Johnson Motor Lines, Inc.

JOHNSON MOTOR LINES, INC. 393 Johnson Motor Lines, Inc. and Matthew Fortino. Case 3-CA-6445 February 23, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 10, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent , Johnson Motor Lines, Inc., East Syracuse, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The Respondent 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. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: On April 16, 1976,1 a complaint and notice of hearing issued pursuant to a charge filed February 25 by Matthew Fortino, an individual. The complaint alleges, in essence, that Johnson Motor Lines, Inc. (herein Respondent or Company), violated Section 8(a)(l) of the National Labor Relations Act, as amended (herein the Act), by threatening its I All dates hereinafter refer to the calendar year 1976, except for references to events in December, which refer to calendar year 1975. 2 There is no issue raised as to thejurisdiction of the Board or of the status of the Union as a labor organization . The complaint alleges sufficient facts, which are admitted in Respondent's answer, upon which I may, and do hereby, find that the Respondent is, and has been at all tunes material, an employer engaged in commerce within the meaning of Sect. 2(6) and (7) of the Act. The complaint alleges, the answer admits, and I find that at all times material Teamsters , Local No. 317 (herein the Union), has been a labor organization within the meaning of Sec. 2(5) of the Act. 228 NLRB No. 50 employees with discharge or other reprisals if they engaged in protected activities on behalf of a labor organization (Teamsters, Local No. 317). By its duly filed answer Respondent admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. By way of an affirmative defense, the answer alleges that the statements made by Respondent's agent and supervisor were not reprisals for the Charging Party's protected activities but were rather the results "solely of Fortino's insubordination, refusal to carry out instructions, and challenging and criticizing of management's deci- sions." A hearing in this case was held before me on July 13 in Syracuse, New York. Subsequent to the hearing, a brief has been received from counsel for the General Counsel, which has been duly considered. Upon the entire record, including arguments of counsel, and my evaluation of the reliability of the witnesses, based on their testimony and demeanor and the inherent plausi- bility of the circumstances, I make the following: FINDINGS OF FACT2 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a common carrier in interstate truck transportation of goods and commodities along the eastern seaboard; its terminal in East Syracuse, New York, is the only facility involved in this proceeding. At this facility, the Respondent employs approximately a half dozen truckdri- vers who, at all times material, since at least July 1, 1973, have been represented for purposes of collective bargaining by the Union. The Union's steward at the facility is the Charging Party, Matthew Fortino, who has worked as a truckdriver for the Company approximately 11 years.3 The manager of the East Syracuse terminal is, and has been at all times material, William G. Stemmler, an admitted supervisor within the meaning of the Act. The record reflects that in December and February Stemmler became quite dissatisfied with some of the acts and conduct of Fortino, the result of which was that Stemmler threatened Fortino with discipline and, in fact, disciplined him on these occasions . As previously noted, counsel for the General Counsel urges that the motivation behind Stemmler's acts was to interfere with, restrain, and coerce Fortino in the exercise of his rights as a union steward. On the other hand, the Respondent contends the discipline and threats thereof were solely a result of Fortino's misconduct as a truckdriver . We come now to a consideration of the evidence adduced in support of these respective contentions.4 3 The record does not reflect how long he has served as union steward. 4 It should be noted that the original charge in this case alleged an 8(a)(3) violation. However, the Charging Party filed a grievance concerning this matter pursuant to grievance procedures of the collective-bargaining agree- ment, and Region 3 of the Board deferred the 8(a)(3) violation to the arbitral process. The decision of the arbitration board is incorporated in this record and will be referred to, infra. The Region refused to defer with respect to the 8(axl) allegations inasmuch as the Charging Party expressly stated his (Continued) 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The December Events The record reflects that on December 19 Stemmler determined to discharge Fortino as a result of three incidents-two of which occurred on December 17 and one on December 19. The first incident on December 17 was concerned with a load of material which Fortino was to pick up at a local General Electric Corporation facility, and bring back to the terminal . The issue in dispute appeared to be whether Fortino carried out this duty with the prompt- ness and competency which could be expected of him. Stemmler was of the view that Fortino took too much time in the process, thereby causing an undue expense to