B. C. Lawson Drayage, Inc.

810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. C. Lawson Drayage, Inc. and James Davidson. Cases 20-CA-22453 and 20-CA-22632 September 25, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On March 14, 1990, Administrative Law Judge George Christensen issued the attached decision The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order as modified and set forth in full below ORDER The National Labor Relations Board orders that the Respondent, B C Lawson Drayage, Inc , San Francisco, California, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Issuing warnings to employees for engaging in union or protected concerted activities or for filing and causing to be processed charges with the National Labor Relations Board alleging that we have violated the National Labor Relations Act or grievances alleging that we have violated our con- tract with Local 85 of the International Brother- 1 The judge found, and we agree, that the Respondent did not violate Sec 8(aX3) when it suspended and discharged James Davidson, the union steward, for failing to report to the dispatcher pnor to clocking out, as required by the Respondent's rules According to Davidson, he refused to abide by the rule because he felt it constituted a shift change which, under the collective-bargaining agreement, required written notice to the Union pnor to implementation The Union, however, refused to process a grievance pursuing Davidson's personal interpretation of the contract Davidson persisted in defying management's lawful order that he report to the dispatcher even after receiving the rule in writing and after receiv- ing the April 7 written warning nonce Under these circumstances, Da- vidson's adamant, recurring refusal to check in with the dispatcher con- stituted Insubordination, thus causing him to lose the protection Sec 7 otherwise could have provided Carohna Freight Carriers, 295 NLRB 1080 (1989) Additionally, we adopt the judge's finding to which the Respondent did not except, that the Respondent violated Sec 8(a)(I) of the Act by issuing the October and December warning notices to Davidson and asking him for verification of two absences We also find, in agreement with the General Counsel's exceptions, that these actions also violated Sec 8(a)(3) and (4) Indeed, the judge in his conclusion regarding the De- cember warning noted that Davidson was singled out "In continued retal- iation for his engagement in the union or concerted activities protected by the Act of filing and processing his charge and grievance" Finally, we correct the judge's inadvertent reference to a December 18 disciplining of Davidson The December warning for failing to report to the dispatcher was Issued on December 14, 1988 hood of Teamsters or any other labor organization covenng our employees' wages, hours, or working conditions (b) Requiring employees to submit proof sup- porting their reasons for absenting themselves from work because they filed charges with the National Labor Relations Board or grievances (c) In any like or related manner interfering with, restraining, or coercing employees m 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) Post at its facilities in San Francisco, Califor- nia, copies of the attached notice marked "Appen- dix "2 Copies of the notice, on forms provided by the Regional Director for Region 20, 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 (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 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 WE WILL NOT issue warnings to our employees for engaging in union or protected concerted ac- tivities or for filing and causing to be processed charges with the National Labor Relations Board alleging that we have violated the National Labor Relations Act or grievances alleging that we have violated our contract with Local 85 of the Interna- tional Brotherhood of Teamsters or any other labor organization covering our employees' wages, hours, or working conditions 299 NLRB No 130 B C LAWSON DRAYAGE 811 WE WILL NOT require our employees to submit proof supportmg their reasons for absenting them- selves from work because they filed charges with the National Labor Relations Board or grievances 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 B C LAWSON DRAYAGE, INC Karen Clopton, Esq , for the General Counsel Witham Gore, Esq (Mullen & Fikppi), of San Francisco, California, for the Respondent DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge On November 16, 1989, 1 I conducted a hearing at San Francisco, California, to try issues raised by a consolidat- ed complaint issues by Region 20 of the National Labor Relations Board (Board) on May 26 based on charges and amended charges filed by James Davidson (David- son) on January 24, February 15, April 4, and May 9 The complaint alleged and B C Lawson Drayage, Inc (Employer) admitted for a period prior to Septem- ber 1988 Employer reduced Davidson's overtime oppor- tunites, Employer issued disciplinary warning notices to Davidson on October 19, 1988, December 14, 1988, March 14 an April 7, Employer directed Davidson to provide proof of the reasons he gave for absenting him- self from work on October 2, 1988 and January 31, Em- ployer suspended