Red Line Transfer and Storage Co., Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Red Line Transfer and Storage Company, Inc. and A. ORDER D. Griffin. Case 26-CA--3918 November 12, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 29, 1971, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Respondent also filed a reply to the General Counsel's exceptions. .Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order as modified herein. Although the amended charge and the complaint allege violations of Section 8(a)(1) of the Act, and the hearing was conducted within the framework of Section 8(a)(1), the Trial Examiner concluded, on the basis of evidence establishing 8(a)(1) violations, that Respondent's discharge of Griffin violated Section 8(a)(3) and (1) of the Act. We find that the discharge was violative of Section 8(a)(1) only. The record shows that although Griffin in fact was a casual employee and, therefore, entitled to the wages payable to this classification, he believed, albeit erroneously, that he was both classified as a regular employee and contractually guaranteed the wages payable to such classification. We find that Griffin was discharged because of his insistent attempts to enforce the classification and pay guarantee provi- sions of the collective-bargaining agreement which he believed were being disregarded. Such activity falls within the purview of protected, concerted activity. Accordingly, we find that by discharging Griffin for engaging in such activity, Respondent violated Section 8(a)(1) of the Act. In view of the complaint's allegation and the issue in litigation, we do not adopt the Trial Examiner's finding that the discharge was-in violation of Section 8(a)(3). The record further shows that Griffin's threat to file a grievance in the event he was not classified and paid as a regular employee occurred subsequent to, and, therefore, played no part in, his discharge. According- ly, we do not rely upon the Trial Examiner's findings that the foregoing "threat" was a causative factor in Griffin's discharge. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below, and hereby orders that Respondent, Red Line Transfer and Storage Company, Inc., Lake Village, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Substitute the following for paragraph 2 of the Trial Examiner's Conclusions of Law: "2. By discharging A. D. Griffin because he engaged in protected, concerted activities, Respon- dent violated Section 8(a)(1) of the Act." 2. Substitute the following for paragraph 1(a) of the Trial Examiner's recommended Order. "I(a) Discharging employees or otherwise discrimi- nating in regard to their hire, tenure °of employment, or any term or condition of employment, because they have engaged in protected, concerted activities for the purposes of collective bargaining or other mutual aid or protection." 3. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT discharge our employees or otherwise discriminate against them, or in a like or related manner, interfere with, restrain, or coerce our employees with respect to these rights. WE WILL reinstate A. D. Griffin to the position he held as a casual driver before our discrimina- tion against him, and we will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. 194 NLRB No. 25 RED LINE TRANSFER AND STORAGE COMPANY 175 RED LINE TRANSFER AND STORAGE COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On February 8,1971, A. D. Griffin filed a charge with the Regional Director for Region 26 of the National Labor Relations Board, hereinafter called the Board, alleging that Red Line Transfer and Storage Company, hereinafter called Respon- dent, terminated Griffin's employment because of his exercise of Section 7 rights in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. On March 10, 1971, Griffin filed an amended charge, amending Respondent's name but adding no substantive allegation. On March 19, 1971, the Regional Director, on behalf of the General Counsel of the Board, issued a complaint and notice of hearing alleging that Respondent discharged Griffin because he engaged in concerted activities. By its duly filed answer Respondent admitted jurisdictional facts and that Highway and Local Motor Freight Employees Local Union No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization and represents the employ- ees at Respondent's Lake Village, Arkansas, location, but denied the commission of any unfair labor practices. The matter came up for hearing before me on June 3, 1971, at Lake Village, Arkansas. All parties were present or represented by counsel and had an opportunity to adduce relevant and material testimony , examine and cross- examine witnesses, argue orally on the record and file briefs. Briefs have been received from the General Counsel and Respondent. Upon the entire record in this case and in consideration of the briefs I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the interstate and local transportation of freight by truck with a terminal located at Lake Village, Arkansas. Respondent annually derives gross income in excess of $50,000 for transportation of freight by truck in interstate commerce from points located inside the State of Arkansas to points located outside the State of Arkansas. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a small terminal located at Lake Village, Arkansas, from which its employees based in Lake Village distribute freight to surrounding communities including points in Mississippi and Louisiana . The terminal manager, Irons, has a secretary, Mrs. Ashley, and normally uses five drivers to distribute the freight brought to its terminal by drivers from other terminals. Respondent is signatory to the National Master Freight Agreement and the Southern Conference Area Over-the-Road and Local Freight Forwarding, Pickup and Delivery Supplemental Agreements with the Southern Conference of Teamsters and certain of its locals, including ,the Union herein. It is also signatory to a rider dated April 1, 1970, which provides somewhat different wage rates and provides , inter alit, that "all past practices agreed to between Local Union 667, Memphis, Tennessee, and the employer shall be contin- ued." The said past practices have never been reduced to writing, according