Fleet Distributing Service, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1972

200 N.L.R.B. 196 (N.L.R.B. 1972)

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fleet Distributing Service, Inc. and Stanley Lee. Case
27-CA-3338
November 9, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 5, 1972, Administrative Law Judge 1
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, in part
for the following reasons.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) and (3) of the Act by
discharging Stanley Lee because it was fearful that
Lee would engage in the same protected concerted
activities in behalf of Teamsters Local 17 which it
knew he had engaged in while previously employed
by Ringsby Truck Lines. In so finding, the Adminis-
trative Law Judge refused to defer to an award of the
Teamsters' Joint Western Area Committee which
sustained Lee's discharge. Respondent contends that
the Board should honor the award and dismiss the
complaint. We find for the following reasons that the
Administrative Law Judge was correct in not
deferring to the award.
The record of the bipartite committee meeting
reveals that the unfair labor practice issue was not
litigated there. The one tangential remark made by
Bushnell, the Union's president, to the effect that
Respondent discharged Lee because of his "back-
ground" as a steward for the Union, was not pursued
by either the committee members or the Union, and
it clearly played no part in the committee's final
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Respondent has excepted to certain credibility findings made by
the Administrative 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 the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
3 While the contract proscribes discrimination against union members
even if they are probationary employees, it is clear, as we have found, that
in Lee's case this issue was not litigated
decision to uphold Lee's discharge. Indeed, the only
issue presented to and decided by the Joint Western
Area Committee was whether Lee was a "probation-
ary" employee who under the collective-bargaining
agreement could be discharged "without further
recourse," or a "casual" employee, for whose
discharge Respondent had to have just cause. The
joint committee decided that at the time of his
discharge Lee was a probationary employee, and that
therefore Respondent had the contractual right to
discharge Lee for any reason.3
Therefore, as we have found that the unfair labor
practice issue was neither litigated before nor
decided by the Teamsters' Joint Western Area
Committee, we shall not defer to that committee's
award,4 for the reasons more fully set forth in Airco
Industrial Gases, 195 NLRB No. 120, and Yourga
Trucking, Inc., 197 NLRB No. 130.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Fleet Distributing
Service, Inc., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
MEMBER KENNEDY, concurring in the result:
I agree with the result in this case and would not
defer to the committee's award, but only for the
reason that in my view the rationale of Kansas Meat
Packers governs under the facts herein.6 In that case,
given the apparent antagonism between the interests
of the discriminatees and both parties to the
contractual grievance-arbitration procedure, the
Board refused to defer to the arbitration process
under the principles of Collyer Insulated Wire, 192
NLRB No. 150, because it concluded that to do so
would relegate the discriminatees to an arbitral
process administered entirely by parties hostile to
their interests. The same considerations apply to the
instant case. I believe that we should not defer to the
committee's award in this case because a review of
the record persuades me that both parties to the
grievance procedure were hostile to Lee's interests.
4 Member Jenkins additionally would not defer to arbitration for the
reasons set forth in the text and for the reasons set forth in his dissents in
Collyer Insulated Wire, 192 NLRB No 150; Terminal Transport Co., Inc.,
185 NLRB No . 96; and National Radio Company, Inc, 198 NLRB No. 1.
Accordingly, he finds it unnecessary to determine whether Collyer Insulated
Wire and Airco Industrial Gases, 195 NLRB No. 120, should be retroactively
applied.
5 Chairman Miller disavows and does not rely on the Administrative
Law Judge's conclusion that the Board 's decisions in Collyer Insulated Wire,
supra, and Airco Industrial Gases, supra, should not be retroactively applied.
6 198 NLRB No . 2. In both Yourga and Airco, supra, I stated my
disagreement with the approach of the majority.
200 NLRB No. 35
FLEET DISTRIBUTING SERVICE, INC. 197
I therefore join my colleagues in finding that
Respondent discharged Stanley Lee in violation of
Section 8(a)(1) and (3) of the Act.7
7 I also join Chairman Miller in disavowing the Administrative Law
Judge's discussion of Collyer Insulated Wire, 192 NLRB No. 150.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: On April 27 and
28, 1971, in Denver, Colorado, a hearing was held in the
above-entitled matter. The complaint, issued March 16,
1972, is based on a charge filed September 7, 1971, by
Stanley Lee, an individual employee. The complaint alleges
in material substance that Lee was discharged August 31,
1971, in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, by Fleet Distributing Service, Inc.,
herein called Respondent, because of Lee's activities on
behalf of International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 17, herein called the Union. Respondent's
answer admits that Lee was discharged, denies that the
discharge was provoked by his union activity, and avers
that "such termination was upheld under the grievance-
arbitration procedures of the applicable collective bargain-
ing agreements between the Respondent and the Union,
which grievance-arbitration procedures had been invoked
and participated in by Stanley Lee."