Davidson on April 28, and Employer discharged Davidson on May 9 It was undisputed Davidson filed an unfair labor prac- tice charge against Employer in September 1988 over Employer's alleged failure to bargain with Local 85 of the International Brotherhood of Teamsters (Union) for a successor to an expired contract between the Union and Employer covering the wages, hours, and working con- ditions of Davidson and other drivers employed by Em- ployer and that Davidson filed a grievance against Em- ployer in October 1988 over Employer's reduction of his overtime opportunities Employer denied, however, it reduced Davidson's overtime opportunities, issued disciplinary warning no- tices to Davidson, directed Davidson to provide proof of his reasons for absenting himself from work, suspended Davidson, and discharged Davidson because he support- ed or assisted the Union or engaged in other concerted activities protected by the National Labor Relations Act (Act) and thereby violated the Act 2 ' Read 1989 after further date references omitting the year 2 Counsel for the General Counsel (GC) filed a posthearmg motion to withdraw those portions of the complaint alleging by reducing David- son's overtime opportunities Employer violated the Act The motion is granted and those allegations shall not be considered hereafter The issues are whether Employer took the remammg, admitted actions against Davidson because he supported or assisted the Union or engaged in other concerted ac- tivities protected by the Act and, if so, whether it would have taken one or more of those actions irrespective of Davidson's engagement therein Counsel were afforded full opportunity to adduce evi- dence, examine and cross-examine witnesses, argue, and file briefs Both filed briefs Based on my review of the entire record, 3 observation of the witnesses, perusal of the briefs and research, I enter the following FINDINGS OF FACT4 I JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at all pertinent tunes EMployer was an employer en- gaged m commerce in a business affecting commerce and Union was a labor organization within the meaning of Section 2 of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Facts 1 Background For a considerable tune Employer has been engaged in the business of loading, transporting, and unloading heavy machinery, equipment, and materials Employer operates out of a warehouse housing offices, has a yard, owns a fleet of trucks and equipment necessary to con- duct its business, and employs approximately 22 driver/movers The wages, hours, and working condi- tions of those driver/movers were covered by a succes- sion of contracts between Employer and Union Davidson was hired by Employer as a driver/mover August 1976 and became Union's shop steward in 1978, continuously holding those positions until his May dis- charge 2 The September 1988 unfair labor practice charge Noting by September 1988 Employer and Union had not commenced negotiations for a successor to the con- tract which expired July 1, 1988, Davidson filed an unfair labor practice charge against Employer with the Board alleging Employer was violatmg Section 8(a)(5) of the Act by failing to negotiate a successor contract Union and Employer began bargaining shortly thereafter and reached agreement on the terms for a successor con- tract retroactive to July 1, 1988, and extending through December 31, 1991 Among other changes from the prior contract negotiated by the parties was a change in 3 The General Counsel's posthearmg motion to change $184 at line 24, p 82 of the transcript to 184 hours and to change $200 at L 1, p 83 of the transcnpt to 200 hours is granted 4 while every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based upon my exami- nation of the entire record, my observation of the witnesses' demeanor while testifying, and my evaluation of the reliability of their testimony, therefore any testimony in the record which is inconsistent with my find- ings is discredited 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the starting time of the day shift from 8 a m to flexible starting times for day-shift employees beginning anytime between 5 and 8 a m with overtime commencing after the completion of 8 hours of work After bargaining on the successor contract between Employer and Union started, Davidson withdrew his unfair labor practice charge 3 The October 1988 grievance/arbitration On October 4, 1988, Union processed a grievance on Davidson's behalf against Employer alleging Employer violated the employer-union contract by denying him 184 hours in overtime opportunities over a period begin- ning prior to September 1988 At a subsequent hearing before the joint arbitration board established under the union-employer contract the dispute was compromised by Employer's agreement to pay 30 hours of overtime pay to Davidson 4 The October 1988 discipline Davidson was employed on the day shift with a normal starting time of 8 a m During his shift on October 18, 1988, George Lawson (G Lawson)5 assigned three tasks to Davidson, includ- ing unloading angle iron from a truck in the yard so the truck could be utilized the next day By the time David- son completed the other two assignments and looked for the truck containing the