McLean Trucking Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLean Trucking Company and Don F. Nichols. Case 6-CA-9393 August 29, 1977 DECISION AND ORDER Charles E. Mise, about the suspension on June 7. 1976, 5 days before the Charging Party was discharged. 3 For the reasons stated in her separate concurrence in General American Transportation Corporation, 228 NLRB 808 (1977). Member Murphy agrees that this case is inappropriate for deferral to the parties' contractual grievance-arbitration procedure. 4 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7*-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. BY MEMBERS JENKINS, MURPHY, AND WALTHER On March 22, 1977, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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,2 and conclusions3 of the Administrative Law Judge, to modify his remedy, 4 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, McLean Truck- ing Company, West Middlesex, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i Respondent has requested oral argument. This request is hereby denied because the record, exceptions, and brief adequately present the issues and the positions of the parties. 2 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 credibility 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. We find no merit in Respondent's assertion that the record does not show its knowledge of the Charging Party's concerted activity. Our basis for finding knowledge is predicated upon the fact that a representative of the Union. to which the Charging Party belongs and to whom he went for advice following his suspension, spoke to Respondent's terminal manager, DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at West Middlesex, Pennsylvania, on October 20 and November 1, 1976, based on charges filed July 2, 1976, and amended on August 4 and 24, 1976, and a complaint issued on August 30, 1976, alleging that Respondent violated Section 8(a) I), (3), and (4) of the Act. The General Counsel and Respondent have filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED McLean Trucking Company is a North Carolina corpo- ration engaged as a common carrier in furnishing interstate motor freight transportation services between several States of the United States. Among its terminals in various States is one at West Middlesex, Pennsylvania, which is involved in this proceeding. During the year prior to the issuance of the complaint herein, Respondent derived gross income of more than $50,000 from its freight transporta- tion services between several States. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 261, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The complaint alleges that Respondent discriminatorily discharged Don Nichols, the Charging Party, in violation of Section 8(aX3) and (1) of the Act, because he sought union representation in connection with a 5-day suspen- 231 NLRB No. 108 706 McLEAN TRUCKING CO. sion he had received; that Respondent violated Section 8(a)(1) of the Act by interrogating employees "concerning their union membership activities," by threatening employ- ees with discharge "if they failed to persuade other employees from engaging in union and/or protected concerted activity," and by informing employees that the basis for calling them in as casuals "had been changed because a fellow employee filed charges against Respon- dent with the Board"; and that Respondent violated Section 8(a)(4) and (1) of the Act by changing the call-in procedure because of the filing of charges with the Board and other concerted activities engaged in by the employees. This case turns in large part on the resolution of the witnesses' credibility. Basically, the conflicts are between Respondent's superintendent, George Kern, and eight different General Counsel witnesses, three still employed by Respondent at the time of the hearing.' The circum- stances of Nichols' discharge, the facts surrounding the downgrading on the list of casuals of a group of Westminster College student and several residents of New Wilmington. Respondent's (essentially Superintendent Kern's) explanation for these actions, and the demeanor of the witnesses, combine to impel me to credit the General Counsel's witnesses. I go into detail below. Facts and Discussion On June 5, 1976, Superintendent Kern suspended three employees, Thomas Hartwell, Norris Winters, and Don Nichols, for 5 days. All three had failed to recount their orders before loading them on the truck.2 When Nichols called Kern a week later to check the duration of his suspension, Kern told him he was terminated. According to Nichols, the following conversation occurred: Kern said, "Well, I didn't work on June 6th, but I understand you didn't get your weight back up, and so you've been fired." Nichols responded, "But George, I worked hard," and pleaded for his job, telling Kern he was a good worker and had always worked hard for him, tried to come out whenever he needed somebody extra, and "called all the times and stuff." Kern replied that it did not matter, and talking was not going to do much good anymore. At the close of the conversation, Kern said, "Oh, by the way, Don, I heard a nasty rumor that you went to the Union about being laid off for five days." Nichols replied that he had done so, and Kern said, "Why did you do that?" When Nichols said, "Because I felt I had been dealt with unfairly," Kern replied, "Well, that was stupid. Don't you know they can't do anything for you?" When Nichols said, "Well, I didn't think it could hurt anything," Kern repeated, "Well, talking isn't going to do any more good I guess," and the conversation ended. Kern denied that any such remarks were made by him. Neither of the other two suspended employees, Hartwell and Winters, was discharged, both returning to work right I Shaffer, Erwin. and Ramm, the latter reemployed several weeks before the instant hearing began. 