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,
Mid-States Express, Inc. and International Brotherhood of Teamsters, Local Union No. 20 and Freight Drivers, Dockworkers and
Helpers Local Union No. 24, a/w International Brotherhood of Teamsters. Cases 8–CA–37168
and 8–CA–37302
February 12, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On September 19, 2008, Administrative Law Judge George Alemán issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] 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,
Mid-States Express, Inc.,
Dated,
Wilma B. Liebman,
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Karen Neilsen, Esq., for the General Counsel.
Tim Marszalkowski, Regional Manager, for the Respondent.
Norm Lewallen, for the Charging Party.
DECISION
Statement of the Case
George Alemán,
Administrative Law Judge. This case was
tried in Cleveland and Toledo, Ohio, respectively, on March 26–27, and April 21–23,
2008, following issuance of a consolidated complaint by the Regional Director
for Region 8 of the National Labor Relations Board (the Board), alleging that
Mid-States Express, Inc. (the Respondent), had violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).1
Specifically, the complaint alleges that
the Respondent, through various managers and supervisors at its Toledo and Cleveland
(the Richfield facility), Ohio facilities engaged in certain unlawful conduct
that violated Section 8(a)(1), including threatening to close its facilities
and put employees out of work if they voted for union representation,
threatening to discharge employees for their union activities, interrogating employees
about their union activities, creating an impression of surveillance of its
employees’ union activities, soliciting and promising to remedy their
grievances, and promising improved benefits, in order to dissuade them from
engaging in union activity; and calling the police on employees engaged in
lawful handbilling activity. The
Respondent is also alleged to have violated Section 8(a)(3) and (1) by
unlawfully discharging at its Richfield facility employees Shawn Confere,
Justin Rea, and David Goodsell, and at its Toledo facility employees Jason Ulch
(J. Ulch), Merle Ulch (M. Ulch), and Steven Wilson.2
All parties at
the hearing were afforded a full and fair opportunity to be heard, to present oral
and written evidence, to examine and cross-examine witnesses, and to argue
orally on the record.
On the entire record, including my observation
of the demeanor of the witnesses, and after considering the briefs filed by counsel
for the General Counsel and the Respondent, I make the following3
Findings of Fact
i. jurisdiction
The Respondent, an
ii. alleged unfair labor practices
Factual Background
The Respondent is a family-owned
business. Terry Hartmann serves as its president
and chairman, and his son, Brad Hartmann (B. Hartmann), as its chief operating officer.6
Tim Marszalkowski has, since April 23, 2007, served as Respondent’s regional
manager, with responsibility over six facilities, including the
The record reflects
that in early 2007, several of Respondent’s facilities experienced
organizational drives by various local unions seeking to represent employees at
those facilities. At Respondent’s
Lasalle, Illinois facility, for example, Teamsters Local 722 filed a petition
for a representation election on January 18, which led to an election being
held on February 21, and to its certification on March 1, as exclusive bargaining
representative for employees in that facility.8 Local 24 engaged in similar efforts at the
Richfield facility and, to this end, filed a representation petition on March
1, 2007, seeking to represent “all line haul drivers, P&D drivers, and
dockworkers” at that facility. (See GC
Exh.-2.) The day before filing its
petition, Local 24, by letter dated February 27, notified Marszalkowski that a
majority of employees at the Richfield facility had asked it to represent them,
and requested he contact the Union to negotiate a bargaining agreement. (GC
Exh.-3.) An election among unit
employees at the
The complaint
alleges that during the course of these ongoing organizing campaigns, the
Respondent, through Marszalkowski and other supervisory or managerial
personnel, directed certain coercive and unlawful conduct towards employees at
the
1. The
a. The alleged 8(a)(1) conduct
(1) Statements attributed to Marszalkowski
Paragraphs 6,
7, 9, and 10 of the complaint allege that sometime in February, Marszalkowski
threatened employees at the
Shawn Confere
was employed as a dockworker at the
Confere also
recalled Marszalkowski, at some of these meetings, discussing the organizing
efforts at the Lasalle facility, and telling employees at these meetings that
employees at that facility would receive a dollar raise if the
City driver
Justin Rea worked at the
Like Confere,
Rea testified that, occasionally, when not on the road, he attended weekly
meetings conducted by Marszalkowski and, sometimes, Stamp, among drivers and
dockworkers. The meetings generally involved
job-related issues, such as problems drivers may be having with customers, or
anything that might be going that employees should know about, which included
health insurance problems employees might be having. Rea, however, recalled these meetings being
held on Thursdays. Unlike Confere, Rea
denied hearing Marszalkowski make the union-related comments attributed to him
by Confere. He admitted, however, that
there were times he did not attend the meetings because he would already be out
on the road. Thus, it may very well be
that the comments attributed by Confere to Marszalkowski about the facility
closing down if the
Employee Curtis Harmon, a
I credit
Confere’s testimony and find that at some weekly meetings in mid-February held
by Marszalkowski at the Richfield facility, Marszalkowski told employees about
Local 20’s organizing efforts at the LaSalle facility, and mentioned that
employees at that facility would be given raises if the Union was not voted in,
and added that the Richfield facility would be closed if Local 24 were voted
in. Marszalkowski, as noted, never took
the stand to deny Confere’s remarks. The
only evidence produced by the Respondent to counter Confere’s account were the
purported assertions by Harmon and Greenleaf that they never heard Marszalkowski
make such comments during meetings they attended. Harmon, however, apparently did not attend
all such meetings, for he testified that he attended some meetings. Thus, it is
quite likely that Harmon, like Rea, may not have been present at the meetings
during which Marszalkowski made the remarks attributed to him by Confere.
Harmon’s
testimony was, in any event, too general and vague to be reliable. Thus, unlike Confere, who described the
purpose of, and what may have been discussed at, these meetings, including the
showing of antiunion videos, Harmon’s testimony regarding these meetings was
his apparent recollection that “the only thing that was said . . . was that you’re
not allowed to say anything to sway one way or the other.” He offered no explanation as to who may have
said this, or what, if any other matters, may have been discussed. I doubt seriously the Respondent would have
convened employee meetings simply to make the statement Harmon claims was made
at the meetings he attended. Harmon’s
testimony in this regard is, therefore, rejected as not credible.
Greenleaf’s
testimony is similarly unreliable. Although
he claims not to have been absent from work during the period in question, and
to have been present at drivers meetings that were held at the facility, it is
unclear if he attended each and every weekly meeting conducted during that
period. I note in this regard that Rea
and Harmon, both of whom, like Greenleaf, were drivers at the Richfield
facility, often missed these weekly meetings, Rea attributing it to his being
on the road when the meetings were held.
I am inclined to believe that Greenleaf, also a driver, may arguably
have had occasion to be on the road and possibly missed some of the weekly meetings. Overall, Greenleaf’s testimony was not very
convincing and, from a demeanor standpoint, was not particularly credible.
Confere also
testified that sometime in mid-February, Marszalkowski questioned him about his
union sympathies. According to Confere’s
undisputed account, on that occasion, he and Marszalkowski were talking in the
latter’s office, the subject of which meeting was not made clear by Confere in
his recitation of these facts, when, “out of the blue,” Marszalkowski asked him
what he thought about the Union. Confere
replied that he had never really given it much thought. Marszalkowski then asked Confere if he would
vote for the
Discussion
The credited
and undisputed evidence of record, as found above, reveals that, on various
occasions during employee meetings at the Richfield facility, Marszalkowski
informed employees that the Respondent’s owners would close the facility if
they voted to bring in a union, and that the closure could result in a loss of
jobs. The Board has long found that an employer’s
threats of plant closure and loss of jobs in response to employee efforts to
unionize, like those made here by Marszalkowski, naturally tend to have a coercive
effect on employees’ exercise of their statutorily protected right to decide
freely whether to become represented. Valerie Manor, Inc., 351 NLRB 1306, 1321
(2007); Evergreen America Corp., 348
NLRB 178 (2006); Mid-South Drywall Co.,
339 NLRB 480, 481 (2003); Mohawk Industries,
334 NLRB 1170, 1176 (2001);
In addition to
unlawfully threatening employees with plant closure and loss of jobs,
Marszalkowski also told employees at the
As found above,
in mid-February, Marszalkowski questioned Confere on how he felt about the
(2) Statements by Adkins
Paragraph 8 of the complaint alleges that
sometime in mid-February, Adkins unlawfully created an impression among
employees that their union activities were being kept under surveillance, and
threatened them with unspecified reprisals because of their union activities,
and, in paragraph 11, that, on or around March 1, he threatened employees that
the facility would be shut down if the union were voted in.
David Goodsell was a city driver at the
Goodsell testified that in mid-February,
as he was taking a break inside a trailer in the dock area of the facility,
Adkins entered the trailer and asked to speak with him. When Goodsell asked what he wanted to
discuss, Adkins mentioned that he had overheard or been part of a conversation
involving Marszalkowski where mention was made of rumors going around the
facility that he (Goodsell), Thorsky, Confere, and Rea were trying to get the Union
in. Goodsell claims he simply looked at
Adkins and replied, “Well, you know how rumors float around this place.” Adkins responded, “Okay,” and then cautioned
Goodsell to watch himself and to be careful. (Tr. 350.)
Goodsell also recalled having another
conversation with Adkins, this one towards the end of February, in the main
office, as he was looking over the outbound bills for the night loads. According to Goodsell, Adkins appeared to be
in a “foul mood” at the time, so he went over and asked Adkins why he seemed
upset. Adkins, he contends, answered, “You
know why I’m upset.” When Goodsell asked
if it had anything to do with the letter Respondent had just received from the
Rea also
testified to some union-related comments made to him by Adkins. He recalls being in the main office one day
and using the computer to look up his route for deliveries he would be making
the following day. Adkins, he contends,
came over to him and asked what he was doing.
When Rea explained and asked why Adkins wanted to know, Adkins answered
that someone had purportedly been using the computer to look up union activity,
and that when “they” find out who it was, that individual was “going to be in
big trouble.”
