ABF Freight System

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 585 (N.L.R.B. 1991)

585
304 NLRB No. 75
ABF FREIGHT SYSTEM
1 The Respondent’s June 25, 1990 motion to strike Charging Party Manso’s
cross-exceptions and brief is denied as lacking in merit. The Board exercised
appropriate discretion in response to the Charging Party’s timely requests for
extensions of time to file his papers. Further, assuming the truth of the Re-
spondent’s allegation that it did not receive notice of the April 26, 1990 exten-
sion request, it is clear that the Respondent did receive the Charging Party’s
May 18, 1990 request for an extension of time, and it has made no specific
showing of prejudice by the Charging Party’s failure to provide notice of its
initial request.
The Respondent’s July 16, 1990 supplemental motion to strike the Charging
Party’s cross-exceptions and brief, alleging their lack of compliance with the
Board’s Rules and Regulations, is also denied. Although not conforming ex-
actly to the requirements of Sec. 102.46, the cross-exceptions and brief are not
so deficient as to warrant striking.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. 3All dates in this section of our decision are in 1988 unless otherwise noted.
ABF Freight System, Inc. and Michael Manso and
Andy Trujillo ABF Freight System, Inc. and
Michael Manso. Cases 28–CA–9500 and 28–CA–
9916
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 21, 1990, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Parties filed a brief in reply to the Respond-
ent’s exceptions, Charging Party Michael Manso filed
cross-exceptions and a supporting brief, and the Re-
spondent filed a brief answering the cross-exceptions.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions only to the extent consistent with this De-
cision and Order.
In Case 28–CA–9500 (Case 9500) of this consoli-
dated proceeding, the judge found that in June 1988
the Respondent threatened six of its casual dock-
workers with discharge if they refused to waive rights
under the collective-bargaining agreement, and then
discharged and subsequently refused to reinstate them
because of their refusals, in violation of Section 8(a)(3)
and (1) of the Act. In Case 28–CA–9916 (Case 9916),
the judge found that in June 1989, following reinstate-
ment of the dockworkers pursuant to a grievance/ar-
bitration award, the Respondent violated Section
8(a)(4), (3), and (1) by discharging one of them, Mi-
chael Manso, because he had filed an unfair labor
practice charge and had taken part in the dockworkers’
contractual grievance. Manso was subsequently rein-
stated again pursuant to the grievance/arbitration pro-
cedure, and in August 1989 he was again discharged.
The General Counsel alleged that this also violated
Section 8(a)(4), (3), and (1). The judge, however,
found that Manso was discharged for cause, i.e., dis-
honesty.
On our careful review of the record, we have deter-
mined that there is insufficient evidence to support the
General Counsel’s allegations and the judge’s unfair
labor practice conclusions in Case 9500 and, con-
sequently, we dismiss that entire portion of the com-
plaint. In Case 9916, we affirm the judge’s finding that
Manso was unlawfully discharged in June 1989, but
we reverse the judge’s dismissal concerning Manso’s
August 1989 discharge, concluding that it also was in
violation of Section 8(a)(4), (3), and (1). The facts set
forth below are drawn from the judge’s relevant find-
ings of fact, including his credibility resolutions, and
from facts undisputed in the record. As we have indi-
cated above, we affirm the judge’s findings only to the
extent they are consistent with this decision.
I. CASE 9500
A. Facts
The Respondent’s dockworkers at its Albuquerque,
New Mexico trucking terminal, both those on the regu-
lar seniority list and those employed on a casual basis,
are covered by the Western States Area Agreement for
local cartage workers and dockworkers, a supplement
to the Teamsters’ National Master Freight Agreement.
Prior to spring 1988,3 casual dockworkers under the
supplemental agreement were afforded sharply limited
rights; in particular, there were no seniority provisions
covering casuals with respect to work calls and pro-
gression to regular dockworker status. Thus, the Re-
spondent chose freely among the casuals to satisfy its
fluctuating dock work requirements and, when a regu-
lar dockworker position opened up, the Respondent
was not obligated to fill it from among the casuals.
The new supplemental agreement concluded in April
changed the employment practices concerning casuals.
Article 60, section 4(e) (sec. 4(e)) of the supplemental
agreement provided in relevant part:
(e) Any casual . . . used by the Employer for
seventy (70) eight (8) hour shifts within six (6)
consecutive months, shall be automatically proc-
essed by the Employer to determine whether the
casual meets the Employer’s hiring standards and
qualifications. Such processing shall be completed
within thirty (30) calendar days of the last day of
the seventieth (70) shift.
Automatic processing may be waived with a
written agreement between the individual, the
Local Union, and the Employer.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After such processing, if the casual employee
meets the Employer’s hiring standards and quali-
fications for regular employment, he/she shall be
placed on a preferential hiring list for future regu-
lar employment and shall be selected for regular
employment in the order in which he/she was
placed on the preferential hiring list and he/she
shall not be subject to any probationary period.
His/her seniority date will be the date he/she is
put on the seniority list. Failure of the employer
to add casuals from the preferential hiring list in
this order shall subject the Employer to runaround
claim.
Casual employees who are placed on the pref-
erential hiring list and who meet the Employer’s
hiring standards and qualifications for regular em-
ployment shall have regular monthly health and
welfare contributions paid by the Employer on
their behalf as set forth in Article 52, Section 1,
Health and Welfare, the month following the
month such casual first becomes eligible for regu-
lar employment. Such contributions shall continue
to be paid by the Employer each month thereafter
provided the preferential casual satisfies the forty
(40) hour eligibility requirement provided in Arti-
cle 52. Preferential casuals who qualify for regu-
lar health and welfare contributions shall also be
eligible for regular health and welfare benefits
each month a regular contribution is paid by the
Employer on their behalf.
If the casual employee does not meet the Em-
ployer’s hiring standards and qualifications or re-
fuses to accept regular employment while on the
preferential hiring list, the casual and the Local
Union shall be so notified in writing and his/her
use as a casual will be discontinued.
Casual employees on the preferential hiring list
shall be offered available extra work in seniority
order by classification, as among themselves. The
Employer shall not be obligated to make more
than one (1) call per casual per day and such call
need not be verified. However, abuse of this pro-
cedure will be subject to the grievance procedure.
Further, casuals on the preferential hiring list shall
have access to the grievance procedure in the
event of disciplinary action.
When an Employer utilizes eight (8) hour sup-
plemental casuals thirty (30) or more days in any
two (2) consecutive calendar months, the Em-
ployer shall add one (1) regular employee from
the preferential hiring list.
Thus, the new procedure applied preference by senior-
ity as to casual work opportunities and regular employ-
ment for those casuals placed on the ‘‘preferential hir-
ing list.’’
Soon after the new agreement was reached, a dis-
pute developed between the Respondent’s representa-
tives at the Albuquerque terminal and representatives
of Teamsters Local 492, bargaining agent for the Re-
spondent’s dockworkers, concerning the qualifications
for placement on the preferential list pursuant to the
terms of section 4(e). The Respondent interpreted the
relevant provisions as establishing a time pre-
requisite—70 work shifts within 6 consecutive
months—which, if satisfied, set in motion an ‘‘auto-
matic processing’’ of the casual to determine if he met
the Respondent’s employment qualifications for a reg-
ular dockworker position. If the casual met those quali-
fications, he would be placed on the preferential list.
If not, according to the Respondent’s reading, the con-
tract required that he be terminated. The Union inter-
preted section 4(e) to mean that all casuals meeting the
time requirements alone must automatically be placed
on the preferential list; once on the list, it would be
the Respondent’s obligation to train all of them to
meet regular dockworker qualifications in preparation
for future employment opportunities. Fueling this dis-
agreement was the understanding of both the Respond-
ent and the Union that most of the casual dockworkers
were not qualified to drive tractor-trailer rigs—a re-
quirement for regular dockworker employment with
the Respondent for about 10 years. At some point prior
to June 20, the Respondent offered the Union a com-
promise position for application of the contract lan-
guage: the Respondent would place casuals on the pre-
ferred list if they satisfied the time requirements, but
would be under no duty to train them in order to meet
the requisite qualifications until a regular dockworker
position became available. The Union did not accept
this offer.
Under the new agreement, May 29 was the starting
date for initial application of the ‘‘automatic process-
ing’’ provisions of section 4(e). Accordingly, under the
Respondent’s interpretation, within 30 days from that
date, all casuals meeting the time requirements had ei-
ther to be placed on the preferential list, and thus con-
sidered qualified for regular employment, or be termi-
nated. The Respondent’s review of its personnel files
established that 12 casuals met the time requirements
and that none of them was driver qualified.
On June 20, the Respondent forwarded the following
letter, signed by the terminal manager, to the 12 cas-
uals:
In accordance with Article 60, Section 4(e) of the
Western States Area Pickup and Delivery, Local
Cartage and Dockworker Supplemental Agree-
ment, this is to advise you that you do not meet
ABF’s hiring standards and qualifications for reg-
ular employment. Therefore, your name cannot be
added to a preferential hiring list as referred to in
587ABF FREIGHT SYSTEM
4 The Respondent’s waiver offer was belated in the circumstances, as sec.
4(e) indicates that it should be offered prior to automatic processing. Although
the record offers no explanation for this, it is established, in any event, that
the Union agreed to the late offer.
5 We affirm the judge’s conclusion that deferral to the award of April 6,
1989, is inappropriate in Case 9500, but we find it necessary to rely only on
the ground that there was inadequate consideration of the unfair labor practice
issues pursuant to Olin Corp., 268 NLRB 573 (1984). The record establishes
that no evidence pertinent to the 8(a)(1) and (3) allegations, e.g., Herrington’s
alleged unlawful statements to the casuals, was placed in the record of the
contractual proceeding, and thus the panel which determined the award was
presented only with contractual issues and not with facts relevant to resolving
the alleged unfair labor practices. See, e.g., M & G Convoy, 287 NLRB 1140,
1145 (1988); Dick Gidron Cadillac, 287 NLRB 1107, 1111 (1988). For the
same reasons, we find no merit in the Respondent’s motion for reconsideration
of the Board’s denial of the Respondent’s prehearing summary judgment mo-
tion seeking deferral to the award.
Regarding our colleague’s concurring opinion, we find it noteworthy that
Case 9500’s complaint allegations charged unlawful discrimination under Sec.
8(a)(3) and unlawful interference with protected rights under Sec. 8(a)(1). Al-
though our final disposition of these issues is premised on the finding that the
Respondent acted solely on the basis of a reasonable and arguably correct in-
terpretation of the relevant contractual provision, the pivotal 8(a)(3) and (1)
issues in the complaint involved whether the Respondent’s conduct was other-
wise unlawfully or discriminatorily motivated. This question of motive, inde-
pendent of any contract interpretation question, is most starkly revealed in the
8(a)(1) allegation that Respondent’s Herrington told employees they were
being discharged without regard to the terms of the collective-bargaining
agreement, an allegation which directly affected the 8(a)(3) issue. In view of
this, and the absence of any indication that the arbitration panel was presented
with any factual issues raised by the complaint allegations, we find no basis
for concluding that there was adequate arbitral consideration of the statutory
issues before us.