to testimony of L. D. Davis, who is in charge of Respondent's labor relations. On or about November 3, 1970, the Charging Party was hired by Terminal Manager Irons at the rate of $2.50 an hour. According to the testimony of L. D. Davis, one of the side agreements covered by the rider ' to the contract provided that Company could hire casual employees for a period of 30 working days at that rate although the contract rate at that time was $3.07 an hour. About a week after Griffin's employment Irons told Griffin that the man whom he was hired to replace who had been off on sick leave, had quit and would not return and accordingly he would work regularly after December 1, at the rate of $3.07. This is denied by Irons as I shall set forth below . At any rate on the payroll runout for December 4 Griffin is first shown as earning $3.07 an hour. On Friday, December 11, after coming in from his day's run Griffm ascertained from Mrs. Ashley that she had figured his hours for the week at 38-1/2. Griffin told her that as a regular employee he was guaranteed 40 hours a week. Mrs. Ashley said that he would have to talk to Irons and Griffin called him at his home from the office. Griffm testified that he asked Irons if he wasn't supposed to get a 40-hour guarantee and Irons answered that only the two top men are supposed to get that. Griffin reminded Irons that the contract provided that all regular employees were entitled to a 40-hour-week guarantee, and Irons repeated that only the two top men were so guaranteed. Then Irons 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD added "Don, if you are not satisfied," and paused "no, I'll tell you what, I just don't need you any more." Griffin replied that if that was the case he would file a grievance. A few minutes later Griffin called Irons back and said "Bob, are you firing me?" Irons said that he was. Griffin demanded his wages and pointed out that the contract provided that if a man is discharged or fired he shall receive all money due him and Irons said that Griffin would be paid on the following Wednesday. On December 21, Griffin wrote out some grievances and took them to the terminal. Robert Strickland, a former employee went with him. Griffin credibly testified that, when he asked Irons why he was fired, Irons replied that Griffin had talked himself into quitting. Griffin told Irons that he wanted to read him the grievances that he was going to file against him and asked the shop steward, who was working on the dock, to come in. The shop steward declined to come in stating that he had work to do, and when Griffin commenced reading the grievances Irons left the office. After a few minutes Griffin and Strickland departed. On December 22, Irons called Griffin and told him to report to work the following morning at 9 o'clock. Griffin did so and worked that day. The following day Irons called Griffin and told him that he didn't need him. Again on December 28 Irons called Griffin to come in on December 29; he also told him that he had a letter that he wanted Griffin to sign and read it to him over the telephone. Griffin declined to sign it. He worked on the 29th and has never been recalled. On each working day after December 29 for perhaps a week, Griffin went to the plant and punched the clock on a blank piece of paper. He testified that he did this in order to prove that he was available for work. Irons took exception to Griffin's punching the clock each morning and finally told him that if he came back the following day he would call the police. Griffin has not returned nor has he been recalled. B. Discussion and Conclusions Griffin mailed the grievances, and others, to the Union. He was not informed when the grievances would be taken up but was at some time thereafter told that they had been denied. Irons was apparently never called or consulted or even informed that the grievances had been filed since he testified that he had never been involved in any grievance procedure. Apparently Respondent contends that the matter had been disposed of by the grievance procedure and that accordingly the Board has no jurisdiction. However Davis testified that the grievance committee decided that Griffin continued as a casual employee of the Company and did not have to be paid for the hour and a half that he claimed the week of July 11. This does not seem to dispose of the issue of whether Griffin's discharge was a violation of Section 8(a)(3) of the Act. I find that the determination of the Teamsters joint committee is irrele- vant in this proceeding and does not oust the Board from jurisdiction over the issues raised by the complaint. Respondent seems to contend that it is impossible under 1 Irons affidavit offered in the investigation of this matter and taken in the presence of Davis, Respondent's labor relations man, does nothing to contribute to Irons' credibility in this regard inasmuch as the affidavit the contract with the Union to discharge a casual employee. In the first instance it is necessary to determine whether in fact Griffin was a casual employee or was, as he believes, a regular employee. Under the terms of the contract between Respondent and the Union, Respondent is required, according to the testimony of Davis, to put a regular employee on its payroll only after a casual employee has worked in excess of 40 hours for 4 consecutive weeks. As a consequence of this rule, of the five employees regularly employed at Respondent's Lake Village terminal only two are "regular employees" who under the terms of the contract come under the fringe benefits granted in the contract; the other three are casual employees. One of them has been in that status for a period in excess of 3 years. Payroll computer runoffs for a period from November 6 to December 25, 1970, revealed that other employees occasionally worked in excess of 40 hours but generally worked between 30 and 40 hours each week. The gross number of hours worked during this period of time, by the drivers, ran from 180 to 250 hours. Accordingly it appears that under the terms of the contract Respondent was under no duty to nor would it normally have made a regular employee, under the terms of the contract, out of Griffin. I believe that, whatever terminology Irons used in his