Discussion
Regarding
Adkins’ comment to Goodsell about hearing rumors that Goodsell, along with
Thorsky, Confere, and Rea were trying to bring in the
Although admitting to being a union
supporter and to distributing authorization cards to other employees, nothing
in Goodsell’s testimony, or elsewhere in the record, suggests that he was open
and notorious about his support for and activities on behalf of Local 24. Thus, when told by Adkins about rumors that
he and others were trying to bring the Union in to the
Adkins, as noted, also told Goodsell in
late February that if employees persisted in their efforts to bring the
(3) Statements by B. Hartmann
Paragraph 12 of the complaint alleges
that in or around late March, B. Hartmann implicitly threatened employees with
discharge if the Union were voted in, solicited employee complaints and
grievances, and promised them increased benefits and better terms and
conditions of employment in order to induce them into not supporting the
The specifics of this allegation center
on comments purportedly made by B. Hartmann during an antiunion video employees
were directed to watch about 1 month before the scheduled April 12, election.13
Rial Finney, a line haul driver at the
B. Hartmann, he recalled, told him that
what had happened in the video at the auto plant would happen at the
Finney also recalled being directed, on
two subsequent occasions, to view antiunion propaganda films, again in Marszalkowski’s
office. Unlike the first time, however,
when B. Hartmann remained in the room with him, Finney watched the films
with other employees present. Finney
testified that the next time he saw B. Hartmann was on the day before the election
when, he claims, Marsalkowski and B. Hartmann were at the facility walking
around and talking to different employees.
Finney was in the process of loading his trailer when B. Hartmann
approached, shook his hand, and said he would appreciate it if Finney did not
vote for the
Goodsell, and another line haul driver,
Gerry Joseph also testified to viewing videos similar to that shown to
Finney. Goodsell recalled viewing two videos,
the first in mid-February in the drivers’ room.
He could not recall if another employee watched it with him at the time,
but recalls no one from management being present. The second video, he recalled, was shown to
him 1-week later in Marszalkowski’s office, with B. Hartmann and other
employees present. He testified that B. Hartmann
did not speak while the video containing an antiunion message played, but that
B. Hartmann did address him and the other employees once the video was
over. B. Hartmann, he recalled,
mentioned that the Company was trying to get the employees medical bills
paid. (Tr. 347.)
Joseph similarly testified that, prior to
the election, he and a few other employees were directed to watch a 20-minute
video, which was more or less antiunion, in Marszalkowski’s office at the
Discussion
As found above, after requiring Finney to
view an antiunion video in Marszalkowski’s office about the loss of a jobs
following a strike at an auto plant, B. Hartmann told Finney that the same
thing would happen at the Richfield facility if Local 24 were brought in. Despite being present in the courtroom during
Finney’s testimony, B. Hartmann, as noted, never took the witness stand to
refute Finney’s account, or to offer some legitimate explanation or reason for
his plant closing and job loss remark to Finney.14
Nothing in Finney’s description of B.
Hartmann’s comment about a strike at the Richfield facility leading to a loss
of jobs, similar, apparently, to what was depicted in the video he was required
to watch, reflects that there was any ambiguity in B. Hartmann’s
statement. Thus, B. Hartmann’s remark,
as credibly described by Finney, was presented to the latter not as a
prediction based on objective fact as to what might occur if Local 24 were
brought in, but rather as an inevitable event that will occur if employees
voted for union representation. The
Board has found similar comments regarding the inevitability of a strike should
a union prevail to be coercive and unlawful. Smithfield Packing Co., 344 NLRB 1, 8 (2004); Gold Kist, Inc., 341 NLRB 1040, 1041 (2004); Vasaturo Bros., Inc., 321 NLRB 328 (1996); Heartland of
B. Hartmann, as noted, also questioned
Finney during this particular incident on why he and other employees wanted a
union. When Finney complained about the
faulty trailers employees had been using, and how the employees medical benefits
were not being paid, B. Hartmann told Finney that new trailers had been ordered
and more were on the way, and that the issue of the nonpayment of medical
benefits would soon be resolved because the Respondent was taking out a loan to
cover such expenses. B. Hartmann, on
another occasion also told Goodsell, following the latter’s mandated viewing of
an antiunion video, that the Respondent was trying to get the medical expenses
paid. The promises by B. Hartmann to
Finney and Goodsell, which I have found were made since B. Hartmann was not
called to refute them, are alleged to have been unlawful attempts by B.
Hartmann to dissuade Finney and Goodsell from supporting Local 24. The allegation has merit.
B. Hartmann’s inquiry of Finney as to why
he and other employees wanted a union was, in my view, an attempt by B. Hartmann
to ascertain what problems employees might be having with the Respondent that
would prompt them to turn to a union for help in resolving them. There is no evidence to indicate that the
Respondent, or B. Hartmann specifically, had ever before solicited employee
grievances or complaints. “When
an employer, who has not previously had a practice of soliciting employee grievances or complaints,
suddenly embarks on such a course during an organizational campaign, the Board
may find that the employer is implicitly promising to correct
those inequities discovered as a result of the inquiries, thereby leading employees to believe that the combined
program of inquiry and correction
will make collective action unnecessary.”
See Enjo Architectural Millwork,
340 NLRB 1340, 1353 (2003), quoting from Valley
Community Services, 314 NLRB 903, 904 (1994); also D&F Industries, 339 NLRB 618, 644 (2003).
Finney,
as noted, told B. Hartmann, in response to the latter’s inquiry into why
employees needed a union, of the problems he and others were having with
trailers, and with getting their medical benefits paid, at which point B.
Hartmann immediately assured him that both problems were in the process of
being resolved. Clearly, B. Hartmann’s
answer was intended to convince Finney that the problems which were driving him
and others to the
(4) Rea’s handbilling incident
Rea, as more fully discussed and found
below, was terminated on March 14, for his involvement with, and activities on
behalf of, Local 24. Following his
unlawful termination, Rea continued with his union activities and, on April 3,
went to the
Soon thereafter, Marszalkowski appeared
and, after he and Rea exchanged greetings, Adkins handed Marszalkowski the
flyers. Marszalkowski and Adkins then walked
away from Rea without saying anything else.
At one point, Rea noticed Marszalkowski using his cell phone to make a
call. Some 5 minutes later, the
The Respondent’s
sole defense to this allegation, as argued in its brief, is that it could not
have committed any unfair labor practice when it called the police on Rea on
April 3, because the latter was no longer an employee at the time. (Tr. 29.) I disagree.
It is well established that an
employer may seek to have police take action against pickets, or, as in this
case, handbillers, where the employer is motivated by some reasonable concern,
such as public safety or interference with legally protected interests. Nations
Rent, Inc., 342 NLRB 179, 181 (2004).
However, an employer violates Section 8(a)(1) when it calls police to
have nonemployee union organizers removed from public property. Walgreen
Co., 352 NLRB 1188, 1193 (2008); Corporate
Interiors, Inc., 340 NLRB 732, 746 (2003).
Here, the Respondent has not shown, nor for that matter contended, that
the police were called on Rea because the latter was trespassing on its property
during his handbilling activity. In
these circumstances, the Respondent’s decision to call the police on Rea
amounted to an unlawful interference with Rea’s Section 7 right to handbill on
public property, and violated Section 8(a)(1) of the Act, as alleged.
b. The 8(a)(3) conduct
(1) Confere’s termination
Confere, as noted, was terminated on
March 2, allegedly for having “two consecutive unexcused absences” in violation
of company policy.18 The events leading up to the termination
involved Confere’s previously mentioned court appearance which was scheduled
for February 28. Marsalkowski, as found
above, had, several days earlier, assured Confere that he would appear as a
character witness for Confere. On
February 27, the day before Confere’s trial date, Confere claims he went to Marszalkowski’s
office and asked if he was still showing up in court the following day. He contends, however, that Marsalkowski did
not respond and simply kept looking down at his desk and never looked up at
him. Confere then walked out of
Marszalkowski’s office. Confere
testified that he had previously received permission from Marsalkowski to take
the day off to attend the court hearing, explaining that Marsalkowski had, in
his office, a chalkboard which he observed contained a notation showing Confere’s
scheduled February 28 hearing.
Despite promising to do so, Marsalkowski
did not appear at Confere’s court hearing.
Confere contends that at some point in the afternoon on February 28, he
called the facility and spoke with Stamp, as Marsalkowski apparently was not in
the office. According to Confere, he
informed Stamp that he was still in court and, while he was almost done, he had
no idea how much longer he would be there.
Stamp purportedly told him that Marsalkowski was not in the office but
he would let him know about Confere’s call.
Confere, it appears, spent the whole day in court.
Confere did not report for work on March
1, having been directed the day before, presumably by the court, to report to
the probation office that day. Confere
claims he called the facility on three different occasions on March 1, to
report his whereabouts. His first call
purportedly occurred at 5:45 a.m. Confere
recalls speaking with Stamp, telling him he had to go to the probation office,
and did not know how long he might be there or what he had to do.
Called as a witness by the Respondent,
Stamp denied ever receiving phone calls from Confere, including on February 28
or March 1. (Tr. 931.) Certain
inconsistencies and ambiguities in Stamp’s testimony, however, render it
unreliable and not particularly trustworthy.
Stamp, for example, claimed he began working for Respondent in April
2001, and purportedly left in early March 2007, although he was somewhat vague
and unsure as to his departure. Testimony
by Curtis Harmon, one of Respondent’s witnesses, that Stamp was supervising him
in April 2007, seemed to undermine Stamp’s claim of having left the Respondent’s
employ in March. Stamp also testified
that no member of management “ever gave OS&D (over, short & damaged
department) items to employees. This
rather broad, sweeping assertion by Stamp is somewhat hard to accept, since
Stamp never explained how he would have known what other supervisors may or may
not have done vis-ŕ-vis employees and OS&D products, in his absence, and
testimony from other witnesses makes clear that the distribution of OS&D
products to employees by supervisor was a common occurrence.
Stamp’s blanket denial of having spoken
by phone to Confere on either February 28 or March 1, also lacked the ring of
truth. Thus, the question put to Stamp
by Respondent, to which he answered, “No” without hesitation or equivocation,
was whether Confere had called him on either of the above dates. Stamp’s ability, more than a year later, to
aver with the degree of certainty exhibited by him on the witness stand and
without giving it any thought, that he had never received any phone calls from
Confere, including on February 28 or March 1, was not convincing, particularly
given his inability to recall with any degree of certainty when he terminated
his employment with the Respondent.
