Traube was part of an organized group of vendors that were trying to do something about the commissions. When Traube asked “what has that got to do with,” McDonald responded by using the term “rabble-rousing” in reference to the group, and stated that he did not know how much he could do for someone who was trying to organize people.
Under Section 8(a)(1), an employer may not “interfere
with, restrain, or coerce employees” in the exercise of their Section 7
rights. “The test is whether the
employer engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under the Act.” “In determining whether an employer’s
statement violates Section 8(a)(1), the Board considers the totality of the
relevant circumstances.” Ellison Media Co., 344 NLRB No. 136,
slip op. at 2 (2005) (citations omitted).
In considering communications from an employer to employees, the Board
applies the “objective standard of whether the remark tends to interfere with
the free exercise of employee rights.
The Board does not consider either the motivation behind the remark or
its actual effect. Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). Further “an employer violates Section 8(a)(1)
of the Act if its conduct may reasonably be said to have a tendency to
interfere with the free exercise of employee rights.” Frontier
Hotel & Casino, 323 NLRB 815, 816 (1997). The Board has long recognized that terms such
as “rabble-rouser,” “agitator,” and “troublemaker,” are normally applied by
employers to individuals who are attempting to instigate other employees into
engaging in concerted or union activities, particularly when there is no alternative
explanation forthcoming. See James Julian Inc. of
The implication of McDonald’s statement—that he did not know how much he could do to have someone reinstated who was a member of an organized group of rabble-rousing vendors—in the context of Traube’s request for help in getting reinstated, made a direct connection between Traube’s concerted activities and the possibility of his continued employment. Thus, considering the totality of the circumstances, I find that McDonald’s statement was an implied threat not to reinstate Traube because of his protected concerted activity. Accordingly, the statement violated Section 8(a)(1) of the Act because it has a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.
The General Counsel contends that the second violation of Section 8(a)(1) occurred when McDonald told Traube that he could not work at Ravens Stadium because McDonald was not going to have him stirring up union trouble in this stadium. The Respondent does not argue that the statement, if made, violates Section 8(a)(1), but argues that the issue is one of credibility.
I was not impressed by McDonald’s testimony regarding this and other disputed issues. I found McDonald to be of poor demeanor. Additionally, as detailed herein, his testimony contains numerous self-contradictions and inconsistencies. I find McDonald’s creditability unreliable. Traube had a far more credible demeanor and his testimony appeared to be honest and sincere. He also appeared to be an emotional and passionate individual who took great pride in his ability, and his standing, as a vendor. The record also establishes that he is articulate, talkative, not averse to confrontation, and tenacious. He told McDonald that he is fully committed to fighting his discharge, and to that end he has retained an attorney.
The Respondent apparently suspended Traube on August 4. I use “apparently” because Traube was told nothing regarding his status until August 9. On that date the Respondent, acting through its co-owner, McDonald, told Traube by telephone that he was discharged. The Respondent’s contrary contention, notwithstanding, Traube was rehired by the Respondent’s other co-owner, Haskett, on September 1, only to once again be discharged by McDonald on September 11.
Based on the foregoing, it is difficult to accept McDonald’s testimony that after he approached Traube and said, “Fred Traube, you’re not working,” Traube merely responded, “Okay, so I’m fired from here, too,” and walked away. I find it far more likely that, as Traube testified, he asked McDonald for an explanation, rather than merely repeating the obvious. Such inquiry would be especially appropriate in light of Traube’s recent rehire and having worked a game without incident.
The Respondent appears to argue that Traube should not be credited because he identified vendor Phil Lang as being nearby when this incident occurred. The Respondent contends that based on Lang’s seniority number he would have already been in the stadium, and in any case, he was not called to corroborate Traube’s testimony. Traube testified that McDonald had been addressing a group of new vendors before he summoned Traube. On cross-examination, Traube was asked if he recognized any of the vendors. He said he only recognized Phillip Lang. He further testified that Lang was on the periphery of the group of new vendors. Traube volunteered that Lang must have been late, because with his high seniority number he should have been inside the stadium.
