Laidlaw Transit

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 509 (N.L.R.B. 1994)

509
315 NLRB No. 64
LAIDLAW TRANSIT
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. Additionally, the Respondent
asserts that the judge’s findings are a result of bias. After a careful
examination of the entire record, we are satisfied that this allegation
is without merit.
1 All dates here are for the period from October 1, 1992, through
September 30, 1993, unless otherwise indicated.
Laidlaw Transit, Inc. and George M. Kiefer. Case
6–CA–25486
October 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 22, 1994, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laidlaw Transit, Inc., Pitts-
burgh, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Suzanne F. Donsky, Esq. and Leone P. Paradise, Esq., for
the General Counsel.
Julius Steiner, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Pittsburgh, Pennsylvania, on November 18, 1993.
The charge was filed on April 28, 1993, by George M.
Kiefer, an individual.1 The complaint, which issued on July
1, 1993, alleges that Laidlaw Transit, Inc. (Company or Re-
spondent) violated Section 8(a)(1), (2), and (3) of the Na-
tional Labor Relations Act (Act), as amended. The gravamen
of the complaint is that the Company allegedly: (1) rendered
assistance and support to Amalgamated Transit Union, Local
1493, AFL–CIO (Union), by deducting money from employ-
ees’ wages and remitting it to the Union, notwithstanding the
absence of employee authorizations for the deduction of re-
mittances; and (2) discharged its employee Kiefer because of
his union and concerted activities. The Company’s answer
denies the commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The The General Counsel and Respondent each filed a brief.
On the entire record in this case and from my observation
of the demeanor of the witnesses, and having considered the
arguments and briefs of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Delaware corporation with an office and
place of business in Pittsburgh, Pennsylvania, is engaged in
the business of providing transportation services to edu-
cational institutions and other entities. In the operation of its
business, the Company annually derives gross revenues in
excess of $1 million and annually purchases and receives at
its Pittsburgh, Pennsylvania facility goods and materials val-
ued in excess of $50,000 directly from points outside of
Pennsylvania. I find, as the Company admits, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION AND BARGAINING
UNIT INVOLVED
The Union was a labor organization within the meaning of
Section 2(5) of the Act. At all times material, the Union was
the exclusive collective-bargaining representative of the fol-
lowing unit of employees:
All full-time and regular part-time drivers and matrons
employed by the Company at its South Side, Pittsburgh,
Pennsylvania, facility; excluding all office clerical em-
ployees, mechanics and guards, professional employees
and supervisors as defined in the Act.
Since August 1, 1983 the unit has been represented by Local
85 of Amalgamated Transit Union, successor to Local 1493.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The current collective-bargaining contract between the
Company and the Union, covering the unit employees, was
and is effective by its terms from April 16, 1992, through
June 30, 1995. The contract includes a 30-day union-security
clause and checkoff procedure for union dues and initiation
fees.
George Kiefer was employed by the Company on October
21 and terminated on January 15. It is undisputed that during
the course of his employment, the Company deducted mon-
eys from Kiefer’s pay for union initiation fees and dues,
without Kiefer’s authorization. It is also undisputed that by
check dated June 21 and presented to Kiefer on July 28, the
Company reimbursed Kiefer for the unauthorized deductions.
Company Operations Supervisor Fred Giles, the Company’s
only witness, testified that the deductions were made because
of an error in the payroll department.
The Company provides schoolbus service pursuant to its
contract with the Pittsburgh public schools, and employs
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about 300 drivers for this purpose. Company Operations Su-
pervisor Fred Giles has overall charge of the Company’s op-
erations. Janis Opferman is terminal manager at the Compa-
ny’s South Side Terminal. Giles’ office is located away from
the terminal, however, he has occasion to be at the terminal,
and when there, conducts business in Opferman’s office.
George Kiefer began working for the Company on Octo-
ber 22, as a schoolbus driver, operating out of the South Side
Terminal. Opferman hired Kiefer, and was his supervisor.
On November 13 Kiefer broke up a fight between children
on his bus. The following Monday (November 16), Oper-
ations Supervisor Giles told Kiefer that a parent complained
about his handling of the altercation. On November 20, Giles
told Kiefer that the parent filed charges, and the Pittsburgh
Board of Public Transportation and the Company would not
permit Kiefer to drive until the charges were resolved. Giles
informed Kiefer that he was suspended, pending outcome of
the hearing. Terminal Manager Opferman was present during
this conversation, which took place in her office.