Stamp’s testimony of not having received any phone calls from Confere on
February 28, and March 1, is rejected as not credible. I find instead, as credibly testified to by
Confere, that the latter indeed called and spoke with Stamp on February 1, to
update him on the status of his court appearance, and again on the morning of
March 1, to advise of his required meeting with the probation office.
His second phone call on March 1, Confere
explained, took place at around 8 a.m. and was with Marsalkowski. He told Marsalkowski during this phone call
that he was still at the probation office waiting to hear what was going on,
and that he had not yet met with his probation officer or been told what he had
to do. Marsalkowski, he contends, made
no mention of why he did not appear at his February 28 court date. The third phone call, Confere contends, was
made at 12:30 p.m. and he again spoke with Marsalkowski. He informed the latter that he was being
required to watch a video with some other 30 individuals at the probation
office, and had no idea how long it would be.
Marsalkowski purportedly replied, “[Y]ou do whatever you’ve got to do,”
and slammed the phone down on Confere.
Confere described Marsalkowski as being “a little angry, a little upset”
during that brief conversation. He
denied being told by Marszalkowski during this latter phone conversation that
the facility was swamped with freight.
He never told Marsalkowski whether or not he would make it in to work
that day because he had no idea how long he would have to remain at the
probation office. Confere contends that
he eventually got out of the probation office at around 2:45 p.m. His testimony as to the substance of his two
phone conversations he had with Marszalkowski on March 1, was not denied or
otherwise disputed by Marszalkowski, leading me to credit Confere’s version of the
conversations.
Confere reported to work the following
day, March 2, at 5:45 a.m. His starting
time was 6 a.m. He testified he arrived
a few minutes early in order to give Stamp copies of his court and probation
papers, presumably to confirm his February 28 court appearance and his March 1,
attendance at the probation office.
Stamp, however, had not yet arrived, so Confere went to Marszalkowski’s
office, who was there, to hand him his documents. Marsalkowski, however, simply walked out of
his office without saying a word, but returned a short while later accompanied
by driver, Bill Greenleaf. Confere
recalled that on his return, Marszalkowski put some papers on the desk and told
him, in any angry tone, that he was being terminated for “unexcused absence.”
(Tr. 108.) Marszalkowski asked Confere
to sign a termination notice, which was to be witnessed by Greenleaf, and
Confere did so without reading it, explaining that he was too upset at the time
about being fired for no reason to read anything.19
Other than identifying the termination
notice he issued to Confere for two unexcused absences, Marsalkowski did not
testify as to the circumstances surrounding the discharge. His failure and refusal to do so, despite
being present at the hearing and being advised by me of his right to take the
stand to refute such testimony, supports an inference that Marszalkowski chose
not do so for fear that any such sworn testimony would be detrimental to
Respondent’s case. Confere’s undisputed testimony regarding his discussions
with Marsalkowski before and during the discharge is, as noted, accepted as
true and credited.
Discussion
The complaint, as noted, alleges, and counsel
for the General Counsel contends, that Confere was discharged for his
activities on behalf of, or for supporting, Local 24 in its organizing campaign
at the Richfield facility. The
Respondent insists Confere was lawfully discharged for having two unexcused
absences in violation of company policy.
When, as here, the motivation for an employer’s actions, here Confere’s
discharge, is at issue, the Board utilizes the test set out in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management Corp., 462
Once
the General Counsel makes this initial showing, the burden of persuasion shifts
to the Respondent to prove that it would have taken the same action even if
Confere had not engaged in protected or union activity. But where it is shown that the employer’s
proffered reasons “are pretextual—that is, either false or not, in fact, relied upon—the employer fails by
definition to show that it would have taken the same action for those reason, absent the protected conduct, and thus there is no
need to perform the second part of the Wright
Line analysis.” Metropolitan
Transportation Services, 351 NLRB 657, 660 (2007), and cases cited therein.
Confere’s support for and involvement
with Local 24 is not disputed. Thus, he
testified, credibly and without contradiction, to being a Local 24 supporter,
and to having signed an authorization card on its behalf and discussing the Union
with other
The record is replete with credible and
undisputed evidence of Respondent’s, and in particular Marszalkowski’s, strong
animosity towards unions and their supporters.20 There are, for example, the numerous 8(a)(1)
violations committed by the Respondent, through its various supervisors and/or
managers at its Richfield and, as shown below, at the Toledo facilities, that
included coercive interrogation of employees regarding their activities,
creating an impression of surveillance of their activities, promising to
improve their benefits, including paying their medical bills and giving them
raises, to induce them into not supporting the Union, and threatening employees
with the closure of facilities and loss of jobs if they were to vote the Union
in.
Marszalkowski’s own personal animosity
towards unions and their supporters was further revealed through uncontradicted
testimony provided by Lach regarding statements made by Marszalkowski in
conversations between the two. One such
conversation, Lach recalled, occurred in Lach’s office when Marszalkowski
entered smoking a cigarette. Lach asked
him not to smoke in his office and, after some exchange, the conversation
turned to some prior attempts that had been made by unions to organize the
Respondent’s facilities. At one point,
Marszalkowski stated that he had been brought in to clean up the union
problem. When Lach asked how
Marszalkowski had managed to do that, the latter replied that he had solved the
problem by taking employees out to a “topless” bar, and buying them drinks,
boasting that it had only cost him about $1000.
During another conversation, Lach recalled Marszalkowski mentioning how
the Respondent had moved one of its terminals from Ann Arbor, Michigan, to
Toledo, Ohio, because of a union problem it allegedly was having at Ann Arbor,
and, during another conversation, Marszalkowski described how he had fired a
driver at the Richfield facility because the driver had been to the union
hall. This latter conversation occurred
sometime in 2005 or early 2006. As
noted, Marszalkowski chose not to take the witness stand to deny Lach’s
assertions, leading me to accept Lach’s testimony in this regard as true.
The above undisputed facts thus show that
the Respondent harbored strong antiunion animus, and that it had no qualms
about doing whatever it took to ensure that its facilities remained nonunion,
including using such coercive tactics as threats, interrogations, promise of
benefits, and, in the final analysis and as shown below, the termination of
union adherents. Accordingly, I find
that counsel for the General Counsel has satisfied her initial Wright Line burden of proof, and that
the burden now rests with the Respondent to demonstrate that it would have
discharged Confere even if he had not taken part in union activity.
The Respondent, as noted, contends, and
Marszalkowski testified, that Confere was discharged allegedly for his two unexcused
absences on the days he had to appear in court on a family matter. The record does show that the Respondent maintains
a written policy that two unexcused absences by an employee results in a
termination, although it is not known to what extent, if any, this policy has
been adhered to in the past as no evidence was produced to show that other
employees have previously been discharged pursuant to this policy. Whether or not the Respondent, in fact,
adheres to its policy is, in any event, of no real consequence here, for the
evidence of record convinces me that Confere did not violate the policy.
Thus, Confere testified, credibly and
without contradiction, that Marszalkowski was fully aware, as early as
mid-February, that he was scheduled to be absent on February 28, due to a court
appearance. Marszalkowski, in fact,
recorded Confere’s anticipated absence from work on February 28, on a chalkboard
in his office, a fact that again was neither denied or contradicted by
Marszalkowski. Indeed, Marszalkowski had
assured Confere that he would appear as a character witness on latter’s behalf
on the day in question. In sum, there is
no question, and I so find, that Confere’s absence from work on February 28,
was well-known to, and authorized in advance by, Marszalkowski. His absence from work that day, therefore,
was not unexcused, as claimed in his letter of termination but rather, I find,
authorized.
Confere’s termination letter, as noted,
states that he was told by Marszalkowski during his last phone call on March 1,
that the facility had “a large amount of freight,” suggesting implicitly that
Confere knew or should have known he was needed at the facility that day. As found above, Confere credibly denied being
told any such thing by Marszalkowski. Marszalkowski’s
failure and/or refusal to take the stand to corroborate the statement contained
in the discharge letter purportedly made by him to Confere renders the
statement nothing more than hearsay and, therefore, unreliable. I credit instead Confere’s denial that
Marszalkowski told him about the amount of work at the facility that day.
In sum, I find that Confere was authorized
by Marszalkowski to be absent from work on February 28, to attend his court hearing,
and that, early the following morning, March 1, Confere called in and left word
with Stamp that he had to visit his probation office that day. Consequently, the stated reason for his
discharge, having two consecutive unexcused absences, is patently false, as
Confere, as found above, was authorized to be out on the first of the 2 days in
question, February 28.
Nor does his absence from work on March
1, fit the definition of “unexcused” as set forth in Respondent’s absenteeism
policy. Thus, as credibly testified by
Confere, he did notify Stamp early in the morning on March 1, about his required
attendance at the probation office that day, and also notified Marszalkowski in
two separate phone conversations later that morning as to his whereabouts. In neither of his conversations with
Marszalkowski did the latter ever inform Confere that he was required to report
for work that day, or that he expected Confere to come to work on leaving the
probation office. Rather, during the
second phone conversation, Marszalkowski simply instructed him to do what he
had to do. Nothing in Confere’s credited
description of this conversation indicates that Confere assured Marszalkowski
he would report for work once he was finished at the probation office. Confere credibly explained that he could not
have done so as he had no clue when he would be finished and allowed to leave
the probation office.
In these circumstances, I am convinced
that Confere had good reason to believe that his absence from work on March 1,
was excused. Notably, Marszalkowski
never testified that Confere did not have permission to be at the probation
office on March 1. Accordingly, I find
that Confere was indeed authorized to be absent from work on March 1. As Confere’s absence from work on February 28
and March 1, was authorized, the stated reason for his discharge, having two
consecutive unexcused absences, is clearly false and pretextual.21
The Respondent has, consequently, failed to rebut Counsel for the
General Counsel’s prima facie case. I
therefore find, as alleged in the complaint, that Confere’s discharge was
unlawful and a violation of Section 8(a)(3) and (1) of the Act.
