Redwood Construction Co., Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redwood Construction Co., Inc. and Brotherhood of Teamsters, Warehousemen & Auto Truck Drivers, Local 684, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 20-CA-8960 October 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 30, 1974, Administrative Law Judge Rich- ard J. Boyce issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Or- der. The General Counsel contends that Maciel's dere- liction of duty in his job was used by Respondent as a pretext to discharge him because of his testimony at an unfair labor practice hearing before the Board, in support of charges against Respondent which the Board sustained. To support this contention, the General Counsel relies upon the timing of the dis- charge, and the assertion that Maciel received dispa- rate treatment. We do not agree. As the Administrative Law Judge found, the rec- ord shows that Respondent had issued specific in- structions to its drivers that they were "to load legal loads and drive legal speeds." The record shows that cold weather impaired most of the truck scales which Respondent's drivers used to prevent overloads, and that some drivers, cognizant of this fact, "loaded light" when in doubt about the legality of their loads. Respondent viewed overweight citations for small overloads as routine but viewed overload citations exceeding 5,000 pounds as inexcusable. During the history of Hoopa division, in which Maciel was em- ployed, there had only been two citations, each by a different driver, for overloads in excess of 5,000 pounds. Maciel, however, was cited for an overload of 8,100 pounds in August 1973 and for an overload of 9,600 pounds in October of the same year. Then, on consecutive days, February 7 and 8, 1974, Maciel received separate overload tickets from the same po- lice officer for being overloaded 7,600 pounds and 10,100 pounds, respectively. Morris, a loader opera- tor, testified that, normally during loading, a part of every driver's job is to get out of his truck and watch its far side (which the loader cannot see) to make sure that he is not overloaded, over width, or over height. Morris testified, however, that Maciel not only did not get out of his truck three times out of every five, but also that he did not pay attention to his scales or the loading of his vehicle. Finally, the California highway patrolman who cited Maciel for his last two overload violations reported to his lead- man, Ullfers, that his "attitude was terrible," that he "just didn't care." Respondent believed at the time of the discharge that Maciel's tickets would cost Re- spondent in excess of $1,000, a belief confirmed by notification from the justice court in Burney that the fines would be about $1,300. There is no direct evidence in this record that Re- spondent harbored any resentment against Maciel for his testimony against it in the prior unfair labor practice proceeding. Nor does the record show dispa- rate treatment of Maciel. He was the only driver in the Hoopa division to receive more than one citation for being more than 5,000 pounds overweight-in fact, he had four citations in 7 months. And contrary to the General Counsel's contention, the timing of the discharge is more clearly consonant with its as- serted cause since it follows immediately after the citation for 7,600 pounds and then for 10,000 pounds on successive days, rather than his testimony in the Board proceeding. Nor is there any significance in the failure of Maciel's truck scales, if there was such a failure, since it is clear that all the drivers were affected by the same problem and hence took the precautionary measure of watching the loading oper- ation and if necessary taking lighter loads, which Maciel simply refused to do. Under all of the above circumstances we cannot find, as the General Counsel would have us do, that Maciel was discharged on a pretext rather than for cause. Accordingly, we shall adopt the Administrative Law Judge's recommended order dismissing the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. 214 NLRB No. 76 REDWOOD CONSTRUCTION CO., INC. 465 DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Eureka, California, on April 23, 1974. The charge was filed February 19, 1974, by Brother- hood of Teamsters, Warehousemen & Auto Truck Drivers, Local 684, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (herein called the Union). The complaint issued March 20, 1974, was amended April 12, and alleges that Redwood Con- struction Co., Inc. (herein called Respondent), has violated Section 8(a)(1), (3), and (4) of the National Labor Rela- tions Act. The parties were given opportunity at the trial to intro- duce relevant evidence , examine and cross-examine wit- nesses, and argue orally. Briefs were filed for the General Counsel and Respondent. 1. ISSUE The issue is whether Respondent's discharge of its em- ployee, George Maciel, on February 11, 1974, was prompt- ed by his having testified in an NLRB trial or otherwise having engaged in activities protected by the Act, violating Section 8(a)(4), (3), and (1). II. JURISDICTION Respondent is a California corporation engaged in the hauling of logs and other wood products out of facilities located in Hoopa, Samoa, and other locations in Califor- nia. It in the past year performed services of a value ex- ceeding $50,000 for Georgia Pacific Corporation, which in turn annually brings goods of a value exceeding $50,000 into California directly from outside the state. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7). III. LABOR ORGANIZATIONS INVOLVED The Union and National Association of Independent Unions (NAIU) both are labor organizations within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACIICE A. The Evidence Background. The Union, by virtue of an NLRB certifica- tion that issued in 1971,1 is the bargaining representative of the truckdrivers working out of Respondent's operations at Alderpoint, Dinsmore, and Samoa. California. On April 1, 1973, Respondent established a new division at Hoopa; and, on March 15, petitioned the NLRB for an election to determine if its Hoopa drivers were to be represented by '20-RC-9453 the Union.' On March 20, claiming accretion, the Union petitioned the NLRB that the existing certification be amended to include the Hoopa Division without an elec- tion.3 On April 11, NAIU also petitioned for an election among the Hoopa drivers.4 The Board in Redwood Construction Co., Hoopa Division, 205 NLRB 1059 (1973), concluding that the Hoopa Divi- sion was "a new and autonomous operation ," ordered that an election be held as requested by Respondent and NAIU, and that the Union's petition for amendment be dismissed. The election was held September 27, 1973, 14 voting for NAIU, 9 voting for the Union, and none voting against representation. The Union, on October 4, filed ob- jections to the election, alleging that Respondent by certain preelection conduct had interfered with free voter choice; and, on November 14, filed an unfair labor charge against Respondent, alleging substantially the same conduct as vi- olative of Section 8(a)(1).5 On December 21, 1973, the Regional Director for Re- gion 20 of the NLRB issued a complaint in the unfair labor practice case, an order in the representation case referring the kindred objections issued to an administrative law judge, and an order consolidating the two matters for hear- ing. The complaint alleged in substance that Respondent had violated Section 8 (a)(1) by engaging in unlawful inter- rogation, by threatening to shut down for the winter and to discharge an unnamed employee should the Union win the election, and by promising to offer more generous contract terms should NAIU prevail. A hearing on the cases as consolidated was held Febru- ary 5, 1974, before Judge Irving Rogosm. Maciel, the ag- grieved employee in the present case, testified.6 Judge Rogosin's decision issued May 15, 1974.' Based in part on Maciel's testimony, he found that Respondent had violated Section 8(a)(1) in certain particulars, and recommended that the election be set aside. Maciel was discharged February 11-i.e., 6 days after testifying before Judge Rogosin. The General Counsel's principal contention is that the discharge decision was prompted by Maciel's witness stand performance. Respon- dent denies that, asserting that the discharge was triggered by the aggregate of Maciel's breaking a window in his truck February 6 and being cited by the California High- way Patrol February 7 and again February 8 for hauling illegally heavy loads. Facts Immediate to the Discharge. Maciel was employed by Respondent from March 28, 1973, until the discharge in question. He was a shopman and occasional driver until August, when he began driving logging trucks full time. In his testimony before Judge Rogosin February 5, Ma- ciel stated that he had heard Boudro say, before the elec- tion, that "he could almost promise a better contract" if NAIU were voted in; and that there would be less work for Respondent's drivers if the Union won because "a lot of the mills were scared of the Teamsters, and they did not ' 20-RM-1601 J 20-AC-22 20-RC-11317 '20-CA-8747 6 Transcript pp 87-104 7 JD-(SF)-85-74 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want to get involved with RC [Redwood Construction] if we were part of the Teamsters." 8 Maciel additionally testi- fied of once having said to Boudro that the season would be over in a month or month and one-half, prompting Bou- dro to answer, "That depends the way the election goes." 9 Respondent started hauling logs in the Burney, Califor- nia, area in October 1973. Maciel joined the Burney drivers in December. Roy Ullfers, a leadman, so-called, was in charge at Burney, subject to direction from Dale Boudro, Respondent's Hoopa Division manager. Boudro's office was in Hoopa, some 160 miles away.10 The Burney crew was on layoff for 2 or 3 weeks in January and early Febru- ary, but was recalled February 5-i.e., later the day Maciel testified before Judge Rogosin-to resume work February 7. Maciel was included in the recall. Upon arriving at Burney the afternoon of February 6, Maciel found himself locked out of his truck. To get in to prepare the truck for the next day's run, he struck the rear window with his hand. The idea was that the window, not being fixed, would open on impact, permitting him to reach through to the inside door handle. But, rather than open, the window shattered, leaving a gaping hole and cut- ting Maciel's hand. The next day, February 7, Maciel received an overload ticket from the California Highway Patrol while hauling a load of logs. He was overweight 7,600 pounds. Although citation for small overloads is routine and not a matter of concern, it is Respondent's view that overloads exceeding 5,000 pounds are inexcusable." This was Maciel's third such citation, having been cited August 15, 1973, for an overload of 8,100 pounds, and October 2 for one of 9,600 pounds. Maciel expressed anxiety to the patrolman that this third ticket might jeopardize his job, and asked that he either shave the amount to under 5,000 pounds for purpos- es of the ticket, or issue two tickets totaling 7,600 pounds. The patrolman rejected both suggestions. Maciel told Ullfers about the ticket and the broken win- dow the evening of February 7. Regarding the ticket, Ull- fers chided him for not parking the truck, if it seemed over- loaded, and switching to a spare truck. Ullfers said nothing about the window, assuming that it had been only cracked. Ullfers informed Boudro of the ticket by telephone that night, in the course of his daily report. On February 8, Maciel received another overload ticket from the same patrolman, the overage being 10,100 pounds. Maciel received his ticket in silence this time. Ull- fers happened to be one truck behind Maciel at the weigh- ing station; and the patolman told him that Maciel's "atti- tude was terrible" and that he "just didn't care." Later that day, Ullfers questioned Maciel about the ticket. Maciel re- v 8 Transcript pp 93-94 9 Transcript p 97. 