The parent filed assault charges against Kiefer. On June 18
the matter was heard before a judge, who dismissed the
charges. However on January 8, Opferman informed Kiefer
that he could return to work. Kiefer did return on January
11. Opferman was not called as a witness in this proceeding.
Operations Supervisor Giles, in his testimony, offered no ex-
planation as to why Kiefer was recalled to work in January,
long before the charges against him were resolved.
The collective-bargaining contract provides that new em-
ployees shall be on probation for 90 calendar days. Through-
out his employment, Kiefer was still a probationary em-
ployee. The contract further provides, with respect to proba-
tionary employees, that ‘‘discipline and discharge shall be at
the discretion of the employer and not subject to the Griev-
ance Procedure.’’ Nevertheless, Kiefer testified that on Janu-
ary 12, the day after he returned to work, he filed a griev-
ance over the manner in which the Company handled the
November 13 incident and his suspension.
Kiefer testified in sum as follows: He presented his griev-
ance to Union Steward Jean DiDolce. He wrote out his
grievance on a plain piece of paper. DiDolce then had him
sign a blank grievance form. She said she would enter the
grievance on the form, and return the original statement to
him. However, DiDolce never gave Kiefer either the original
statement or a copy of any grievance form. On January 14,
DiDolce told Kiefer that she had spoken to the Company, but
that the Company would not accept Kiefer’s grievance be-
cause he was on probation. However, in his investigatory af-
fidavit to the Board’s Regional Office, Kiefer stated that
Union Representative Jan Veresse gave him this information.
Union Steward DiDolce is employed by the Company as
a schoolbus driver, operating out of the South Side Terminal.
DiDolce, who was presented as a The General Counsel wit-
ness, testified in sum as follows: She was the only union rep-
resentative responsible for processing grievances at the South
Side Terminal. In mid-January, Kiefer gave her a grievance
statement. Another employee (Jean Janik) was present.
Kiefer complained that the Company did not do a proper in-
vestigation on his suspension. DiDolce thought that Kiefer,
although a probationary employee, might be able to file a
grievance because the Company was deducting union dues
from his paycheck. She told Kiefer she would talk to
Opferman and check with the Union. The next morning,
DiDolce presented the grievance to Opferman. Operations
Supervisor Giles was present. Opferman read the grievance,
and returned it to DiDolce. Opferman said the contract did
not cover Kiefer, because he was a probationary employee.
DiDolce checked with Union President Carter, who told her
they could do nothing because Kiefer was still in his proba-
tionary period. The General Counsel did not proffer the al-
leged written grievance in evidence, and offered no expla-
nation for the failure to do so.
Kiefer continued to work until Friday, January 15. He tes-
tified in sum as follows: He was late for work on January
15. His alarm failed to go off, and he had been drinking the
previous evening (but not on January 15). A company dis-
patcher called him at home. Kiefer missed his first (6 a.m.)
run, but reported to work about 7:15 a.m. and took the next
run at 8 a.m. About 9:30 a.m. he was summoned to the ter-
minal office. Opferman and Giles were present. Giles told
Kiefer he was ‘‘highly pissed off’’ that Kiefer filed a griev-
ance. Kiefer said this was his right. Giles replied that Kiefer
was not in the Union. Kiefer responded that it was not fair
that he should ‘‘lose $150.00 a week versus $93.00 a week
unemployment.’’ Giles and Opferman left the office for a
few minutes. When they returned, Giles told Kiefer that they
didn’t need him anymore.
Kiefer further testified in sum as follows: He was not
given any separation form or asked to sign one. There was
no discussion of his work performance, although Kiefer
could not recall whether they discussed the circumstances
under which he was late that morning. During Kiefer’s ten-
ure with the Company, he was never criticized or given any
warning concerning his driving or other bus operation, and
did not receive any traffic citation by reason of his bus oper-
ation. No one from the Company ever told him he was ob-
served driving in an improper manner.