McDonald said that he did not remember Lang being present. Haskett, who was present when McDonald and Traube testified, said that he did not believe that Lang was present during the exchange between McDonald and Traube. Haskett based his belief on record evidence that indicates that Lang worked out of vending room 103, “the number one vending room for sales.” According to Haskett, Lang would not have been able to “get a cart” for that room had he been late, presumably because other vendors would have chosen that room before Lang arrived.
Haskett’s testimony notwithstanding, I am not convinced that Lang, perhaps knowing that he was going to be late, did not make other arrangements. Regardless, no motive has been advanced as to what Traube would gain by giving a false response to the Respondent’s question. Respondent implies that Lang would not support Traube’s testimony and hence that is why he was not called as a witness. Traube never stated, or inferred, that Lang or anyone else heard the exchange between himself and McDonald. “Nearby” does not connote a specific distance and, without more, does not support a conclusion that the people “nearby” overheard the conversation. Thus, there is no evidence of what, if anything, was heard by Lang or the new vendors.
Based on the foregoing, I credit Traube’s testimony, and I find that the Respondent violated Section 8(a)(1) of the Act when it told Traube that he was not allowed to engage in union and/or concerted protected activities at work. Teledyne Advanced Materials, 332 NLRB 539, 539 (2000).
B. The 8(a)(3) Allegation
The analytical framework for determining when a discharge
violates the Act was set out in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied
455 U.S. 989 (1982). Under Wright Line, the General Counsel must
first prove, by a preponderance of the evidence, that the discharge was
motivated by the employee’s protected concerted activity. To carry the initial burden, the General
Counsel must show that the employee had engaged in protected activity and that
the respondent knew of the activity. The
General Counsel also must establish that the activity was a substantial or
motivating reason for the employer’s action.
Motive may be demonstrated by circumstantial evidence. Thus, the pretextual nature of the discharge
may support an inference of discriminatory motivation. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966); Active Transportation, 296 NLRB 431, 432
(1989), enfd. mem. 924 F.2d 1057 (6th Cir. 1991); and Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799
(6th Cir. 1982). If the General Counsel
meets this burden, the employer then bears the burden of showing that the
discharge would have taken place even in the absence of the protected
conduct. Wright Line, supra at 1089.
See also Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996).
Regarding the first element of the General Counsel’s Wright Line burden, establishing that Traube engaged in protected concerted activity, I credit the testimony of John Boardman, the executive secretary-treasurer of UNITE HERE Local 25. Boardman testified that Traube played a significant role in the union organizing campaign and was a “lead worker.” I also credit Traube’s testimony that in that capacity he talked with the Hahn brothers as well as other vendors about improving the working conditions at RFK. His testimony is consistent with the documentary evidence. On May 5, Traube sent an e-mail to employee, and vendor, Danny Hahn, rejecting a bonus plan proposed by the Respondent. Traube, who was out of the country, also urged Hahn to contact Boardman to ascertain the status of the organizing campaign (GC Exh. 6).
The General Counsel established the Respondent’s general knowledge of union activity from McDonald’s July 22 announcement that there would be a union meeting the following the day. Specific knowledge of Traube’s involvement is evidenced by Haskett’s admission that Traube, who he refers to as a friend and an employee, spoke with him about bringing in a union for vendors at RFK at the start of the 2005 Nationals baseball season. McDonald also admits knowing that Traube was openly predicting that the vendors would unionized.
McDonald’s unlawful statements, above, provide knowledge of Traube’s protected activity, as well as establishing the requisite element of animus. Additional evidence of animus can be inferred from the baseless and pretextual reasons offered by the Respondent as justification for Traube’s discharge.
1. Concourse sales and the altercation
McDonald initially testified that when he entered the Aramark office, the Aramark Representative informed him that there had been an altercation between an Aramark concession supervisor and a vendor, but that he was unaware of the details. When McDonald saw that Traube was the vendor, he thought of the previous complaints the Respondent had received from Aramark supervisors during April–July, and the first few days of August, about Traube selling beer on the concourse. McDonald, cryptically told the Aramark Representative that “he’s been warned.” The representative opined that as far as he was concerned Traube was out of there. McDonald said he had “no problem with that” and proceeded to take Traube’s identification badge, reconcile his accounts, and escort him from the stadium.