6 No 8(a)(5) allegation was made in the complaint, and the Union is not a
party to this proceeding.
the aforementioned Article and your use as a cas-
ual is being discontinued effective immediately.
In addition, at about the same time, the Respondent’s
operations manager, Robert Herrington, had discus-
sions with several of these casuals to explain their dis-
charges. It is apparent from the record that these con-
versations followed the same basic pattern, the essen-
tial focus being the meaning of the June 20 discharge
letters, the casuals’ lack of driver qualifications, the
Respondent’s view of its contractual duties under sec-
tion 4(e), and the Union’s disputed interpretation. In
some of these discussions, and within the context
above, Herrington said, to one or another of the dis-
charged casuals, that the Respondent did not want to
let the casuals go, that it was concerned about the pos-
sibility of putting nondriver-qualified casuals on the
preferential list, that the Respondent was not going to
have a preferential list and this was the reason for the
layoffs, that their terminations were the Union’s fault,
that the Union was not going to tell the Respondent
whom it would hire, and that the Respondent did not
want the preferential list and preferred the previous
process for hiring regular dockworkers.
On June 21, the Union filed a contractual grievance
on behalf of all the discharged casuals. The formal
grievance procedure provided for a three-step process
of hearings and review before joint panels of union
and employer representatives. At about the time of the
first step of the procedure, on June 29, Herrington of-
fered the discharged employees reinstatement if they
would agree to the waiver procedure set forth in the
second paragraph of section 4(e). In the Respondent’s
interpretation, although the waiver of automatic proc-
essing was a waiver of the right to be considered for
placement on the preferential list, it was also an alter-
native to the harsh edge of section 4(e)—discharge if
the ‘‘processed’’ casual dockworker did not meet regu-
lar employment qualifications. Eventually, 5 of the 12
casuals, with the apparent concurrence of the Union,
agreed to the contractual waivers and returned to
work.4 In addition, the Respondent determined on a
further review of one casual’s personnel record that he
was in fact driver qualified as a result of previous em-
ployment, and it placed him on its regular dockworker
seniority list. The remaining six—the alleged
discriminatees in this case—did not agree to the waiv-
ers.
The first-step grievance panel deadlocked on the dis-
pute. Soon thereafter, the Respondent renewed its com-
promise offer: immediate placement of all time-quali-
fied casuals on the preferential list, but no driver train-
ing obligation until a regular dockworker position be-
came available. The Union again was unwilling to ac-
cept this. The second-step grievance panel also dead-
locked on the contractual question. On April 6, 1989,
the third-step panel resolved the dispute by nullifying
the contractual waivers that five of the grievants had
signed, denying all monetary claims, and adopting, in
essence, the Respondent’s previous compromise offer.5
Accordingly, the Respondent, inter alia, offered rein-
statement to the alleged discriminatees and placement
on the preferential list effective April 24, 1989, and an
opportunity for qualifying driver training when regular
dockworker openings occurred.
B. Discussion
Case 9500’s complaint alleges that the Respondent
violated Section 8(a)(1) by Herrington’s statements to
casual employees on June 20 that they were being dis-
charged without regard to the terms of the collective-
bargaining agreement and that the Respondent would
not allow the Union to dictate whom the Respondent
would hire. The complaint further alleges that the Re-
spondent violated Section 8(a)(3) and (1) on June 20
by discharging the six alleged discriminatees in order
to prevent them from exercising their contractual rights
to be placed on the preferential list. Finally, the com-
plaint alleges that, about June 29, the Respondent vio-
lated Section 8(a)(3) and (1) by demanding that the six
casuals sign waivers of their contractual rights as a
condition of reinstatement, and by refusing to reinstate
them until April 1989 because they declined to sign
the proffered waivers.6
The judge, in conclusions at variance with the com-
plaint allegations and his own factual findings, deter-
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In his posthearing brief, the General Counsel, abandoning the specific
8(a)(3) and (1) complaint allegations, urged this unlawful waiver theory con-
cerning the Respondent’s June 20 conduct. 8 See fn. 7, supra.
mined that on June 20 Herrington told the alleged
discriminatees that they were being discharged because
they had refused to sign waivers of their contractual
rights to be placed on the preferential list, thus violat-
ing Section 8(a)(1), and that they were in fact dis-
charged in violation of Section 8(a)(3) and (1) because
they refused to sign such waivers.7 The judge further
found that on June 29 and thereafter, the Respondent
violated Section 8(a)(3) and (1) by refusing to reinstate
the casuals unless they signed waivers.
With respect to the judge’s 8(a)(1) finding, it is
clear from the record that on or about June 20 neither
Herrington nor any other agent of the Respondent told
the casuals that they were being discharged for refus-
ing to sign waivers of their contractual rights. The
matter of waivers, discussed below, did not arise until
June 29. Further, there is no other evidence concerning
Herrington’s discussions with the casuals on June 20
that establishes an 8(a)(1) violation, as alleged in the
complaint or otherwise. The context for his various
statements was the dispute between the Respondent
and the Union over the meaning of section 4(e), i.e.,
he was explaining the termination letters received by
the casuals in light of the Respondent’s view of its ob-
ligations under section 4(e)—a tenable view, as noted
below—and he was also rejecting the Union’s contrary
position. In these circumstances, Herrington’s state-
ment that the reason for the terminations was that the
Respondent was not going to have a preferential list
was as likely a reference to the fact that none of the
time-eligible casuals was driver qualified—thus provid-
ing no basis for a list—as it was an arguable inter-
ference with employees’ statutory rights. His state-
ments critical of the Union—that the Union would not
dictate hiring decisions to the Respondent, that the dis-
charges were the Union’s fault—and his expression of
dislike for the preferential hiring procedure, may be
reasonably taken as a response to the Union’s opposing
interpretation of section 4(e) and the ramifications of
the Union’s position, which, in the Respondent’s view,
amounted to a contractually unwarranted interference
in its training and hiring decisions with respect to jobs
that entailed driving tractor-trailer rigs. Any possible
inference that the hostility expressed by Herrington
was attributable to animus against employees for exer-
cising statutory rights is outweighed by Herrington’s
statements regarding the Respondent’s reluctance to let
the casuals go, the concern the Respondent felt at the
prospect of putting employees not qualified to drive on
a preferred list for regular dockworker employment,
and the Respondent’s obligation to comply with the
contract as it interpreted it. Accordingly, there is suffi-
cient ambiguity in Herrington’s statements for us to
conclude that the evidence does not establish a viola-
tion of Section 8(a)(1).
Further, regarding the specific complaint allegation
that the Respondent discharged the casuals in order to
prevent them from asserting contractual rights concern-
ing the preferential list, the General Counsel made no
evidentiary showing, and after the hearing did not con-
tend before the judge, that this was the Respondent’s
motive in discharging the casuals.8 More generally,
there is on this record a noticeable absence of any pro-
tected activity on the casual dockworkers’ part that
would provide a conceivable basis for finding that the
Respondent unlawfully terminated them on June 20.
As of that date, none had invoked any perceived right
under section 4(e) or other parts of the collective-bar-
gaining agreement, nor had any declined to sign the
waiver provided for in section 4(e). Further, there is no
other evidence that they had exercised rights protected
under the Act. More significant, with respect to the
Respondent’s motive, the evidence points plainly to the
fact that the Respondent’s conduct was driven by its
understanding of section 4(e). We find that the Re-
spondent’s perception of this contract language—spe-
cifically the obligation to discharge time-qualified cas-
ual dockworkers who did not meet the qualifications
and standards for regular dockworker employment—is
a nondiscriminatory, reasonable, and arguably correct
interpretation of the agreement. See, e.g., Texaco, Inc.,
285 NLRB 241, 246 (1987); see also Vesuvius Cru-
cible Co. v. NLRB, 668 F.2d 162 (3d Cir. 1981). Ac-
cordingly, the 8(a)(3) and (1) allegations concerning
the Respondent’s discharge of the alleged discrim-
inatees are without merit.
By June 29, the alleged discriminatees were engaged
in protected concerted activity—participation in a
grievance addressing both their discharges and an ap-
propriate rendition of their contractual rights concern-
ing the preferential list. See, e.g., NLRB v. City Dis-
posal Systems, 465 U.S. 822 (1984). At that time,
Herrington offered to reinstate them to their previous
casual employee status if they would agree to the
waiver procedure set forth in the second paragraph of
section 4(e).
Although there are situations in which an employer
may be found to have engaged in unlawful retaliation
against an employee because of his exercise of con-
tractual rights, such is not the case here. As in the case
of the alleged discriminatory conduct on June 20, we
find no evidence here that the Respondent’s conduct in
offering the contractual waiver procedure to the casuals
was unlawfully motivated, i.e., a matter of retaliation
for the employees’ engaging in protected activity.
Rather, it is apparent that the Respondent was moti-
vated by its interpretation of section 4(e)—specifically,
the provision of an alternative procedure that would
589ABF FREIGHT SYSTEM
9 All dates in this section of the decision are in 1989 unless otherwise noted.
10 At this point the Respondent had three dockworker classifications: those
on the regular seniority list, nonpreferential casuals, and preferential casuals.
11 In affirming this unlawful discharge, we rely particularly on the threaten-
ing statements made to Manso and the refusal of the Respondent’s supervisor
on June 19 to allow the ‘‘verifying’’ employee to redial Manso’s telephone
number, thereby bringing about Manso’s second ‘‘failure’’ to respond to a
work call, the purported grounds for his discharge.
We find it unnecessary to rely on the judge’s apparent finding that the na-
ture of the Respondent’s work call policy contributed to the unlawfulness of
Manso’s discharge on June 19. To the extent that the judge appeared to find
the call policy and related disciplinary matters discriminatory against the pref-
erential casual dockworkers as a class, we note the absence of any pertinent
complaint allegations and accordingly we decline to pass on the issue. See our
further discussion of the Respondent’s disciplinary policies concerning the
preferential casuals below.
12 Testimony and exhibits support the fact that other dockworkers were sub-
ject to a less stringent lateness policy, i.e., multiple latenesses resulted in
warning letters and then suspensions, at worst, not discharge.