Upon the entire record in this proceeding, including my
observation of the witnesses and after due consideration of
the po$thearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Colorado corporation, engaged in
Denver, Colorado, in the business of loading and unload-
ing freight on motor trucks and trailers and the local
cartage of goods. Respondent is a wholly owned subsidiary
of Scott Truck Lines, an interstate motor carrier, and
conducts its business from Scott's Denver terminal.
Respondent functions as an essential link in the transporta-
tion of commodities in interstate commerce and derives in
excess of $50,000 gross revenue per annum from such
operations. Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and in a
business affecting commerce within the meaning of Section
2(5) and (6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Summary of argument of General Counsel
Lee was hired as a casual dockworker on August 4, 1971.
He worked steadily for 13 days and thereby acquired status
as a permanent employee . He was discharged August 31,
1971 , because , as a steward for the Union at Ringsby
Truck Lines from 1967 to 1970, he had insisted that
Ringsby comply with its union contract , and had filed a
charge against Ringsby with the National Labor Relations
Board.
Respondent's terminal manager, Wayne Harris, admit-
ted that he discharged Lee "because we didn 't want the
same problems that he created at Ringsby Truck Lines."
Harris' other reasons for discharging Lee were false and
pretextuous . Since Respondent in discharging Lee was
motivated, in part, by the fear that he would engage in
protected concerted activities on behalf of the Union,
Respondent's other reasons, even if true , would not
legitimize the discharge.
The Board should not defer to the determination of the
Joint Western Area Committee sustaining the discharge.
The committee did not have before it and did not consider
the issue of Lee's union activities . The determination of the
western area committee is clearly repugnant to the policies
of the Act. Airco Industrial Gases, 195 NLRB No. 120.
2. Summary of argument of Respondent
The Board should defer to the result of the contractual
grievance procedure and dismiss the complaint . Following
his discharge Lee voluntarily initiated a grievance proce-
dure under article 45 of the Western States Area Pick-up
and Delivery Agreement . When the Joint State Committee
deadlocked, he voluntarily took the case to the Joint
Western Area Committee, which by majority vote, held
that Lee had been properly terminated under article 41 of
the contract . The proceedings were fair and regular, all
parties agreed to be bound and the decision was not
repugnant to the purposes and policies of the Act.
This salutory principle announced in Spielberg Mfg. Co.,
112 NLRB 1080, was applied under substantially identical
circumstances in Denver-Chicago Trucking Company, Inc.,
132 NLRB 1416 , and controls the disposition of this case.
The Joint State Committee and the Joint Western Area
Committee were competent to decide whether Lee's
discharge was motivated by Respondent's desire to
discourage legitimate union activity and to order reinstate-
ment and backpay were that fact demonstrated to them.
Lee, however, with full knowledge of the facts on which the
instant complaint is premised , chose not to litigate this
claim under the grievance procedure.
To refuse deferral under these circumstances is not
only to ignore the express provisions of the voluntary
agreement between the parties , but also to invite
litigants to engage in piecemeal litigation . It would
make the grievance procedure under the contract a
mockery by allowing parties to try half their case
before the various committees and, if unsuccessful,
then pursue the remainder of it before the N.L.R.B.,
irrespective of the fact that the contract provides for a
waiver of any claim not presented in the grievance
machinery . Attempts, such as this, by parties to
sidestep their own voluntary agreements was comment-
ed upon recently by the Board in Collyer Insulated
Wire, 192 NLRB No. 150, as follows:
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deference in this case would simply be an acknowl-
edgement and enforcement of the voluntary agreement
between Mr. Lee as a member of the Union and Fleet.
The General Counsel has not demonstrated by a
preponderance of the evidence the indispensable fact that
Respondent "knew that Lee was engaged in protected
activity and that he was discharged because he had been so
engaged. N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397,
402-3."