McDonald never told Traube the status of his employment during the evening of August 4. McDonald offers no explanation for not telling Traube, especially when he testified that he was contemplating a suspension, at the minimum, from the outset. McDonald made no inquiry of anyone regarding the altercation, or the circumstances preceding it. According to McDonald such inquiries were unnecessary. McDonald was convinced, based on the prior reports of Traube selling on the concourse, and his own 90-second observation of Traube selling in the same approximate area, that he knew what happened. His entire assumption was predicated on Traube’s selling on the concourse in violation of the Respondent’s written rule that “Vendors must sell in the seating bowl at all times except during rain delay.” (R. Exh. 2, at 7.) His stated belief is inconsistent with his testimony, and his actions.
McDonald admits, its rule notwithstanding, that in the interest of customer service, vendors should comply with a patron’s request to buy beer. Moreover, McDonald concedes that even on the concourse a vendor should serve all patrons who surround him as he serves the initial customer. (Tr. 536.) In spite of the foregoing admission, McDonald took no action to ascertain if Traube’s version of the incident was true. The fact that Traube may have previously violated the rule is irrelevant to the question of whether, on that specific occasion, a customer asked Traube for service. Other than contending that his disbelief was based on his judgment, McDonald offered no explanation as to why he found that scenario to be so completely beyond the realm of possibility.
McDonald also states that he condoned neither Traube’s selling on the concourse, nor his responses when asked to move. Yet his testimony, as well as that of other Respondent witnesses, demonstrates that condonation is exactly what he did. McDonald told every Aramark supervisor who complained about Traube that “he would take care of it.” Yet he took no action other than repeatedly telling Traube not to sell on the concourse. Furthermore, in contradiction of his own testimony McDonald admits to condoning Traube actions because they were friends, and Traube was an experienced, high volume, vendor.
A copy of the Respondent’s handbook for vendors at RFK is part of the record. (R. Exh. 1.) McDonald testified that he read and was familiar with the handbook, which was prepared by Haskett. McDonald stated that the rules (R. Exh. 2), which he drafted, are consistent with the handbook. Under “Vendor Policies and Procedures” in the handbook is “No selling on the concourse at any time.” At the bottom of the page is: “Violation of company policy will result in disciplinary actions. (Verbal warning, one game suspension and or termination.).”
It is undisputed that the Respondent verbally modified this “absolute rule” with its “customer service exception,” which permits sales on the concourse pursuant to a request from a customer, and any additional customers who thereafter assemble around the vendor. The exception was admitted by McDonald (Tr. 534–536), and not disputed by Haskett, who along with McDonald, was present during the entire hearing. Accordingly, I find that when McDonald and Haskett said “selling on the concourse” they are referring to “setting up” and “hawking” beer on the concourse. Conduct that Traube denies. I also find that the Aramark employees who testified were unaware of any such exception. As such, I find that they complained to McDonald even when Traube was engaged in a customer service sale as well as possibly “setting up” for sales. In that regard, I find the record unclear as to whether any of them saw Traube doing anything other than selling beer. Only one witness mentioned that “he had drawn a crowd around himself to sell” (Tr. 338), which indicates that he was actively encouraging customers to buy beer from him.
The Respondent did not follow its own published disciplinary
procedure with regard to Traube’s selling on the concourse, which it now
advances as a reason for his discharge.
The Respondent never suspended Traube for selling on the concourse. Thus, to the extent that Traube’s discharge
is predicated on his selling on the concourse it is “inconsistent with its
progressive discipline.” Tubular Corp. of
McDonald refers to Traube’s selling on the concourse for
over a 4-month period as “chronic.” His diagnosis notwithstanding, McDonald
avers that he did not terminate Traube for selling on the concourse because he
thought he would stop. (Tr. 462.) The Respondent could not reasonably anticipate
that Traube, of his own volition, would change behavior. The Respondent had a procedure in place that
could achieve its dual objectives of enforcing its rule, and retaining an
experienced and valued employee. When an
employer, as here, deviates from that system—without announcement or
explanation—its conduct may properly be relied on to infer union animus and as
evidence of pretext. Tubular Corp., above; Norris/O’Bannon, 307 NLRB 1236
(1992). I am mindful that Board law does
not permit an administrative law judge to substitute his judgment with regard
to the discipline imposed for that of the employer. Super
Tire Stores, 236 NLRB 877 fn. 1 (1978).