We find no merit in the Respondent’s exception to the judge’s admission
of these exhibits. The judge correctly overruled the Respondent’s objection at
the hearing, finding that the documents at issue were relevant to the alleged
unlawful discharges of Manso.
exempt casual employees from the discharge mecha-
nism in section 4(e), and thus allow for their reinstate-
ment. Implicit in this view was that failure to opt for
the waiver alternative required that their terminations
pursuant to section 4(e) remain in effect. We find that
the Respondent’s waiver offer as a method for the dis-
charged casuals to return to their jobs was based on a
nondiscriminatory, reasonable, and arguably correct in-
terpretation of section 4(e). See, e.g., Texaco, supra.
With this motivation established, we conclude that the
Respondent’s waiver offer and its refusal to reinstate
the casuals in the absence of a signed waiver did not
violate the Act.
For the foregoing reasons, the unfair labor practice
allegations of Case 9500 are dismissed.
II. CASE 9916
Alleged discriminatee Michael Manso and another
discharged casual dockworker filed an unfair labor
practice charge on November 21, 1988, concerning the
terminations in Case 9500; they amended the charge
twice, on November 28 and December 8, 1988. Manso
also participated with the other discharged casuals in
the contractual grievance concerning their discharges
and their rights under section 4(e). As set forth above,
following resolution of that grievance, Manso and
other discharged casuals were offered placement on the
preferential list effective April 24, 1989.9
Soon thereafter, Manso returned to work, now a
‘‘preferential casual dockworker.’’10 As more fully de-
tailed in the judge’s decision, not long after his return,
three of the Respondent’s supervisory officials made
statements to Manso indicating that the Respondent
was seeking to retaliate against him because of his pro-
tected activity. On June 19, less than 2 months after
his return, Manso was discharged, ostensibly for a sec-
ond failure to respond to a work call—grounds for dis-
charge under a newly instituted disciplinary policy for
preferential casuals. He was subsequently reinstated
without backpay pursuant to the contractual grievance
procedure. We affirm the judge’s findings and conclu-
sions, fully set forth in his decision, that the super-
visors’ threatening statements and the Respondent’s
June 19 discharge of Manso violated Section 8(a)(4),
(3), and (1).11
On August 11, Manso was 4 minutes late for work,
and he received a disciplinary warning letter. This was
the first time Manso had been late for work. On Au-
gust 17, Manso was again late for work, this time by
almost an hour. As more fully set forth by the judge,
he told management officials, in essence, that his car
had broken down on the highway, and in the ensuing
scramble to get to work, he was stopped by the police
for speeding. The Respondent checked his story and
ascertained that it was largely a fabrication. By letter
dated August 21, Manso was discharged on grounds of
tardiness.
Operations Manager Ed Fultz, who signed the dis-
charge letter, made clear in his testimony that Manso
was not discharged because of his dishonesty; his lie
established only that he did not have a legitimate ex-
cuse for the August 17 lateness. Fultz testified that he
was discharged under a newly instituted tardiness pol-
icy for preferential casual dockworkers: two incidents
of lateness result in discharge.
With respect to the Respondent’s disciplinary poli-
cies and procedures in general, the Respondent’s cor-
porate vice president for industrial relations, Howard
Johnson, whose responsibility encompassed employee
disciplinary policies, testified that no disciplinary rules
were ever posted for employees and that there was no
uniform disciplinary policy covering dockworkers.
More specifically concerning the Albuquerque termi-
nal, Fultz testified that the lateness policy developed
for preferential casuals did not apply to regular dock-
workers or to nonpreferential casual dockworkers.12 He
also stated that a preferential casual’s tardiness had no
more or different effect on the operation of the termi-
nal than that of other dockworkers.
According to Fultz, when Manso was late on August
11, it was the first time a preferential casual—a classi-
fication that had been in existence only a few
months—had been tardy, and there was no specific
lateness policy for preferential casuals at that time. In
fact, when Manso inquired concerning the con-
sequences for further tardiness, Fultz told him that al-
though he should expect the worst, a policy had not
yet been determined. Then, after consultation with the
terminal manager and the corporate labor relations de-
partment, it was decided that preferential casuals
would be discharged if they incurred two latenesses;
thus, there would be a warning letter after the first tar-
diness, and discharge after the second, pursuant to the
minimum disciplinary procedures under the collective-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 We, of course, do not suggest that giving dishonest excuses for lateness
cannot be a legitimate ground for discharge or other disciplinary action. We
are simply seeking to determine whether the Respondent did discharge Manso
for this reason and would have done so even if he had not filed unfair labor
practice charges and grievances.
bargaining agreement. This reflected, according to
Fultz, a strict disciplinary attitude toward preferential
casuals as a general theme, because they constituted a
new job classification. This policy was decided when
the preferential list was established in April.
Fultz further testified that the new lateness policy
corresponded with a distinct disciplinary policy that
the Respondent had established previously for pref-
erential casuals concerning failure to respond to work
calls. In that matter, the Respondent had decided not
long after the preferential list was effected that the first
failure to respond to a work call would draw a warning
letter and the second would result in discharge. Fultz
noted that the earlier policy was implemented only
after the preferential casuals were given written notifi-
cation of the Respondent’s workshift starting times,
thus making clear when the preferential casuals must
be available. The record otherwise establishes that, fol-
lowing its implementation, several preferential casuals
were discharged under the ‘‘two-call’’ policy.
The judge concluded that because of Manso’s dis-
honesty concerning his explanation for being late on
August 17, the Respondent had discharged him for
cause and not in violation of the Act. This is a plainly
erroneous factual statement of the Respondent’s as-
serted reasons and we reverse it. Fultz’s testimony es-
tablishes that Manso’s false explanation meant that his
August 17 tardiness was not an excusable tardiness,
and so he was charged with a second lateness—suffi-
cient, in the Respondent’s view, for termination. The
Respondent provided no evidence that it had treated
Manso’s dishonesty in and of itself as an independent
basis for discharge or any other disciplinary action.13
Cf., e.g., Vilter Mfg. Corp., 271 NLRB 1544, 1546–
1547 (1984), in which the employer established that an
employee’s dishonesty was a basis under its policies
for refusing reinstatement regardless of the employee’s
protected activities.
In the circumstances of this case, the unlawful state-
ments by the Respondent’s supervisors threatening re-
taliation when Manso first returned to work as a pref-
erential casual and his unlawful discharge on June 19
provide strong evidence of the Respondent’s unlawful
motivation regarding Manso’s August 21 discharge.
Thus, just 2 months after his unlawful discharge for
grievance activity and filing an unfair labor practice
charge, the dischargee, having been reinstated through
the grievance procedure, is again discharged, assertedly
pursuant to a lateness policy which has just been insti-
tuted and of which Manso is the first violator. Further,
the evidence shows that the Respondent’s dockworkers
who are not on the preferential list and who, it is rea-
sonable to infer, perform work similar to that done by
preferential casuals, are treated less strictly concerning
tardiness than was Manso, in a work situation where
the lateness of a preferential casual has no more im-
pact on the operation of the Respondent’s facility than
that of the other dockworkers. In view of the above,
we find that the General Counsel has provided a suffi-
cient prima facie showing of an unlawful discrimina-
tory discharge under Wright Line, 251 NLRB 1083
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981).
The Respondent’s burden, in the face of this prima
facie case, was to show that it would have taken the
same action against Manso even if he had not been en-
gaged in activities protected by the Act. The essence
of its asserted defense is that Manso was treated
evenhandedly and nondiscriminatorily, pursuant to a
disciplinary framework that had previously been devel-
oped for the preferential casuals. According to Fultz,
a general decision was made at the time the pref-
erential list was put into effect to apply strict discipli-
nary measures with respect to the preferential casuals,
pursuant to no more than the minimum safeguards in
the collective-bargaining agreement, because it was a
new job classification. A work-call policy was imple-
mented pursuant to this view: preferential casuals were
issued warning letters the first time and discharged the
second time they failed to respond to a call. The Re-
spondent asserts that the lateness policy for preferential
casuals initiated in response to Manso’s tardiness, was
no more than a routine decision within a disciplinary
form already established. When Manso was discharged
for a second lateness, according to the Respondent, he
was treated similarly to other preferential casuals dis-
charged for a second failure-to-respond under the
work-call policy, and not differently than any other
preferential casual would have been treated for a sec-
ond lateness.
The Respondent’s disciplinary approach toward the
preferential casuals—strict discipline simply because
they constituted a new classification—and its lack of
uniform disciplinary policies and published rules appli-
cable to all dockworkers raise more questions than
they resolve in the context of a defense to an alleged
discriminatory discharge. However, we have found it
unnecessary to pass on the lawfulness of the Respond-
ent’s work-call policy and related disciplinary matters
as they affected the class of preferential casuals, see
footnote 11, supra. In any event, assuming, without
finding, the nondiscriminatory character of the Re-
spondent’s general disciplinary view and the work-call
policy for preferential casuals, and further assuming
arguendo the consequent legitimacy of the lateness
policy in itself, it is apparent that the Respondent’s
treatment of Manso under the lateness policy was not
consistent with its previous conduct within the discipli-
591ABF FREIGHT SYSTEM
14 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
nary framework for preferential casuals. Fultz testified
that preferential casuals accumulated failure-to-respond
incidents only after the work-call policy was imple-
mented; a prior failure-to-respond was not held against
them. Thus, this policy was applied prospectively, not
retroactively. Fultz testified that the lateness policy
was not determined until after Manso’s August 11 tar-
diness. He was subsequently discharged because of the
August 11 and 17 lateness incidents. However, only
the one on August 17 occurred after the policy was in-
stituted. In Manso’s situation, the lateness policy was
applied retroactively to include the August 11 lateness,
distinct from the Respondent’s application of the work-
call policy. Accordingly, even assuming the validity of
its disciplinary treatment of preferential casuals in gen-
eral, the Respondent has not established that Manso
was treated the same way that other preferential cas-
uals would have been treated in similar circumstances.
We conclude that the Respondent has failed to rebut
the General Counsel’s prima facie case, i.e., that
Manso’s discharge was unlawfully motivated. Taking
account of the General Counsel’s case, it is apparent,
and we find, that Manso’s tardiness on August 17 was
seized upon by the Respondent as a pretext to dis-
charge him again and for the same unlawful reasons it
discharged him on June 19. Manso’s August 21 dis-
charge violated Section 8(a)(4), (3), and (1), and we
will issue an order accordingly.
AMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(4), (3), and (1) of the Act, we shall order it to
cease and desist and to post an appropriate notice.
With respect to affirmative relief, we shall order that
the Respondent make Michael Manso whole for any
loss of earnings and other benefits suffered as a result
of his unlawful discharge on June 19, 1989, from that
date until the date of his subsequent reinstatement. We
shall further order the Respondent to offer Manso full
and immediate reinstatement to his job as a preferential
casual dockworker and to make him whole for any loss
of earnings and other benefits suffered as a result of
his unlawful discharge on August 21, 1989. Interest
will be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987), and
backpay will be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950).