Although Respondent was aware of the fact that Lee had
had "union problems" at Ringsby Truck Lines, there is no
evidence that Respondent had knowledge of any protected
activity by Lee. If knowledge of Lee's protected activities
at Ringsby be imputed to Respondent, then knowledge of
his unprotected activities should also be imputed. Lee was
discharged by Ringsby for causing an unlawful work
stoppage. The discharge was sustained by the Joint State
Committee and the NLRB refused to issue complaint.
Respondent's knowledge that Lee had "union problems"
of an unspecified nature does not prove that the discharge
was discriminatorily motivated. The rule as stated by the
Board in Klate Holt Co., 161 NLRB 1606, 1612, is:
The mere fact that an employer may desire to terminate
an employee because he engages in unwelcome
concerted activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlaw-
ful.
Lee was hired as a heavy duty truckdriver, and was
discharged because of his demonstrated inability to
perform the functions of the job. He was unable to "spot"
a trailer at Respondent's dock. He caused a misload of
freight which resulted in a damage claim against Respon-
dent. He was frequently absent from his place of work with
"nobody knowing his whereabouts."
.... irrespective of his Union background, Mr. Lee
would not have been allowed to continue in the
employment of Fleet because of his inability to perform
the tasks assigned to him during the brief time he was
there.
B. Respondent's Operation
Scott Truck Lines operates between Chicago and
Denver. Its Denver terminal in August 1971 was manned
by employees of Respondent. Wayne C. Harris was
terminal and operations manager. Vern Miller was dock
superintendent. Robert Deaton, assistant freight manager,
was the controlling manager of all the dock foremen. The
foremen were Bob Buzick, Howard Loomis, and Sam
Cook. Loomis was in charge of approximately 12 dock-
workers whose hours were 3:30 p.m. to midnight, Monday
through Friday. Their duties were to load and unload
Scott's intercity trucks and trailers and to load the local
delivery trucks operated by Respondent's drivers. Scott's
trailers, when not being worked at the dock or on the road
were parked in open lots, (sometime called yards) one of
which was six city blocks from the loading and unloading
dock. It was part of the responsibility of Respondent's
dockworkers to move these trailers, many of which were 40
feet long, from the parking lot to the precise spot on the
dock where it was to be loaded or unloaded. This is a
skilled operation performed by a "heavy duty truckdriver"
who is qualified and licensed to operate on public streets
vehicles with three or more axles. The rate for "heavy duty
driver" in August 1971 was $5.20 per hour.
The exact number of Respondent's regular dockworkers
and local drivers in August 1971 does not appear in the
record, but they numbered somewhere between 54 (as of
March 1971) and 78 (as of October 1971). In August 1971,
Respondent hired 6 regular employees, used the services of
10 casual employees for periods of from 1 day to 11 days
each, and also employed Stanley Lee. The Union in the
grievance proceeding took the position that Lee was a
casual. The Employer took the position that he was a
regular employee who had not served his probationary
period of 30 days.
C. The Collective-Bargaining Agreements
Respondent's drivers and dockworkers are represented
by the Union, and their wages, hours, and working
conditions are governed by Teamsters "National Freight
Agreement" and by the "Western States Area Pick-Up and
Delivery Local Cartage and Dock Workers Supplemental
Agreement," both effective from April 1, 1970, to June 30,
1973. The supplemental agreement provides, in relevant
part:
Article 41(a) A new employee shall work under the
provisions of this Agreement but shall be employed
only on a thirty-day trial basis with the individual
Employer, during which period he may be discharged
without further recourse; provided, however, that the
Employer may not discharge or discipline for the
purpose of evading this Agreement or discriminating
against Union members. After thirty days the employee
shall be placed on the regular seniority list.
Article 59(c) Where the workweek is now limited to
Monday through Friday eighty per cent (80%) of the
regular dock and truck helper employees shall be
guaranteed forty (40) hours of work or pay. Eighty per
cent (80%) of the regular driver employees shall be
guaranteed forty (40) hours of work'or pay. It is agreed
that the standard forty (40) hour workweek need not
apply to twenty per cent (20%) of the regular employees
in either classification, with a minimum of one (1).
Seniority must be recognized. Probationary employees
shall be considered regular employees for the purpose
of this section.
Article 54 Section 4. A regular employee, for the
purpose of this Supplemental Agreement shall be any
employee on the regular seniority list, as defined by this
Agreement.
Article 50 Section 4. A casual or extra employee is an
employee who has not worked twelve (12) days within
the period of a calendar month. Days worked by a
casual employee when a regular employee is off due to
illness, vacation or other absence shall not be counted
as days worked in calculating the twelve (12) day
FLEET DISTRIBUTING SERVICE, INC. 199
period .... Such employee shall receive fifteen (150 )
cents per hour above the regular hourly rate for the
classification in which he is employed ... .
Article 50 Section 5. Casual employees shall not be used
to deprive regular employees of overtime. All regular
men must be working before a casual or extra man is
used.
Article 44 Section 1. The Employers and the Union
shall establish permanent joint state -labor-management
committees as follows:.... one (1) for the States of
Colorado and Wyoming . . . . Each such committee
shall be referred to hereinafter as "Joint State Commit-
tee." The Joint State Committee shall consist of an
equal number appointed by the Employers and Unions
but not less than three (3) from each group ... .
Article 44 Section 2. The Employers and the Unions
shall together create a permanent Joint Western Area
Committee which shall consist of delegates from each
of the areas named in Section 1 of this Article ... .
Article 44 Section 3. It shall be the function of the
various committees above-referred-to to settle disputes
which cannot be settled between the Employer and the
Local Union in accordance with the procedures
established in Section 1 of Article 45.
Article 45 Section 1 . . . . Disputes shall be taken up
between the Employer and the Local Union involved.
Failing adjustment by these parties, the following
procedure shall then apply:
(a) Where a Joint State Committee by a majority
vote settles a dispute, no appeal may be taken to the
Joint Western Area Committee. Such a decision will be
final and binding on both parties.
(b) Where a Joint State Committee is unable to agree
or come to a decision on a case, it shall at the request of
the Union or the Employer involved, be filed with the
Joint Western Area Committee at the next regularly
constituted session . Where the Joint Western Area
Committee by majority vote settles a dispute, such
decision shall be final and binding on both parties with
no further appeal.
D. The Discharge of Lee and Molden
Stanley Lee was employed by Ringsby Truck Lines from
1963 to 1970. He was a heavy duty truckdriver, i.e.,
qualified and licensed to operate truck and trailer
combinations with three or more axles. He also worked on
the dock, loading and unloading merchandise. During the
last 3 or 4 years of his employment by Ringsby he was the
Union's steward, in which capacity he filed about 200
grievances. With the assistance of the Union's business
agent, Alvin L. Molden, and the Union's president, Frank
Bushnell, he was instrumental in collecting almost $10,000
from Ringsby "in monies which were underpaid to workers
over a period." Lee had obtained the evidence on which
this settlement was based by making daily copies of
timecards. In February 1970 he was discharged by Ringsby
on the asserted ground that he had induced an employee,
Milton Berger, to leave his work. The discharge was
sustained by the Colorado Wyoming Joint State Commit-
tee. The charge which he filed with the NLRB was
dismissed. His court suit against Ringsby and the Union
was dismissed.
On Wednesday, August 11, 1971, Lee was dispatched by
the Union to Respondent. He reported to Foreman
Loomis, whose only words were, "Get yourself a time card
and get on the clock." Lee worked on the dock the full day
without incident. Next day he telephoned in and was told
to report for work. He did not ask whether he was regular
or casual , nor inquire about his rate of pay . His first
paycheck showed that he was receiving the rate of a heavy
duty driver, and was not receiving the 15-cents-per-hour
bonus to which a casual employee was entitled. On
Monday, August 16, 1971, Lee filled out an application for
employment and gave it to Loomis. The application listed
his employment by Ringsby Truck Lines and showed as his
"reason for leaving"-"Discharge Appeal Pending."
Since only the top 80% of the seniority list are
guaranteed 40 hours per week , all other employees are
required to call in daily to see whether their services will be
required . Lee fulfilled this requirement and was called to
work every working day between and including August 12
and Monday, August 30.
On Tuesday, August 31, the telephone was answered by
Assistant Freight Manager Deaton, who told Lee that he
could not be used again. When Lee asked for the reason,
Deaton's reply was either "Too much pressure," or "Too
much pressure from upstairs." Lee replied, "All right."
Alvin Molden had been a heavy duty truckdriver for 17
years when he was , in December 1965, appointed business
agent of the Union. He was discharged by the Union
October 1, 1970.
