Ryder Truck Lines, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ryder Truck Lines, Inc. and Gerald J. Powell Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an affiliate of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Gerald J. Powell. Cases 9-CA-10727 and 9-CB-3396 January 12, 1978 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On September 30, 1977, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, General Counsel filed limited exceptions and a supporting brief; Respon- dent Union filed a brief in support of the Adminis- trative Law Judge's Decision; and Respondent Em- ployer filed a brief in opposition to counsel for the General Counsel's limited 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Cincinnati, Ohio, on July 7, 1977, upon a consolidated complaint issued December 7, 1976, which complaint was based upon a charge filed on October 18, 1976, by Gerald J. Powell, an individual, in Case 9-CA- 10727 and a charge filed by Powell on the same day in Case 9-CB-3396. The complaint alleges, in substance, that the Respondent Union, Truck Drivers, Chauffeurs and Help- ers, Local Union No. 100, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, caused the Respondent, Ryder Truck Lines, Inc., herein called Ryder, to discriminatorily discharge Powell, and threat- ened to discharge other employees of Ryder and other 234 NLRB No. 39 members of the Union for reasons other than their failure to tender to the Union the periodic dues or initiation fees uniformly required as a condition for acquiring or retaining membership in the Union. The complaint further alleges that Ryder refused at all times since the discharge of Powell to reinstate him to his former position. In their separate, duly filed answers, the Respondents, while admitting the jurisdictional allegations of the com- plaint, deny the commission of any unfair labor practices. At the hearing, and at the end of the General Counsel's case in chief, counsel for each of the Respondents made joint motions to dismiss the complaint upon the ground that the General Counsel had failed to make out a prima facie case. Because of the length and intricacy of the testimony and the facts related therein, and because at that time I felt that, at best, the General Counsel's case was very weak and that there was probable merit in the motions to dismiss, the hearing was ordered adjourned to give me an opportunity to study the transcript of the General Coun- sel's case in chief and to allow time for counsel to file briefs in support of, or in opposition to, the motions. Upon the entire record in this case to date, and upon the briefs of the parties duly submitted, and giving full credit to all of the testimony given by each witness called by counsel for the General Counsel, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT RYDER Ryder, a Florida corporation maintaining an office and truck terminal at Cincinnati, Ohio, is engaged in trucking operations as an interstate carrier operating among the various States of the United States, transporting general commodity goods, including pickup and delivery services. During the 12-month period immediately preceding the issuance of the complaint herein, a representative period, Ryder received gross revenues in excess of S1,300,000, of which an amount in excess of $50,000 was derived from interstate transportation of products from points located within the State of Ohio directly to points outside the State of Ohio. It is admitted, and I find, that Ryder is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1I. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Respondent Union is, and has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts It should be noted at the outset of this statement of the facts, as related by witnesses called by counsel for the General Counsel, and through documentary evidence received, that I have made no credibility determinations and have accepted all of the testimony of all of the witnesses at face value. Additionally, the evaluation of the facts as hereinafter recited has been made in the light most 218 RYDER TRUCK LINES, INC. favorable to the General Counsel and the Charging Party in conformity with established law with regard to motions to dismiss complaints at the end of the Charging Party's, General Counsel's, or complainant's case in chief.I How- ever, rather than burden this decision with a completely detailed statement of fact relating every bit and piece of testimony supplied by counsel for the General Counsel, the statement of fact recites only the most probative and material items which are necessary for the disposition of the motion made by the Respondents. Ryder's employees are represented by the Union, which also represents the employees of other employers in the Cincinnati area, including the employees of McKesson Chemical Company, herein called McKesson. Gerald Powell, since 1966, has been a regular dockworker at McKesson and, as such, a member of the Union. By reason of financial problems, Powell, in 1972, in addition to his regular employment at McKesson, sought and obtained a position as a casual dockworker at Ryder's Cincinnati terminal. Casual employees work at times when regular or full-time employees at Ryder are not normally scheduled to work, such as nights and weekends. In addition to his two jobs, Gerald Powell, at all times material hereto, was