Nevertheless, when, as here, it is alleged that the reason assigned for
the discipline is pretextual, attention must necessarily turn to the reaction
of the employer. American Petrofina Co. of
The Respondent’s reliance, or lack thereof, on the physical altercation as a reason for Traube’s discharge is obscure. When McDonald was initially asked by counsel for the General Counsel for the specific reason for Traube’s discharge the physical altercation was not included in his response. After noting that testimony, given only minutes before, counsel for the Charging Party concluded that the altercation played no part in the discharge. McDonald responded, “Sure it did.” Yet when testifying at a later point in the hearing he again fails to mention the altercation as reason for discharge. (Tr. 416.) McDonald offered no explanation for this apparent inconsistency in his testimony. Nor did McDonald apparently feel any need to explain or acknowledge, the inconsistencies—some significant, some not—that abound in his testimony.
It is also during this phase in the questioning that McDonald inadvertently acknowledges that he knew that Traube was selling on the concourse. As background, the following is McDonald’s reason for believing that Traube was a liar and thus could never be believed.
Counsel for the Charging Party, in essence, has just asked McDonald why he never verified the basis for his nonbelief:
Because the day that I caught him, probably about three weeks earlier than that, when I actually made an effort to walk outside of the stadium and stand outside the door where I knew that he was selling—where I knew that he would probably be selling, and I stood and saw him out there for 90 seconds. Then he told me a lie, that a fan stopped him, and I saw him right there serving several customers and yelling cold beer, cold beer. [Tr. 54.]
His Freudian slip acknowledging that he knew not only that Traube was selling on the concourse but where, reinforces my previous finding of the Respondent’s long standing condonation of Traube’s activity conduct.
McDonald admits that as soon as Traube started his version of the altercation by stating that a fan stopped him on the concourse, McDonald “made a judgment” to not believe anything Traube said, based on his 90-second observation set forth above. McDonald also admits that he never confronted Traube, at any time, about his concern that Traube had lied to him on both occasions. In fact, at no time did McDonald ever confront Traube with his belief that Traube lied to him, let alone tell Traube that he no longer had any credibility with him. McDonald claims that the closest he came to telling Traube that he did not believe him was when he told Traube that he “wasn’t going to back him.” “That’s the closest I came to telling him that I did not believe his story.” (Tr. 57.) Which is not close at all to specifically confronting him with his disbelieve and the specific reason therefore. Moreover, when asked the exact same question by the Respondent’s counsel the following day, McDonald avers that he told Traube that he did not believe him. (Tr. 465.)
McDonald attempts to couple “selling on the concourse”
with “the reported remarks that he (Traube) made after being asked to move”
along and concludes that as result “it culminated in a fight.” The first problem with this testimony has
previously been addressed—that Traube told him that he was making a customer
sale and that McDonald had no facts to the contrary. Similarly, McDonald admittedly had absolutely
no knowledge of any remarks reported or otherwise from
The time for assessing responsibility for the altercation has long passed. The adversaries, not surprisingly, each testified and cast blame on the other for initiating the conflict, each deny using racial epithets, but averred being the recipient of same. Unlike the “real time” incident, there were no third party witnesses. Regardless, McDonald found no need to resolve the conflict, and neither do I.
It is striking, however, that McDonald not only disbelieved
Traube’s version, but assumed a completely opposite view, without any attempt
at verification of his assumed belief.
This conduct is even more disturbing considering the physical disparity
between Washington and Traube.
McDonald also testified that this was the first physical altercation between a vendor and a concession manger during his 30 years of experience. With that testimony in mind I have considered the record in light of the possibility that the Respondent was applying a draconian rule requiring discharge for all physical altercations regardless of fault, somewhat akin to strict liability in tort. I found nothing in the handbook concerning altercations and the record contains no testimony regarding past physical altercations. Nor has the Respondent advanced that contention in its brief. It also seems probable that had the Respondent applied such a rule, it would have specifically told Traube that was the sole reason for his discharge, rather than an “inappropriate comment” made to a commissary manager, and shortages in a commissary room.
