Capitol Trucking, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1979

246 N.L.R.B. 135 (N.L.R.B. 1979)

CAPITOl. TRUCKIN(i, IN('.
Capitol Trucking, Inc. and Drivers, Chauffeurs and
Helpers Local Union No. 639, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case 5 CA
9056
October 17, 1979
DECISION AND ORDER
BY MEMBERS PENELI (). MURPHY, ANI) TRKIESI)AI .
On April 13, 1979, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a memorandum in opposition to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dr, 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.
2 We agree with the Administrative Law Judge's conclusion that Respon-
dent's changing of work assignments for drivers from a seniority to a rotation
basis without consulting with the Union was unlawful. However, inasmuch
as there is no evidence that this change was discrminatory in motive or
implementation, we find such conduct to be violatise only of Sec. 8(aX I) of
the Act, and not of Sec. 8(aX3) and (1) as found by the Administrative Law
Judge. We note further that, although in some circumstances such unilateral
conduct may also constitute a violation of Sec. 8(aX5). we need not consider
that issue because the General Counsel has at no time sought such a finding
herein.
In par. (d) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language "in any other manner." However,
we have considered this case in light of the standards set forth in Hickmoi,
Foods, Inc., 242 NLRB 1357 (1979). and have concluded that a broad reme-
dial order is inappropriate, inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental statutory rights. Accordingly, we shall modify the rec-
ommended Order so as to use the narrow injunctive language "in any like or
related manner."
We also modify par. 2(a) of his recommended Order to further specify the
manner in which backpay shall be computed
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Capitol
Trucking, Inc., Washington, D.C., its officers, agents,
successors. and assigns, shall take the action set forth
in the said recommended Order, as so modified:
I. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of' rights guaranteed them by Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Gilbert Payne immediate and full rein-
statement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole
for all losses he may have suffered by reason of the
discrimination against him in accordance with the
formula set forth in F 1V: IWoolworth Company. 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel (Cor-
poration, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)."
3. Substitute the attached notice for that of the
Administration Law Judge.
APPENDIX
NOTICIE To EMpl.oy i s
PosFED1 BY ORI) R ()I IHE
NArIONAL LABOR RIA II()NS BOARD
An Agency of the United States Government
After a hearing at which all parties were given the
opportunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. We intend
to abide by the following:
WE WILL NOT discharge, terminate, or in any
other manner discriminate against employees for
engaging in union or concerted activities.
WF Wl.LL NOT refuse to recognize the duly des-
ignated shop steward of our employees.
WE WlL. NOT change the work assignments of
truckdrivers without consulting the collective-
bargaining representative of the drivers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
the National Labor Relations Act.
WE WILL, offer Gilbert Payne immediate and
full reinstatement to his former position as driver
or, if that job no longer exists, to a substantially
equivalent position. without prejudice to his se-
nioritv or other rights and privileges previously
246 NLRB No. 8
135
I)('ISIONS OF NATIONAL. ABOR RELA I()NS B()ARI)
enjoyed and wit wii.i. reimburse him, with inter-
est, for any loss of pay or other benefits he suf-
fered by reason of the termination of his employ-
ment by us.
CAPIIO(). TRU( KING, IN('.
DECISI()N
SIAIIMtN I 01()I C11 A(S
CHIARI.ES W. S INII)IR, Administrative aw Judge: On
December 9, 1977. Drivers. Chauffeurs and Helpers l.ocal
Union No. 639, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & I lelpers of Amer-
ica, the Union. filed the instant unfair labor practice charge
against Capitol Trucking. Inc., Respondent. pursuant to the
National Labor Relations Act (29 U.S.C. . 151 e seq. ). On
January 24, 1978, the Regional l)irector for Region 5 of the
Board (Baltimore, Maryland), issued a complaint on the
charge alleging that Respondent had committed various un-
fair labor practices in violation of Section 8(a)(I) and (3) of
the Act. Service was duly made on Respondent and the
Union. Respondent filed an answer denying the allegations
of unfair labor practices.
Pursuant to notice, a hearing was held before me in
Washington. D.C.. on June 12 16. 1978. The General
Counsel. the Union, and Respondent appeared at the hear-
ing, and all parties were afforded full opportunity to be
heard, to introduce and to meet material evidence, to pre-
sent oral argument, and to file briefs.
On August 7, 1978, the Respondent. and on August 8,
1978, the General Counsel, filed briefs. Upon consideration
of the entire record, and the briefs, and from my observa-
tion of the witnesses and their demeanor. I make the follovw-
ing:
FINDIN(iS ()i FAC(I
I. 111It BUSINI!SS ()1: RSPO()NI)INI
Capitol Trucking. Inc.. Respondent. a District of 'olum-
bia corporation, is engaged in the delivery of ready-mix
concrete from its operating headquarters located in Arling-
ton. Virginia. Respondent commenced operation in April
1977. It is projected that Respondent will annually sell and
deliver, in interstate commerce, ready-mixed concrete val-
ued in excess of $50,000 to points located outside the State
of Virginia. Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6). and (7) of the Act.
II. IIE I.AI()R OR(iANIAII()ON
Drivers, Chauffeurs and Helpers Local Union No. 639,
affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen & Helpers of America, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
l. 11: iNI-AIR .ABOR PRA(t II( S
The Issues
Brietly. the facts are that Respondent refused to recog-
nize employee Gilbert Payne as the union shop steward.
changed the system of priority for work from a seniority to
a rotational hasis, and discharged Payne. The General
C(ounsel contends that these actions of Respondent consti-
tuted unfair labor practices violative of Section 8(a)( 1 I and
(3) of the Act. Respondent contends that its actions were
for cause, unrelated to union or concerted activity, and
were not unlawful.
I he Refusal To Recognize Payne as Shop Steward
()n August 22. 1977. Respondent and the Union signed a
collective-hbargaining contract covering Respondent's
truckdrivers. Among other provisions, the contract con-
tained the following article 4. section I relating to shop
stewards:
There may be appointed by the Local Union a stew-
ard. or stewards, at each garage. The steward shall be
the last man to be laid off; and in no case discriminated
against. It is understood by the Company, however,
that the steward or any other employee may be dis-
charged l or inefficiency or any other just cause by the
Company. All new shop steward shall be appointed
Ironlm ihin the top 25'i of the work li)rce in effect at
the time of appointment.
I interpret the phrase "top 25'r:" to mean company se-
niority; that is, length of service with Respondent.
The contract also contained a "management rights"
clause (art. 3. sec. 2) providing, inter alia., that plant man-
agement and direction of the work force and company af-
fiirs, including hire, discipline and discharge, and the mak-
ing and enforcement of company rules, were vested
exclusively in the Respondent.'
At some time after the collective-bargaining agreement
was signed, Union Business Representative William Pink-
ney asked Respondent's President John Roach whether
Roach had a man "good enough to be a shop steward."
Roach replied that it was Pinkney's duty, not Respondent's,
to appoint a shop steward. A shop steward was not ap-
pointed until October 4. 1977, under circumstances to be
described.
Respondent began hiring drivers in mid-May 1977. The
first two drivers hired were, in order. William Carr and
Art. 3, sec 2., provided:
l'he management of the plant, direction of all working forces and of
the affairs of' the Company, including the right to hire, suspend. disci-
pline (or discharge for just cause, to make deliveries to any purchaser, to
select employees for promotion to supervisory other salaried posi-
tions. to make transfers. to determine and maintain reasonable stan-
dards of' efliciency in plant operations. ito determine production meth-
ods, and processes, and to issue and enforce Company rules, which may
from time o time he changed, shall he vested exclusively in the Com-
pany: pros ided further, that anny act o' the (Company claimed to be in
conflict with any of the provisions of this Agreement ma) he taken up as
a grievance as provided for in this Agreement.
136
CAPITO()I. TRU('KING. INC7
Grant Baker. On May 24. 1977. the Respondent hired
Payne, in June Paul B. Henson. and, in week of August 27.
Eugene Clarke. Payne. Henson. and Clarke were members
of Local 639, Baker a member of l.ocal 456. Carr was not.
at any disclosed time, a union member. Payne had been a
steward on previous union jobs.
On October 4, 1977. Payne brought (irant Baker's initi-
ation fee to union representative Pinkne. Payne reminded
Pinkney that there was no union steward on the job, and
also told Pinkney that Baker was not interested in the posi-
tion. Pinkney then asked Payne whether he would accept
the assignment. Payne said that he would, and Pinkne
thereupon gave Payne a letter to Respondent's President
Roach, advising Roach of Payne's appointment as shop
steward. Roach, however, refused to acquiesce in the ap-
pointment on the ground that Payne was not within the top
25 percent of the work force, as provided in the contract.
Grievances thereafter signed by Payne as shop steward
were returned by Roach to Payne. with messages that theN
were required to be signed by the shop steward. and that
Payne was not such. So far as the record discloses. the im-
passe was not resolved. There is no provision in the collec-
tive-bargaining agreement, and no evidence of a practice.
requiring that grievances be signed by a shop steward,
though the Union's grievance forms. which were used here.
have a line for such a signature.
Work Assignments
In late October 1977, Respondent changed the work as-
signment system from a seniority basis to a rotational basis.
The issue is whether Respondent thereby bypassed the
Union in violation of the Act.
Since there is not always work for all drivers. Respondent
posts a list at the end of each workday. naming the drivers
who are to report for work the next morning. Contrar to
Respondent's contention, position on that list is made on
the basis of seniority, that is. length of employment with
Respondent. and the senior man available is the first to be
selected, with the remainder following in similar order.:
In addition, also contrary to Respondent's contention.
The contract has various pros isions relating itm seniority. Those nvol ing
work assignment are the following:
Art. 2, sec. I: "Seniority ghts for emploees shall prevail. Seniority shall
apply within job classifications for increases or decreases in working force.
Starting times shall be assigned in accordance with seniority Seniority does
not give an employee the right to choose a specific truck or load
Art. 8, sec. 3: "All employees covered under this Agreement shall be given
an opportunity to earn a minimum f 12 hours per week, Monday thru
Friday At no time shall there he less than 50 percent of the covered employ-
ees in this group."
Art. 8. sec. 6: Saturday work, at time and a half. "shall he rotated antong
the top 50 percent of the enrolled drivers according to the seniority hstl"
Art. 8. sec. 7: "The starting time for all employees covered by Section 3
above, shall not he later than 7:30 a.m., Monday thru Friday"
Art. 8. sec. 8: "The starting time for employees not covered bh Sec. 3 shall
be not later than 930 a.m., Monday thru Friday"
As I interpret the contract, the enumeration in art 2. sec I of prticullar
instances of application of the seniority principle Is illustratle. , and nt lim-
iting, language. Otherwise. the first sentence. "Seniority rights for employees
shall prevail." becomes surplusage aind meaningless. hat seniority does not
entitle drivers to demand a specific truck or load is not a denial . rlo prilli to
receive aailable uork.
Respondent. in practice. assigned work on the basis oft' se-
niorit .'
At some time prior to October 19 the date is not clear
Respondent's President Roach told Payne that he thought
that he was going to rotate the work anti asked Payne what
he thought about it. Payne said that he "wasn't for it" but
that it was "up to the men."
When the work list for October 20 was posted on the
afternoon of October 19, Pay ne's name was not on it. al-
though the names of junior men were. Payne transmitted
this infiormation to Union Representative Pinkney that eve-
ning.
On the following morning. October 20. Payne and Pink-
ney appeared at Respondent's premises. Junior men had
been assigned to work but not Payne. PinkneN asked Roach
for an explanation. Roach replied that it was because he
was rotating the work. Pinkney disputed Roach's authority
to take such action. stating that the contract required as-
signment by seniority, which Roach denied. A loud and
angry argument ensued in which both Pinkney and Roach
lost their tempers and exchanged threatening words and
gestures. By this time. all available work had apparently
been distributed and the drivers were on the road. Roach
told Payne to clean up his truck. l.ater in the morning. after
Pinknev had left the premises, Roach came to Pane as
Payne was working on his truck and began to berate him.
Payne responded that he did not have to work for Roach.
that he had a vending license and could work for himself.
Roach responded that Payne "better he ltooking because
you're going to need it." and left. tie returned some 15
minutes later and told Pa'ne to quit work at II o'clock.
Payne did so.
On the following day. October 21, Roach called a meet-
ing of the employees and asked them individually whether
theN agreed to rotate the work Some agreed. Payne said
that he did not. Roach suggested that they call Pinkney and
tell him that they had agreed upon rotation. Emploee
('lark responded that there was no need to call Pinkney.
that Pa tie ,was the shop steward. The uncontradicted testi-
mony is that Roach replied, "Payne ain't shit."
Roach then directed the emnployees to go to work. T'he
record does not indicate what happened thereafter with re-
spect to rotation -hether it was continued or abandoned.
'On the first das of the healring. June 12. Respondent President Roach.
then a witness for the (ieneral ('ounsel. was asked. "Hlow is work assigned at
('apitol rucking?" Roach respmnded, "By seniority." On June 16. the last
da) of the hearing. testifying as a witness for the Respondent. Roach testified
that he meant by his earlier statement that "start time was started b) senior-
i1t." At that point, Roach drew a distinction between "ork" assignmenl
and "starting" assignment lloveser. Roach's testimony establishes that he
instituted the rotation system in order to enable junior men to secure a larger
share of the ork. Thus. his testimony is that in mid- or late October work
tell off and he had difficulty providing work for junior men. and he therefore
Instituted the rotation sstem i order toi proide them such work. The drop-
off in rk. he testified, prejudiced the junior men because they were "al-
ways the lowest seniorits and the last . on the list." and cnequentls
"',ould get no call in." 'he fact that work mas sometimes have been as-
signed to the junior man, rather than to the senior driver present or called in.
is ascrihable in some instances to aisers bh seniors in order that uniors
might work. n tthers by the absence o the senior driver when the li,ad ais
reads I find no reliable evidence that the nlmon waied the general principle
t1 senlorits embodied in the contract and in practice
Respondent's contention that enlrllit applled nly in the assignment of a
starling time and not to priorits ,i recclve work is thus not sustained
137
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
The First Discharge of Payne
Immediately after the employee meeting referred to
above, Payne began to load the tanks of his truck. As he did
so, President Roach began to inspect Payne's truck, a task
which Roach performs periodically with all trucks.
There is no passenger seat on the right side of the truck
cabs. On some preceding day, an inspector had ridden with
Payne and had placed a plastic bucket in the cab for seat-
ing. During Roach's inspection. according to Roach, he
found a partially emptied bottle of Johnnie Walker Black
Label whiskey under the bucket. Roach's testimony is that,
for safety and insurance reasons, the Respondent's rules
forbid the carrying of unfastened articles and liquor on
trucks.4 Referring to the bottle, Roach called to Payne and
asked him what "this" was doing in the cab. Payne, believ-
ing Roach to be referring to the bucket, told Roach that he
would have to ask the inspector. When Roach said that he
was referring to a fifth of Johnnie Walker Black Label,
Payne replied that Roach must have put it there, because
he was the only man around there who drank Johnnie
Walker Black Label. Roach told Payne that he was respon-
sible for his truck and its contents and immediately dis-
charged Payne, stating that the reason was Payne's carrying
liquor in his truck. Roach did not inquire whether Payne
had placed the liquor there, or whether Payne drank. In
fact, Payne has not drunk hard liquor since May 1975,
when he quit on doctor's orders following an operation.
Payne's grievance over his discharge, filed the same day.,
and signed by Payne both as grievant and as steward, was
rejected by Roach for the stated reason that it did not con-
tain the signature of the shop steward. Thereafter, Union
Representative Pinkney contacted Richard C. Morauer, Jr.,
a vice president of Respondent. Pinkney told Morauer that
Payne did not drink hard liquor, and that he (Pinkney)
thought that Payne had been "set up." After some negotia-
tion, it was agreed that Payne could return to work pending
investigation, and Payne did so on Wednesday, October 26.
Later, about October 28, a meeting was held between the
Union and Respondent, at which Respondent agreed to re-
instate Payne, because of his favorable driving record, but
refused to give him backpay for the time he had lost.'
The Employment Application
Respondent does not own its trucks: it leases them from
Howat Concrete Company under an arrangement which
includes insurance. Howat also reserves the right, for insur-
ance reasons, to approve or disapprove applications for em-
ployment with Respondent for driver positions, and to
make recommendations concerning operations and drivers.
However, Respondent's President Roach retains. and exer-
cises, final authority as to who is hired, whatever Howat's
view of the applicant.
' However, the evidence indicates that drinking on the premises during
nonwork hours is not uncommon, as is the presence of whiskey bottles.
There is no evidence of drinking on the premises during working hours.
At the time of this incident, Respondent had no written rule with respect
to the possession of alcoholic beverages on company property President
Roach could not remember when he established the rule.
I Roach's specific testimony is, "we decided the man was a decent driver
and we would give him another chance."
Payne's uncontradicted testimony is that he left a com-
pleted application for employment with President Roach at
around the time he was hired. However. near the end of
October 1977, in checking Hlowat's files on Respondent's
drivers, James Kelly, safety director for Howat. discovered
that he had no employment applications for Payne and em-
ployee Eugene Clarke. Kelly told President Roach that he
needed them. On the day of the October 28 meeting, Pres-
ident Roach gave blank employment application forms to
Payne and Clarke and said that he needed them back as
soon as possible.
On the following Monday. October 31. Roach asked
Payne and Clarke for the applications. Neither had com-
pleted them: Payne had left his in his car in the country and
Clarke had forgotten his. Roach stated that he needed them
for company records. Some time later in the same week,
Safety Director Kelly called President Roach and asked
whether Roach had the applications. Roach, at that time
home ill, telephoned Nick Kemp, assistant yard superinten-
dent at Howat Concrete, who sometimes assists Roach, and
instructed Kemp not to give either Payne or Clarke their
paychecks due that Friday, November 4. until they had
completed the applications. Later, probably on that pay-
day, Kemp telephoned Roach and said that Clarke had
been given his check by inadvertence. As to Payne, Kemp
reported to Roach that Payne had told him (Kemp) that
Union Representative Pinkney had advised Payne that he
did not have to fill out the application. On the following
Monday, November 7. Roach returned to work and asked
Payne about the application. Payne, apparently irritated at
Roach's persistence, told Roach that he had "wiped his ass
with it." On the same, or the following day. President
Roach told Payne not to return to work until he had turned
in the application.
In the meantime. Payne. apparently suspicious of
Roach's motives, had consulted Union Representative
Pinkney. Pinkney told Payne that if he had already filed an
application, he was not required to file another. but said
that it was up to Payne.
On November 8 President Roach, in a letter to Union
Representative Pinkney, told Pinkney that if Payne did not
file a completed application by November 15, he would be
permanently replaced.
After November 8. Payne filled in substantial portions of
the application, but not all, and then brought it to Union
Representative Pinkney. At that time, the application had
only one employer listed, Lane Construction, Meridian,
(sic) Connecticut. Pinkney suggested, and Union President
Daniel George to whom Pinkney took the application con-
curred, that the names of additional local employers for
whom Payne had worked be included. These were added.
On November 15. the deadline, Payne took the document
to Respondent's President Roach. Not all portions of the
application were filled in. Roach looked it over, stated that
he knew that Payne had worked for District Concrete
(which Payne had not), said, "I know the man won't accept
this," and returned the application to Payne as unaccept-
able.
Under date of November 21, 1977, Respondent sent a
notification to Payne by certified mail that he had been
replaced for (I) failing to submit a properly filled out em-
138
CAPITO()L. TRI:CKING. INC.
ployment application by November 15. and (2) failing to
report for work or to call between November 10 and No-
vember 17 when he had assertedly been called in.'
Under date of November 8, 1977, Eugene Clarke filed his
employment application. That, like Payne's, did not contain
answers to all the questions. There is no evidence that any
issue was raised by Roach as to acceptance of Clarke's ap-
plication or that Roach gave an ultimatum to Clarke con-
cerning his failure to file, as he did to Payne. So far as the
record discloses. Clarke is still in the emplo, of Respon-
dent, and his application is still uncompleted.
Conclusions
1. Recognition of Payne as shop steward
The General Counsel's contention is that Respondent's
refusal to recognize Payne as the shop steward was violative
of Section 8(a)(l) of the Act. Respondent contends that
Payne's appointment was contrary to the collective-bar-
gaining agreement because he was not within the top 25
percent of seniority, and that Respondent consequently was
not required to recognize and accept him as the shop stew-
ard.
At the time of Payne's appointment as steward, October
4, 1977, Respondent's drivers. in the order of seniority (date
of hire), were William Carr, Grant Baker, Payne, Paul Hen-
son, and Eugene Clarke. Carr was not a member of the
Union.
The 25 percent provision in the contract was carried over
haec verba from union contracts with other concrete sup-
plier employers located in Maryland and the District of
Columbia. Those contracts contained union shop clauses.
legal in those jurisdictions, under which membership in the
'The application identified by Payne, Pinkne,, and George and which
Payne testified he presented to Roach on November 15, G.C Exh. 14, con-
tains a number of questions which were not answered. It s a four-page
document. Insofar as matenal here, the significant omissions included a list
of accidents dunng the past 3 years, whether the applicant's license had ever
been suspended or revoked, and traffic convictions and forfeitures during the
past 3 years. All those questions appeared on pp. 2 and 3 of the application.
Roach's testimony is that when he reviewed the application on November
15. only p. I was filled out and the rest of the document, which also included
a space for prior employment, was "completely blank" Acceptance of
Roach's testimony in this regard, which is contrary to that of Payne, would
require rejection of Payne's, based upon conclusion either (I) that the appli-
cation which Payne gave Roach did not contain the information noted on
the one reviewed the day before by Pinkney and George, or (2) rejection of
the testimony of Payne, Pinkney. and George concerning the application It
appears to me that if Payne's testimony that he presented G.C. Exh. 14 to
Roach were untrue, it would follow that Payne had since added the answers
now found on pp. 2 and 3 of the application. If that assumption were correct,
I would think that Payne would also have added answers to other questions
on the application which were not answered: whether he had ever been
convicted of a felony, whether he had ever been known by any name other
than the one on the application, his military' status, whether he had ever been
denied a license or whether one had ever been suspended or revoked. what
his accident record had been and what his record for traffic convictions and
forfeitures had been Particularly, do I think this would have been so in view
of the fact that at the hearing. Payne admitted that in the early 70's his
Distnct of Columbia license had been suspended for a time for accumulation
of points on moving violations, and that on another occasion his Virginia
passenger vehicle operator's license had been suspended for driving under
the influence of liquor. I conclude that if Pasne had "doctored" G.C. Exh. 14
since November 15. 1977. he would not have overlooked adding that infor-
mation. This conclusion is consistent with my appraisal of the credibility of
the witnesses based on m) observation of their demeanor. I therefore credit
the testimony of Payne in this regard and reject that of Roach.
Union could be required as a condition of employment at
an appropriate time after hiring. Though the instant con-
tract contained the same provisions in that respect, they
were inapplicable, for the reason that the law of Virginia,
Respondent's situs, prohibits conditioning employment on
union membership. The possibility that the 25 percent
might thus include a nonunion driver appears to have been
overlooked, at least hb the Union.
I am not cited to. and have not found, any precedent
exactly in point. Resolution of the issue requires consider-
ation ot' significant principles which appear, in the context
here, to impinge on each other, and thus require accornmmo-
dation.
Union stewards are an important part of the mechanism
of maintaining stable labor relations in the shop through
the administration of coliective-bargaining agreements and
the adjustment of grievances. Aeronautical Indu.rital Dis-
trio Lodge 727 v. (C'utphtll. et al., 337 U.S. 521. 527 528,
fn. 5 (1949). As the Court there said,
. . union chairmen [stewardsl . . . are not regarded as
merely individual members of the union: the, are in a
special position in relation to collective bargaining for
the benefit of the whole union.
Because a labor agreement assumes the proper adjust-
ment of grievances at their source, the union chairmen
play a very important role in the whole process of col-
lective bargaining.
* * * . *
The National War Labor Board recognized "that the
functions of shop stewards and other local union offi-
cials were of value to a company as well as to its em-
ployees in settling and preventing labor grievances
The steward of a collective-bargaining unit under the
Act, even though appointed by the bargaining agent, occu-
pies a dual status: He is a representative of the bargaining
agent, which may have proprietorship interests and obliga-
tions quite apart from its interests and obligations as a bar-
gaining representative, and he is also a representative of
employees. In the latter capacity he is committed to a num-
ber of obligations: carrying out the policies of the bargain-
ing agent as statutory representative, the policies of the
agent as an organization or proprietor. the policies of the
collective agreement, the rights of employees as members of
the unit and beneficiaries of the agreement. and (if they are
union members) perhaps their rights as such members.
These obligations provide potential for conflict of interest,
both in the bargaining agent and in the steward. That po-
tential, however, must be deemed to have been recognized
and subsumed in the acceptance by the National Labor
Relations Act of the concept of collective representation by
an organization with its own proprietary status, such as a
union, and the correlative acceptance, without evident
questioning, of the union steward as a necessary element in
the representation of employees under the collective-bar-
gaining machinery established by the Act. While the de-
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cided cases do not appear to resolve the instant problem
they do appear to establish the general principle that a
union which is the bargaining representative of a collective-
bargaining unit has the sole and exclusive authority to se-
lect and remove a steward, or to determine the methods of'
selection or removal-so long as the union is pursuing a
legitimate union objective. This is how I read what I regard
as apposite decisions: Ashley, Hickham-Uhr Co., 210 NLRB
32 (1974) Dairlea Cooperative Ic.. 219 NLRB 656 (1975):
American Federation of Grain Millers, Loc. 33. A F CIO
(Boise Cascade Corporation), 239 NLRB 978 (1978): United
Brotherhood of Carpenters and Joiners o A merica, Local 49
(Scott and Duncan, Inc.), 239 NLRB 1370 (1979 : District
Council No. 2 of the Brotherhood of Painters and Allied
Trades, AFL CIO (The Paintsmiths. Inc.), 239 NLRB 1378
(1979). Cf. General American Transportation Corporation,
227 NLRB 1695 (1977), enforcement denied 581 F.2d 473
(1978).
However, there may be exceptions to that general princi-
ple.
A collective-bargaining representative can accept some
restraints on its authority, and those restraints may be en-
forceable to a certain extent. The exact scope of the re-
straints which may, compatibly with the National Labor
Relations Act, be accepted by the bargaining agent is be-
yond the issues here, as is the question of the extent to
which the subject may be pursued in bargaining negotia-
tions.
A collective-bargaining contract restricting the composi-
tion of a grievance committee to "member employees" has
been upheld by the Board. Shell Oil Co.. 93 NLRB 161
(1951). Similarly, a refusal by an employer to recognize a
grievance filed by officers of the representative union where
the contract required grievances to be filed by "the em-
ployee or the employee and his steward" has been found
not to constitute an unfair labor practice. Sohio Chemical
Co., 141 NLRB 810 (1963). And. finally, an employer may
refuse to deal with a chief shop steward who is not an em-
ployee of that employer, where the collective-bargaining
contract requires the chief steward to be a member of the
bargaining unit. Brunswick Corp., 146 NLRB 1474 (1964).
However, each of those cases is distinguishable from the
one presented here. In the Shell Oil and Brunsick cases.
the exclusion of nonemployees or nonunit employees still
left an eligible, and presumably available, class of employ-
ees from which an alternative selection might be made. In
the instant case, if Respondent's construction is adopted.
only one person was eligible for the position of shop stew-
ard, and if he did not serve, the position could not be filled.
In addition, in the Shell case, even if no alternate was avail-
able, there were four other persons on the grievance com-
mittee, which could thus continue to function.
The General Counsel contends that Respondent's con-
duct was unreasonable in the circumstances and part of' a
bad-faith effort to undermine the Union. I find no substan-
tial evidence from which to conclude that Respondent was
acting in bad faith to undermine the Union in that respect.
Whether "reasonableness" of the conduct is a relevant test
may depend upon what one means by the word. Whether
the instant contractual provision constitutes an effective im-
pediment under the Act to the Union's appointment of
Payne as steward or, on the contrary, is incompatible with
the policies of the Act and therefore must fall, are questions
that need be decided only if it is first found that the con-
tract is to be construed as forbidding Payne's appointment.
As I interpret the contract, it does not clearly' do so. My
reasons are as follows.
A shop steward is required, by the terms of the contract,
in the processing of a grievance at the second stage.'
The contract is to be interpreted, of course. in accordance
with its terms, and where those are unambiguous and appli-
cable to a problem they may not be varied by parole evi-
dence or by a different intent of one of the parties. The
purpose of interpretation is to ascertain the intent of the
parties as manifested from the entire agreement. Particular
provisions are to be construed in that light. Consonance of
a particular interpretation with public policy and the over-
all aim of the agreement is a factor to be considered in
interpreting the language. Interpretations which produce
impractical results are not presumed to express an unartic-
ulated agreement of the parties. In sum, in the absence of
contrary manifestation in the document itself, language in a
contract is to be construed to comport with the purposes of
the agreement and relevant public policy.
What the United States Supreme Court said in the case
of Mastro Plastics Corp., and French-American Reeds MJk.
Co.. Inc. v. N.L.R.B.. 350 U.S. 270 (1956). seems apposite.
In that case, basing its decision on the necessity for accom-
modating and balancing the objectives of the Act, the Court
held that a contract provision by which the union agreed to
"refrain from engaging in any strike during the term of this
agreement." must be read "as a whole in the light of the law
relating to it." Thus read, the Court concluded that the
provision was not to be construed as applicable to a strike
caused by the employer's unfair labor practices. Apropos of
the contention that the union's contractual waiver was un-
conditional, the Court said at 283:
Whatever may be said of the legality of such a waiver
when explicitly stated, there is no adequate basis for
implying its existence without a more compelling ex-
pression of it than appears in 5 of this contract.
Insofar as the Court's canons of contractual interpretation
are concerned. I do not deem it a controlling fact that the
Court found the unfair labor practices there to be flagrant.
The bargaining representative is an agent of employees.
It has obligations and responsibilities some of which may
resemble those of a fiduciary-both to employees who are
its members and to the nonmembers it represents. If the
representative is an entity, such as a union, it can discharge
those obligations only through individuals whom it desig-
nates, including stewards. The union may be answerable for
the actions of those designees acting within the scope of
I hus. art. 5. sec. . of the contract, grievance procedure, provides that if
a grievance is not satisfactorily adjusted in the first stage of the grievance
procedure (between the aggrieved employee or employees and the superin-
tendent). the grievance shall be reduced to writing, signed by the employee
or employees involved, and "then . . discussed between the shop steward
and the superintendent or another officially designated representative of the
('ompany." It will be noted that this language provides Respondent the right
to appoint a substitute for the supenntendent, but contains no similar provi-
sion tor the Union respecting the steward. It may thus be arguable that,
without a steward, there can be no second stage of the grievance procedure.
140
CAPITOL TRU('KING. INC(
their authority, both because the union is the agent of the
bargaining unit, and because it is the principal of the desig-
nee.
Where the union's designee is a member of the union, the
organization possesses a measure of control over his actions
through its intra-organizational disciplinary authority. It
has no such control over a nonmember. If there is no re-
sponsible principal behind the steward, to whom the em-
ployees and the employer can look for redress or discipline
in the event of improper action by the steward, there may
be a loss of remedy. Absent capacity to discipline or remove
the steward, the union may be free of responsibility for his
conduct a result incompatible with the notion that the
bargaining representative is the responsible principal. It
would also remove the union's incentive to police the stew-
ard's actions, except to assure that the) are not contrary to
the union's proprietary interests. And, if the steward is not
answerable to union discipline or removal. and he performs
improperly, what can be done about it? Unless it be con-
cluded that the contractually expressed authority to ap-
point includes an unarticulated power to remove-a some-
what doubtful proposition-under Respondent's view that
the 25 percent provision is mandatory, perhaps nothing.
Such a result scarcely seems to me to be one consonant with
either the objectives of the statute, or one which the parties
envisioned and accepted in enacting article 4. But, even if
the Union possesses the power to remove the nonunion
steward, under Respondent's construction he cannot be re-
placed, because there is no other person within the 25 per-
cent group. This, too, leads to an incongruous result, the
effect of which is to nullify an important provision of the
contract and impede the resolution of controversy, with
possible destablizat:ion of labor peace in the enterprise-all
without any discernible offsetting benefit, or preservation of
a bargaining trade-off.
I deem it unlikely and the record lacks evidence-- that
the parties so contracted. For that reason, the contract pro-
vision is to be construed as conditioned upon the existence
of a person within the top 25 percent available and willing
to serve as steward, and acceptable to the bargaining repre-
sentative whom he will represent. Carr not being acceptable
to the Union, he was ineligible and unavailable. It may be
added-without determination that the fact is necessarily
dispositive-that there is no evidence that Carr is willing to
assume the post. Baker not wanting the position, he also
was unavailable. Administration of the agreement and the
Union's representative obligations warranting the appoint-
ment of a steward, indeed requiring it, the next available
eligible in line was Payne, and Respondent was therefore
required to recognize and deal with him upon designation
by the Union. The refusal of Respondent to do so was
therefore interference, restraint, and coercion of employees,
violative of Section 8(a)(I) of the Act, in the exercise of
their rights, guaranteed in Section 7 of the Act, to self-
organization and to bargain through representatives of their
own choosing.
I find it unnecessary to decide whether a contractual pro-
vision which effectually prevents a union, the bargaining
representative, from designating a steward for the bargain-
ing unit, is incompatible with the Act and for that reason
not enforceable as a matter of law.
2. The work assignments
It has been seen that Respondent changed the system of
priority in work assignments from a seniority to a rotational
basis, contrary to both the contract and prior practice. Such
a change in conditions of employment requires prior con-
sultation with the bargaining representative, unless autho-
rized by agreement. Here, there was neither consultation
nor authorization. The management rights clause in the
contract is not interpretable as permitting the unilateral ac-
tion.
Payne's response to President Roach's proposal to
change to the rotation system, to the effect that Payne op-
posed it but that it was up to the men, cannot be considered
consultation with the bargaining representative, in view of
Respondent's consistent refusal to recognize Payne as a
union representative. But, even if it be considered that
Roach was addressing Payne as the union representative,
and Payne replied in that capacity, Payne's response was
clear the Union opposed it. That exchange could scarcely
be considered bargaining. Nor did Payne's statement that
the matter was up to the men constitute an authorization
for Roach to poll the employees. That was a function for
their bargaining representative, and not Respondent. But, if
there was any doubt as to the personal preferences of the
men, they were subsumed in the statement of employee
Clarke to President Roach, when Roach suggested that the
men consult the Union about it, that they did not have to,
as Payne was the shop steward. That suggestion Roach re-
jected. Thus, Respondent's unilateral action was not autho-
rized by the contract, by the Union, or by the Act. If Re-
spondent had any doubts on that score, Union
Representative Pinkney's vigorous protest was more than
adequate to dispel them.
Respondent additionally contends that, in any event, it
did not put the rotational plan into effect-hence it took no
unilateral action. That contention is not sustained. The evi-
dence establishes that the plan was actually in operation for
a period of time, and there is no affirmative evidence that is
was abandoned.
But even if it be concluded that it was not, under the
circumstances, an unfair labor practice for Respondent to
substitute rotation for seniority as a basis for work assign-
ment, the incident reflects Respondent's antagonism toward
Payne as a union steward, an attitude reflected in President
Roach's scatalogical characterization of Payne in response
to Clarke's suggestion that Payne was the shop steward:
"Payne ain't shit," and in Roach's testimony that he was
"shocked" that Payne should go to Pinkney about the prob-
lem, rather than to Roach. That the collective-bargaining
contract provides that differences between Respondent and
the Union or the employees as to the meaning and applica-
tion of the contract should, in the first stage, be settled
between the employee involved and the Respondent's su-
perintendent, is not a defense. Section 9(a) of the Act per-
mits grievances to be adjusted without the intervention of
the bargaining representative, provided the representative is
afforded opportunity to be present at the adjustment. I will
assume, without deciding, that the contract here permits a
grievance adjustment without presence of the representa-
tive, and that such an authorization is lawful. However.
141
DE('ISI()NS OF NAIO()NAL LABOR RELATIONS BOARDI
authority, statutory or contractual, to adjust the grievance
of a particular employee does not carry with it authority to
modify terms or conditions of employment affecting all
members of the bargaining unit. Otherwise, the contract,
and the proviso to Section 9(a). becomes a ready means of
revising fundamental contract terms by grievance adjust-
ment, perhaps ex parte. The contract here is not to be con-
strued as embodying such a principle.
It is therefore found that by changing work assignments
for drivers from a seniority to a rotation basis without con-
sulting the Union, Respondent violated Section 8(a)( 1) and
(3) of the Act.
3. The termination of Payne on October 31
Immediately after the confrontation between President
Roach and Payne concerning the assignment of work,
Roach began to inspect the trucks and found the plastic
bucket and the bottle of liquor in Payne's truck. Roach
immediately discharged Payne, despite Payne's disclaiming
knowledge as to the liquor. Drinking on or near the prem-
ises on nonworking hours was apparently not uncommon, a
fact of which Roach seems to have been aware. Roach tes-
tified that he did not know whether or not Payne drank
hard liquor, though Payne's testimony is that Roach did
know. In any event, investigation would have disclosed that
he did not, and thus would not likely be responsible for the
bottle in the truck.t Accepting Respondent's contention
that Payne was accountable for the condition of the truck.
it is not established when the liquor was placed there, or by
whom. Payne's testimony is that he had checked the truck
the day before. When Roach discovered the liquor. Payne
was filling the water tanks of the truck in connection with
taking on a load of concrete. Assuming that Payne was
negligent in permitting the plastic bucket to remain in the
cab and in not checking the cab before driving the truck
under the loading chute, that offense alone scarcely seems
so substantial as to have motivated his immediate discharge
without further questioning. In any event, President
Roach's testimony is that Payne's discharge on this occa-
sion was solely for having the liquor bottle in his truck. In
the circumstances, I infer that Roach's summary action was
a consequence of, and in reprisal for. Payne's persistence in
claiming to be the union steward and in opposing Respon-
dent's establishment of a rotation system of work assign-
ment. The discharge was therefore violative of Section
8(a)(1) and (3) of the Act.
4. The November termination of Payne
The termination of Payne's employment in November
1977 must be evaluated against this background. When so
considered, I think it, too, was a consequence of Payne's
concerted and union activity. Whatever the Respondent's
I Though Payne did drink hard liquor in the early 1970s. as the facts stated
in fn. 6. above, suggest, he has not done so since his operation in 1975. on
doctor's orders. From their undenied associalion on or in the vicinity of
Respondent's premises after work hours, in circumstances in which there was
drinking, it would appear that Roach must have known whether or not this
was true; but the point need not be decided.
purpose in requiring the filing of a new application for em-
ployment by Payne, it seems evident that the Union and
Payne were suspicious of Respondent's motives. Thus,
union representative Pinkney told Payne that Payne did not
have to file the application, a judgment in which Union
President George concurred. When Payne indicated that he
wished to do so, he brought the partially completed appli-
cation to Pinkney for approval. Pinkney, in turn, consulted
Union President George. George's testimony in this con-
nection is significant:
1l told Payne] I thought it would be kind of ridiculous
for him to be out of work as a result of what I consid-
ered to be a silly position that the company had taken
on the application, but at the same time. I explained to
him the i/ there was informnalion that he would he re-
quired to include on this document that might conflict
with his original application, then wte wsourtd vant to he
estremelv careiul in the completion o/' thi documeit.
[Emphasis supplied.]
And at that time he said to me, to the best of my
recollection, that he really had no objecting sic] to
completing the matter further.
So I said, look, if its going to get you back to work.
why don't you go ahead and complete it.
By completion. George was referring to the addition of
the names of local employers for whom Payne had previ-
ously worked.
When Payne turned over the application to President
Roach, he took the precaution to mark it "duplicate." It
thus seems evident that Payne and the Union suspected
that Roach might be seeking a pretext for again discharging
Payne. perhaps by comparing answers on both applica-
tions.
In those circumstances, Pane's reluctance to answer all
the questions on the second application was a forseeable
consequence of, and directly attributable to, Respondent's
prior antagonism toward Payne and its discriminatory
treatment of'him in connection with his appointment and
conduct as a steward. I so find. Payne's discharge for failure
to complete the application was an inseparable part of the
whole pattern of conduct connected with his appointment
as union steward, all of which together constituted a mosaic
of unfair labor practices. This is not to say that because an
employer commits an unfair labor practice it is estopped
from enforcing its rules or securing legitimate information
relevant to the conduct of its business. It is merely to hold
that where the employer's unfair labor practices lead di-
rectly and forseeably to employee reluctance to provide in-
formation, discharge as a consequence of that reluctance
may be nothing more than a continuation of the unfair
practices. So here. Examination of the applications filed by
the five other drivers employed by the Respondent during
the period in question reveals that none of them filled out
his application completely. Apart from questions on the ap-
plication as to identification (name, address, etc.) and vital
statistics (weight, height, etc.), of the 30 or more items on
the application requiring responses. only 4 were answered
by all applicants. While it would not be unreasonable to
conclude that failure to answer some of the questions could
be considered of less than critical importance if the overall
142
CAPITOL TRli(KIN(G IN(C.
answers indicated that the applicant was qualified for the
job, the significant point is that job qualification was the
essential characteristic sought. Though Payne failed to an-
swer a number of questions related to his driving record, so
did James Green a driver hired after Payne's discharge.
Green did not answer the questions as to whether he had
ever been disqualified under Federal motor carrier regula-
tions, or whether he had ever been denied a permit, or had
one suspended or revoked - questions which Payne also did
not answer. President Roach questioned Green as to the
omissions, and satisfied himself that Green was eligible for
employment. That action is indicative of discrimination in
the treatment of Payne. No reason is apparent, or sug-
gested. as to why Roach questioned Green about omissions
from his application, but did not do so as to Payne. Roach's
only explanation. when queried as to that omission, was
that "there was reasons," which, presumably significantly.,
he did not give. In any event, Payne's failure to answer
those questions could not have been factors in rejecting the
application. Some of the Respondent's drivers have acci-
dent records. From their common employment in the in-
dustry, Roach had known Payne for over 10 years, knew
him as an experienced driver, and hired him for that reason.
Driving records are securable from state authorities and
prior employers, and if Payne's failure to supply his was a
material omission, Respondent could easily have secured it.
After Payne had been hired, Howat's Safety Director Kelly,
mistaking the application of one Irvin Payne for that of the
discriminatee, asked President Roach whether he was
aware that Payne had had an upset. Roach replied that
Payne was a good operator, and that Roach was going to
keep him. As Roach testified in connection with the deci-
sion to reinstate Payne in October, "we decided the man
was a decent driver and we would give him another
chance." Respondent at no time voiced criticism of Payne
as a driver. The driving information which Payne omitted
to supply in his duplicate application related to incidents
which occurred in the early 1970s. There is neither evidence
nor suggestion of delinquency or misconduct by Payne
since that time, or of any subsequent driving habits or rec-
ord militating against his employment. In the light of Re-
spondent's hiring practices, it cannot be said that the
omitted information established Payne's ineligibility for
hire under the Respondent's standards. The omissions
could not therefore have affected his continued employ-
ment by Respondent. On other occasions, when Howat
Safety Director Kelly spoke to President Roach disapprov-
ingly about the driving of other applicants whom Roach
wished to hire, Roach told Kelly that it was his fleet and he
would make the determination as to who did the driving, a
view in which Kelly seemingly concurred. There is no evi-
dence or contention that either Howat or the insurance car-
rier objected to, or refused to approve. Payne as a driver.