also a union steward at the McKesson dock. Also working at the Ryder dock as a casual was Gerald Powell's brother, David, who had preceded Gerald as a Ryder casual employee. During the period preceding May 1975, there had been an unwritten Ryder policy, not very stringently applied by the then terminal operations manag- er, William Janik, who had hired Gerald Powell, to the effect that to avoid nepotism Ryder would not employ more than one member of a family. Whether this policy was applicable only to full-time employees or to regular employees apparently was unresolved until Gerald Powell and one other casual employee, Mike Stamey, son of a Ryder full-time, over-the-road driver, were discharged in August 1976 by application of the antinepotism policy, as hereinafter set forth. Although not clearly spelled out in the record, it is evidently a union-employer agreement that a casual who works a certain number of hours over a certain period of time has to become, or apply to become, a regular employee who would be entitled to full union benefits such as seniority, pension fund contributions, and other fringe benefits.2 In any event, in May 1975, Terminal Operations Manager Janik informed Gerald and David Powell that there was a regular, full-time position open on the dock and that they could choose between them which one was to become such employee. After some discussion, the brothers decided that David should take the full-time job inasmuch as Gerald was already employed as a regular employee at McKesson and, also, David had more time as a casual at Ryder than did Gerald. At that time, in order to cover himself in the event the Union would question Ryder's failure to make an employee a regular employee after the number of days of work required according to the afore- ' United Telecommunications, Inc. v. American Television and Connmunica- tions Corporation, 536 F.2d 1310 (C.A. 10, 1976); Retail Store Employees Union, Local No. 876, Retail Clerks International Association, AFL-CIO, 212 NLRB 113(1974). 2 Whether this was agreed to in the collective-bargaining agreement between the Union and Ryder is not entirely clear from the record inasmuch as the collective-bargaining agreement was not offered in evidence. said agreement, Janik, after Gerald Powell had refused upon several occasions to become a regular employee at Ryder's dock, had Gerald and other casuals who did not want to become regular employees sign and notarize statements to that effect. Approximately 1-1/2 years before the discharge of Gerald Powell as a casual from the Ryder dock in August 1976, there had been a union election which was preceded by a campaign in which Gerald Powell, at the McKesson dock, had campaigned for a slate of officers which opposed Union President Jerry Kiser and Kiser's slate. In the election which followed the campaign, Kiser's slate won and the slate which Gerald Powell and others had support- ed lost the election. The record is devoid of any direct evidence that Kiser was aware that Gerald Powell had supported the opposition slate of candidates for union office. In any event, during Janik's period as terminal opera- tions manager and during the term of Janik's successor, David Gambrell, there were complaints by regular employ- ees of Ryder that the use of casuals was interfering with the employment opportunities of the regulars in that the continued use of the same casual employees, who refused to become regular employees, prevented the regular em- ployees from obtaining overtime and other additional employment at Ryder's dock.3 Thus, according to General Counsel's own witness, Gambrell, the matter came to a head in July 1976. Gambrell testified that Union Steward Ron Carter had complained to him on numerous occasions that the use of the casuals would "have to cease because they were depriving regular men of overtime." As a result of all of these complaints, the Ryder dock was visited by Union President Kiser, the exact date of which visit the record does not show. Kiser complained about the use of the casuals to the detriment of the regular employees who were members of the Union. Gambrell, in testifying, recalled one meeting at the Ryder terminal where Gamb- rell showed Kiser the stack of letters from the casuals to Gambrell's predecessor, Janik, noting that they did not want to become regular employees. Gerald Powell's letter was on top of the stack. When Kiser saw Powell's letter he said something to Gambrell to the effect that "that's the guy that probably instigated the whole problem." Aside from the issue of the use of Gerald Powell and others as casuals and the application of the antinepotism rule, Gerald Powell was considered by Ryder, according to both Janik and Gambrell, as a very good employee to whom they had offered full-time employment. As a matter of fact, of course, Gerald Powell refused because he had his regular job at McKesson. Additionally, by reason of a work suggestion made by Gerald Powell, which was adopted by Ryder, Gerald Powell was given a letter of commendation by Ryder which came directly from Ryder's headquarters office in Jacksonville, Florida. In March 1976, a new terminal manager, superior in Ryder's hierarchy to Operations Manager Gambrell, was 3 It should also be noted that regular employees were not necessarily full- time employees and that the regular employees could have been prevented from more employment than they regularly received had it not been for casuals. This, evidently, was part of the complaint by these regular employees. 