Stanley Trucking Co., Inc.

STANLEY TRUCKING CO. Stanley Trucking Co., Inc. and Edwin F. McDer- mott. Case 8-CA-16702 9 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 6 November 1984 Administrative Law Judge Hubert E. Lott issued the attached decision. The Respondent filed exceptions, a supporting brief, and a motion for additional testimony, and the General Counsel filed a brief in opposition to the Respondent's exceptions and motion. The Board has considered the decision and the record in light of the exceptions, briefs,' and motion and has decided to affirm the judge's rul- ings, findings, and conclusions, to deny the motion, and to adopt the recommended Order as modified. The Respondent contends that the complaint should be dismissed because (1) it incorrectly set the date of the strike in which the employees par- ticipated as 18 October 1983 rather than 18 Octo- ber 1982; (2) the Respondent was not served with the decision of the judge and the order transferring the proceeding to the Board; (3) the complaint was improperly issued in contravention of Section 10(b) of the Act because the amended charge was served on the Respondent on 10 June 1983, which was more than 6 months after the discharges;2 and (4) as a result of a "misunderstanding" on the part of the Respondent's secretary-treasurer, the Respond- ent's counsel mistakenly admitted at the hearing that the Respondent, an Ohio trucking company, derived gross revenues in excess of $50,000 for the transportation of freight directly to points outside the State. Rather, the Respondent now contends that it has derived a gross income of less than $50,000 per annum for out-of-state hauling. As to (1), the judge corrected this inadvertent error on the basis of all the evidence, including that of the Respondent. As to (2), the record shows that the Respondent, which was incorrectly desig- nated by the Charging Party as Stanley Hauling and Trucking Company rather than Stanley Truck- ing Co., Inc., was nevertheless apprised of the doc- uments in question. As to (3), the record also shows that the original charge, dated 29 April 1982, was served on the Respondent despite the fact that it named Stanley Hauling and Trucking I The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 This section provides in pertinent part "[t]hat no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board " 41 Company. As this charge against the Respondent was filed within 6 months of the discharges and contained basically the same allegations as those in the amended charge, we find that the complaint conformed to Section 10(b) of the Act. As to (4), the Respondent limits its objection to the Board's assertion of jurisdiction under one of its discretion- ary standards and thus does not contest the Board's legal, or statutory, jurisdiction. As the Respond- ent's contention, which pertains solely to a discre- tionary standard, was not timely raised, we find that this issue may not now be relitigated. Accord- ingly, we deny the Respondent's motion requesting the admission of additional testimony concerning this matter. See Pollack Electric Co., 214 NLRB 970 fn. 4 (1974). In the absence of a substantive exception thereto, we adopt the judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging employees Gale Burnett and Fred Price on 21 No- vember and 3 December 1982, respectively, for en- gaging in protected concerted activities under Sec- tion 7 of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Stanley Trucking Co., Inc., Grand River, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(a). "(a) Offer Gale Burnett and Fred Price immedi- ate and full reinstatement to their former positions or, if those positions no longer exist, to substantial- ly equivalent position, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union 275 NLRB No. 10 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interfere with these rights given to you by law. WE WILL NOT discharge or otherwise discrimi- nate against employees because they engage in pro- tected concerted activity, such as protesting wage rates and striking in support of the right to bargain collectively with the Employer. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Gale Burnett and Fred Price im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to the dis- charge and that the discharge will not be used against them in any way. STANLEY TRUCKING CO., INC. DECISION STATEMENT OF THE CASE HUBERT E. LOTT, Administrative Law Judge. This case was tried at Cleveland, Ohio, on October 11 and 12, 1983, on an unfair labor practice charge and amended charge filed on April 29 and June 10, 1983, by Edwin F. McDermott Esq., on behalf of Gale Burnett and Fred Price against Stanley Trucking Co., Inc. (Respondent or Company) and on a complaint issued by the General Counsel on June 13, 1983. The issue in this case is whether or not Respondent discharged Gale Burnett and Fred Price for engaging in protected concerted activities in violation of Section 8(a)(1) of the Act. The parties were afforded an opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of hearing, briefs have been received from the General Counsel and from counsel for Respondent. On the entire record, and based on my observation of the witnesses, and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is an Ohio corporation engaged in the interstate transportation of goods and materials It annu- ally, in the course and conduct of its