ORDER
The National Labor Relations Board orders that the
Respondent, ABF Freight System, Inc., Albuquerque,
New Mexico, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they have filed charges under the Act or because they
have filed grievances under the provisions of a collec-
tive-bargaining agreement.
(b) Discharging employees or otherwise discriminat-
ing against them because they have filed charges under
the Act, or because they have engaged in union or
other protected, concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Michael Manso immediate and full rein-
statement to his former job or, it that job no longer ex-
ists, to a substantially equivalent position without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered due to the dis-
crimination against him, in the manner set forth in the
amended remedy section of this Decision.
(b) Remove from its files any reference to Michael
Manso’s unlawful discharges and notify him in writing
that this has been done and that the discharges will not
be used against him in any way.
(c) Preserve and, on request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
dues under the terms of this Order.
(d) Post at its Albuquerque, New Mexico facility
copies of the attached notice marked ‘‘Appendix.’’14
Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER CRACRAFT, concurring.
I agree with my colleagues’ decision in all respects
except that in Case 28–CA–9500 I would defer to the
arbitration award under the standards set forth in Olin
Corp., 268 NLRB 573 (1984).
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is no dispute that the arbitration proceeding
was fair and regular, and all parties had agreed to be
bound. The next question is whether the arbitration
panel adequately considered the unfair labor practice
issue. The Board will find that the arbitrator ade-
quately considered the unfair labor practice if (1) the
contractual issue is factually parallel to the unfair labor
practice issue, and (2) the arbitrator was presented gen-
erally with the facts relevant to resolving the unfair
labor practice. Olin, supra, 268 NLRB at 574.
I recognize that the precise 8(a)(1) and (3) allega-
tions of the complaint were not presented to the arbi-
tration panel, but I find that the contractual issue re-
solved by the panel was factually parallel to the unfair
labor practice issue. The contractual issue, as phrased
by the Union, was whether the Respondent’s treatment
of the casuals violated section 4(e) of the contract. The
unfair labor practice issue, as phrased by the majority,
is whether the Respondent’s conduct was based on a
reasonable and arguably correct interpretation of sec-
tion 4(e). Central to both issues is the meaning of the
contractual provision. In the course of resolving the
contractual issue, the arbitration panel did not entirely
agree with the position of the Union or the Respond-
ent, but adopted a middle view that incorporated ele-
ments of the positions of both parties. Therefore, I be-
lieve that implicit in the award is a determination that
both parties’ positions were reasonable. Thus, I would
find that the arbitration panel decided the contractual
issue in such a way as to effectively resolve the unfair
labor practice issue.
As to whether the parties generally presented the ar-
bitration panel with facts relevant to the statutory
issue, the record shows that the panel received ample
evidence. That certain evidence (i.e., Operations Man-
ager Herrington’s statements to the casuals) was not
presented to the panel does not defeat a finding that
the panel was generally presented with the facts rel-
evant to the statutory issue. See my concurring opinion
in Haddon Craftsmen, 300 NLRB 789 (1990).
Finally, contrary to the General Counsel’s conten-
tion, I would find that the award is not clearly repug-
nant to the Act. In this connection, I note that the pan-
el’s failure to award backpay does not, standing alone,
render the award clearly repugnant. See, e.g., Crown
Zellerbach Corp., 215 NLRB 385, 387 (1974).
In sum, the General Counsel has failed to show any
defects in the arbitration award that warrant failure to
defer. On this basis, I join my colleagues in dismissing
the unfair labor practice allegations in Case 28–CA–
9500.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with discharge be-
cause they have filed charges under the National Labor
Relations Act or because they have filed grievances
under the provisions of a collective-bargaining agree-
ment.
WE WILL NOT discharge employees or otherwise dis-
criminate against them because they have filed charges
under the National Labor Relations Act or because
they have engaged in union or other protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Michael Manso immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his unlawful discharges, with interest.
WE WILL notify him that we have removed from our
files any reference to his unlawful discharges and that
the discharges will not be used against him in any
way.
ABF FREIGHT SYSTEM, INC.
Lewis S. Harris, Esq., for the General Counsel.
John V. Jansonius, Esq., of Dallas, Texas, for the Respond-
ent.
593ABF FREIGHT SYSTEM
1 The principal docket entries in this case are as follows: Charge filed by
Michael Manso and Andy Trujillo, two individuals, against the Respondent in
Case 28–CA–9500 on November 21, 1988, and amended on November 28 and
again on December 8, 1988; complaint issued against the Respondent in Case
28–CA–9500 by the Acting Regional Director for Region 28 on September 21,
1989; Respondent’s answer was filed on November 3, 1989; charge was filed
by Michael Manso, an individual, against the Respondent in Case 28–CA–
9916 on September 1, 1989; complaint issued against the Respondent in Case
28–CA–9916 by the Regional Director on October 13, 1989, and consolidated
with the complaint in Case 28–CA–9500 on the same day; Respondent’s an-
swer was filed on October 26, 1989; Respondent’s first amended answer to
both complaints filed on December 15, 1989; Respondent’s second amended
answer filed on January 6, 1990; hearing held in Albuquerque, New Mexico,
on January 9 and 10, 1990; Briefs filed me by the General Counsel and the
Respondent on or before February 12, 1990. The Respondent also filed a reply
brief in this case. There is no provision under the Board’s Rules and Regula-
tions for the filing of a reply brief with an administrative law judge. Accord-
ingly, that brief will be stricken and its contents will be disregarded.
2 Respondent admits, and I find, that it is a Delaware corporation. It is en-
gaged in the interstate transportation of freight and maintains a terminal for
that purpose at Albuquerque, New Mexico. During the preceding 12-month pe-
riod, the Respondent, in the course and conduct the aforesaid business, derived
gross revenues from the transportation mmodities from the State of New Mex-
ico directly to points and places located outside the State of New Mexico val-
ued in excess of $50,000. Accordingly, the Respondent is an employer en-
gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
Local 492, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Union) is a labor organization within the mean-
ing of Sec. 2(5) of the Act.
3 Certain errors in the transcript are noted and corrected.
4 The Respondent operates its Albuquerque facility on a 24-hour, 7-day
week basis, and has five overlapping 8-hour shifts, which begin at midnight,
5 a.m., 8:30 a.m., 3:30 p.m., and 5 p.m.
5 Respondent’s witnesses testified that regular casuals have no contractual
right to file grievances. There is certainly nothing in the contract which clearly
confers such a right on regular casuals, as distinguished from preferential cas-
uals. In the arbitration award, which is at issue in this case, the Respondent
interposed an objection at the first stage of the grievance procedure that the
casuals who were the subject of the grievance had no standing to complain.
Notwithstanding this objection, the grievants did obtain substantial relief in the
final award. In this proceeding, where it served the Respondent’s purpose to
admit that regular casuals have standing to complain under the grievance pro-
cedure, the Respondent took two opposite positions on this point in the course
of a 5-minute colloquy.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on two unfair labor
practice complaints,1 issued by the Regional Director or the
Acting Regional Director for Region 28 and consolidated for
hearing, which allege that Respondent ABF Freight System,
Inc.,2 violated Section 8(a)(1), (3), and (4) of the Act. More
particularly, the two complaints allege that the Respondent
threatened casual dockworkers employed at its Abuquerque
terminal with discharge in violation of an outstanding collec-
tive-bargaining agreement and then discharged six casual em-
ployees on or about June 20, 1988, because they refused to
sign waivers of their rights under the existing collective-bar-
gaining agreement. The complaints also allege that, after
these individuals were reinstated to their former positions,
discriminatee Michael Manso, one of the previously dis-
charged casuals, was threatened by several supervisors that
the Respondent would retaliate against him for filing a griev-
ance and for filing an unfair labor practice charge. The com-
plaints also allege that, on two different occasions, the Re-
spondent discharged Manso in reprisal for such conduct. The
Respondent asserts that the first series of incidents, which
were the subject of a grievance and arbitration proceeding,
should not be relitigated in a Board proceeding and that the
Board should defer to the award of the arbitration panel. It
further asserts that the Respondent took the actions it did re-
specting six casual dockworkers because it was obligated to
do so by the terms of its collective-bargaining agreement, not
because of any desire to punish them for asserting their con-
tractual rights. Respondent denies that its supervisors threat-
ened any employees and asserts that Manso was discharged
for violating company rules regarding tardiness and making
oneself available to respond to work calls. On these conten-
tions the issues were joined.3
FINDINGS OF FACT
The Unfair Labor Practices Alleged
Respondent operates a large motor freight business
throughout the United States and, through membership in a
multiemployer association, is a party to the Teamsters Na-
tional Motor Freight Agreement. Included in its operation are
about 150 truck terminals in the western United States.
Through membership in a regional multiemployer associa-
tion, the Respondent is also a party to the Western States
Area Agreement, which contains a supplemental agreement
covering local cartage and dockworkers. One of the Re-
spondent’s large western facilities is a break bulk terminal at
Albuquerque, New Mexico, where it employs approximately
100 dockworkers. They are engaged not only in loading and
unloading freight originating in or destined for Albuquerque
but also in breaking down and reshipping freight passing
through that area destined for other locations.
Most of the Respondent’s Albuquerque dockworkers are
on its regular seniority list and are entitled to select shifts
based on their date of permanent hire.4 Because its daily de-
mand for dockworker employees fluctuates, some 15 percent
of those on the regular dockworker seniority list are em-
ployed on an on-call basis. While they are assured of a 40-
hour workweek, the so-called ‘‘fifteen percenters’’ do not
work fixed shifts and must remain available for calls as
needed. They are guaranteed a break of at least 16 hours be-
tween shifts and need not remain available for call after
working 40 hours in any given week.
In addition, the Respondent employs casual dockworker
employees, who are employed from time to time on 8-hour
shifts and who must make themselves available for assign-
ment in much the same manner as a regular ‘‘fifteen
percenter.’’ However, a casual has no standing under the
contract as an employee and is not guaranteed any particular
amount of employment. He may work 40 hours one week
and 8 hours or no hours the next week. The Respondent may
discontinue a casual employee by the simple stratagem of not
calling him to work. While there may be some inconsistency
in the record, it appears that regular casual employees have
no standing under the grievance and arbitration machinery5
and have different health benefit costs because they may not
work the full 40 hours in a month necessary to entitle an em-
ployee to health benefits. At least at one time, regular casuals
did not receive premium pay for holiday work. Respondent
employs casuals in any significant numbers only at its Albu-
querque and Los Angeles terminals.
