Dieckbrader Express, Inc.

DIECKBRADER EXPRESS, INC., 867 Dieckbrader Express, Inc. and Sidney F. Tucker. Case 8-CA-4529 December 13, 1967 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On September 5, 1967, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent 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 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 recommenda- tions of the Trial Examiner. I ORDER the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union or Local 407), and additionally violated Sec- tion 8(a)(1) of the Act by interrogating its employees con- cerning their union activities, and threatening employees with discharge or other reprisals because they gave testimony to the Board or engaged in activities on behalf of the Union. Respondent, by answer, admitted certain allegations of the complaint, but denied the commission of any unfair labor practices. At the hearing the parties were afforded an opportunity to introduce testimony, to examine and cross-examine witnesses, and to argue orally on the record. Oral agru- ment was waived. Briefs submitted by the General Coun- sel and Respondent have been duly considered. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT2 A. Background Respondent operates an over-the-road truck line with about five terminals in various cities. Its principal office and terminal is at Cincinnati, Ohio. The only terminal in- volved in this proceeding is at Cleveland, Ohio. All drivers are organized, those operating out of the Cleve- land terminal being represented by Local 407, and a con- tract is in effect which covers their wages, hours, and working conditions. All terminals have a garage where preventative maintenance and other mechanical work is performed. All mechanics are organized, except those at the Cleveland terminal. At the Cleveland terminal, three mechanics are employed on overlapping shifts around the clock. Tucker, the alleged discriminatee in this case, works the 10 p.m. to 7 a.m. shift.3 This case is concerned only with efforts to organize the mechanics. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In adopting the Trial Examiner's dismissal of the 8(a)(1) allegation based on interrogation, we rely solely upon the fact that the single instance of interrogation, in the context of this case, was too isolated to warrant is- suance of a remedial order hereon TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This complaint,) pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), heard by me at Cleveland, Ohio, on June 6, alleges that Dieckbrader Ex- press, Inc. (herein called Respondent or Company), vio- lated Section 8(a)(1) and (3) of the Act by discharging Sidney F. Tucker because of his assistance to and sup- port of Truck Drivers' Union, Local 407, affiliated with 1 Issued April 8 on a charge filed March 13. All dates are 1967, unless otherwise stated. 168 NLRB No. 113 B. Current Facts 1. The discharge of Tucker Tucker's employment began in mid-January 1966, at a weekly salary of $115. After 30 days his salary was in- creased by $5, and on May 1, 1966, by an additional $10, bringing his weekly salary to $130, where it remained until his discharge on March 10. Tucker described his du- ties as follows: seeing that all trucks leaving the terminal were roadworthy; making sure brakes and lights were functioning properly; performing preventative main- tenance, such as greasing and changing oil and filters; making road calls when necessary; and dispatching drivers leaving the terminals during his duty hours. In December 1966, Tucker and fellow mechanics, Cawthon and Casteel, discussed the desirability of union representation. The conversation ended with the un- derstanding that Cawthon would communicate with the Union and have them send a representative to talk to the mechanics. Cawthon reported this to Terminal Manager Eck, an admitted supervisor. In January, Tucker, Casteel, and Cawthon again discussed the matter, and 2 No issue of commerce or labor organization is presented. The com- plaint alleges and the answer admits facts which fully established these elements. I find these facts to be as pleaded. 3 John Cawthon, the leadman in the garage, works from 7 am. to 4 p. in., and Willis Casteel works from 2 to 11 p in 336-845 0 - 70 - 56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while Tucker expressed himself as in favor of the Union, Cawthon and Casteel decided that they did not wish to proceed with it, at least not at that time. Cawthon also promptly reported this to Terminal Manager Eck. The record is not clear as to efforts thereafter made by Tucker to secure union representation; the only thing shown is that about March 1, Union Steward Fred Joseph4 told Tucker that he (Joseph) was going to get some union cards for the mechanics to sign, and Tucker told him "to go ahead." When Tucker reported for work on March 10 about 7 a.m., Cawthon, at Eck's direction, told Tucker that he was discharged because he "wasn't putting out enough work." Tucker then went to see Eck, who confirmed the discharge and, when asked the reason therefor, stated that Tucker was not doing sufficient preventative main- tenance; that his quota was three a night and Tucker had not been doing them.5 Tucker was then paid and left the premises. A termination sheet, completed by Eck at the time,6 gave as the reason for Tucker's discharge "Inabili- ty to attain and assume the duties of a journeyman mechanic and not being able to produce the necessary production." Although Tucker denied that Eck had ever told him that he had to perform three preventative main- tenance jobs a night, he admitted that several weeks prior to his discharge, not only Eck, but Leadman Cawthon, had told the whole shop that the garage was not doing suf- ficient preventative maintenance. The only other testimony adduced by the General Counsel relating specifically to the matter of Tucker's discharge was that given by witnesses Joseph, Thorne, and Marsh, all employed by Respondent as drivers out of the