business, derived gross revenues in excess of $50,000 for the transportation of goods and materials directly to points and places out- side the State of Ohio. Respondent admits, and I find, that the Company is ari employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent hauls sand, gravel, salt, and like products for itself and other companies. The drivers operate com- pany-owned dump trucks for which they are paid 24 per- cent of what their truck earns for hauling company prod- ucts and 30 percent of the brokerage fee for hauling cus- tomer products. During the period in question, Stanley employed 11 drivers. Stanley Orley is the company president and his son Phillip Orley who works for Re- spondent hires employees and signs their paychecks. He managed the Company in his father's absence and signed the labor agreement between the employees and the Company. In October 19821 Gale Burnett and Howard Sisson, truckdrivers for Respondent, determined that they were not receiving 30 percent of the brokerage fees in wages for hauling other company's products. On October 7 all the drivers, with exception of one, met at a truckstop where Burnett and Sisson told them that according to their calculations the drivers were not receiving the cor- rect wages for hauling materials, that they were being underpaid. The drivers agreed to check into the matter further and meet again on October 15. On October 15, the drivers met at a driver's home. At this meeting the drivers had load sheets with weights and freight bills. With this information, they determined that they were being underpaid for brokered work. Sisson told the drivers that he was informed by the bookkeeper that they were to be paid 25 percent no matter whose material they hauled. The drivers elected Gale Burnett as their representative to discuss this matter with Stanley Orley. On Saturday morning, October 16, Burnett met Stan- ley Orley in the dispatch office. He told Orley that the drivers had a meeting and they wanted to talk to him on Sunday, October 17, about their cut in pay. Orley told Burnett that he did not have to meet with the drivers and that there would be no meeting. On Sunday, October 17, all the drivers went to the Stanley truck yard, arriving about 12 noon. They waited until 2:30 p.m. but Stanley Orley did not appear. While waiting, the drivers agreed to report for work the next day but not to load the trucks until Stanley Orley met with them. The drivers reported for work on Monday, October 18, at 6 a.m. At approximately 7 a.m. Stanley Orley and I All dates herein refer to 1982 unless otherwise indicated STANLEY TRUCKING CO. his son Phillip arrived at the facility. He asked what was going on and if they planned on working that day. One of the drivers told Stanley that they were not planning on loading the trucks until he talked to them Stanley Orley told the drivers to get their belongings out of their trucks and get the hell off of his property. The drivers did as instructed and sat on the roadside across from the truck terminal. At approximately 5 p.m., Phillip Orley came over to where the drivers were located and said that they would listen to the drivers' demands. Phillip Orley asked to speak to Howard Sisson He told Sisson that after the drivers drafted their demands, Sisson would have to be the person who presented them to himself and his father.,2 The drivers drafted their de- mands but voted to send Dave Krebs, another driver, with Sisson when he presented them to the Company. About an hour later Sisson and Krebs returned with a typed agreement which had been executed by Stanley Orley and his son. The agreement dated October 18 contained four de- mands made by the drivers, the first of which reads: Twenty-four percent of the gross of Stanley Truck- ing Inc. work. Thirty percent of the net on all other outside work. The agreement also contained eight demands made by the Company, the last of which reads: No drivers permitted in the garage working area for any reason except designated motor oil and hydrau- lic areas and to use the lavatory. All the drivers, including Burnett and Price, signed the agreement, and the next day they returned to work. On Sunday, November 7, Stanley Orley called Burnett at home and asked to meet him that day at the Compa- ny's office. When Burnett arrived, he was told by Stan- ley that he was giving him 2 weeks' notice because of the negligent way Burnett drove his truck, thus causing it to break down. Stanley said he could not afford the maintenance cost but there should be no hard feelings and he was not being discharged because of the strike. Burnett asked Stanley if he was blaming him for the hole in the radiator which was there before he was ever as- signed this truck, and Stanley did not reply. Burnett credibly testified that he worked for Respond- ent from March 1981 to November 21, but that he had worked two other times for this Employer. He further stated that he drove the dump truck in question (no. 82) for the past 6 months and that there were more truck breakdowns before the strike than after. He had oil pres- sure problems five times before the strike and one time after the strike. A turbo gasket had to be replaced and a new radiator core installed after the strike. He also testi- fied that he was never warned about his driving causing excessive repairs nor was the subject ever mentioned to him prior to November 7. Price testified credibly that he had been employed by Respondent