Overnite Transportation Co.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overnite Transportation Company and Truck Drivers and Helpers Local Union No. 728. Case 10-CA-6657. April 19,1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 30, 1966, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief and the Charging Party filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. Union had given up its organizational efforts, and questioned Blankenship as to what he would do if the union question came up again When Blankenship gave his assurance that he would stand with the Company, Croft then indicated that Blankenship need have no fears However, upon subsequently learning of Blankenship 's continued union interests , as manifested by Blankenship's refusal to cross the picket line, Croft effectively discharged him In these circumstances , considered against Respondent's history of unfair labor practices and opposition to employee organization , we find the conclusion inescapable that Respondent seized upon Blankenship 's refusal to cross the picket line to rid itself of a known union sympathizer , who, though having previously declared his support for the Respondent, again revealed his union sympathies by refusing to cross the picket line Accordingly, we find that Respondent discharged Blankenship in violation of Section 8(a)(3) and (1) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner: I heard this case at Atlanta, Georgia, upon a charge filed by the Union on August 18, 1966, and a complaint issued by the Regional Director on October 3, 1966, in which it was alleged that the Respondent had violated Section $(a)(1) and (3) of the National Labor Relations Act, as amended, by discharging and refusing to reinstate one of its employees, James T. Blankenship, because he had refused to cross a picket line established at Ideal Roller Bearing (hereinafter referred to as Ideal Roller), a customer of the Respondent. An answer having been filed by the Respondent in which the commission of this alleged unfair labor practice was denied, I held a hearing on the issue at Atlanta, Georgia, on November 16, 1966. Subsequent to the hearing, counsel for the General Counsel filed a brief with me. Upon the record so made, and in view of my observation of the demeanor of the witnesses, I hereby make the following findings of fact: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Overnite Transportation Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i We agree with the Trial Examiner, for the reasons fully stated in his Decision, that Respondent violated Section 8(a)(1) by discharging Blankenship, not for justifiable business reasons, but for the purpose of penalizing him for refusing to cross a picket line, a protected concerted activity We also agree with his further finding that the discharge of Blankenship was motivated by Respondent's union animus, and hence violative of Section 8(a)(3) In affirming the Trial Examiner in this regard, we note that Blankenship was a known adherent of the Union, which though certified in May 1964, had failed in its efforts to secure a collective-bargaining agreement with Respondent In January 1966, Blankenship had been offered employment with another -firm, and, out of concern for his prounion record and failure to support recent employee- decertification activity, sought out District Manager Croft to discuss the security of his job tenure in the light of his union activities In that discussion, Croft informed Blankenship that the I. THE RESPONDENT The Respondent, Overnite Transportation Company (hereinafter referred to as Overnite), is, and at all material times has been, a Virginia corporation, maintaining an office and place of business at Atlanta, Georgia, where it has been engaged as a common carrier by motor vehicle in the interstate transportation of freight. During the past calendar year, which is a representative period, the Respondent received in excess of $100,000 from the interstate transportation of freight. The Respondent admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers and Helpers Local Union No. 728 (hereinafter referred to as Local 728, or as the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Discharge of Blankenship Blankenship was employed by the Respondent in August 1961, and he was terminated by it on August 8, 1966. He had thus been in its employe for approximately 5 years. His job was to deliver and pick up freight in an area 164 NLRB No. 13 OVERNITE TRANSPORTATION COMPANY 73 outside the city limits of Atlanta known as the Chamblee area. He received bills of lading in the morning for the deliveries which he was to make that day, but he also made pickups as instructed on his truck radio, being required to call his dispatcher, whose name was Thomas Donald Goddard, every 30 to 45 minutes . There were other drivers in the Chamblee area but Blankenship was the first to arrive in that area in the morning. The Respondent employs approximately 100 drivers, of whom about half are known as "wild drivers ," who are used to replace route men when the latter are sick, on vacation , or otherwise unavailable . Some of the wild drivers also make deliveries in the Chamblee area but normally they make only volume load deliveries there; i.e., loads of over 15,000 pounds. In January 1964 Blankenship had joined Teamsters Local 