Consolidated Freightways Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 477 (N.L.R.B. 1985)

CONSOLIDATED. FREIGHTWAYS CORP.
Consolidated Freightways Corporation of Delaware
and James Nelligan . Case 1-CA-21426
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND' MEMBERS
DENNIS'AND JOHANSEN
On 5 March. 1985 Administrative Law Judge
Robert T.. Wallace issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a reply brief. '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. - '
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,'findings, and
conclusions'. only to the extent consistent with this
Decision and Order.
We find merit in -the • exception to the judge's
finding that the Respondent terminated employee
James Nelligan in-violation of Section 8(a)(3) and
(1) of the Act. Nelligan was employed by the Re-
spondent as a "casual" driver. In this capacity, he
made deliveries and also worked on the dock of
the Respondent's terminal. During the summer of
1983, the terminal was the site of almost daily am-
bulatory picketing by striking employees of .Cole's
Express. The picketing, which occurred whenever
a Cole's vehicle was present,'-usually lasted. about
10 to 15 minutes. On approximately six occasions in
: July and August 1983, Nelligan ceased working
during the picketing and took a-coffeebreak.2 The
Respondent terminated 'Nelligan on 8 September
1983. The judge concluded that Nelligan was,'ter-
minated because he had honored the Cole picket
line. '
The 'standard used in determining whether an
employer discriminated against an employee. be-
cause of his union activities is set . forth. in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455-U.S. 989
(1982), where the Board-stated, "[f]irst, we shall re-
quire that the General Counsel make a prima facie
showing sufficient to support the inference that
protected conduct was a `motivating factor' in the
employer's decision." A necessary'element in the
General Counsel's prima facie case is a• showing
that the employer had-knowledge of the employ-
ee's union activity. In- the present case, contrary to
1 In light of the disposition of the case , Chairman Dotson and Member
Johansen find it unnecessary to pass upon the judge 's protected concerted
activity analysis.
2 The judge found that Nelligan "had discretion to choose when to
take his morning and afternoon breaks" (JD at 479)
•477
the judge, we find insufficient evidence in the
record to conclude that the Respondent had
knowledge of Nelligan's activity. There is no evi-
dence that the Respondent ever observed Nelligan
when Cole's pickets were present. And, as Nelligan
himself admitted, he honored the picket line by
taking a coffeebreak. Therefore, even assuming that
the Respondent did see him when the pickets were
at the terminal, there is no basis for concluding that
the Respondent knew Nelligan was honoring the
picket line.3 Accordingly, because the General
Counsel has failed to prove an essential element of
a prima facie case, we conclude that the complaint
should be dismissed.
ORDER
The complaint, is dismissed.
S The judge inferred knowledge on the basis of the small -plant doc-
trine, citing L A. Baker Electric, 265 NLRB 1579, 1587 (1983 ), and Wiese
Plow Welding Co, 123 NLRB 616, 618 ( 1959) Unlike the situation in
those cases, however, the employee here took pains to conceal his activi-
ty, and we therefore find that an inference of employer knowledge is not
warranted See W W. Grainger, Inc, 255 NLRB 1106 fn 4 (1981) Chair-
man Dotson does not , in any event, rely on the small-plant doctrine ,
Benjamin Smith, Esq., for the General Counsel.
Paul J. Kingston, Esq. (Kingston and Mulkern), of Boston,
Massachusetts , for the Respondent.'
, DECISION
ROBERT T. WALLACE, Administrative Law Judge On
a charge and an amended charge filed by James Nelli-
gan, on September 29 and October 13, 1983 , respective-
ly, a complaint was issued on November 10, 1983,
wherein it is alleged that Respondent Consolidated
Freightways Corporation of Delaware (CF) violated
Section 8(a)(1) and (3) of the National Labor Relations
Act in terminating James Nelligan 's employment.
- The case was tried before me at Bangor , Maine, on
January 12 and 13, .1984 . On the entire record,- including
my observation of the demeanor of the witnesses, and
after due consideration of briefs filed by the General
Counsel and Respondent , I make the - following:
FINDINGS OF FACT AND ANALYSIS
Jurisdiction . Respondent , a corporation engaged in the
transportation of freight as a common carrier having, as
pertinent , a terminal at Bangor , derived in excess of
$50,000 from providing service from points in the State
of Maine to points in other States during a 1-year period
immediately preceding filing of the complaint . It admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and that Local 340 of the International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of
America is now and has been at all times material herein,
a labor organization within the meaning of Section 2(5) .
of the Act.
