Metropolitan Transportation Services, (2007)

Metro Transport LLC, d/b/a Metropolitan Transportation Services, Inc. and Teamsters Local Union 41, a/w International Brotherhood of Teamsters[1] Cases 17-CA-20061, 17-CA-20115, 17-CA-20138, 17-CA-20182, and 17-RC-11776

September 29, 2007

DECISION, ORDER, AND DIRECTION

By members liebman, schaumber, and kirsanow

On May 12, 2000, Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent 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 decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this decision, and to adopt the recommended Order as modified and set forth in full below.[3]

i. introduction

The unfair labor practice allegations in this case arose in the context of a 1999[4] effort by the Union, Teamsters Local Union 41, affiliated with International Brotherhood of Teamsters, to organize approximately 250 employees working for the Respondent, Metropolitan Transportation Services, Inc., which provides ground transportation services in the greater Kansas City area.

After a 13-day hearing, the judge issued the attached decision finding that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act.

The Respondent excepts to the judge’s findings that alleged discriminatee Dale Stripling was not a supervisor, that the Respondent violated Section 8(a)(1) by interrogating and threatening Stripling on March 1 and 2, and that it violated Section 8(a)(3) by discharging Stripling on March 3 and suspending six mechanics that same date for walking out in solidarity with Stripling. The Respondent also excepts to the judge’s findings of Section 8(a)(3) violations for the April 1 discharge of employee David Lindgren, the April 16 suspension and April 23 discharge of employee Joseph Webster, and the May 17 discharge of employee Russell McIntosh Jr.[5]

We resolve the foregoing exceptions as follows. A panel majority (Members Liebman and Kirsanow) adopts the judge’s finding, for the reasons he states and as further explained below, that the Respondent violated Section 8(a)(3) by discharging David Lindgren. A different panel majority (Members Schaumber and Kirsanow) reverses the judge and finds that Stripling is a supervisor. Accordingly, this same panel majority reverses the judge and dismisses the complaint allegations that the Respondent’s interrogations of and threats toward Stripling violated Section 8(a)(1), and that its discharge of Stripling violated Section 8(a)(3). This same panel majority reverses the judge and dismisses the complaint allegations that the Respondent’s suspension of six mechanics who walked out in protest of Stripling’s discharge violated Section 8(a)(3). Finally, we unanimously adopt the judge’s findings that the Respondent violated Section 8(a)(3) by discharging Russell McIntosh, Jr.,[6] and, for the reasons he states as modified below, that the Respondent violated Section 8(a)(3) by its April 16 suspension and April 23 discharge of Webster.

ii. the discharge of david lindgren

David Lindgren was employed by the Respondent as an airport shuttle driver. In February 1999, Lindgren learned that he had received a near-perfect score from a “ghost rider,” i.e., an individual contracted for by the Respondent to ride its shuttles and evaluate drivers’ performance. Shortly thereafter, however—specifically, on February 23—Lindgren was orally counseled about smoking in his shuttle van. Then, on March 11, he was orally warned concerning an incident that happened on March 10, when an interaction with a passenger culminated in Lindgren threatening to put the passenger off the van if she did not terminate a cell-phone call. A memo prepared for Lindgren’s personnel file stated, “This is to advise Dave that any further instances of this type of behavior will result in disciplinary action up to and including termination”; and the judge found that Lindgren was orally warned “as stated in the memo.” Another complaint of rudeness to a passenger was documented in Lindgren’s file on March 28. At that time, shuttle manager Jack Mawby pulled Lindgren’s file and reviewed it. Despite the March 11 warning that “further instances of this type of behavior will result in disciplinary action up to and including termination,” no such discipline was forthcoming. Indeed, Lindgren was not even spoken to about the March 28 incident.

Before March 29, the Respondent was unaware of Lindgren’s union sympathies. That changed on March 29, when Lindgren attended a company meeting at which Respondent’s President George introduced Mawby as the new shuttle manager. Lindgren sat in the front row, one of only two persons in that row, wearing an orange, 3-inch diameter “Vote Teamsters” button. When George came in, he looked immediately at Lindgren, who was seated just 10 feet away.

