Tose, Inc.

TOSE, INC. 55 Tose, Inc. and Eugene Maney, Richard Cleary, and John Lennon. Cases 29-CA-3975, 29-CA-4020, and 29-CA-4054 July 10, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 22, 1975, Administrative Law Judge Ber- nard Ness issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and Respondent filed "objections" to the exceptions and 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 and to adopt his recommended Order. ORDER and briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Based on the pleadings, I find that the Respondent is a Pennsylvania corporation, with its principal place of busi- ness located at Bridgeport, Pennsylvania. It is engaged in interstate trucking, being licensed by the Interstate Com- merce Commission, with terminals located in various States, including New York and New Jersey. During the 12-month period preceding the issuance of the complaint, a period representative of its annual operations, Respondent, in the course and conduct of its business operations, per- formed services valued in excess of $50,000 in and for vari- ous enterprises located in States other than the State wherein it is located. Based on the foregoing, and as admit- ted by the Respondent, I find that the Respondent is en- gaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Locals 641, 707, and 816, each of which is affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, are labor organiza- tions within the meaning of Section 2(5) of the Act. 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. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Upon indi- vidual unfair labor practice charges filed by Eugene Ma- ney, Richard Cleary, and John Lennon on August 19, 1974,I September 18, and October 17, respectively, against Tose, Inc., herein called the Respondent , the General Counsel, by the Regional Director for Region 29, issued a consolidated complaint on October 31, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National La- bor Relations Act, as amended, herein called the Act. Re- spondent filed an answer , denying the commission of any unfair labor practices . Hearing was held before me on De- cember 4 and 5. Upon the entire record, including my observation of the witnesses, and after due consideration to the oral argument Unless otherwise indicated, all dates hereinafter refer to 1974. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent has maintained trucking terminals in various locations including one in Fairview, New Jersey. It holds a bargaining relationship with Teamsters and its ter- minal employees are covered by the National Agreement and by the supplemental agreement relating to the New Jersey-New York area. The Fairview employees are repre- sented by Local 641. Prior to August, the Fairview terminal serviced the New York City area and also Nassau and Suf- folk counties. In the summer of 1974, the Respondent de- cided to open a terminal in Farmingdale, Long Island, to service Nassau and Suffolk counties as an economy mea- sure-to reduce the running time from the New Jersey ter- minal to Long Island. The Brooklyn, Queens, and Manhat- tan areas would continue to be serviced from the Fairview terminal. Robert Valenti was hired by Leo Patterson, Respondent's vice president in charge of operations, to be the Farmingdale terminal manager. Valenti had last been employed in the trucking industry 4-5 years previously as a dispatcher for another employer. This was his first position as a terminal manager. Under the contract, Local 641 could claim recognition at Farmingdale if the Fairview em- ployees exercised their option to transfer there. But none chose to transfer. Initially, both Locals 641 and 707 vied to be the bargaining representative for the Farmingdale em- ployees. The General Counsel had alleged that four of the drivers initially hired at Farmingdale were terminated be- 219 NLRB No. 7 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of their support of Local 707 and their opposition to Local 641 2 Between August 1 and 7, four drivers 3 and two dock- men 4 were hired. Although actual delivery operations first started on August 8, the first employees hired began work- ing on August 7. On August 2, Cleary had visited the termi- nal and was hired by Valenti. They went to a nearby diner for coffee where they ran into Ralph Alimena, Local 707's business agent . Alimena told Valenti Local 707 would claim the bargaining rights for the Farmingdale terminal if the Fairview employees did not transfer in. He told Cleary, in Valenti's presence, he would make Cleary the shop stew- ard when he attained seniority. Alimena gave Cleary Local 707 authorization cards. Valenti had dealt with Alimena when Valenti had been employed at Associated Transport where Local 707 was the bargaining representative. He also knew Cleary to be a Local 707 member when they both worked there. Early in the morning on the first day of employment on August 7, Cleary gave Local 707 authorization cards to Lennon, Mendelsohn, and Fiori. Then at about 8 a.m., Va- lenti told the drivers they were to go with him to New Jersey to pick up trucks to bring back to the terminal. He suggested they first have coffee at a nearby diner. Ralph Alimena and Leo Schwartz, Local 707's recording secre- tary, happened to be in the diner and were invited to sit with them. Lennon, Mendelsohn, and Fiori gave their signed authorization cards to Cleary who turned them over to Alimena. Although Valenti testified he didn't notice the authorization cards at the table, he candidly acknowledged he was aware the employees wanted Local 707 to represent them. As he stated he had dealt with Local 707 while at Associated Transport and had no problems there. He had openly expressed to the employees his preference for Local 707 to be the employees' bargaining representative.5 He had told the employees they would operate under the Teamsters contract. On August 8, Ralph Alimena visited the Farmingdale terminal while Patterson was present. He informed Patter- son Local 707 was claiming the bargaining rights. Patter- son responded it did not make any difference to him which local came in; all he wanted was peace and harmony. On this same date, Local 707 filed a representation petition with the Board's Regional Office .6 On August 12, Alimena, accompanied by his brother, Louis, Local 707's president, and Schwartz met with Pat- terson and Valenti at the terminal. Patterson said that Lo- cal 641 was also claiming bargaining rights and he would deal with whichever local was determined to be the bar- gaining representative. He expressed concern that Local 707 would insist that New York traffic be serviced from the Farmingdale terminal. Schwartz assured him Local 707 had no intention of asking for the New York traffic. He agreed the Farmingdale terminal would handle only the Nassau and Suffolk counties' traffic. He said he would pro- 2 Richard Cleary, John Lennon, Eugene Maney, and Seymour Mendel- sohn. 3 Cleary, Lennon, Mendelsohn, and Fiori 4 Kellett and Urbancik. 5 Corroborated by Cleary, Maney, and Mendelsohn 6 On August 20, Local 707 requested withdrawal of the petition. The re- quest for a withdrawal was approved on August 23 vide a rider to the contract to the effect that Local 707 would not claim the New York traffic. He left a copy of the Teamsters contract with Patterson and told Patterson he would contact him in about a week. On August 15, before the drivers went out on their runs, Jack Spero, Local 641's business agent, visited the termi- nal. Patterson introduced him to the employees and then withdrew to the office. Neither Valenti nor Patterson was present while Spero spoke to the employees.' He informed the men Local 641 was also claiming bargaining rights at the terminal. He said he had heard the men wanted Local 707 but maintained the employees should leave it to the locals to determine who should represent them. The em- ployees asked questions and, according to the testimony of the four alleged discriminatees, they spoke critically of Lo- cal 641. After the meeting, Spero told Patterson, in effect, that Local 641 would be the bargaining representative. Ac- cording to Patterson, Spero said nothing about employee comments at the meeting.8 Immediately after the meeting, Valenti handed out as- signments to the drivers. Maney and Mendelsohn stopped with their trucks at a nearby diner. They had not yet made their first deliveries. Patterson credibly testified he drove by the diner and observed the two trucks at the diner.9 He stopped nearby and observed the two drivers come out of the diner and chat near their trucks. He then drove off and called Valenti from a phone booth. Patterson related what he had observed and identified the trucks by their num- bers. Valenti named the drivers and, upon Patterson's in- quiry, said he had not given the drivers permission to take a coffeebreak at that time. Patterson said the drivers were stealing company time and congregating. He told Valenti if they were kept on beyond their 16-day trial period, they would continue to abuse the coffeebreak privilege and di- rected Valenti to let them go.10 Later that morning Patter- son called again and asked Valenti if he had spoken to the drivers. Valenti said the drivers had reported they had stopped for coffee. Patterson again told Valenti they should be let go. That afternoon, when Maney and Men- delsohn returned to the terminal, they were told by Valenti that Patterson had directed their discharges because he had seen them at the diner before making their first stops. He told them to come to the terminal the next day and he would see if Patterson would agree to reinstate them. The next day Maney and Mendelsohn returned to the terminal and awaited Patterson's arrival. When Patterson came, Va- lenti first spoke to him privately. Patterson reiterated his decision was final. Maney and Mendelsohn then were told by Patterson they were discharged for taking a coffeebreak before their first stop. They protested they had not been told of this company rule, i.e., no coffeebreak before the first stop. Patterson responded that was management's fault but they were still terminated. r Present at the meeting in addition to the four alleged discriminatees were driver Fiori and the dockmen, Kellett and Urbancik. 8 Spero did not testify. 9 Because of the morning rush hour traffic, this being 9 a.m., Valenti had directed him to use a route back to New Jersey unfamiliar to him. He made a wrong turn and ended up passing the diner. 10 Under the terms of the supplemental agreement, an employee attains seniority after he has worked 16 days in a 60-day period. In effect, he is a probationary employee until then. TOSE, INC. The record is not clear on precise dates but within a day or two after their discharges, Local 707 was told by the Teamsters Joint Council that Local 641 had the bargaining rights. But then somewhere between August 17 and August 22, Local 816 was determined to have the bargaining rights." Cleary was terminated on August 27. Patterson testified that on August 12, a driver from the New Jersey terminal reported to him he had been stopped on the Long Island Expressway by a Farmingdale driver. He gave the number of the truck to Patterson. He told Patterson the Farming- dale driver had warned him to stay out of the area because it belonged to the Farmingdale terminal.'2 Patterson then related to Valenti what had been reported to him by the New Jersey driver and directed Valenti to discharge the driver-he could turn out to be an agitator." According to Valenti, at some point in the conversation after Valenti identified Cleary as the driver involved, Patterson asked if Cleary was supposed to be the union steward. Valenti re- plied it was up in the air-there was no steward yet. Valen- ti stated the frame of reference to Cleary being the steward was merely in a context of identifying Cleary as the driver. Later that day Patterson spoke to Cleary at the terminal and asked Cleary about the incident. Cleary first said he initially stopped the driver thinking he was a Farmingdale driver, with the intention of taking the freight on board which Cleary could then deliver for him. Cleary then ad- mitted telling the driver the territory now belonged to the Farmingdale terminal. Cleary said he didn't mean any harm. Patterson testified he saw Cleary working at the ter- minal afterward and asked Valenti why Cleary had not been let go. Valenti said he would terminate Cleary before the end of his probationary period.14 Valenti testified when Cleary returned to the terminal on August 9 Cleary told him he mistakenly radioed a driver ahead of him to stop, thinking it was Fiori. He discovered it was a New Jersey man delivering freight and they merely passed the time of day chatting about the merits of Local 707 vis-a-vis Local 641.15 On August 12, after receiving Patterson's report of the incident with the New Jersey driver, Valenti told Cleary of Patterson's report and asked, "Why did you stop him and why did you tell him not to come out here?" Cleary denied threatening the driver. Valenti, within a day or two, told Patterson of his conversation with Cleary and they agreed Cleary should be let go. Valenti's explanation for delaying the discharge of Cleary until the close of the probationary period was a follows: "at that time I felt that I'm losing a lot of my good men and I wanted to hold on to as many as I possibly could so I really wanted to find out what the story was figuring maybe again he [Patterson] would change his mind and bring him back." Cleary de- nied that he threatened the New Jersey driver or told him to stay out of the area nor did he say anything to Patterson 11 Patterson testified Local 816 had prior claim based upon it having been the bargaining representative at Respondent's Brooklyn terminal a number of ears ago. The terminal was then closed. 1The driver had been discharged 2 weeks before the hearing . He did not testify. 13 Based on the testimony of Patterson and Valenti. 14 Corroborated by Valenti. 15 Cleary's testimony as to this conversation is in substantial accord 57 or Valenti to that effect. He testified Patterson had asked him about the incident and he related he had stopped the driver thinking it was Fiori for the purpose of delivering his freight since they were both going in the same direction. According to Cleary, Patterson responded that his actions sounded reasonable and nothing more was said about it.16 He testified when he returned to the terminal on August 27 after the day's run, he asked Valenti if he were to work the next day-the next day being the last day of his probation. According to Cleary, Valenti asked who opened their big mouth about his being the steward. Valenti then said he had received a call from Patterson to fire Cleary. Cleary said he couldn't be fired for that reason and Valenti then said the reason then would be nonproduction. According to Cleary, nothing was said about the incident with the New Jersey driver. Cleary returned to the terminal on a number of occasions afterward looking for work. As he testified he was still friendly with Valenti. Valenti put him to work at the terminal again from October 16 through 25. Valenti said he put Cleary on as a casual. Lennon had started his employment on August 7 as a driver. On August 21, when he reported at the terminal, Valenti told him he wanted to try out other men for the work and couldn't use him that day. For about 2 weeks thereafter, Lennon kept contacting the terminal but was told he wasn't needed. Lennon was never told he was dis- charged. Valenti testified Lennon's driving ability was sat- isfactory although Lennon was not experienced in the de- livery type operation run by the Respondent. There were many applicants for employment and, in the initial phase of the terminal's operation, he was looking for the best men. He decided to retain another driver, Peterson, who had over 20 years' experience and was being used as a casual. Peterson was known by Valenti to be a Local 707 member. Analysis An employer may terminate an employee for any reason, good, bad, or indifferent, without running afoul of the Act, provided he is not motivated by unlawful considerations. The burden of proof to show the illegality of the discharges