Complete Auto Transit, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 652 (N.L.R.B. 1961)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for the Nineteenth Region, shall, after being duly signed by a
representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended'
Order, what steps the Respondent has taken to comply herewith.
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report and Recommended Order, the Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage affiliation with United Plant Guards Amalgamated,
Local No. 5, or any other labor organization, by discharging our employees, or
by discriminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named Union, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as authorized by the National Labor Relations Act.
WE WILL offer Peter Cochran immediate and full reinstatement to the posi-
tion he formerly held, or its equivalent, without prejudice to seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
GENERAL PLANT PROTECTION CORPORATION,
Employer.
Dated------------------- By-------------- ---------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Complete Auto Transit, Inc. and Neal Dugger and Robert W.
Robinson . Cases Nos. 14-C%1-2350 and 14-CA-2350-2. Novem-
ber 22, 1961
DECISION AND ORDER
On March 7, 1961, Trial Examiner George J. Bott issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its.
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptiollu to the Intermediate-
Report and a supporting brief, and the Respondent filed a reply brief."
1 The General Counsel filed a motion to strike Respondent's brief to the Trial Examiner-
which the Respondent had refiled as part of its reply brief. The motion is hereby denied,
134 NLRB No. 59.
COMPLETE AUTO TRANSIT, INC. 653
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
,of the Trial Examiner.2
[The Board dismissed the complaint.]
as Respondent was granted permission to file a reply brief, and its reply brief was timely
filed
2 In finding that the Respondent did not violate the Act in discharging Robinson, we
are not finding that Robinson , whose case has not , so far as appears , been finally deter-
mined by the grievance panel, was or was not an instigator of the strike In his case, as
well as in Dugger 's, we are merely adopting the findings of the Trial Examiner that
Respondent was not shown to have condoned instigation of the strike or to have had an
unlawful motive In taking the disciplinary action Nothing herein, however , is intended
to prejudice or otherwise affect the disposition of Robinson 's case before the grievance
panel
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges of unfair labor practices duly filed against Complete Auto Transit,
Inc., herein called the Respondent or Company, the General Counsel of the National
Labor Relations Board issued a consolidated complaint and notice of hearing dated
September 16, 1960 , alleging that Respondent had engaged in unfair labor practices
in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as
amended. The answer of Respondent admitted certain allegations of the complaint
but denied the commission of any unfair labor practices . Pursuant to notice, a
hearing was held before the duly designated Trial Examiner at St . Louis, Missouri,
on October 24 and 25, 1960 . The Respondent , General Counsel, the Charging
Parties, and Local 624 were represented at the hearing and were afforded oppor-
tunity to adduce evidence , to examine and cross -examine witnesses, to present oral
argument , and to file briefs . Briefs were filed by Respondent and General Counsel
which l have considered.
Upon the entire record 1 in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Complete Auto Transit , Inc., is and has been at all times material herein, a
Michigan corporation engaged in the trucking service business with a terminal in the
city of St . Louis, Missouri . Respondent , in the course and conduct of its business
during the year 1959 , received gross revenues for transportation services in excess of
$29,000 ,000, more than $50,000 of which was earned for transporting goods and
materials from the State of Missouri to points outside the State Respondent con -
cedes, and I find, that Respondent is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 604, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America ,2 is a labor organization within the meaning of Section
2(5) of the Act.
