Merrill Transport Co., Inc.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merrill Transport Co , Inc and Kenneth A Morrison Case 1-CA-10475 May 27, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On November 11, 1975, Administrative Law Judge Ivar H Peterson issued his attached Decision in the above-entitled proceeding finding that Respondent had not engaged in certain alleged unfair labor prac- tices and recommending that the complaint be dis- missed in its entirety Thereafter, the General Coun- sel filed exceptions and a supporting brief, and Respondent filed a brief in reply By Order dated February 6, 1976, the National La- bor Relations Board remanded the instant proceed- ing to the Administrative Law Judge for the purpose of preparing and issuing a Supplemental Decision setting forth resolutions of the credibility of witnesses and containing new findings of fact, conclusions of law, and a recommended Order in light thereof On March 16, 1976, the Administrative Law Judge is- sued his Supplemental Decision, attached hereto, in which he resolved the credibility of witnesses and re- affirmed his findings of fact, conclusions of law, and recommended Order as made on November 11, 1975 Thereafter, the General Counsel filed exceptions to the Administrative Law Judge's Supplemental Deci- sion and a brief in support of its exceptions, and Re- spondent filed a brief in reply 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 entire record and the attached Decision and Supplemental Decision in light of all of the exceptions and briefs and has de- cided 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 Act The Administrative Law Judge, however, did -iot resolve this issue Although Respondent has not raised this issue before us, we note that the requirements of Sec 10(b) have been satisfied as the record establishes that the instant charge was filed, and a copy thereof was served on Respondent on March 3, 1975 a date within 6 months of the alleged unfair labor prac- tices DECISION STATEMENT OF THE CASE IVAR H PETERSON, Administrative Law Judge This case was heard in Augusta, Maine, on 4 days commencing Au- gust 26, 1975, and concluding on August 29, upon the com- plaint issued by the Acting Regional Director for Region I on May 9 and amended on June 3, based upon the charge filed by Kenneth A Morrison, an individual, on March 3,1 alleging that Merrill Transport Co, Inc, herein called the Respondent, on September 3, 1974, discharged Morrison and thereafter refused to reinstate him for the reason that he joined or assisted Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, or engaged in other protected concerted activities, thereby violating Section 8(a)(3) and (1) of the Act In its answer, dated May 14, the Respondent admitted certain jurisdic- tional allegations and that it had discharged Morrison, but it alleged that the discharge was for good cause By way of affirmative defense, the Respondent alleged that issuance of the complaint "is improper in that the Respondent was not served with a copy of the charge within six (6) months from the date of the alleged unfair labor practice in accor- dance with Section 10(b) of the National Labor Relations Act" Upon the entire record in the case, and after considering the briefs filed with me by counsel on October 14, I make the following FINDINGS OF FACT i The General Counsel 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 credibili ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc 91 NLRB 544 (1950) enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge found that the U S Coast Guard has levied a $50 fine against Respondent for the oil spill at Blake s Marina whereas the record clearly discloses that this penalty in fact was assessed against Blake's itself This apparently inadvertent error however, is insuffi- cient to affect the result of our Decision herein In his Decision the Administrative Law Judge alluded to an affirmative defense raised by Respondent in its answer to the complaint whereby it contended that the finding of a violation was barred by Sec 10(b) of the I JURISDICTION The Respondent, a Maine corporation, maintains its principal office and place of business in the city of Port- land, Maine, and also maintains five terminals in Maine, including one in Augusta and three terminals in Vermont, where it has been engaged in the over-the-road transport of freight and other materials In addition, the Respondent performs services in excess of $50,000 per year for enter- The Union filed a charge on September 19 1974, but it was withdrawn without prejudice on October 23 224 NLRB No 34 MERRILL TRANSPORT CO prises located outside the State of Maine which are directly engaged in interstate commerce The Respondent admits, and I find, that it is engaged in commerce within the mean- ing of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act It is further admitted, and I find, that at all material times the follow- ing persons occupied the positions indicated opposite their names and were agents and supervisors of the Respondent within the meaning of Section 2(11) of the Act Paul Merrill-President Richard Davenport-Augusta Terminal Manager James Mountain-Safety Director II THE ALLEGED UNFAIR LABOR