Shuttle drivers accept payment from passengers by cash or credit card and place the cash and credit-card receipts in a “ticket bag.” Drivers generally turn in their ticket bags at the end of their shift. By arrangement with management, however, Lindgren took his ticket bag home with him after his shift ended and turned it in the following morning. In early February, a logistical change in Respondent’s operations obviated the need for Lindgren to take his ticket bag home. After that change, Lindgren dropped off his ticket bag at shift’s end about 90 percent of the time. However, Respondent never revoked Lindgren’s authorization to take his ticket bag home. Accordingly, he continued to do so the other 10 percent of the time, and no one from management ever told him not to do so.

On March 31, at 5:00 a.m., Lindgren called off sick. He spoke with shift supervisor Dan Sanderson. Lindgren told Sanderson that he still had his ticket bag from the day before. Sanderson told him to bring the bag with him the next day when he reported for work. At 5:30 p.m., Mawby called Lindgren and asked him to bring in the ticket bag right then. Lindgren replied that he was sick and had been sick all day, and that Sanderson had approved his bringing the bag the next day.

On April 1, the Respondent discharged Lindgren, giving him the following three reasons: (1) smoking in a company vehicle; (2) customer complaints about poor service and bad attitude; and (3) “continued violation of policy by taking his ticket bag home instead of dropping it at the end of each shift.” At the hearing, Mawby added “gross insubordination” as yet another reason for the discharge, citing Lindgren’s refusal to bring in the ticket bag when Mawby asked him to.

The judge found each of these reasons pretextual. Observing that the last reported smoking incident had occurred more than a month earlier on February 23, the judge found it “stale” and “a blatant pretext.” He similarly rejected as pretextual the claim of a “continued violation of policy” for Lindgren’s handling of his ticket bag because Lindgren had been authorized to take his bag home, and that authorization had never been revoked. The judge also found that Mawby’s shifting addition, at the hearing, of “gross insubordination” as yet another reason for the discharge “expose[d] [Respondent’s] position as insincere and completely untrustworthy.”

As for the second stated reason for Lindgren’s discharge—continued customer complaints about Lindgren’s service and attitude—the judge found that it had “some basis.” However, he found that even this reason “smells of taint.” The Respondent gave Lindgren only a single oral warning about customer service on March 11. (The earlier oral counseling concerned smoking in the van.) Although it memorialized the March 28 incident in Lindgren’s file, the Respondent never spoke to Lindgren about it. Instead, Lindgren was simply discharged. The judge took note of the fact that the Respondent failed to afford Lindgren any intermediate disciplinary steps, such as a written warning or suspension. The judge acknowledged that the Respondent had no written progressive disciplinary system. Nonetheless, he found that the Respondent’s willingness to jump on Lindgren’s past customer-service missteps to justify a discharge, absent even a single “formal reprimand” for them, revealed that the Respondent’s second stated reason for discharging Lindgren was also pretextual.

Having found each of the Respondent’s stated reasons pretextual, the judge found that the real reason for Lindgren’s April 1 discharge was Respondent’s animus against his open display of support for the Union on March 29. We agree.

We begin by reviewing certain well-settled principles. Under Wright Line,[7] the General Counsel must show that a discharged employee’s protected conduct was a motivating factor in the employer’s decision. As part of his initial showing, the General Counsel may offer proof that the employer’s reasons for the personnel decision were pretextual. Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); see also Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) (“[W]hen the employer presents a legitimate basis for its actions which the factfinder concludes is pretextual . . . . the factfinder may not only properly infer that there is some other motive, but ‘that the motive is one that the employer desires to conceal—an unlawful motive . . . .’”) (quoting Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966)).

Typically, once the General Counsel has established his initial case under Wright Line, the burden shifts to the employer to show that it would have taken the same action even in the absence of the employees protected activity. But where it is shown that the employers proffered reasonsare pretextualthat is, either false or not in fact relied uponthe [employer] fails...