2 Kern had deliberately removed one item from the cart of each employees. There was nothing invidious about his doing this: it was part of company policy. and done to check whether the employees were checking their loads. :' According to employee Steven Long, Nichols' "fists were clenched. He after their 5-day suspensions. Kern's explanation for singling Nichols out for discharge, while retaining the other two employees, was that "Upon review of their records and based on Mr. Nichols' attitude, sometime that following week, I made the decision not to call him [Nichols] for work anymore." With respect to Hartwell, who had an "admittedly bad work record," Kern testified he called him back because, on the day of the suspension, "the man indicated to me that he had admittedly had not done his job and indicated to me that he had several other problems, including a discharge and reinstatement. He told me and convinced me at that time, that he was sincere, he wanted to do his job and that he asked for another chance, and this is what I gave him, based on his attitude in that meeting and his commitment to do his job." With respect to Winters, Kern testified that he "had a much better work record than Mr. Nichols . .. less errors, better attitude." He described the difference in attitude between Nichols and the other two suspended employees as being that Nichols "would take offense when an error was brought to his attention." 3 As, on June 5, there was no suggestion by Kern that the 5-day suspensions might have been a prelude to discharg- ing the employees involved, it is difficult to see what "other chance" Hartwell might have been seeking at that time. Nichols' testimony that he pleaded with Kern for his job after being told in the June 12 telephone conversation that he had been fired makes sense; Kern's testimony that Hartwell asked for another chance when no firing was being contemplated does not. Respondent adduced testimony from Kern, supported by documentary evidence, of previous "errors" by Nichols. One, on February 21, 1976, indicates "Improper stacking - corrected on spot." A second, on April 25, 1976, also indicates "Improper stacking - corrected on spot." The final one other than the one leading to the June 5, 1976, 5- day suspension was on October 23, 1975, and indicates "man left remainder on dock with bill in cart," and contains a notation "Teach this man what a Free Astray is! Found this bill in a cart with ten cartons. Other 16 were already coded on a trailer." 4 The four bills (delivery receipts), including the one on June 5, were the only ones presented by Respondent out of the literally thousands that Nichols handled during his tenure with the Company. Kern in fact responded, "That's what that indicates," to the question "During the course of Mr. Nichols' employment, are these the only four freight bills that apparently have some correction marked on?" Thus the record shows very few errors by Nichols, and scarcely very much opportunity for him to have demonstrated a propensity for taking offense at criticism. Nor did Kern even attempt to was stomping around, his face was red, and he just generally looked like he'd like to punch George [Kem I" after he emerged from Kern's office from having been suspended. Nichols did not recall whether his fists were clenched when he came out of Kem's office; he did state that he was very angry. 4 Nichols testified that he was aware of only one "improper stacking" incident, and that nothing was ever said to him about the "free astray." 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delineate the nature of Nichols' alleged bad attitude in this respect.5 In sum, even looked at in isolation, Kern's explanation for discharging Nichols following the 5-day suspension lacked persuasiveness, and viewed against the lack of any discharge of Hartwell or Winters, the former with a much worse employment record than Nichols, and the latter with a much worse "attitude" at the time of the June 5 suspensions, the discharge seems to have been disparately imposed. It would appear, in short, that some other explanation for the discharge existed, and that explanation is found in Kern's statements to Nichols, whose testimony I credit, concerning his having gone to the Union about the suspension. The subsequent events in this case confirm that conclusion. Thus, within the next few weeks, according to witnesses Ramm and Shaffer, both still employed by Respondent, Kern sought to enlist their aid in getting Nichols "off the Company's back," by using any means at their disposal to dissuade Nichols from pressing charges against the Com- pany with the National Labor Relations Board. When Ramm asked Kern what the matter had to do with him, Kern replied, "I really don't want the casuals to lose their jobs." When Kern sometime later asked Ramm whether he had talked to Nichols, and Ramm said he had not, asking what the situation was between the casuals and McLean's, Kern replied, "It's getting pretty hairy. The Labor Relations Board is getting on our backs, and we're not going to put up with it." The conversation between Kern and Shaffer followed similar lines. When Kern told Shaffer "we got to get Nichols off the back of the National Labor Relations Board so they get off the back of McLean's," and Shaffer asked "What do you want me to do, beat him up?" Kern replied, "I don't care what you do. I don't care if you threaten him by yourself or if you get other people to help you. I don't care if you beat him over the head with a baseball bat. You have to stop him from going to the National Labor Relations Board and keep him from causing any trouble out here. If you don't, it's just going to make it tough on all you guys. Rather than fight it, we're just going to drop all the casuals. You will all be fired plus go through the hassle with Nichols." Sometime later, Kern told Shaffer "You are going to lose your job if you don't get on Nichols." 