(2) Rea’s termination
Rea, as noted, was terminated on March
14, allegedly for theft, to wit, stealing two bags of pretzels off the dock (GC
Exh.-6; Tr. 47). He testified to arriving
for work that day at around 5:45 a.m. to begin his 6 a.m. shift. As he got to the timeclock, he noticed his
timecard was not in its usual slot and went over to Marszalkowski, who was in
his office, to tell him about his missing timecard. Marszalkowski, he contends, told him he was
aware of it and that he had to speak with Rea.
Marszalkowski then left the office and returned a few minutes later with
drivers Mike Mills and Curtis Harmon as witnesses.22
On re-entering his office, Marszalkowski showed Rea his “vehicle inspection”
book, and told Rea that, when the latter returned to the facility from making
deliveries the day before, his truck was missing a mud flap and that Rea had
not written it up in his book.
Marszalkowski told Rea that, when he went out to the truck to get his “vehicle
inspection” book, he found an opened bag of pretzels in Rea’s vehicle, and then
showed Rea a damaged box of pretzels Marszalkowski said were found on his dock,
along with a can of cake frosting also found in the truck. Rea contends Marszalkowski next sat down at
his desk and informed him he was being terminated for theft. Marszalkowski then typed up a termination letter
and gave it to Rea to sign, which he did.
Mills, as noted, did not testify. Harmon, on other hand, did, and testified
that Marszalkowski asked Rea if had taken “the stuff” off the OS&D without
permission, and Rea admitted he had.
Marszalkowski, Harmon contends, then read the contents of the
termination letter aloud to Rea. Rea,
according to Harmon, then asked to meet in private with Marszalkowski but the
latter refused, and simply told Rea he was terminated. (Tr. 875.)
Notably, Greenleaf also claimed to have been present when Rea was
terminated, and testified to hearing Marszalkowski confront Rea about “finding
the stolen merchandise from OS & D in the truck,” and hearing Rea admit
having done so. He contends
Marszalkowski asked Rea if he had gotten permission to take the merchandise,
and Rea responded he had not. (Tr. 894.)
Rea denied telling Marszalkowski that he
had taken “the stuff,” as testified to by Harmon and Greenleaf, and also disputed
Harmon’s claim that Marszalkowski refused his request for a private meeting.
Rather, according to Rea, he did meet with Marszalkowski in private after
Harmon and Mills left the office. During
this private meeting with Marszalkowski, which occurred after he had been told
he was terminated, Rea denied stealing the pretzels and insisted he had gotten
them from the office, explaining that his supervisor, Stamp, had given him
permission about a week earlier to take the pretzels. Rea testified in this regard that a week
before his termination, he retuned to the facility early in the morning after
making a delivery, noticed the pretzels on counter, and saw other employees,
including secretary Karen Larkman, eating pretzels. He asked Stamp at the time if he could take
some pretzels with him before leaving on his next run, and Stamp said it was
OK.
According to Rea, when goods or food
products are damaged at the facility, they are turned over to the OS&D department. He contends that, from time to time, supervisors
and others in the OS&D department would hand out or authorize employees to
take these goods for their own personal use.
He recalled, for example, seeing such items as small soup packages,
e.g., Healthy Choice or Progresso brand, “Slim Jims,” “
As to the can of cake frosting, Rea
explained to Marszalkowski it was given to him by a customer during one of his
deliveries. The customer, he contends,
was discarding the item and Rea simply asked if he could have it. Marszalkowski told Rea it didn’t matter, that
he was still being terminated for theft. (Tr. 226.) Rea was then escorted to his truck to
retrieve his personal belongings, turned in his fuel card, and left. Rea denied ever admitting to stealing the bag
of pretzels or the cake frosting to Marszalkowski. Rea never received a copy of his termination
letter. Goodsell corroborated Rea’s
testimony regarding the practice at the facility of allowing employees to take
damaged goods or food products for their own use. (Tr. 375–376.)
I credit Rea over Harmon and Greenleaf as
to what occurred and was said at his March 14 termination meeting. Harmon and Greenleaf, as previously
discussed, were not particularly credible witnesses, and struck me as having
embellished, if not outright fabricated, their testimony to comport to the Respondent’s
version of events. Greenleaf’s claim of
being present during Rea’s termination is particularly difficult to accept, for
Rea’s termination letter shows, consistent with Rea’s testimony, that Mills and
Harmon, in addition of course, to Marszalkowski, were the only witnesses
present at this meeting. Neither Mills
nor Marszalkowski, as noted, testified, and Harmon, the only witness who could
have corroborated Greenleaf’s purported presence at the discharge meeting, was
not asked to do so. I am convinced that
Greenleaf was not present during Rea’s termination meeting and that he simply
lied about being there to curry favor with the Respondent. In short, I find that Marszalkowski never asked
Rea where or how he obtained the bag of pretzels, and that, as credibly
testified to by Rea, he simply accused the latter of theft and informed him he
was being discharged for stealing the bag of pretzels.
Counsel for the General Counsel contends,
and I agree, that Rea was unlawfully discharged for his union activities, and
that the Respondent used the alleged theft as a pretext to mask its unlawful
conduct. Rea, as noted, was an active
Local 24 supporter, having signed an authorization card on its behalf, and
solicited other employees to do the same.
Further, Adkins’ statement to Goodsell about having overheard, of been
part of, a conversation involving Marszalkowski, during which Rea’s name was
mentioned as one of several employees trying to bring in the Union, makes clear
that the Respondent either knew or strongly suspected that Rea was a Local 24
supporter. That the Respondent harbored
strong animosity towards Local 24 and its supporters was, as discussed above in
connection with Confere’s discharge, clearly demonstrated by the coercive
conduct it directed at employees in order to dissuade them from supporting
Local 24, conduct which, as noted, included threats of plant closure, job loss,
interrogations, impression of surveillance, and promise of benefits, along with
the unlawful discharge of Confere, another union supporter, for engaging in
activities on behalf of Local 24. On
these facts, I find that counsel for the General Counsel has made a prima facie
showing under Wright Line that Rea’s
discharge was, like Confere’s discharge, motivated by antiunion considerations.
The Respondent’s claim that Rea was
lawfully discharged for stealing a bag of pretzels does not withstand
scrutiny. According to Rea’s credited
and uncontradicted testimony, Marszalkowski never bothered to ascertain the
truth of Rea’s assertion that he had been given permission by Stamp to take the
pretzels. Stamp, it should be noted, did
testify that no “management employee” had ever given OS&D items to employees. He did not, however, explain how he knew what
other managers may or may not have given to employees in the past from the
OS&D department. As to the incident
with Rea and the pretzels, Stamp was never specifically asked what he knew
about this incident, or whether he, himself, had authorized Rea to take the
pretzels. Nor was Larkman, who could
have refuted or denied Rea’s claim that she too was eating pretzels when Rea
received permission from Stamp to take some, called to testify, warranting an
adverse inference that, had she been called, her testimony would not have
supported Respondent’s claim.
Accordingly, in the absence of any specific denial from Stamp, I credit
Rea and find that he had, in fact, been allowed by Stamp to take the bag of
pretzels Marszalkowski found in his truck on March 14.
But even if
Stamp had not authorized Rea to take the bags of pretzels, and I believe Rea’s
undisputed account that he did, nothing in Marszalkowski’s sparse testimony
suggests he knew this when he fired Rea, for Rea’s credited account makes patently
clear that Marszalkowski fired him practically on the spot without bothering to
ask Rea how, where, or when he had gotten the pretzels. Without questioning Rea, Marszalkowski could
not have known if Rea purchased the pretzels himself, or, if Rea had gotten it
from the OS&D department, as it turns out was the case here, or who, if
anyone, authorized him to do so. An employer’s failure to fully and
fairly investigate an employee’s
alleged misconduct before disciplining or terminating
him, or to provide the employee an opportunity to rebut the accusation, suggests
the presence of discriminatory motivation.
Aljoma Lumber, Inc., 345 NLRB
261, 285 (2005); Pratt Towers,
Inc., 338 NLRB 61, 97 (2002);
(3) Goodsell’s termination
Goodsell, as testified to by
Marszalkowski, was terminated on March 21, allegedly for “falsifying reports”
and “damaging company property.” (Tr. 47.) His termination notice, received into
evidence as General Counsel’s Exhibit-7, states his discharge was for “Falsification
of reports, misrepresentation of reports, failure to follow DOT [Department of
Transportation] requirements, destruction of company property.”
Regarding his discharge, Goodsell
testified that he reported for work on March 21, and went to the drivers’ room,
presumably where drivers congregate, and, while there, noticed on the board
used to record problems with tractors and trailers, that the truck he regularly
drove had been written up as containing some damage. According to Goodsell, the truck in question
was also regularly used by another employee, Steven King. While unsure who had written the damage
report on the board, Goodsell believes King may have done so. Goodsell drove the truck on March 20, and,
prior to that, last used the truck on March 14, at which time, he contends, the
truck had no damage.
Goodsell recalled that after leaving the
drivers’ room, he went out and began hooking up a trailer to his truck to prepare
it for loading, when Marszalkowski approached him and asked to see the damage
on the truck, which consisted of a broken splash guard or quarter fender over
the left rear tire. Marszalkowski then reviewed
the truck’s vehicle inspection book and, on not finding an entry of the damage
in the book, asked Goodsell about it.
Goodsell replied that he kept a duplicate book inside the terminal with
his own belongings, at which point Marszalkowski walked away. Goodsell, as it turned out, had not entered
the damage in his own duplicate book either, explaining that he had run out of
entry pages in the duplicate book and, consequently, had also failed to record
the damage in his duplicate book. (Tr.
355.)
Goodsell then pulled the trailer into the
dock and began loading it. Marszalkowski
returned a few minutes later and told Goodsell he wanted to speak with him in
the office, and also asked to see Goodsell’s own inspection book containing the
write-up on the truck. Once inside the
office, Goodsell noticed employees Eric Poe and Mark DeBaer were also
present. Marszalkowski then told
Goodsell he was being terminated for “not filling out an inspection report.” The entire meeting, Goodsell contends, lasted
less than a minute after which he turned and left to retrieve his personal
belongings. Marszalkowski never
questioned him about the damage to the truck, nor did he read, or give Goodsell
a copy of, the termination letter at that time.
After retrieving his personal belongings, Goodsell returned to Marszalkowski’s
office, shook the latter’s hand, and told him there were “no hard feelings,”
explaining that he didn’t harbor any resentment towards Marszalkowski for
discharging him, and admitting that he had made a mistake in not filling out
the truck’s vehicle inspection report.
Goodsell, however, denied damaging the truck. (Tr. 357–358, 364.)
Marszalkowski testified he first learned
of the damaged quarter fender on the truck from King. According to Marszalkowski, King, who did not
testify, noticed the damage on the truck while doing a pretrip inspection of
the vehicle on March 20, reviewed the vehicle inspection report to see if the
damage had been entered and, on not finding any such entry, reported the matter
to him. Marszalkowski’s understanding as
to sequence of events leading to the discovery of the damage is that, on March
20, King was apparently waiting for Goodsell to return from his road trip, and
that, on Goodsell’s arrival at the facility, and after the latter had backed
the truck into the dock, King went out to do his pretrip inspection and discovered
the damage. There was, according to Marszalkowski,
only about a 15-minute gap between Goodsell’s arrival and King’s discovery of
the damage on the truck and subsequent report to Marszalkowski. Marsalkowski was unsure when the damage to
the truck occurred, but was of the view it occurred sometime during the 10–12 hours Goodsell was in possession of
the truck, admitting, however, that he simply did not know.
Later that same day, Adkins called
Goodsell and informed him he could appeal his termination by writing a letter
to upper management. When Goodsell asked
what he should put in the letter, Adkins suggested that the only way he could
get his job back was for Goodsell to “kiss their ass and tell them what they
want to hear.” After speaking with
Adkins, Goodsell prepared an appeal letter, returned to the facility, and
handed it to Adkins, who, in turn, called Marszalkowski. Marszalkowski informed Adkins that Goodsell
would first have to sign his termination letter before his appeal could be
considered. Goodsell was then given his
termination letter for the first time which he signed. Goodsell then left the facility and, later
that evening, received a call from Adkins who told him his appeal had been
denied.
Goodsell, as noted, denied damaging the
truck. Goodsell recalled that sometime
after his termination, he had a conversation Joseph in which the latter told
him that, the night before Goodsell was fired, he, Joseph, had driven the truck
in question and had seen the damage on truck.
In other words, Joseph, according to Goodsell, had noticed the damage on
the truck on the evening before Goodsell drove it, and the night before King
first noticed it.
Joseph corroborated Goodsell’s above
testimony. Joseph testified that he
drove the truck on March 19, and, at the time, saw that a piece of the quarter
fender was broken off. He explained that
the damage was obvious because the truck was fairly new making the damage more
obvious. Joseph, however, contends that
on examining the damage, he concluded it had not occurred recently because the
break did not appear clean as would be noticeable from a recent break, but
rather was dirty and did not seem fresh.
Joseph chose not to write it up in the vehicle inspection report
because, given his conclusion that the breakage occurred some time ago, he
assumed some other driver must have already written it up. He further explained that writing up this
particular type of damage in the vehicle inspection report is not a requirement
but more of an option, noting that many of the Respondent’s other trucks have
also had quarter fenders break off or become damaged without being written
up. (Tr. 295.)
Joseph confirmed having a conversation
with Goodsell the day after the latter’s termination. He testified he did not feel Goodsell’s
termination was justified because he had noticed the damage on the truck’s quarter
fender before Goodsell drove it on March 20.
As to Goodsell’s failure to record the damage in the vehicle inspection
report, Joseph pointed out that failing to fill out such reports was not
uncommon among drivers, a claim corroborated by Rea who testified, without
contradiction, to not having filled out his vehicle inspection report during a 4-month
period from September 2006 to mid-January 2007, and to knowing of others who
likewise did not do so, without consequence.23 He explained that, oftentimes, inspection
books would be missing from the trucks, notably when the book was all filled in
and new books were not readily available.24 In Joseph’s opinion, the Respondent did not
strictly enforce the requirement that vehicle inspection reports be filled out,
and, to his knowledge, no one has ever been discharged for not doing so. He testified that, following Goodsell’s
termination, the practice regarding vehicle inspection reports was changed, so
that, instead of just maintaining one book in the vehicle to be used for night-
and day-shift drivers to write their reports, now night-shift drivers would
maintain their own separate book, and day-shift drivers would have their
own. Joseph also pointed out that, in
addition to the vehicle inspection reports, drivers used a log book to record
their hours, and that, while a log book is generally kept with the vehicle, a
separate log was also maintained in the drivers’ room. Oftentimes, he contended, he, as well as
other drivers, would make their vehicle inspection report entries in the
drivers’ room log book. He was never
disciplined for doing so, nor, to his knowledge, was any other driver.
The complaint alleges that Goodsell’s
termination was motivated by antiunion considerations and, thus, unlawful. Goodsell, as noted, was a Local 24
supporter. Thus, he signed an
authorization card for Local 24, and distributed cards to other employees to
sign. Goodsell’s credited and undisputed
account of how Adkins told him the Respondent believed he, along with Rea and
Confere were responsible for bringing in the Union, supports a finding that the
Respondent knew Goodsell supported, and was active on behalf of, Local 24. Evidence of Respondent’s antiunion animus was
fully discussed in connection with the analysis of Confere’s and Rea’s termination
and will not be repeated here. On these
facts, I find that counsel for the General Counsel has met her initial Wright Line burden of showing that
Goodsell’s termination was discriminatorily motivated by antiunion
reasons.
The Respondent’s claim, that Goodsell was
lawfully terminated for damaging the quarter fender on one of its trucks, and
for falsifying a report, lacks credible evidentiary support and amounts to
nothing more than a pretext. Thus, it
produced no evidence to show that Goodsell was responsible for causing the
damage in question. Marszalkowski, who
made the decision, did not have personal knowledge of how the truck was damaged
or who might have done so. His hearsay
testimony reflects only that employee King, who did not testify, reported the
damage to him. Marszalkowski, however,
never claimed to have been told by King that the latter actually witnessed Goodsell
damage the truck. Rather, Marszalkowski
simply assumed that Goodsell had done so because Goodsell had driven the truck
just prior to King’s alleged discovery of the damage. Indeed, Marszalkowski’s description of what
King told him, to wit, that because Goodsell had driven the truck earlier that
day, he “must have been the person that damaged the truck,” makes clear that
King did not know for certain, and also simply assumed, that Goodsell was
responsible for the damage. (Tr. 51.)
Goodsell, as noted, denied damaging the
truck, and Joseph’s testimony, which went unchallenged, that he noticed the damaged
quarter fender on the vehicle in question a day before Goodsell last drove it
on March 20, supports Goodsell’s denial, and suggests that someone other than
Goodsell may very well have caused the damage.
Marszalkowski made no attempt to question other employees who may have
driven the truck before March 20, or anyone else for that matter, before
abruptly terminating Goodsell, without explanation or affording him an
opportunity to defend against the charge.
Such an inquiry, which presumably would have included questioning Joseph
since the latter was also employed as a driver, would, at a minimum, have
raised a doubt in Marszalkowski’s mind as to Goodsell’s culpability for the
damaged quarter fender. Marszalkowski’s
rush to judgment regarding Goodsell’s alleged responsibility for the truck’s
damage, without so much as a cursory inquiry into how the damage occurred or
who might have caused it, and based on nothing more than an unsupported assumption,
convinces me that the damage to the truck had nothing to do with Goodsell’s
discharge, and that Marszalkowski, as he did with Confere and Rea, simply used
this as one of various excuses to rid himself of another Local 24 adherent.
Goodsell’s alleged falsification of the
vehicle inspection report is another of the pretextual reasons used by Marszalkowski
to justify Goodsell’s discharge. No
evidence, however, was produced by the Respondent to show that any such
falsification of a report by Goodsell occurred.
While Goodsell, as noted, admittedly failed to record the damaged
quarter fender in the vehicle inspection report and in his duplicate book, his
conduct in this regard was more one of omission or neglect, and not of
intentionally falsifying the vehicle inspection report by including something
therein that he knew or had reason to believe not to be true. Goodsell’s failure to record the damage in
the vehicle’s inspection book or report, however, does not appear to be
dischargeable offense for, as Joseph credibly pointed out, this was not
uncommon among employees and, to his knowledge, no one has ever disciplined or
discharged for failing to do so. No
evidence, documentary or otherwise, was produced by the Respondent to
contradict Joseph’s claim, or to show that it has, in the past, discharged
other employees for failing, like Goodsell, to record an entry in the vehicle
inspection report. Nor did it explain
why, having ignored or implicitly condoned similar infractions by other
employees in the past, it now chose to terminate Goodsell, in part, for this
alleged infraction. This unexplained
disparity in treatment supports a finding that Goodsell’s failure to record the
damage in the vehicle inspection report, as well as the Respondent’s unsubstantiated
claim that he falsified a report, are nothing more than pretexts designed to
mask the true reason for his discharge, Goodsell’s union activity.
Finally, Goodsell’s termination letter
cites “failing to follow DOT requirements,” presumably stemming from his
failure to record the damage in the vehicle inspection report, as an additional
reason for his discharge. Notably, Marszalkowski,
in his testimony, mentioned only that Goodsell “was terminated for falsifying
reports and damaged Company property,” but did not mention his alleged failure
to follow DOT requirements, as a reason.
This too, however, is nothing more than a pretext.
According to
Marszalkowski, DOT Regulation 396.11 requires that “any damage to a vehicle
“must be reported” and, under company policy, the failure to do so is a
“termination” offense.25 Review of the regulation in question,
however, does not fully support Marszalkowski’s assertion, for the regulation
does not appear to require the reporting of any
damage found on a vehicle, but rather that which would “affect the safety of operation of the vehicle or
result in its mechanical breakdown.” The
regulation does not list a “quarter fender,” often referred to also as a
“splash guard,” as one of the items that must be reported on a daily basis, nor
is it clear that a cracked or broken quarter fender is the type of damage referred
to in the regulation that would affect the safety operation of the vehicle
itself or lead to a mechanical breakdown.