PRACTICES A Introduction President Merrill began operations in 1929 with one truck, since then the Respondent has grown to the point where it presently employs between 350 and 400 employees in its transportation business and, as stated above, has a total of 8 terminals in the States of Maine and Vermont A principal part of the Respondent's business is the delivery of oil by tanker truck to various customers Over the years, the Respondent has experienced a substantial number of oil spills which have created environmental problems and involved considerable expense In 1973, both state and Federal agencies, acting under powers granted them by legislation, took a variety of actions against the Respon- dent with respect to oil spills, assessing monetary penalties against it The Respondent's insurance carrier, in 1973, canceled its policy because of the spill and accident record In 1973, the Respondent lost some 30,000 gallons of oil in Maine and 10,000 gallons in Vermont by reason of spills The cost of spills for that year in Maine was over $71,000 In January or February 1974 the Respondent issued a driv- ers' manual which set forth in detail the procedures to be followed for loading and unloading product and what to do in the event of a spill Thus, in the case of a spill, the driver was required to report it immediately to his dis- patcher or terminal manager, who in turn was required to report to higher authority The Respondent also sent num- erous Safe-T-Grams to its drivers discussing various oil spills and the proper procedures that should be followed These contained warnings that failure to follow the pre- scribed procedures would mean immediate discharge About the middle of 1974, the Respondent's safety direc- tor, who was primarily responsible for the safety program, was terminated because of poor performance President Merrill took a personal interest in the safety program, testi- fying that he was concerned over the loss of the Respondent's insurance carrier, the adherence of employ- ees to company policies and the safety program, as well as the fact that employees did not seem to bear the dangers involved in mind As a result of these changes in policy, in 1974 the cost of spills was reduced to something less than $7,000, and for the first two quarters of 1975 the cost was $1,200 The number of gallons spilled in 1974 in Maine was reduced to 9,000 and the figure for the first two quarters of 1975 was 3,529 B Union Organizational Efforts 151 Robert Burdick, an International Representative of the Union, first came in contact with employees of the Re- spondent in April or May 1974 As the result, an initial meeting was held in Auburn, Maine, on May 26, attended by three employees On July 28, a second meeting was held in Augusta, with 14 employees in attendance, all of whom signed union cards The third meeting was held on August 8, in Bucksport, with six employees in attendance, who also signed authorization cards On September 8, another meet- ing was held in South Portland, attended by some 60 em- ployees By the end of August, so Burdick testified, he had approximately 104 signed authorization cards from em- ployees of the Respondent Burdick testified that the orga- nizational leader in Augusta was an employee named Or- mand Piper The Union filed a petition with the Board on September 19, thereafter, an election, by agreement of the parties, was held, with the result that the Union lost C The Termination of Morrison Morrison, a somewhat portly man of 40, was hired by the Respondent as a truckdriver in September 1968 His personnel record indicates that in January 1969 he spilled 300 gallons of gas, resulting in a loss of $97, the stated reason for the incident was that Morrison was not standing by the hoses Also, during the year 1969, the record indi- cates that he had a number of small accidents, for all of which except one, he was responsible The record contains no entries for the years 1970 and 1971 In May 1972 he was awarded a second-year safe driving pin In October of that year, he had two accidents, both of which were listed as nonpreventable In May 1973 he was awarded a third-year safe driving pin for 1972 In 1974, prior to his termination, he had one accident, involving no damage, in the Respondent's yard In June of that year, he was awarded his fourth-year safe driving pin Morrison signed a union authorization card on August 1, at the solicitation of Piper, who gave him a supply of cards to use in signing up other drivers According to Morrison, he talked to other drivers about the Union Morrison testi- fied that about the middle of August, Davenport asked him "how the union was going," and Morrison replied that vir- tually all drivers in the Augusta terminal had signed up On the Saturday before Labor Day, so Morrison testified, he had another conversation with Davenport, in the latter's office, during which Morrison said if the Union got in mat- ters would be different to which Davenport replied that "he wasn't too sure the union was going to get in" and said "that if the union didn't get it [in] I was all through any- way " On September 3, Morrison was sent to Blake's Marina in Boothbay Harbor to deliver 5,000 gallons of diesel fuel The Marina had two tanks, each