Cleveland Express, Inc.

CLEVELAND EXPRESS, INC. Cleveland Express, Inc. and William Franklin Wilson. Case 10-CA-11187 FINDINGS OF FACT I. INTRODUCTION January 20, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 26, 1975, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions. 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 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 FRANK H. ITKIN, Administrative Law Judge: This case was heard before me on July 22, 1975, in Knoxville, Ten- nessee. The unfair labor practice charge was filed on March 31 and was amended on May 13, 1975. The com- plaint was issued on June 4, 1975. The principal issue pre- sented is whether Respondent Company violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employees William Franklin Wilson and Henry Edward Lane on March 24, 1975, because of their activities on behalf of Teamsters Local Union No. 519, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. General Counsel also alleges that the Company's unfair labor practices war- rant the entry of an order requiring the Company to recog- nize and bargain with the Union in the appropriate unfit. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by counsel, I make the following findings of fact and conclu- sions of law: 471 Respondent Company, a Tennessee corporation, is en- gaged in the interstate transportation of freight by truck, with facilities located at Cleveland, Knoxville, and Chatta- nooga, Tennessee. During the past calendar year, Respon- dent Company received gross revenues in excess of $50,000 from the interstate transportation of freight by truck. I find and conclude, as stipulated, that Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. And, as further stipulated, I find and conclude that Teamsters Local Union No. 519 is a labor organization within the meaning of Section 2(5) of the Act. II. THE TERMINATION OF EMPLOYEES WILSON AND LANE Wilson first started working for Respondent in Knox- ville during April 1974. Wilson recalled that he "had heard rumors that Cleveland Express was going to move into Knoxville." Consequently, Wilson went to Respondent's facility in Cleveland where he spoke with Company Presi- dent S. I. Bryant. During their discussion, Bryant told Wil- son that the Company had been "running to Knoxville for a short time"; that "he was bringing up a little bit of freight"; and that "most of the time [the Company truck] was running back empty." Wilson stated that he "knew a lot of companies in Knoxville" and "could get some freight." Wilson was given a road test and was further in- terviewed by Mrs. Bryant, wife of S. I. Bryant. During the interview, according to the testimony of Wilson, Company President Bryant stated: We are a union company. I'd appreciate it if y'all didn't join the union for a while, but any time you want to, feel free to do so. The $19.50 or $17.00.. . that I pay to the health and welfare, I'll give to you guys up to the date you want to join the union. Wilson was hired later that day. Shortly thereafter, Wilson "started delivery freight" for Respondent Company at Knoxville. Wilson explained that the Employer's facility at Knoxville then consisted of a "cleared and graveled" lot on Paper Mill Road. The Company's "road" driver would haul freight from the Cleveland terminal to the lot on Paper Mill Road in Knox- ville "and drop it." Wilson "would take the freight and peddle it over town." And, after delivering the freight, Wil- son would solicit business from various local companies in an effort "to get backhauls" for the Employer. Wilson testi- fied that, at the end of the second week with the Company I had more freight than I could handle. At that point, I called Mr. Bryant and told him I had to have some help. As a result, Bryant hired Lane who started work about April 22, 1974. Wilson recalled that "when I first started, I only had one tractor and one trailer" on the Paper Mill Road lot; how- 222 NLRB No. 63 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, "when Mr. Lane started, we got a little straight truck." Wilson explained: After Mr. Lane started, we'd rotate on the tractor trailer and the small truck . . . Then, both of us, when we were out picking up freight ..., would stop along the way and talk to customers and tell them how our operation operated, and we passed out routes; we had a list of different routes that we ran in the State of Tennessee. . . . Well, we kept getting more and more business, new customers kept calling, so we had to add another tractor trailer. Then we added an extra trailer. We just kept adding equipment right on up to the time we got laid off or fired. According to Wilson, "after we'd been there quite a bit of time," Wilson told Bryant that "we needed an office." Bryant thereupon installed a trailer on the lot. As Wilson testified, "they fixed this old trailer up; they put a partition in it with a desk in the front . . . then we had a phone put in." Bryant also acquired a flatbed trailer to be used as a dock at the Paper Mill Road facility. Wilson testified that on March 3, 1975, both he and Lane signed "Membership Application and Check Off Au- thorization" cards for Teamsters Local Union No. 519 (G.C. Exh. 3). Wilson recalled that his union card "laid on the desk at the office over there approximately one week before we got a chance to take