W. Kelly Gregory, Inc.

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. Kelly Gregory, Inc. and Thomas P. Barrett. Case 5-CA-5805 November 30, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 22, 1973, Administrative Law Judge William J. Brown issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in support of the attached 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, and conclusions of the Administrative Law Judge and to adopt his recommended Order, to the extent consistent herewith. The complaint alleged that Respondent discrimina- torily terminated Barrett because of his membership in and activity on behalf of the Union and/or because he filed and processed a grievance with the Union. The Administrative Law Judge dismissed the complaint, finding that the record did not establish that Respondent had unlawfully discriminated against Barrett. In his dismissal, the Administrative Law Judge gave substantial weight to the long contractual relationship enjoyed by Respondent and the Union. The General Counsel excepts to the Administrative Law Judge's failure to give due consideration to the 8(a)(1) allegations of the complaint, and his reliance on the lack of motive needed to show an 8(a)(3) violation in dismissing the complaint. We find merit in this exception. Barrett had worked as a "casual" employee driving trucks on a daily call-in basis for Respondent since the week ending June 22, 1972. From that time until the week ending September 23, 1972, Barrett had worked as little as 1 day a week and as many as 4 days a week, during a period when Respondent utilized anywhere between 1 and 30 "casuals" per week. Although Barrett (a union member) enjoyed no seniority status under the Union's collective-bargain- ing agreement with Respondent because he was a "casual," he filed a grievance on September 20 because he felt he should have been granted employment on September 18 in preference to another man granted employment by Respondent on that day. When Barrett and Union Steward Hall called upon Respondent's owner, Gregory, in an effort to obtain a day's pay for Barrett, Gregory rejected the grievance, asserting that Barrett had no seniority status. At this same meeting, the subject of Barrett's drinking, about which Gregory had heard rumors, was brought up. The evidence shows that both Barrett and Gregory spoke in somewhat "raised" voices, and that Barrett told Gregory, "if you're going to judge everybody by his past, well you won't have anybody working here." To this Gregory responded that no one would tell him how to run his business. Following this meeting, Barrett received no further employment from Respondent. Respondent contends that it did not give Barrett further employment because Gregory believed that Barrett exhibited emotional or mental qualities at the meeting which, in his judgment, disqualified Barrett from being entrusted with operation of Respondent's equipment. We find nothing in the record to support this contention. The conversation between Gregory and Barrett, as noted above, may have been carried on in somewhat raised voices, but we do not believe that there was anything done or said by Barrett which could reasonably be considered as showing an emotional instability rendering him unfit to drive a truck for Respondent. Rather, we agree with the General Counsel that Barrett was refused further employment by Respon- dent because of Gregory's distaste for Barrett's presentation of his grievance. This we believe despite the testimony adduced by Respondent that it had never taken recriminatory action against grievants. As we have found that Respondent's asserted reason for refusing further employment to Barrett was a pretext to cover up the real reason for its action, Barrett's presentation of his grievance, we thus find that Respondent violated Section 8(a)(1) of the Act. Respondent contends that, even if it is found that Barrett was wrongfully discharged, he is not entitled to reinstatement because he falsified his employment application. The employment application filled out by Barrett in February 1971 contained specific questions relating to past employers and reasons for leaving such employment and specifically asked if the applicant had ever been discharged or had trouble with a past employer. It also asked questions pertaining to past driving violations. Barrett admittedly omitted mentioning that he had previously worked for Preston Trucking Company 207 NLRB No. 96 W. KELLY GREGORY 655 for 6 or 7 years, and that he had recently been discharged because of a "drinking problem." He also indicated that he had no driving violations, although he had had several. Under these circumstances, we believe it is reasonable to infer that had Barrett truthfully answered the questions on his application, and had Respondent known of his past record, Respondent would not have hired him as a truckdri- ver. We therefore will not order that he be reinstated. CONCLUSIONS OF LAW customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. i In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1. Respondent is an employer engaged in com- merce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. By discharging Thomas P.` Barrett as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent unlawfully termi- nated Thomas P. Barrett's employment in violation of Section 8(a)(1) of the Act, we will order it to cease and desist from committing any like or related act in the future. However, for the reasons given heretofore, we will not order that Barrett be offered reinstate- ment to his former position by Respondent. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, W. Kelly Gregory, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees for engaging in protected activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at the Company's place of business at Baltimore, Maryland, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's represent- ative, shall be posted by Respondent immediately `upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of, the United States Government The trial held in Baltimore, Maryland, on December 21, 1972, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a repre- sentative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT discharge or otherwise discrimi- nate against employees who take part in protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. W. KELLY GREGORY, 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. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822. DECISION STATEMENT OF THE CASE WILLIAM J. BRowN, Administrative Law Judge: Upon charges filed on October 10, 1972, by Thomas P. Barrett, an individual, the General Counsel issued a complaint on November 20, 1972, alleging violations of Section 8(a)(1) and (3) of the Act. Respondent filed an answer denying commission of unfair labor practices, and a hearing before the undersigned was held on December 21, 1972. Upon the entire record in the case, including my observation of the demeanor of the witnesses and upon consideration of the parties' briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Maryland corporation engaged in the operation of a trucking company with a terminal in Baltimore, Maryland. Respondent's annual revenue from interstate operations exceeds $50,000, and I find, as all parties agree, that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 335, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves the discharge of Thomas P. Barrett on or about September 20, 1972.1 Respondent is a contract carrier for the Great Atlantic and Pacific Tea Company. It operates a fleet of trucks transporting merchandise from the A & P warehouse to A & P stores. Respondent (or its predecessors) has main- tained collective-bargaining agreements with the Union since 1938; the current contract includes a union-shop provision, and all of Respondent's employees are members of the Union. Respondent employs approximately 200 regular drivers and helpers who are guaranteed a 5-day week under the union contract. In addition, Respondent maintains a so- called Shaper's list consisting of approximately 10 drivers and 8 helpers who are part-time workers under the contract and receive assignments after the regular drivers are dispatched. Respondent maintains seniority lists under the operative contract for its "regular" employees and for the Shaper's list. As it needs them, Respondent also employs so-called transient or casual drivers who have no contract seniority and who are engaged on a daily call-in basis. Barrett is a union member. He filed an employment application with Respondent in February 1971, and apart from 1 or 2 days employment at that time, he began working as a casual or transient employee in June 1972. Barrett's complete employment record as a "transient" or "casual" driver until his termination in September is set forth below,2 and the third column shows the number of transients employed by Respondent during the stated weekly periods. The aforementioned figures indicate that Barrett worked only I day during the week ending August 4 although Respondent employed 20 to 30 transients that same week. Barrett testified that early in August he went to discuss with Mr. W. Kelly Gregory why, in such an employment picture, he was receiving so little work. Gregory is Respondent's owner and president. It may be pointed out at the outset that Gregory denies that this purported meeting with Barrett occurred. Barrett testified that he suspected that Respondent had learned of Barrett's discharge by a previous employer and that Respondent might have been cutting back on his employment for such reason. Respondent's employment application forms require applicants to list all previous employers, to describe the circumstances of any prior discharge, and to list any traffic violations . Barrett admitted that in completing his applica- tion in February 1971, he deliberately omitted any reference to the fact that he had worked previously as a driver for one Preston Trucking Company for 6 or 7 years and that Preston had discharged him earlier that same month because of a "drinking problem." In any event, Barrett testified that he spoke to Gregory early in August 1972 and made a complete disclosure of his termination by Preston for drinking on the job and that Gregory merely said he (Gregory) would check into the matter. As indicated above, Gregory denies that this conversation took place. On September 20, Barrett filed a grievance with Mr. Arthur Hall, the Union's shop steward. This grievance alleged, in effect, that Respondent withheld work from I All dates refer to 1972 unless otherwise indicated. 2 Barretts employment record is as follows- Week Week Ending Days Transients Ending Days Transients 6/22 2 days 8/24 1 day 2 7/1 1 day 9/2 2 days 2 to 3 7/8 4 days 9/9 1 day 15 7/15 3 days 9/16 3 days 15 7/22 3 days 9/23 2 days 8 7/29 3 days 9/30 2 or 3 8/4 1 day 20 to 30 10/7 18 8/12 3 days 23 10/14 12 8/19 2 days 15 10/21 6 W. KELLY GREGORY 657 Barrett on September 18 while granting employment to a "point" man. Hall and Barrett thereupon called upon Gregory in an effort to obtain a day's pay for Barrett for 'September 18. Gregory ultimately rejected the grievance , asserting that Barrett had no seniority status as either a regular or a shaper. Gregory had heard rumors about Barrett's drinking and the subject came up at the Gregory-Hall-Barrett meeting. Barrett told Gregory at one point that "if you're going to judge everybody by his past, well you won't have anybody working here," and Gregory responded that no one would tell him how to run his business. General Counsel's witness, Hall, testified that. Barrett and Gregory may have "raised" their voices, but he didn't believe anybody was upset. Hall urged Gregory to put Barrett on the Shaper's list and Gregory said he would consider the matter. ,Barrett has not received any further employment since on or about September 20. Further Findings and Conclusions The General Counsel alleges that Gregory terminated Barrett because of "the rather animated and militant presentation of his grievance" by Barrett. As indicated, Gregory testified that he did not know the circumstances of Barrett's previous dismissal by Preston Trucking at the time of the grievance meeting and Respondent does not rely on such discharge as a basis for the termination now in issue. Gregory testified, however, that he believed that Barrett exhibited emotional or mental qualities at the meeting which, in his judgment, disqualified Barrett from being entrusted with operation of Respondent's equipment. Respondent also points to its longstanding bargaining relationship with the Union and to the lack of any showing of union animus. Respondent further adduced testimony concerning several hundred grievances that have been filed against Respondent over the years, and that there is no record of recriminatory action against grievants as is alleged in this case. Unlawful motive to sustain a violation of the sort involved here does not require a showing that Respondent was opposed to unions as such. However, while not necessarily controlling, the parties' long contractual rela- tionship is nevertheless entitled to substantial probative value in assessing the relevant motive factor in light of all other attendant circumstances. Cf. Hadco-Tiffin, a Division of A TO, Inc., 198 NLRB No. 102. Upon consideration of all of the foregoing, and without considering other contentions advanced by Respondent, I conclude that even on the basis of Barrett's testimony, the record does not preponderantly establish that Respondent has unlawfully discriminated against Barrett. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. Respondent has not violated the Act in the respects alleged in the complaint. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) -of the Act, I hereby issue the following recommended: [Recommended Order omitted from publication.)