276 NLRB No. 58
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Issue Nelligan is a longtime truckdriver and member
of Local 340 As of he day of his termination (September
8 1983) he had been a casual driver for CF at its
Bangor terminal for about 6 years and as such he
worked 2 or 3 days a week for CF and sometimes for
other motor carriers His status as a casual driver meant
that unlike the four drivers who were regular employ
ees at the terminal he had limited rights under the col
lective bargaining agreement between CF and the Local
For example he had no right to use the grievance/
hearing procedures available under the agreement and
was not on the seniority list However as CF s most
senior casual he had first opportunity for filling a va
cancy created on September 2 when one of the regular
drivers resigned But the job was not offered to him In
stead he was terminated on September 8 by Terminal
Manager Goss
In essence it is here alleged that the termination and
consequent disqualification from filling the vacancy was
due to the fact that on approximately four occasions in
July and two in August Nelligan stopped working on
the dock for periods ranging from 5 to 15 minutes each
while other members of the Union were engaged in am
bulatory picketing at the entrance to the CF terminal
The picketing occurred on a regular almost daily basis
throughout the spring and fall of 1983 whenever vehicles
of a company (Coles Express) with whom the Union
had a dispute were present at the terminal
Goss denies ever having seen any work stoppage by
Nelligan and he claims Nelligan was terminated solely
because he failed to submit required Vehicle Inspection
Reports and Hours of Service Certificates and because
he misdelivered an item of freight
Evidence I find the complaint supported by substantial
credible evidence
Respondent through Goss is shown to have harbored
a deep seated and continuing animus toward the Union
and its members Among other things this is seen in his
response to the initial amval of ambulatory pickets in
front of the CF terminal sometime in February 1983 Ad
mittedly he went out took photographs and taunted
picketers as big brave Teamsters Shortly thereafter (in
March) on observing the pickets in front of a neighbor
ing truck terminal he shouted over to them again admit
tedly that they were a lazy bunch of bastards and
that was followed by his bellowed suggestion that they
go get a job and stop harassing people And he states
that during a meeting at the CF terminal on April 12 he
told the four regular drivers that he would fire their
ass if they did not cross the picket line Moreover he
admits being told by CF s manager of labor relations on
the following day that section 1 of article 9 of the agree
ment with the Union precluded discipline of employees
who refused to cross the picket line i and I credit testi
' Sec 1 of art 9 reads as follows
Picket Lines
It shall not be a violation of this Agreement and it shall not be
cause for discharge or disciplinary action in the event an employee
refuses to enter upon any property involved in a primary labor
dispute or refuses to go through or work behind any picket line
including the primary picket line of Unions party to this Agree-
mony by three of the drivers that Goss never ap
proached them with a retraction or statement that he had
misunderstood employee rights under the agreement
I also find it likely that Goss was aware that Nelligan
had manifested sympathy for the picketers by stopping
work while their line was in place at the CF terminal In
that regard I have in mind the fact that it is a small ter
minal and that Goss animosity towards the picketers
almost certainly would have prompted him to scrutinize
closely whether and in what manner his drivers would
respond to the presence of fellow Teamsters on the
picket line See Wiese Plow Welding Co 123 NLRB 616
618 (1959) and L A Baker Electric 265 NLRB 1579
1587 (1983)
Nor am I persuaded that the asserted reasons for Nelli
gan s termination are anything other than pretextual See
Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899
(1st Cir 1981) cert denied 445 US 989 (1982) As to
the misdelivery Goss was not sure he mentioned that
matter during the termination interview with Nelligan on
September 8 and I conclude from that circumstance plus
the fact that the incident in question occurred over a
month earlier (on or about August 2) and (according to
uncontradicted testimony of Nelligan) was rectified by
proper delivery on the next day that it was a relatively
minor matter and one which would not have elicited any
major disciplinary action 2
The other reason advanced for the termination i e
Nelligan s asserted failure to fill out forms required by
the Federal DOT also appears contrived In that regard
I note that Goss claims the decision was due in part to
Nelligan s failure to complete vehicle inspection reports
(VIR) for 10 trips operated by him during the week
ending August 20 (Tr 158) Assertedly he became
aware of that circumstance for the first time about
August 26 when during the course of a surprise audit by
a vistmg CF official it was brought to his attention that
