Fleet Distributing Service, Inc.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fleet Distributing Service, Inc. and Stanley Lee. Case 27-CA-3338 November 9, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 5, 1972, Administrative Law Judge 1 George H. O'Brien issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel 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 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,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, in part for the following reasons. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) and (3) of the Act by discharging Stanley Lee because it was fearful that Lee would engage in the same protected concerted activities in behalf of Teamsters Local 17 which it knew he had engaged in while previously employed by Ringsby Truck Lines. In so finding, the Adminis- trative Law Judge refused to defer to an award of the Teamsters' Joint Western Area Committee which sustained Lee's discharge. Respondent contends that the Board should honor the award and dismiss the complaint. We find for the following reasons that the Administrative Law Judge was correct in not deferring to the award. The record of the bipartite committee meeting reveals that the unfair labor practice issue was not litigated there. The one tangential remark made by Bushnell, the Union's president, to the effect that Respondent discharged Lee because of his "back- ground" as a steward for the Union, was not pursued by either the committee members or the Union, and it clearly played no part in the committee's final i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 While the contract proscribes discrimination against union members even if they are probationary employees, it is clear, as we have found, that in Lee's case this issue was not litigated decision to uphold Lee's discharge. Indeed, the only issue presented to and decided by the Joint Western Area Committee was whether Lee was a "probation- ary" employee who under the collective-bargaining agreement could be discharged "without further recourse," or a "casual" employee, for whose discharge Respondent had to have just cause. The joint committee decided that at the time of his discharge Lee was a probationary employee, and that therefore Respondent had the contractual right to discharge Lee for any reason.3 Therefore, as we have found that the unfair labor practice issue was neither litigated before nor decided by the Teamsters' Joint Western Area Committee, we shall not defer to that committee's award,4 for the reasons more fully set forth in Airco Industrial Gases, 195 NLRB No. 120, and Yourga Trucking, Inc., 197 NLRB No. 130.5 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 Respondent, Fleet Distributing Service, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, concurring in the result: I agree with the result in this case and would not defer to the committee's award, but only for the reason that in my view the rationale of Kansas Meat Packers governs under the facts herein.6 In that case, given the apparent antagonism between the interests of the discriminatees and both parties to the contractual grievance-arbitration procedure, the Board refused to defer to the arbitration process under the principles of Collyer Insulated Wire, 192 NLRB No. 150, because it concluded that to do so would relegate the discriminatees to an arbitral process administered entirely by parties hostile to their interests. The same considerations apply to the instant case. I believe that we should not defer to the committee's award in this case because a review of the record persuades me that both parties to the grievance procedure were hostile to Lee's interests. 4 Member Jenkins additionally would not defer to arbitration for the reasons set forth in the text and for the reasons set forth in his dissents in Collyer Insulated Wire, 192 NLRB No 150; Terminal Transport Co., Inc., 185 NLRB No. 96; and National Radio Company, Inc, 198 NLRB No. 1. Accordingly, he finds it unnecessary to determine whether Collyer Insulated Wire and Airco Industrial Gases, 195 NLRB No. 120, should be retroactively applied. 5 Chairman Miller disavows and does not rely on the Administrative Law Judge's conclusion that the Board's decisions in Collyer Insulated Wire, supra, and Airco Industrial Gases, supra, should not be retroactively applied. 6 198 NLRB No. 2. In both Yourga and Airco, supra, I stated my disagreement with the approach of the majority. 200 NLRB No. 35 FLEET DISTRIBUTING SERVICE, INC. 197 I therefore join my colleagues in finding that Respondent discharged Stanley Lee in violation of Section 8(a)(1) and (3) of the Act.7 7 I also join Chairman Miller in disavowing the Administrative Law Judge's discussion of Collyer Insulated Wire, 192 NLRB No. 150. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On April 27 and 28, 1971, in Denver, Colorado, a hearing was held in the above-entitled matter. The complaint, issued March 16, 1972, is based on a charge filed September 7, 1971, by Stanley Lee, an individual employee. The complaint alleges in material substance that Lee was discharged August 31, 1971, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, by Fleet Distributing Service, Inc., herein called Respondent, because of Lee's activities on behalf of International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 17, herein called the Union. Respondent's answer admits that Lee was discharged, denies that the discharge was provoked by his union activity, and avers that "such termination was upheld under the grievance- arbitration procedures of the applicable collective bargain- ing agreements between the Respondent and the Union, which grievance-arbitration procedures had been invoked and participated in by Stanley Lee." Upon the entire record in this proceeding, including my observation of the witnesses and after due consideration of the po$thearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Colorado corporation, engaged in Denver, Colorado, in the business of loading and unload- ing freight on motor trucks and trailers and the local cartage of goods. Respondent is a wholly owned subsidiary of Scott Truck Lines, an interstate motor carrier, and conducts its business from Scott's Denver terminal. Respondent functions as an essential link in the transporta- tion of commodities in interstate commerce and derives in excess of $50,000 gross revenue per annum from such operations. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(5) and (6) of the Act. II. THE 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. The Issues 1. Summary of argument of General Counsel Lee was hired as a casual dockworker on August 4, 1971. He worked steadily for 13 days and thereby acquired status as a permanent employee. He was discharged August 31, 1971, because, as a steward for the Union at Ringsby Truck Lines from 1967 to 1970, he had insisted that Ringsby comply with its union contract , and had filed a charge against Ringsby with the National Labor Relations Board. Respondent's terminal manager, Wayne Harris, admit- ted that he discharged Lee "because we didn't want the same problems that he created at Ringsby Truck Lines." Harris' other reasons for discharging Lee were false and pretextuous. Since Respondent in discharging Lee was motivated, in part, by the fear that he would engage in protected concerted activities on behalf of the Union, Respondent's other reasons, even if true, would not legitimize the discharge. The Board should not defer to the determination of the Joint Western Area Committee sustaining the discharge. The committee did not have before it and did not consider the issue of Lee's union activities. The determination of the western area committee is clearly repugnant to the policies of the Act. Airco Industrial Gases, 195 NLRB No. 120. 2. Summary of argument of Respondent The Board should defer to the result of the contractual grievance procedure and dismiss the complaint . Following his discharge Lee voluntarily initiated a grievance proce- dure under article 45 of the Western States Area Pick-up and Delivery Agreement. When the Joint State Committee deadlocked, he voluntarily took the case to the Joint Western Area Committee, which by majority vote, held that Lee had been properly terminated under article 41 of the contract. The proceedings were fair and regular, all parties agreed to be bound and the decision was not repugnant to the purposes and policies of the Act. This salutory principle announced in Spielberg Mfg. Co., 112 NLRB 1080, was applied under substantially identical circumstances in Denver-Chicago Trucking Company, Inc., 132 NLRB 1416, and controls the disposition of this case. The Joint State Committee and the Joint Western Area Committee were competent to decide whether Lee's discharge was motivated by Respondent's desire to discourage legitimate union activity and to order reinstate- ment and backpay were that fact demonstrated to them. Lee, however, with full knowledge of the facts on which the instant complaint is premised, chose not to litigate this claim under the grievance procedure. To refuse deferral under these circumstances is not only to ignore the express provisions of the voluntary agreement between the parties, but also to invite litigants to engage in piecemeal litigation. It would make the grievance procedure under the contract a mockery by allowing parties to try half their case before the various committees and, if unsuccessful, then pursue the remainder of it before the N.L.R.B., irrespective of the fact that the contract provides for a waiver of any claim not presented in the grievance machinery. Attempts, such as this, by parties to sidestep their own voluntary agreements was comment- ed upon recently by the Board in Collyer Insulated Wire, 192 NLRB No. 150, as follows: 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deference in this case would simply be an acknowl- edgement and enforcement of the voluntary agreement between Mr. Lee as a member of the Union and Fleet. The General Counsel has not demonstrated by a preponderance of the evidence the indispensable fact that Respondent "knew that Lee was engaged in protected activity and that he was discharged because he had been so engaged. N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397, 402-3." Although Respondent was aware of the fact that Lee had had "union problems" at Ringsby Truck Lines, there is no evidence that Respondent had knowledge of any protected activity by Lee. If knowledge of Lee's protected activities at Ringsby be imputed to Respondent, then knowledge of his unprotected activities should also be imputed. Lee was discharged by Ringsby for causing an unlawful work stoppage. The discharge was sustained by the Joint State Committee and the NLRB refused to issue complaint. Respondent's knowledge that Lee had "union problems" of an unspecified nature does not prove that the discharge was discriminatorily motivated. The rule as stated by the Board in Klate Holt Co., 161 NLRB 1606, 1612, is: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlaw- ful. Lee was hired as a heavy duty truckdriver, and was discharged because of his demonstrated inability to perform the functions of the job. He was unable to "spot" a trailer at Respondent's dock. He