Based on the foregoing I conclude find that the Respondent has no absolute rule requiring discharge for engaging in physical altercations regardless of fault, nor did it discharge Traube pursuant to such a rule.
In Diamond Electric Mfg. Corp., 346 NLRB No. 83, slip op. at 4 (2006), the Board stated:
“[F]ailure to conduct a meaningful investigation or to give the employee who is the subject of the investigation an opportunity to explain” may, under appropriate circumstances, constitute an indicia of discriminatory intent [citation omitted.] The Board has considered this factor in several recent cases to find discharges unlawful where employees were denied the opportunity to provide a potentially exculpatory explanation prior to being discharged. [footnote omitted.]
Not only did the Respondent fail to conduct an investigation it did not avail itself of the Aramark investigation, nor did it attempt to obtain the police report. Traube located a witness and there were obviously others, most of whom would probably be neutral third parties. If McDonald was truly convinced of his assumption, what better way to have it affirmed than with the statements of disinterested eyewitnesses. McDonald’s actions bring to mind the old saw “my mind is made up, don’t confuse me with the facts.”
Based on the foregoing, I find that the Respondent’s failure to conduct any investigation is an indicia of discriminatory intent. I also find that it’s failure to investigate under the above circumstances is evidence that the Respondent’s alleged “belief,” which it used in lieu of an investigation, is not a reasonably held good-faith belief but is, instead, strong evidence of pretext.
In any case the suspension of Traube on the evening of August
4 generated memory bubbles in the minds Anthony Coleman, and subsequently
McDonald, that can only be described as serendipitous.
2. Coleman’s testimony
Coleman is the cashier for the commissary in room 327, and Linda Floyd is the commissary inventory manager. The commissary in room 327 is also where Traube was assigned to buy his beer. Coleman and Floyd were working in room 327 the night of the altercation. Coleman remembers that the incident occurred before they were assigned to work out of the commissary in room 501. Here is how he describes his revelation on direct examination:
Actually I think that’s the night when I told him, that night, that it was either that night or the next night. I think it was that night, you know, once I found out about it, I said let me tell you what this guy [Traube] said to me and Linda, you know, and that happened a couple of weeks beforehand. I felt kind of dumb. I didn’t want to tell him but once that happened, I was like, look, he’s been doing this for four or five years. He’s not a new kid on the block. He knows not to sell out on the concourse but if he wanted to be arrogant about that, and he was arrogant when he came in to even to look at, you know.
[He continues with McDonald’s response.]
Dave’s response was like, from what I recall was okay, I’ll handle it. That’s what—I don’t remember him being upset about it or not being upset, he was like, okay, thank you for telling me. [Tr. 378.]
Coleman claims that Traube’s statement was made within 5 or 6 weeks after he began working for the Respondent in late April. That would place the incident around mid-June, at the latest. This would be at least 2 weeks before July, when Traube remembers making a jocular comment about Floyd running a tight ship.
The following is Coleman’s description to McDonald of either Traube’s jocular comment that was made in July, or of an entirely different incident which happened at least 2 weeks earlier:
Well, Fred had come in there, he was totally brazen about it, and had told me and Linda, I mean I was new doing this, and she was new, too, and he came down to the room and said, you know, this was the room to come down to. All the vendors knew it, he said you guys don’t know what the hell you’re doing. So, you know, we could get away with stuff down here, you know, and there were many nights when Linda and I would sit there until 12:00, 1:30 in the morning, you know, trying to find a case of beer, two cases of beer that are missing, you know. She’s looking after me, I’m trying to after her happen [sic]. How does this happen every night. He [Traube] came down and he was brazen about it. I mean he just sat right there and looked at me and it was like this is the room that you came down to because you guys didn’t know what the hell you were doing, so we came down here to try to get it, you know. [Tr. 376.]