Respondent’s
own director of safety and security/risk management, Harold Ferenczi, called
presumably, in part, to bolster Marszalkowski’s assertion, did not do so. Rather, he testified, contrary to Marszalkowski,
that a broken quarter fender is not covered under Federal DOT regulations, but
did proffer that this is something that might be covered under a State DOT
regulation.26 Marszalkowski’s claim, therefore, that
Goodsell’s failure to record the broken quarter fender in his vehicle inspection
report violated DOT regulation 396.11 is simply not supported by a plain
reading of the rule in question, and, moreover, is contradicted by Respondent’s
own safety director, Ferenczi.
Thus, like the other reasons cited for
his discharge, Goodsell’s failure to record the damaged quarter fender in the
vehicle inspection report amounts to nothing more than a pretext designed to
cover up the true reason for his Goodsell’s termination, to wit, his union
activity. Accordingly, I find that the Respondent
has failed to rebut counsel for the General Counsel’s prima facie showing that
Goodsell was terminated for his union activity, and that Goodsell’s discharge
was, consequently, unlawful and a violation of Section 8(a)(3) and (1) of the
Act. .
2. The
a. The alleged 8(a)(1) conduct
Paragraphs 13(a) and (b) of the complaint
alleges that on or about March 20, admitted Toledo Facility Supervisor Lee
unlawfully interrogated employees about their union sympathies or activities,
and created the impression that employee union activity was being kept under
surveillance. Alleged discriminatees J.
Ulch and Wilson provided testimony regarding these allegations, and other
conduct that, while not specifically alleged in the complaint, were raised and
addressed at the hearing.
J. Ulch worked as a second shift
dockworker at the
J. Ulch contends that once in Lach’s
office, Lach phoned Joe Baker, head of operations at the LaSalle facility to
clarify the matter. Baker apparently had
received an e-mail from Gruic stating that J. Ulch had been seen at a football
game on the 2 days he was off work.
During that phone conversation, J. Ulch informed Baker that he had not
been at a football game, and had turned in a doctor’s note to Lach justifying
his absences. Baker seemed to accept the
explanation, but then began questioning J. Ulch about ongoing union activities,
including what he knew about the “Vote Union 20” comment that had been found
written on freight. J. Ulch denied responsibility
for the writings, but did admit he and other employees were discussing the
union. Baker told J. Ulch that he did
not want to hear any more talk about union activities or about the
On Saturday, March 17, J. Ulch attended a
Local 20 meeting and signed a Local 20 authorization card that day. J. Ulch testified, without contradiction,
that when he reported for work around 1:30 p.m., Monday, March 19, OS&D
supervisor, Tim Ulrich,27 approached
him at the timeclock and asked how the
J. Ulch also testified that, at the end
of his shift on Monday, March 19, as he was about to clock out, Supervisor Lee
came up and asked him how the union drive was going, and whether he had enough
people to vote the Union in. J. Ulch
replied that he believed he had. Lee
then told J. Ulch that Dotson and Gruic appeared to have overheard him (J.
Ulch) talking to truckdrivers, dockworkers, and other former employees about
the Union, and cautioned J. Ulch to be careful.
(Tr. 467.)
The following day, March 20, J. Ulch was
also questioned about his union activities by Supervisor Bateson. He testified, without contradiction, that as
he was clocking in to begin work that day, Bateson, like Lee and Ulrich the day
before, asked him how the union campaign was going, and how many people were
involved. J. Ulch replied he was not
sure, but that it numbered somewhere between 5–15. Bateson then asked if the
Lee, who, as noted, voluntarily left the
Respondent’s employ in November, was called to testify by counsel for the
General Counsel. Lee’s testimony, for
the most part, corroborated J. Ulch’s above account and, moreover,
provided some insight into the nature, as well as Respondent’s awareness, of
the union activity at the facility. Lee
testified that, prior to March 21, there was much talk going on among employees
at the
Lee recalled having three more brief
conversations with Finney. The second
such conversation occurred the following evening. Finney purportedly told him that, on his
return to the
As to the Toledo facility, Lee claimed
that, in late February, he saw the words “Local 20” and “Union Yes” scrawled in
the breakroom bathroom wall, and was fully aware, as of February, that J. Ulch,
M. Ulch, and Wilson were personally involved in union activities. (Tr. 751.)
In this regard, Lee testified that, at one point, an unidentified driver
came to him and said these three individuals needed to stop discussing the
Lee testified that he spoke with J. Ulch
soon after receiving this message from the unidentified driver. He recalled telling J. Ulch how drivers
had alerted him to the fact that the dock employees were talking more than any
of the other drivers about the
Discussion
Complaint paragraph 13 is directed at Lee’s
questioning of J. Ulch and
Counsel for the General Counsel also
contends that similar questioning of J. Ulch by Ulrich as he was about to begin
his shift on March 19, and by Bateson on March 20, on how the union organizing
was going, and how many employees had shown up at the union meeting a few days
earlier, was also unlawful. While not
specifically alleged as independent violations in the complaint, this conduct
was raised and litigated at the hearing.
The Respondent offered no evidence to contradict J. Ulch’s claim that
they occurred, nor did it bother to question J. Ulch regarding these
matters. Counsel for the General Counsel,
as noted, moved, without objection, to conform her pleadings to proof, which
motion was granted. I find the
allegations are properly before me for consideration, and, moreover, that they
are not time barred under Section 10(b) of the Act,30 for the alleged misconduct by Ulrich
and Bateson are, in my view, closely related to the allegations set forth in
complaint paragraphs 13 (a) and (b).
Thus, both Ulrich’s and Bateson’s interrogations and related comments
were directed at J. Ulch, who was the recipient of the virtually identical
coercive comment directed at him by Lee.
Ulrich’s questioning of J. Ulch, as noted, occurred on the same day as
Lee’s unlawful interrogation of J. Ulch, while Bateson’s questioning of J. Ulch
occurred the following day. Both sets of
allegations, to wit, that set forth in complaint paragraphs 13(a) and (b) and
those raised at the hearing involving Ulrich and Bateson, involve the same
legal theory, e.g., unlawful use of coercive interrogations and creating an
impression of surveillance in order to undermine employee support for the
Union. Further, the Respondent’s defense
to these additional allegations would be no different than what would be
required of it to defend against the 8(a)(1) allegation involving Lee. Accordingly, I find the allegations involving
Ulrich and Bateson are not “time barred,” and conclude, based on J. Ulch’s
undisputed and credited testimony, that Ulrich and Bateson, like Lee,
unlawfully interrogated J. Ulch about his attendance at the union meeting,
and created the impression his union activities were being kept under surveillance. In so doing, the Respondent, through Ulrich
and Bateson, further violated Section 8(a)(1) of the Act.
b. The 8(a)(3) conduct
(1) Jason Ulch’s termination
J. Ulch, as noted, was terminated on
March 21, either for his union activities, as claimed by counsel for the
General Counsel, or justifiably for operating a forklift in an unsafe manner,
as argued by the Respondent. The facts
surrounding his discharge are as follows.
J. Ulch arrived for work at 1:30 p.m. on
March 21, a rainy day, he recalled, and was approached by Ulrich who told him
Marszalkowski was coming to the facility later that day to “probably” get rid
of Lach. A few hours later, around 5
p.m., Ulrich notified him that Lach had indeed been fired, and that, if
anything else happens at the dock, to call him (Ulrich) at home and let him
know. Ulrich’s work shift ended around 5
p.m. J. Ulch continued the work he
was doing of “breaking down” two trailers, which essentially involved removing
freight from the trailers using a forklift to sort and store it in various
areas of the terminal for shipment to other terminals. J. Ulch testified that during the loading
process, he was having some difficulty getting his forklift to function
properly due to some problem with the dock plate which the forklift had to
travel over. He recalled that on two
separate occasions, this particular problem caused his forklift to spin its
tires, but that he was able to maneuver the forklift adequately and continue
with the loading. As he was doing so, J.
Ulch recalled seeing Marszalkowski and Dotson in the dock area hiding behind
freight and observing what was going on, conduct which he found somewhat
unusual as he had not seen either of them engaging in such behavior in the
past.
Soon thereafter, he responded to a call
from Gruic over the intercom asking for a dockworker to come to the front
office. Once at the office, Gruic handed
him a bill and told him that a pickup truck sitting out by the ramp needed to
have a skid loaded onto it. With bill in
hand, J. Ulch left the office, went to his forklift and proceeded to load the
skid on the truck. As he was doing so,
he noticed Marszalkowski standing alongside another dockworker, Jeff Whitaker,
watching him. After loading the truck,
J. Ulch had difficulty making it up the ramp to the dock on the forklift
because the rain had made the ramp wet and slippery. J. Ulch then asked Whitaker to get him a skid
to add additional weight to the forklift and give him the traction needed to go
up the ramp. After getting up the ramp,
J. Ulch returned to the trailer he had been breaking down before being called
by Gruic.
Soon after returning to the trailer,
Marszalkowski approached and asked what he was doing. J. Ulch explained what he was doing, and
continued working. J. Ulch claims that
at one point in his unloading process, as he was exiting the trailer to come
down the ramp, his forklift got hung up on a damaged portion of the dock plate
which bridges the path between the dock and the trailers. According to J. Ulch, most of the dock plates
at the facility are damaged and unsafe, and curled up at their sides. J. Ulch simply backed the forklift back into
the trailer and drove the forklift out using the center portion of the dock
plate. At one point, J. Ulch contends,
Marszalkowski came to him and asked what was taking so long with a particular
trailer. J. Ulch jokingly replied that
Marszalkowski could help him by preparing the bills for him. Marszalkowski simply looked at him and told
J. Ulch to get off the forklift and come to the office, that he was being terminated
immediately for “spinning your tires.”
Once inside the office, and with Dotson
also present, Marszalkowski asked J. Ulch how his name was spelled. The latter replied that he had been working
at the facility long enough and that Marszalkowski already had his file before
him and should know how to spell his name. Marszalkowski replied by calling J.