caused a misload of freight which resulted in a damage claim against Respon- dent. He was frequently absent from his place of work with "nobody knowing his whereabouts." .... irrespective of his Union background, Mr. Lee would not have been allowed to continue in the employment of Fleet because of his inability to perform the tasks assigned to him during the brief time he was there. B. Respondent's Operation Scott Truck Lines operates between Chicago and Denver. Its Denver terminal in August 1971 was manned by employees of Respondent. Wayne C. Harris was terminal and operations manager. Vern Miller was dock superintendent. Robert Deaton, assistant freight manager, was the controlling manager of all the dock foremen. The foremen were Bob Buzick, Howard Loomis, and Sam Cook. Loomis was in charge of approximately 12 dock- workers whose hours were 3:30 p.m. to midnight, Monday through Friday. Their duties were to load and unload Scott's intercity trucks and trailers and to load the local delivery trucks operated by Respondent's drivers. Scott's trailers, when not being worked at the dock or on the road were parked in open lots, (sometime called yards) one of which was six city blocks from the loading and unloading dock. It was part of the responsibility of Respondent's dockworkers to move these trailers, many of which were 40 feet long, from the parking lot to the precise spot on the dock where it was to be loaded or unloaded. This is a skilled operation performed by a "heavy duty truckdriver" who is qualified and licensed to operate on public streets vehicles with three or more axles. The rate for "heavy duty driver" in August 1971 was $5.20 per hour. The exact number of Respondent's regular dockworkers and local drivers in August 1971 does not appear in the record, but they numbered somewhere between 54 (as of March 1971) and 78 (as of October 1971). In August 1971, Respondent hired 6 regular employees, used the services of 10 casual employees for periods of from 1 day to 11 days each, and also employed Stanley Lee. The Union in the grievance proceeding took the position that Lee was a casual. The Employer took the position that he was a regular employee who had not served his probationary period of 30 days. C. The Collective-Bargaining Agreements Respondent's drivers and dockworkers are represented by the Union, and their wages, hours, and working conditions are governed by Teamsters "National Freight Agreement" and by the "Western States Area Pick-Up and Delivery Local Cartage and Dock Workers Supplemental Agreement," both effective from April 1, 1970, to June 30, 1973. The supplemental agreement provides, in relevant part: Article 41(a) A new employee shall work under the provisions of this Agreement but shall be employed only on a thirty-day trial basis with the individual Employer, during which period he may be discharged without further recourse; provided, however, that the Employer may not discharge or discipline for the purpose of evading this Agreement or discriminating against Union members. After thirty days the employee shall be placed on the regular seniority list. Article 59(c) Where the workweek is now limited to Monday through Friday eighty per cent (80%) of the regular dock and truck helper employees shall be guaranteed forty (40) hours of work or pay. Eighty per cent (80%) of the regular driver employees shall be guaranteed forty (40) hours of work'or pay. It is agreed that the standard forty (40) hour workweek need not apply to twenty per cent (20%) of the regular employees in either classification, with a minimum of one (1). Seniority must be recognized. Probationary employees shall be considered regular employees for the purpose of this section. Article 54 Section 4. A regular employee, for the purpose of this Supplemental Agreement shall be any employee on the regular seniority list, as defined by this Agreement. Article 50 Section 4. A casual or extra employee is an employee who has not worked twelve (12) days within the period of a calendar month. Days worked by a casual employee when a regular employee is off due to illness, vacation or other absence shall not be counted as days worked in calculating the twelve (12) day FLEET DISTRIBUTING SERVICE, INC. 199 period .... Such employee shall receive fifteen (150 ) cents per hour above the regular hourly rate for the classification in which he is employed ... . Article 50 Section 5. Casual employees shall not be used to deprive regular employees of overtime. All regular men must be working before a casual or extra man is used. Article 44 Section 1. The Employers and the Union shall establish permanent joint state-labor-management committees as follows:.... one (1) for the States of Colorado and Wyoming . . . . Each such committee shall be referred to hereinafter as "Joint State Commit- tee." The Joint State Committee shall consist of an equal number appointed by the Employers and Unions but not less than three (3) from each group ... . Article 44 Section 2. The Employers and the Unions shall together create a permanent Joint Western Area Committee which shall consist of delegates from each of the areas named in Section 1 of this Article ... . Article 44 Section 3. It shall be the function of the various committees above-referred-to to settle disputes which cannot be settled between the Employer and the Local Union in accordance with the procedures established in Section 1 of Article 45. Article 45 Section 1 . . . . Disputes shall be taken up between the Employer and the Local Union involved. Failing adjustment by these parties, the following procedure shall then apply: (a) Where a Joint State Committee by a majority