10 VIRs were missing from terminal files Yet the writ
ten report of the auditor (G C Exh 8) refers to per
ceived omissions by all local drivers at the terminal This
is seen from his finding that during the week in question
10 of 18 required [reports] had not been completed
and since a VIR is due after each trip it appears that
the quoted phrase refers to all (18) trips operated out of
the terminal that week and not just to the few operated
by casual driver Nelligan In addition and also pertinent
to Goss lack of bona fides in claiming that Nelligan was
at fault is his written explanation (R Exh 6) to compa
ny officials dated October 12 1983 that the missing
VIRs in fact had been made out but were left in the cab
of linehaul power units instead of having been turned in
to dispatchers In context he was telling them that only a
lesser dereliction had occurred i e a misfiling rather
than a violation of DOT regulations in failing to fill out
VIRs at the proper time
ment, and including prunary picket lines at the Employers place
of business
2 Although the same shipment also involved shortage of an item
valued at $48 96-for which a claim was paid by CF on September 21-
that shortage is not attributed by Respondent to any fault on Nelligan s
pan
CONSOLIDATED FREIGHTWAYS CORP
A similar situation exists with respect to Goss' claim
that he also had in mind, Nelligan's failure to complete
another six VIRs on trips run by him between July 18
and August 8,-a conclusion again based on the absence of
pertinent forms in the files However, upon reviewing
(pursuant to request made at the hearing) records of all
trips (40) run by local drivers during that period, he
found only 16 VIRs on file. He did not know why the
additional 18 reports (24 less ' 6 attributed to Nelligan)
were missing, but he opined that they may have been left
in the cabs of linehaul tractors by the 4 regular drivers
He does not explain, however, why he did not credit
Nelligan with having done so or at least explore that
possibility with him. '
On the other hand, I recognize that Goss' "left-in-the-
cab" explanation may be nothing more than a rationaliza-
tion to conceal a lax attitude on the part of all local driv-
ers towards reporting requirements as well as failure on
his part adequately to oversee them in that regard.3 But
assuming that to be the case, Goff offers no explanation
as to why he focused his attenion on files relating to Nel-
ligan alone-a driver who (with the exception of one
warning concerning a miscount of freight occurring 15
months earlier) admittedly had received no verbal or
written discipline during his 6 years of employment-and
also omitted in his case any recourse to the system of
progressive discipline he frequently administered to the
other drivers.
Having concluded that the asserted reason for Nelli-
gan's termination was false, an inference is warranted
that the action was for an unlawful reason. NLRB v.
Dant & Russell, Ltd., 207 F.2d 165, 167 (9th Cir., 1953);
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966). I draw the inference here since it is con-
sistent with other evidence4 tending to show that the ter-
mination was meant to punish Nelligan for a protected
activity, i.e., his display of sympathy for fellow union
members on the picket line, and to deter other drivers
from similar conduct. Washington State Service Employees,
188 NLRB 957 (1971); Yellow Cab, 210 NLRB 568
(1974) Further, I find it probable that Nelligan was
chosen to be an example because, as a casual driver, he
alone lacked standing to avail himself of grievance pro-
cedures -under the collective-bargaining agreement in
effect between the Union and CF; and, accordingly, of
the five local drivers he was most vulnerable to arbitrary
disciplinary action.
Other Matters. In its brief, Respondent, citing Liberty
Mutual Insurance Co. v. NLRB, 592 F 2d 595, 604 (1'st
Cir. 1979), contends that even if Nelligan was terminated
for expressing sympathy for the picketers his method of
doing so amounted to an unlawful partial strike and
3 This appears to explain the absence from terminal files of 7 hours of
service certificates asserted to have bee.i due from Nelligan during the
period July 19 through August 16 Those certificates normally are filled
out by drivers who, like Nelligan , are not regular employees of a carrier
and who may have dnven for other carriers intermittently The pertinent
DOT regulation (49 CFR 395 8 0)(2)). provides that the carrier shall
obtain the required certificate before allowing the driver to begin work
* Including credited testimony of picketers Hewey and Morrill that on
one occasion the individual (Fogg) whom Goss hired (on September 12,
1983) to replace Nelligan drove through their picket line, and that on an-
other he voided the line by driving out over a rarely used back road
479
therefore was an activity unprotected under the Act. It is
true, as found above, that on several occasions Nelligan
stopped work and drank coffee for brief periods while
the CF terminal was being picketed. But that action did
not constitute a partial strike because no showing is
made that he was instructed to work continuously.