the Company. Fortino denied this, but was more upset because Stemmler had assigned another driver to a run to Rome, New York, to which Fortino claimed he was entitled. Stemmler denied Fortino was entitled to the Rome run, claiming that it was necessary, in any event, to assign another driver to that run in view of Fortino's lateness in returning from the G.E. job. Stemmler noted both incidents in a letter which he wrote to Fortino on December 19, which contained the reasons for Stemniler's decision to discipline Fortino.5 On December 19, an incident arose in which Fortino questioned the right of the Company to schedule a run to Central Square, New York, because it was outside of the Company's operating authority . Stemmler, in his testimony, denied that the Central Square run was outside the Company's operating authority, noting that Fortino and his brother had made 'the run on several occasions as long as the brother was driving.6 Stemmler further testified (which testimony is corroborated in part by employee Dwayne Jewett) to the effect that Fortino said on that occasion that "if he [Fortion] isn't going to take it, nobody is going to take it." Stemmler included this incident in his December 19 letter to Fortino, and again accused Fortino of "interfer- ing with the operation of the terminal and the right of management to make decisions on the operation of the terminal." Stemmler notified Fortino on December 22 of his decision to discharge the latter. Fortino then contacted Thomas Hall, president of the Union, and both men proceeded to the Respondent's terminal to discuss the matter with Stemmler. The conversation among the three men centered around the above-described incidents and the seeming inability of Stemmler and Fortino to resolve such incidents short of "shouting matches." 7 Hall recalled particularly the incident wherein Fortino suggested that the Company was placing reluctance to resort to the grievance procedure to resolve these allegations, and because it was uncertain whether the arbitration panel would have authority to consider such allegations. S See G C. Exh. 2. Stemmler referred to Fortino's conduct as being a criticism of management's decision to assign the Rome run to another driver, and stated that it constituted "interference with management's right to operate the terminal and make management decisions." 6 The record contains an order of the Federal highway administrator, dated November 21, 1974, to the effect that Matthew Fortino was barred from "driving a commercial motor vehicle and the transportation of property in interstate commerce outside of the commercial zone and in the transporta- tion of hazardous materials anywhere ... " (Reap . Exh. I.) 7 Testimony of Hall. 8 Testimony of Hall as corroborated by Fortino. Stemmler denied making such a statement, saying that he only told the two men that he was "manager employees in jeopardy by dispatching them into an area where the Company lacked operating authority. According to Hall, Stemmler took the position that Fortino was infringing on management's rights and that Fortino did not have a right to voice an opinion on that subject. The conference ended upon an agreement to reinstate Fortino without backpay. Hall further requested that no warning notice be issued to Fortino. However , according to Hall's testimony, Stemmler declined to agree to that stipulation since "when Matthew Fortino had warning letters in his personnel file, under the terms of the collective-bargaining agreement, it makes him open to loss of pay or discharge after the warning letter had been issued ... [as ] long as the warning letter was in Mr. Fortino's personnel filed, he seemed to be a lot less agressive in his performance of duties as union steward." s C. The February Events The record reflects that on or about February 10 Stemmler determined again to terminate Fortino based upon a series of events which Stemmler summarized in a letter to Fortino bearing the date February 10, as follows: February 10, 1976 Mr. Matthew Fortino Herman Road Syracuse, N. Y. 13209 Dear Mr. Fortino: On Monday, February 9, 1976, you engaged in criticism of terminal operations concerning the make up of certain peddle runs and local city operations, specifical- ly the selection of what freight would go on the various runs. Once again this is interference with the operation of the terminal and the right of management to make decisions. At the end of the day you criticized the operation manager for permitting three union men to punch out at their normal 4 P.M. leaving time, while you remained with another union man to load interline on overtime. Since overtime is premium pay and is offered to Senior men first your criticism was unwarranted and again interfered with the operation. You further engaged in a deliberate slowdown while performing your duties on overtime. of Johnson Motor Lines, and as long as Matthew Fortino confined himself to being a driver and union steward, we have no problem. But, if he begins to interfere with the managing operation, and gets into these series of episodes that he does from time to time, then he is going to receive letters of warning, or discharge as the severity of the case may be." The credibility issue here has been a difficult one to resolve since I am convinced that during the