vote settles a dispute, no appeal may be taken to the Joint Western Area Committee. Such a decision will be final and binding on both parties. (b) Where a Joint State Committee is unable to agree or come to a decision on a case, it shall at the request of the Union or the Employer involved, be filed with the Joint Western Area Committee at the next regularly constituted session. Where the Joint Western Area Committee by majority vote settles a dispute, such decision shall be final and binding on both parties with no further appeal. D. The Discharge of Lee and Molden Stanley Lee was employed by Ringsby Truck Lines from 1963 to 1970. He was a heavy duty truckdriver, i.e., qualified and licensed to operate truck and trailer combinations with three or more axles. He also worked on the dock, loading and unloading merchandise. During the last 3 or 4 years of his employment by Ringsby he was the Union's steward, in which capacity he filed about 200 grievances. With the assistance of the Union's business agent, Alvin L. Molden, and the Union's president, Frank Bushnell, he was instrumental in collecting almost $10,000 from Ringsby "in monies which were underpaid to workers over a period." Lee had obtained the evidence on which this settlement was based by making daily copies of timecards. In February 1970 he was discharged by Ringsby on the asserted ground that he had induced an employee, Milton Berger, to leave his work. The discharge was sustained by the Colorado Wyoming Joint State Commit- tee. The charge which he filed with the NLRB was dismissed. His court suit against Ringsby and the Union was dismissed. On Wednesday, August 11, 1971, Lee was dispatched by the Union to Respondent. He reported to Foreman Loomis, whose only words were, "Get yourself a time card and get on the clock." Lee worked on the dock the full day without incident. Next day he telephoned in and was told to report for work. He did not ask whether he was regular or casual, nor inquire about his rate of pay. His first paycheck showed that he was receiving the rate of a heavy duty driver, and was not receiving the 15-cents-per-hour bonus to which a casual employee was entitled. On Monday, August 16, 1971, Lee filled out an application for employment and gave it to Loomis. The application listed his employment by Ringsby Truck Lines and showed as his "reason for leaving"-"Discharge Appeal Pending." Since only the top 80% of the seniority list are guaranteed 40 hours per week , all other employees are required to call in daily to see whether their services will be required. Lee fulfilled this requirement and was called to work every working day between and including August 12 and Monday, August 30. On Tuesday, August 31, the telephone was answered by Assistant Freight Manager Deaton, who told Lee that he could not be used again. When Lee asked for the reason, Deaton's reply was either "Too much pressure," or "Too much pressure from upstairs." Lee replied, "All right." Alvin Molden had been a heavy duty truckdriver for 17 years when he was, in December 1965, appointed business agent of the Union. He was discharged by the Union October 1, 1970. On August 3, 1971, Molden filed with Respondent a written application for employment, wherein he showed his employment by the Union. Molden was assigned to the second shift on the dock and worked steadily 8 hours per day, 5 days per week, from Wednesday, August 4, through Monday, August 30, 1971. When he called in on Tuesday, August 31, the telephone was answered by Foreman Buzick who transferred the call to Deaton. Molden was informed by Deaton that "they couldn't use me any more." When Molden asked, "What did I do wrong?" Deaton repeated, "I can't say, I just can't use you any more." When Foreman Loomis reported for work on August 31, I walked in and asked about how many people I was going to have for my shift, and I was told I was going to be two short, and I asked for the reason, that their applications hadn't been checked out yet. Molden, after receiving the word from Deaton, tele- phoned the Union's president, Frank Bushnell, who agreed 'to meet with Molden and Lee for,lunch at a hotel. Bushnell telephoned Harris from the hotel and was told by Hams that the two men had been terminated because of their "backgrounds." Harris told Bushnell that he had a peaceful dock and felt that if he continued their employ- ment, he would have a lot of grievances to contend with. Bushnell told Harris that they had had a rough time trying to get work, that they were trying to do their work as well as they could, and that he wouldn't have any grievances. In answer to Bushnell's inquiry, Harris said "there were no gripes about their work." The conversation ended with Harris telling Bushnell that he would put the two men back 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work. Bushnell then gestured with his hands, saying "You're back to work," and asked Molden and Lee to meet him at Respondent's dock the next morning. On Wednesday, September 1, while Molden and Lee waited in the lunchroom, Bushnell met with Harris in Hams' office. Harris reiterated that he would not take the men back to work because of their backgrounds, and did not answer Bushnell's question as to what had caused him to change his mind. Bushnell, Molden, and Lee then went to the Board's regional office and Bushnell, in the name of the Union, filed a charge (27-CA-3337) alleging that Molden and Lee had been discharged in violation of Section 8(a)(3) of the Act. Later on Wednesday, September 1, Harris hand-carried to the union office a copy of the following letter: AUGUST 31, 1971 Dear Mr. Lee: Effective this date, August 