angle iron, he found the truck had been moved from the yard into the warehouse, ne- cessitating his moving several other vehicles to gain access to the truck containing the angle iron Noting his accomplishing the unloadmg would require working beyond the end of Ins shift, Davidson clocked out and went home without accomplishing the unloading 6 The next day G Lawson asked Davidson why he failed to unload the truck as instructed the previous day Davidson replied the truck was moved mside before he could accomplish the unloading so he assumed the job was over, smce he would have to go on overtime to do it G Lawson disagreed and issued Davidson a written disciplinary warning notice for failing to carry out an as- signed task, statmg as he handed Davidson the notice "you have created a lot of problems and this is tit for tat" Davidson contacted Union Business Representative John Estes and requested he process a grievance over Davidson's receipt of the disciplinary notice Estes re- fused the request, stating the Union did not grieve warn- ing notices, it only grieved lost time, pay, or jobs 5 The October 1988 verification requirement Davidson was absent from work due to illness on Oc- tober 21, 1988 On his return to work and explanation of the reason for his absence, Employer demanded he 5 The complaint alleged, the answer admitted, and I find at all relevant times G Lawson was an officer, supervisor, and agent of Employer acting on its behalf within the meaning of Sec 2 of the Act 6 Davidson claimed he could not work overtime without prior authon- zation He conceded, however, he made no attempt to secure such au- thorization supply medical verification he was ill on the date in question Davidson complied with the demand Davidson never was required to submit such verifica- tion for previous absences due to illness, nor was em- ployee Michael Vestneys (Vestneys) for any of his ab- sences due to illness 6 The December 14, 1988 discipline Several times prior to December 13, 1988, G Lawson and his brother Robert Lawson (R Lawson) advised Da- vidson it was Employer's practice to require each driver report to R Lawson, Employer's dispatcher, prior to clocking out and leaving Employer's premises each day so the driver could be notified of any changes or addi- tions for his work assignments the following day and re- quested Davidson so report Davidson ignored their advice and requests in the belief and opimon Employer lacked authority under the contract to require him to comply with the practice On December 13, 1988, G Lawson observed David- son leaving Employer's premises in his auto at approxi- mately 3 45 p m G Lawson approached R Lawson, asked if R Lawson authorized Davidson to quit work prior to the end of his workshift, and received a negative reply The two examined Davidson's timecard and noted Davidson entered 430 pm as his quitting time on the card (his worksluft ended at that time) On December 14, 1988, G Lawson gave Davidson a second disciplinary warning notice for failing to report to the dispatcher prior to quitting work and for leaving work prior to the end of his workshift Neither Davidson nor Vestneys was disciplined previ- ously for so failing nor was it established any other em- ployee was disciplined for such failure Davidson contacted Union Business Representative John Roche and requested he process a grievance over Davidson's receipt of the notice Roche refused on the same grounds advanced by Estes 7 The January 31 verification requirement On January 31 Davidson took the day off from work to visit the Board's Region 20 office to discuss his Sep- tember 1988 charge against Employer Employer again required he produce proof he went to the Board's offices and he complied Vestneys never was required to produce proof of the legitimacy of his absences on personal business 8 The March 14 discipline On March 10 Davidson was instructed to park one of Employer's vehicles in the warehouse While maneuver- ing the vehicle inside the warehouse, Davidson backed into another vehicle, damaging it On March 14 G Lawson issues a third disciplinary warning notice to Davidson, citing him for careless driv- ing on March 10 While another employee (Vestneys) was not disci- plined after his collision with another vehicle, it was not established Vestneys was driving negligently or caused any damage to the vehicle he was driving B C LAWSON DRAYAGE 813 9 The April 7 discipline On March 31, G Lawson delivered to Davidson a three-page document which, inter aim formally set forth as a rule Employer's practice of requiring each driver to report to the dispatcher at the end of each worksluft to ascertain if there was going to be any change or addition to his work assignments the following day, particularly any changes in his shift starting time 7 On April 6, G Lawson decided to hold a meeting of all the drivers at 7 a m the next day and instructed the dispatcher, R Lawson, to notify all the drivers of the meeting when they reported m at the end of their Apnl 6 work shifts and instruct them to attend Following his usual practice of ignoring the reporting requirement, Da- vidson clocked out and left Employer's premises at the end of his workshift on April 6 without contacting R Lawson, was unaware of the