as a dump truck operator from October 1981 2 Howard Sisson is presently a driver but was formally a supervisor with the Company and testified on behalf of the Company at this hearing 43 to December 3. He attended the first drivers' meeting at the truckstop on October 7. He attended the drivers' meeting on October 15, participated in the strike on Oc- tober 18, and signed the labor agreement that day. Price stated that on Friday, November 19, at 2 p.m., as he was leaving Respondent's yard in his truck, Stanley Orley motioned for him to stop. Stanley walked over to his truck and told him he could no longer afford his truck and that Price had 2 weeks' notice. Price testified that he drove truck 18 while he was working for Respondent. Before the strike, truck 18 underwent two major repairs (new crankshaft and new leaves in springs). After the strike, nothing was repaired except a flat tire. He also stated that he was never warned about his negligent driving causing damage to his truck. Roy Sovine was employed by Respondent from March 1981 to February 1983 as a diesel mechanic who did repair work on trucks 18 and 82. He testified that the problems with truck 82 were partially caused by rust and corrosion which resulted when this truck sat outside idle for a long time when a motor was being installed. He testified further that the problems also resulted from poor warranty work and rarely were any problems relat- ed to or caused by driver performance. He also testified that the repairs to truck 18 were similar to the repairs made on all the other trucks, i.e., breaks, clutch, tires, and lights, and were not caused by the driver. He con- cluded by saying that both trucks had average down- time. Both drivers received letters of reference dated De- cember 8 from Stanley Orley attesting to their honesty, their good attendance, and their good relations with other people. Stanley Orley testified that he discharged Burnett and Price because their negligent driving caused their trucks to have excessive downtime (repairs). Later he testified that the reason he discharged both drivers was that they were putting their trucks in the garage for "petty stuff," minor repairs which should have been performed by the drivers. Orley also testified that after he sold eight trac- tors and trailers in April 1983, he first studied the main- tenance records of trucks 18 and 82 and determined that they were losing money from January to April 1983. Later he testified that he studied the maintenance records and other costs of all his trucks in the fall of 1982 and determined that trucks 18 and 82 were earning less money ($80-$90 per week) than his other trucks ($175-$300 per week). He also learned from his head me- chanic Steve Guiere, who complained to him, that trucks 18 and 82 were in the shop too much for minor repairs. He stated that Price and Burnett stopped making minor repairs after the strike when all drivers were forbidden to go into the garage . Stanley Orley admitted not dis- cussing the truck damage or downtime with either driver. He further admitted that truck 18 had frequent minor repairs since December 5, 1981, and that when it had a major repair job in March, he should have gotten rid of the truck and driver. Howard Sisson testified on behalf of Respondent that he knew Burnett from working with him off and on over 9 years with Respondent. He stated that Burnett is a 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD very good, safe driver, who drives fast but is hard on trucks. However, Burnett drove the same way for the 9 years he worked for Respondent and that he was aware of Burnett's driving habits when he hired him to work for Respondent on the second occasion of his employ- ment with Respondent Sisson also testified that on Octo- ber 18, when he negotiated the labor agreement with the Orleys, it was also agreed among the parties that before the Orleys discharged anyone, or had a grievance con- cerning a driver, they would bring the problem to the at- tention of Sisson and Krebs who would try to correct it. This never happened with Burnett and Price. Although Respondent had the maintenance records and repair bills for trucks 18 and 82 marked for identifi- cation, they were never offered into evidence. Respond- ent did introduce attendance records of both drivers which also showed the number of days each driver's truck was either down (T/D) or in the garage (G). Date Gale Burnett Truck 82 Fred Price Truck 18 Jan. 0 0 Feb. 4 T/D 2 G, 1 T/D Mar I T/D 5G Apr. 0 0 May 0 0 June 2 T/D 0 July 1 G 12 T/D Aug 2 T/D 0 Sept I T/D 2 T/D Oct 2 T/D 8T/D Nov 1-7 1 T/D Nov. 1-19 - 3 T/D Analysis and Conclusions The General Counsel presented evidence of a classic protected concerted activities case and no one disputes this. Thus, the only question remaining is whether or not Burnett and Price were discharged for engaging in those activities. In this regard the General Counsel presented a prima facie case that they were. The General Counsel presented undisputed evidence that both employees en- gaged in protected activity and that Respondent knew of their participation . She also presented undisputed evi- dence of Respondent's hostility toward these protected activities. Finally, the General Counsel presented unre- butted evidence that Respondent 's reason for discharging both employees was pretextual . At this point, it is incum- bent on Respondent to rebut the General Counsel's evi- dence and demonstrate