31, 1971, you are hereby terminated from your employment with Fleet Distrib- uting Service, Inc., per Article 41, Section 1, of the Western States Area Pick Up and Delivery, Local Cartage and Dock Workers Supplemental Agreement. This will confirm our verbal notification of August 31, 1971. FLEET DISTRIBUTING SERVICE, INC. ROBERT DEATON ASSISTANT FREIGHT MANAGER. On the morning of either Thursday or Friday, September 2 or September 3, Bushnell paid a second call on Harris. Bushnell testified credibly and without contradiction: Mr. Harris stated that he would put Mr. Molden back to work, but steadfastly remained in his position that he wouldn't take Mr. Lee .... that he had a peaceful dock down there ; he didn't want any union problems, and he still felt that if he let Mr. Lee go back to work that he would have just nothing but grievances. And I tried to assure him in my conversa- tion that he wouldn't have those problems, that Mr. Lee was just trying to get along. It had been a long time since Mr. Lee had been able to keep any work, because he was a union steward over at Ringsby. He only tried to live up to the contract and abide by the contract. He only did his job over there as a union steward as prescribed in the contract. But in going to work for Fleet, he was no longer a union steward, and I felt that the man just wanted his job, and this was all I was trying to do, to get him his job back, but Mr. Wayne Harris still felt that Mr. Lee was a union agitator, and he just didn 't want him on the dock. He was again afraid that if he let him get a foothold in the door that all the problems that he'd have with Mr. Lee would result in grievances. The meeting concluded with Harris' promise to reinstate Molden and Bushnell's promise to withdraw the charge which he filed with the NLRB . Both promises were kept. Lee learned of the withdrawal of the charge through a telephone call from a Board agent on Monday, September 6, and filed his individual charge on the next day. After his meeting with Lee on September 2 or September 3, Harris signed and mailed the following letter: SEPTEMBER 3, 1971 Dear Mr. Lee: This is a supplemental letter, regarding your Discharge Letter, dated August 31, 1971. As stated in that letter, you were discharged per Article 41, Section 1, of the Western States Area Pick Up and Delivery, Local Cartage and Dock Workers Supple- mental Agreement. In order to substantiate this discharge and show that we had cause, below are a few of the areas in which your work was unsatisfactory: 1. Supervisors on the shift that you worked indicate that there were times when your whereabouts could not be accounted for. 2. On one occasion you were instructed by a supervisor to spot a trailer into Door 18B and when the wheelers attempted to take the freight to this trailer, it was discovered that the trailer had not been spotted and when you were asked why you did not spot it, your reply was that you could not do it and you gave no reason for not reporting this to your supervisor. 3. Another occasion, during the week of August 23rd, you were responsible for a shipment of five cases of meat being misloaded into a Chicago bound trailer. In conclusion, it is our thought that your work, habits and performance was not of the caliber which is desired at Fleet Distributing Service, Inc., therefore , you were terminated. After withdrawing the NLRB charge, Bushnell requested a hearing before the Joint State Committee on Lee's discharge. After receiving a copy of Harris' letter of September 3, Bushnell paid his third call on Harris and offered to drop the grievance if Lee were reinstated. Harris refused. E. The Grievance Proceedings 1. Hearing before Colorado-Wyoming Joint Area Committee, September 8, 1971 Fleet was represented by Wayne Harris. The Union was represented by Bushnell and by its secretary-treasurer, Harry Marshall. Lee appeared as a witness. It was assumed by all parties that if Lee were a regular employee who had not completed his probation, Respondent had an absolute right, under article 41 to discharge him. The Union took the position that article 41 did not apply to casual employees. The committee decided to hear the case on the merits, thereby, by inference, agreeing with the Union. Harris read his September 3 letter into the record. Lee made a long statement, explaining and justifying his inability to spot the trailer, denying that he had misloaded any shipment, and asserting that: FLEET DISTRIBUTING SERVICE, INC. The only time I left the dock was to go to look for a trailer or to spot a trailer. The entire building is between two one-way streets, one north, one south. You still have to go around the building to the furthest lot which is approximately six blocks away. I had to have time to find the tractor all other times. If you are looking for a man, ten minutes can be an awful lot of time, and that is as much time as it took to find the tractor or trailer. I always told him I was going-I didn't tell the supervisor because he didn't give a damn where I went. I told the man I was working with. There was no mention of Lee's "background" or of his union activity, or of any of Harris' damaging admissions, although such testimony was invited by an employer representative on the committee. Mx. KuzARA: I would like Mr. Lee to answer. There is some doubt whether you were a casual or terminated as an employee under Article 41. If you were terminated under Article 41, do you have any reason as to why you were terminated? MR. LEE: I can't answer that at all. I do know that they got the job done. I plead guilty to one part of the statement he made - where he said "spotting the trailer." Mit. KuzARA: Did you read Article 41? MR. LEE: Yes. MR. KUZARA: Where "you may be discharged without further recourse"? MR. LEE: Yes. The committee went into executive session, after which the chairman announced: "Gentlemen, this case is dead- locked." 