NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,539, TRANSMART, INC. dba CINCINNATI TRUCK CENTER et al. and PATRICK STRETCH., (Nov. 08, 1994), National Labor Relations Board, (Nov 8, 1994)

TRANSMART, INC. dba CINCINNATI TRUCK CENTER et al. and PATRICK STRETCH.

315 NLRB No. 67.Case No. 9-CA-30114-1, -2. Novemver 8, 1994 Donald R. Holley, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Patricia Rossner Fry, for General Counsel. William C. Martin, pro se, West Chester, Ohio, for Respondent.

Discrimination--Pretextual Nature of Reason--Union Activist.--By issuing a disciplinary warning and subsequently terminating one of its employees because of his activities on behalf of a union, an employer discriminated against him. The employer’s reasons for dismissing him were demonstrated to be pretextual and the employer failed to prove that it would have terminated the employee absent his union activities. Section 8(a)(3).

Back reference: ¶4095.174.

From Text of Board’s Decision

On July 30, 1993, Administrative Law Judge Donald R. Holley issued the attached decision. The General Counsel filed exceptions and a supporting brief contending that the judge erred in failing to find that the General Counsel had established a prima facie case of violations of Section 8(a)(3) and (1) of the Act. Specifically, the General Counsel maintains that the judge erred in concluding that alleged discriminatee Patrick Stretch was a supervisor who was therefore not protected from discrimination on the basis of participation in union activity. The General Counsel also contends that the judge erred in concluding there was no nexus between the Union activity in which Stretch had openly engaged in his eventual written reprimand and termination. [1] We find merit in the General Counsel’s exceptions and affirm the judge’s rulings, findings, [2] and conclusions only to the extent consistent with this Decision and Order.

Summary of Factual Findings

The relevant facts are set forth in the judge’s decision and are merely summarized here. Patrick Stretch began working as a truck mechanic for the Respondent on January 11, 1984. About 3 months later he became a working foreman, a position he maintained until an unspecified date in 1991, when he was demoted. In early 1991, the Union succeeded in its organizing campaign. Subsequently, unit employees named Stretch and employees Dan Jones and Ronnie Matthews to their bargaining committee. Stretch served on that committee for 6 to 8 months. [3] Former employee Karen Mathis-Seiter testified that the Respondent’s owner and president, William Martin III, told her that he was displeased that Stretch had voted for the Union, that he could not have a foreman in the Union, and that he wanted Stretch “out of there.” [4] Mathis-Seiter also testified that about 3 months after the election she heard Service Manager Mike Worthington tell Foreman Jeff Abel that he was to record any work-related transgressions committed by any member of the employees’ bargaining committee. The Respondent did not dispute Mathis-Steiter’s testimony.

Stretch injured his shoulder in an on-the-job fall in October 1991. He remained off work, with the exception of a brief return the following January, until he returned to light duty status on June 29, 1992. [5] Stretch’s doctor recommended that he be assigned to an office job or work as a “service writer” and directed that he remain on light duty for 2 months. After about 4 days of performing office work, he returned to repairing trucks.

On July 17, Stretch received a written warning for an unexcused absence, which is not alleged to have been unlawful. Shortly thereafter, according to credited testimony, Martin told Stretch that he would like him to resign, a request that Stretch refused. Instead, Stretch indicated it was Martin’s prerogative to fire him. At this meeting, Stretch also accused Martin of having a vendetta against him because he perceived him to be prounion. Martin claimed, however, that he merely had conveyed his doubts that Stretch was serious about working for the Company.

In August, Stretch’s doctor determined that he was suffering from carpal tunnel syndrome and medical epicondylitis of the left elbow. By letter of August 18, the doctor informed the Respondent that he had restricted Stretch to “no repetitive use of his left wrist and elbow [and] no lifting using the left arm/wrist” for the next 4 weeks.

On September 16, a Wednesday, Stretch asked Foreman Abel to be execused the following Monday because he had personal business and a doctor’s appointment. Abel said he would advise the service manager and schedule the work accordingly. On Friday, however, Martin conferred with Stretch and asked him what he intended to do on Monday. When Stretch informed him that he had an appointment in the morning on a legal matter and a doctor’s appointment in the afternoon, Martin told him they needed him to work in the morning, but that he could keep his doctor’s appointment. Stretch then protested that he could not reschedule the morning appointment, but Martin told him that if he was not there on Monday, his absence would be unexcused. Stretch did not report for work that Monday. His visit to his doctor resulted in a form he presented to the Respondent that indicated that he should remain on light duty an additional 6 weeks.