it over to the Union" and that both he and Lane then took their signed cards to Union Representative Ernest Tate. On March 24, 1975, employees Wilson and Lane were terminated. Company President Bryant, accompanied by a mechanic and dock foreman from the Cleveland terminal, drove onto the Paper Mill Road facility. There, Bryant told the employees: "Boys, I got bad news, I'm shutting her down up here." Bryant gave Wilson an envelope contain- ing a check for his "birthday pay," "vacation check," and "a check for two weeks work." Bryant gave Wilson, as well as Lane, "a layoff slip." I Wilson asked Bryant, "what about all these customers we got up here?" Bryant re- sponded: "I'm going to get Knox Maryville to handle .. . the deliveries." Knox Maryville is a local trucking compa- ny. Bryant added: "we're going to run it up [from Cleve- land] and they are going to peddle it, peddle the freight for us." Respondent Company had no other Knoxville based employees at the time. Wilson testified that during his employment with the Company, Bryant had discussed "the building of a termi- nal" in Knoxville. Wilson recalled: Mr. Bryant had told me [and] we had even seen a blue print of this terminal. I [Wilson] was under the impres- sion and was told that they had signed a contract to have the terminal built; [Bryant] bought door plates for the terminal. Wilson recalled that Bryant had discussed with him the "material that was going to be used" in constructing the terminal and the steps taken to acquire air conditioning t G.C. Exh 2 is the document which Bryant gave to Wilson on March 24 It is a "separation notice" which states the "reason" for separation as "lack of work." Lane received a similar document (G.C. Exh 4) units. And, according to Wilson, preliminary construction work on the new terminal had started. A contractor had "started clearing off the property" and was drilling rock. Further, "pipe for the driveways" had been delivered and installed. Wilson testified that Bryant had never indicated "that he wasn't going to go ahead with his plan to build a terminal." According to Wilson, Bryant had stated to the employees that "it was going to be a six-door terminal." Further, business at the Knoxville facility "had increased constantly" up to the date of the employees' termination on March 24, 1975. Wilson recalled: "we had so many deliveries that we couldn't do them"; "we got so far behind that two men came up out [from] Cleveland to help us get caught up." Wilson also testified that the Company is still continuing to pick up and deliver in Knoxville and the surrounding area? Employee Lane testified that he started working for the Company at Knoxville on April 22, 1974. He, too, went to Cleveland where he spoke with Company President Bryant. Lane recalled that, during his interview, Bryant said, "it was like a big happy family, that everybody was well satisfied and they did belong to a union." Bryant then asked Lane, "how [he] felt about the union." Lane an- swered that "at the present time [he] wasn't interested in it." Lane added: "in a year or so, two years, I might be interested in joining, they've got good retirement and good insurance." Bryant responded: "well, if you're hired like Mr. Wilson, I'm paying him the money that would normal- ly go into the health and welfare that I pay the union, .. . I'm giving it to him on his check as a bonus. I'd rather that the [men] didn't join; I've had a little trouble going here in Cleveland." 3 Lane was later hired. Lane's testimony concerning his duties and work at Knoxville generally corroborated Wilson's testimony, as recited above. Lane identified the union card (G.C. Exh. 5) which he had signed on March 3, 1975. Lane recalled that his card "laid on the desk in the office there . . . between a week or two weeks." Lane was unsure whether he subse- quently accompanied Wilson to the union hall. Lane recalled that on March 24, 1975, Bryant, accompa- nied by the mechanic and dock foreman from Cleveland, drove onto the Knoxville lot and terminated both Wilson and Lane. Lane received three checks and a "layoff slip" (G.C. Exh. 4). Lane recalled that, during his employment at Knoxville, he heard Bryant repeatedly "say that he was going to build" a terminal-"they sent the plans up for the terminal." Lane recalled that this subject was last discussed "approximately two or three weeks before we were laid off." "At no time" had Bryant indicated that he had changed his mind about building a terminal. And, as Lane further testified, the "amount of work" performed by Wil- son and Lane increased "constantly every day." Lane ex- plained, "they had to send us help out of Cleveland to get us caught up." In addition, Lane testified that Cleveland 2 On cross-examination, Wilson acknowledged that Company President Bryant initially had discussed building a " larger" terminal at Knoxville, however, during January 1975, Bryant stated that "because of cost, they had to reduce the plans for the terminal" to a six-door terminal. Wilson recalled that Bryant subsequently discussed with Wilson the acquisition of air-condi- tioning units and the purchase of the "door plates" for the new terminal. 