2. Hearing before Joint Western Area Committee, November 16, 1971 The hearing was held in San Francisco. Fleet was represented only by Norman C. Pixler, General Manager of the Western Empire Operators Association. The Union was represented by Bushnell and by Lee. The only issue submitted to the committee was whether Lee was a casual employee or a regular employee who had not completed 30 days' probation. The decision of the committee was that Lee was a casual from August 11 to the date when he filed a written application for employment, August 16, and Fleet was directed to pay him an additional 15 cents for each hour worked during that period. It further decided that he was properly terminated under section 41 of the contract. No question was put to Lee regarding his work or the truth of any matters contained in Harris' letter, which was read into the record. Bushnell did state at one point: I talked to Wayne Harris, why they didn't want to put them back to work. And he says, "Due to his background I don't want him on the dock down here." Not for these reasons at all. Mr. Lee here is an ex- steward from Ringsby. This ambiguous statement was not followed up. The Union made no claim that Lee had been discharged because of his union activities. F. Respondent's Explanation of Lee's Discharge 201 Harris testified that he learned from Foremen Loomis and Cook that Lee: Had previously worked at Ringsby Truck Lines and he had had many union problems there and that he had filed an NLRB charge against Ringsby Truck Line. After these facts were communicated to him , Harris examined Lee's application for employment, and asked his supervisors about Lee's work habits and work capacity. Harris then decided to discharge Lee, based in part upon his union problems: Because we didn't want the same problems that he created at Ringsby Truck Lines. Respondent would not have kept Lee , irrespective of his background, "because of the problems we had with him in the 14 days he did work." Harris' only reason for the discharge of Molden was: He had been a business agent for Local 17. He had been discharged from Local 17 and had been bouncing around from one truck line to another since his discharge. Molden was reinstated September 4, "because we had acted hastily and really had no reason to discharge him." G. The Alleged Derelictions of Lee 1. Absence from post of duty Harris testified that he obtained this information from Foremen Howard Loomis and Sam Cook. Although both Loomis and Cook testified as witnesses for Respondent, neither corroborated this testimony, and neither cited any instance when Lee's "whereabouts could not be accounted for.,, 2. Failure to spot a trailer into Door 18B Lee testified that on about the 5th day of his employ- ment (which would have been about the same time that he made written application): Well, Mr. Cook-I was working on one trailer, breaking out the trailer, and he said would you get this certain tractor, and put a certain trailer into 18B. Nor 18B is not a portion of the regular dock; it's an addition. It's a wooden platform. It's not concrete, it's not steel; it's just a platform, but it's in a very awkward spot, and to get to it one has to back a vehicle through a shop, a mechanics' shop, which is not very large; the doors are certainly not very large, and then take a 45 degree angle outside. Once you get through the shop and a very, very fast 45 degree angle to get back to this platform, I didn't feel that I could do it with new equipment, and I told him so. I said, "It will probably take me all night," and he said, "Well, have a go at it anyway," which I did. After ten minutes and my third stab at it there was a heavy duty man across the yard. He says, "Are you having trouble?" I said that I was. He said, "Would you like me to get it in for you," and I said, "Yes," and he did. That was it from start to finish. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When I came back onto the dock, Mr. Cook said, "Is that trailer in yet," and I said, "It's just coming in right now," and it was .... That was the end of the conversation right there. Cook testified that he could not recall the date, but it was on the afternoon shift: Well, I designated Mr. Lee to bring a trailer, one of our local trailers, which was not a 40-footer, just about a 24-foot trailer into this door 18B, and, of course, I went about my duties, and I directed some freight into this door 18B from our unloading platform. And, of course, when the boys, the men went to load freight into this truck, why there was no truck in the door. So, of course, one of the men came to me and stated there was no truck in the door. So I told him that I did have one put in there, and he says there is no truck in the door. So I asked Mr. Lee why he didn't put the truck in the door. He said he was unable to put it in there. I further asked him why he didn't report that to me so I could have it done, and, of course, he could not answer that. So I designated another man to put the truck into the door, which we proceeded to unload and load the trailer in that door. I regard Lee's recollection of the foregoing incident as the more reliable. The incident did not prevent Lee from being called to work on nine succeeding days, and Lee had no difficulty in spottmg any other trailer. The incident was not reported to Harris until he solicited, from Cook, reasons to justify his decision