conversation each participant , being quite articulate, made many statements the exact nature of which may not have been recalled 6 or 7 months after the incident. Under all circumstances, including the generally favorable impression which Hall and Fortino made upon me on the witness stand, I am disinclined to believe that they fabricated the statement attributed to Stemmler . Accordingly, I do not credit Stemmler's dental, and find that the statement testified to by Hall, as corroborated by Fortino, was made substantially as he testified. JOHNSON MOTOR LINES, INC. 395 You further then filed trivial grievances against the company in an attempt to harass the company and interfere with our managerial rights. On December 23rd, 1975, you were advised, in writing, that you had been issued a final letter of warning and that any further violations would result in your immedi- ate discharge. This letter is your formal notice of discharge from Johnson Motor Lines, Inc. Yours truly, /s/ W.G. Stemmler Terminal Director With reference to the incident referred in the first paragraph of the above letter, Fortino testified that several of the truckdrivers came to him that morning to protest the freight assignments made to them that day .9 The drivers apparently complained to Fortino that freight which was, for example, assigned to a northerly direction was mistak- enly included in assignment to a driver who had selected a western direction. When Fortino brought this matter to Stemmler's attention, the latter became quite angry and told Fortino to "get out of there and load my freight, and do my job." 10 With respect to the incident contained in the second paragraph of the February 10 letter, Fortino testified that at the end of the day there was some overtime work to be done loading a truck, and that since there were only two truckdrivers (Fortino and his brother) left at the terminal, the operations manager assigned them to do the work, although Fortino did not desire it. James Andrews, the operations manager, a witness for Respondent, testified that another driver, Dwayne Jewett, was present part of the time and at no time while Jewett was there did Fortino ask to be relieved of the assignment. In any event, Fortino and his brother performed the overtime work. While there, another piece of freight came in which was interlined with another company. Fortino was of the opinion that this particular piece of freight should have been delivered by the Respondent rather than interlined. Accordingly, at the conclusion of the day, he complained to the operations manager concerning the assignment of overtime as well as the alleged wrongful interlining of freight. Subsequently, Fortino filed two grievances concerning the aforesaid matters.)" 9 It appears that the procedure at Respondent's terminal is for the terminal mansger, at the commencement of the workday , to make assign- ments for freight deliver to the different geographical areas of the city. The drivers then bid upon such selections based upon their respective seniority. 10 Testimony of Fortino . Stemmler testified that, on the day in question, Fortino indicated to him that drivers were picking or selecting at their own choosing the freight to go out on certain runs, and that if "they could do it then he could do it." Stemmler indicated that he was unaware of this but that if it was happening he would put a stop to it. In his testimony , Stenunler did not deny the statements attributed to him by Fortino, nor did he appear to be particularly critical of Fortino at the time for bringing the matter to his attention . However, he apparently viewed it significantly serious to include D. The Aftermath of the February 10 Discharge According to Stemmler's testimony, the matter of Forti- no's discharge was taken up between Union President Hall and Gene Henderson, vice president of Respondent in charge of labor relations. The result of that negotiation was that the discharge of Fortino was converted to a 2-day suspension without prejudice to Fortino's right to grieve concerning the matter. Fortino did, in fact, file a grievance which was heard in the regular course of the grievance procedure on May 5, 1976. The minutes of the joint local grievance committee state the decision of that body as follows: DECISION: Based on the facts and evidence as presented in this case the employee is to be reimbursed for the two-day's pay. The employee is instructed by this committee to comply with instructions issued by the company and should the steward disagree with such instructions, any discussion of the matter should take place at a mutually agreed upon time between the steward and the terminal manager.12 II. ANALYSIS AND CONCLUDING FINDINGS It is by now well established that conduct by an employer which interferes with, restrains, and coerces an employee in the legitimate exercise of his right to police a collective- bargaining agreement constitutes a violation of Section 8(a)(1) of the Act.13 Of course, this protection to the employee does not affect his obligation to either perform the duties assigned to him in a competent and efficient manner, nor does it broaden his right to complain to management concerning matters which are not properly within the scope of his duties to protect the rights of the employees in the unit