Cleveland terminal. Joseph and Thorne testified, in substance, that preparatory to going on a driving assign- ment, they went to the terminal to get the vehicle they were to drive and be checked out; they saw Tucker there; that he always appeared to be busy and, so far as they could tell, performed his work properly.7 More important to the General Counsel's case, how- ever, was the testimony of Marsh, for if his testimony is credited, an admission by Respondent that Tucker was discharged for his union activity is established. Marsh testified that he had three conversations with Dispatcher Larkin,8 an admitted supervisor, and that in each conver- sation Larkin stated that Tucker was "let go because of union activity." Although Larkin was not called as a wit- ness, and Marsh's testimony in that regard is uncontra- dicted, I do not credit him for the following reasons: 1. Although Marsh at first attributed to Larkin the statement that Tucker was "let go because of union ac- tivity," in subsequent portions of his testimony the state- ment he attributed to Larkin was that Tucker was "let go for no good reason," and that he (Larkin) "felt it was un- fair." 2. His testimony as to how these alleged conversa- tions with Larkin came about, and how the specific sub- ject of Tucker's discharge arose, I find unclear, if not con- fusing, perhaps due to the rambling nature of his testimony and proclivity for injecting irrelevant details. 3. His demeanor while testifying was not such as to in- spire confidence. In support of its defense that Tucker was discharged because of the deficiency in the quantity and quality of his work, Respondent relies on the testimony of Terminal Manager Eck, and Tucker's fellow mechanics, Cawthon and Casteel. Eck testified, in substance, that Tucker's work was deficient virtually from the inception of his em- ployment in January 1966, and that he spoke to Tucker about it on numerous occasions; that for a short time after such discussions Tucker's work would improve, but then he would lapse into his former conduct. Eck was particu- larly critical with respect to Tucker's habit of leaving tools lying around outside, lack of proper safety habits, and inattention to duty. He testified to occasions when reaching the terminal about 7 am., he had found battery chargers, jumper cables, and similar equipment lying about the terminal lot. On a number of occasions he ob- served Tucker working under a truck, the front of which was raised off the ground and supported only by a piece of 2 by 4.9 Eck also testified with respect to numerous oc- casions when he returned to the terminal late at night and found Tucker in the drivers' room or in the office drinking coffee, and on one such occasion in particular when Tucker was not in the garage, and after waiting for him for about an hour, instituted a search of the premises and found Tucker in the restroom, fully clothed, reading a book. Cawthon and Casteel, the other two mechanics, testified, as did Eck, regarding Tucker's bad safety habits and permitting the preventative maintenance work to pile up. Casteel, whose shift overlapped Tucker's shift by 1 hour, reported his observations to Leadman Cawthon, in- cluding the fact that Tucker was from one-half to three- quarters of an hour late for work, 3 or 4 days a week. io Cawthon reported this to Eck. Early in March, Eck received from the main office a memorandum dated March 2, critical of the fact that proper preventative maintenance was not being per- 4 Joseph is employed by Respondent as a driver out of the Cleveland terminal , and is the Union's steward there. 5 Tucker complained that it was not possible to do three jobs a night because frequently that number of trucks were not available on the lot, and also that he had to check out the drivers leaving after 11 p.m. This, Eck stated, was not a valid excuse. 6 The termination sheet referred to, which is in evidence as Exhibit R-3, bears the date "2/10/67." Eck testified that the figure 2 was an error, and that the document was in fact executed March 10. 1 credit his testimony in that regard. T Thorne also testified that on some occasion in 1962, he was in Eck's office and heard the latter state that "if the mechanics joined the Union he would fire them." There is no evidence as to circumstances under which this statement was allegedly made, nor is there any evidence of union ac- tivity among the mechanics at that time. The General Counsel relies upon this testimony as proof of animus I regard this alleged incident as too remote and insufficient to support a finding of union animus. 8 Marsh fixed the time of the first conversation about March 18, the second about a week later, and the third as May 30. The first two conver- sations Marsh said were over the telephone when Larkin was at home, and the one on May 30 was at Marsh's home, while Larkin was visiting there. 9 Eck referred to "a couple of industrial claims" which he attributed to Tucker's bad safety habits, but he did not elaborate as to what these were, or whom they involved 10 It is significant that Tucker, who was in the hearing room and heard Eck, Cawthon, and Casteel testify, was not recalled to deny the derelic- tions of duty they attributed to him. Except for Tucker's denial, when tes- tifying during the General Counsel's case-in-chief, that he left tools and equipment about the yard, and the inference from his testimony that the unavailability of trucks on the yard and his other work prevented him from performing the preventative maintenance required of him, the testimony of Eck, Cawthon, and Casteel, in that regard, stands undemed. The fair in- ference, which I draw from Tucker's failure to deny this evidence, is that he could not truthfully do so. DIECKBRADER EXPRESS, INC., 869 formed on trucks at the Cleveland terminal. Enclosed with this memorandum was a survey showing excessive mileage or time lapse between preventative maintenance jobs. According to Eck, his knowledge of the equipment and how it was used, the records maintained at the Cleve- land terminal showing the work done by each mechanic, and the fact that preventative maintenance work was per- formed mostly on Tucker's shift, led him to the conclu- sion that Tucker was to blame for the fact that said work was not being performed on time. After discussing the matter with Leadman Cawthon, who concurred in Eck's view that Tucker was not performing his duties, Tucker was discharged on March 10, as above related. 