As a result of this practice, the Respondent’s terminal at
Albuquerque enjoyed a hiring arrangement under which it
could tailor its work force to the ebb and flow of daily traffic
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Actually, 63 percent of the national membership of the Teamsters voted
to reject the contract. However, since the constitution of the International re-
quires a two-thirds vote to reject a contract which has been submitted for rati-
fication, the contract in question was deemed approved.
without incurring any permanent responsibility to a large
group of needed employees. Since regular casuals did not,
and still do not, enjoy seniority, the Respondent could call
some of these individuals to work at random while ignoring
others; it had no obligation whatsoever to hire any casual if
and when vacancies occurred among its cadre of regular
dockworkers, regardless of how long the casual might have
worked for the Respondent. If a likely prospect for a dock-
worker job appeared at the employment office, he could be
hired for a permanent position in preference to a casual em-
ployee who might have been on call and on the payroll for
years. The presence of a large number of experienced casuals
to supplement its regular complement of employees meant
that the Respondent had available a possible source of quali-
fied replacements in the event of a strike.
The 1988 Western States Area Agreement put a substantial
crimp in this practice. The local cartage and dockworker sup-
plement to this agreement introduced a new concept, namely
that of a preferred casual, who was given a standing not pre-
viously accorded to anyone who was not on the regular se-
niority list. Article 60, section 4, of the 1988 contract pro-
vides:
(e) Any casual or non-seniority owner-driver used by
the Employer for seventy (70) eight (8) hour shifts
within six (6) consecutive months, shall be automati-
cally processed by the Employer to determine whether
the casual meets the Employer’s hiring standards and
qualifications. Such processing shall be completed with-
in thirty (30) calendar days of the last day of the seven-
tieth [70th] shift.
Automatic processing may be waived with a written
agreement between the individual, the Local Union, and
the Employer. After such processing, if the casual em-
ployee meets the Employer’s hiring standards and
qualifications for regular employment, he/she shall be
placed on a preferential hiring list for future regular
employment and shall be selected for regular employ-
ment in the order in which he/she was placed on the
preferential hiring list and he/she shall not be subject to
any probationary period. His/her seniority date will be
the date he/she is put on the seniority list. Failure of
the employer to add casuals from the preferential hiring
list in this order shall subject the Employer to a run-
around claim.
Casual employees who are placed on the preferential
hiring list and who meet the Employer’s hiring stand-
ards and qualifications for regular employment shall
have regular monthly health and welfare contributions
paid by the Employer on their behalf as set forth in Ar-
ticle 52, Section 1, Health and Welfare, the month fol-
lowing the month such casual first becomes eligible for
regular employment. Such contributions shall continue
to be paid by the Employer each month thereafter pro-
vided the preferential casual satisfies the forty (40) hour
eligibility requirement provided in Article 52. Pref-
erential casuals who qualify for regular health and wel-
fare contributions shall also be eligible for regular
health and welfare benefits each month a regular con-
tribution is paid by the Employer on their behalf.
If the casual employee does not meet the Employer’s
hiring standards and qualifications or refuses to accept
regular employment while on the preferential hiring list,
the casual and the Local Union shall be so notified in
writing and his/her use as a casual will be discontinued.
Casual employees on the preferential hiring list shall
be offered available extra work in seniority order by
classification, as among themselves. The Employer
shall not be obligated to make more than one (1) call
per casual per day and such call need not be verified.
However, abuse of this procedure will be subject to the
grievance procedure. Further, casuals on the preferential
hiring list shall have access to the grievance procedure
in the event of disciplinary action.
When an Employer utilizes eight (8) hour supple-
mental casuals thirty (30) or more days in any two (2)
consecutive calendar months, the Employer shall add
one (1) regular employee from the preferential hiring
list.
Hence, under the new procedure, the Respondent could no
longer use the services of a casual on an indefinite basis.
After 70 shifts, a casual had to be placed on the preferential
list and, whenever vacancies arose in the regular list, pref-
erential casuals had the right, if qualified, to be hired on a
permanent basis. The Respondent was no longer able to hire
directly off the street in preference to hiring a long-time cas-
ual employee and, to prevent evasion of the meaning and in-
tent of the new provision, a formula was devised to deter-
mine when vacancies might exist on the regular dockworker
roster which the employer was obligated to fill from the pref-
erential list. To back up the standing of an aspiring dock-
worker, preferential casuals were given explicit standing to
invoke the grievance and arbitration machinery of the con-
tract if subjected to company discipline.
In the spring of 1988, the National Master Freight Agree-
ment between the Teamsters International and, inter alia, the
Respondent in this case was ratified.6 Around April 1, 1988,
Union Business Agent Gus Trujillo and Union Secretary-
Treasurer Ralph Chavez met with Albuquerque Terminal
Manager Mike Long, Respondent Regional Vice President
Sid Hatfield, and Albuquerque Operations Manager Robert
Herrington to discuss the question of preferential casuals
which had been inserted in the new Western States Area
Agreement. The Union took the position that everyone who
had completed 70 shifts as a casual employee should be
automatically put on the preferential casual list. The Re-
spondent objected, claiming that many of the casual dock-
workers were not qualified to be regular dockworkers be-
cause they were not also qualified as city drivers. The Union
argued that, in the past, the Respondent had permitted casual
dockworkers to learn how to drive by operating company
trucks on their own time in the terminal yard. Hatfield said
that this would be unacceptable and that casuals would not
be allowed to obtain driver experience while on the pref-
erential list. The only time the Company would train a casual
was when an opening arose on its list of regular dock-
workers. He insisted that any casuals who refused to sign
waivers of their right to be placed on the preferential list
after working 70 shifts would be fired. I credit Trujillo’s tes-
595ABF FREIGHT SYSTEM
7 During the weeks preceding his discharge, Manso had been working a full
40-hour week while Miera had been working overtime.
8 Herrington had told Haynes when he was first hired that when the Com-
pany was ready to hire a casual as a full-time driver it would send him to
driving school.
timony that he would not agree to the discharge of any cas-
ual employees and to his further statement that he would file
a grievance if any casuals were discharged because they re-
fused to sign waivers.
On May 20, 1988, Western Motor Carriers, Inc., the em-
ployer association which bargains for the Respondent and
other carriers with respect to matters pertaining particularly
to western motor carriers, sent its members a letter instruct-
ing them that the settlement was retroactive to April 1, 1988,
with respect to monetary items and would take effect on May
29, 1988, with respect to nonmonetary items, which included
the new provisions relating to preferential casual employees
at issue in this case. It also informed member employers that
they had 30 days, dating from May 29, in which to process
casual employees eligible for preferential listing. The letter
stated:
If you do not terminate such casuals prior to the end
of the 30-day period from May 29, 1988, such casuals
will be placed on the appropriate preferential hiring list
and will be considered eligible for future hire as
regulars as well as for call for available daily casual
work.
Thereafter, the Respondent reviewed the personnel records
at its Albuquerque terminal and determined that 12 individ-
uals had met the 70-shift requirement for preferential treat-
ment. It also determined that none of them were driver-quali-
fied, although this determination was later revised as to one
dockworker. Respondent likes to be in a position to utilize
dockworkers from time to time to make local pickups and
deliveries and to act as hostlers, i.e., to drive vehicles about
in the terminal yard. For this reason, it has required regular
employees to be what it calls driver-qualified, namely to pos-
sess a class 8 New Mexico driver’s license, to pass U.S. De-
partment of Transportation health and driver’s examinations,
and to have 2 years of experience in operating a tractor-trail-
er rig—the so-called 18-wheeler. Passing a course in driving
tractor-trailer rigs is regarded as the equivalent of 2 years’
experience, and, when vacancies have arisen on its regular
seniority list, the Respondent has often sent candidates for
regular employment to school at company expense so they
can be given qualifying training. While the Respondent’s tes-
timony would give one to believe that the driver qualification
requirement has been an inflexible prerequisite for regular
employment, the record reflects that the Respondent waived
this requirement when it purchased two companies, Navajo
and East Texas, and absorbed their dockworkers into its own
work force.
On June 20, 1988, Respondent gave to all casual dock-
workers whom it deemed unqualified for regular employment
the following letter:
In accordance with Article 60, Section 4(e) of the
Western States Area Pickup and Delivery, Local Cart-
age and Dockworker Supplemental Agreement, this is
to advise you that you do not meet ABF’s hiring stand-
ards and qualifications for regular employment. There-
fore, your name cannot be added to a preferential hiring
list as referred to in the aforementioned Article and
your use as a casual is being discontinued effective im-
mediately.
The letter was signed by Mike Long.
In addition to this written communication, Robert
Herrington had several conversations with the dockworkers
who were being discharged. Herrington told Michael Manso
when he handed him his discharge letter that Manso was
being laid off because the Company was not going to have
a preferential casual list. Manso asked Herrington what he
was talking about so Herrington started explaining the provi-
sions of the new article of the contract pertaining to pref-
erential casuals. Manso then asked Herrington if anything
could be done about it, to which Herrington replied, ‘‘Not
at this time.’’ Herrington went on to repeat that the Company
was not going to have a preferential list and the Union was
not going to tell them whom it might hire. He went on to
explain to Manso that under the preferential casual provision
of the contract casuals would have to be hired in accordance
with their standing on the preferential list and the Company
simply would not have such a list.
Herrington also informed casual dockworker Jerry Miera
that he would be fired. His statement to Miera was that the
latter was being fired ‘‘given the situation.’’ When Miera
asked why, Herrington replied that Miera had worked 70
shifts during the preceding 6 months and had been processed
but did not meet the Company’s qualifications. Herrington
then suggested that, if Miera wished to look further into the
matter, he should call his union representative and possibly
have that part of the contract changed so casuals could get
their jobs back. Herrington also told Miera he was sorry to
have to fire him because Miera had been one of the Compa-
ny’s better casuals.7
After receiving a letter from the Company informing him
that he had been discharged, casual dockworker Albert Mi-
randa phoned Herrington. Miranda had been working about
32 to 40 hours a week so he asked Herrington why the Com-
pany was taking this action. Herrington replied that the Re-
spondent did not have a preferential hiring list. Miranda then
asked Herrington why he had not been permitted to sign a
waiver but Herrington gave no answer. Casual dockworker
Chad Sullins was told personally by Herrington that the
Company was firing him because he did not meet the Com-
pany’s qualifications. At that time Sullins had been working
5 or 6 days each week. Casual dockworkers Arnold Haynes
and Tim Connolly were present so Herrington directed his
remarks to them as well. In his testimony concerning this
event, Haynes added that Herrington told these employees
that they did not meet company standards, meaning that they
did not know how to drive a tractor-trailer. Haynes objected,
saying that he thought that the Company was going to send
casuals to driving school.8 Herrington said he was not going
to take all twelve casuals who were eligible under the con-
tract for preferential status and send them to driving school
because he did not need 12 drivers. He said that he did not
want to have a preferred list and wanted to keep on working
under the old arrangement. He added that he would prefer
to keep on hiring people for regular slots in the way the
Company had been doing rather than as the contract pro-
vided. He also told the employees present at this conversa-
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion that it was the Union’s fault that they were being dis-
charged, insisting that he really did not want to fire them be-
cause they had been good employees but the contract re-
quired him to do so and he had to comply with its provi-
sions.