Ulch an “asshole.” Marsalkowski then
asked Dotson to go out and make copies of the termination papers. When Dotson left to make copies, J. Ulch
asked Marszalkowski why “you guys got to be backstabbers and two-faced” since
he, J. Ulch, had done so much for the Company.
Marszalkowski, at that point, jumped out of his seat and yelled to J.
Ulch, “Get the fuck out of here now. Get
the fuck out of my office.” (Tr. 484.) J. Ulch recalls at one point asking Marszalkowski
for a copy of his termination paper, and the latter telling J. Ulch that he “wasn’t
fucking getting one.”31 Dotson had apparently returned by then, at
which time Marszalkowski instructed Dotson to escort J. Ulch off the
premises. J. Ulch asked Dotson if he
could make a quick phone call before he left, but he was told no. On his way out, Wilson came up to him and
asked what had happened, that he had heard yelling, and J. Ulch told him he had
just been fired and that Wilson would be next.
J. Ulch then asked
Marszalkowski provided some testimony
regarding J. Ulch’s discharge. He admits
being present at the
Discussion
Regarding J. Ulch’s discharge, counsel
for the General Counsel has, I find, made a strong prima facie showing that J. Ulch’s
termination was motivated by antiunion considerations. J. Ulch, as previously discussed, was an active
Local 20 supporter prior to his discharge, having attended union meetings,
signed an authorization card, and solicited signed cards from other employees
on Local 20’s behalf. The record also
makes clear that the Respondent was fully aware of his union sympathies when it
fired him on March 21. Thus, Supervisors
Ulrich, Lee, and Bateson all questioned J. Ulch about his attendance at the union
meeting on March 17, making clear that they either knew or had reason to
suspect, that J. Ulch was involved with the
The Respondent contends that J. Ulch was
lawfully terminated for operating a forklift in an unsafe manner, notably for
causing the tires to spin which, it points out, J. Ulch readily admitted doing.32
While J. Ulch did admit that the tires on his forklift spun on the day
in question as he was loading freight, he credibly explained that the spinning
of the tires was inadvertently caused by the wet and slippery ramp and the
damaged dock plates. No evidence was produced
to dispute J. Ulch’s description of the weather conditions that day or the poor
condition of the dock plates.
The question that needs answering is
whether this inadvertent spinning of the tires constitutes an unsafe operation
of the forklift, such as to render J. Ulch’s conduct a “safety violation” under
Respondent’s rules. The Respondent, on
brief, readily admits no evidence was produced by either party on the definition
of, or what constitutes, a “safe/unsafe forklift operation.” (R. Br. 11.) It contends, however, that the burden of
proof on this question rests with counsel for the General Counsel. The Respondent is clearly mistaken in this
regard, for under Wright Line, supra,
the burden of proof, once a prima facie case has been established by counsel
for the General Counsel, as I have found has occurred here, shifts to the
Respondent to demonstrate by a preponderance of credible evidence, that its discharge
of J. Ulch was done for reasons unrelated to his union activity. Thus, it was incumbent on the Respondent, not
counsel for the General Counsel, to show that the spinning of the forklift
tires constitutes a safety violation for which discipline, including discharge,
would be warranted.
The Respondent readily concedes, on
brief, that it “failed to establish [J. Ulch’s] operation as unsafe via expert
testimony.” (R. Br. 10.) The Respondent, however, did not need an expert
witness to makes its case, for it could simply have produced other witnesses to
testify, or documentary evidence (warnings, discharges, etc.) to show, that it
has, in the past, disciplined or discharged employees for similar conduct. Such evidence might have gone a long way
towards rebutting counsel for General Counsel’s prima face case. No such evidence, or for that matter any
evidence, other than Marszalkowski’s dubious claim of what he observed J. Ulch
doing with the forklift, was produced to establish any misconduct by J.
Ulch. The most than can be said is that,
as credibly testified to by J. Ulch, the tires on his forklift spun
inadvertently while traveling over a wet, slippery, damaged dock plate. No evidence, as admitted by the Respondent,
was produced to show that his conduct in this regard amounted to a violation of
its safety rules. Accordingly, I find
that the Respondent has not rebutted counsel for the General Counsel’s prima
facie case, and that J. Ulch’s termination was unlawful and a violation of
Section 8(a)(3) and (1) of the Act.33
(2) Steven Wilson’s termination
Marszalkowski’s testimony regarding
Discussion
The Respondent, as briefly testified to
by Marszalkowski, claims it lawfully discharged
Marszalkowski testified that the Respondent
maintains a progressive disciplinary policy which calls for issuance of an
initial letter of instruction, followed by a warning letter, then a final
warning letter, and finally a letter of termination. Managers have some latitude in determining
how many letters of instructions to issue before proceeding to a warning
letter, but may, depending on the nature of the infraction, issue a warning
letter without first issuing a letter of instruction. According to Marszalkowski, the Respondent
maintains different tracks for different offenses. For example, attendance infractions are kept
on one track, infractions involving production-related work, such as damaging
freight or improper loading of freight, would be on different tracks. Thus, the nature of the violation will
determine which track will be used in applying the progressive disciplinary
policy. Marszalkowski also testified
that while the Respondent does not have a set period of time after which an
infraction will be removed from an employee’s file or no longer considered
under the progressive disciplinary policy, he did admit that, informally,
infractions more than a year old are generally not considered. (Tr. 32, 35.)
The Respondent’s claim that it fired
As to Respondent’s claim that
As to his absenteeism infractions (R.
Exh.-17), the employee discussion form, shows only that
As the only evidence produced by the
Respondent shows that
In sum, neither
(3) Merle Ulch’s termination
M. Ulch worked as a dockworker from 5
p.m.-5 a.m. at the
M. Ulch appeared to have been one of the
employees most responsible for trying to bring in the
M. Ulch recalled that sometime after his
March 14, union meeting and before his March 21, discharge, he and Supervisor Lee
were talking in the dispatch office when Lee asked him how the Union had gotten
started at the Toledo facility, and how it was proceeding. At one point during that conversation, Lee
mentioned that employees at the
M. Ulch testified to an incident that
occurred on March 8, several days before he contacted the
M. Ulch did in fact go straight to the
hospital. The following day, M. Ulch
returned to work with a hospital slip showing he had been treated at the
Gruic testified that on the day of the
acid spill, he was out on the dock talking with J. Ulch somewhere between 5–7
p.m., when Wilson, who was in the process of unloading a straight truck,
dropped a box as he was backing out of the truck.
Some 10 minutes later, the fire
department arrived, explaining they had received a call about a hazardous
material spill. Gruic escorted the
firemen to the location of the spill and, on reviewing the site, purportedly
told Gruic that “it looks like you guys are doing the right job, but let’s go
ahead and call somebody.” Gruic
proceeded to call Respondent’s safety director, John Ferenczi, who instructed
Gruic to call in a cleanup crew. Gruic
did so, and about a half hour later, a member of the cleanup crew showed up and
finished cleaning the spill. (Tr. 1002.)
According to Gruic, later that evening,
around 9 p.m., he called out over the PA system, as he did nightly, for employees
to bring him their bills. M. Ulch, he contends,
showed up about one half hour later with his bill, and Gruic asked what took
him so long. M. Ulch purportedly threw
his bills on the counter and walked away as if nothing had happened. Gruic then asked M. Ulch what was wrong,
and the latter replied that he was sick and was going home. When Gruic asked what he (M. Ulch) was so “pissed
off about,” M. Ulch purportedly replied, “This Company’s messed up, this is
bullshit. If you’re going to get on my case, why don’t you get on everybody’s
case because everybody else is working just as slow as I am.”
Gruic asked M. Ulch what he was talking about, and M. Ulch
allegedly answered, “If you keep pushing me, you’re going to regret it,”
pointing his finger at Gruic as he did so.
M. Ulch, he recalled, looked at everyone in the break room and said, “I’m
sick, I’m going to go home. I’m sick.
You guys all hear this, right? I’m
sick.” M. Ulch then punched out and
left. Gruic claims that M. Ulch did
not seem sick to him, and did not receive permission to leave work early. Gruic made no mention in his testimony of
having issued M. Ulch a warning or taking any other disciplinary measure
against him for leaving early, or for his conduct and “you’re going to regret
it” comment to Gruic. Nor was any
documentary evidence produced to show that M. Ulch was cautioned, warned, reprimanded,
or otherwise disciplined for his alleged misconduct on March 8.
Lach worked for Respondent from August
2005, through March 21, when, as noted, he was fired from his district manager
position at the
Regarding M. Ulch’s March 8, incident
when the latter left work complaining of fumes-related medical problems, Lach
was not at work that day and, consequently, had little to say as to what may
have occurred. He did, however, testify
that he did not discipline M. Ulch for leaving work early that day. He explained that he had been trained,
presumably by the Respondent, that if an employee already at the facility
reports being sick either before beginning a work assignment or after completing
one, it was his practice to let the sick employee go home. Lach claims that, based on what he had been
told, M. Ulch had completed his assignment when he asked to leave the
facility and, for this reason, did not feel discipline was justified. He further expressed the view that M. Ulch’s
subsequent termination was not warranted.
Lach made no mention in his testimony of having told M. Ulch about a
writeup prepared by Gruic, nor, for that matter, was Griec asked if he had
prepared any such writeup on M. Ulch, as M. Ulch claims he was told by Lach.
Unlike Lach, Lee did witness the exchange
between Gruic and M. Ulch on March 8.
Lee testified that on arriving to work March 8, he observed chaos on the
dock, and that the rear part of the dock had been quarantined and cordoned off
by HAZMAT personnel due to the acid spill.
The spill was apparently in the process of being cleaned up when he
arrived. Later that evening, Lee saw M.
Ulch enter the breakroom with some bills in his hand reflecting that he had
just finished unloading a trailer. As M.
Ulch entered the room, Gruic asked the latter if he had the bills from another
trailer that had been loaded, and M. Ulch replied he had, and that he was in
the process of writing up the bill for the other trailer. Gruic, Lee contends, told M. Ulch that he
would have to unload the other trailer to find out what had been loaded and to
ensure that the correct freight was put on, even though M. Ulch told him he had
the bills reflecting what had been loaded.