As an adverse witness for the the General Counsel, Oper-
ations Supervisor Giles testified that he discharged Kiefer,
based on complaints from Theodore Vasser, transportation
coordinator for Pittsburgh public schools, and ‘‘some other
sources,’’ and Giles’ personal observations. Specifically, the
alleged complaints and observations concerned Kiefer’s al-
leged driving at excessive speed, overly rapid braking, and
improper use of signal lights. As a company witness, Giles
testified that he discharged Kiefer because of ‘‘his job per-
formance and some of the different safety violations that I
observed and complaints from my customers.’’ In his inves-
tigatory affidavit, Giles stated that he decided to terminate
Kiefer ‘‘because of complaints by the Pittsburgh School Dis-
trict and my own direct observation.’’ At no point in his tes-
timony did Giles identify any source of alleged complaints
about Kiefer, other than Transportation Coordinator Vasser.
Giles testified in sum as follows: During Kiefer’s first pe-
riod of employment (October 22 to November 20), Giles on
‘‘numerous’’ occasions observed Kiefer speeding, making
quick stops at stop signs, and making improper use of the
vehicle eight-way lighting system. Giles spoke to Kiefer two
or three times about these matters. He told Kiefer he had ‘‘to
be safe,’’ to slow down, and to use his lighting systems. He
also reminded Kiefer that he was a probationary employee.
However, Giles did not record either his observations or con-
versations with Kiefer, because there were no ‘‘very serious
violations.’’
511LAIDLAW TRANSIT
Giles further testified in sum as follows: During the period
of Kiefer’s employment following his return from suspension
(January 11 to 15), Transportation Coordinator Vasser dis-
cussed his complaints with Giles. Vasser furnished Giles
with Kiefer’s vehicle number. On January 14, Giles made
observations of Kiefer’s driving. Giles parked his car on Car-
son Street, where cars are parked on both sides of the street.
From this location he observed Kiefer’s driving for a dis-
tance of at least three blocks. Kiefer, with a bus full of chil-
dren, was speeding and driving erratically, and his lights
were not properly activated. Giles did not try to stop Kiefer.
Instead, he told Terminal Manager Opferman that they
should speak to Kiefer the next morning about his problems.
Giles went on to testify in sum as follows: On the morning
of January 15, Opferman informed Giles that Kiefer reported
late to work. When Kiefer finished his run, Giles and
Opferman summoned him to the terminal office. Giles ex-
pressed his concerns to Kiefer, including the fact that he re-
ported late that morning, and that Kiefer ‘‘smells like alco-
hol.’’ Kiefer became ‘‘pretty upset and verbal,’’ whereupon
Giles told him he would be terminated. Giles asked Kiefer
to sign his separation sheet. Instead, Kiefer stormed out the
door and left the terminal. Giles did not consult with
Opferman before terminating Kiefer. Giles was not aware
that Kiefer attempted to file a grievance over his suspension.
Giles further testified that he was not present at any con-
versation when DiDolce attempted to present Kiefer’s griev-
ance to Opferman, and Kiefer’s filing of the grievance had
nothing to do with Giles’ discharge of Kiefer. With regard
to Giles’ alleged remark to Kiefer about the grievance, Giles
testified that ‘‘I would never talk like that.’’
The General Counsel presented in evidence, two docu-
ments which were obtained by subpoena from Kiefer’s per-
sonnel file. The first (G.C. Exh. 3) purported to be Kiefer’s
separation sheet. This document was signed by Terminal
Manager Opferman and dated January 25, 10 days after
Kiefer’s discharge. The separation sheet contained a list of
11 possible reasons for discharge, including ‘‘not qualified,’’
‘‘under influence of intoxicant,’’ ‘‘violation of company
rules,’’ ‘‘misconduct,’’ ‘‘refusal to follow instructions,’’
‘‘tardiness,’’ and ‘‘insubordination.’’ Only the last reason,
‘‘other,’’ was checked. Under ‘‘explanation,’’ the sheet stat-
ed: ‘‘George was on probation. He did not come up to Com-
pany standards.’’ The sheet contained a space for employee
signature, but no indication that Kiefer refused to sign.
The second document (G.C. Exh. 4) was a photocopy of
an original, with the bottom portion cut off. This document,
handwritten on a sheet of notebook paper and dated January
15, purported to be a partial description of Kiefer’s termi-
nation meeting on that date. The narrative stated in part:
‘‘Badmouthed company—going to start trouble once he is
off probation pertaining to back pay he feels company owes
him (Nit-pick any issue). . . . Fred Giles & myself ques-
tioned him and again he stated that the Company did him
wrong[.]’’ The Company contends that this document is in-
admissible hearsay evidence.
