Emeryville Trucking, Inc.

1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Emeryville Trucking, Inc. and Melvin Packer. Case 6-CA-14900 24 September 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 24 March 1986 the Board issued a Decision and Order in this case 1 adopting the administrative law judge's finding that the Respondent, a truck leasing company, violated Section 8(a)(3) and (1) of the Act when on 14 September 1981, iii retaliation for a grievance filed by driver Melvin Packer, it canceled 32 truck leases with its joint employer, Helms Express, forcing the discriminatory layoff, of Packer and 30 drivers his junior; independently violated Section 8(a)(3) and (1) of the Act by dis- criminatorily failing to offer Packer employment with Team Transport, a nonunion trucking oper- ation formed by the Respondent's owners; but did not violate the Act when on 30 September 1981 , it canceled its remaining 30 truck leases and its agency, agreement with Helms and forced the layoff of 30 more drivers. The Board agreed with the judge that Packer should be offered employ- ment at Emeryville/Team, and 'backpay from the date of his layoff until such offer of employment, and that the 30 other drivers discriminatorily laid off and subsequently offered positions with Team should receive backpay calculated from their 14 September 1981 layoffs to 31 December 1982, the date the Respondent's agreement with Helms would have expired by its terms.2 The Respondent filed with the Third Circuit Court of Appeals a petition for review of the Board's Decision and Order and the Board filed a cross-application for enforcement. Subsequently, on 12 August 1986, the Board filed with the court a motion for leave to withdraw the record without prejudice and for dismissal, without prejudice, of the petition for review, or alternatively for suspen- sion of the briefing schedule to allow the Board to reconsider, sua sponte, its Decision and Order., On 24 September 1986 the court granted the Board's motions. On 6 October 1986 the Board invited the parties to file statements of position. The General Counsel and the Respondent filed timely statements. 1 278 NLRB 1112 (1986) 2 Member Johansen would have terminated the drivers' backpay 30 September 1981, the date the Respondent terminated its relationship with Helms The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered this case in light of the record and position statements and for the rea- sons set forth below has decided to reaffirm its ear- lier Decision and Order adopting the judge's find- ings, but only to the extent consistent with this Supplemental Decision and Order.3 Our focus on reconsideration is the inconsistency between the judge's treatment of the 30 September 19814 layoffs as a separate' event for the purpose of determining whether these layoffs were unlawful and his finding in connection with the backpay due those laid off 14 September 1981 that the second round of layoffs was "catalyzed" by the first. A brief restatement of the credited facts is war- ranted. Packer filed and won a grievance protest- ing a practice the Respondent viewed important to its operation. In retaliation, on 14, September the Respondent canceled 32 truck leases with Helms, causing the layoff of Packer and 30 drivers his junior.5 Following these layoffs, the Respondent realized it had done _ something that would "get someone's attention" at Helms and awaited a re- sponse. When none came, Phil Rezzetano, one of the Respondent's owners, called Helms and said, " [N]o one seems to care, I'm canceling the remain- ing leases." When again no one from Helms re- sponded, the Respondent sent a 24 September ter- mination letter canceling the remaining leases and the agency agreement, effective 30 September. The judge found the layoff of Packer and 30 other drivers resulting from the 14 September lease cancellations was discriminatorily motivated, and for the reasons stated by him, we continue to agree. The judge treated the second round of lease cancellations as a separate event, and finding no evidence that these cancellations were "to thwart a Packer grievance or had any anti-union animus" concluded the leases were canceled as of 30 Sep- tember as an "independent business decision" stem- ming from differences that Emeryville had been unable to resolve with Helms since July, and, therefore, were lawful. The judge, however, found that since the record contains at best only specula- tion whether Emeryville would have parted from 3 We shall clarify the Order and notice to conform with our adoption of the judge's finding that the Respondent discriminatorily denied Packer employment following his unlawful layoff and that as a result Packer is entitled to an offer of employment by Emeryville/Team, and backpay from the date of layoff to the date an offer of employment is made 4 All dates are in 1981 unless otherwise indicated 5 Although certain evidence indicates that a total of 32 drivers were laid off, the parties stipulated to the names of 31 drivers, including Packer, who received layoff notices as a result of the Respondent's 14 September action. 