728, which, on May 1, 1964, was certified as bargaining representative . There seems to have been an attempt , subsequently , to decertify the Union but the decertification petition was later withdrawn . At the time of his termination Blankenship was still a member of Local728. In January 1966 Blankenship had been offered a job with another employer, the Kroger Company. Being a member of Local 728, and having declined to sign the decertification petition , Blankenship felt insecure in the tenure of his job , and decided to speak to Walter Donald Croft, the Respondent's district manager, who was in charge of the Atlanta terminal . Blankenship told Croft about the offer of the Kroger job, and asked the latter how secure his job would be, explaining that he was apprehensive because of his prior union activities. Croft remarked that the effort of the Union to organize Overnite was over , and asked Blankenship what he would do in the event that the union question came up again . Blankenship replied that if the Union had ceased its attempt to organize the employees , it had lied to them , and that if the union question came up again , he would stand with the Company. Croft then told Blankenship that he need have no fears as long as he did a good job, and Blankenship decided to remain with Overnite. On August 4, 1966, which was a Thursday, when Blankenship arrived in the Chamblee area, he noticed that the employees of Ideal Roller were on strike. This strike began on August 4 but it was not to end until August 30, 1966. Although Blankenship had a shipment for Ideal Roller on his truck on August 4, he decided not to deliver it, since this would involve crossing the picket line. After completing his other deliveries , he called Goddard and explained the situation to the latter . Goddard said he would speak to Croft but instructed Blankenship to leave the Ideal Roller freight on his truck, eat his lunch, and make his scheduled pickups. Blankenship did so, keeping in touch with Goddard on his truck radio , and returning as usual to the terminal at the end of the day. On August 5, 1966, when Blankenship reported for work at 7 a.m . he found Ideal Roller freight loaded on his truck again , and told Goddard that he would not cross the picket line there to deliver it. Goddard told Blankenship that he could move the Ideal Roller freight, which was at the rear of his truck , and leave it on the dock, and that he would "try to talk to Mr. Croft that day." Croft, Goddard explained , "was not there at that time." Blankenship complied with Goddard's instructions , and performed his normal duties the remainder of that day. On August 6, which was a Saturday and on August 7, which was a Sunday, Blankenship was not scheduled to work and did not work . When he came to work on Monday morning, August 8 , and received his bills of lading, he found that Ideal Roller freight had been loaded on his truck again , and, since Monday was a heavy day for freight, the Ideal Roller freight had been partially covered by other deliveries . Since neither Goddard nor Croft was available at this time, Blankenship drove to the Chamblee area, and made all his deliveries except for the Ideal Roller freight , since he found that the Ideal Roller employees were still on strike . He then called Goddard and asked the latter whether he had yet had an opportunity to speak to Croft. Goddard answered this question in the negative but said that he would talk to Croft. In the meantime , he told Blankenship that he should have his lunch and make his normal pickups . Blankenship kept in touch with Goddard over his truck radio, and in the conversation which he had with Goddard over the radio at about 3 p.m., the latter told Blankenship that he had talked to Croft , and that Croft had directed that Blankenship should deliver the Ideal Roller freight. Blankenship then told Goddard that he would quit before he would do so but that he would talk to Croft when he came to the terminal . Goddard instructed Blankenship to go ahead with his 'normal pickups in the meantime . When Blankenship arrived at the terminal about 7 p.m., he went to get his timecard from the rack in order to punch out but he noticed that his timecard was missing. Thereupon he went to Croft's office, and told the latter that he understood he wanted to see him. Croft replied in the affirmative , and asked whether it was true that he had refused to cross the Ideal Roller picket line. When Blankenship admitted that this was true, Croft told him that "the Company was obligated to deliver freight and that due to Company policy that I had left him no choice except to fire me." (Emphasis supplied .) Croft had Blankenship's paycheck already made out and gave it to the latter. The check only covered Blankenship's pay until 6 p.m. that day, and since he considered that he had worked until 7 p.m., he demanded an extra hour's pay, which was given to him from the petty cash account. Blankenship then left the terminal. During the period from August 4 to 8 , other Overnite drivers made pickups of freight at Ideal Roller, and they had no trouble, appparently , in making these pickups, the picketing being peaceful . At least this is what Goddard told Blankenship without being able to induce him to cross the Ideal Roller picket line . On August 9, the day after Blankenship's termination , his route was