Eazor Express Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 29, 1978238 N.L.R.B. 1165 (N.L.R.B. 1978) Copy Citation EAZOR EXPRESS INCORPORATED Eazor Express Incorporated and General Teamsters, Chauffeurs and Helpers Local Union 249 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 6 CA- 10302 September 29, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PNEI.1I.O1 On May 31, 1978, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this pro- ceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in opposition to the General Coun- sel'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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION S Ar MENT OF riHF CASE PEIER E. DONELI Yi \'. Administrative Law Judge: The charge herein was filed on June 13, 1977,' by General Teamsters, Chauffeurs and Helpers Local Union 249 a/w International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America, herein called the Charging Party or Union. A complaint thereon was issued on August 26. alleging that Eazor Express Incorporated, herein called the Employer or Respondent, violated Section 8(a)(l) and (5) of the Act by unilaterally establishing pro- duction standards, by issuing warning letters to employees, and by imposing 1-day suspensions on employees James Hatcher and Donald Antanaitis for failure to meet such production standards.' An answer thereto was timely filed I All dates refer to 1977 unless otherwise indicated 2 The complaint was amended at the hearing toi add additional warning letters issued on April 1I. June 3, and June 231 by Respondent. Pursuant to notice, a hearing was held be- bore me in Pittsburgh, Pennsylvania. on November 14. Briefs have been duly filed by General Counsel and Re- spondent which have been duly considered. FINDINGS OF FA( T 1. JtRISI)ICI ION Employer is a Pennsylvania corporation engaged in the business of intrastate and interstate hauling of goods by truck. During the 12-month period immediately preceding the complaint herein, Employer derived gross revenues in excess of $50,000 from its interstate operations and received in excess of $50.000 from services performed for enterprises located in Pennsylvania which are directly engaged in inter- state commerce. The complaint alleges, the Employer in its answer admits, and I find that Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. I ABOR (Rt;ANIZArioN The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. Al IE(-EI) UNFAIR I ABOR PRACTI( ES A. Facts The basic facts are not in dispute. Respondent operates a warehouse and terminal facility at Pittsburgh, Pennsylva- nia, where it employs about 45 over-the-road drivers and 148 combination men, i.e.. employees whose duties include both warehouse work and local driving. These two units have been represented under separate contracts for many years. Respondent's current contract with the Union cover- ing the combination men (G.C. Exh. 2). runs from April 1, 1976, through March 31, 1979. Over-the-road truckdrivers are not involsed in the instant case. Article 20 of the above contract reads, in pertinent part: The Union and the Employer recognize the principle of a fair day's work for a fair day's pay; that jobs and job security of employees working under this Agree- ment are best protected through efficient and produc- tive operations of the Employer and the trucking in- dustry. The Employer may establish reasonable work standards which shall take into account all factors re- lating to the work assignment, run, terminal and terri- torial operational conditions, subject to agreement and approval with the Local Union, and to be filed for approval with the Conference Joint Area Committee. In early 1977, Respondent was experiencing financial losses which occasioned the sending of letters to some 18 employees on March 15 reciting that they had previously been warned that their production "in comparison to your peers was low," and advising "that if your production does not improve significantly in the future, more severe disci- plinary action will be taken." Combination men James 238 NLRB No. 164 1165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hatcher and Donald Antanaitis were among the recipients of these letters. Substantially the same letter was sent to three other employees on April 18. By letters dated June 2. Hatcher and Antanaitis were suspended for I day for "not maintaining production comparable to your peers." Subse- quently, warning letters were sent to certain employees on June 3 and June 23, all reciting that the employees' produc- tion was not comparable with their peers and that "more severe disciplinary action" would be taken if their produc- tion did not "improve significantly." It is undisputed that Respondent did not discuss any production standards or levels with the Union. The letters and the suspensions were protested by the Union, but no grievance was filed thereon. It is the undisputed testimony of William Patterson, ter- minal manager, that prior to the issuance of the warning letters, early in 1977, he had spoken to Shop Steward Ed- ward HeinlP and told him that the terminal was losing money and that production was declining and that if it did not improve, warning letters would be sent to some employ- ees. Patterson testified that certain production records are kept in the normal course of business operations and these include figures disclosing the number of pieces handled, the weight, and the number of bills of lading as to the combina- tion employees. Although these records are not specifically maintained for the evaluation of employee production, they were used along with the personal observations of supervi- sors to evaluate the employees' production. Weight alone would not have been an accurate test of employee produc- tion, since it would not account for the number of pieces handled or the number of invoices worked. In fact, some