10 The complaint alleges both Boudro and Ullfers to be supervisors and agents of Respondent The answer admits the complete allegation as to Boudro, and it is so found The answer admits Ullfers' agency, but denies supervisory status Based on the finding later in this Decision that Ullfers on February 8, as an act of independent discretion, ordered Maciel to stop driving for a week, it is concluded that he, too, was both a supervisor and an agent 11 Although, in terms of job duty, the drivers are responsible for loading lawfully, and, in terms of law, company and driver are jointly responsible, it is Respondent's practice to hold its drivers harmless from overload fines minded Ullfers of having told him some weeks before that the hydraulic scales on his truck did not work, causing him to misjudge his loads.'2 Ullfers, commenting that overload tickets such as Maciel's recent two were expensive, directed Maciel to park his truck and take the week off. 13 Boudro was at a logging conference in Reno, Nevada, February 8 and 9, thus Ullfers did not inform him of Maciel's latest ticket until the 10th. Ullfers also told him of the patrolman's observations about Maciel's attitude, and of the broken window, having since learned the extent of damage. Boudro promptly decided to discharge Maciel, ar- ranging that day for his replacement by one Paul Moon. Later that day, Maciel telephoned Boudro, inquiring if Ull- fers had yet called about him. Boudro replied, yes, that he wished to talk to Maciel about it. They agreed to meet the next day. Boudro and Maciel met February 11 at a cafe in Arcata, California. Mentioning the two tickets and the broken win- dow, Boudro told Maciel he was fired. Boudro added that the window was "minor," the tickets being "the main rea- son." There was no reference to the trial before Judge Ro- gosin. Boudro credibly testified that he believed, at the time, that Maciel's two tickets would result in fines totaling at least $1,000. His apprehensions were well founded. He lat- er was notified by the justice court serving the Burney area that the fines would be about $1,300. With that as incen- tive, and with Maciel's help, Respondent later obtained a change of venue to a friendlier court, which imposed fines of only $280.14 The window cost about $55 to replace. Bou- dro testified that he was upset about the window only be- cause "it seemed like an intentional thing." Apart from Maciel's four citations for overloads exceed- ing 5,000 pounds, there had been only two by Respondent's Hoopa Division drivers from the division's inception in early 1973 to March 1974: Derald Schultz, 10,600 pounds, October 2, 1973; and Dale Heaviside, an undisclosed amount on an undisclosed date in October 1973. Three other drivers received overload citations at Burney: William Gillespie, 1,500 pounds, February 8, 1974; James Myers, 1,100 pounds, February 8, 1974; and William Welder, 3,000 pounds, February 7, 1974. Maciel testified that the hydraulic scales on his truck ceased working properly in January; that he mentioned the problem to Ullfers; and that Ullfers told him to use his best judgment to avoid overloads. The problem was not unique to Maciel. Extreme temperatures impair the accuracy of such scales and, in Ullfers' words, there was "an awful cold snap" at Burney in January, reaching 23 below. Some of the other drivers testified of the same problem, explaining that they "loaded light" when in doubt. Ullfers tested the scales on Maciel's truck after the discharge, ascertaining that there was nothing wrong with them. Maciel's replacement, Paul Moon, testified credibly and 12 Maciel admitted in his testimony concerning the February 8 ticket "I had suspicions that I was a little overweight " 13 That Ullfers told Maciel to take the week off is based on Maciel's testimony, contradicted by Ullfers. Maciel was corroborated by William Gillespie, who testified of being told by Ullfers that Maciel had been or- dered to take the week off 14 Boudro and others testified of the importance of avoiding overloads when operating in unfamiliar territory REDWOOD CONSTRUCTION CO, INC. 467 without refutation that Ullfers told him he was "a little upset" over Maciel's testimony to Judge Rogosin. Ullfers also told Moon, concerning Maciel's overloads, that Ma- ciel "wasn't himself" and was "having more problems than he ordinarily did." There is no evidence that Respondent knew or suspected Maciel to be sympathetic to the Union. B. Analysis Assuming for argument that Respondent mightily re- sented Maciel's testimony before Judge Rogosin, and whatever sympathies he might have harbored for the Union, it nevertheless must be concluded that the dis- charge was based on lawful considerations; namely, the two overload tickets. The tickets followed the testimony in time; carried a potential of large fines; and were received in such quick succession and involved overloads so gross as to reveal, in the patrolman's words, that Maciel "just didn't care." 15 It cannot be said, moreover, that Respondent to- lerated the same manner of dereliction by others. As 15 Concerning Maciel's attitude, it perhaps is significant that, although the scales on his truck reputedly stopped working in January, he had no over- load citations at Burney until the two mentioned Perhaps too, as Boudro testified, the breaking of the window showed a certain lack of care against Maciel's four overloads exceeding 5,000 pounds, including the two in 2 days, there were only two others in the history of the Hoopa Division. Respondent did not violate the Act as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and NAIU are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent's discharge of Maciel did not violate Sec- tion 8(a)(1), (3), or (4) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 16 ORDER The complaint is dismissed in its entirety. 16 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