covered by the collective-bargaining agreement. The evidence in this case, as reflected by the December 19 and February 10 letters, indicates that Stemmler failed to distinguish between these principles in determining to discipline Fortino. For example, Stemmler equally criti- cized Fortino for his failure to properly and expeditiously complete the General Electric job (which, if any criticism was justified, would appear to be based purely upon a deficiency on Fortino's part as an employee), with his "criticism" of management's decisions to make assignments based upon seniority, or the filing of grievances based upon Fortino's opinion that management was violating the contract in interlining freight.14 Accordingly, I find that there is ample evidence in the record to support the conclusion that at least part of the the incident as a reason foi his decision to terminate Fortino in the February 10 letter. 11 These are the grievances referred to in par. 4 of the February 10 letter, above cited. Stemmler also considered, based upon the time consumed in unloading the freight during the overtime period, that Fortino had engaged in a "deliberate slowdown," as referred to in the third paragraph of the said letter. 12 See Resp. Exh. 2. 13 Merlyn Bunney, et at, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516(1962). 14 It is well established that the employee does not have to be "right" in his interpretation of a collective-bargauung agreement . Rather, the critical question is whether he was acting in good faith on behalf of himself and his (Continued) 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motivation for Stemmler's threats to discipline Fortino was because of his activities in policing the collective-bargain- ing agreement, and in the raising of complaints and filing of grievances pursuant thereto. Additionally, I find that there is insufficient evidence in the record to establish that, by his acts and conduct, Fortino forfeited or waived his protection in pursuing such activities.15 Therefore, I find that the Respondent has, in violation of Section 8(aXl) of the Act, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(aXl) of the Act.16 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with the interstate operations of Respondent, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening its employees with discharge or other reprisals if they engage in concerted activity for their mutual aid or protection, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby engaging in unfair labor practices proscribed by Section 8(aXl) of the Act. fellow employees for rights he thought they all were entitled to. See Ben Pekin Corporation, 181 NLRB 1025 ( 1970). See also Mushroom Transportation Co. Inc., 142 NLRB 1150,1157-58 (1963). 15 Cr. Northern Motor Carriers, Inc. and Fort Edward Express Co., 130 NLRB 261 (1%1), where the Board dismissed a complaint because the individual involved "had deliberately harassed his prior employer with the filing of complaints." 16 In the overall consideration of the evidence in this case, it should also be noted that the record reflects what appears to be a well-established satisfactory bargaining relationship between the Respondent and the Union which has deteriorated to a large extent at the East Syracuse terminal, to the detriment of both parties. The deterioration appears to be caused in large part by the rather dominant personalities of the two principal participants, and the foregoing findings should not be construed as a determination that all conduct on one side is all "wrong" and the other is all "right." Rather, it would seem that, in the interest of future harmonious relations at the terminal, the directions of the Joint Local Grievance Committee, above cited, should be adhered to by both the steward and the terminal manager. 17 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. 18 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices violative of Section 8(a)(l) of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies 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: ORDER 17 The Respondent, Johnson Motor Lines, Inc., East Syracuse, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with discharge or other reprisals if they engage in concerted activities for their own mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Remove and expunge from its personnel records or reports, all warning letters or other documents which refer to threats of discharge or other disciplinary action against Matthew Fortino for engaging in concerted activities protected by Section 7 of the Act. (b) Post at its East Syracuse, New York, terminal copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL remove and expunge from our personnel records all warning letters or documents issued to Matthew Fortino for engaging in concerted activities protected by Section 7 of the National Labor Relations Act, as amended. JOHNSON MOTOR LINES, INC. 397 WE WILL NOT threaten Matthew Fortino with dis- rights guaranteed in Section 7 of the National Labor charge for other reprisals for engaging in concerted Relations Act, as amended. activities for his mutual aid or protection. WE WILL NOT in any like or related manner interfere JOHNSON MOTOR LINES, with, restrain, or coerce our employees in the exercise of INC.