NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,536, TEL DATA CORPORATION and DALE FREDERICK and SHERRY J. SCOTT and RUSSELL T. ANDERSON., (Oct. 27, 1994), National Labor Relations Board, (Oct 27, 1994)

TEL DATA CORPORATION and DALE FREDERICK and SHERRY J. SCOTT and RUSSELL T. ANDERSON.

315 NLRB No. 46.Case Nos. 26-CA-14904, -14970 and -14997. October 27, 1994 Richard A. Scully, Administrative Law Judge..

Before Gould, Stephens and Browning.

Unilateral Changes by Employer--Work Conditions--New Employee Handbook.--By issuing an employee handbook, changing employees’ benefits working hours and procedures, discharging an employee for violating an unlawful policy and promulgating a more restrictive company van usage policy, without giving a union notice or an opportunity to bargain over the changes in work conditions, an employer violated its bargaining duty. The handbook, which was the first ever issued by the employer, announced policies that significantly reduced benefits previously enjoyed by the employees and the van policy was more restrictive that an existing policy. Section 8(a)(5).

Back reference: ¶3145.49.

Discrimination--Discouragement of Union Activities--Grievance Filing Activities.--An employer discriminated against its union employees by issuing an employee handbook that significantly reduced employee benefits and promulgating a more restrictive company van policy. The changes in working conditions were implemented in retaliation for the employees’ protected grievance filing activities, and the employer failed to prove that the changes would have been made absent the employees’ protected activities. Section 8(a)(3).

Back reference: ¶4080.796.

Unilateral Changes by Employer--Fact Finding--Work Conditions.--On the facts, by discharging an employee for disobeying its unlawfully implemented van policy, an employer violated its bargaining duty. Section 8(a)(5).

Interference--Fact Finding--Coercive Remarks.--On the facts, an employer’s erroneous statement to an employee, that he was not entitled to union representation or grievance processing because he had not paid union dues, was coercive and tended to interfere with the employee’s right to file a grievance. Section 8(a)(1).

Discrimination--Pretextual Nature of Reason--Evidence Unknown at Discharge.--By discharging an employee because he engaged in concerted and protected union activities, an employer discriminated against him. The employer claimed that it would have terminated the employee even absent those union activities because it learned after his discharge that he had overreported hours on his timecard. However, that reason was determined to be pretextual and disparate because the employer had previously permitted and encouraged other employees to overreport hours in times of irregular work. Section 8(a)(3).

Back reference: ¶4095.1745.

Interference--Coercive Remarks--Discouraging Union Activity.--In an attempt to discourage its employees from engaging in union activities, an employer committed a series of unfair labor practices. These coercive unlawful acts included telling employees they would lose benefits because they had insisted that the employer comply with bargaining contract provisions, threatening plant closure and firings, telling employees that they had to join the union in order to receive certain benefits and by promising an employee benefit in return for refraining from union activity. Section 8(a)(1).

Back reference: ¶3770.082.

Assistance to Unions--Fact Finding--Aid in Formation.--On the facts, by paying employee union dues out of its own funds, an employer rendered unlawful assistance to a union. Section 8(a)(2).

Discrimination--Antiunion Motives--Benefit Reduction, Warning.--In an attempt to curb its employees’ use of a bargaining contract grievance procedure, an employer committed a series of discriminatory unfair labor practices. These coercive unlawful acts included warning and discharging an employee in retaliation for engaging in protected activities, eliminating on-call bonus pay for local employees, withdrawing a benefit from out-of-town employees and withdrawing the use of a company van from local employees. Section 8(a)(3).

Back reference: ¶4010.408.Back reference: ¶4010.408.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions [2] only to the extent consistent with this Decision and Order. [3]

The judge recommended, inter alia, dismissal of certain complaint allegations regarding the Respondent’s distribution of a new employee handbook, issuance of a written out-of-town van policy, discharge of employee Sherry Scott, and a statement that nonmembers of the Union could not file grievances. For the reasons set forth below, we disagree with the judge on these issues.

The Respondent is in the business of installing electronic communications systems in retail stores throughout the country. Since 1979, the Respondent and the Union have been parties to successive collective-bargaining agreements.

On October 24, 1991, [4] Union President Jesse Parrish requested a grievance meeting with the Respondent to discuss the Respondent’s failure to provide benefits required by the contract. At a meeting on November 1, the Respondent agreed to honor the contract, and no further action was taken on the grievance.

On December 13, the Respondent conducted a meeting of employees at its headquarter offices in Nashville. At the meeting, Respondent President John Griffin announced that he knew at least eight employees had contacted the Union and that “since all this union crap has come up,” there were going to be some changes. Griffin stated that the union contract was being shoved down his throat, and warned employees that they could not have it both ways--if the Respondent had to adhere to the particulars of the contract, then any benefits not specifically required by the contract would be eliminated. Griffin also told employees that he could fire them, close the company, and reopen under another name.

Vice President Phillip Tournaud also addressed the employees. He stated that employees who signed dues authorization forms would be members of the Union, would be eligible to work on more jobs, and would get three more holidays than those who did not join the Union. [5]

Following the meeting, employees were issued, for the first time, an employee handbook. The handbook provisions eliminated certain benefits that the Respondent had been providing, including the “on-call” pay of $118 per week for local employees, the option of driving company vehicles to and from work, and the option of out-of-town employees to claim actual expenses in lieu of a per diem allowance. The handbook also contained the Respondent’s November 19 policy restricting out-of-town van use, and the November 18 policy restricting the use of company telephone credit cards.

[Employee Handbook]

1. We agree with the judge, for the reasons stated in his decision, that the distribution of the employee handbook at the December 13 meeting, without notice to the Union and without giving the Union an opportunity to bargain, violated Section 8(a)(5) and (1). For the reasons stated below, however, we find, contrary to the judge, that the issuance of the employee handbook also constitutes a separate violation of Section 8(a)(3) and (1).

The employee handbook announced policies that significantly reduced the benefits employees had previously enjoyed, and was issued soon after the employees protested the Respondent’s failure to comply with the terms of the contract. Indeed, as Griffin explained at the December 13 meeting, if the Respondent had to adhere to the particulars of the contract, then any benefits not specifically required by the contract would be eliminated. The judge himself found that several of the policy changes announced at the December 13 meeting and included in the handbook were discriminatory. The Respondent had never before issued an employee handbook and clearly did so at the December meeting as one more element of its plan to retaliate against employees for their protected grievance activity. Under these circumstances, we find that the issuance of the employee handbook violated Section 8(a)(3) and (1) of the Act.

[Company Rules]

2. The judge found that the Respondent did not violate Section 8(a)(5), (3), or (1) when, on November 19, it was announced new rules on the use of company vans by out-of-town employees. The judge found that the November 19 written policy was not different from the existing unwritten policy and thus did not constitute a unilateral change. The judge found that prior to November 19, the Respondent had a “don’t ask, don’t tell” policy with respect to the personal use of company vans on weekends, but that this policy was not unlimited.

In expecting to the judge’s findings, the General Counsel maintains that the November 19 van policy placed new restrictions on employees, and that the restrictions were implemented in response to the employees’ union activity, without notice to the Union and without affording the Union an opportunity to bargain over the change.

We agree with the General Counsel that the van policy announced November 19 was more restrictive than the previous policy, and that it was instituted both unilaterally and in retaliation against the employees’ protected activity.

It is undisputed that at all relevant times the Respondent assigned company vans to employees for use in getting to and from their out-of-town jobsites, and for carrying tools and equipment. Prior to November 19, employees were also permitted to use company vans on their weekends and days off. The record shows that employees regularly used company vans on weekends to go deer hunting, fishing, camping, snowmobiling, visiting relatives, and sightseeing, often traveling great distances to their destinations. Employee Neal Ingram testified that he drove the van on a 1-week trip from his jobsite in Texas to Arkansas, and then back to Texas. Prior to this trip, Ingram informed Tournaud of his vacation plans and was told to have a good time. On many occasions, employee Keith Bolton drove a company van from his jobsite in Gainesville, Florida, to his parents’ home in Valparaiso, Florida. Employee Dale Frederick testified that, with Supervisor Steve Cowell’s knowledge, he used a company van for 1 week to go hunting. He also drove the van from his jobsite in Minnesota to his home in Michigan for a 1-week visit, and then drove it back to Minnesota. Frederick also went in a company van on a camping trip with another employee to the Grand Canyon. Frederick testified that he told Cowell where he was going “most of the time,” and was never told that the Respondent had a problem with his vacation plans. Supervisor Rick Nelson credibly testified that he never restricted his employees in the use of company vans on their days off, and that he was never instructed to restrict employees’ van use. Nelson testified that it was “normal procedure” for employees to take the vans with them if they had time off between jobs, rather than leave them at a remote jobsite.