Hence. the discharge cannot be attributed to them. Payne's
testimony is undenied that in the past 3 years (the period
covered by the inquiry in the application) he has had no
driving accidents.
In the light of these considerations, I find that Payne was
terminated in violation of Section 8(a)( I ) and (3) of the Act
because of his union and concerted activities, and not be-
cause of his failure to file a completed employment applica-
tion.
5. The majorit' question
In defense. Respondent additional i asserts that at the
time it signed the union contract, August 22. 1977. the
UIniton represented only two of the four drivers then on the
Respondent's payroll, Payne and Paul Henson. and thus
did not represent a majority of the employees in the con-
tract unit. Consequently. Respondent contends that the
Union was not the statutory bargaining representative, and
Respondent was under no duty to recognize Payne as the
steward, or to consult with the Union prior to changing the
work assignment system. Respondent thus pleads the ille-
gality of its conduct as a bar to accountability for it.
In the week of August 27, 1977. 1 week after the contract
was signed. Respondent hired Eugene Clarke, who, I infer.
was a member of the Union, since his application. dated
November 8. 1977, states so in response to a question on the
application asking union affiliation. The answer on Grant
Baker's application for employment, dated May 16. 1977.
to the question as to his union affiliation, is "456." It has
been seen that in October 1977. Payne brought Baker's dues
in the Union to Business Representative Pinkney.
I do not find Respondent's contention sustained. Assum-
ing that the Union did not represent a majority at the time
of the execution of the contract, it did so I week later. upon
the hiring of Clarke. Thereafter, Respondent continued to
recognize the Union. and the Union continued to represent
the employees. It is therefore found that beginning on Au-
gust 27. if not before, the Union represented a majority and
Respondent continued to recognize it pursuant to the con-
tract. The occurrences which are alleged as unfair labor
practices occurred after that date and at a time when the
Union was clearly the representative. It will be noted that.
as late as October 1977. Respondent was maintaining that
the contract authorized its refusal to recognize Payne as the
shop steward. Thus, Respondent was continuing its recog-
nition of the Union and the contract at a time when the
Union represented a majority of the employees.
If it be assumed that the contract could not be validated
retroactively, and thus was void, the result is the same.
Once the Union achieved majority status, it was Respon-
dent's obligation to deal with it as the representative,
whether there was a valid contract or not. And Respondent
did apparently so recognize the Union. Respondent was ob-
ligated, with or without a contract, to deal with the persons
designated by the Union to represent it and to consult with
the Union before revising conditions of employment. It did
neither. Hence both acts were violative of the statute.
Other factors militate against consideration of the Re-
spondent's defense in this regard.
Board authority precludes the assertion of one's own mis-
conduct as ia defense to unfair labor practice charges. Thus.
in the case of Aealt and Provision Driv ers. local '26 Team-
.ster (WIasington Rendering Co.. Clarence L. Brown). 126
NLRB 572, 573 574 (1960(). the Board said:
As the Board has held in other situations, a parts may
not assert misconduct in which it participated as a de-
fense to actions otherwise in violation of the Act.
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See also Bender Ship Repair Co., 188 NLRB 615, 629
(1971); 25 NLRB Ann. Rep., 100 (1950).
Moreover, the statute of limitations contained in Section
10(b) of the Act precludes assertion at this time that the
contract was unlawful because the Union did not represent
a majority of the employees at the time of execution, Au-
gust 22, 1977. No unfair labor practice charge was filed
within 6 months of the date of execution. Neither did Re-
spondent or anyone else make any such claim within that
period. It therefore may not now be found that the contract
was invalid. Local Lodge No. 1424, International Association
of Machinists. etc. Bryan Manufacturing Co.] v. N. L.R.B.,
362 U.S. 411 (1960); Barrington Plaza and Tragniew, Inc.,
185 NLRB 962 (1970); International Ladies' Garment
Workers' Union, A FL-CIO [Bernhard-A tmann] v.
N.L.R.B., 366 U.S. 731 (1961). Since the Court's decision in
the Bryan case issued after its decision in the Altmann case,
I infer that the charge in Altmann had been timely filed.
Otherwise, the Court would presumably have found the
complaint untimely, as in Bryan. There was thus statutory
authority to find the unfair labor practice in Altmann
unlike Bryan and the instant case, where there is not. The
fact that the Union may have sought to enforce the instant
contract within the 6-month period is not a distinguishing
characteristic-any more than it was in Bryan.
In any event, even if I were to find that the Union was
not a majority representative at any material time, the facts
recited heretofore are of material bearing on the question as
to whether Respondent terminated Payne because of union
and concerted activities in violation of Section 8(a)(1) and
(3) of the Act.
It is therefore found that by refusing to recognize Gilbert
Payne as the duly designated shop steward of its employees,
and by changing work assignments for truckdrivers from a
seniority to a rotation basis without consultation with the
Union, the collective-bargaining representative of Respon-
dent's drivers, by terminating the employment of Gilbert
Payne on or about October 21, by refusing to permit Payne
to work until he had completed a new employment applica-
tion, and by terminating Payne's employment on Novem-
ber 15, 1977, Respondent engaged in unfair labor practices
violative of Section 8(a)(1) and (3) of the Act.
Effectuation of the policies of the Act requires a remedial
order.
On the basis of the foregoing findings and conclusions.
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'
The Respondent, Capitol Trucking, Inc., Washington,
D.C., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, permanently replacing, or otherwise dis-
criminating against employees because they engage in
union or concerted activities.
(b) Refusing to recognize the duly designated shop stew-
ard of its employees.
(c) Changing work assignments of employees without
consulting their collective-bargaining representative.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Gilbert Payne reinstatement to his former
position and make him whole for any loss of pay or other
benefits he may have suffered by reason of the discrimina-
tion against him, in accordance with the Board's usual poli-
cies.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its business copies of the attached notice
marked "Appendix."' ° Copies of said notice, on forms pro-
vided by the Regional Director for Region 5, after being
duly signed by Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
' 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 findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
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.
0 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
144