Eazor Express Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1165 (N.L.R.B. 1978)

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.