Trojan Transportation, Inc.

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trojan Transportation, Inc. and James P. Leale. Case 4-CA-10161 May 20, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELIO On February 11, 1980, Administrative Law Judge Irwin H. Socoloff issued the attached Deci- sion in this proceeding. Thereafter, Trojan Trans- portation, Inc., Respondent herein, filed exceptions and a supporting brief and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Trojan Trans- portation, Inc., Delanco, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent argues that, if it is required to make the alleged discri- minatees whole, backpay and seniority should date from the time two employees were added to the ork force without recalling the alleged discrimiliatees This argument presupposes that the alleged discriminatees were laid off for economic reasons and that the violation of the Act oc- curred when Respondent hired new employees without recalling them. On the contrary, the Administrative Law Judge concluded that the al- leged discriminatees were discharged, not laid off, on December 15, 1978, for engaging in protected concerted activity, a conclusion we affirm. Ac- coirdingly. we conclude that backpay and seniority should date from De- cember !, 1978, the date of the unlawful discharges. In mitigation of its backpay liability, Respondent may attempt to show in compliance pro- ceediigs that the discriminatees would have been laid off for economic reasons at some time after December 15, 1978, had they not been dis- charged for engaging in protected concerted activity however, Respond- ent is precluded from attempting to show, contrary to our findings, that the alleged discriminatees were laid off on December 15, 1978, for eco- nomic reasons 249 NLRB No. 84 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because they have filed contractual grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer James P. Leale and Ernest I. Harris, Sr., immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges previously enjoyed. WE WILL make James P. Leale and Ernest I. Harris, Sr., whole for any loss of earnings they may have suffered because of the discrim- ination against them, plus interest. TROJAN TRANSPORTATION, INC. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon a charge filed May 2, 1979, by James P. Leale, an indi- vidual, against Trojan Transportation, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a complaint dated June 29, 1979, alleging viola- tions by Respondent of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amend- ed, herein called the Act. Respondent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me in Philadelphia, Pennsylvania, on December 7, 1979, at which the General Counsel and Respondent were repre- sented by counsel. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence. Upon the entire record in this case, and from my ob- servation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Pennsylvania corporation engaged in the operation of a trucking business at its Delanco, New Jersey, facility. During the year preceding issuance of the complaint, a representative period, Respondent, in the course and conduct of its business operations, re- ceived more than $50,000 for the transportation of goods and merchandise from the State of New Jersey directly to points located outside that State. I find that Respond- TROJAN TRANSPORTATION, INC. 643 ent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. LABOR ORGANIZATION Local Union No. 830, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background Trojan Transportation, Inc., a wholly owned subsidi- ary of Food Fair, Incorporated, is a "contract carrier" licensed by the Interstate Commerce Commission, and hauls, by truck, merchandise sold in retail food and de- partment stores. In 1978 some 95 percent of Trojan's hauling activities were performed for Food Fair. In Oc- tober of that year, after the filing of a bankruptcy peti- tion, Food Fair reduced the scope of its business oper- ations causing a decrease in hauling work available to Trojan. In this case Respondent contends that, when, on December 15, 1978, it laid off truckdrivers James Leale and Ernest Harris, it did so as part of an effort to reduce operating expenses in response to its decreased volume of business. The Union is the representative of Trojan's truck- driver employees. At the time of the layoffs the drivers were covered by a collective-bargaining contract, negoti- ated by Respondent and the Union, effective August 30, 1976, to April 30, 1979. The General Counsel urges herein that Leale and Harris were laid off, and were not thereafter recalled, in violation of Section 8(a)(l) of the Act because they sought to enforce certain provisions of the contract. B. Facts' The contract requires that each covered employee be paid for certain holidays, including Election Day and Thanksgiving Day, provided that the employee works "both the scheduled full workday before and the sched- uled full work day after" the holiday. In 1978 Harris worked both the day preceding and the day following Thanksgiving Day. While Leale "called-in" on both the Wednesday before and the Friday after that holiday, he was told on both occasions that work was not available for him. When they obtained their paychecks following the holiday, Leale and Harris discovered that they had not received Thanksgiving Day pay. Thereafter, Harris raised the matter with Raymond Robinson, the then dis- patcher and a conceded statutory supervisor, who told Harris that he was entitled to the holiday pay. When, nonetheless, Harris did not receive that pay, he referred the matter to his shop steward, truckdriver Robert Vaughn. Leale also asked Vaughn to investigate the I The fact findings contained herein are based upon a composite of the testimony of Leale. Harris, truckdrivers James Diamond and Robert Vaughn, and Respondent's president, Leonard Schaeff, all of whom im- pressed me as truthful witnesses. I have not credited the testimony of Re- spondent's vice president, Albert Berman, who was an evasive and, at times, self-contradictory witness. matter after first speaking to Robinson and to Respond- ent's vice president, Albert Berman, who told him that he, Leale, would not be paid for Thanksgiving. In early December 1978 Vaughn met with Respond- ent's then general manager, Abraham Berman, now de- ceased, concerning the holiday pay issue, the first step in the contractual grievance procedure. Berman stated that Harris and Leale were not entitled to the claimed holi- day pay since they did not work the day preceding and the day following Thanksgiving. Vaughn again met with Berman I week later, and told him that the union busi- ness agent insisted that Harris and Leale be paid for the holiday since both employees were available for work on the days surrounding Thanksgiving. At that point Berman said that there would be no further problem about the matter. On Friday, December 15, when Leale asked Robinson for a reporting time for the following Monday, Robinson replied, "No, the only thing I have for you is your check for Thanksgiving and as of today, you're laid off." On that same day Abraham Berman gave Harris a check covering Thanksgiving Day pay, and told him that, as of that day, he, Harris, was laid off because of a lack of work. Neither Leale nor Harris was thereafter recalled. 