Pittsburgh Public Schools Transportation Coordinator
Theodore Vasser, who was presented as a General Counsel
witness, testified in sum as follows: He is not responsible for
hiring, firing, or disciplining company drivers. His office has
a procedure for handling complaints from the public about
schoolbuses or their drivers. When complaints are received
(normally by phone), his office records such complaints on
a standard form, including identification of bus and driver.
His office then informs the Company about the complaint. If
the complaint involves a serious matter, his office will con-
duct an independent investigation. However, not all com-
plaints are recorded. Vasser is in regular contact with Oper-
ations Supervisor Giles, and speaks with him on an average
of 12 or 13 times per week.
Vasser further testified in sum as follows: He never per-
sonally observed Kiefer’s driving. His office has no record
of any complaints concerning Kiefer’s driving. He never told
Giles that he received such complaints. He does not recall
any complaints concerning Kiefer’s driving, or that Giles ex-
pressed concern about Kiefer’s driving. However, it is pos-
sible that Vasser and Giles might have discussed Kiefer’s
bus by its number.
B. Analysis and Concluding Findings
The General Counsel contends that the Company dis-
charged Kiefer because he filed a grievance against the Com-
pany. For the reasons discussed here, I agree with the Gen-
eral Counsel, and I further find, as alleged in the complaint,
that the Company thereby violated Section 8(a)(1) and (3) of
the Act.
In resolving the credibility questions posed by this case,
a significant fact is the Company’s conspicuous failure to
present Terminal Manager Opferman as a witness. The testi-
mony of the witnesses, including Giles, indicates that
Opferman was present and involved at all critical stages of
Kiefer’s employment and during the time of the events cul-
minating in his discharge. She was Kiefer’s immediate super-
visor, and consequently in the best position to evaluate his
performance. She recalled Kiefer from layoff, and was the
person who allegedly received his grievance. She was present
at Kiefer’s termination, prepared and signed his separation
sheet, and (as will be further discussed), evidently wrote a
memorandum concerning the termination interview. The
Company offered no explanation for its failure to call
Opferman as a witness.
‘‘An adverse inference is properly drawn regarding any
matter about which a witness is likely to have knowledge if
a party fails to call that witness to support its position and
the witness may reasonably be assumed to be favorably dis-
posed to the party.’’ Property Resources Corp., 285 NLRB
1105 fn. 2 (1987), enfd. 863 F.2d 964 (D.C. Cir. 1988); see
also Martin Luther King Sr. Nursing Center, 231 NLRB 15
fn. 1 (1977). Such adverse inference is warranted in the
present case, by reason of the Company’s failure to present
Opferman as a witness. Even without such inference, the ab-
sence of testimony by Opferman leaves critical elements of
the General Counsel’s case either uncontradicted or unex-
plained, and critical elements of Giles’ testimony lack cor-
roboration, thereby detracting from the weight and credibility
of that testimony. In contrast, critical elements of Kiefer’s
testimony were corroborated by Union Steward DiDolce, and
critical elements of Giles’ testimony were contradicted by
Transportation Coordinator Vasser, and by the Company’s
own records.
Union Steward DiDolce generally impressed me as a cred-
ible witness. She is presently employed by the Company, and
had no evident reason to knowingly testify falsely against her
employer. I credit her testimony, including her assertion that
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Company’s reliance on criminal law decisions in support of
its argument for exclusion of the memo (Br. 22–23), is misplaced.
In the present case, unlike those cases, an adverse inference could
be drawn from the failure of Respondent to present certain testi-
mony.
she attempted to present Kiefer’s grievance to Opferman, in
Giles’ presence. Indeed, in the absence of any testimony by
Opferman, DiDolce’s testimony that she presented the griev-
ance to Opferman, stands unrefuted. Giles, in his testimony,
simply denied that he was present or knew about the griev-
ance. He could not, and did not, deny that Opferman re-
ceived the grievance.
In crediting DiDolce, I have also taken into consideration
the handwritten memo, dated January 15, contained in
Kiefer’s personnel file. The fact that this document was con-
tained in the personnel file, and purported to describe
Kiefer’s termination interview, warrants an inference that this
was a company-generated document. The memo indicated
‘‘Fred Giles [and] myself questioned [Kiefer].’’ No one other
than Giles, Opferman, and Kiefer were present at the termi-
nation meeting. Therefore, the inference is warranted that the
memo was written by Opferman. As Opferman was not
called to testify, the inference stands unrebutted. I find that
the memo was written by Opferman, and may be considered
as an admission by the Company. See Fed.R.Evid.