6 Kern denied all of the testimony of Ramm and Shaffer concerning these conversations. Here, too, what in fact later occurred tends to confirm the testimony of the : As noted, Nichols only recalls being spoken to about one of the three errors occurring prior to June 5, and there is no indication in his or Kern's testimony that there was any problem with Nichols' attitude on that occasion. Indeed, Winters testified that he gave Kern "a hard time about it," that he "kept arguing, you know, trying to get off of this punishment that he was giving me... . He told me if I didn't leave the office, he was going to fire me. I still didn't go and I kept asking him why he was giving me the five days off, I thought it was unfair .... I kept arguing with him. He told me that he was going to fire me three times before I left the office." All this was in reference to the same June 5 incident for which Nichols. Hartwell, and Winters received the 5-day suspensions. In terms of"attitude," and there is no denial by Kern of Winters' testimony, Nichols' attitude, even as testified to by Kern, compares quite favorably to that of Winters. " The General Counsel also refers to a conversation between employee Cesari and Terminal Manager Mise as indicating a promise of benefit to Cesari if he helped to resolve the problem with Nichols. I am not convinced General Counsel's witnesses. For, on July 17, the Company changed the order of listing of its casual employees. Up until that time, the casuals had been called in based on the order of listing on a casual list, kept according to seniority with the Company. 7 Number one was given the most senior employee, and so on down the line. On July 17, the list was changed drastically. All the casuals who were students at Westminster College, located in New Wilmington, Penn- sylvania, were downgraded, as well as two casuals who did not go to Westminster (one of whom had the previous year), but lived in New Wilmington, Nichols was a Westminster College student.8 On August 4, pursuant to an agreement between the Company and the Union, the lists were changed back to reflect order of seniority with the Company. According to Mise, the change of July 17 was occasioned by a severe drop in the volume of work to be done at the West Middlesex terminal, so that the Company wanted to be able to use its best employees, at a time when not all employees on the list would be called in. The Company had never before used a drastic change in the seniority order of its casuals to cope with a drop in the volume of work. Furthermore, the weeks of July 4 and July 11 were also very light weeks, yet the Company made no such changes. But even assuming Mise's reasons for utilizing a new method were the actual motivation, Kern, not Mise, made the actual changes, and Kern failed even to attempt to support his generalized testimony that the lowering on the list of all the Westminster College students and New Wilmington residents on the list was based on their productivity. No figures were adduced, no company records presented, and Kern did not even testify to relative productivity of the lowered employees vis-a-vis those who were not lowered, but rather moved up as others moved down. Again, an explanation must be found elsewhere, and in this instance it lies in the testimony, which I credit, discrediting Kern's denials of employees Shaffer, Winters, Ramm, Forrester, Erwin, Long, and Hartwell. Without detailing all the testimony, the general gist of it was that Kern told employees who came to work, discovered their numbers had been changed to their detriment, and asked why, that it was "because of Nichols" (Shaffer), because "Westminster students weren't looked upon too favorably around here anymore" (Winters), because "the casuals of the Westminster College and the Wilmington area weren't too favorably liked around the area of McLean's due to the hassle between Don and McLean Trucking" (Ramm), that Mise was at all involved (there is no question but that Kern alone made the determination to discharge Nichols), and do not, therefore, draw the inference that Mise was referring to Nichols a reference never explicit in the conversation as reported by Cesari. 7 Except for a period when relatives of regular company employees were given preference over all other casuals. This practice was changed, and all other casuals moved up on the list, in April 1976. Other than this, the only changes in the list before July 17, 1976, consisted of moving employees up when others left the Company. There is testimony by Terminal Manager Mise that a few individuals were moved up or down based on their being very poor or particularly good performers in the past No documentation was presented on this. 8 Among the changes were the following: Winters, from 14 to 66; Shaffer, from 33 to 71; Ramm, from 25 to 74; Forrester, from 17 to 68; Erwin. from 13 to 65; Long, from II to 78; Ives, from 21 to "in the 70's." 708 McLEAN TRUCKING CO. because "Westminster has fallen into disfavor" (Forrester), and because "You are a Westminster student, aren't you? That is why." (Hartwell). Kern's antipathy toward Nichols, as demonstrated by his treatment of Nichols' fellow students and what he told them, also serves to support the conclusion that Nichols' discharge was unlawfully motivated. Although Kern could