holding 3,000 gallons, at its wharf An equalizer line, running from one tank to the other, is controlled by two valves The record shows that Morrison did not check the tanks to see if they would hold the load, nor did he "double check" the valves of the 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tanks 2 With respect to the delivery, Morrison testified that he did not go to the Respondent's office to obtain any information concerning how to unload at the Marina be- fore he made his trip, nor did he go to the terminal manag- er and inquire for such information Morrison admitted that he did not walk down to the tanks to ascertain whether the valves there were in proper order According to Morri- son, when he made the delivery it was raining, and, after the spill occurred, he saw no oil on the dock but saw some under the dock on the water He testified that he did ob- serve the rain washing the oil into the water Morrison ad- mitted that when he became aware of the spill he did not report it to the dispatcher or the terminal manager Morri- son related that a man at the Marina office, as Morrison was getting his bill of lading signed, "asked me not to re- port the spill " He stated that if the spill had been "of any size I wouldn't have hidden it " Morrison, in a telephone conversation he had with Davenport that morning, did not inform him of the spill at Blake's Marina He telephoned the Portland Terminal after unloading, at approximately 11 or 11 30, but did not tell the dispatcher of the spill Morrison was then given another assignment Sometime in the afternoon of September 3, the Coast Guard base in Boothbay Harbor received a telephone call advising that there was a smell of oil in the harbor Chief Harvard Urquhart, the Coast Guard officer in charge, went out in to the harbor, accompanied by another member of the Coast Guard He could smell the fuel oil before he actually came upon it and testified, "I observed, I would say, the largest covering of an oil sheen on the water in my career " 3 With the aid of a chart, Chief Urquhart testified that the oil slick measured 475 by 800 yards, and that he traced it to Blake's Marina Chief Urquhart further testi- fied that high tide in Boothbay Harbor on that day oc- curred at 12 45, and that at the time he came upon the slick the tide was going out The Respondent was first informed of the spill at ap- proximately 4 30 in the afternoon, when Safety Director Mountain received a telephone call from Seacoast Ocean Services, a concern that cleans up discharges in navigable waters and which had been instructed by the Coast Guard to go to Boothbay Harbor to clean up the oil slick About 5 30 that afternoon, Morrison returned to the Augusta ter- minal and, after being asked about the spill incident by Davenport, informed the latter about it President Merrill first learned of the spill on September 4 Morrison was then suspended pending an investigation ordered by Merrill After concluding the investigation of the spill incident and the further investigation of several complaints Morrison raised by telephone, Merrill dis- charged Morrison on September 6, for the stated reason that he had failed to comply with the Respondent's policy, rules and regulations, had attempted to cover up the Sep- tember 3 spill, and because "the fact that the Coast Guard 2 Morrison testified that in 1969 he had delivered oil to this Marina but that he had not gone down to see where the oil was going because he `was told not to " In 1970 he again made a delivery to this customer and again did not go down to see where the oil was going 3 The transcript contains the word "lightest," in describing the oil sheen but, obviously the correct word is largest" the transcript is corrected accordingly were the people that had to bring it to our attention in the home office before we knew anything about it " Seacoast proceeded to the Marina to clean up the oil spill and arrived there at approximately 7 p in, it cleaned up 5 to 10 gallons of oil in the catch basin below the tank which overflowed The report of Seacoast indicates that it was unable to recover the fuel that had gone into the water because the tide had gone out Seacoast rendered a bill of $331 04, which was paid by the Respondent's insurance carrier, in addition, the Coast Guard levied a fine of $50 against the Respondent which also was paid by the insur- ance company Merrill testified that he first became aware of the fact that the Respondent's employees were attempting to orga- nize on September 15, 16, or 17, when one of the employees asked him whether he knew "that there is some activity and request for signing of applications " As previously stat- ed, the Union filed a representation petition on September 19, and an election was held on December 13, resulting in the defeat of the Union Guy Savage, who had worked for the Respondent as safety director from September 1968 to July 1974, testified that the Respondent had "no hard and fast policy" with respect to disciplinary action against a driver who failed to report a spill that subsequently came to the attention of the Respondent He further stated that he did not know of any driver that was "fired dust having a spill " Ormand Piper, who had worked for the