3 On cross-examination, Lane testified that Bryant had stated- "He told me he'd rather I didn't join the Union " CLEVELAND EXPRESS, INC. 473 Express is still picking up and delivering freight in the Knoxville area. Ernest Tate, business representative and trustee for Teamsters Local Union No. 519, testified that he received the signed union cards from employees Wilson and Lane about March 17 or 18, 1975. Tate thereupon attempted to speak with Company President Bryant. Tate testified that about March 20 or 21, 1975, "I believe I got a hold of Mr. Bryant, and discussed the applications and read him the names on the applications that was on my desk at the time." Tate recalled: he [Bryant] told me that he was maybe having a little financial problem and he didn't want to put these peo- ple in the union up there in Knoxville, Tennessee, but he never did outright say he wouldn't have them in the union. Tate asked Bryant "to sit down and meet with us." Bryant stated: "he just didn't feel like he could put [the two Knox- ville employees] under a contract " Tate heard nothing fur- ther until he was advised that the two employees had been terminated on March 24, 1975. Tate testified on cross-examination that during his talk with Bryant, Bryant "might have mentioned he was going to close down rather than put them [the two employees] under contract...." Tate's prehearing affidavit states, in part: Bryant told me that he could not put these employees under the contract. He said he had been thinking about closing the terminal down. Fact of the matter was, that he would close it down... . Tate also recalled discussing' with Bryant the various Teamsters Union contracts available or applicable to the Company's Knoxville operation. As discussed below, the Company was already under contract with Teamsters Lo- cal Union No. 515 (see Resp. Exh. 3). Company President Bryant testified that he previously had been engaged in the interstate trucking business be- tween Cleveland and Chattanooga; that his employees in Cleveland and Chattanooga were covered by his contract with Teamsters Local No. 515 (see Resp. Exh. 3); that he subsequently expanded his intrastate operation to include Knoxville; and that, prior to the termination of Wilson and Lane, he also had received interstate authority to transport freight between Cleveland, Chattanooga, and Knoxville. Bryant admitted that he had "planned on building" a ter- minal in Knoxville. Bryant asserted that "the energy thing hit us and we changed our minds about a lot of things." 4 4 Bryant testified that the facility on Paper Mill Road in Knoxville is owned by his brother-in-law, Avery Cawhorn. There is no written lease between the Company and Cawhorn. Bryant "had the ground cleared off . so we could park on it." Bryant claimed that the "bill" for clearing off the land and making it suitable for parking was $1,500. Bryant asserted that he paid'this bill for his brother-in-law and credited him $100 each month as rent payment. Bryant testified- "We paid the thing [$1500] and we figured we could use it for 15 months without any additional expense " Bryant acknowledged that he "did proceed to have plans drawn for a terminal." About October 1974, Bryant received an "estimate" for $64,000 Bryant claimed "that we knew we couldn't afford that" and he "talked to some people about probably building a smaller building " Bryant asserted that he subsequently determined that he could not afford to build the "smaller" Bryant was asked: "It was testified that you had asked Mr. Wilson not to join the union, I believe the way he put it, `for a while.' Would you tell us why you discussed this with them [Wilson and Lane] and what was your object in ask- ing them?" Bryant answered, in part, as follows: ... Yes, sir, I did. I discussed it and my object was- this thing [the proceeding concerning his interstate au- thority] was being drawn out in all these court pro- ceedings and I just don't know for sure how I'd be able to operate... . Bryant assertedly was then concerned that he "might have to go back to the peddle run" provision of his existing contract with Local 515 (see Resp. Exhs. I and 2). Bryant testified that he was unaware of the interest of employees Wilson and Lane in Teamsters Local Union 519 prior to receiving Tate's telephone call about Friday, March 21, 1975. Bryant asserted that he was "just losing his shirt" at Knoxville; that he had made arrangements on March 17, 1975, to close the Knoxville facility; and that he planned to "deliver [his] small shipments by a local cartage company and peddle [his] freight into Knoxville by [his] 515 drivers." Bryant asserted that such arrangements had been made with a local cartage company, Gouffon Trans- fer Company, on March 17, 1975. In addition, Bryant testi- fied that he is now paying some $200 to $400 a month for the local cartage services and that it would cost him some $750 to $800 to deliver the shipments out of Knoxville with his own employees and facilities. Further, it was stipulated by the parties that "if Mr. Gouffon were called and testi- fied, he would testify that he did write" a letter to Bryant on March 17, 1975 (Resp. Exh. 4), which stated: Per our conversation of March 17 we present the fol- lowing rates for the pick-up and delivery of your freight, truck line interchange, and moving and load- ing trailers in the Knoxville area: City Pick-up & Delivery---Heavy Mdse---50 cwt $5 Min. Light Mdse--60 cwt $5 Min. Truck line Interchange---Tractor & Driver---$12 per Hr. Mdse Delivered to