285 NLRB No. 132 EMERYVILLE TRUCKING Helms on 30 September if Packer's grievance had not "catalyzed" events, backpay for the unlawful 14 September layoffs should extend ' to the date Emeryville's agreement with Helms expired by its terms, rather than the date the Respondent termi- nated its relationship with Helms. We find the judge made a correct assessment of the record when he considered the backpay issue and, in de- termining the legality of the 30 September layoffs, we now conclude that, since the second round of cancellations was accelerated by the Respondent's unlawful acts of 14 September, it also violated Sec- tion 8(a)(3) and (1) of the Act. Packer's grievance, and the first round of retalia- tory layoffs that followed, set other events in motion. These layoffs prompted the Respondent to more carefully evaluate its relationship with Helms, and when Helms' lack of response to the layoffs suggested indifference, the Respondent canceled the balance of its truck leases and the agency agreement with-Helms. While the Respondent's re- lationship with Helms had become frayed even before the Packer grievance, there is nothing to in- dicate that absent the discriminatory 14 September layoffs, the Respondent would not have continued the balance of the Helms leases to term. In these circumstances, we find the General Counsel has es- tablished that the Respondent terminated the bal- ance of the truck leases with Helms on 30 Septem- ber as a result of the unlawful 14 September lay- offs. Such conduct, which caused the layoff of 30 additional drivers, must be found to violate Section 8(a)(3) and (1) of the Act, unless it can be shown that an independent intervening event caused the second round of cancellations. The Respondent has failed 'to point to any inde- pendent intervening event that can be relied on to fix the date the Respondent would have terminated its relationship with Helms had the Packer griev- ance not provoked the first round of cancellations.6 In fact, by Owner Phil Rezzetano's admission, the second round of cancellations as precipitated by one factor-the failure of the 14 September cancel- lations to get someone's attention at Helms. Rele- vant testimony, not discussed by the judge, also es- tablishes that while the Respondent had contem- plated terminating its relationship with Helms at some indefinite date in the future and leasing its trucks,to Team Transport, the nonunion operation owned by the Rezzetanos, the Packer grievance in- fluenced, and in fact accelerated, that event. Philip Bateman, president of Team Transport, was found by the judge to be a "sincere and very credible 6 As the judge found, "[o]nce the Packer grievance triggered the first round of cancellations, there is no way of knowing when the second round would have come, if at all." 1067 witness." Bateman testified that "just prior to the split between Emeryville and Helms" he had a conversation with Owner Phil Rezzetano about the Packer grievance. According to Bateman, P. Rez- zetano said the difficulty involving Packer was one of the reasons he was breaking with Helms. P. Rezzetano gave as another reason his contractual disagreements with Helms. Robert Townsend, a Helms/Emeryville driver, was not one of those laid off 14 September. His testimony, while not dis- cussed by the judge, is consistent in many respects with that of other credited witnesses. According to Townsend, on reporting back to work 21 Septem- ber, after being out for several weeks with a physi- cal injury, he had a conversation with Owner John Rezzetano at the Respondent's Warrendale termi- nal. J. Rezzentano explained that the lease on, Townsend's truck was canceled' and that if he wanted to work, it would be with Team Transport. J. Rezzetano said, "[T]hey hadn't intended on going over. They were eventually going to go all to Team. They didn't want to do it at this time or this quickly, [but] because of the incidents leading up to this situation or incidents leading up to this that they were forced to go over to Team a little sooner than anticipated." The incidents J. Rezze- tano referred to as pressuring him to make the changes sooner than anticipated were "Mel Packer and Helms."7 The Respondent's written notice of its intent to cancel the remaining leases and the agency agreement was sent to Helms within days of this conversation. The above evidence, including the testimony of P. Rezzetano, accentuates that the Respondent's 14 September cancellation of half of Helms' truck leases, and not any independent inter- vening event, catalyzed the reassessment of its al- ready deteriorating relationship with Helms, and prompted the Respondent to accelerate its break with Helms. 8 Under these circumstances we cannot find that the cancellations effective 30 September would have taken place on that date even in the absence of the Packer grievance and the first round of unlawful layoffs triggered by it. Accordingly, we find the layoffs of 30 Septem- ber were a result of the Respondent's earlier un- lawful conduct and also violated Section 8(a)(3) and (1) of the Act.9 ° After 21 September Townsend's truck was leased to Team Transport 8 See generally Carbonex Coal Co., 262 NLRB 1306, 1324 (1982), Ox- Wall Products Mfg Co, 135 NLRB 840 (1962), enfd. 310 F2d 878 (2d Cir 1962) 9 In reaching this conclusion we do not disturb the judge's finding, which we previously adopted, that the record fails to show any specific discriminatory motivation for the second round of cancellations. No such evidence is necessary where it has been established, as in this case, that an action adversely affecting employees' terms and conditions of employ- ment came about as a result of unlawful acts, rather than as a result of completely independent lawful events 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAw Substitute the following'for Conclusion of Law 2. "2. By causing the 14 September 1981 layoff of 30 drivers that it jointly employed with Helms Ex- press in retaliation for having to pay a grievance award that was made pursuant to a collective-bar- gaining agreement between the drivers' union and Helms Express and, as a result of these layoffs; causing the 30 September 1981 layoff of 30 addi- tional drivers jointly employed with Helms Ex- press, Emeryville violated Section 8(a)(3) and (1) of the Act." AMENDED REMEDY Having found that the Respondent's layoff of 30 drivers on 30 September 1981 violated Section 8(a)(3) and (1) of the Act, and given, that