scheduled, mandatory meeting and failed to attend G Lawson issued Davidson a fourth disciplinary warning notice to Davidson for flulmg to comply with the dispatcher reporting rule on April 6 and failing to attend the April 7 meeting 10 The April 28 suspension On April 24, Davidson again clocked out and left Em- ployer's premises without checking with the dispatcher at the end of his workshift On April 25, G Lawson asked Davidson why he agam failed to comply with the dispatcher reporting rule at the completion of his workshift the previous day Da- vidson replied the rule violated the union-employer con- tract and he did not have to comply with it 8 G Lawson rejected Davidson's contention° and di- rected he comply with the rule On April 25, 26, and 27 Davidson persisted in his re- fusal to check with the dispatcher at the end of his workshifts those days On April 28, G Lawson gave Davidson a 1-week sus- pension without pay for refusing to comply with his di- rections that Davidson observe and follow the rule 10 11 The May 9 discharge Davidson returned to work from his suspension on May 8 At the end of his workshift that day, he again failed to comply with G Lawson's directions and the rule, leaving Employer's premises at the end of his work- shift without contacting the dispatcher 11 ' As noted heretofore, one of the contract changes was an authonza- non for flexible starting times between 5 and 8 a m * Davidson maintained the major purpose of the rule—to notify drivers of possible changes in their shift starting time—constituted a shift change, which required wntten notice to Union prior to implementation to art XXII of the employer-umon contract 9 Employer contends the provision relates to reassignments to another shift, i e, from the day to the swing shift, or the like 1° According to Vestneys, seeing Employer was determined to enforce the rule, the drivers, other than Davidson, observed it ii Davidson conceded he at all times failed and refused to comply with instructions by employer management he comply with the practice (prior to publication of the rule) and the rule that all drivers report to the dispatcher at the end of each worlcsluft 12 The contract and the parties' interpretation In article XXII of the 1988-1991 union-employer con- tract, Union recognized Employer's nght "to establish such reasonable Company and work rules as he deems necessary, provided that such rules are not in conflict with the terms and provisions of this agreement," that "Actions taken under such rules may be made the sub- ject of a grievance," that "All past practices prior to the date of the agreement shall remain in effect," and that "Any dispute (with respect to the application of past practice) will be subject to the grievance procedure" The contract also permits Employer to suspend or dis- charge a covered employee for cause, provided Employ- er, has issued at least one warning notice to the suspend- ed or discharged employee pnor to the suspension or dis- charge for the conduct which led to the warning notice and the suspension or discharge, and further provides any warning notices issued are valid for 6 months fol- lowing their issuance The contract also authorizes the Employer to discipline the union shop steward in the event he takes actions not authorized by the Union The Union never has questioned or gneved Employ- er's practice and implementation of its written rule that Employer's employees covered by the contract report to Employer's dispatcher each day at the end of their work shift 12 13 The suspension/discharge grievance and arbitration A grievance was filed by the Union over Davidson's suspension and discharge On July 7 Arbitrator Don Wollett dismissed the grievance because of Davidson's failure to utilize the grievance/arbitration procedures of the employer-union contract to challenge the validity of the dispatcher reporting rule rather than taking it upon himself to defy it 14 Analysis a The October 19, 1988 discipline It is undisputed Davidson failed to carry out G Law- son's instructions to unload a truck on October 18, 1988, and was advised the discipline was assessed for that fail- ure That discipline, however, closely followed Davidson's successful pursuit of his September charge (which result- ed in bargaining and a new contract benefiting Davidson and the other driver/movers) and October grievance (which resulted in Davidson's receipt of 30 hours of overtime pay) and its issuance was accompanied by G Lawson's statement to Davidson the "problems" he had caused (the charge and the grievance) prompted the dis- cipline—thus were assessed for Ins engagement in union or concerted activities protected under the Act—and I so find and conclude 72 To the contrary, Umon Representative Estes told Davidson it was up to Davidson to decide whether or not to comply with G Lawson's order to obey the rule 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b The October 22, 1988 and January 31 verifications Similarly, I find and conclude by requiring Davidson to produce verification of his October 21, 1988 and Janu- ary 31 absences, Employer was inflicting retribution on Davidson for his militant advancement of his interests and those of his fellow employees represented by him as their job