On November 19, the Respondent issued, for the first time, a written policy concerning the use of company vans by out-of-town employees during their nonworktime. The policy states, inter alia:

Employees can drive company vans a reasonable distance from job sites for meals, shopping for necessities, etc. and, of course, to hotels/motels for lodging purposes. A reasonable distance depends on many factors including, but not limited to, the size of the city where work is ongoing, availability of lodging, restaurants, etc. Reasonable judgment is to be exercised, and when in doubt the employee is to seek approval from his supervisor on what the company considers reasonable.

...

Any use of company vans other than those covered in this policy requires approval in advance by the employee’s supervisor for each and every time an exception to this policy is permitted.

We conclude that the above policy announces new restrictions on the employees’ use of company vans. Prior to this policy, there was never a requirement that employees obtain the advance approval of their supervisor to use company vans on their nonworktime, including trips beyond a “reasonable distance” from their jobsites. Indeed, the Respondent had never communicated any restrictions to employees and, as the judge noted, maintained an unspoken “don’t ask, don’t tell” policy. [6] The record shows that no employee had ever been denied the use of a van based on the “reasonable distance” limitation, even when the Respondent was aware that the employee would be driving the van a substantial distance from the jobsite.

We further find that the General Counsel made a showing sufficient to support the inference that the restrictive van policy was promulgated in response to employees’ protected conduct. [7] The Respondent’s president told employees at the December 13 meeting that changes were being made because employees had complained to the Union about the Respondent’s failure to abide by the contract. The Respondent also demonstrated considerable union animus, as found by the judge, by unlawfully eliminating other employee benefits that were not specified in the contract, and by threatening employees with discharge and plant closure, because the employees engaged in protected activity.

We further find that the Respondent has not met its burden under Wright Line of demonstrating that it would have issued the new van policy even in the absence of the employees’ protected activity. In the Respondent’s brief in support of exceptions, the Respondent asserts that “Griffin determined to limit the use of vans on out of town jobs as well as to terminate the privilege of driving vans home by local employees” based on information received in August from the Respondent’s insurance carrier regarding worker’s compensation liability. Despite the liability concerns raised in August, the Respondent did nothing to correct the perceived problem until November 19, just a few weeks after the first grievance meeting. [8] Under these circumstances, we find that the Respondent issued the new van policy in retaliation for the employees’ protected conduct, without notice to the Union and without affording the Union an opportunity to bargain, thereby violating Section 8(a)(5), (3), and (1).

On November 25, employee Sherry Scott was discharged for “authorized use of a company vehicle.” After completing work in Jacksonville, Florida, on Friday, November 15, Scott drove the company van to Myrtle Beach, South Carolina. When Scott returned to Nashville on November 25, he was informed that he was terminated for taking the van 750 miles [9] from the jobsite without permission. By discharging Scott pursuant to the unlawfully implemented van policy, the Respondent further violated Section 8(a)(5) and (1). [10]

[Coercive Remark]

3. On January 17, 1992, Vice President Tournaud met with Union Representative Parrish and employees Russell Anderson and Mike Brown to discuss a grievance filed by the two employees. At the beginning of the meeting, Tournaud asked Parrish whether Brown was a member of the Union. Parrish responded that it did not matter. Tournaud, in a hostile tone, insisted that Brown was not a member of the Union because he was not having dues deducted, and thus he could not file a grievance or be represented by the Union. Parrish explained that Brown had paid his dues directly to the Union, and that regardless of dues, he had a right to be represented by the Union. The grievance was denied and no further action was taken on it.