the Gen- eral Counsel states that all laid-off drivers, except Mel Packer, were offered employment with Team Transport, we shall afford those laid off 30 Septem- ber 1981 the same relief provided by the judge to those discriminatorily laid off 14 September 1981. Specifically, we shall direct the Respondent to make whole the 30 drivers unlawfully laid off 30 September 1981, with backpay through 31 Decem- ber 1982,.,the date the Emeryville-Helms agreement would have expired by its terms . We note that the General Counsel seeks this limited remedy and, given that the relationship between Emeryville and Helms had deteriorated over the summer of 1981 and • the ' Respondent had contemplated terminating that relationship even before the Packer grievance triggered the Respondent's-above-discussed unlaw- ful conduct, we find-, the remedy sought would be restorative, without being punitive. 10 We also modify the remedy to provide interest as set forth in our decision in New Horizons for the Retarded.I I ORDER The ,National Labor Relations Board orders that the Respondent, ' Emeryville Trucking, Inc., War- rendale, Pennsylvania, its, officers, agents, succes- sors, and assigns, shall 10 In the compliance stage of this proceeding the Respondent is free to introduce evidence establishing that factors other than the Packer griev- ance would have resulted in an earlier termination of some or all of the discrimmatees and thereby mitigate its backpay liability Further , because the list of names of the 30 drivers unlawfully laid off 30 September 1981 is somewhat incomplete, i e, first names are 'missing for 6 individuals listed in the amended complaint as being laid off 30 September, we shall leave to compliance the formulation of a more complete listing " In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the '1986 amendment to 26 U.S C § 6621 ) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 1. Cease and desist from (a) Laying off or causing the, layoff of drivers be- cause they have filed grievances, or helped other employees in the filing of grievances, or have en-' gaged in ,union activities. (b) Failing to offer employment or the opportu- nity to transfer employment to employees because of their union activities or because they have filed grievances or aided ' employees in the filing: of grievances. - (c) In any like or related manner interfering with, restraining, or coercing , employees in the ex- ercise of the rights guaranteed them by Section, 7 of the Act. 2. Take the following affirmative,, action neces- sary to effectuate the policies of the Act. (a) Offer employee Melvin Packer immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously - enjoyed, and make him whole for any loss of earnings and other bene- fits suffered ' as a'result of the discrimination against him, in the manner set forth in footnotes 9 and 13 of the judge's decision. (b) Make whole the following drivers for any loss of pay and benefits that they suffered by reason of Emeryville's having caused their, layoff, with interest: Dennis Baker Lonnie Bemis Charles Bronson, Steve Caltagirone Donald Disko Charles Gerson Tom Joyce Guy ;McCool David, Miller William Oliver Melvin Packer Wallie Rohrer David Schism Robert Stahura James Tomcho Tom Writt Floyd Baldwin' Terry Begley David ,Brown Tom. Chapot Anthony Elkins Gary Hussey , Lewis Linhart Donald Miller Harry Mulder, John O'Sche Harold Parks Mark Ross Shane Schandeimeier John Stromberg Gary Vuchinich (c) Make whole the drivers laid off 30 September 1981 for any loss of pay and benefits that they suf- fered by reason of Emeryville's having caused their layoff, with interest. (d) Remove from its files any reference to the discriminatory layoff of drivers on 14 and 30 Sep - tember 1981 and notify each of these drivers in writing that this has been done and that evidence of these layoffs will not be used against them in any way. EMERYVILLE TRUCKING (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Warrendale, Pennsylvania terminal copies of the attached notice marked "Appen- dix."12 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places - including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 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 Nation- al 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 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 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. 1069 WE WILL NOT lay off or cause- the layoff of em- ployees who file grievances, or who help other em- ployees file grievances, or who engage in union ac- tivities. WE WILL NOT refuse to employ or refuse to transfer employees who' engage in union activities. 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 Melvin Packer immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL pay backpay with interest to the fol- lowing drivers whose layoffs we caused by cancel- ing truck leases with Helms Express: Dennis Baker Lonnie Bemis Charles Bronson Steve Caltagirone Donald Disko Charles Gerson Tom Joyce Guy McCool David Miller William Oliver Melvin Packer - Wallie Rohrer` David Schirm Robert 'Stahura James Tomcho Tom Writt Floyd Baldwin Terry Begley David Brown Tom Chapot Anthony Elkins Gary Hussey Lewis Linhart Donald Miller Harry Mulder John O'Sche Harold Parks Mark Ross Shane Schandeimeier John Stromberg Gary Vuchinich WE WILL pay backpay with interest to the driv- ers whose layoffs were caused by the cancellation of truck leases with Helms Express 30 September 1981. WE WILL remove from our files any reference to the discriminatory layoff of drivers 14 and 30 Sep- tember 1981, and WE WILL notify each of these drivers that this has been done and that evidence of these unlawful layoffs will not be used for future personnel action against them. EMERYVILLE TRUCKING, INC.