NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,568, CARGILL, INC. (Salt Division) and RUSTY D. DAVENPORT., (Dec. 14, 1994), National Labor Relations Board, (Dec 14, 1994)

CARGILL, INC. (Salt Division) and RUSTY D. DAVENPORT.

315 NLRB No. 114.Case No. 3-CA-17809. December 14, 1994 Joel P. Biblowitz, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Rafael Aybar, for General Counsel. Albert J. Sufka and Felix Ricco, for Respondent.

Discharges--Cause as Justification--Union Organizer.--Although an employer discharged a leading union organizer during a union campaign, it did so with just cause and not with any discriminatory intent. The employee was properly discharged due to his inadequate job performance in misrepresenting an incident to the employer, damaging equipment, harassing an employee and amassing a poor attendance record. Thus, the employer was not obligated to keep the employee and the General Counsel failed to prove that the employee’s job would have been saved absent his union activities. Section 8(a)(3).

Back reference: ¶4065.608.

From Text of Board’s Decision

On July 18, 1994, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.

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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, [1] findings, and conclusions and to adopt the recommended Order.

We agree with the judge that the Respondent did not violate the Act by discharging Charging Party Davenport. The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Davenport for his organizing activities on behalf of the Union. The General Counsel also alleges that the Respondent independently violated Section 8(a)(1) of the Act because Davenport’s discharge was based in part on its September 8, 1992 warning to him which, the General Counsel alleges, was given in retaliation for Davenport’s protected concerted activity of informing another employee, Brown, of an admonition or threat of discipline that Davenport received on September 2. [2]

The judge found that the General Counsel failed to meets its burden of establishing a prima facie case that Davenport’s protected conduct was a motivating factor in the Respondent’s decision to discharge Davenport. In addition, the judge found that the General Counsel did not prove the separate 8(a)(1) discharge allegation because the judge found that Davenport’s questioning of Haskell on September 2 played no role in the Respondent’s decision to discharge Davenport. The General Counsel excepts to the judge’s finding regarding the 8(a)(3) and (1) charges and argues that it met its burden of proof for establishing a prima facie case under Wright Line, [1980 CCH NLRB ¶17,356] 251 NLRB 1083 (1980), enfd. [92 LC ¶12,987] 662 F.2d 899 (1st Cir. 1981), cert. denied [93 LC ¶13,389] 455 U.S. 989 (1982). The General Counsel also excepts to the judge’s finding regarding the separate 8(a)(1) violation because the General Counsel contends that the judge misconstrued the General Counsel’s basis for that allegation.

We adopt the judge’s finding that the General Counsel failed to sustain its burden of establishing a prima facie under Wright Line showing that Davenport’s protected conduct was a motivating factor in the Respondent’s decision to terminate Davenport. Further, assuming arguendo that the General Counsel had established such a prima facie case, and assuming that the September 8 warning would have violated Section 8(a)(1) if it were not time barred by Section 10(b), we find that Davenport would have been discharged even in the absence of his allegedly protected conduct. The record shows that the Respondent established that Davenport was discharged because of his work performance. Davenport’s record reflects that: in addition to the October 19 superbolter incident just prior to his discharge, Davenport damaged other equipment and received warnings for such incidents; he was not straightforward with the Respondent about an alleged “near miss” incident with employee Antrum; he harassed employee Haskell; he had a poor attendance record; and he had a history of poor work performance. In these circumstances, even in the absence of his union activities and in the absence of the September 8 warning for talking to employee Brown, we find that Davenport would have been discharged. Thus, we adopt the judge’s dismissal of the complaint.