The next day, September 22, Stretch appeared at his regular reporting time and clocked in on an “open ticket” because no supervisor or service writing was at the service desk to give him an assignment. Normally one of those individuals gives the mechanic a work order and the mechanic designates the assignment on the clock-in ticket. An open ticket carries no customer or job identification. [6] After walking through the shop to search for the day-shift foreman, Stretch returned to the service desk, where he found service writer, Carl Weber. He asked Weber for an assignment and Weber told him he was to see Service Manager Burgess. Stretch went to the service manager’s office, where Burgess gave him a written warning for an unexcused absence the previous day and informed him of his suspension for 2 days without pay. The General Counsel does not contest this warning and suspension. Burgess then gave Stretch a second warning, which is here in issue, that indicated his clocking in on an open ticket had violated the tardy portion of company rule 1. Regarding the latter matter, Mathis-Seiler testified without contradiction that other employees had not received reprimands when they clocked in on open tickets. [7]

After the 2-day suspension, Stretch was assigned to the night shift where John Coffey, an admitted supervisor, was the foreman. About 5 weeks later, on October 29, when Stretch reported at 4:30 p.m., Coffey asked him to find out what was wrong with the two-speed rear axle of a truck. Stretch soon determined that the motor that operated the axle mechanism was frozen. While he was taking the motor off, Stretch noticed that Martin and Burgess were conversing nearby and looking in his direction. At about 5 o’clock, Coffey informed him that because he was on light duty, he should discontinue working on the truck, and that there was no other work for him. Stretch expressed indignation that he was being given less than 4 hours of work, a matter that Coffey told him he would have to discuss with Burgess. When Stretch indicated he wanted to talk to Burgess, Coffey told him that Burgess had someone in his office. Stretch asked Coffey to tell Burgess that he wanted to talk to him.

Stretch also asked Cofey if he should get a new motor for the two-speed axle. When Coffey indicated that he should, Stretch placed an order for the motor. While he waited for the motor to arrive, Stretch worked on other parts at his workbench for about a half hour and then asked Coffey if Burgess was free. Coffey responded that Burgess had gone home. Stretch then asked if he should finish work on the truck. When Coffey acquiesced, Stretch put the motor in, tested the unit, and discovered a problem in the wiring harness. He told Coffey about the problem and asked him whether he should replace the harness or rewire it manually. Coffey told him to rewire it. Stretch rewired it and clocked out about 9 p.m. The next day, when Stretch called the shop, Burgess told him that he was terminated because he had not left work when he was supposed to and was thus guilty of insubordination.

On the basis of the foregoing, the judge found that the General Counsel had not established the Respondent’s union animus because the Respondent was entitled to be dissatisfied that Stretch, as a foreman, had expressed prounion sentiments. The judge equated having the title of foreman with having supervisory status. The judge also found that because the Union had lost a decertification election the previous April, there was no connection between Stretch’s union activity and the Respondent’s decision to terminate him in October. On the basis of those conclusions, he found that the General Counsel had failed to prove a nexus between protected activity and the Respondent’s termination of Stretch, and he accordingly dismissed the complaint.

II. Discussion

Contrary to the judge, we find that the General Counsel established a prima facie case of discrimination against Stretch in violation of Section 8(a)(3) and (1) of the Act, i.e., the General Counsel proved by a preponderance of the evidence that animus against union activity was a motivating factor in the Respondent’s decision in September to issue a disciplinary warning to Stretch, ostensibly for clocking in on an open ticket, and its decision in October to terminate him. These findings are supported by evidence of (1) Stretch’s participation in union activity, (2) the Respondent’s undisputed knowledge of that activity, (3) statements by the Respondent’s managers expressing hostility toward unions in general and Stretch’s union activity in particular, and indicating that Abel was to record transgressions committed by the bargaining committee members, and (4) the implausibility of the reasons assigned for the warning and discharge at issue. For the following reasons we do not agree with the judge that this prima facie case of discrimination was vitiated either by Stretch’s past status as a foreman or by the decertification of the Union in April 1992.

The judge used Stretch’s past status as a foreman as a basis for discounting the significance of the Respondent’s statements of hostility against his union activities. Thus, the judge credited testimony that after the Union’s 1991 election victory, Martin, the Respondent’s president, had stated that he was displeased with Stretch’s voting for the Union, that he could not have a foreman in the Union, and that he wanted Stretch out of there; but the judge treated these statements as simply lawful expressions of opposition to a supervisor’s participation in a union, rather than as animus against protected activity. There was, however, no basis for finding that Stretch, as a foreman, had ever possessed the indicia of supervisory status delineated in Section 2(11) of the Act. [8] A job title alone does not confer supervisory status, [9] and the record is totally devoid of any indication of what had been Stretch’s duties as a foreman. Indeed, the Respondent, on whom the burden rests to disprove Stretch’s employee status, had it asserted that he was a supervisor, [10] never made that assertion. [11]

We also disagree with the judge that, because the Union’s April 1992 decertification intervened between Stretch’s union activity and his later warning and discharge, there is no nexus between what the judge concedes was a the Respondent’s dim view of Stretch’s protected activity and its subsequent adverse actions against him. Whether or not the Respondent could be said to have had a “union problem” after the decertification, the fact remains that renewed union activity was not impossible; and President Martin was sufficiently concerned about the possible resurrection of union activity that, even after the Union had lost the decertification election, he proclaimed that he would “never have a union” there. Furthermore, Stretch--as one of the three employees who had served on the bargaining committee during the Union’s incumbency--was a prime candidate for leadership in any renewed organizational activity. [12]

Finally, we find that the Respondent’s reasons for warning and terminating Stretch are so implausible that they not only fail to establish the Respondent’s affirmative defense under Wright Line, [13] but actually strengthen the case for finding that the Respondent’s true motivation was animus against union activity. [14]

First, the warning issued to Stretch for clocking in on an open ticket was not based on any express disciplinary rule [15] and is at odds with the Respondent’s treatment of similar conduct on the part of other employees. As indicated in the factual summary above, both General Counsel’s witness, employee Mathis-Seiter, and the Respondent’s witness, Foreman Coffey, testified that, while clocking in on an open ticket without a foreman’s or service writer’s direction to do so was not an approved practice, mechanics had on occasion clocked in in this manner when a foreman or service writer was not immediately available. Stretch alone received a writeup for this practice--clear evidence of disparate treatment that strengthens the case for finding that the warning was motivated by the Respondent’s animus against his union sentiments. [16]

The Respondent’s termination of Stretch, ostensible for insubordination, has an even less plausible basis. The relevant item in the Respondent’s list of rule infractions is as follows:

21. Failure or refusal to follow instructions of supervision or to do your job assignment. (Do your work assignment and follow instructions; any complaint may be taken up later through regular channels.)

The credited testimony establishes that on October 29, the day on which Stretch allegedly violated this rule, he was at all times acting in accordance with the directions of Coffey, his foreman. When Stretch objected to being assigned less than 4 hours work that day, Coffey told him that he would have to discuss the matter with Service Manager Burgess but also indicated that Stretch could not see Burgess then because there was someone else in Burgess’s office. Coffey then authorized Stretch to order a new motor. When the new motor arrived and Stretch installed it, he discovered a broken wire in the harness and asked Coffey whether he should replace the harness or rewire it manually. Coffey instructed him to rewire it manually. Thus Coffey apparently not only acquiesced in Stretch’s finishing work on the truck, but also authorized Stretch to take certain steps necessary to complete the job. Because Stretch’s performance of work on that day was at all times in keeping with the instructions of Coffey, the reason given for his termination was totally baseless. Thus, like the reason the Respondent gave for the warning, it serves as additional evidence in support of our finding that the Respondent was motivated by antiunion animus.

Given our findings that the Respondent’s proffered reasons for the warning and discharge of Stretch were mere pretexts for discrimination, it is evident that the Respondent has failed to establish an affirmative defense under Wright Line, supra, that, even in the absence of Stretch’s protected activity, it would have issued the warning for clocking in on an open ticket and would have discharged him for insubordination. See Limestone Apparel Corp., [1980-81 CCH NLRB ¶18,046] 255 NLRB 722 (1981).

Accordingly, we find that the Respondent’s disciplinary actions against Stretch for clocking in on an open ticket and for completing the repair of a truck on October 29, 1992, violated Section 8(a)(3) and (1) of the Act, and we shall order an appropriate remedy.