that the discharges would have taken place even in the absence of the protected con- duct. Respondent's chief witness Stanley Orley, in an effort to defend his actions, testified that both drivers were dis- charged for negligently driving their trucks, thus causing them to undergo more repairs than his other trucks. Documentary evidence in the form of maintenance records and repair bills were in the courtroom but never offered as evidence in support of this contention. There- fore, I will infer that the documentary evidence would not have supported Respondent's contention. Further- more, no evidence was offered to support Respondent's contention that the trucks of Burnett and Price under- went more extensive repairs than Respondent's other trucks. Finally, Respondent made no attempt to prove that these drivers were responsible for the repairs to their trucks. Instead, Respondent's witness shifted his de- fense to a totally different reason for discharging the em- ployees. He asserted that Burnett and Price were dis- charged for constantly having their trucks in the garage for minor repairs which they should have performed themselves and this caused these two trucks to earn less income than the others. He acknowledged that these two drivers engaged in this conduct after the labor agreement had been signed, which by its terms, prohibited the driv- ers from entering the garage to get the tools and parts they needed to make the repairs. Furthermore, Respond- ent made no effort to offer any evidence in support of this contention Stanley Orley stated that he relied on the complaints of chief mechanic Steve Guiere; however, he was not called as a witness. Therefore, I will infer that his testimony would not have supported Respondent's contention. No documentary evidence was offered by Respondent in support of its contention except the em- ployees' attendance records which gives the dates that their trucks were down or in the garage. Comparative records of other trucks were not offered nor was any ex- planation offered as to why the trucks in question were either down or in the garage, thus rendering these records useless. Stanley Orley's testimony is a maze of inconsistencies and contradictions, all offered without any corrobora- tion, which was available. For example, he testified that he first made a detailed study of the two trucks in ques- tion in 1983 and found that they lost money during the first 4 months of that year. Later he testified that he made a detailed study of all his trucks in the fall of 1982 and determined that trucks 18 and 82 earned less money than his other trucks. This contradiction is one of many which was offered without any attempt to support either assertion. Therefore, I have discredited the testimony of Stanley Orley entirely and find that Respondent has in effect, no defense. If I needed further support for my finding, I would offer the brief submitted by counsel for Respond- ent. It is a single-paged document whose only argument centers around a typographical error in the complaint, which alleges the strike date to be October 18, 1983, in- stead of October 18, 1982. All the evidence, including Respondent's evidence, supports the undisputed fact that the strike occurred on the latter date. Accordingly, I find that Gale Burnett and Fred Price were discharged for engaging in protected concerted ac- tivities in violation of Section 8(a)(1) of the Act. The ap- propriate remedy for such a violation is an order to cease and desist, reinstatement with backpay of the dis- charged employees, and the posting of an appropriate notice. CONCLUSIONS OF LAW 1. Respondent Stanley Trucking Co., Inc. is an em- ployer engaged in commerce, and in operations affecting STANLEY TRUCKING CO 45 commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Gale Burnett and Fred Price for en- gaging in protected concerted activities under Section 7 of the Act, Respondent has engaged in unfair labor prac- tices in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER Respondent, Stanley Trucking Co., Inc., Grand River, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engaged in protected concerted activity such as protesting a reduction in their wage rates and striking in support of their right to bargain collec- tively with the Employer. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necesary to ef- fectuate the policies of the Act. (a) Offer to Gale Burnett and Fred Price full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges. (b) Make Gale Burnett and Fred Price whole for any loss of pay they may have suffered by reason of Re- spondent's discrimination against them by payment to them of a sum of money equal to that which these em- ployees normally would have earned as wages from the time they were discriminatorily discharged, less net earn- ings, with backpay to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977) (See generally Isis Plumbing Co., 138 NLRB 716 (1962).) (c) Expunge from its files any reference to the dis- charge of Gale Burnett and Fred Price and notify them in writing that this has been done and that evidence of their unlawful discharge will not be used as a basis for future personnel action against them. (d) Preserve and, on request, make available to the Board or its agent, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Grand River, Ohio facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 4 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "