Bourne's Transportation, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 281 (N.L.R.B. 1981)

BOURNE'S TRANSPORTATION, INC. 281
Bourne's Transportation, Inc. and Anthony R. Dir-
enzo. Case 1-CA-16244
June 1, 1981
DECISION AND ORDER
On August 15, 1980, Administrative Law Judge
George F. McInerny issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel submitted a brief in support of the Admin-
istrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Bourne's
Transportation, Inc., Brockton, Massachusetts, its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order,
except the attached notice is substituted for that of
the Administrative Law Judge.
i Respondent excepts to the Administrative Law Judge's refusal to
consider its brief, contending that it requested an extension of time and
submitted its brief within the lime requested. In fact, Respondent's re-
quest for an extension of time is dated April 7. 1980, almost 2 weeks after
the briefs were due, and there is no indication that such request was
served on the parties. In these circumstances, Respondent's request was
untimely and the Administrative Law Judge properly refused to consider
its brief.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In its exceptions Respondent appears to contend, inter alia, that as set
forth in its brief to the Administrative Law Judge the Board should defer
under Spielberg Manufacturing Company, 112 NLRB 1080 (1955), to the
decision of an arbitration panel which heard the Charging Party's griev-
ance of his termination pursuant to the collective-bargaining agreement
between Respondent and Teamsters Local 653. The deferral issue was
raised by Respondent for the first time in its brief to the Administrative
Law Judge. There is no affirmative plea in Respondent's answer that the
Board should defer, and although the subject of the grievance proceed-
ings was broached at the hearing Respondent at no time requested defer-
ral or even mentioned Spielberg. In fact, the record reveals that Respond-
ent's only stated purpose for eliciting testimony about the grievance was
to attempt to show the Charging Party's "feelings" toward Respondent
and the importance of this feeling "as far as any money award" the
Board may make. In these circumstances, we find that Respondent's re-
quest for deferral is untimely. See James W. Whitfield, d/b/a Cutten Su-
permarket, 220 NLRB 507 (1975); MacDonald Engineering Co, 202
NLRB 748 (1973); Conval-Ohio, Inc., 202 NLRB 85 (1973)
256 NLRB No. 47
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge or suspend employ-
ees for engaging in protected concerted activi-
ties.
WE WILL NOT restrain, coerce, or interfere
with our employees in the exercise of their
rights guaranteed by the National Labor Rela-
tions Act, as amended.
WE WILL remove any warnings or refer-
ences to the incident of June 15, 1979, from
the files of Anthony R. Direnzo, and WE WILL
make him whole for any losses he may have
suffered on account of our discrimination
against him, with interest.
BOURNE'S TRANSPORTATION, INC.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge:
Based upon a charge filed on June 20, 1979, and amend-
ed on July 24, 1979, by Anthony R. Direnzo, an individ-
ual, the Regional Director for Region 1 of the National
Labor Relations Board issued a complaint on August 1,
1979, alleging that Bourne's Transportation, Inc., herein
referred to as Respondent, discharged Anthony R. Dir-
enzo on June 15, 1979, and thereafter refused to reinstate
him unconditionally, in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, herein re-
ferred to as the Act. Respondent duly filed an answer
denying the commission of any unfair labor practices.
Pursuant to an order of the said Regional Director, a
hearing was held before me on February 26, 1980, at
which time all parties had the opportunity to present tes-
timony and documentary evidence, to examine and cross-
examine witnesses, and to argue orally. Following the
close of the hearing a brief was received from the Gen-
eral Counsel' which has been carefully considered.
Upon the entire record in this case, including my ob-
servation of the witnesses, and their demeanor, I make
the following:
The time for filing of briefs was set for March 26, 1980. There were
no requests for any extensions of time for such filing, but under date of
May 16, 1980, counsel for Respondent forwarded a brief to the Division
of Judges. I consider this delay of almost 2 months to be untimely and I
have not considered that brief
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation which at
all times material herein has maintained its principal
office and place of business in Brockton, Massachusetts,
where it is engaged in local and interstate trucking oper-
ations. Respondent annually receives revenues in excess
of $50,000 for services performed for employers engaged
in interstate commerce, and annually purchased materials
and supplies valued in excess of $50,000 directly from
points outside the Commonwealth of Massachusetts. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II1. THE DISCHARGE OF DIRENZO
The facts in this case are not seriously in dispute. An-
thony R. Direnzo had been employed by Respondent as
a driver-dockman since December 1972. On June 14,
1979,2 he was told by another employee, Carleton Hicks,
that a certain trailer which was in Respondent's yard and
was being used by Respondent had no registration certif-
icate in it.3 Direnzo was assigned to haul that trailer on
June 14. Acting on what he had been told by Hicks, Dir-
enzo checked the trailer and found no registration. He
then went into the office and told this to Leon S. Ken-
drick, Respondent's general manager, who also was
acting as a dispatcher. Kendrick told Direnzo not to
worry about it and to go ahead and do his work.
Direnzo proceeded to take the trailer from Respond-
ent's terminal in Brockton to Beverly, Massachusetts.
While in Beverly, and before he proceeded to his ap-
pointed destination, Direnzo stopped and visited a local
office of the Massachusetts Registry of Motor Vehicles.4
There he spoke with Malcolm Andrews, an inspector
with the agency, inquiring about the status of the trailer.
Andrews showed Direnzo a copy of Massachusetts Gen-
eral Laws, chapter 90, section 11, which provides, in
pertinent part, that:
Every person operating a motor vehicle shall have
the certificate of registration for the vehicle and for
the trailer, if any, and his license to operate, upon
his person or in the vehicle, in some easily accessi-
ble place.
According to Andrews, who was subpenaed and testi-
fied in this hearing, he told Direnzo that this law applied
to the individual operation, and that he could be cited
and fined, possibly effecting the registration fees on his
own vehicle.5 Direnzo then went on to make a pickup in
2 All dates herein are in 1979 unless otherwise specified.
s There was some evidence that this trailer had been abandoned in Re-
spondent's yard during a severe snowstorm in February 1978. A registra-
tion certificate placed in evidence by Respondent shows that a registra-
tion was applied for in the State of Maine on May 2, 1978. by another
company.
4 There was some intimation that this stop was off Direnzo's route, but
that fact is not established in this record.
5 Because of insurance "merit" ratings resulting in higher premiums,
Andrews did not, however, issue any citation to Direnzo at that time.
Beverly, then called his dispatcher, Bobby Bourne. He
told Bourne that the trailer had no registration and that
he had been stopped by the Registry.6 He then proceed-
ed to finish his run. On his return to the terminal he
went in and told Kendrick that he had been stopped by
the Registry of Motor Vehicles in Beverly, that the trail-
er did not have a registration certificate, and that he
could not take it out unless one was produced. Kendrick
replied that Direnzo was not going to tell him what to
do, that he would tell Direnzo what to do. They then
went on to discuss a personal day which Direnzo had re-
quested.
On June 15, Direnzo reported at I p.m. He was as-
signed the same trailer. He went out to it, again checked
it over, and, finding no registration, went back into the
office and asked Kendrick for the registration. The latter
told him that his work was out on the dock and to go
there. Direnzo then said he would do the work that had
to be performed at the terminal, but that he could not
take that trailer out on the road.
At this point there is some conflict between the testi-
mony of Direnzo and Kendrick. Direnzo stated that
Kendrick reached his hand through the window and
took Direnzo's assignment sheet. Direnzo asked what
that meant, and, receiving no answer, then asked if he
was fired. Kendrick then said, "yes." Kendrick, on direct
examination, said that Direnzo put down his papers,
headed for the door, then returned and asked if he was
fired. Kendrick then said that by refusing the assignment
it was a "sign of a voluntary quit." On cross-examina-
tion, however, Kendrick was less sure of his own state-
ment, finally saying that what he had said to Direnzo, in
response to the question as to whether he was fired was
"Take it whatever way you want." In view of this con-
fusion, and because, as I have noted, Direnzo's testimony
was corroborated in other respects by the testimony of
Andrews and Hicks, I credit Direnzo's version of this in-
cident, and find that he was, in fact, fired on June 15.
Respondent's employees are represented by Local 653,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and there is evi-
dence that this Union, and Richard H. Lally, executive
secretary of the Employers Group of Motor Freight
Carriers, Inc., attempted to work out a solution to this
situation in the days immediately following Direnzo's
discharge. It is clear, however, that any offers of rein-
statement were conditioned on Direnzo's accepting what
assignments were given him, including, presumably,
hauling the trailer without a registration certificate. This
was unacceptable to Direnzo, and the matter then was
taken up under the grievance procedure in the collec-
tive-bargaining agreement between Respondent and the
Union to the New England Joint Area Committee. This
committee ruled on July 11, 1979, that Direnzo be given
a 30-day suspension, and that a "final warning letter" be
6 Direnzo testified that he lied to Bourne because he feared harassment
by Respondent. The record is devoid of any evidence that would warrant
such a conclusion, but Direnzo's story is corroborated by Andrews,
Hicks, and, to some extent, Kendrick. Thus I do not discredit Direnzo's
testimony.
BOURNE'S TRANSPORTATION, INC. 283
issued to him.7 arsuant to this decision Direnzo re-
turned to work about a month after June 15.
There is no question under these circumstances that
Direnzo, in refusing to accept an assignment to drive
that trailer, which was not in compliance with Massa-
chusetts law, was engaging in protected, concerted activ-
ity. He had discussed the problem with Hicks on June
14, and had on that same day mentioned it to his ste-
ward, Bob Crowley. His stop at the Registry of Motor
Vehicles office in Beverly to verify the law and the pen-
alties which could affect him personally, although it was
considered serious to the Joint Area Committee, was not
known to Respondent at the time of his discharge, and
was, in any event, a reasonable and prudent thing to do.
The evidence shows a concern about this trailer
among Direnzo's coworkers, or at least one coworker,
Hicks, and no opposition was manifested by any other
employee to Direnzo's action. Further, the portion of the
collective-bargaining agreement submitted in evidence
provides that employees "under no circumstances" will
be required to engage in any activity "in violation of any
applicable statute." There is no evidence that Direnzo's
action was based on malice, or designed to frustrate Re-
spondent's business operations.
In these circumstances Respondent's action in dis-
charging Direnzo for engaging in such protected, con-
certed activity, violates Section 8(a)(l) of the Act. Varied
Enterprises, Inc., d/b/a Private Carrier Personnel, 240
NLRB 126 (1979).
Since the discharge was later converted to a suspen-
sion, that suspension is also a violation of Section 8(a)(l)
of the Act.
tIl. THE REMEDY
Having found that Respondent has violated Section
8(a)(1) of the Act, I shall recommend that it cease and
desist from its unfair labor practices and that it take cer-
tain affirmative action designed to effectuate the policies
of the Act. Specifically I shall recommend that Respond-
ent shall remove from its records all reference to the sus-
pension of Anthony R. Direnzo, including any warnings
issued on account of the incident of June 15, 1979, and
that Respondent shall make Direnzo whole for the dis-
crimiation suffered by him by the payment of backpay,
together with interest thereon, for the period of his sus-
pension, to be computed in the manner prescribed in F.
W Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).8
CONCIUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
I There is no evidence that such a letter was actually issued, but I pre-
sume and infer that there was and is such a letter in Direnzo's file.
8 See, generally, Isis Plumbing Heating Co., 136 NLRB 716 (1962).
The General Counsel has requested that interest herein be computed at
the rate of 9 percent and has submitted a supplementary brief in support
thereof. The Board has rejected this contention See, e..g, The Bariatric
Clinic, 241 NLRB 830 (1979)
2. By discharging his employee, Anthony R. Direnzo,
and later converting that discharge to a suspension, Re-
spondent has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER"
The Respondent, Bourne's Transportation, Inc.,
Brockton, Massachusetts, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or suspending employees because they
participate in protected, concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
(a) Remove any reference to Anthony R. Direnzo's
suspension, and any warnings given or issued on account
of the incident of June 15, 1979, from its records and
make him whole for any loss of earnings he may have
suffered by reason of his discharge and suspension, to-
gether with interest, in the manner described above in
the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary for determination of the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Brockton, Massachu-
setts, copies of the attached notice marked "Appen-
dix."' ° Copies of the notice on forms provided by the
Regional Director for Region 1, after being duly signed
by Respondent's representatives, shall be posted by it im-
mediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 10248 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'°In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."