On August 3, 1971, Molden filed with Respondent a
written application for employment, wherein he showed his
employment by the Union. Molden was assigned to the
second shift on the dock and worked steadily 8 hours per
day, 5 days per week, from Wednesday, August 4, through
Monday, August 30, 1971. When he called in on Tuesday,
August 31, the telephone was answered by Foreman
Buzick who transferred the call to Deaton . Molden was
informed by Deaton that "they couldn't use me any more."
When Molden asked, "What did I do wrong?" Deaton
repeated, "I can't say, I just can't use you any more."
When Foreman Loomis reported for work on August 31,
I walked in and asked about how many people I was
going to have for my shift , and I was told I was going to
be two short, and I asked for the reason , that their
applications hadn't been checked out yet.
Molden, after receiving the word from Deaton, tele-
phoned the Union's president, Frank Bushnell, who agreed
'to meet with Molden and Lee for,lunch at a hotel. Bushnell
telephoned Harris from the hotel and was told by Hams
that the two men had been terminated because of their
"backgrounds ." Harris told Bushnell that he had a
peaceful dock and felt that if he continued their employ-
ment, he would have a lot of grievances to contend with.
Bushnell told Harris that they had had a rough time trying
to get work, that they were trying to do their work as well
as they could, and that he wouldn't have any grievances. In
answer to Bushnell's inquiry , Harris said "there were no
gripes about their work." The conversation ended with
Harris telling Bushnell that he would put the two men back
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work . Bushnell then gestured with his hands, saying
"You're back to work," and asked Molden and Lee to meet
him at Respondent's dock the next morning.
On Wednesday , September 1, while Molden and Lee
waited in the lunchroom , Bushnell met with Harris in
Hams' office . Harris reiterated that he would not take the
men back to work because of their backgrounds, and did
not answer Bushnell's question as to what had caused him
to change his mind.
Bushnell , Molden , and Lee then went to the Board's
regional office and Bushnell , in the name of the Union,
filed a charge (27-CA-3337) alleging that Molden and Lee
had been discharged in violation of Section 8(a)(3) of the
Act.
Later on Wednesday , September 1, Harris hand-carried
to the union office a copy of the following letter:
AUGUST 31, 1971
Dear Mr. Lee:
Effective this date, August 31, 1971, you are hereby
terminated from your employment with Fleet Distrib-
uting Service , Inc., per Article 41, Section 1, of the
Western States Area Pick Up and Delivery, Local
Cartage and Dock Workers Supplemental Agreement.
This will confirm our verbal notification of August
31, 1971.
FLEET DISTRIBUTING
SERVICE, INC.
ROBERT DEATON
ASSISTANT FREIGHT
MANAGER.
On the morning of either Thursday or Friday, September
2 or September 3, Bushnell paid a second call on Harris.
Bushnell testified credibly and without contradiction:
Mr. Harris stated that he would put Mr.
Molden back to work, but steadfastly remained in his
position that he wouldn't take Mr. Lee .... that he
had a peaceful dock down there ; he didn't want any
union problems , and he still felt that if he let Mr. Lee
go back to work that he would have just nothing but
grievances . And I tried to assure him in my conversa-
tion that he wouldn 't have those problems , that Mr.
Lee was just trying to get along. It had been a long time
since Mr. Lee had been able to keep any work, because
he was a union steward over at Ringsby. He only tried
to live up to the contract and abide by the contract. He
only did his job over there as a union steward as
prescribed in the contract.
But in going to work for Fleet, he was no longer a
union steward , and I felt that the man just wanted his
job, and this was all I was trying to do, to get him his
job back, but Mr. Wayne Harris still felt that Mr. Lee
was a union agitator, and he just didn 't want him on
the dock. He was again afraid that if he let him get a
foothold in the door that all the problems that he'd
have with Mr. Lee would result in grievances.
The meeting concluded with Harris ' promise to reinstate
Molden and Bushnell 's promise to withdraw the charge
which he filed with the NLRB . Both promises were kept.
Lee learned of the withdrawal of the charge through a
telephone call from a Board agent on Monday, September
6, and filed his individual charge on the next day.
After his meeting with Lee on September 2 or September
3, Harris signed and mailed the following letter:
SEPTEMBER 3, 1971
Dear Mr. Lee:
This is a supplemental letter, regarding your Discharge
Letter, dated August 31, 1971.
As stated in that letter, you were discharged per Article
41, Section 1, of the Western States Area Pick Up and
Delivery, Local Cartage and Dock Workers Supple-
mental Agreement.
In order to substantiate this discharge and show that
we had cause , below are a few of the areas in which
your work was unsatisfactory:
1. Supervisors on the shift that you worked indicate
that there were times when your whereabouts could not
be accounted for.
2. On one occasion you were instructed by a
supervisor to spot a trailer into Door 18B and when the
wheelers attempted to take the freight to this trailer, it
was discovered that the trailer had not been spotted
and when you were asked why you did not spot it, your
reply was that you could not do it and you gave no
reason for not reporting this to your supervisor.
3. Another occasion, during the week of August
23rd, you were responsible for a shipment of five cases
of meat being misloaded into a Chicago bound trailer.
In conclusion, it is our thought that your work, habits
and performance was not of the caliber which is desired
at Fleet Distributing Service, Inc., therefore , you were
terminated.
After withdrawing the NLRB charge, Bushnell requested
a hearing before the Joint State Committee on Lee's
discharge.
After receiving a copy of Harris' letter of September 3,
Bushnell paid his third call on Harris and offered to drop
the grievance if Lee were reinstated . Harris refused.
E. The Grievance Proceedings
1. Hearing before Colorado-Wyoming Joint Area
Committee , September 8, 1971
Fleet was represented by Wayne Harris. The Union was
represented by Bushnell and by its secretary-treasurer,
Harry Marshall . Lee appeared as a witness. It was assumed
by all parties that if Lee were a regular employee who had
not completed his probation, Respondent had an absolute
right, under article 41 to discharge him. The Union took
the position that article 41 did not apply to casual
employees. The committee decided to hear the case on the
merits, thereby, by inference , agreeing with the Union.
Harris read his September 3 letter into the record. Lee
made a long statement , explaining and justifying his
inability to spot the trailer, denying that he had misloaded
any shipment , and asserting that:
FLEET DISTRIBUTING SERVICE, INC.
The only time I left the dock was to go to look for a
trailer or to spot a trailer. The entire building is
between two one-way streets, one north, one south.
You still have to go around the building to the furthest
lot which is approximately six blocks away. I had to
have time to find the tractor all other times. If you are
looking for a man, ten minutes can be an awful lot of
time , and that is as much time as it took to find the
tractor or trailer. I always told him I was going-I
didn't tell the supervisor because he didn't give a damn
where I went. I told the man I was working with.
There was no mention of Lee's "background" or of his
union activity, or of any of Harris' damaging admissions,
although such testimony was invited by an employer
representative on the committee.
Mx. KuzARA: I would like Mr. Lee to answer. There
is some doubt whether you were a casual or terminated
as an employee under Article 41. If you were
terminated under Article 41, do you have any reason as
to why you were terminated?
MR. LEE: I can't answer that at all. I do know that
they got the job done. I plead guilty to one part of the
statement he made - where he said "spotting the
trailer."
Mit. KuzARA: Did you read Article 41?
MR. LEE: Yes.
MR. KUZARA: Where "you may be discharged
without further recourse"?
MR. LEE: Yes.
The committee went into executive session , after which
the chairman announced: "Gentlemen, this case is dead-
locked."
2. Hearing before Joint Western Area Committee,
November 16, 1971
The hearing was held in San Francisco. Fleet was
represented only by Norman C. Pixler, General Manager
of the Western Empire Operators Association. The Union
was represented by Bushnell and by Lee. The only issue
submitted to the committee was whether Lee was a casual
employee or a regular employee who had not completed 30
days' probation. The decision of the committee was that
Lee was a casual from August 11 to the date when he filed
a written application for employment, August 16, and Fleet
was directed to pay him an additional 15 cents for each
hour worked during that period. It further decided that he
was properly terminated under section 41 of the contract.
No question was put to Lee regarding his work or the
truth of any matters contained in Harris' letter, which was
read into the record. Bushnell did state at one point:
I talked to Wayne Harris, why they didn't want to put
them back to work. And he says, "Due to his
background I don't want him on the dock down here."
Not for these reasons at all. Mr. Lee here is an ex-
steward from Ringsby.
This ambiguous statement was not followed up. The
Union made no claim that Lee had been discharged
because of his union activities.
F. Respondent's Explanation of Lee's Discharge
201
Harris testified that he learned from Foremen Loomis
and Cook that Lee:
Had previously worked at Ringsby Truck Lines and he
had had many union problems there and that he had
filed an NLRB charge against Ringsby Truck Line.
After these facts were communicated to him , Harris
examined Lee's application for employment , and asked his
supervisors about Lee's work habits and work capacity.
Harris then decided to discharge Lee, based in part upon
his union problems:
Because we didn't want the same problems that he
created at Ringsby Truck Lines.
Respondent would not have kept Lee , irrespective of his
background, "because of the problems we had with him in
the 14 days he did work."
Harris' only reason for the discharge of Molden was:
He had been a business agent for Local 17. He had
been discharged from Local 17 and had been bouncing
around from one truck line to another since his
discharge.
Molden was reinstated September 4, "because we had
acted hastily and really had no reason to discharge him."
G. The Alleged Derelictions of Lee
1. Absence from post of duty
Harris testified that he obtained this information from
Foremen Howard Loomis and Sam Cook. Although both
Loomis and Cook testified as witnesses for Respondent,
neither corroborated this testimony, and neither cited any
instance when Lee 's "whereabouts could not be accounted
for.,,
2. Failure to spot a trailer into Door 18B
Lee testified that on about the 5th day of his employ-
ment (which would have been about the same time that he
made written application):
Well, Mr. Cook-I was working on one trailer,
breaking out the trailer, and he said would you get this
certain tractor, and put a certain trailer into 18B. Nor
18B is not a portion of the regular dock; it's an
addition. It's a wooden platform. It's not concrete, it's
not steel; it's just a platform, but it's in a very awkward
spot, and to get to it one has to back a vehicle through
a shop, a mechanics' shop, which is not very large; the
doors are certainly not very large, and then take a 45
degree angle outside. Once you get through the shop
and a very, very fast 45 degree angle to get back to this
platform, I didn't feel that I could do it with new
equipment, and I told him so. I said, "It will probably
take me all night," and he said, "Well, have a go at it
anyway," which I did. After ten minutes and my third
stab at it there was a heavy duty man across the yard.
He says, "Are you having trouble?" I said that I was.
He said, "Would you like me to get it in for you," and I
said, "Yes," and he did. That was it from start to finish.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When I came back onto the dock, Mr. Cook said, "Is
that trailer in yet," and I said, "It's just coming in right
now," and it was .... That was the end of the
conversation right there.
Cook testified that he could not recall the date, but it was
on the afternoon shift:
Well, I designated Mr. Lee to bring a trailer, one of our
local trailers, which was not a 40-footer, just about a
24-foot trailer into this door 18B, and, of course, I went
about my duties, and I directed some freight into this
door 18B from our unloading platform. And, of course,
when the boys, the men went to load freight into this
truck, why there was no truck in the door. So, of
course, one of the men came to me and stated there was
no truck in the door. So I told him that I did have one
put in there, and he says there is no truck in the door.
So I asked Mr. Lee why he didn't put the truck in the
door. He said he was unable to put it in there. I further
asked him why he didn't report that to me so I could
have it done, and, of course, he could not answer that.
So I designated another man to put the truck into the
door, which we proceeded to unload and load the
trailer in that door.
I regard Lee's recollection of the foregoing incident as
the more reliable. The incident did not prevent Lee from
being called to work on nine succeeding days, and Lee had
no difficulty in spottmg any other trailer. The incident was
not reported to Harris until he solicited, from Cook,
reasons to justify his decision to discharge Lee.
3. Misloading of five cases of meat
On some unspecified date the consignee of five cases of
meat destined for Omaha complained that it had not
arrived. The meat was found in Chicago.
Loomis testified that he had set up a procedure whereby
there was a load diagram on which the loader marked
down the number of pieces and the weight and initialed his
entry. Misloading is not uncommon and the purpose of this
load diagram was "to catch this mistake before it was sent
out of town." Loomis further testified that when the
complaint of the consignee was brought to his attention by
Harris, he checked the load diagrams, and ascertained that
Lee had placed the Omaha meat on the Chicago trailer.
Loading of interstate trailers is not always completed at
the dock. Occasionally, after the trailer has pulled away
from the dock, and while standing in the yard, it is
necessary to add to the load. In these circumstances, the
dockman loads the merchandise on a pickup truck, and
loads it on the trailer in the yard.
Cook testified that he had instructed Lee to take five
cases of meat from the dock, and take it to the yard in a
pickup and put it on the Omaha trailer. Although the order
was given by Cook, the actual loading was performed
under the supervision of Loomis.
Lee categorically denied that he had anything to do with
the misshipment of meat. His regular job was unloading.