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appointed. This new terminal manager, Glen Edwards, learned from Gambrell that Ryder was employing Gerald Powell as a casual at the same time that Gerald's brother, David Powell, was employed as a regular employee pursuant to union contract. Edwards thereupon communi- cated with Ryder's home office in Jacksonville, Florida, for advice with regard to the application of the antinepotism policy. The Jacksonville office informed Edwards that the employment of the two Powell brothers was contrary to the Ryder's antinepotism policy and that the employment of one of them had to be discontinued. By reason of the union contract, Edwards ordered Gambrell to discharge Gerald Powell despite the fact that before that time the antinepo- tism policy had been only erratically applied without any hard-and-fast application in every case. Indeed, the record shows that there were other individuals who were related and working for Ryder at the time. However, most of these had different names and, therefore, the officials of Ryder had no way of knowing they were relatives. Also, in the case of two brothers named Collins, Ryder had inherited them as regular employees when it had absorbed another company for whom the Collins brothers had been working for many years as full-time regular employees. Therefore, they could not be discharged for reasons of nepotism under the agreement with the Union. Soon after Gambrell received Edwards' instructions, he discharged Gerald Powell. Within 2 weeks thereafter, Mike Stamey, the son of an over-the-road driver and also a casual, was discharged for like reason; namely, the applica- tion of the antinepotism policy. However, during the hearing it was apparent that the brother-in-law of the Powell brothers, one Frank Stahl, was still being employed by Ryder. But, the record is devoid of any evidence that before the hearing herein Ryder had any knowledge that Stahl was a brother-in-law of the Powell brothers. More- over, Stahl was also a regular full-time employee whose employment could not be terminated under the union contract despite Ryder's antinepotism policy. It should be further noted that Gambrell testified, without contradiction, that not only were Stamey and Gerald Powell terminated under the antinepotism policy of Ryder, but also, at the request of the Union, the other casuals who had served sufficient time as casuals to qualify as regular employees, and who refused to become regular employees, were discharged as casual employees by Ryder. There was no contradictory evidence to this testimony offered by counsel for the General Counsel except that some marines, who were stationed nearby, and who were not union members, were also working during the summer of 1976 as casuals, as were several college students. However, the record also is devoid of any showing that any of these casuals were individuals who had served sufficient time to qualify as regular employees pursuant to the agreement between Ryder and the Union. In addition to all of the foregoing, Gerald Powell was informed that there was a drive against casuals after visits to the Ryder dock by two union business agents and by President Kiser complaining of the use of casuals. There- fore, approximately a week before his discharge, Powell called Kiser, informed Kiser of his difficult financial situation, and asked that he be retained as a casual at the Ryder dock. According to Powell, Kiser stated, "Brother, you're not working both jobs." It was I week after this conversation that Powell was discharged by Gambrell, according to Gambrell, by reason of the antinepotism policy. After his discharge, Powell circulated a petition among the employees and members of the Union and filed a grievance to have his discharge from Ryder reversed. However, the day before the grievance was to be heard, a regular union meeting took place at which another member of the Union, not related to the Powells, in an incident not related to the current case, threw a can at Kiser who was conducting the meeting. The can struck Kiser in the head and caused him to bleed and come down from the podium to attack the can hurler. However, when the altercation had ceased, Gerald Powell spoke to Kiser, stating that this was his first opportunity to speak to Kiser, and told the latter that the hearing on Powell's grievance was due the following day. Kiser, according to both David and Gerald Powell, then stated, "That's right. If you want some of me you can get some of me right now." It should also be noted that subsequent to Gerald Powell's discharge as a casual from Ryder, and within a few weeks, Gerald Powell obtained employment as a casual at Branch Motor Freight and for a short period of time also worked as a casual at Time D. C. Gerald Powell worked at Branch Motor Freight until shortly before the hearing in the present proceeding. Most relevant is the fact that both Branch Motor Freight and Time D. C. have collective- bargaining agreements with the Union herein and their employees are members of the Union pursuant thereto. The foregoing is a summary of all the relevant evidence supplied by witnesses called by the General Counsel or by documents received in evidence