Later, after a grievance had been filed concerning the dis-
charge of casual dockworkers, Herrington phoned Sullins and
offered him an opportunity to sign a waiver of his right to
be placed on the preferential list. Sullins declined. Herrington
told Sullins that he did not like the idea of a preferential list
because it would force him to put people from that list on
the regular list. He expressed the opinion that the ‘‘end-of-
the-break’’ terminals might benefit from such an arrangement
because they did not have many casuals, but he did not want
to put anyone on the preferential list who was not driver-
qualified.
On June 21, 1988, the Union filed a grievance on behalf
of all 12 casual dockworkers whom the Respondent dis-
charged. The ultimate award arising out of this grievance dis-
posed of the discharges of the six employees named in the
complaints in this case. The other discharges were settled by
the parties during the pendency of the arbitration case. On
June 29, 1988, the Arizona-New Mexico Joint State Commit-
tee heard the grievance at the first step in Albuquerque. Ac-
cording to the standard nationwide Teamster grievance pro-
cedure, the first two steps consist of hearings before panels
of individuals composed of an equal number of employers
and union representatives, none of whom are parties to the
immediate dispute. If the first-step panel cannot resolve the
grievance by majority vote, the deadlocked case is forwarded
to the second step which, in this case, was the Joint Western
Area Committee, composed of four employer and four union
representatives. If this body deadlocks, and it did, the matter
is finally referred to the National Grievance Committee in
Washington, composed of the International president of the
Teamsters and the chairman of the national employer bar-
gaining committee. In the event of a deadlock at this level,
or if either party is dissatisfied with the national award, ei-
ther party may resort to self help.
The first step of the grievance was heard at the Howard
Johnson Motel in Albuquerque. Hatfield and Herrington
spoke with a number of grievants outside the hearing room
to discuss the matter at issue. Hatfield was asked why ABF
was not going to have a preferential casual list. He replied
that the Company did not want one, did not need one, and
would hire whom it wanted when it wanted. Herrington told
the grievants who were present that they could have their
jobs back immediately if they signed a waiver. Eventually
five grievants—Steve Carlson, Jim Olson, Andy Turrietta,
Tim Connelly, and Rick Tingley—signed waivers and re-
turned to work. The Respondent reviewed the record of
Charles Estrada a second time, determined that he was quali-
fied as a driver, and placed him on its regular dockworker
list. After the conclusion of the first-step hearing, Herrington
phoned Manso, Sullins, Haynes, and Trujillo and offered to
let each of them come back to work if they would sign a
waiver. They all declined to do so.
Sometime after the first-step grievance committee dead-
locked, Hatfield again spoke with Trujillo about resolving the
grievance. Hatfield proposed that all casuals who had worked
the qualifying hours set forth in the contract be placed on a
preferential list but that the Respondent be under no obliga-
tion to offer them driver training until an opening arose on
the regular dockworker list. Trujillo insisted that the Com-
pany provide driver training to all casuals on the preferred
list, a proposal which the Respondent felt would be too cost-
ly.
The second-step grievance committee, which met in San
Francisco, also deadlocked, thereby forwarding the case to
the National Grievance Committee in Washington. In a letter,
dated April 6, 1989, the Union and Employer members of
the National Grievance Committee resolved the dispute as
follows:
Please be advised that the National Grievance Com-
mittee, on April 6, 1989, adopted a motion that, based
on the transcript, this case shall be resolved in the fol-
lowing manner:
1. Grievants Carlson, Olson, and Estrada are re-
moved from the grievance inasmuch as their grievances
were previously resolved in a manner that is consistent
with the decision in this case.
2. Waivers previously executed by several of the em-
ployees are null and void.
3. The grievants, excluding the aforementioned three
(3), shall be placed on the preferential hire list in the
order they completed their seventieth (70th) shift.
4. As regular positions become available, the griev-
ants will be offered regular employment from the pref-
erential hire list and shall not be subject to the thirty
(30) day processing period.
5. Driver-qualified grievants will be immediately
placed in openings as they become available. Non-
qualified drivers will be offered training in ABF’s driv-
er training course as their respective openings occur.
Appropriate travel and lodging expenses will be paid if
training is held outside Albuquerque and they shall be
compensated in accordance with ABF’s regular training
program.
6. If the grievant satisfactorily completes training, he
shall be immediately added to the seniority list. If he
refuses training or fails the course, his services shall be
terminated and not used again.
7. There shall be no money claims paid as a result
of this decision.
Of the five casuals who had executed waivers and who
had continued to work during the pendency of the grievance,
two had been sent to drivers’ school and one had been
placed on the regular dockworker seniority list. Immediately
following the decision of the National Grievance Committee,
the Respondent wrote letters to the six grievants who had not
signed waivers and offered to reemploy them. The letters
read:
Pursuant to the National Grievance Committee deci-
sion in Case #N-4-89-W4, you are being placed on the
preferential hiring list in the order in which you com-
pleted your 70th shift within six (6) consecutive
months.
Effective Monday, April 24, 1989, you will be sub-
ject to call for casual work from the preferential hiring
list, in the order that your name appears on the list.
597ABF FREIGHT SYSTEM
As regular positions become available, you will be
offered regular employment from the preferential hiring
list under the following conditions:
(A) You shall not be subject to the thirty (30) day
processing period.
(B) If you are driver-qualified, you will be imme-
diately placed on the regular seniority roster as open-
ings become available.
(C) If you are not driver-qualified, you will be of-
fered training in ABF’s Driver Training Course as re-
spective openings occur. Appropriate travel and lodging
expenses will be paid to you if the training course is
held outside Albuquerque, and you shall be com-
pensated in accordance with ABF’s regular training
program.
(D) If you satisfactorily complete driver training, you
will be immediately added to the regular seniority ros-
ter. If you refuse training, or fail the training course,
your services will be terminated.
Discriminatees Haynes, Manso, Sullins, and Trujillo returned
to work. The others apparently did not, although there is evi-
dence in the record that Miranda was on the payroll subse-
quent to the national decision and was removed thereafter for
an attendance-related infraction.
I credit Manso’s testimony that on his return to the dock
he was greeted with menacing statements from three super-
visors. Operations Supervisor (foreman) Chris Lovato told
Manso that he had better watch his step because ABF was
gunning for him. Manso replied that he would do so. Oper-
ations Supervisor Thomas C. McNutt assured Manso that he
had nothing to do with Manso’s discharge. He mentioned
that he noticed that Manso had been coming to work with
a ‘‘pissed-off’’ attitude and suggested that Manso should try
to work with a good attitude and things would go a lot easi-
er. McNutt also told Manso to be careful because higher
management was after him. Operations Supervisor Kyle
Beeson told Manso, ‘‘Well, you made it back. Let’s see how
long it takes them to get rid of you this time.’’
On setting up the preferential casual list, the Respondent
began to implement a practice known as verification. When
a foreman needed a casual dockworker to work on the fol-
lowing shift, he would summon a rank-and-file Teamsters
member to place the call. If the preferential casual being
called did not answer the phone, the teamster was then asked
to sign a written verification that a call had been placed and
that no response was forthcoming, whereupon disciplinary
action could be taken for failing to ‘‘protect one’s shift.’’ A
second instance of failing to respond to a call authorized the
Company to remove an employee from the preferential cas-
ual list and to discharge him.
On May 8, less than a month after his return to work,
Manso was given a warning letter for failing to protect his
shift, i.e., failing to be available for a call to work, which
was placed on May 6. On June 19, he received a letter dis-
charging him for again failing to protect his shift, i.e., not
being home to receive a call at 5:51 a.m. on that date. The
call was verified by a regular dockworker employee, Jeff
Motter. Manso grieved the discharge and was reinstated at
the first step of the grievance procedure but without pay. At
the hearing in this case, Jeff Motter credibly testified that be-
tween 5 and 6 a.m. on June 19, Supervisor Ronald S. Ford
asked him to verify phone calls that were being made to
summon casuals to work for the following shift, which was
scheduled to begin at 8:30 a.m. Motter said that he was quite
tired and thought that he had misdialed Manso’s number.
When no one answered the call, Motter told Ford that he
thought that he might have dialed the wrong number and
asked permission to dial it again. Ford would not let him do
so and insisted that Motter sign the call verification form.
Motter became very angry and told Ford that he did not want
to verify any more phone calls placed to casuals.
On August 11, Manso was given a warning letter for com-
ing to work 4 minutes late on the 5 a.m. shift. On August
17, Manso was again late to work on the 5 a.m. shift. On
this occasion, he did not arrive until almost 6 a.m. According
to Manso, he was driving to work along I-40 when his car
overheated, so he had to pull over and park by the side of
the highway. He found a phone booth near an abandoned
filling station and phoned the terminal. There is no dispute
that he phoned in about 5:25 a.m. to say he had trouble.
Then, according to Manso, he phoned his wife, who drove
quickly to the site of the phone booth in her car to pick him
up. Manso then drove her car back onto I-40 and headed for
the terminal with her, whereupon he was pulled over by
Bernalillo County deputy sheriff Derryl Smith for speeding.
Officer Smith issued only a warning and permitted Manso to
proceed on his way.
When Manso arrived at work, he was closely questioned
by supervisors concerning his story. When asked what time
he left home, he became evasive and insisted that the answer
to that question was irrelevant. The plant manager then drove
to the spot on I-40 where Manso said he had parked his
overheated vehicle and could find nothing. The Company
pursued its investigation of this event by questioning Officer
Smith and getting a statement from him. Based on its inves-
tigation, the Respondent concluded that Manso was falsifying
the reason for his tardiness so it discharged him for coming
to work late on two different occasions. Manso grieved this
discharge but lost at the first-step hearing and did not pursue
his grievance any further. In testimony before the Board, Of-
ficer Smith did not corroborate Manso’s story, testifying that
when he pulled Manso over on I-40 to issue a warning for
excessive speed there was no one with Manso in his vehicle.
Analysis and Conclusions
The establishment of a preferential casual list for dock-
workers by article 60 of the 1988 Western States Area
Agreement threatened to bring about a small revolution in
the hiring practices at the Respondent’s Albuquerque termi-
nal. Before this time, the Respondent was able to keep down
its costs and to assure maximum flexibility and minimum li-
ability in its dock operation by supplementing its regular
complement of employees with a pool of extra workers who
could be hired and fired at will and who, if they wanted to
remain on the Respondent’s list, and to forgo other employ-
ment opportunities and make themselves available for call
without any obligation on the part of the Respondent to call
them. Now the contract made casual employment on the
dock a recognized first step on a career ladder and laid out
well-defined points along the way at which the Respondent
must accord improved status to any dockworker who contin-
ues to make himself available for hire.