steward, Davidson never was required to produce proof of his illness on absences previous to Oc- tober 21 attributed to that cause and Vestneys never was required to produce proof of any of his absences attrib- uted to illness or attendance to private business matters, so it is reasonable to find and conclude Davidson was singled out and required to verify his absences because of his union or other concerted activities protected by the Act, and I so find and conclude c The December 18, 1988 discipline While the evidence established prior to March 1989 (when Employer issues a written rule codifying its prac- tice of requesting driver/movers Employer requested Davidson and other driver/movers to report to the dis- patcher each day at the end of their workshifts and before leaving Employer's premises), it was also estab- lished (by the testimony of Davidson and Vestneys) the dnvers were never disciplined prior to the December 18, 1988 discipline of Davidson for failure to follow the practice In view of the timing of this discipline in rela- tion to Davidson's charge and grievance filings and proc- essing and the fact no other drivers were disciplined for their failure to report, I find and conclude singling out Davidson at that time for such discipline was in contin- ued retaliation for his engagement in the union or con- certed activities protected by the Act of filing and proc- essing his charge and grievance d The March 14 discipline It was undisputed Davidson's negligent driving caused March 10 damage to Employer's vehicle The incident was remote in time from the dates Davidson filed and processed his charge and grievance against Employer, it was not demonstrated Davidson was singled out for dis- cipline for negligent driving, so I find and conclude the General Counsel failed to establish by sufficient proof the March 14 discipline was levied against Davidson by Employer because of his union or other concerted activi- ties protected by the Act e The April 7, April 28, and May 9 disciplines On March 31 Employer issued a formal, written rule making it a condition of employment that its driver!- movers report to the dispatcher each day on conclusion of their worlcshifts to learn of possible additions or changes in their work assignments the following day Davidson was personally furnished with a copy of the rule by G Lawson Following that issuance, the rule was enforced and Davidson was issued a written disciplinary warning notice on April 7 after his continuous refusal to comply with the rule, despite admonitions to comply, a suspen- sion on April 28 after his continued refusal to comply following demands he do so, and a discharge on May 9 when he persisted in his defiance of the rule It is undisputed the driver/movers other than David- son, seeing Employer was determined to enforce the rule, complied therewith Presuming Davidson had a good-faith belief the rule was unenforceable and that he defied its enforcement to secure a ruling by an independent source as to whether the rule was in conflict with a provision of the employ- er-union contract, ' 3 and that such defiance constituted union or concerted activity protected by the Act," I nevertheless find and conclude, in accord with the teach- ings of Wright Line," Employer would have disciplined Davidson for his continued defiance of its orders and di- rections, irrespective of Davidson's beliefs and motives therefor, and irrespective of his earlier unfair labor prac- tice and grievance filings and processing 15 Conclusions On the basis of the foregoing, I conclude Employer violated Section 8(a)(1) of the Act by its October 19 and 22, December 18, 1988, and January 31 actions described above and that Employer did not violate the Act by its April 7 and 28 and May 9 actions described above CONCLUSIONS OF LAW 1 At all pertinent times Employer was an employer engaged in commerce and in a business affecting com- merce and Union was a labor organization within the meaning of Section 2 of the Act 2 At all pertinent times G Lawson and R Lawson were supervisors and agents of Employer acting on its behalf within the meaning of Section 2 of the Act 3 Employer violated Section 8(a)(1) of the Act by its October 19 and 22, December 18, 1988, and January 31 actions described above 4 Employer did not otherwise violate the Act 5 The unfair labor practices committed by Employer affected interstate commerce as defined in the Act THE REMEDY Having found Employer engaged in unfair labor prac- tices, I recommend Employer be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act [Recommended Order omitted from publication ] 13 It was clear the Union was not going to test the validity of the rule through the contract's grievance/arbitration procedure, as evidenced by Estes' advice to Davidson he was on his own if he persisted in his refusal to comply with the rule and the Union's failure to file and process a grievance at Davidson's urging seeking such a ruling and that the Union would be forced to file a grievance on Davidson's behalf following his loss of pay and the loss of his job due to his continued refusal to comply with the rule ' 4 I e, an attempt to enforce the shift change provision of the employ- er-union contract ' 5 251 NLRB 1083 (1980)