McDonald confirms that he first heard about Traube’s alleged comment from Coleman on the evening of August 4. What follows is his explanation of how it happened:
When, you know, of course, something like that happens, it’s a rarity, so people start talking. So it was like oh, yeah, you heard what he said to Linda, right? And I said no. And then Linda told me the remark that he made, which was something to the effect of, you know, yeah, we miss the old Linda. You know, we can’t get you anymore. The early part of the season, you know, it was like yeah, go to Linda. He [Traube] said now we can’t get you anymore. [Tr. 44–45.]
Later, after hearing Coleman’s testimony, McDonald acknowledges that it was Coleman from whom he first heard the story. He explains why he found the story believable:
I believed [the story] because I had actually been—I counsel the managers and the cashiers if they have losses and basically go over the procedure and the controls on how that will not happen again. And by that time, the season, by August—Linda was catching on and had pretty much got it, so that comment was true, that the beginning of the season she was getting beat and it kind of leveled off toward the end, so I thought there’d be an accurate comment, an inappropriate comment and a comment that just kind of further fueled my suspicions of Fred Traube being involved in this theft. [Tr. 478.]
I do not believe either McDonald’s or Coleman’s testimony regarding their conversation and Floyd, for some unexplained reason, did not testify. (Tr. 419.) If Coleman was referring to the incident that Traube testified about, on some unknown date in July, then Coleman’s testimony is a total distortion. If Coleman is testifying about another incident, it is a complete fabrication. To be clear, Coleman swears that Traube and other vendors were stealing from the commissary located in room 327. On cross-examination, counsel for the General Counsel established that Coleman did not know what “stuff” Traube was allegedly saying the vendors could get away with. The inference being that “stuff” could mean staying longer than necessary in the commissary room. When the counsel for the General Counsel intimated that Coleman merely arrived at his own conclusion, Coleman, becoming visibly upset, replied, “No, no, no. I’ll tell you exactly . . . what he—and there was really no inference, like the word was, this is the room to come down here to because you guys don’t know what you’re doing and we can get away with stuff down here with you.” (Tr. 381.)
Coleman was a singularly unimpressive witness. In addition to his poor demeanor he admits exaggerating his testimony, and having a bias against Traube, who he considered brazen and arrogant. He testified that he and Linda stood beside each other and worked together for the entire season, sometimes under stressful circumstances—yet he did not know her last name. His testimony was inconsistent with other credited testimony and documentary evidence. He was an unusually enthusiastic witness, at least when testifying for the Respondent. He appeared to enjoy testifying against Traube, and in support of the Respondent’s cause. While testifying on direct examination, I observed him making furtive glances toward McDonald, in almost a fawning manner, as if seeking McDonald’s approval.
Coleman claims not to know when Traube made the statement which he conveyed to McDonald. He does recall that he was new and had only been working as a cashier for 5 or 6 weeks. If that is correct, the incident Coleman relates happened in mid-June, not July which is when Traube remembers making his comment. It would also detract from McDonald’s rationale for believing that the statement was true because the shortages “kind of leveled off toward the end” of the season. Regarding McDonald’s contention “kind of leveled off” is ambiguous. It does not necessarily mean that the shortages were substantially less than in the beginning of the season. At most it indicates that the amount that the Respondent was “getting beat” had not changed for a period of time. The Respondent apparently maintained sales records that should have substantiated McDonald’s claim, but those were never offered into evidence. In either case, and of even more importance, Coleman waited somewhere between over a month and a half (according to Coleman’s estimate from mid-June to August 4) or at least a week, (according to Traube’s more specific testimony that he made his comment sometime in July) before telling McDonald. And even then Coleman claims that it was the incident involving Traube on August 4 that, incredibly, somehow triggered Coleman to tell McDonald what was tantamount to a confession by Traube.
Traube clearly had a passion for being a vendor, especially at baseball games. His demeanor when testifying about his job makes it difficult to believe that he would risk losing something that gave him great pleasure, in exchange for however much he could get for selling stolen cases of Miller Lite (McDonald claims the total lost was $1800). That being said, I find it even more unbelievable that having successfully “beaten” rookie commissary employees Floyd and Coleman, for over half the season, he somehow feels compelled, to not only brag to them about this accomplishment, but to also implicate his fellow vendors. Coleman’s statement that “all vendors” were virtually lining up at in room 327 of the commissary to “get away with stuff” is inconsistent with Traube’s uncontested testimony that vendors are assigned commissary rooms (Tr. 71). This prohibition is also contained in the Respondent’s handbook, in bold print under “Vendor Policies and Procedures.” (R. Exh. 1.)