Respondent’s witnesses to the contrary notwithstanding, it
enjoyed the best of all possible worlds with the regular cas-
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ual system and it was loath to abandon it. I flatly discredit
the self-serving testimony of Hatfield, Herrington, Fultz,
Johnson, and possibly others that the Respondent applauded
the institution of the preferential casual system in the 1988
contract and regarded it as a boon to its operation. If the Re-
spondent had regarded preferential listing of casual dock-
workers as enthusiastically as its testimony would have the
Board believe, the Respondent could have unilaterally insti-
tuted this system without seeking the approval of anyone
many years ago and enjoyed the many benefits it says the
system now has brought about. However, Respondent did
nothing of the sort until it was forced to do so, not merely
by contract but also by a National Grievance Committee
award forcing it to comply with the plain language of that
contract. Even so, and at this late date some 2 years follow-
ing the adoption of article 60, not one casual dockworker at
the Albuquerque terminal has made it from the preferential
list to the regular dockworker seniority list, despite the fact
that at least three regular dockworkers in a work force of 100
have resigned or retired during that same period. Respondent
has been fighting a last ditch effort to avoid the implementa-
tion of the preferential list requirement of article 60 of the
Western States contract at its Albuquerque terminal and the
positions taken by it in this case are simply a part of that
effort.
Herrington explained to several casuals at the time of their
termination in June or 1988 what the Company’s feeling was
concerning preferential listing and why it felt the way it did.
I credit testimony that he said that the Respondent much pre-
ferred to keep on operating its dock the way it had been
doing—using a list of regular seniority employees supple-
mented by a group of extras who had no standing under the
contract even to file a grievance in the event of being short-
changed or otherwise mistreated. Herrington was quite em-
phatic in his opposition to preferential listing of casuals: the
Company was not going to let the Union tell it whom it was
going to hire and when it was going to hire anyone. When
the Respondent was forced to implement the provisions of
article 60, it was willing to discharge several experienced
dockworkers—men who admittedly had been doing a good
job and who were working full workweeks in casual status—
rather than forego its traditional way of manning the facility.
The only alternatives presented to all casuals were to waive
their contractual rights or be discharged. This was told to
them a second time by Herrington and Hatfield a few days
later, just before the Arizona-New Mexico Joint States Griev-
ance Committee began to hear their case at the first step.
Some casuals accepted the Respondent’s terms, signed waiv-
ers, and were put back to work. Six did not and were out
of work for nearly a year until the National Grievance Com-
mittee directed the Respondent to put them back to work.
Even at that point, the Respondent did not relinquish its
effort to avoid the full impact of article 60. Without bother-
ing to notify the Union or to bargain with it, the Respondent
instituted toward preferential casuals a practice or policy that
was at a variance with, and more stringent than, the practice
it had been following with respect to other dockworkers. So-
called ‘‘fifteen percenters’’ were and are called twice, and
only on the second call is any effort made to verify the call
for purpose of imposing discipline for not protecting one’s
shift. If there are enough casuals available, a 15-percenter
can pass a call. Regular casuals are not called in any stated
order and no effort is ever made to verify calls placed to
them. However, preferential casuals are called only once and
those calls are verified so that discipline may easily ensue if
no one answers the phone.
In the matter of lateness, the record is full of instances in
which the Respondent either overlooked tardiness on the part
of regular dockworkers or accorded it minimal importance
while applying a more stringent standard of punctuality to
preferential casuals. Indeed, in the Respondent’s effort to
show lack of disparate treatment to Manso, the instances of
similar stringent treatment for attendance-related infractions
upon which it relied on were limited to conduct on the part
of other preferential casuals. Respondent admits that its at-
tendance standards are more lenient for other classes of em-
ployees. When asked why the difference, the Respondent
conceded that, in terms of the functioning of the dock oper-
ation, a preferential casual who comes late to work poses no
bigger problem that a regular who is late. The best the Re-
spondent could devise as an explanation for such differential
treatment was that preferential casuals were a new category
or classification of dockworker and this was simply how they
decided to handle them. The lack of any credible explanation
based on business necessity for disparity of treatment of a
whole class demonstrates that, even now, the Respondent is
attempting to harass preferential casuals so that it will be
easier to discharge them before they become regular seniority
employees, and to persuade regular casuals that they are bet-
ter off by waiving their right to be processed for preferential
status and remaining in regular casual status.
In pursuing its effort to avoid complying with article 60
of the Western States Area contract, the Respondent resorted
to several fanciful arguments based on its contract with the
Union, thus laying the blame for actions it assertedly did not
wish to take on provisions of an agreement by which it was
bound and upon the Union which wanted to hold it to the
provisions of that contract. According to the Respondent, the
implementation of article 60 meant that it would have to
place unqualified preferentials on their regular dockworker
seniority list each time a vacancy occurred. There is nothing
in the contract which even remotely suggests such a possibil-
ity. The contract states in pertinent part:
If the casual employee does not meet the Employer’s
hiring standards and qualifications . . . while on the
preferential hiring list, the casual and the Local Union
shall be so notified in writing and his/her use will be
discontinued. [Emphasis added.]
It is abundantly clear that a determination of qualifications
for permanent retention should, under the contract, be made
while the casual is on the preferential list, not before he is
placed there. The award made by National Grievance Com-
mittee applied the contract in just that manner and this is
how the parties are now required to apply it. To say that
moving a dockworker from the regular casual list to the pre-
ferred list automatically entitles him by contract to a place
on the regular list, regardless of qualifications, in the event
of an opening is so wholly bereft of substance that it is not
even arguable.
After the first-step grievance committee became dead-
locked, the Respondent advanced a fall-back position. It of-
fered to place casuals on a preferential list if the Union
599ABF FREIGHT SYSTEM
9 Herrington told several casuals just before they were discharged that he
was not going to the expense of training 12 dockworkers to drive tractor-trail-
ers because he did not need so many drivers. If true, his statement meant that
the Respondent was advancing, as a justification for its position under the con-
tract, a requirement for driver qualification of dockworkers when it really did
not need drivers at all.
10 Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d
Cir. 1967).
11 The Respondent has advanced the argument that it should not be charged
with any unlawful activity in the summer of 1989 arising out of the action
of Manso and Trujillo in filing an unfair labor practice charge against the Re-
spondent on November 21, 1988. It is the Respondent’s position that its lower
ranking supervisors in Albuquerque were unaware that the charge had been
filed and so could not be motivated in their actions by the fact that the charge
had been docketed. The record reflects that the original charge in Case 28–
CA–9500, as well as an amended charge filed a few days later, were served
on the Respondent during November 1988, at its Albuquerque terminal. Ac-
cordingly, the Respondent and all of its agents are deemed to have knowledge
that the unfair labor practice charge and the amendment thereto were in fact
filed by Manso and Trujillo.
would agree that it had no obligation to train them until an
opening should occur on the regular seniority list. The Union
wanted all dockworkers trained to operate tractor-trailers
whenever they were placed on the preferential list. The con-
tract is silent on this precise point. The practice requested by
the Respondent was enjoined upon the parties by the Na-
tional Grievance Committee award. However, the Respond-
ent was free to implement this practice immediately under
the terms of the contract, with or without union consent. Its
proffered excuse for refusing to do so, namely that it feared
that the Union would file a grievance if it went ahead unilat-
erally and did what it had offered to do, is frivolous. The
Union had already filed a grievance that involved this ques-
tion and the award arising out of that grievance resolved it.
Respondent’s reason for not training all dockworkers as
soon as they are placed on the preferred list also lacks sub-
stance and business justification. According to the Respond-
ent, it costs about $1,500 to give a dockworker driver train-
ing. The Respondent voiced the fear that, if all preferential
dockworkers were given this training, they might quit and go
to work for other companies. The same possibility exists
with respect to any qualified regular dockworker, most of
whom are driver qualified. Moreover, a cadre of driver-
trained preferential dockworkers would mean that both they
and regular dockworkers would be available for whatever oc-
casional driving chores might arise, rather than leaving these
functions exclusively to the regulars.9 Here again, the Re-
spondent was raising pretextual excuses for not creating a
preferential list of dockworkers by attempting to use the con-
tract as a basis for doing what it really did not want to do
under any circumstances.
In NLRB v. City Disposal Systems, 465 U.S. 822 (1984),
the Supreme Court gave its approval to the Board’s Interboro
doctrine10 which, in general terms, states that it is a Section
7 right for an employee to assert rights conferred on him and
his fellow employees through a collective-bargaining agree-
ment. In pertinent part, the Court stated:
Moreover, by applying Section 7 to the actions of in-
dividual employees invoking their rights under a collec-
tive-bargaining agreement, the Interboro doctrine pre-
serves the integrity of the entire collective-bargaining
process; for by invoking a right grounded in a collec-
tive-bargaining agreement, the employee makes that
right a reality, and breathes life, not only into the prom-
ises contained in the collective-bargaining agreement,
but also the entire process envisioned by Congress as
the means by which to achieve industrial peace.
To be sure, the principal tool by which an employee
invokes the rights granted him in a collective-bargain-
ing agreement is the processing of a grievance accord-
ing to whatever procedures his collective-bargaining
agreement establishes. No one doubts that the process-
ing of a grievance in such a manner is concerted activ-
ity within the meaning of Section 7. [Citations omitted.]
Indeed, it would make little sense for Section 7 to
cover an employee’s conduct while negotiating a col-
lective-bargaining agreement, including a grievance
mechanism by which to protect the rights created by
the agreement, but not to cover an employee’s attempt
to utilize that mechanism to enforce the agreement.
. . . .
No one would suggest, for instance, that the filing of
a grievance is concerted only if the grievance turns out
to be meritorious. As long as the grievance is based on
an honest and reasonable belief that a right had been
violated, its filing is a concerted activity because it is
an integral part of the process by which the collective-
bargaining agreement is enforced. The same is true of
other methods by which an employee enforces the
agreement. [Supra at 835, 836, 840, 841.]
The protected concerted activity of the six discriminatees
named in the complaints in this case does not consist of
overt actions, such as complaining to a union official about
safety violations and the failure of an employer to pay em-
ployees the contract rate for their services, or the refusal of
an employee to drive an unsafe vehicle. Rather, their con-
certed protected activity was a refusal to sign waivers of
their contract rights and the insistence, implicit in such a re-
fusal, that those contract rights be accorded to them.