2. The Section 8(a)(1) allegations Following the discussion among the three mechanics in January as above set forth, Leadman Cawthon voluntari- ly went to Eck and told the latter that while Tucker was in favor of proceeding with the Union, he and Casteel were opposed to doing so, at least at that time. Eck then asked Cawthon what he thought of the Union, and "Why don't you want to get in?" Cawthon explained the reasons for his decision, and the discussion concluded with Eck stating, "if you join the Union, let me know."11 The General Counsel contends that Eck's statement violated Section 8(a)(1) of the Act.12 CONCLUDING FINDINGS Upon consideration of the entire record, I find and con- clude that the General Counsel has failed to prove by an preponderance of the evidence that Tucker's discharge was in any way motivated by his union activity. I am pur- suaded to this conclusion by the following: 1. The absence of credited evidence of animus. On the contrary, the evidence shows that Respondent recognizes and deals with a union as the representative of all its drivers and all mechanics, except those at Cleveland, where no request for recognition has been made by any union. There is no showing that the relations between Respondent and the Union involved have been other than harmonious. 2. No substantial violation of Section 8(a)(1) of the Act is established; if any such violation occurred, it was of a minimal nature. 3. Substantial derelictions of duty on the part of Tucker, which he tacitly admitted by failing to deny them, were established. 4. Eck had known of Tucker's union sentiments for approximately 3 months prior to discharge. The discharge, therefore, did not come hard upon discovery of that fact. 5. Eck had known since January that two of the three mechanics were opposed to the Union, and he had no reason to expect that union recognition would be asked, " Based on the credited testimony of Cawthon, Eck admitted the con- versation referred to by Cawthon, but did not deny the statements at- tributed to him by the latter 12 By amendment to the complaint, the General Counsel alleged that Respondent threatened employees with discharge and/or other reprisals for giving testimony to the Board, or engaging in union activity. In support of this allegation employee Marsh, heretofore referred to, testified that in a telephone conversation with Cecil R Faber, Respondent 's director of labor and safety, an admitted supervisor, the latter stated,"ln substance, that Marsh had gone to the Board and "shot his mouth off" about the Tucker case, was going to the Union and causing trouble, and that Marsh was "on top of the list to be gotten rid of." Faber admits a telephone con- versation with Marsh but gave a different version of what was said. Ac- assuming that he wished to avoid that situation. 6. While it is suspicious that Eck waited until March to discharge Tucker, when according to his own testimony Tucker's derelictions of duty extended over virtually the entire 14 months of his employment, suspi- cion is not a substitute for proof by a preponderance of the evidence, a burden which rests upon the General Counsel. Nor do I find any violation of Section 8(a)(1) in the conversation between Eck and Cawthon concerning the Union. As the Board held in Frito-Lay, Inc., 151 NLRB 28, 34, not every interrogation of employees concerning their union views is violative of Section 8(a)(1) of the Act, the test being "whether under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of their rights." The circumstances of the instant case plainly do not fall within that test. It must be remembered that Cawthon, not Eck, initiated the conversation, and that Cawthon volunteered the information that a majority of the three mechanics had decided not to seek union representation at that time. Being a leadman, Cawthon's relationship with Eck must have been closer than that which would ordinarily prevail between Eck and rank-and-file employees. Under these circumstances, I find and conclude that Eck's limited and rather casual remarks to Cawthon, which were not shown to have been communicated to the other employees in- volved, could not reasonably be construed as tending to restrain or interfere with Respondent's employees in the exercise of their rights. Moreover, even if Eck's remarks be regarded as violative of Section 8(a)(1) of the Act, they are too isolated and inconsequential to warrant issuance of a remedial order. Upon the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) or (3) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and con- clusions of law and the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the complaint against Dieckbrader Express, Inc., as amended, be dismissed in its entirety. cording to Faber, he called Marsh at the request of the Union to try to set- tle a claim that Marsh was making against Respondent for not allowing sufficent milage on certain trips, on the basis of which Marsh's pay was computed; that this was one of a number of similar claims by Marsh in the approximately 18 months he had been employed by the Company; that he told Marsh he was tired of these recurring disputes, and if Marsh felt he had been improperly paid , to file a grievance as provided in the contract, and the matter would be processed in accordance therewith. Faber denied threatening Marsh with discharge , and also denied that the Board or Tucker was mentioned in the conversation . I credit Faber. This, of course, leaves the General Counsel without any evidence to support this allegation of the amended complaint.