M. Ulch, according to Lee, became upset and told Gruic he was going
home, that he was feeling sick from having to help clean up the acid spill, and
was going to the hospital. Gruic
insisted that M. Ulch remain and get the work done so that the drivers could
get out. M. Ulch replied that he was
leaving for the hospital and would bring back a hospital slip in the morning to
confirm his visit. Although he admits
that M. Ulch was angry at being asked by Gruic to unload a trailer truck, in
his version of the exchange between Gruic and M. Ulch, Lee makes no mention of
seeing M. Ulch point his finger at Gruic or say to him, “If you keep pushing
me, you’re going to regret it,” as testified to by Gruic. M. Ulch, as noted, likewise made no mention
of it in his testimony. Rather, Lee’s
testimony appears to be more in line with M. Ulch’s version of the incident,
than with Gruic’s. I credit M. Ulch’s
account and find that he never implicitly or otherwise threatened Gruic by
pointing his finger at Gruic and telling him he would regret it if he, Gruic,
kept pushing him.
On the day he was fired, M. Ulch, like J.
Ulch and Wilson, recalled seeing Marszalkowski and Dotson hiding behind some
freight observing him and others working.
At the time, he did not know who Marszalkowski was, but apparently
learned later that day who he was from J. Ulch.
He recalls at one point seeing some police officers in the main
office.
Discussion
Applying a Wright Line analysis to M. Ulch’s discharge, I find that counsel
for the General Counsel has made a prima facie showing that M. Ulch’s discharge
was unlawfully motivated by antiunion considerations. M. Ulch, as noted, was one of Local 20’s
initial proponents and supporters. He
credibly explained that he visited Local 20’s office on his own to obtain
information on how to obtain representation, signed an authorization card on
its behalf, solicited others to do so, and attended union meetings. The record, in particular, Lee’s undisputed
testimony, makes clear that the Respondent was fully aware of M. Ulch’s
involvement with Local 20 as early as February, one month before terminating
him. It is equally clear, as already
pointed out above in connection with the unlawful, union-motivated terminations
of Confere, Rea, Goodsell, J. Ulch, and Wilson that the Respondent harbored
animosity towards the
The Respondent has proffered mixed
reasons for terminating M. Ulch. Thus,
at the hearing, Marszalkowski stated that M. Ulch was terminated for expressing
violence in the workplace by telling Gruic on March 8, that he was “going to
knock him on his ass.” Asked if this was
the sole reason for M. Ulch’s termination, Marszalkowski answered that it
was.39
Several factors point to Marszalkowski’s
explanation as being nothing more than a pretext. First, Marszalkowski himself never witnessed
the incident, so that his claim as to what M. Ulch may have said to Gruic
on March 8, is obviously based on second-hand information. Marszalkowski, however, never identified who
may have reported this incident to him, or when. Gruic, for his part, never claimed to have
informed Marszalkowski of what occurred on March 8, between him and M. Ulch. Second, according to Gruic’s account, what M.
Ulch said to him was that “[i]f you keep pushing me you’re going to regret it.” Gruic never claimed that M. Ulch threatened
to “knock him [Gruic] on his ass,” as testified to by Marszalkowski. Third and foremost, M. Ulch, as found above,
credibly denied threatening Gruic, either as described by the latter, and much
less as testified to by Marszalkowski, whose testimony in this regard, I find,
to be a pure fabrication given the inconsistency between his and Gruic’s
account, and his failure to identify who reported the incident to him, or when
he first learned of it.
Further, notwithstanding Marszalkowski’s
claim that M. Ulch was terminated only for threatening Gruic on March 8,
the Respondent, on brief, avers that M. Ulch was also discharged for “leaving
the workplace without permission,” referencing in support thereof General Counsel’s
Exhibit-9, the termination letter. (R. Br. 11.)
Again, there are several problems with this particular explanation. First, it is inconsistent with Marszalkowski’s
admission at the hearing that M. Ulch was discharged solely for his alleged threat
to Gruic on March 8, and not for leaving work early that day. These inconsistent explanations proffered by
the Respondent and by Marszalkowski for M. Ulch’s termination strongly support
an inference that they are pretextual in nature and not the true reason for his
discharge.
As to the Respondent’s claim on brief
that M. Ulch was also terminated for leaving work early without approval on
March 8, this too does not withstand scrutiny, for, according to Lach’s
credited and undisputed testimony, employees who became ill at the workplace
either before or after completing an assignment were generally not penalized
for leaving work early. Lach opined,
based on his knowledge of what occurred, including the fact that M. Ulch had
completed his assignment before leaving work on March 8, that disciplining M.
Ulch for doing so that day would not have been justified. In fact, M. Ulch, who came in the following
day with a document confirming his visit to the hospital the night before, was
never disciplined for leaving work early.
The Respondent’s decision, therefore, some 2 weeks after the fact, to
terminate M. Ulch purportedly for leaving work early without authorization on
March 8, after declining to do so on the day in question, strikes me as purely
pretextual. See Traction Wholesale Center, Inc., 328 NLRB 1058, 1073 (1999). I find, instead, that neither M. Ulch’s leaving
work early on March 8, nor his alleged insubordinate behavior towards Gruic
that day, which I have already found did not occur, were factors in M. Ulch’s
termination. As the Respondent has
failed to provide a legitimate reason for M. Ulch’s termination, it follows
that it has not overcome counsel for the General Counsel’s prima facie
case. Accordingly, I find that M. Ulch’s
termination was, as alleged in the complaint, discriminatorily motivated by his
union activities and, consequently, a violation of Section 8(a)(3) and (1) of
the Act.
Conclusions of Law
1. The Respondent, Mid-States Express,
Inc., is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Teamsters,
Local No. 20 and Freight Drivers, Dockworkers and Helpers Local Union No. 24,
a/w International Brotherhood of Teamsters are labor organizations within the
meaning of Section 2(5) of the Act.
3. By threatening to close its facilities
and with job losses if employees chose the Unions to represent them, threatening
to discharge employees because they supported the Unions, coercively
interrogating employees, creating the impression that it was keeping their
union activities under surveillance, soliciting employee grievances, and
promising to resolve them, promising to improve the employees’ benefits to
dissuade them from supporting the Unions, and interfering with the right of individuals
to distribute union literature on public property by calling the police, the
Respondent violated Section 8(a)(1) of the Act.
4. By terminating Richfield facility
employees Shawn Confere, Justin Rea, and David Goodsell for their activities on
behalf of Local 24, and Toledo facility employees Jason Ulch, Merle Ulch, and
Steven Wilson for their activities on behalf of Local 20, the Respondent violated
Section 8(a)(3) and (1) of the Act.
5. The above-described unfair labor
practices affect commerce within the meaning of Section 2(6) and (7) of the
Act.
Remedy
Having found that the Respondent has
engaged in certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed to effectuate
the policies of the Act.
To remedy its unlawful discharge of
employees Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Steven Wilson,
and Merle Ulch Jr., the Respondent shall be required to offer them, within 14
days from the date of the Order, reinstatement to their former positions or, if
their positions no longer exist, to substantially equivalent positions, without
prejudice to the rights and privileges they previously enjoyed.
The Respondent will also be required to
make the above-named employees whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of discharge to the date
of a proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall further be required
to, within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful discharges and, within 3 days thereafter, to
notify the above employees, in writing, that this has been done and that the
discharges will not be used against them in any way.
Finally, the Respondent shall be required
to post an appropriate notice to employees.40
On these findings of fact and conclusions
of law and on the entire record, I issue the following recommended41
ORDER
The Respondent, Mid-States Express, Inc.,
1. Cease and desist from
(a) Interfering, restraining, or coercing
employees in the exercise of the rights afforded them under Section 7 of the
Act by threatening to close its facilities and put employees out of work if
they selected the Union to represent them, threatening to discharge employees
for supporting the Union, interrogating employees about their union activities,
creating the impression it is keeping their union activities under
surveillance, soliciting and promising to resolve employee grievances to
dissuade them from supporting the Union, promising to improve their benefits if
they withdrew their support for the Union, and by interfering with their right
to handbill on public property by calling the police.
(b) Discharging or otherwise
discriminating against any employee at its Toledo, Ohio facility for supporting
International Brotherhood of Teamsters, Local No. 20, or at its Richfield
facility in Cleveland, Ohio, for supporting Freight Drivers, Dockworkers and
Helpers Local Union No. 24, a/w International Brotherhood of Teamsters, or for
supporting any other union.
(c) 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) Within 14 days from the date of the
Board’s Order, offer Shawn Confere, Justin Rea, David Goodsell, Jason Ulch,
Merle Ulch, and Steven Wilson full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously enjoyed.
(b) Make Shawn Confere, Justin Rea, David
Goodsell, Jason Ulch, Merle Ulch, and Steven Wilson whole for any loss of
earnings and other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the
Board’s Order, remove from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing that this has been
done and that the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a
request, or such additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the
Region, post at its facilities in
(f) Within 21 days after service by the
Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated,
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 interfere, restrain, or coerce you in
the exercise of your above-described rights by threatening to close our facilities
and put employees out of work if they choose to have a union represent them,
threaten to discharge you for supporting a union, interrogate you about your
union activities, create the impression that your union activities are being
kept under surveillance, solicit your grievances and promise to remedy them, or
promise you increased benefits, to dissuade you from supporting a union, or
interfere with your right to distribute union literature on public property by
calling the police.
We will not discharge or otherwise discriminate
against any of you for supporting International Brotherhood of Teamsters, Local
No. 20, or Freight Drivers, Dockworkers and Helpers Local Union No. 24, a/w
International Brotherhood of Teamsters, or any other union.
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 this
Order, offer Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Merle Ulch,
and Steven Wilson full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
We will make
Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Merle Ulch, and Steven
Wilson whole for any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
We will, within 14 days from the date of this
Order, remove from our files any reference to the unlawful discharges of Shawn
Confere, Justin Rea, David Goodsell, Jason Ulch, Merle Ulch, and Steven Wilson,
and we will, within 3 days thereafter,
notify each of them in writing that this has been done and that the discharges
will not be used against them in any way.
Mid-States Express, Inc.