801(d)(2)(D).2
In light of the admissions contained in Opferman’s memo,
I find that Kiefer’s grievance was discussed at his termi-
nation meeting, and that Giles was well aware that Kiefer
tried to file his grievance. The memo also indicates that
Kiefer made clear he intended to pursue his grievance after
completing his probationary period. The memo indicates
Company animus toward Kiefer by reason of his grievance,
i.e., the references to ‘‘[B]ad-mouthed Company’’ and
‘‘[N]it-pick any issue.’’ I credit the testimony of Kiefer, in
sum, that Giles expressed anger over the fact that Kiefer
filed a grievance, that this was the principal topic of discus-
sion at the termination meeting, and that Giles did not indi-
cate any other reason for terminating Kiefer.
In crediting Kiefer, I have also taken into consideration the
patently false and shifting reasons advanced by Giles for ter-
minating Kiefer. As indicated, Giles testified that he ob-
served alleged deficiencies in Kiefer’s driving during the pe-
riod from October 22 to November 20, but did not bother
to record his alleged observations or comments to Kiefer, be-
cause there were no ‘‘very serious violations.’’ If these mat-
ters were not sufficiently significant to warrant any notation,
then it is unlikely, in the absence of a discriminatory motive,
that Giles would consider the matters as a basis, even in part,
for discharging Kiefer.
I find particularly significant the fact that the Company re-
called Kiefer to work in January, notwithstanding the pend-
ing unresolved assault charge against him. It is evident that
the Company needed and wanted his services. No evidence
was presented that Kiefer’s recall was accompanied by any
advice or warning that he had to improve his performance.
As indicated, Kiefer testified that the Company never criti-
cized or warned him about his driving. I credit his testimony
in this regard.
I do not credit Giles’ testimony that Transportation Coor-
dinator Vasser or anyone else complained to him about
Kiefer’s driving. As indicated, Vasser testified that he never
observed Kiefer’s driving, and that complaints from the pub-
lic were normally reduced to writing and referred to the
Company. He further testified that he had no record of any
complaints concerning Kiefer’s driving, never referred any
such complaint to Giles, and had no recollection of receiving
such complaints or discussing Kiefer’s driving with Giles.
Vasser did testify that he did not record all complaints from
the public. However, if Vasser did receive complaints from
the public concerning Kiefer’s driving, and considered them
of sufficient gravity to refer to Giles, then it is probable that
Vasser or his office would have made some record of at least
one such complaint. Vasser was aware that such complaints
could result in suspension or discharge of the accused driver,
and consequently, that there should be some record. Accord-
ing to Giles, Vasser identified Kiefer by his vehicle number.
If so, this would indicate that Vasser had a record of alleged
complaints. In fact, as testified by Vasser, there were no such
records. I find that Giles received no complaints about
Kiefer’s driving.
As Giles received no complaints about Kiefer’s driving, it
follows that he had no reason, absent a discriminatory mo-
tive, to intentionally observe Kiefer’s driving on January 14.
As indicated, the Company employs some 300 drivers. More-
over, Giles’ testimony concerning his alleged observations,
presents a patently improbable story. It is unlikely that Giles,
sitting in a parked car, could have observed for a distance
of three blocks, the alleged defects in Kiefer’s operation of
the bus. If he did, then it is probable he would have stopped
the bus, and either admonished Kiefer or obtained a sub-
stitute driver. Moreover, the timing of Giles’ alleged obser-
vation, i.e., the day after Union Steward DiDolce presented
Kiefer’s grievance to the Company, tends to indicate that if
Giles made this observation, he did so in order to get some-
thing on Kiefer because Kiefer filed the grievance.
As indicated, Giles testified that he discharged Kiefer be-
cause of alleged complaints and his own observations con-
cerning Kiefer’s operation of his bus. However in his nar-
rative of the events leading to Kiefer’s discharge, Giles came
up with yet another and different reason for terminating
Kiefer. Giles, in his testimony, indicated that as of January
14, he simply wished to talk to Kiefer about his problems.
According to Giles, he decided on his own, and did, termi-
nate Kiefer only after Kiefer became ‘‘pretty upset and
verbal.’’ In sum, Giles suggested that he discharged Kiefer
because of his attitude on January 15. ‘‘[A] respondent’s ‘in-
ability to adhere with consistency to any explanation for its
action’ in terminating an employee warrants an unfavorable
inference against that respondent.’’ P*I*E Nationwide, 282
NLRB 1060, 1065 (1987), enfd. 894 F.2d 887 (7th Cir.