Herrington told all of the casual dockworkers on or about
June 20, 1988, that they were being discharged because they
had not signed waivers of their contract right to be processed
for inclusion on the preferential list. His statements violated
Section 8(a)(1) of the Act. As the direct and immediate result
of their refusal to execute contract waivers, the dockworkers
were discharged. Such discharges violate Section 8(a)(3) of
the Act. Pennsylvania Electric Co., 289 NLRB 1200 (1988).
Respondent’s subsequent refusal to reinstate any casuals until
they did sign contract waivers is a followup violation of Sec-
tion 8(a)(3) of the Act. The defense proffered for such dis-
charges was, as outlined above, pretextual. The contract in
question did not even arguably provide the Respondent with
any warrant for doing what it did, and the grievance award,
which was issued following those discharges, simply empha-
sized that fact.
The statements made to Manso upon his return to work by
Supervisors McNutt, Lovato, and Beeson amounted to threats
that the Respondent would seek further retaliation against
Manso because he had filed a grievance and also because he
had filed an unfair labor practice charge.11 Such threats vio-
late Section 8(a)(1) of the Act.
The complaint in Case 28–CA–9916 alleges that the Re-
spondent unlawfully discharged Manso on June 19, 1989, be-
cause he filed a charge under the Act and because he filed
a grievance. As noted, supra, the filing of a grievance is a
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Respondent maintained throughout this proceeding that it actually
won the grievance that was filed against it relating to the creation of a list
of preferential casuals. Any party to litigation is entitled to put whatever spin
it wishes on the outcome of a proceeding. However, the National Grievance
Committee nullified the waivers which the Respondent insisted upon exacting
from casual dockworkers as the price of their continued employment and or-
dered that six dockworkers who had refused to execute such waivers be rein-
stated. This is not the stuff of which notable victories are made.
13 See, for example, Filmation Associates, 227 NLRB 1721 (1977); Inter-
national Harvester Co., 271 NLRB 647 (1984); Art Steel of California, 256
NLRB 816 (1981); with respect to deferring to grievance machinery for
charges involving harassment for filing a grievance, see Postal Service, 290
NLRB 120 (1988).
Section 7 right; the filing of an unfair labor practice charge
is protected by Section 8(a)(4) of the Act. Manso was a party
not only to a grievance that had been filed against the Re-
spondent, but he was a party to a successful grievance that
forced the Respondent to comply with a provision of the
contract with which it was extremely reluctant to abide.12 On
his return to work, Manso was told that the Respondent was
laying for him. Within 6 weeks, he was discharged.
The event that triggered the discharge was his asserted
failure to respond to a call to work made at the request of
Supervisor Ronald Ford by Teamster Jeff Motter. The call in
question was made pursuant to a verification procedure that,
as noted above, applied solely to preferential casuals, was
more stringent than the call procedure used for other nonshift
employees, and a procedure for which the Respondent could
advance no business justification. In making the call, Motter
was afraid that he had misdialed Manso’s phone number,
told Ford about the suspected error, and asked to dial again.
Ford refused his request and directed Motter to sign a ver-
ification form attesting to the fact that Motter had dialed
Manso’s phone number and that there had been no reply.
The Respondent could not justify the discharge that followed
from this event to the Arizona-New Mexico Joint State Com-
mittee so Manso was reinstated without pay.
It is apparent from these facts that the Respondent har-
bored animus against Manso for engaging in protected activi-
ties and that there was no solid factual basis for its conclu-
sion that Manso did not respond to a call to work on June
19. When Motter noted a suspected dialing error, the Re-
spondent could have easily clarified the question by permit-
ting Motter to dial again. It did not do so, thus evidencing
a motive directed not toward filling out its complement of
employees for the morning shift but of arming itself with a
justification for discharging an unwanted employee. When it
discharged Manso on June 19, the Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act.
On August 17, Manso was admittedly late to work. His
reason for tardiness was that his car had overheated on the
interstate highway and he had to seek other means of trans-
portation. Fultz admitted in his testimony that if the Re-
spondent had believed this story Manso would not have been
discharged. However, it suspected that Manso had really
overslept and was falsifying an excuse, so it discharged him
because it felt that there had been an element of dishonesty
in Manso’s entire course of conduct in this matter. I am
compelled to agree with the Respondent. Manso said that he
had parked his overheated vehicle along the side of the road
at a stated location on I-40. The plant manager went out to
search for the vehicle at this point shortly after Manson made
this statement. He found nothing. Manso told the Respondent
and testified at the hearing that he had been picked up by
his wife in another vehicle and was driving to work when
he was stopped for speeding by a deputy sheriff. The officer
in question failed to corroborate an essential detail of
Manso’s story. In testifying in this proceeding, officer Smith
stated categorically that there was no one in the car with
Manso when he stopped to give Manso a warning for exces-
sive speed. Smith was a credible and neutral witness, and I
have no reason not to accept his testimony at face value. Ac-
cordingly, I must conclude that Manso was lying to the Re-
spondent when he reported that his car had overheated and
that he was late for work because of car trouble. In light of
this conclusion, I must further find that the Respondent dis-
charged Michael Manso on August 17 for cause and that so
much of the complaints which allege that he was discharged
on that date in reprisal for protected concerted activities and
for filing a charge under the Act must be dismissed.
The Respondent asserts that the Board should defer to the
grievance procedure in the contract respecting the issue of
the 1988 grievance addressing the discharge of dockworkers
for refusing to sign contractual waivers. It recognizes that de-
ferral has been deemed by the Board to be inappropriate for
discharges or other disciplinary action alleged to have been
taken in violation of Section 8(a)(4) of the Act,13 so it con-
cedes that a determination on the merits should be made con-
cerning the 1989 disciplinary actions taken against Manso.
Respondent’s request for deferral to the first grievance deter-
mination must necessarily be directed to the final award of
April 6, 1989, since the intermediate actions of the Joint
State and Western Area boards in that case were deadlocks
which did not decide anything and did not result in an
award. Rosicrucian Press, Ltd., 264 NLRB 1323 (1982).
The National Grievance Committee did not purport to hear
or decide an unfair labor practice case. In fact it paid only
perfunctory attention to the contract in question. Its resolu-
tion of the dispute between Local 492 and ABF amounted
to knocking heads together and issuing directives to two con-
tentious parties. While this may be an effective and common
sense way of achieving industrial peace, it does not con-
stitute an arbitral award which meets the standards for defer-
ral.
It should be observed that, in the usual case in which de-
ferral is in question, a disappointed grievant has gone to arbi-
tration, has been turned down, and later seeks from the
Board the relief he was denied under the grievance machin-
ery by alleging the existence of an unfair labor practice. In
such instances, the Board may be called on to construe a
contract in a manner inconsistent with the contract interpreta-
tion rendered by an arbitrator whose principal function is to
interpret the meaning of disputed contract clauses. In this in-
stance, the result reached by the National Grievance Commit-
tee is consistent with, and indeed supports, the finding of an
unfair labor practice, since its award negated the validity of
the Respondent’s defense to the unfair labor practice allega-
tions in the complaints, namely that the contract required the
Respondent to discharge all unqualified casuals who had re-
fused to execute waivers. The only aspect of the grievance
resolution which was inconsistent with normal Board practice
was the failure of the committee to award backpay to the
grievants.
The April 6, 1989 award by the National Grievance Com-
mittee made no findings of fact or conclusions of law. It
601ABF FREIGHT SYSTEM
14 The Respondent also argues that somehow the charges filed in this case
were time-barred by Sec. 10(b) of the Act. The original charge was filed on
November 21, 1988. The discharges litigated in the complaint arising out of
the refusal of certain dockworkers to execute waivers of their contractual
rights took place on or about June 20, 1988. The charge was filed well within
the 6-month period allowed by the Act. 15 F. W. Woolworth Co., 90 NLRB 289 (1950) .
dealt exclusively with results. It made no mention of the ele-
ments of the unfair labor practice issues which were litigated
in this proceeding nor did the testimony presented to the
Western Area Committee on which the National Committee
relied address any unfair labor practice. Accordingly, the
Board should not defer to the award in question. American
Freight Systems, 264 NLRB 126 (1982); Cotter & Co., 276
NLRB 714 (1985) ; Ryder/P. I. E. Nationwide, 278 NLRB
713 (1986); M & G Convoy, 287 NLRB 1140 (1988); Dick
Gidron Cadillac, 287 NLRB 1107 (1988).14
On these findings of fact and conclusions of law and on
the entire record, I make the following
CONCLUSIONS OF LAW
1. ABF Freight System, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, and its
Local 492, and each of them, are labor organizations within
the meaning of Section 2(5) of the Act.
3. By discharging Michael Manso, Andy Trujillo, Jerry
Miera, Arnold Haynes, Al Miranda, and Chad Sullins be-
cause they insisted that the Respondent comply with the pro-
visions of a collective-bargaining agreement governing the
terms and conditions of their employment, by refusing to re-
instate these employees for the same reason, and by dis-
charging Michael Manso because he filed a grievance against
the Respondent, the Respondent violated Section 8(a)(3) of
the Act.
4. By discharging Michael Manso because he filed charges
under the Act, the Respondent violated Section 8(a)(4) of the
Act.
5. By the acts and conduct set forth above in Conclusions
of Law 3 and 4, by threatening employees with discharge be-
cause they filed charges under the Act, and because they
have filed grievances under the provisions of a collective-
bargaining agreement; and by threatening employees with
discharge because they have insisted on the observance of
rights guaranteed to them by contract, the Respondent vio-
lated Section 8(a)(1) of the Act.
6. The above unfair labor practices have a close, intimate,
and adverse effect on the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. The recommended Order will state that Respondent
be required to offer full and immediate reinstatement to
Andy Trujillo, Jerry Miera, Arnold Haynes, Al Miranda, and
Chad Sullins, and that it make them and Michael Manso
whole for any loss of earnings which they may have sus-
tained by reason of the discriminations practiced against
them, in accordance with the Woolworth formula,15 with in-
terest at the rate prescribed by the Tax Reform Act of 1986
for the overpayment and underpayment of income tax. New
Horizons for the Retarded, 283 NLRB 1173 (1987). The fact
that the National Grievance Committee failed to award back-
pay for the contract violation which it impliedly found had
been committed by the Respondent is immaterial to a remedy
which is appropriate in this case. As the General Counsel
pointed out in his brief, backpay orders as remedies for vio-
lations of the Act have been a part of Board practice since
its inception and there is no reason to depart from that prac-
tice in this case. To refrain from doing so because the Na-
tional Grievance Committee refrained from doing so would
be to defer to a portion of that award, an action which would
be inappropriate for reasons already stated. See Consolidated
Freightways, 290 NLRB 771 (1988), I shall also recommend
that the Respondent be required to post the usual notice, ad-
vising its employees of their rights and of the results in this
case.
[Recommended Order omitted from publication.]