Parts Depot, 733 (2000)

Docket Number:12-CA-18478

her selection for layoff was based on the evaluation and with no consideration, or indeed knowledge, of her union activity. We find no merit to the Respondent's exceptions.

Parts Depot, Inc. and Union of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (UNITE.) Cases 12-CA-16449, 12-CA-16741, and 12-RC-7736

September 29, 2000



On June 30, 1997, Administrative Law Judge Richard

J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief to the Respondent's exceptions. The General Counsel filed cross-exceptions and a supporting brief, the Charging Party also filed a brief in support of the General Counsel's cross-exceptions, and the Respondent 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,1 and conclusions as modified below and to adopt the recommended Order.2

1. The Respondent excepts to the judge's finding that, beginning on June 1 until October 27, 1994, the Respondent embarked on a campaign of fabricated discipline, fraudulent performance evaluation, and unlawful layoff of employee Vivian Fortin in retaliation for her support of, and to discourage others from supporting, the Union. The Respondent contends that it was justified in issuing disciplinary warnings to Fortin, that her performance evaluation was based on her low productivity, and that

1 The Respondent and the General Counsel have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. 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.

We agree with the judge's finding that the Respondent's vice president for southern operations, Peter Bassett, did not threaten plant closure, as alleged in complaint par. 5(b), in a conversation with Jose Castro on May 9, 1994, when Bassett said, "Remember what happened to Eastern Airlines. Because they let the union in they went bankrupt." At most, Bassett's isolated statement is a misrepresentation as to what caused Eastern to go bankrupt, not an implicit statement that Parts Depot would take action on its own to declare bankruptcy if the Union won the election. In reaching this conclusion, we also rely on the judge's crediting of testimony that the speeches made by Bassett to employees did not include any unlawful veiled references to plant closure.

2 The judge's recommended Order and notice, as written, encompass the additional violations found below, and thus no modifications to the Order are necessary.

The Respondent is in the business of selling automotive replacement parts at wholesale from 11 warehouses and distribution centers in the eastern United States. Fortin began work at the Respondent's Miami warehouse in 1986 and, from that time until her layoff in October 1994, she held a number of customer service positions. Because of her reputation for providing excellent service to customers,3 in early 1994 the Respondent's then-vice president for southern operations, Peter Bassett,4 assigned Fortin to staff the Metro-Dade account, a separate account established by Bassett to provide exclusive service to approximately two dozen governmental customers in the metropolitan Dade County area.5 As of June 1994 Fortin had been commended for increasing sales in the Metro-Dade account.

All that changed on June 1, 1994, however, when the Respondent learned of Fortin's prominent support for the Union. On that day, Fortin appeared under subpoena to testify on the Union's behalf at a representation hearing and was quoted in the Miami Herald as saying the workers "want to better ourselves."6 When she returned to work later that day, Fortin received her first disciplinary warning since she began working for the Respondent. In total, the Respondent would issue four disciplinary warnings to Fortin during June, three within 2 days of the hearing, warnings that the judge found were based on fabricated allegations against Fortin.7 Also during that time, in what was described as a cost-cutting move, the

3 Bassett described Fortin as cheerful and willing to do whatever assisting work needed to be done. He also noted her skill at performing lookups, a process, which involves identifying a part by its appearance and looking up its part number. Indeed, the Respondent acknowledged that customers would ask for Fortin by name to perform this service.

4 Bassett's office was located at the Miami facility at issue here.

5 There is no dispute that, in order to remain competitive, the Metro-Dade account required an added level of customer service from that provided in the Respondent's telephone order room. To that end, Fortin was seated in an office separate from the "phone room" in which all other telephone orders were taken. In addition, Bassett installed a separate telephone line with voice mail capabilities for Metro-Dade customers only and established a delivery van specifically for those customers.

6 Fortin was the only employee quoted in the article.

7 The Respondent issued Fortin a warning on June 1, 1994, for failing to promptly return to work from the representation hearing; she punched out at noon and returned at 3:40 p.m. The next day, the Respondent issued a written warning for an incident at the loading dock when Fortin told a group of employees, in Spanish, to return to work. That same day she was disciplined for taking a coffeebreak with another employee. The other employee did not receive any discipline. Then, on June 23, Fortin was disciplined for talking to another employee before work.

Respondent removed the recently implemented services for the Metro-Dade account, i.e., the exclusive telephone number with its voice mail capabilities used to reach Fortin directly, and ceased the special van deliveries to those customers. The Respondent thereafter ground-lessly held Fortin accountable for the ensuing decreased sales in the Metro-Dade account, which the judge found was more likely attributable to the elimination of these support services.

Notwithstanding this discipline, Fortin remained one of the Union's most prominent vocal supporters, appearing in a group photo on a union flyer distributed during the campaign, passing out leaflets and petitions, and serving as one of the Union's two observers at the election held July 7 and 8, 1994.8

The Respondent contends that each of the disciplinary actions it took against Fortin was unrelated to her union activity. The Respondent contends that in each case Fortin was disciplined for being away from her workstation and in an area of the warehouse where she did not belong. The evidence does not support the Respondent's contentions.

Contrary to the Respondent, the credited testimony reveals that Fortin did have business reasons to visit the warehouse, had done so routinely in the past, and that the Respondent began to restrict her movements only after it learned of her support for the Union. Moreover, the credited testimony also shows that other employees were not similarly disciplined, even those employees who were talking to Fortin on the very occasion for which she was disciplined. Given this disparity of treatment and the fact that Fortin's movements were not restricted before the Respondent learned of her union activity, the reasonable inference, which we draw, is that Fortin's union activity was a motivating factor in the Respondent's discipline of her.

The Respondent also excepts to the judge's finding that it was motivated by union animus in giving Fortin a low performance evaluation in August 1994. The Respondent contends that Fortin's evaluation was based on her low call productivity (an average of 100 calls per day as compared with the 200-300 calls taken by the customer service representatives in the phone room) and declining sales in the Metro-Dade account. According to the Respondent, the judge ignored the uncontroverted evidence that the Respondent's outside salesman, Robert Ortega, told Bassett that customers were complaining of

poor service. Moreover, the Respondent contends that at the time of the evaluation Metro-Dade sales had declined and it blamed the decline on Fortin's being away from her desk and unable to receive the calls. Finally, the Respondent contends that the judge engaged in "rank speculation" when he determined what Fortin should have received on her evaluation based on past evaluations in 1987 and 1989.

There is no dispute that, in early August 1994, the Respondent issued Fortin a performance evaluation in which she received an overall rating of "2," indicating "improvement needed." The judge found the Respondent's reasons for its low evaluation of Fortin to be fraudulent, pretextual, and motivated by union animus. In finding the unfavorable evaluation to have been unlawfully motivated, the judge engaged in an extensive analysis of Fortin's prior evaluations, in 1987 and 1989, and compared the different categories on the respective evaluations.9 Based on that analysis, the judge determined that, had the Respondent not been unlawfully motivated, Fortin would have received an overall rating equivalent to a 4, indicating "above standard."

We agree with the judge that the Respondent's reasons for giving Fortin an unfavorable performance evaluation ring hollow. By the...

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