during the presentation of the General Counsel's case in chief. It is upon the foregoing facts that the motions to dismiss, made by counsel for both Respondents, must be decided. B. Discussion and Conclusions Counsel for the General Counsel contends that he has presented, on the above facts, a prima facie case that Respondent Ryder discharged Gerald Powell as a casual by arbitrarily applying its antinepotism policy pretextually, inasmuch as it had not enforced such policy before, and that this pretext was utilized by Ryder at the insistence of the Union to discharge Gerald Powell because, among other things, Gerald Powell had supported the opposition slate in the union election held 1-1/2 years before Gerald Powell's discharge, and also because the Union insisted upon Gerald Powell's discharge for the additional reason that it sought to rid the Ryder dock of certain casuals, including Gerald Powell, for reasons other than the nonpayment of initiation fees and/or dues. Counsel for the General Counsel argues that this has long been established as an unwarranted reason for discharge since the Supreme Court decision in Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Company] v. N.LR.B., 347 U.S. 17 (1954). In support of his contentions, counsel for the General Counsel points to several items of testimony which, he argues, bolster his theory that the discharge was discrimi- 220 RYDER TRUCK LINES, INC. natory and that the Union caused the discrimination. In the first instance, counsel for the General Counsel argues it must be inferred that from the date of the election campaign Kiser has nursed a grievance against Gerald Powell. But, in order to support this, there is no evidence except statements made by Kiser on three occasions, none of which relates to the election campaign. The first, as recited above, was when Kiser visited the Ryder premises and was shown the letters written by the casuals who informed Terminal Operations Manager Janik that they did not desire to become regular employees pursuant to the agreement between Ryder and the Union. At that time Kiser stated, according to Gambrell's testimony, that Gerald Powell was the instigator of this refusal to become regular employees. While this may be some indication that Kiser knew something about Gerald Powell's activities as a member of the Union, it is a long way from even establishing as a prima facie matter that Kiser from that point on intended to get rid of Gerald Powell as an employee of Ryder because of Powell's support of the opposition slate. Furthermore, the record establishes that other casuals were also discharged whether they wrote letters or not, where they had served sufficient time to apply for regular employment and had refused to do so. Insofar as the seemingly (initially) arbitrary manner in which the antinepotism policy was enforced, the record clearly establishes that it was not clear to Terminal Manager Edwards' predecessors or to Operations Manager Janik, and his successor, Gambrell, just what the policy was. Moreover, their testimony shows that they did not wish during their respective administrations to apply the policy strictly and thus upset the routine that had been established for using casuals at the Ryder dock. When Edwards, who became terminal manager in March 1976, learned of the matter, he requested enforcement of the antinepotism policy only after consulting with Ryder's Jacksonville headquarters office. Even then Gerald Powell was not the only casual relative of a regular employee who was discharged. Mike Stamey was also discharged for like reason. The only additional instances of any meetings or conver- sations between Gerald Powell and Union President Kiser are those when Powell realized that he might be laid off by reason of his election to continue as a Ryder casual employee. He made contact with Kiser by telephone and asked that he not be discharged as a casual from the Ryder dock because of his financial condition. At that time Kiser told him something to the effect that, "Brother, you cannot have both jobs." The final conversation or confrontation between the two came after Powell was discharged and filed a grievance. He attended a union meeting the night before the grievance hearing at which a can was thrown at President Kiser. When Kiser came down into the assembled members, presumably for the purpose of confronting the individual who threw the can, and when the altercation was prevent- ed, Gerald Powell stated to Kiser that the following day was to be the date of his hearing. Kiser answered him to the 4 Radio Officer's Union [Bull Steamship Company] v. N. LR.B., 347 U.S. 17 (1954). 