'General Counsel and Respondent filed motions to correct the record General Counsel
agrees with all corrections suggested by Respondent and Respondent ' s motion is therefore
granted Respondent agrees" cith General Counsel's suggested changes with certain e_xcep-
tions and General Counsel has agreed with some of Respondent ' s exceptions to his motion
but insists that the words "No, not" should be inserted on page 78, line 4 I do not
recall the witness making such a statement and I therefore deny General Counsel's motion
In that respect
2 Sometimes herein referred to as Local 604 or the Union
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The setting and the issues
The Company and Teamsters Local 604 were at all times material in this case
parties to a valid labor agreement containing a detailed grievance procedure and a,
broad no-strike clause. On June 1, 1960, a gathering or assemblage of Respondent's
drivers which lasted for many hours took place and as a result Respondent's opera-
tions were seriously curtailed. The Charging Parties, Dugger and Robinson, par-
ticipated in the assemblage. Within a day operations were restored and all
employees returned to work but Dugger and Robinson were subsequently fired.-
General Counsel claims that Dugger and Robinson were discharged for engaging
in protected union activity and, in the alternative, that if the activity was not pro-
tected as being in violation of contract, then Respondent condoned the misconduct.
Respondent, on the other hand, contends that the June 1, 1960, assemblage was a
strike in violation of contract and that although it did not discharge mere participants
as it had a right to do but restored them to employment, it discharged Dugger and'
Robinson for instigating a wildcat strike in violation of contract.
B. Respondent's business and method of operation
Respondent is a contract motor carrier hauling automobiles exclusively for the.
Chevrolet Division of General Motors and maintains a terminal in St. Louis, Mis-
souri, which provides services for the Chevrolet assembly plant located there. Re-
spondent owns a large storage lot adjacent to the Chevrolet plant where the great-
bulk of cars handled by Respondent are delivered by Chevrolet to be picked up and;
delivered by Respondent. Respondent is informed by Chevrolet which cars are to,
be delivered to dealers in widely scattered areas of the country and Respondent's
office makes up loads based on that information. The loads must be moved within
a time specified by Chevrolet. After the loads are made up "on paper" Respondent's.
drivers are called in groups of 10 to 20 and assigned to particular loads on a
seniority basis. When a driver has been assigned a load he picks up his tractor--
trailer equipment at the Company's main terminal and proceeds to the storage lot-
near the Chevrolet plant where he receives the cars, loads them, and proceeds to
make delivery without return to the main terminal of the Company. In some-
cases, a driver may be assigned several short trips at once, and thus may make sev-
eral deliveries in 1 day without returning to the terminal between loads. Such is.
the case of drivers who deliver several "piggyback" loads a day to railroads for
shipment by rail.
The Company competes for car-hauling business with other means of transporta-
tion, such as railroads; and during the spring of 1960 had been advised that Chevro--
let would change its procedure and assign all its business to the Company. June 1,
1960, was established as the date for such change which would increase the Com-
pany's business by about 30 percent. This information was given to the Company's-
drivers and was common knowledge at the terminal.
C. The Company's dispatching procedure
Prior to June 1, 1960, Respondent normally moved from 1,000 to 1,300 cars a.
day, at 4 to 5 cars a load, or 200 to 300 loads a day. Since some loads were short-
haul "piggyback" loads to railroads and some drivers could handle several loads a
day, about 100 drivers might be called or dispatched in 1 day. To handle this work
the Company employed a pool of 499 drivers on a seniority list. On June 1, 1960,.
which was a typical day, 300 of the drivers were unavailable for call or dispatch
because they were already out on a trip, were out of hours under Interstate Com-
merce Commission regulations, or their equipment was in for repair.
Under existing terminal practice, drivers who were available for work were to.
keep in touch with the telephone number designated by them to be called when they
were due for a load. As the dispatcher was given a list of loads to be delivered, he
would telephone the top 10 to 20 available drivers on the seniority list to come in.
If a driver on the seniority list did not answer the dispatcher would proceed down
the list, periodically recalling the passed name, until he had a sufficient number of
drivers to handle the work. From time to time, drivers with seniority would come
into the terminal without being called and they would be entitled to be dispatched
with the others. For this reason and to avoid jamming the terminal with drivers
who could not be immediately dispatched, the dispatchers usually worked with a
group of about 10 to 20 drivers rather than caling at one time all the drivers that
would be needed that day. Each driver would have 2 hours in which to report for
work after being called.
COMPLETE AUTO TRANSIT, INC. 655
D. The events of June 1, 1960
Melvin R. Hunt, branch manager of Respondent, reported to the terminal about
8:15 a.m. on June 1, 1960, and about an hour later saw a group of employees as-
sembled at the corner adjacent to Respondent's terminal. Hunt talked to the group,
which was made up of about 50 to 60 drivers, and was told by them that they were
unhappy with the dispatching system and had other problems. Hunt told the drivers
that on that day Respondent was taking over maximum Chevrolet production and a
"work stoppage or slowdown was no way to satisfy the needs and demands of our
shipper." He asked the men to come to work and reminded them that the collective-
bargaining contract provided an orderly procedure for handling grievances.
The Charging Parties, Dugger and Robinson, were aware of the employee gather-
ing before Hunt. Robinson received a telephone call at home about 6 a.m. on June 1
from an unidentified caller who said "we" are going to have a meeting and asked
Robinson to come. Robinson proceeded to the terminal and saw about 50 men as-
sembled there but sat in his car for about 10 minutes without speaking to anyone
until Hunt arrived. Hunt asked him what was going on but Robinson answered
that he didn't know. Dugger was not available for work on June 1 because his
equipment was down for repair. He denied prior knowledge of a "meeting" but
stated he came to the terminal to drop off another driver. Dugger arrived about
8:30 a.m., observed the group of about 50 men and some of them told him they
were dissatisfied and might have to strike. Dugger told the men that it "was against
the law for a wildcat strike and against our collective bargaining agreement .
and volunteered to call the union business representative for the men. Dugger, in
his words, told the men "what should be done" and he made a number of telephone
calls to union officials and stewards who had no prior knowledge of what was going
on. Dugger told the union president, Jerry Turner, that the men wanted a meeting
and also told him where the men would be meeting. Turner promised to come
to the meeting.
Dugger, after his telephone calls, returned to the terminal gate where Hunt was
now talking to the men. Hunt, according to Dugger, had told the drivers about in-
creased business from Chevrolet and Dugger told Hunt, "That is all well and fine
but we can`t live on promises, we are not getting dispatched, we are losing revenue "
Glenn Six, business agent of Local 624, was now on the scene and Dugger told him
that there would be a meeting at Legion Hall.
Branch Manager Hunt returned to his office, directed his dispatchers to continue-
telephoning the drivers and to do everything they could to get the loads dispatched.
These instructions were carried out and the entire panel of drivers was telephoned
during the day. The dispatchers had begun their calls about 6 a.m. and some drivers
had already been reached and dispatched. Other drivers, however, had accepted
assignments but did not report and were in fact seen at the gate when Hunt talked
with the men. After Hunt's return to the terminal, only two over-the-road loads
went out for the rest of the day. Some drivers who were reached by telephone and
said they would report did not actually do so. The number of cars shipped dropped
from an average of over 1,000 to 339 cars and most of those were delivered by
piggyback drivers and others who had begun work early in the morning before the
gathering of drivers began. Chevrolet continued to deliver cars to Respondent and
the number of cars on hand rose to only 268 short of capacity.
The group of employees at the terminal gate adjourned to the Legion Hall, leav-,
ing a few men at the gate. The meeting at the hall lasted until 2 a in. the following
morning. During the morning of June 1, 1960, Hunt, who had returned to his office
after talking with the men at the gate, received a telephone call from Dale Ferris,
secretary-treasurer of the Union. Hunt described what was going on and Ferris told
him that the Union did not call the meeting, knew nothing about it, and had nothing
to do with it. Hunt reported the situation to company officials in Detroit and under -
instructions sent two telegrams to the Union demanding to know the Union's part in
what the Company considered a strike in violation of contract, and insisting upon an-
immediate resumption of work. These telegrams were subsequently read by Dale
Ferris to the membership 3 meeting at the Legion Hall but the employees did not
return to work.
When Dugger arrived at the Legion Hall none of the union officials were there
Dugger told the men that they should have their grievances in writing and he helped
them write them out. When the president of'the local arrived Dugger handed him
the gavel and turned the meeting over to him. Some discussion was had about the
labor agreement and it was decided to send a delegation to the union hall to search-
8 The labor agreement contained a union-shop clause.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a signed copy . Dugger explained that a signed copy "made all the difference
in the world ." 4 The assembled employees asked union officials to try to get
management to talk to them and sent a committee of officers and stewards to arrange
it. After about 8:30 p .m., the meeting at the Legion Hall consisted of an "old
time hoe-down" in Dugger's words, the drivers having brought their musical
instruments.
Meanwhile , about 7 p .m., Kinsey, president of Respondent , and Carney Matheson,
an attorney who handles Respondent 's labor relations, arrived in St . Louis from
Detroit and registered at a motel . Around 9 p .m. Matheson received a telephone
call from Dale Ferris, official of the local , who said he had a committee of drivers
who wanted to talk to company representatives. Ferris pointed out that "he had
nothing to do with it . I was merely asked to bring these men to you.. " Matheson
later met with the committee and Ferris at the motel and told them he would not
meet with a "rump " group . He advised the committee that he considered their
actions -a violation of contract and that he intended to get to the bottom of the
strike and find out who "instigated" it. Mr. Matheson also told the group that he
was sending out wires to all drivers requesting them to return to work or be dis-
charged for their participation in the strike . The following telegram was composed
by Matheson and sent to all drivers including the complainants , Dugger and
Robinson:
You are presently engaged in an unlawful work stoppage and strike in vio-
lation of our collective bargaining agreement Automobile Carrier Truckaway
Agreement, particularly Article 7 of said agreement. You are hereby ordered
to report for work by 5 AM Thursday June 2 1960 to be scheduled for work
or you will be discharged for your participation in the unlawful work stoppage.
In the event you fail to appear this will serve as your notice of discharge.
Complete Auto Transit Inc., M. R. Hunt Branch Mgr.
The committee left the company representatives at the motel, returned to the
Legion Hall, and reported to the drivers. The meeting of the drivers broke up about
2 a.m. on June 2, 1960, and the men reported for work. Dugger went with a group
to the terminal and advised the assistant manager that the men were now ready
to work.
E. The discharge of Dugger and Robinson
Dugger and Robinson returned to work with the rest of the drivers and the Com-
pany began an immediate investigation to determine who was responsible for the
strike About 125 drivers were interviewed by supervisors who made notes of the
interviews which were then given to Branch Manager Hunt. The investigation dis-
closed that Dugger and Robinson, as Hunt testified, "participated in the meeting
that was held, up front talking to the men at the microphone, generally, leading the
group." The investigation did not satisfy the Respondent that either the local union
or any individual, including Dugger or Robinson, was responsible for the work
stoppage, but revealed enough to cause the Company to believe that Dugger and
Robinson, among others, had not only participated in the stoppage but also insti-
gated it. As a result the Company filed grievances under the contract against the
local and 20 individuals in order to fix responsibility for the instigation of the strike.5
On June 7, 1960, Respondent sent letters to Dugger and Robinson advising
them of the filing of the grievance and stating in part that:
The company has reason to believe that you as an individual were not only
involved in the unlawful work stoppage, but you were one of a small group
who instigated said unlawful strike and work stoppage. . . .
The grievances were heard by a local panel pursuant to the labor contract and all
except eight were dismissed by the panel for insufficient evidence. The other griev-
ances were deadlocked at the local panel and appealed to the national level at
Detroit where the grievance against Dugger was upheld on the ground that he was
one of the "instigators" of the unlawful work stoppage . Robinson 's case was post-
poned at his request because of illness. Cases against other employees were dis-
missed for lack of proof that they were "instigators" and the case against Local 604
was dismissed on the ground that it was not responsible for the stoppage . Robin-
son's case was twice continued at his request and remains pending before the panel.