1990), and cases cited there.
The ‘‘separation sheet’’ contained in Kiefer’s personnel
file further tends to undermine both Giles’ credibility and his
professed and assorted reasons for terminating Kiefer. As the
separation sheet was ostensibly prepared and signed on Janu-
ary 25, it is evident that contrary to Giles’ testimony, Giles
did not present the sheet to Kiefer for his signature. As indi-
cated, it is also significant that Opferman did not check off
reasons which ostensibly, under Giles’ testimony, might have
constituted reasons for Kiefer’s discharge.
I find that the Company discharged Kiefer because he at-
tempted to file a grievance over his suspension and indicated
to the Company that he intended to pursue that grievance.
513LAIDLAW TRANSIT
On the basis of Kiefer’s efforts to file and pursue his griev-
ance, the Company’s knowledge of those efforts, the Compa-
ny’s declared hostility against Kiefer by reason of those ef-
forts, the timing of Kiefer’s discharge (2 days after DiDolce
presented his grievance), and the Company’s failure to give
Kiefer any other reason for his discharge, the General Coun-
sel presented a prima facie case that the Company terminated
Kiefer because he sought to file and pursue his grievance. As
Giles’ professed reasons for terminating Kiefer were demon-
strably false or pretextural, it follows that the Company
failed to meet its burden of establishing that it would have
terminated Kiefer in the absence of his grievance activity.
It is settled law that the filing of a grievance pursuant to
a collective-bargaining contract between a union and an em-
ployer constitutes union and protected concerted activity.
Therefore an employer violates Section 8(a)(1) and (3) of the
act by discharging an employee for filing a grievance. NLRB
v. City Disposal Systems, 465 U.S. 822 (1984); Pennsylvania
Electric Co., 289 NLRB 1200, 1211 (1988), and cases cited
there. It is immaterial whether the grievance is meritorious
or whether the employee has a contractual right to use the
grievance procedure. ‘‘[A]n employee’s ‘honest and reason-
able invocation’ of a collective-bargaining contract is con-
certed activity ‘regardless of whether the employee turns out
to have been correct in his belief that his right was vio-
lated.’’’ Regency Electronics, 276 NLRB 4 fn. 3 (1985), cit-
ing City Disposal, supra.
In the present case, Kiefer had an honest and reasonable
basis for believing that he had standing to file a contractual
grievance because the Company was deducting union dues
from his pay, and Union Steward DiDolce told him that for
that reason, he might be able to file a grievance. Even after
DiDolce informed him otherwise, Kiefer could and did rea-
sonably believe, in good faith, that he could pursue his griev-
ance after completing his probationary period. He so asserted
to Giles and Opferman. Therefore, Kiefer was engaged in
protected union and concerted activity, and the Company
violated Section 8(a)(1) and (3) of the Act by discharging
him for engaging in such activity.
I further find that during the course of Kiefer’s employ-
ment, the Company violated Section 8(a)(1) and (2) of the
Act by deducting moneys from Kiefer’s pay for union initi-
ation fees and dues, and remitting such moneys to the Union,
without Kiefer’s authorization. It is settled law that an em-
ployer violates Section 8(a)(1) and (2) of the Act if it de-
ducts union dues from an employee’s wages, absent written
authorization by the employee of such deduction. Grason
Electric Co., 296 NLRB 872, 887 (1989). The case authori-
ties do not indicate that in such cases, the finding of a viola-
tion turns on employer motivation. Rather, a guiding prin-
ciple may be found in Ladies Garment Workers v. NLRB,
366 U.S. 731, 739 (1961). In that case the Supreme Court,
in agreement with the Board, held that employer recognition
of a minority union as exclusive bargaining representative
‘‘cannot be excused by a showing of good faith.’’ (The em-
ployer recognized the union there in the mistaken but good-
faith belief that the union represented a majority of employ-
ees in the appropriate unit.) That principle is applicable to
the present case. Here, as in Ladies Garment Workers, supra,
the employer engaged in conduct which tended to unlawfully
coerce union membership or support, although such result
was not intended by the employer.