1 Philadelphia Typographical Union No. 2 (Triangle Publication), 189 effect that, "if you want me come and get me," or similar words. I find nothing in either the conversation on the telephone between the two the week before Powell was discharged, or Kiser's remark to Powell at the union meeting the day before his hearing on his grievance, which would indicate anything other than the fact that the Union was seeking to enforce its policy according to the collec- tive-bargaining agreement which stated that casuals who put in a certain amount of time would have to request regular employment and thereby become entitled to all of the fringe benefits offered by the said collective-bargaining agreement between the Union and Ryder. Accordingly, 1 cannot find on the basis of all of the evidence presented by the General Counsel that the Union, through Kiser or any other officer, pressed to have Gerald Powell discharged by Ryder for his having participated in support of the slate which 1-1/2 years before the discharge opposed Kiser's slate. In arriving at this conclusion I have considered the lapse of time between the election campaign and Gerald Powell's discharge in the light of the obvious fact that if Kiser desired to seek revenge for Powell's support of Kiser's opponent, he could have attacked Powell where it would have hurt the most-that is Powell's regular employ- ment at McKesson. He could also have prevented Powell's later casual employment at other facilities under contract with the Union. We come now to the additional argument, or at least a supporting argument, presented by counsel for the General Counsel; namely, that under the Supreme Court's ruling a union member cannot be discharged at the request or demand of a union for reasons other than failure to pay dues or initiation fees. It is gainsaid, in the instance presented here, that Gerald Powell was not only a member in good standing of the Union but also a union steward and a regular employee at the McKesson dock. Thus, at first blush, it would seem that Powell was discharged at the demand of the Union for having refused to become a regular employee of Ryder, which reason would seem to have been discriminatory and violative of the Act in that it unlawfully encouraged union membership.4 However, the Board has not applied mechanically the Supreme Court's ruling in the Radio Officers' case. In numerous decisions it has stated that the presumption that a union's activities in causing an employee's discharge results in unlawfully encouraging union membership on the part of all employees who have reason to note and perceive the exercise of a union's power, may be overcome and the presumption abutted when the interference with employ- ment is pursuant to a valid union-security clause or, as in the instant case (assuming no union-security clause), where the facts show that the union action was necessary to the effective performance of its function of representing its constituency. 5 In the case at bar, the common good of all of the members of the Local Union who were in the unit represented by the Union at Ryder's Cincinnati facility required the Union to request the discharge of all nonregu- lar casuals, not only because these individuals failed to NLRB 829 (1971); Cf. International Union of Operating Engineers, Local 18, AFL-CIO [Ohio Contractors Association], 204 NLRB 681 (1973). 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make a request to become regulars pursuant to the provisions of the collective-bargaining agreement, but also because the regular employees of the Respondent, who outnumbered the casuals on a day-to-day basis, demanded that the casuals who did not wish to become regular employees be laid off so as not to interfere with the employment opportunities for overtime and other addition- al earnings which might otherwise be offered regular employees. Thus, the action taken by the Union was for the good of the unit as a whole and, therefore, under Board precedent, as recited, the Union's activities in pressing the Respondent to discharge the casuals, who had served sufficient time to become regulars and did not do so, was not only the legitimate exercise of the power of the Union, it was the exercise of an obligation on the Union's part to protect its members who were regular employees in the Ryder unit. That Powell was not chosen alone for dis- charge for that reason is clearly demonstrated by the record which shows that other employees, even those who did not sign letters stating that they did not wish to become regulars, but who had served sufficient time as casuals to become regulars and who failed to do so, were also discharged. 6 It should also be noted that both Gambrell and Janik, whose testimony is relied on so heavily by counsel for the General Counsel, are no longer working for Ryder, both having left Ryder's employ, and that therefore their testimony would be credited in any event, even assuming denial of the dismissal motions, because there are no longer any apparent pressures upon them to testify in support of Ryder's defense. Accordingly, I find and conclude that the evidence presented by the General Counsel on his case in chief does not support the allegation of the complaint nor either of his theories that the Union unlawfully requested the discharge of Gerald Powell or that Respondent Ryder, pursuant to such unlawful demand discriminatorily discharged Powell and gave a pretextual reason for doing so. Therefore, on the basis of all of the foregoing, I find and conclude that the General Counsel has failed to establish a prima facie case and will recommend that the complaint be dismissed. In so finding and so recommending, I have considered all of the testimony without making credibility resolutions and with giving the benefit of all doubts to the witnesses presented by the General Counsel. 6 Upon all of the foregoing, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 It is hereby ordered that the complaint in this proceeding be dismissed. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 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. 222