conversation with Griffin in November, what he meant was that he would use Griffin regularly as a casual employee rather than he would put Griffin on duty as a regular employee which would have been to the detriment of another casual employee who had been so employed for several years. The fact that Griffin was raised to $3.07 an hour on the payroll period ending December 4 is not dispositive in light of Davis' testimony that he was required under the signed agreement to commence paying him the wage called for by the contract after 30 days' employment. I conclude therefore that at all times, speaking in terms of the contract, Griffin was and is a casual employee. However, I cannot agree with Respondent's contention that it is impossible to fire a casual employee. The fact is an employee no matter whether he is permanent or casual is "fired" when the employer reaches the conclusion that it will no longer use him as an employee. No formal discharge may be cognizable under the terms of the contract, but the discharge is no less a complete severance of the employ- ment relationship under the terms of the Act for that reason. Terminal Manager Irons testified that he had no knowledge whatsoever of the contract under which his terminal was supposedly `operated and that if any question came up he would telephone Davis for an answer. He testified further that questions seldom came up. He also testified that he did not know what the contract rates were, he did not know the basis on which Griffin was hired at $2.50 an hour, he did not know the distinction between a casual and a regular employee and he did not know anything about any guarantee that regular employees should work 40 hours.' Irons was not asked on his direct examination any questions about the termination interview purports to contain a considerable amount of information as to the terms of the contract and the relationship between the Union and the Respondent. RED LINE TRANSFER AND STORAGE COMPANY with Griffin, but testified that he had made up his mind to discharge Griffin the Monday preceding the Friday on which Griffin was discharged because of fault with Griffin's work. He also testified that he frequently called to Griffin's attention complaints that he had received about his driving habits and his failure to make deliveries. Griffin credibly denied ever having received such complaints but admitted that on occasion he did not deliever merchandise because it was undeliverable for one reason or another such as a plant being closed when he arrived or deliveries to private homes when no one was home. I credit Griffin's account of the telephone calls that resulted in his termination and I find that Irons terminated Griffin because he requested that he be paid a guaranteed 40 hours' pay, although in Irons opinion he did not have a right to the 1-1/2 hours' pay for which he was not "on the clock." I believe that Griffin's insistence and his statement that he would file a grievance if he was not paid the 1-1/2 hours, which in fact he did thereafter, irritated Irons to the point of discharging Griffin. In his affidavit Irons stated that he was laying Griffin off because of poor business. In his testimony Irons testified that he laid Griffin off or terminated him because of complaints about his work and specifically because on the day of his termination he had not made a delivery to a customer in a neighboring town but had brought the material back to the terminal. I believe that Irons called Griffin back to work on December 23 and again on December 29 in order to build up a case that he thought would arise as a result of the grievances which Griffin tried to read to him on December 21 in Strickland's presence. I believe that Irons was attempting to display the fact that Griffin was a casual employee subject to call only when needed, which indeed is what the grievance panel decided. The record reveals, however, that immediately after Griffin's termination another employee was hired who, in the pay period ending December 18, worked 39 hours. It appears that the lack of work, relied on in at least one of Irons' accounts concerning the termination, did not exist. I conclude that, as alleged in the complaint, Griffin was discharged by Irons on December 11, because of Griffin's mistaken insistence that he should be paid a guaranteed 40 hours a week under the terms of the contract and because of his "threat" to Terminal Manager Irons that he would file a grievance in the event he was not so paid. I find this is violative of Section 8(a)(3) of the Act, and I shall recommend a remedy therefor. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 2 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in V. THE REMEDY 177 Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged A. D. Griffin, its employee, I shall recommend that Respondent be ordered to reinstate him to his former position or if this position no longer exists to a substantially equivalent position and to make him whole for any loss of pay he might have suffered as a result of Respondent's unlawful conduct. Backpay should be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Red Line Transfer and Storage Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging A. D. Griffin, its employee, because of his union and concerted activities and his threat to engage therein, Respondent violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER Respondent, Red Line Transfer and Storage Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or in any other labor organization, by discriminating against employ- ees with regard to terms and conditions of their employ- ment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer A. D. Griffin immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he might have suffered by reason of Respondent's discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all Section 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. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Order. (d) Post at its Lake Village, Arkansas, terminal copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by a Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 3 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.4 4 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."