taken over by one Fred Swiney, who was already working under Goddard. On August 12, one Hubert Brown was hired to replace Swiney. B. Concluding Findings The Respondent challenged at the hearing the basic assumption on which the present proceeding is based; i.e., that Blankenship was discharged by it on August 8. It contended that he voluntarily quit his employment when faced with the necessity of crossing the Ideal Roller picket line. It seems to me that the evidence does not support, however, the Respondent's contention. It shows that Blankenship threatened to quit his job but that he was discharged before he could carry out his threat. In reaching this conclusion , it is not necessary , moreover, to discredit the testimony of Croft, for the testimony of Blankenship and Croft are in close agreement , so far as the termination of the former is concerned. Croft testified that in the middle of the afternoon on August 8 Goddard reported to him that Blankenship would 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not deliver the Ideal Roller shipment because of the strike there; that Blankenship had told Goddard that "if he had to go in, he would just quit, and come in to get his money" (emphasis supplied); that he then told Goddard "to reiterate to Blankenship the company's position that we had to cross the picket line to deliver the man's freight" (emphasis supplied); that thereafter Goddard reported to him that Blankenship still persisted in his refusal to cross the Ideal Roller picket line; that Blankenship confirmed this when he finally came to his office by declaring that "if the Company insisted that he cross the picket line then he would just have to quit and get his money" (emphasis supplied); and that he then told Blankeenship "what we had to do and he said that he would just have to quit" (emphasis supplied). The use of the subjunctive mood by both Blankenship and Croft indicates that they were both discussing a threat to quit rather than an actual quitting. That Croft certainly intended to discharge Blankenship, moreover, no matter what the latter told him when he arrived, is plainly indicated by the fact that Croft had had Blankenship's timecard removed from the rack and that he also had his terminal paycheck ready. I find, therefore, that Blankenship was discharged by Croft before he could quit. However, even if it could be said that Blankenship did quit, it was Croft who put him in a position which compelled him to quit, and this would amount on familiar principles to a constructive discharge. I The law governing the discharge of an employee for refusing to cross a picket line at the premises of another employer had been laid down by the Board in a preceding case involving the present respondent; i.e., Overnite Transportation Company, 154 NLRB 1271, enfd. in material part in 364 F.2d 682 (C.A.D.C.). This case involved another pickup-and-delivery truckdriver of the Respondent whose name was Wayne O. Styles, and who was discharged by the Respondent's district manager, Albert P. Vigue, for refusing to cross a picket line at the premises of another employer called the Warren Company. In discharging Styles, Vigue told him that he would have to let him go "for not following direct orders," and, further, that "as a matter of company policy" we didn't honor pickets anywhere, that we packed up freight everywhere (emphasis supplied). In holding that the discharge of Styles was violative of Section 8(a)(3) and (1) of the Act, the Board said: The Board had held, with court approval, that employees engage in protected concerted activity when they respect a picket line established at the premises of another employer. Recognizing the right of an employer to run his business despite this protected activity, the Board has held that an employer does not violate the Act in terminating such employees if the employer acts "only to preserve efficient operation of his business , and ... only so [that he] could immediately or within a short period thereafter replace them with others willing to perform the scheduled work ...." [Emphasis supplied.] At the same time, however, it is the Board's view that if the protected right of employees is to have any meaning at all, then the employer who would justify a discharge on the basis of an overriding employer interest must present more than a mere showing that someone else may have to do the work. That fact is inherent in every situation where employees fail to perform a portion of their assigned tasks by respecting a picket line. To accept it alone as conclusive proof that their services were terminated solely to preserve efficient operation of the employer's business would be to render illusory any finding that the employees engaged in protected concerted activity. It would leave the refusal to cross a picket line without any protection at all. Clearly, what is required is the balancing of two opposing rights, and it is only when the employer' s business need to replace the employees is such as clearly to outweigh the employees' right to engage in protected activity that an invasion of the statutory right is justified. The Respondent has not shown that Blankenship's discharge was necessary to get freight delivered to Ideal 11-oller. It had a second deliveryman in the Chamblee area by the name of Lewis, as well as the other drivers, who were not