rests with the General Counsel. I find the evidence insuffi- cient to establish any of the four alleged discriminatees were discharged because of their support of Local 707 and their opposition to Local 641. There is no independent 8(a)(1) violations alleged or to be considered. The Farmingdale terminal was a new operation and Va- lenti was hired as the terminal manager. This was his first experience in such role. Patterson visited the terminal about every other day to see how the terminal was func- tioning. As Valenti said, "This was the first time I was a terminal manager and so I sort of let him run the show there in the beginning and I just listened and watched." The record is clear that Patterson, not Valenti, directed the discharge of Maney, Mendelsohn, and Cleary. The con- tract with the Teamsters, with the attendant uniform wag- es, hours, and working conditions, was to be implemented 16 This does not seem plausible in light of Cleary's testimony that later in the day Valenti told him Patterson was mad. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Farmingdale terminal regardless of which local was determined to be the bargaining representative. Patterson's concern was to weed out employees before they attained seniority because the basis for discharge afterward became more restrictive under the contract. Employees were hired regardless of their union affiliation, including those who were Local 707 members. Although Patterson was initially apprehensive that Local 707 might create a jurisdictional problem concerning the New York traffic, Local 707 dis- pelled such fears on August 12 in the meeting with Patter- son. As Ralph Alimena testified, "I don't think any em- ployer will care which local it is. It is all the same contract." It may have been harsh disciplinary action to have discharged Maney and Mendelsohn for taking the coffeebreak when they did, particularly when they hadn't been informed of the rule. Valenti said he himself would have merely warned the employees. The General Counsel considers it significant that Patterson ordered their dis- charges within 2 hours of Spero's meeting with the employ- ees at the terminal. I believe it entirely too tenuous to draw an inference that after the meeting Spero gave Patterson the names of the Local 707 supporters and that Patterson then decided to eliminate them. Respondent did not dis- play any animus towards Local 707; it was aware all the employees favored Local 707. The only open manifestation of favoritism at all among the locals was by Valenti-and this was a display of a preference for Local 707, the choice of the employees. Under these circumstances, I am com- pelled to the view that the discharges of Maney and Men- delsohn were not based on unlawful considerations. The decision to discharge Cleary was made on August 12, sev- eral days before Spero even appeared at the terminal, and only 5 days after Cleary began working. Regardless of whether or not Cleary indeed threatened the driver, I am convinced that Patterson believed he did engage in such conduct and was not satisfied with Cleary's explanation. For even after Cleary offered his version to Patterson on August 12, Patterson was still mad. I do not read anything suspicious into reference by Patterson to Valenti of Cleary's position as steward. 7 Rather I believe this was only a reference to his individual identity. When Cleary 17 It will be remembered that Ahmena intended to make Cleary the stew- ard after he attained seniority. was asked at the hearing if there was anything he felt guilty about when he asked Valenti on August 27 if he was to continue working, he referred to the incident with the New Jersey driver, although he had protested innocence of any wrongdoing. I am convinced that it was on August 12 Va- lenti remonstrated with him because of stopping the New Jersey driver. I am equally convinced Valenti did not tell Cleary he was discharged because he was the union stew- ard. Again, here too, I believe Patterson was concerned in screening out potentially unsatisfactory employees during their trial period, rather than being motivated because of any nonexistant opposition to Local 707. Nor do I consider that any unlawful considerations attached because Valenti waited until the end of Cleary's trial period before dis- charging him. Rather, there would have been less of an unlawful motivation to discharge him on August 27 be- cause by then Local 707 was already out of the picture, having withdrawn its petition and having announced it no longer sought to represent the employees. Valenti himself decided to replace Lennon with another employee with more extensive experience and who himself was a known Local 707 member. As the record shows, there were many applicants for employment and the Respondent was at- tempting to retain those employees it considered to be the most satisfactory. Local 707 had already requested with- drawal of its petition. Here too, the evidence does not sup- port a finding that Lennon was discharged because of any protected activity. Accordingly, I shall recommend the complaint be dis- missed in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Locals 641, 707, and 816, each of which is affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organi- zations within the meaning of Section 2(5) of Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. [Recommended Order for dismissal omitted from publi- cation.]