After the determination against Dugger , the Company fired him and also discharged
4 Robinson , who was at the hall most of the time , participated in the discussion about
the contract.
5 For a similar proceeding see University Ove, land Empress, Inc., 129 NLRB 82.
COMPLETE AUTO TRANSIT, INC. 657
Robinson because it believed that its case against Robinson was as strong as its case
against Dugger . The Company fired the two men for instigating the strike but not
for their participation.
F. Discussion and concluding findings
1. The nature of the "meeting " of employees on June 1 and 2
Prior to June 1, 1960 , Respondent normally moved over 1 ,000 cars a day. On
June 1, in Manager Hunt 's words, and the record supports his statement , Respon-
dent 's operations were "virtually paralyzed ." Beginning on the morning of June 1
and ending in the early hours of June 2, company drivers gathered at a hall and
discussed their grievances . General Counsel seems to suggest that there was no
connection between the Company's paralysis on June 1 and the employee meeting
on the same day but the suggestion carries its own refutation . The record shows
no flood, fire, or other catastrophe which might impede transportation in St. Louis
on June 1 and it would appear , therefore , that the "meeting" and disruption of
operations speak clearly for themselves and their intimate connection is apparent.
The meeting of employees was a concerted interruption of operations by employees
and a strike within the meaning of the Act .6 Moreover , the record also shows
persistent efforts by Respondent to keep its operations going by calling all its
drivers; 7 that Hunt described the massing of men before the terminal as a strike
without disavowal by the men; that he urged a return to work and a proper filing
of grievances without success; that Dugger 's first words to the men on June 1 were
that they did not want a "wildcat "; that union officers told the men that they might
be in violation of their agreement ; that the Company sent telegrams to the Union
describing the situation as a strike in violation of contract which wires were read
to the assembled employees without effect ; that Dugger admitted that the Com-
pany could not have operated normaly on the day in question "with so many drivers
away ." ; that Robinson , the other complainant , admitted he was willing to work
only when the meeting was over; that employee Cope went to the terminal to get
a load but saw the men at the gate and went to the meeting ; and that Dugger went
to the terminal with a group of other drivers after 2 a.m. on June 2 when the
meeting had broken up, and at that time advised the Company that the men were
ready to work . I find on the basis of above, including the more detailed findings
in subsections B, C, and D of this section III , that Respondent 's employees engaged
in a strike in violation of contract on June 1 and 2 , and that Dugger and Robinson
participated in it . Since the strike was in violation of an existing agreement all
employees who participated in it, including the complainants , engaged in unpro-
tected activity and were subject to discharge by the Company.8
2. Condonation
An employer who forgives employees' misconduct, such as picket line mis-
conduct or strike in breach of contract, may not later assert such misconduct as
a defense to charges of discrimination against them particularly if they have been
restored to their jobs and operations have been resumed .9 Respondent's telegram
to its drivers demanding their return to work by a certain time under penalty of
discharge and the consequent resumption of normal operations was, as Respondent
concedes in effect, a condonation of the strikers' participation in the strike. Re-
8 Title 5, section 501 ; Kaiser Aluminum if Chemical Corporation, 104 NLRB 873,
876-877, reversed on other grounds 217 F. 2d 366 (C.A. 9).
7 I do not consider the testimony of employees Hutchinson, Bruhn, and Cope about not
being dispatched to be basically in conflict with Hunt's positive and direct account of
Respondent' s efforts to dispatch drivers and the effect of its failure.
8 N.L R.B v. Sands Manufacturing Go, 306 U.S. 332 , 344; W. L. Mead, Inc, 113 NLRB
1040; whether or not Dugger and Robinson were required to be at work on June 1, 1960,
is immaterial for they were active participants in the unprotected strike See United
Electrical, Radio and Machine Workers of America, Local 1113 ( Marathon Electric
Manufacturing Corp.) v N L R B , 223 F. 2d 338 (C.A.D.C )
8 N L.R.B. v. E. A. Laboratories, Inc., 188 F. 2d ,885 (C .A. 2) ; Plasti-Line, Incorporated
and Harry Brooks, Ralph P. Brooks, and Bruce M Edwards, d/b/a Sign Fabricators,
123 NLRB 1471, reversed 278 F 2d 482 (C.A. 6) ; The Carey Salt Company, 70 NLRB
1099, Sam Wallwk, at at., d/b/a Watliek of Schwalm Corp. and Spring Mills Apparel,
Inc., 95 NLRB 1262.
630849-62-vol 134-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent admits that the wires were sent in a "forgive and forget" attitude and
that no employee was fired for his participation in the strike or for failure to comply
with the demand for his return.
Dugger and Robinson returned to work with the other employees and were not
discharged until after grievances were filed by the Company seeking a determination
of responsibility for the strike. General Counsel contends that since Dugger and
Robinson were sent the same telegrams as the other drivers, and subsequently
returned to work with them, the Respondent condoned their misconduct making
their later discharge discriminatory. The Respondent argues, on the other hand,
that the doctrine of condonation has no application to the facts here because
Dugger and Robinson were instigators of the strike and not mere participants and
that the Company did not condone instigation but only participation.
Condonation depends on the facts in each case and the General Counsel must
prove it by the preponderance of the evidence.10 The Board has told us that
condonation may not be lightly presumed." I do not think the record establishes
that the Respondent intended to or did condone instigation of the strike as contrasted
with mere participation. Mr. Carney Matheson • testified, and I have credited his
testimony in the more detailed statement of fact set forth above, that when he met
with a committee sent from the Legion Hall by the strikers, he told them that
Respondent considered their actions a violation of contract and that he intended
to get to the bottom of the matter and find out who "instigated" the strike. At the
same time Matheson told the group that the Company was sending telegrams to
the drivers ordering them to return to work or be discharged for their participation
in the stoppage. The committee left the company officials and reported back to
the drivers. At the time Matheson dictated the telegrams to the drivers he did
not know who was responsible for the strike. I find his action in sending a wire
to all strikers ordering their return not to be inconsistent with an intention to in-
vestigate the matter further to determine who was responsible for instigating the
strike The strike materially affected Respondent's operations, injured its business
relationship with Chevrolet, and a similar -incident had happened before. It is
easy to believe that under such circumstances Matheson, as the chief spokesman
for the Company, intended to forgive mere strike participation only but to take
steps to prevent a recurrence of similar interruptions of operations in the future.12
The Respondent's actions in causing an immediate investigation to be made and
filing grievances under the contract against a group of individuals is also consistent
with a determination not to forgive those actively responsible for the strike.13 I
find that under all the circumstances General Counsel has not established by a pre-
ponderance of the evidence that Respondent condoned the actions of those who
instigated the strike of June 1.14
3. Respondent's belief that Dugger and Robinson instigated the strike
After the drivers returned to work the Respondent conducted an immediate
investigation to determine responsibility for the walkout. Hunt conceded that his
investigation did not satisfy him as to who instigated the strike but testified
credibly that the investigation revealed enough to cause the Respondent to suspect
that Dugger and Robinson not only participated in but instigated the strike.
Shortly thereafter Respondent advised the two complainants that Respondent had
reason to believe that they were part of a group that instigated the strike and filed
grievances under the contract to determine that issue. Not until the Detroit panel
had determined that Dugger was one of the instigators and after Robinson's case
had twice been postponed did Respondent discharge them. Dugger told a company
supervisor who investigated the strike essentially the same story about his activities
on June 1 and 2 as he gave in the instant hearing. Robinson refused to answer
questions at the local panel hearing because his answers might "incriminate" him.