averse to crossing the Ideal Roller picket line, and who in fact made pickups of freight at Ideal Roller. The Respondent's representatives , Goddard and Croft, did not convey to Blankenship until the moment of his actual discharge that the delivery of freight to Ideal Roller was of great urgency, for on August 4 Goddard merely instructed Blankenship to leave the Ideal Roller freight on the dock and to go ahead with his pickups after lunch, and on August 5 Goddard instructed Blankenship to pull the Ideal Roller freight off his truck and leave it on the dock. In fact, there is no affirmative evidence that before Blankenship's discharge the Respondent delivered the Ideal Roller freight which Blankenship would not deliver. Indeed, the evidence as a whole shows that the objective of Croft was not to get the Ideal Roller freight delivered but to enforce a company policy not to respect a picket line under any circumstances. The union animus of the Respondent is attested to by a whole series of recent cases involving a large variety of unfair labor practices.2 Its motives in the present case must be judged in the light of this history, of which I take official notice. In discharging Blankenship, Croft was following the same company policy which Vi^ue had declared in discharging Styles. I do not credit Cro is testimony that he did not say a word to Blankenship about the Union when the latter discussed with him, in January 1966, the offer of the Kroger job. I credit rather the testimony of Blankenship that Croft asked him on this occasion what he would do if the union question came up again. When Blankenship then told Croft that he would stand with the Company, the latter assured him that he had nothing to fear. However, when Blankenship refused to cross the Ideal Roller picket line in August 1966, he made manifest to Croft that his sympathies were still with the Union, and Croft seized the opportunity to discharge him for refusing to cross the Ideal picket line. IV. THE REMEDY As the record shows that the Respondent has persisted in violations of the Act, I shall recommend that it be ordered to cease and desist from infringing in any manner upon the rights guaranteed to employees in Section 7 of the Act. By way of affirmative relief, I shall recommend that the Respondent be required to offer to James T. Blankenship full reinstatement to his former or substantially equivalent ' See, for instance, Cone Brothers Contracting Company, 135 NLRB 1026 , enfd in part 308 F 2d 279 (C A 4) 134 NLRB 1513, NLRB 108, 135-141 141 NLRB 384, enfd in part 327 F 2d 36 (C A 4), 157 NLRB 1185, 2 See 129 NLRB 261, enfd in part 308 F 2d 284 (C A 4), 129 and 158 NLRB 879. OVERNITE TRANSPORTATION COMPANY position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay which he may have suffered by reason of his discharge. The loss of pay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent , Overnite Transportation Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 728 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging James T. Blankenship on August 8, 1966, because he had engaged in a protected concerted activity, the Respondent has committed an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER Upon the entire record in this proceeding , and pursuant to Section 10(c) of the National Labor Relations Act, as amended , it is hereby recommended that the Respondent, Overnite Transportation Company, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Truck Drivers and Helpers Local Union No. 728, or any other labor organization of its employees , by discharing any of its employees or discriminating in any other manner against them with respect to the tenure of their employment. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of any of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to James T. Blankenship immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered as a result of his discharge, as provided in section IV of this Decision, entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon 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 analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its terminal in Atlanta, Georgia, copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by a representative of the Respondent , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 10, in 75 writing, within 10 days from the date of this Decision, what steps the Respondent has taken to comply therewith.4 3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 10 , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT interfere with the right of employees to engage in any protected concerted activity by discharging them or threatening to discharge them in violation of Section 8(a)(1) and (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization , to form, loin, or assist Truck Drivers and Helpers Local Union No. 728, or any other labor organization of our employees , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer to James T. Blankenship immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of his discharge. All our employees are free to become or remain, or refrain from becoming or remaining , members of-Truck Drivers and Helpers Local Union No. 728, or any other labor organization. OVERNITE TRANSPORTATION COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia 30323, Telephone 526-5741.