Respondent at the Augusta termi- nal for some 4 years prior to April 1975, testified that he was involved in two incidents in which spills occurred In one instance, a period of 2 or 3 days elapsed before he reported the matter to Terminal Manager Davenport, who said nothing Piper also reported the second incident some days later to Davenport and again nothing was said Counsel for the General Counsel contends that, prior to the discharge of Morrison, the Respondent "had an exten- sive history of spills" of which many "were found by the safety committee to have been preventable by the driver" and that several of these had not been reported by the driver as reflected by the Respondent's records, and in other cases it appeared that the driver had failed to follow proper procedure She contends that from 1972 until the discharge of Morrison, the records of the Respondent re- flect that no driver had been discharged for failing to re- port a spill and that those drivers who were terminated for accidents and spills were discharged for continued inci- dents of that nature with the apparent exception of one, Pearly Provo, who was terminated in June 1974 because of a spill in which he failed to follow designated procedure because he was sleeping in the cab of his truck before un- loading In addition, government counsel points out that the Respondent had in the past imposed disciplinary action short of discharge, such as reprimand, suspension, and warnings Counsel contends that the termination of Morri- son was pretextual and that therefore "only one driver had been discharged for having one spill," namely Provo, "who was sleeping in the cab while unloading" whereas the error committed by Morrison "cannot be equated with such gross dereliction of duty " Concerning the circumstance that subsequent to the filing of the charge in the present matter the Respondent terminated four employees for fail- MERRILL TRANSPORT CO 153 ure to report spills, counsel argues these may be viewed in two aspects, either that the Respondent "is making it up or Respondent suddenly, because of the unfair labor practice charge, has to take action in an area, where previously, except for Morrison, it had not " In consequence, she ar- gues that the fact that, except for Morrison, failure to re- port a spill did not play a part in the discharge of any individual, indicates that the "disparate treatment accord- ed Morrison becomes even more apparent " On the other hand, counsel for the Respondent points out that Morrison was not a union leader but "merely one of the followers", and that Merrill first learned of a union campaign some 9 days after Morrison was terminated In addition, counsel for the Respondent points out that Piper was a key man in the Union's campaign and that he was never threatened by Davenport Concerning the testimony by Savage that he recalled some unreported spills that did result or did not result in discharge, counsel for the Re- spondent points out that these occurred "long before the crackdown" by State and Federal agencies and the Respondent's own program of reducing oil spills, which demonstrate that the spill at Blake's Marina was "abun- dantly different and it occurred in a different era " As to the testimony of Piper regarding a spill, counsel for the Respondent states that this resulted from the fact that the Company had set its pumps in reverse, with the result that the oil being spilled was out of the customer's tanks and not oil of the Respondent Another incident relating to Pip- er was that a spill occurred by virtue of the topping off procedure followed by the customer Both incidents were reported to Davenport and, according to counsel, "are so foreign to the Morrison case that they are irrelevant" and "certainly don't establish discriminatory conduct " With respect to the testimony of Morrison that he did not report the spill because a "man" at the Marina asked him not to and that he did not check the tanks or the valves, counsel argues that Morrison "should not have dis- regarded his company responsibilities in light of the company's problems with spills, the manual, the repeated Safe-T-Grams which Morrison admits knowledge of, be- cause someone asked him not to obey them " In conclu- sion, counsel for the Respondent argues that it had a valid reason for terminating Morrison "who had violated critical company policy and procedures, which the company had been striving hard to enforce," and that Morrison was "well aware of his obligations as well as the problems" of the Respondent in regard to spills and its efforts to mini- mize them, yet "he chose to disregard his duties " Accord- ingly, he contends that the termination of Morrison did not violate the Act D Conclusions While the position urged by counsel for the General Counsel has considerable plausibility, upon all the evi- dence and the reasonable inferences to be drawn there- from, I am not persuaded that the Respondent terminated Morrison because of his union activity In the first place, Morrison was not outstandingly active in behalf of the Union, in fact, as counsel for the Respondent states, he was more of a follower than a leader While it may well be that President Merrill was opposed to the unionization of the