Leaving aside for the moment the question of whether Dugger and Robinson actu-
ally instigated the strike, I find that Respondent had a good-faith belief at the
time of their discharge that they played more than a passive role in the unprotected
strike and actively instigated it. In making such finding, I rely on Hunt's testi-
mony to that effect; the fact that he conducted an investigation, interviewing about
10 Merck and Company , Inc, 110 NLRB 67, 70
" Kohler Co, 128 NLRB 1062
12 See Softexture Ya2ns, Inc, 128 NLRB 764
12 See Stockham Pipe F2ttings Co, 84 NLRB 629
1' See Bechtel Corporation 127 NLRB 891
COMPLETE AUTO TRANSIT, INC. 659
125 drivers, including Dugger and Robinson; the fact that the Company did not
act precipitately in the circumstances but reasonably and carefully by filing griev-
ances under the contract; the fact that in Dugger's case at least, the panel agreed
with Respondent that Dugger was one of the instigators of the strike; 15 on Dugger's
testimony in the hearing in this case which showed he played a very active role
in the strike and his statement that he told the Company during its investigation
essentially what he testified to at the instant hearing; on Hunt's statement, which
I credit, that the Company considered its case against Robinson as strong as its
case against Dugger. In addition, of special significance in evaluating Respondent's
good faith, is the absence of any evidence or implication in the record that Re-
spondent had any improper motive in its treatment of Dugger and Robinson, or
was motivated by anything other than a desire to fairly fix responsibility for an
unwarranted and expensive interruption of operations.
An employer's good-faith belief that an employee has engaged in misconduct is
immaterial if the activity in which the employee was engaged and for which he was
discharged was activity protected by the Act.'6 In Rubin Bros. Footwear, Inc.,17
the Board in modifying an earlier rule said:
We are now of the opinion that the honest belief of the Employer that striking
employees have engaged in misconduct provides an adequate defense to a charge
of discrimination unless it affirmatively appears that such misconduct did not in
fact occur. We thus hold that once such an honest belief is established the
General Counsel must go forward with evidence to prove that the employees
did not in fact engage in such misconduct.
I have found that Respondent entertained an honest belief when it discharged Dugger
and Robinson that they had instigated the strike. At first glance, however, it might
appear that if General Counsel established that the complainants had not in fact
instigated the strike then Respondent's belief would be no defense. An analysis of
the Board's Rubin Bros. decision and other cases where an employer's honest belief
has been vitiated by evidence that the misconduct did not occur, however, reveals that
the activity in which the employee was engaged was protected activity. In such cases
it is felt unfair to allow employees' rights to engage in conduct protected by the Act
to depend on their employer's state of mind. In Salt River Valley Association, supra,
the court said:
That the Association may have acted in good faith, believing itself justified in
discharging Sturdivant is not material where the activity for which he was dis-
charged was an activity protected by the Act.
In Cusano, supra, it also appeared that the employee involved was engaged in pro-
tected activity and the court concluded that if the conduct giving rise to the employ-
er's mistaken belief is itself protected activity then the employer's erroneous observa-
tion cannot justify the discharge. In Industrial Cotton Mills, supra, in a similar situa-
tion the court reasoned that:
It is true that where the denial of reinstatement results from the employer's
reasonable and sincere mistake, there is no evil intention behind the harm suf-
fered by the employee. While the employer's attitude may not be censurable,
the employee too is free of blame. As between the victim of the mistake and
the person who made the mistake, it seems just that the perpetrator bear the onus
of his own error rather than that the burden should be shifted to the employee
who cannot guard against it.
In the case at bar Dugger and Robinson participated in a strike in violation of
contract, an unprotected activity. While engaged in that unprotected activity, and
as a result of it, Respondent was led to believe that the employees had engaged in
111 do not consider the panel's finding as binding on the Board, but rely on it as evidence
of Respondent's good faith Cf Spielberq Manufacturing Company, 112 NLRB 1080
See also discussion of problem under a similar contract by Trial Examiner Lindner in
University Overland Express, Inc, 129 NLRB 82.