have been upset at Nichols' challenging his discharge by filing charges with the Board, and indignant at being "falsely accused," his unsuccessful attempts to enlist the aid of other casuals to dissuade Nichols, and his taking reprisals against that group (the "Westminster" group) thereafter, is much more demonstrative of antipathy toward union and concerted activities by employees than of "righteous indignation." For all these reasons, I conclude that Respondent violated Section 8(aX1) and (3) of the Act by discharging Nichols, Section 8(a)(1) and (4) by lowering the position of the casuals from Westminster College and the New Wilmington area on the seniority list, and Section 8(a)(1) of the Act by threatening employees if they did not assist him in persuading Nichols not to pursue his charges with the Board, and by interrogating Nichols concerning his attempt to enlist the Union's aid in regard to his suspension. The final allegation of the complaint concerns an alleged reprimand of employee Knight for seeking to have a union committeeman accompany him in connection with a possible disciplinary hearing. The testimony does not show any such reprimand. Rather, according to Knight, he was told that casuals "are not represented by a union," and that a casual "has no benefits whatsoever." I therefore shall dismiss this allegation of the complaint, as only a statement of the Company's view that the casuals had no union representation, a view shared at least in part by Union Business Agent Listoria, rather than a reprimand, was involved. Respondent's final contention is that all the issues in this case are "appropriate for deferral under Collyer Insulated Wire, 192 NLRB 150 (1971)." As the thrust of the violations alleged, and found herein, consist of reprisals for going to the Union, in Nichols' case, and for Nichols having gone to the Board, together with the failure to other employees to dissuade him from doing so, in the case of employees downgraded in seniority, and further, because the Company did not even regard the casuals as being represented by the Union, I do not regard this case as even remotely appropriate for deferral to the arbitration proce- dures of the contract between the Company and the Union. Diversified Industries, 208 NLRB 233 (1974). CONCLUSIONS OF LAW 1. Respondent, by discriminatorily discharging Don Nichols, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. Respondent, by changing its call-in procedure because an employee filed charges against it with the National Labor Relations Board, has engaged in unfair " In the event no exceptions are filed as provided in 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. labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 3. Respondent, by threatening its employees with reprisals if they would not persuade other employees to refrain from filing charges against it, and by interrogating employees about their union activities, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent has not violated the Act in any other respect. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it offer reinstatement to Don Nichols, with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), that it make whole all employees discriminatorily lowered on its seniority list for losses suffered between July 17, 1976, when the discrimination occurred, until August 4, 1976, when the employees were restored to their proper places on the list, backpay to be computed as above, and that it take certain affirmative action in order 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 9 The Respondent, McLean Trucking Company, West Middlesex, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 261, or any other labor organization, by discriminatorily discharging, or otherwise discriminating against, employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning union activi- ties. (c) Threatening employees with reprisals unless they persuade other employees from filing charges against it. (d) Taking reprisals against employees because other employees have filed charges against it. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Don Nichols immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole as provided for in the section of this decision entitled "The Remedy." 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. 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole all employees from Westminster College and residents of the New Wilmington, Pennsylvania, area, who were discriminatorily downgraded on Respondent's list of casual employees, in the manner described in the section of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examining or copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its West Middlesex, Pennsylvania, facility copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. "I In the event that the Board's Order is enforced by a Judgment of a 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any employees because of their concerted or union activities, or because any employees filed charges with the National Labor Relations Board. WE WILL NOT interrogate our employees concerning union activities. WE WILL NOT threaten our employees with reprisals if they do not persuade other employees not to file charges with the National Labor Relations Board against us. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act. WE WILL offer reemployment to Don Nichols, and WE WILL pay him for any losses suffered as a result of having discharged him on June 12, 1976. WE WILL pay all employees who were discriminatori- ly lowered in seniority on the casual list on July 17, 1976, for any losses they may have suffered between then and August 4, 1976. MCLEAN TRUCKING COMPANY 710