to discharge Lee. 3. Misloading of five cases of meat On some unspecified date the consignee of five cases of meat destined for Omaha complained that it had not arrived. The meat was found in Chicago. Loomis testified that he had set up a procedure whereby there was a load diagram on which the loader marked down the number of pieces and the weight and initialed his entry. Misloading is not uncommon and the purpose of this load diagram was "to catch this mistake before it was sent out of town." Loomis further testified that when the complaint of the consignee was brought to his attention by Harris, he checked the load diagrams, and ascertained that Lee had placed the Omaha meat on the Chicago trailer. Loading of interstate trailers is not always completed at the dock. Occasionally, after the trailer has pulled away from the dock, and while standing in the yard, it is necessary to add to the load. In these circumstances, the dockman loads the merchandise on a pickup truck, and loads it on the trailer in the yard. Cook testified that he had instructed Lee to take five cases of meat from the dock, and take it to the yard in a pickup and put it on the Omaha trailer. Although the order was given by Cook, the actual loading was performed under the supervision of Loomis. Lee categorically denied that he had anything to do with the misshipment of meat. His regular job was unloading. On the rare occasions when he did load, it was under the direction of the foreman. Lee did not sign anything. The load sheet was signed by the foreman. On only two occasions did Lee load any meat. One night he loaded a single 2,000 pound palletized package. Two nights later he loaded one box of meat and one box of fish. I credit Lee's denial. The misloading, according to Harris' letter of September 3, occurred "during the week of August 23rd." The method of its discovery is some indication that the misload was not apparent from Loomis' load diagram. Loomis did not deny Lee's testimony that the foreman signed the loading list. The load diagram was not produced, and Respondent offered no explanation of its failure to do so. The one certain fact is that it was Loomis' responsibility to ensure that no misloaded freight left Denver. When Harris asked for reasons to justify his discharge of Lee, this was Loomis' opportunity to shift the blame and partially exculpate himself. The incident described by Cook did not relate to the misshipped meat, but to one of the two occasions described by Lee when he placed meat and fish on trailers which were parked in the lot. H. Conclusion as to Respondent's Motive in Discharging Lee I conclude and find that Respondent's sole motive in discharging Lee was the fear that he would require Respondent to comply strictly with the terms of its contract with the Union. Two of the work connected reasons advanced by Respondent as justification for the discharge are false, and the third, i.e., inability to spot a trailer, had been condoned. Respondent was totally unaware of the fact that Lee had engaged in or had been accused of engaging in any unprotected union activity at Ringsby. There was no hint of any such fact in any of the communications he received from Loomis, Cook, or Bushnell, and he had no other information about Lee's activities. By discharging and thereafter refusing to reinstate Lee, Respondent committed a clear and flagrant violation of Section 8(a)(1) and (3) of the Act. I. Conclusion as to Whether Board Should "Defer to Arbitration." On June 8, 1955, in the matter of Spielberg Manufactur- ing Company, 112 NLRB 1080, the Board stated at 1082: In the instant case the factors which impelled the Board to exercise its jurisdiction in Monsanto and Wertheimer are not present. Thus the arbitration award is not, it was in Monsanto, at odds with the statute. This does not mean that the Board would necessarily decide the issue of the alleged strike misconduct as the arbitration panel did. We do not pass on that issue. And unlike Wertheimer, all parties had acquiesced in the arbitra- tion proceeding. In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. In these circumstances we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will be best served by our recognition of the arbitrators' award. Accordingly, we find that Respondent did not violate the Act when, in FLEET DISTRIBUTING SERVICE, INC. accordance with the award, it refused to reinstate the four strikers. We shall, therefore, dismiss the complaint in its entirety. On August 29, 1961, in Denver-Chicago Trucking Compa- ny Inc., 132 NLRB 1416, the Board applied the Spielberg principle where there was no arbitration, but a discharge had been found proper by a "Joint State Committee" under a Teamsters contract. The Board, dismissing the 8(a)(3) allegation of the complaint stated at 1421: We consider it enough under Spielberg if the proce- dures adopted meet normal standards as to sufficiency, fairness and regularity. As to these, each case must rest on its own bottoms. Where, as here, the parties have found that the machinery which they have created for the amicable resolution of their disputes has adequately served its purpose, we shall accept such a resolution absent evidence of irregularity, collusion, or inadequate provisions for the taking of testimony. On September 21, 1970, the Board in a discharge case gave "conclusive effect" to the determination of a Joint State Committee under a Teamsters contract and dis- missed the complaint. Terminal Transport Co., 185 NLRB No. 96. In so doing it distinguished and clarified its holding in a 1967 decision, stating in footnote 2: We disagree with the Trial Examiner's interpretation