The judge found that Tournaud’s “erroneous remark” to Brown that he could not file a grievance and be represented by the Union because he did not have dues deducted was not coercive. The judge explained that the remark was made at the beginning of the meeting and was immediately challenged by Parrish, who proceeded to represent Brown on the grievance.

Under the circumstances, we cannot agree with the judge that the Respondent’s conduct had no substantial impact on employee rights. Approximately 1 month earlier, at the December 13 meeting, Vice President Tournaud drew the same distinction between union members and nonmembers, stating that members would be entitled to certain benefits not available to nonmembers. Tournaud’s comment at the January 1992 grievance meeting shows that the Respondent had not abandoned this unlawful distinction, but was continuing to insist that the contract only applied to union members. Because Tournaud’s statement would reasonably tend to interfere with, restrain, and coerce employees in the exercise of their protected right to file a grievance and be represented by the Union, we find that it violated Section 8(a)(1) of the Act.

4. We agree with the judge, for the reasons set forth in his decision, that the Respondent violated Section 8(a)(3) and (1) by discharging employee Dale Frederick on January 23, 1992, because he engaged in protected activity. In reaching this conclusion, however, the judge refused to consider evidence the Respondent discovered after Frederick’s discharge allegedly indicating that Frederick had overreported 8 hours on his timecard for December 3. The judge disregarded this evidence because he found that the alleged overreporting, which the Respondent asserts would have led to Frederick’s discharge even absent his protected activity, was admittedly not known to the Respondent at the time of its decision to discharge Frederick. The Respondent excepts to his finding and maintains that Frederick’s alleged misstatement of his time “justifies” his discharge.

Although the judge was correct in finding that the timecard incident is not relevant to the issue of whether Frederick was unlawfully discharged, the Respondent’s evidence nonetheless must be considered in determining whether Frederick is entitled to reinstatement and full backpay. Under Board precedent, “if an employer satisfies its burden of establishing that the discriminatee engaged in unprotected conduct for which the employer would have discharged any employee, reinstatement is not ordered and backpay is terminated on the date that the employer first acquired knowledge of the misconduct.” Marshall Durbin Poultry Co., [1992-93 CCH NLRB ¶17,707] 310 NLRB 68, 70 (1993), citing John Cuneo, Inc., [1989-90 CCH NLRB ¶16,123] 298 NLRB 856, 856-857 (1990), and Axelson, Inc., 285 NLRB 862, 866 (1977).

Applying this precedent, we conclude that the Respondent has not satisfied its burden. Contrary to the Respondent’s contention, the record shows that the Respondent encouraged under- and overreporting of hours during periods when employees worked irregular workweeks. Employer Ingram testified that on several occasions when he turned in overtime, Supervisor Cowell directed him to take a few days off the next week and then changed Ingram’s timecard to reflect 40 hours worked each week. Cowell admitted that he instructed employees to record 40 hours on their timecards when in fact they did not work a 40-hour schedule.

The record also shows that the hours Frederick allegedly “overreported” were hours spent traveling to his jobsite in Minnesota. It is undisputed that the Respondent permits employees to report the time spent traveling to and from their jobsites, including time delays that were not the fault of the employee, such as mechanical problems with the van. Frederick left for his jobsite on Monday, December 2, [11] and was delayed in Wisconsin on December 3 because of a snowstorm. On December 4, he arrived at the jobsite and began working. Thus, on Tuesday, December 3, the date Frederick is accused of overreporting hours, he was in fact traveling to the jobsite, time for which employees are normally compensated.

It is also undisputed that employee Joey Green, Frederick’s partner at the time, was caught in the same snowstorm and, like Frederick, did not begin working on the job until December 4. Despite the fact that Green also claimed 40 hours for the workweek, including the weather delay, Green was not investigated by the Respondent or accused of “stealing” time.

Based on the foregoing, it is clear that the Respondent treated Frederick in a disparate manner and did not satisfy its burden of establishing that it would have discharged any other employee for the same conduct. Accordingly, Frederick is entitled to reinstatement and full backpay.