Coleman did not hesitate to place blame on Traube even when Coleman admittedly was not present when the alleged incident occurred, and the alleged statement was inconsistent with all the other evidence of record. Coleman claims that “Linda,” who did not testify, told him that Traube went to commissary room 501 and commented “like, oh you’re up here now. Let me go to where you are.” (Tr. 379.) Coleman placed the time frame for this comment as after he and Linda moved to the commissary in room 501. That move occurred after August 4, which was the last day Traube worked in RFK, and thus would have absolutely no reason to try and “beat” Linda, or to remind her that he had done so.
The testimony as well as the employee handbook establishes that the employees who are primarily responsible for all cash and inventory shortages in any commissary room are the cashier and inventory manager. In the commissary in room 327, those positions were occupied by Coleman and Floyd, respectively. Certainly, under the circumstances, this fact alone provides ample motive for Coleman’s mendacious testimony.
It is possible that Coleman fabricated his baseless scenario without prior consultation with McDonald. Possible but not plausible. Certainly it is evident that McDonald was again a willing listener for any evil doing attributed to Traube. When viewed in conjunction with McDonald’s previous conduct, his statements prior to and on the evening of August 4, his conduct following Coleman’s tale, and Traube’s discharge, I am convinced that Coleman’s story was fabricated in collaboration with McDonald.
I also have a jaundiced view of McDonald’s testimony and conduct regarding the information he so readily accepted from Coleman. Just as I discredit Coleman’s statement as to why he approached McDonald on the evening of August 4, I do not completely accept McDonald’s reasoning that “people talk” after an incident such as the altercation. I agree that “people talk,” but I see no connection between selling on the concourse and the altercation, with Coleman finally informing McDonald what he alleges Traube said to him and Floyd. I also observe that the incident did not have the same impact on Floyd. The record does not establish that she somehow felt the need to talk with Coleman or McDonald about Traube. Ugboaja was absent on the August 4, but even after he learned of the incident 2 days later, he did not remind McDonald of the “theft in progress” that McDonald believes he interrupted. Indeed, McDonald indicates that it was not until Coleman provided him with the final piece of the puzzle—Traube’s admission—that he was able to connect the dots and confirm his suspicion.
I find even stronger evidence of collusion in what McDonald failed to say and do. McDonald offered no evidence that he asked even one followup question after initially asking Coleman, and then Floyd, to tell him what Traube was alleged to have said. He did not ask why vendors were “beating” him in a commissary room to which they were not assigned. He did not ask the names of those vendors. He did not ask when Traube made the statement. He did not ask why they thought Traube would make such an admission. He did not ask the most important and most obvious question—why Coleman waited to report Traube’s admission and why Floyd never felt that it was necessary to make a report at all.
To accept that there was no collusion is to believe that McDonald accepted, on face value, the statements of the prime suspects—without question or hesitation—and that I am unwilling to do. Once again McDonald “finds” confirmation of his preconceived notions.
3. Ugboaja’s testimony
Another of McDonald’s beliefs is that he interrupted a theft in progress. This perception is based on Ugboaja’s testimony. Ugboaja is an experienced, high volume vendor, who sells Miller Lite, and works out of the commissary in room 327. He and Traube testified that they sell Miller Lite because of it’s popularity. They are competitors, in what appears to be a highly competitive job.
I find Ugboaja’s concern about the case of Miller Lite near Traube puzzling. Ugboaja testified that it was a hot day and beer was selling well. He was buying and selling two cases at a time, as the Respondent encourages vendors to do. (R. Exh. 2.) As Ugboaja entered the commissary in room 327 to buy more Miller Lite, he noticed Traube icing down a case of Miller Lite. This was not unusual because Traube and Ugboaja both sold Miller Lite. Ugboaja also noticed another case of Miller Lite in proximity to Traube. A reasonable assumption would be that Traube was going to ice the second case after he finished