of Illinois Ruan Transport Corporation, 165 NLRB 227, insofar as he construes that case as holding that, "the Board refused to follow an arbitrator's award because although the evidence of alleged discrimination was presented to it [the arbitrator] it did not consider it in its decision and making the award." Contrary to this statement, as we read that case, the question of discrimination was not raised before the arbitrator therein and hence no evidence was introduced in support of any such claim. On August 20, 1971, in Collyer Insulated Wire, 192 NLRB No. 150, the Board, reviewing its authority and duty to defer to arbitration where such deferral would best effectuate the policies of the Act stated: We find no basis for the assertion of our dissenting coll eagues that our decision here modifies the stand- ards established in Spielberg for judging the acceptabil- ity of an arbitrator's award. There was nothing in the Collyer case which should have put the Union on notice that the Board contemplated any modification of the rule followed in Illinois Ruan as construed in Terminal Transport. I conclude and find that the salutary general principles enunciated in Collyer, as further explicated in Member Kennedy's dissenting opinion in Airco Industrial Gases, 195 NLRB No. 120, should not be retroactively applied. As of September ,and' November 1971, the union was guided by the principles of Illinois Ruan and Terminal Transport and scrupulously avoided any mention of Lee's union activities before either of the Joint Committees. This is Lee's first, and only opportunity to have the merits of his case decided. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, 203 occurring in connection with the operations of Respondent described above, have a close, intimate and substantial relation 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. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices. It will therefore be recom- mended that it cease and desist therefrom and take certain affirmative action, as set forth in the recommended order below, designed to effectuate the policies of the Act. I have found that Lee was discriminatorily discharged. I have also found that his work and conduct while employed by Respondent were in all respects satisfactory. I shall, therefore, recommend that he be reinstated with full seniority dating from August 16, 1971, the date when Respondent accepted his formal application, and the date when the Western Area Committee found him to be a "regular" employee. I do not find, on this record any attitude of opposition by Respondent to the self-organiza- tion of its employees, and shall, therefore, recommend a remedial order limited to the violation herein found and to any like or related violation of the Act. CONCLUSIONS OF LAW 1. Fleet Distributing Service, Inc., is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Stanley Lee, thereby discouraging member- ship in and activities on behalf of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By thus interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The grievance proceedings before the Joint State Committee and before the Joint Western Area Committee were fair and regular, and all parties thereto had agreed to be bound. 7. The decision of the Joint Western Area Committee is clearly repugnant to the purposes and policies of the Act. 8. The Board should not, on this record, defer to the decision of the Joint Western Area Committee. Upon the foregoing findings of fact, conclusions of law, 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i ORDER Respondent, Fleet Distributing Service, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17, by discharging or refusing to reinstate employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the right to self- organization, to form labor organizations, to loin or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Stanley Lee immediate and full reinstate- ment to his former job, without probationary qualification, and with full seniority dating from August 16, 1971, or, if this job no longer exists, to a substantially equivalent position and make him whole for any loss of earnings suffered as a result of the discrimination against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify Stanley Lee, if presently serving in the Armed Forces of the United States, of his right to full reinstate- ment upon application 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 payroll records, personnel records and reports, timecards, social security payment records, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (d) Post at its dock in Denver, Colorado, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.3 i 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. 2 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 " 3 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 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging Stanley Lee because of his activities on behalf of Teamsters Local 17 at Ringsby Truck Lines: WE WILL offer Stanley Lee full reinstatement with full seniority and pay him for the earnings he lost as a result of his August 31, 1971, discharge, plus 6 percent interest. WE WILL NOT discharge or discriminate against any employee for supporting Teamsters Local 17, or any other union. WE WILL NOT unlawfully interfere with our employ- ees' union activities. FLEET DISTRIBUTING SERVICE, INC. (Employer) Dated By (Representative) (Title) WE WILL NOTIFY Stanley Lee, 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 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, U.S. Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-837-3551.