Gouffon Whse for reloading---40cwt Moving trailers for loading---Metro area - $24 rd trip Moving trailers for loading ---Industrial Parks $30 rd trip This company will not participate in concealed dam- age claims. Bryant testified, in part, as follows: Q. Mr. Bryant . . . did Mr. Tate's call result in your closing down that terminal or were you going to close down that terminal regardless? A. I was going to close it down regardless. Now he didn't call with that in mind, he called to tell me that these fellows had left those cards with his secretary. He didn't call, I don't think because he didn't sound like it on the phone, I don't think he, had any idea that I was going to close the operation until I told him on the 21st, that Friday, I told him I was going to have to close it because I was losing my shirt, I just absolutely terminal. Bryant asserted that about this time "the puce of fuel started going up, tires and operations started going up and [business] really took a tailspin. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD couldn't make it the way I was going. Q. Have you in fact-has your company in fact made any profit at all out of your Knoxville opera- tion? A. It hasn't made any profit to speak of in any of the operations, it may be breaking even now in Knox- ville the way we're running it, I'm not for sure. We can break it down. I have a real good auditor and they're the auditors for the United Bank in Chattanooga and they're very reputable people and I've worked with them on this thing and-about what to do about it, go back to peddle or just what and Joe Knowles is our auditor and he's real good, he used to be with Central Motors as auditor years ago and he's very good and when a man like that doesn't know either-he pointed out that this fuel bill is going to be a lot higher and I was going to have to do something, freight was drop- ping off. Q. Since you closed this facility have you hired any employees anywhere in your system? A. No, sir, nobody, not a soul. Q. So you're servicing Knoxville with employees that you had prior to the time? A. Yes, sir, the only additional people that I have employed is Mr. Gouffon, that's the only one. Q That's the cartage agent in Knoxville? A. That's right, yes, sir. Q. And he does cartage work I assume for other truck lines? A. I'm sure he does, he does business for railroads and other lines, I know he does, I see their units in there. The testimony of employees Wilson and Lane and Union Representative Tate, as detailed above, is in large part mutually corroborative and is substantiated by the tes- timony of Company President Bryant. I am, on this record, persuaded that the testimony of Wilson, Lane, and Tate as stated above, is credible and trustworthy. I am also per- suaded that Bryant's testimony to the effect that he was "just losing his shirt" at the Knoxville facility and that he had made arrangements to close the facility and use a local cartage company before receiving Tate's telephone call on Friday, March 21, 1975, is also credible. Further, I am, on this record, persuaded that Bryant had no knowledge of the interests of Wilson and Lane in Teamsters Local 519 prior to Tate's telephone call on March 21. Bryant credibly testified that he then told Tate that he "was losing [his] shirt," that he "absolutely couldn't make it the way [he] was going," and that he was "going to close it." Bryant's testimony in this respect is supported by the letter to him from Gouffon Transfer, dated March 17, 1975 (Resp. Exh. 4). And, Tate acknowledged that during his discussion with Bryant on March 21, Bryant stated that he was having a "financial problem" and "had been thinking about" and "would close it down." Gouffon Transfer subsequently performed the local cartage services for Respondent. In sum, I find and conclude that Respondent was experienc- ing financial problems at Knoxville and, before any de- mand for a union contract had been made, Respondent determined to close its facility there and utilize the services of a local cartage company. III. DISCUSSION General Counsel alleges that Respondent Company vio- lated Section 8(a)(1) and (3) of the Act by terminating em- ployees Wilson and Lane on-March 24, 1975. Counsel for Respondent asserts that the two employees were terminat- ed solely for lawful economic reasons. Under settled law, "the Board is not compelled to accept the employer' s state- ment" of the reason for an employee's discharge "where there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the" employee's union or protected concerted activities. Great Atlantic and Pacific Tea Co. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966). And, the "discharge of an employee moti- vated in part by anti-union animus is unlawful." N.L.R.B. v. Adam Loos Boiler Works Co., 435 F.2d 707 (C.A. 6, 1970). In the instant case, the sequence of events culminating in the employees' discharge on March 24 strongly suggests an inference of unlawful purpose. Thus, Company President Bryant told Wilson in April 1974, "I'd appreciate it if y'all didn't join the union for a while." And, Bryant told Lane that "he'd rather" the employees "didn't join the union." Thereafter, business increased at the Knoxville facility. Additional equipment was acquired, a trailer was used for an office, and a temporary dock was installed. Bryant re- peatedly discussed plans to build a terminal in Knoxville. Clearing of the land and preliminary construction work had started. Initially, Bryant had planned to build a "larger" facility in Knoxville. He subsequently reduced the size of the proposed terminal to a six-door structure. On March 21, 1975, Union Representative Tate apprised Bryant that his employees had signed union cards. Tate requested that Bryant sign a contract. Bryant declined. On Monday, March 24, 1975, the two employees were termi- nated. However, on the other hand, the credible evidence of record also shows that Company President Bryant was un- der contract with Teamsters Union Local No. 515 at his facilities in Cleveland and Chattanooga; that Bryant told Wilson during his job interview, "We are a union compa- ny" and "feel free" to join; and that Bryant similarly told Lane during his job interview that his employees "did be- long to a union." Bryant credibly testified that he planned to build a terminal in Knoxville, however, the "energy thing hit us and changed our minds about a lot of things." Bryant credibly explained that he was "losing his shirt" at Knoxville and that it was more economical for him to use a local cartage company at Knoxville than to construct and operate a new terminal. Bryant credibly testified that he had determined to close the facility at Knoxville and use a local cartage company before receiving any notice of Wilson's and Lane's activities on behalf of Teamsters Lo- cal Union No. 519. The letter from Gouffon Transfer to Bryant dated March 17, 1975, supports Bryant's testimony. And, when Union Representative Tate telephoned Bryant and requested recognition on March 21, 1975, Bryant re- vealed to Tate Respondent's financial problems and plan CLEVELAND EXPRESS, INC. 475 to close down that facility. - As stated above, the sequence of events in this case strongly suggests an unlawful purpose. However, the bur- den of proving a violation of Section 8(a)(1) and (3) of the Act rests upon General Counsel. Suspicion of a violation is not enough. Accordingly, on balance, I find and conclude on this record that General Counsel has not sufficiently established the violation as alleged. Respondent argues in his brief that, "under the Collyer doctrine, 192 NLRB 837, any dispute exisiting between the employees, the Union and the Company must be deferred to the arbitration procedure provided for in the collective bargaining agreement which Respondent is a signatory to with Teamsters Local 515 in Cleveland, Tennessee, and which, under its terms, applied to Knoxville when the em- ployees signed the authorization cards." 5 This defense was first asserted by counsel for Respondent at the hearing. Teamsters Local Union No. 515 was not represented at the hearing and has not asserted that its contract with Respon- dent is binding here and that this dispute should be defer- red to the arbitration process in its contract. Nor does Teamsters Local Union No. 519 make such a contention. Further, the individual employees are the charging parties here. And, Company President Bryant testified, as follows: Q. -Now when Mr. Tate called you, you just heard Section 40 of Respondent's Exhibit 3 read, did you offer to put these two men under the contract? A. No, I told him I was going to close it up. Q. Had you ever applied the terms of these con- tracts in full to these two men? - A. Here locally? Q. Mr. Lane and Mr. Wilson A. No, sir. Q. Had you ever considered that they were covered by the contract? A. No, sir, because I was under this contract over in 515. Q. So you had never applied this to them or felt that they were under it? A. No, sir. In short, neither Respondent Employer nor Teamsters Lo- cal 515 has sought to apply the provisions of their existing contract to these employees. Consequently, I do not find the provisions of that contract controlling here or, further, that the Board should defer to arbitration procedures in that contract. Cf. Collyer Insulated Wire, 192 NLRB 837 (1971). There is here no harmony of interest which war- rants a deferral; the contracting party in question does not appear willing to carry the dispute to arbitration; and it is extremely doubtful that the two employees involved have independent standing to pursue this arbitral process if Lo- cal 515 declines to represent them. Cf. Seng Company, 205 NLRB 200, 201-202 (1973). Also see Pilot Freight Carriers, 208 NLRB 853, 857, fn. 12 (1974). CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 519 is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The General Counsel has not shown by a preponder- ance of the evidence that Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the'complaint. ORDER6 5 Article 40 of the National Master Freight Agreement And Southern Conference Area, Local Freight Forwarding Pickup & Delivery Supplemen- tal Agreement, July 1, 1973, through March 31, 1976 (Resp Exh 3), pro- vides, in part (b) If the Employer begins operating a terminal in a city where there is now no terminal, the Employer agrees that as soon as the Union shows the Employer authorizations signed by the majority of the City Pickup and Delivery and Dockmen employees, this Agreement shall automati- cally become effective. I recommend that the complaint herein be dismissed in its entirety. 6In 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