Respondent's employees, the fact remains that the communications he sent them were within the bounds al- lowed employers The record further shows that the Re- spondent did hire persons known to be union adherents Another factor which must not be overlooked is that in recent years the Respondent, by reason of governmental actions, had been increasingly vigilant concerning acci- dents and spills, and had embarked upon a campaign to reduce them following the cancellation of its insurance coverage and substantial expense involved with spills Cer- tainly it does not seem reasonable to me to conclude that, because in the past the Respondent had been lenient with drivers who had been involved in accidents and spills, it was required to continue that policy on pain of being held to have engaged in discriminatory conduct within the meaning of the Act I conclude, therefore, that the Respon- dent did not violate the Act in terminating Morrison Ac- cordingly, I shall recommend that the complaint be dis- missed in its entirety CONCLUSIONS OF LAW 1 Merrill Transport Co, Inc, is an employer within the meaning of Section 2(2) of the Act and its operations affect commerce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER4 The complaint is dismissed in its entirety 4 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 SUPPLEMENTAL DECISION My Decision in this case issued on November 11, 1975 Therein, I found that the Respondent had not engaged in violations of Section 8(a)(3) and (1) of the Act and, accord- ingly, I recommended that the complaint be dismissed in its entirety Thereafter, counsel for the General Counsel filed exceptions to my Decision and a supporting brief, and counsel for the Respondent filed a brief in reply Under date of February 6, 1976, the Board remanded the proceed- ing to me "for the purpose of preparing and issuing a Sup- plemental Decision setting forth resolutions of the credibil- ity of witnesses and containing new findings of fact, conclusions of law, and a recommended Order in light of 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such credibility resolutions " In its Order, the Board stated that I had, in my Decision, "summarized the testimony of various witnesses and recited the factual contentions of the parties without making credibility resolutions and specific findings of fact " The Board expressed the opinion "that the disposition of the issues presented in the instant case requires further findings by the Administrative Law Judge with respect to the credibility of all of the witnesses, and particularly a resolution of the conflicting testimony of Morrison and Davenport concerning a threat of discharge allegedly made by the latter on or about August 31, 1974, and with respect to all facts developed at the hearing " I have, in compliance with the Board's direction, re- viewed my Decision and the entire record in this case I come to the same conclusion In the first place, Morrison did not impress me as a credible witness On the other hand, Paul Merrill, the president of the Respondent, im- pressed me favorably and, in this connection, it should be observed that it was he that made the decision to discharge Morrison some 4 or 5 days after the spill at Blake's Marina There is no question that Morrison failed to report the spill Davenport, the Respondent's terminal manager, who began working for the Respondent as a driver, credibly testified that he had never threatened any employee with discharge on account of his union activity Moreover, a former driver for the Respondent, James Alpert, who was discharged by the Respondent in January 1975, and who admittedly was hostile toward the Respondent, credibly testified that Davenport did not discuss the Union with him It seems to me, upon a review of my Decision and the record, that I necessarily discredited Morrison, at least in- sofar as his testimony conflicted with that of Davenport Thus, I stated that I was not persuaded that the Respon- dent terminated Morrison because of his union activity and said that he "was not outstandingly active in behalf of the Union," but was "more of a follower than a leader" Secondly, I observed that while President Merrill admitted- ly was opposed to the unionization of his employees, the communications issued by the Respondent "were within the bounds allowed employers " In addition, I found that the Respondent had hired persons known to be union ad- herents and that a factor not to be overlooked was that in recent years the Respondent, because of the actions of gov- ernmental agencies, "had been increasingly vigilant con- cerning accidents and spills, and had embarked upon a campaign to reduce them following the cancellation of its insurance coverage and substantial expense involved with spills " Under these circumstances, it seems fairly plain to me, as I felt I had articulated in my Decision, that Morri- son was, in substantial part, not a credible witness whereas, on the contrary, witnesses produced by the Respondent, including Davenport, who gave testimony conflicting with that given by Morrison, were more credible I so find Accordingly, I recommend that, consistent with my No- vember 11 Decision, the complaint in this proceeding be dismissed in its entirety