10 N.L R B v. Industrial Cotton Mills (Division of J. P Stevens Co ), 208 F 2d 87
(C A. 4) ; N L R B. v. Salt River Valley Water Users' Association, 206 F 2d 325, 329
(C A. 9) , Cusano d/b/a American Shuffleboard Co. v N.L R B , 190 F. 2d 898, 902-903
(C A. 3)
17 99 NLRB 610 , reversed 203 F 2d 486 (CA 5)
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other unprotected acts. It cannot be said in such circumstances that the employees
,are free of blame or that they could not guard against the situation by taking no part
in the very activity which was unprotected from the beginning . Neither do I see
.how shifting the burden of Respondent 's mistaken behet to employees , while they
,are engaged in unprotected activities , discourages or interferes with their basic rights
under the Act. If anything, such a shifting of risk might very well discourage im-
proper activities and encourage the orderly procedure of collective bargaining.18 As
I read the cases, since Dugger and Robinson were not engaged in protected activities
Respondent 's good-faith belief that they had engaged in other improper acts is an
-adequate defense to a complaint of discrimination regardless of the soundness of
Respondent 's belief.19
If, on the other hand , Respondent 's honest but mistaken belief that the employees
had instigated the strike is not a defense , I do not think that General Counsel has
established by a preponderance of the evidence that Dugger and Robinson had nothing
to do with instigating or provoking the other employees into remaining away from
work. I think this is very clear in Dugger 's case, and so find, but closer in Robinson's.
Both employees actively participated for many hours in a gathering of employees
which I have found to be a strike in violation of contract . Dugger's role, however,
seems to have been greater than Robinson's.
Dugger, as set forth in greater detail earlier in this report , called the union repre-
sentative on the morning of June 1, 1960 , told the men "what should be done";
informed the union officials where the meeting would be held; argued with Hunt in
the presence of the other drivers that the men could not live on promises ; helped the
drivers prepare grievances at the Legion Hall; turned the gavel over to a union official
at the hall; and returned to the terminal at 2 a.m., June 2, with a group of other drivers
and advised the Company they were ready to work.
Robinson , on the other hand , testified , as set forth above, that he got a mysterious
telephone call from an unidentified driver early on the morning of June 1, to the
effect that there was going to be a special meeting. He drove to the terminal and,
although he observed a large gathering of drivers , he sat in his car. Later he told
Hunt that he did not know what was going on. Robinson was in and out of the
meeting at the hall all day and took some part in a demand that a signed copy of the
labor agreement be obtained . After the meeting concluded Robinson went back
to work.
Robinson did not deny that he was , as Hunt testified , at the microphone at the
Legion Hall or was a "leader" in the assemblage . I am not satisfied that he made a
complete disclosure of his activities during the strike or was generally a candid wit-
ness. His testimony was vague and uncertain in spots. I do not believe that he did
not know who called him on the morning of June 1 to advise him that there was going
to be a meeting, or that he could not recall the name of the employee who sat with
him in his car while he watched the gathering of drivers at the terminal . Robinson
was also vague about what was done and said at the Legion Hall but I do not think
his memory was as poor as he portrayed it. On the basis of the entire record, I find
that General Counsel has not established Robinson 's nonparticipation in provoking
or instigating the strike of June 1.
CONCLUSIONS OF LAW
1. Complete Auto Transit , Inc., St . Louis , Missouri , is engaged in, and during all
times material was engaged in , commerce within the meaning of Section Z(6) and
(7) of the Act.
2. Local 604 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent did not discriminate against Dugger and Robinson in violation of
Section 8 ( a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
11 Because the conduct complained of may appear unfair does not make it discriminatory
Underwood Machinery Company, 74 NLRB 641, 646 . An adequate grievance machinery
and arbitration is a device for handling such matters
19 See Underwood Machinery Company , supra ; National Grinding Wheel Company, Inc,
75 NLRB 905 , 907-908; J. W Woodruff , d/b/a Atlanta Broadcasting Company, 79 NLRB
626; Kallaher ct Mee , Inc, 87 NLRB 410