Indeed, it appears that he had discretion to choose when
to take his morning and afternoon breaks (Tr. 294).
Moreover, Nelligan's sympathetic response appears sanc-
tioned by the provision in the applicable collective-bar-
gaining agreement cited in footnote 1, above 5
Also, citing Myers Industries,'268 NLRB 493 (1984),
Respondent contends that Nelligan's action was unpro-
tected because is was not undertaken in concert with
other CF drivers. However, the evidence shows that on
one occasion in August Nelligan and another CF driver
(Michael) took their coffeebreaks together while the CF
terminal 'was being picketed. But even 'apart from that
circumstance, there is no requirement that "concerted ac-
tivities" be undertaken by two or more employees of the
same company. See Eastex, Inc. v. NLRB, 437 U.S. 556,
564-565 (1978), wherein the Supreme Court stated:
The `employees' who may engage 'in concerted ac-,
tivities for `mutual aid or protection' are defined by
2 '(3) of the Act . : . to `include any employee, and
shall not be limited to the employees of a particular
employer, unless the Act explicitly'states otherwise
.. .' This definition was intended to protect em-
ployees when they engage in otherwise proper con-
ceited activities in support of employees 'and em-
ployers other than their own.
Here Nelligan's "coffee breaks" were taken in concert
with, and as an expression of solidity with, picketing
drivers Hof Cole's Express who were attempting to main-
tain or improve their economic. interests as workers. Ac-
cordingly, he is shown to have engaged in activity pro-
tected under the Act.
A further' argument advanced by Respondent is that
since the allegation of an unlawful discharge derives
from an amended charge filed on October' 13 and cannot
be established other than by reference to the threat ut-
tered by Goss on April 12, it is barred as being 1 day
over the' 6-month limitation period set forth in Section
10(b) of the' Act. The threat has been considered by me
only insofar as it , along with other evidence, sheds light
on the true character of Nelligan's termination on Sep-
tember 8, an event well within the prescribed time limi-
tation. Accordingly I find no bar to the portion of the
complaint alleging the unlawful discharge. See Machinists
Local 1424, 362 U.S. 411, 416-417 (1960) The threat
itself, however, is not encompassed by the original
charge, and I find barred by the 10(b) allegation in the
S Although Respondent argues in its brief that Nelligan's response was
unprotected in that it was undertaken in support of picketing conducted
in an unlawful manner, I note that it did not raise that-issue either in its
answer or in testimony offered on its behalf Indeed , during opening ar-
gument counsel for Respondent conceded the lawfulness of the ambulato-
ry picket line (Tr 14) In these circumstances, I find waived any defense
it might have had in that regard
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint that it constitutes a violation of Section
8(a)(1)
CONCLUSIONS OF LAW
For the reasons heretofore stated I find that Respond
ent violated Section 8(a)(1) and (3) of the Act (a) in not
offering James Nelligan a job as a regular driver on or
about September 5 1983 and (b) in terminating his em
ployment as a casual driver on September 8 1983 I fur
ther find that Respondent is not shown to have violated
the Act in any other respect
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7 ) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I find it necessary to order it to cease
and desist therefrom and from further infringing on em
ployee rights in any like or related manner and to take
certain affirmative action designed to effectuate the poll
cies of the Act Such affirmative action will include of
fenng James Nelhgan the option of accepting a job as a
regular or as a casual driver at its terminal in Bangor (or
offering him equivalent positions in the event those jobs
no longer exist) and making him whole for any loss of
earnings or other benefits he may have suffered as a
result of the discrimination practiced against him in ac
cordance with the principles set forth in F W Woolworth
Co 90 NLRB 289 (1950) and Florida Steel Corp 231
NLRB 651 (1977) see generally Isis Plumbing Co 138
NLRB 716 (1962)
[Recommended Order omitted from publication ]