who were sent warning letters about their production han- dled more weight than others who did not get warning let- ters. Patterson also testified that Respondent had no pro- duction standards; indeed, that it was not possible to establish production standards because, in addition to the differences in warehouse functions, some combination men also drove tow motors and others drove trucks locally (within a 50-mile radius of Pittsburgh). Robert Eazor, company president, generally corrobo- rated Patterson's testimony that he did not think it was possible to establish production standards for combination employees. Eazor testified that a management consultant firm had been consulted about establishing production standards some years ago, but had been unable to do so. Eazor and Patterson also testified that evaluating and disci- plining employees for insufficient production is no different now than it has ever been, including verbal and written warnings; however, Patterson concedes that prior to Janu- ary 1977 he had never used the phrase "production in com- parison with your peers" in warning letters. B. Discussion and Analysis It is the contention of the General Counsel, first, that the issuance of the various warning letters to employees con- cerning low production constitutes unilateral action con- 3 Heinl did not testify. Apart from Patterson, called by General Counsel as an adverse witness under Rule 611(c) of the Federal Rules, the General Counsel called no witnesses at all. cerning a mandatory bargaining subject, i.e., establishing production standards in violation of Section 8(a)(5) of the Act. Second, General Counsel argues that Respondent uni- laterally established production standards in derogation of its bargaining obligation under Section 8(d) of the Act by modifying a contract term (art. 20) during the effective pe- riod of the contract.4 Respondent contends that it has not established any work standards at all and that evaluating certain produc- tion records and observing work habits of individual em- ployees to determine production in comparison to other employees does not constitute a violation of Section 8(a)(5) of the Act. In agreement with Respondent, I conclude that Respon- dent has not established any work standards in contraven- tion of either its 8(a)(5) obligation to bargain or its obliga- tions under Section 8(d) of the Act. Respondent, experiencing financial losses, sought to improve the produc- tion of its combination men. To that end Respondent first spoke to the Union and then sent warning letters to several combination employees, noting that their production was below average in comparison to the other combination men and warning them that if it did not improve, disciplinary action would follow. Disciplinary action did follow in the form of I-day suspensions meted out to Hatcher and Anta- naitis. In order to accept the General Counsel's construc- tion of these letters, it is necessary to equate Respondent's use of the concept of peer comparability with the establish- ment of a "work standard" under the contract. Such an inference is not warranted. The use of the words "in com- parison to your peers" or "comparable with your peers" in a disciplinary warning letter does not either per se or ipso tacto establish a work standard. It is undisputed that apart from the letters, there is no writing or document defining any work or production standard. No work standards were promulgated and no time studies were made. In fact, the record discloses no change in Respondent's method of evaluating production for combination men or in the discipline for failure to produce. While it is obvious that certain factors, along with supervisory observation, are ex- amined in evaluating the production of combination men, such as weight, pieces handled, and bills of lading, there is no probative evidence to show that these were part of any definable production standard. Indeed, such a standard would be, as the evidence suggests, most difficult to con- struct, in view of the different types of work performed by combination men. In summary, I conclude that the actions taken by Re- spondent, including the suspensions of Hatcher and Anta- naitis, were consistent with an ordinary effort to extract a greater effort from combination men and violate neither Section 8(a)(l) and (5) nor Section 8(d) of the Act.' Accord- Sec. 8(d) provides: IT]he duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period. if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Respondent contends that this case should be deferred for arbitration under the grievance provisions of the existing contract. In my opinion, defer- ral is not warranted. This was a routine effort to require employees to work harder, and the words "companson with your peers" do not raise it to the 1166 FAZOR EXPRESS INCORPORATED ingly. [ shall recommend that the complaint herein be dis- missed. CON('I.USIONS OF LAW Respondent has not engaged in any conduct violative of the Act. level of a dispute over a contract provision as suggested by the General Counsel. The naked contention does not make it even arguahly a contract dispute. Accordingly, I conclude that the dispute herein is completely with- out the purview of art. 20 of the contract and therefore involkes no issue of contract interpretation suitable flr deferral 1167 Upon the foregoing findings of fact and conclusions of law. I hereby issue the following recommended: ORDER, The complaint is dismissed in its entiretl. 6 In the event no exceptions are filed as provided b? Sec 10246 of the Rules and Regulations of the National L.abor Relations Board. the findings. conclusions, and recommended Order herein shall, as prosided in Sec 102.48 of the Rules and Regulations. be adopted bv the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waised fir all purposes. Copy with citationCopy as parenthetical citation