I further find that the present violation cannot be viewed
as isolated or insignificant. The Company deducted money
from Kiefer’s pay for union dues and initiation fees through-
out his employment. The Company did not reimburse Kiefer
until long after he was discharged and filed the present
charge. Moreover, the evidence indicates that by making
these deductions, the Company engaged in conduct which
misled Kiefer into believing that he had standing to file and
pursue his grievance. Consequently, the Company’s unlawful
conduct was a factor in the chain of events which culminated
in Kiefer’s unlawful termination. Therefore, a cease-and-de-
sist order is warranted.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union was, at all times material, a labor organiza-
tion within the meaning of Section 2(5) of the Act. Local 85
is the successor to the Union, and a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging George Kiefer because he engaged in
union and concerted activities, and to discourage employees
from engaging in such activities, the Company has engaged,
and is engaging, in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
4. By unlawfully deducting money from Kiefer’s wages
and remitting it to the Union, without proper authorization by
Kiefer, the Company has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Company has committed violations
of Section 8(a)(1), (2), and (3) of the Act, I shall recommend
that it be required to cease and desist therefrom and from
like or related conduct, and to take certain affirmative action
designed to effectuate the policies of the Act.
It is undisputed that by letter dated November 10, 1993,
company counsel sent Kiefer a letter advising him of an un-
conditional offer of reinstatement. At the close of hearing,
company counsel informed Kiefer, on the record, that coun-
sel was reaffirming the offer, and if Kiefer desired reinstate-
ment, he should contact Operations Supervisor Giles within
7 days. Neither General Counsel nor the Company discussed
these matters in their respective briefs. The General Counsel
simply requests a conventional order including reinstatement
with backpay. I am granting the General Counsel’s request,
subject to the condition that at the compliance stage of this
proceeding, the Company may present evidence that it made
a proper offer of reinstatement. As the Company reimbursed
Kiefer for its improper deduction of moneys from his pay,
no reimbursement remedy is necessary in this regard.
Having found that the Company discriminatorily termi-
nated George Kiefer, it will be recommended that the Com-
pany be ordered to offer him immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of earnings and benefits that he may have suf-
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest on and after January 1, 1987 is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
fered from the time of his discharge to the date of the Com-
pany’s offer of reinstatement. I shall further recommend that
the Company be ordered to expunge from its records any ref-
erence to his unlawful termination, to give him written notice
of such expunction, and to inform him that its unlawful con-
duct will not be used as a basis for future personnel actions
against him. Backpay shall be computed in accordance with
the formula approved in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).3 It will also be rec-
ommended that the Company be required to preserve and
make available to the Board, or its agents, on request, payroll
and other records to facilitate the computation of backpay
and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Laidlaw Transit, Inc., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees or in any other manner dis-
criminating against them with regard to their hire or tenure
of employment or any term or condition of employment, be-
cause they claim rights under a collective-bargaining con-
tract, or because they engage in any other union or concerted
activities for the purpose of collective-bargaining or other
mutual aid or protection.
(b) Assisting Amalgamated Transit Union, Local 85, AFL–
CIO (successor to Local 1493), by deducting moneys from
the wages of any employee and remitting such moneys to
Local 85 for initiation fees or dues, when such deductions
are not authorized in writing by the employee.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer George Kiefer immediate and full reinstatement
to his former job or, if such job no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed, and
make him whole for losses he suffered by reason of the dis-
crimination against him as set forth in the remedy section of
this decision.
(b) Expunge from its files any reference to the termination
of George Kiefer, and notify him in writing that this has
been done and that evidence of his unlawful termination will
not be used as a basis for future personnel actions against
him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
(d) Post at its Pittsburgh, Pennsylvania facilities, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge employees or in any other manner
discriminate against them with regard to their hire or tenure
of employment or any term or condition of employment, be-
cause they claim rights under a collective-bargaining con-
tract, or because they engage in any other union or concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT assist Amalgamated Transit Union, Local
AFL–CIO (successor to Local 1493), by deducting moneys
from the wages of any employee and remitting such moneys
to Local 85 for initiation fees or dues, when such deductions
are not authorized in writing by the employee.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer George Kiefer immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed,
and make him whole for losses he suffered by reason of the
discrimination against him.
WE WILL expunge from our files any reference to the ter-
mination of George Kiefer, and notify him in writing that
this has been done and that evidence of his unlawful dis-
charge will not be used as a basis for future personnel ac-
tions against him.
LAIDLAW TRANSIT, INC.