2 Immediately preceding the layoffs, truckdriver James Diamond was present in Respondent's offices during a discussion among Robinson, Abraham Berman, and Albert Berman. At that time Abraham Berman handed two checks to Robinson, stating: Ray, here's Leale's and Harris' holiday pay for Thanksgiving. Call them up. Tell them to pick up their checks and lay them off. I don't know how you feel about it but I don't want those mother fuckers working here anymore. In January Abraham Berman told Diamond that he, Berman, had heard that Diamond had had a lot to say to the other drivers about the layoffs. Diamond reminded Berman of the December 15 conversation in Respond- ent's offices. Berman replied that that was the second time that Leale had "fucked" him, and that it would not happen again. As noted, Respondent contends that the Leale and Harris layoffs were economic in nature and caused by a decided decrease in business activity. Thus, prior to those layoffs, on November 7, 1978, Respondent had laid off its most junior driver, John Daniels, for lack of work.4 Leale and Harris, laid off on December 15, were the next most junior truckdrivers. There were no further layoffs. Albert Berman testified that, following the lay- offs, there was an increase in available work, requiring additional drivers. Thus, on April 9, 1979, Respondent a In January 1979 Leale filed a complaint with the Department of Transportation, claiming, inter alia, that Respondent's drivers were work- ing in excess of 15 hours per day in violation of DOT regulations. The record in this case does not contain evidence sufficient to show that Re- spondent learned that Leale was the complainant in that matter. I Preceding the Thanksgiving Day pay matter, Leale had complained to Respondent about its failure to pay him for the Election Day holiday 4 At that time Respondent also laid off driver Joseph Haughey How- ever, Haughey was immediately recalled when Respondent realized that he had been laid off "out-of-seniority." TROJAN TRANSPORTATION, INC. 643 _ _ 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recalled Daniels who, as indicated, was junior in senior- ity to both Harris and Leale. In addition, four new driv- ers were hired. Nonetheless, Respondent did not offer to recall Harris and Leale.A C. Conclusions While I accept Schaeffl's testimony that in the latter part of 1978 Respondent suffered a decrease in its volume of business, I nonetheless conclude that Leale and Harris were laid off in violation of Section 8(a)(1) of the Act as a reprisal for their grievance activities. That that was Respondent's reason for the sudden layoffs of those employees is revealed implicitly in Robinson's statement to Leale at the time of the layoffs, and shown explicitly in Abraham Berman's contemporaneous com- ments to Robinson, Albert Berman, and Diamond. In 1979 Respondent chose to recall Daniels, its most junior driver, and then to hire new employees, rather than recall Harris and Leale, actions explainable, on the state of this record, only in terms of Respondent's hostility toward those individuals because of their previous griev- ance activities. 6 Indeed, there is not a scintilla of record evidence showing that Harris and Leale were other than satisfactory employees. In these circumstances, the record permits no other conclusion than that Harris and Leale were, on December 15, 1978, discharged, not laid off, and that that action was taken because of Respond- ent's anger about paying them Thanksgiving Day pay following their grievance activities. Respondent then de- cided that it did not want "those mother fuckers working here anymore." I find and conclude that Leale and Harris were discharged in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I The collective-bargaining agreement provides that laid-off employees employed less than 2 years at the time of layoff are subject to recall for a 3-month period. Under that provision. Leale and Harris were subject to recall until March 15. 1979. 6 It is true that after March 15, 1979, Respondent was not contractual- ly obligated to recall Harris and Leale. Likewise, it was not contractually obligated to recall Daniels. However, this factor does not explain why Respondent chose to recall the junior Daniels, and then hire new em- ployees, rather than recall Harris and Leale, who assertedly had been laid off solely because of lack of work. CONCLUSIONS OF LAW I. Trojan Transportation, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 830, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging James P. Leale and Ernest 1. Harris, Sr., because they filed grievances under the applicable collective-bargaining contract, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 7 The Respondent, Trojan Transportation, Inc., De- lanco, New Jersey, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging employees because they have filed contractual grievances. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer James P. Leale and Ernest 1. Harris, Sr., im- mediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Make James P. Leale and Ernest 1. Harris, Sr., whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them by payment to each of them of a sum of money equal to that which that employee normally would have earned as wages from the date of the discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977) (see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. ? In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations ot the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. TROJAN TRANSPORTATION, INC. 645 (d) Post at its facility located in Delanco, New Jersey, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Re- spondent's representative, shall be posted by it immedi- In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. T R O J A N T R A N S P O R T A T I O N , I N C~~~~~~~~~~~~~~~~~~~~~~~~~~~~~. 4