On the rare occasions when he did load, it was under the
direction of the foreman. Lee did not sign anything. The
load sheet was signed by the foreman. On only two
occasions did Lee load any meat. One night he loaded a
single 2,000 pound palletized package. Two nights later he
loaded one box of meat and one box of fish.
I credit Lee's denial. The misloading, according to
Harris' letter of September 3, occurred "during the week of
August 23rd." The method of its discovery is some
indication that the misload was not apparent from Loomis'
load diagram. Loomis did not deny Lee's testimony that
the foreman signed the loading list. The load diagram was
not produced, and Respondent offered no explanation of
its failure to do so.
The one certain fact is that it was Loomis' responsibility
to ensure that no misloaded freight left Denver. When
Harris asked for reasons to justify his discharge of Lee, this
was Loomis' opportunity to shift the blame and partially
exculpate himself . The incident described by Cook did not
relate to the misshipped meat, but to one of the two
occasions described by Lee when he placed meat and fish
on trailers which were parked in the lot.
H. Conclusion as to Respondent's Motive in
Discharging Lee
I conclude and find that Respondent's sole motive in
discharging Lee was the fear that he would require
Respondent to comply strictly with the terms of its
contract with the Union. Two of the work connected
reasons advanced by Respondent as justification for the
discharge are false , and the third, i.e., inability to spot a
trailer, had been condoned.
Respondent was totally unaware of the fact that Lee had
engaged in or had been accused of engaging in any
unprotected union activity at Ringsby. There was no hint
of any such fact in any of the communications he received
from Loomis, Cook, or Bushnell , and he had no other
information about Lee's activities.
By discharging and thereafter refusing to reinstate Lee,
Respondent committed a clear and flagrant violation of
Section 8(a)(1) and (3) of the Act.
I. Conclusion as to Whether Board Should "Defer
to Arbitration."
On June 8, 1955, in the matter of Spielberg Manufactur-
ing Company, 112 NLRB 1080, the Board stated at 1082:
In the instant case the factors which impelled the Board
to exercise its jurisdiction in Monsanto and Wertheimer
are not present. Thus the arbitration award is not, it
was in Monsanto, at odds with the statute. This does
not mean that the Board would necessarily decide the
issue of the alleged strike misconduct as the arbitration
panel did. We do not pass on that issue. And unlike
Wertheimer, all parties had acquiesced in the arbitra-
tion proceeding. In summary, the proceedings appear
to have been fair and regular, all parties had agreed to
be bound, and the decision of the arbitration panel is
not clearly repugnant to the purposes and policies of
the Act. In these circumstances we believe that the
desirable objective of encouraging the voluntary
settlement of labor disputes will be best served by our
recognition of the arbitrators' award. Accordingly, we
find that Respondent did not violate the Act when, in
FLEET DISTRIBUTING SERVICE, INC.
accordance with the award, it refused to reinstate the
four strikers. We shall, therefore, dismiss the complaint
in its entirety.
On August 29, 1961, in Denver-Chicago Trucking Compa-
ny Inc., 132 NLRB 1416, the Board applied the Spielberg
principle where there was no arbitration, but a discharge
had been found proper by a "Joint State Committee"
under a Teamsters contract. The Board, dismissing the
8(a)(3) allegation of the complaint stated at 1421:
We consider it enough under Spielberg if the proce-
dures adopted meet normal standards as to sufficiency,
fairness and regularity. As to these, each case must rest
on its own bottoms. Where, as here, the parties have
found that the machinery which they have created for
the amicable resolution of their disputes has adequately
served its purpose, we shall accept such a resolution
absent evidence of irregularity, collusion, or inadequate
provisions for the taking of testimony.
On September 21, 1970, the Board in a discharge case
gave "conclusive effect" to the determination of a Joint
State Committee under a Teamsters contract and dis-
missed the complaint. Terminal Transport Co., 185 NLRB
No. 96. In so doing it distinguished and clarified its
holding in a 1967 decision, stating in footnote 2:
We disagree with the Trial Examiner's interpretation of
Illinois Ruan Transport Corporation, 165 NLRB 227,
insofar as he construes that case as holding that, "the
Board refused to follow an arbitrator's award because
although the evidence of alleged discrimination was
presented to it [the arbitrator] it did not consider it in
its decision and making the award." Contrary to this
statement, as we read that case, the question of
discrimination was not raised before the arbitrator
therein and hence no evidence was introduced in
support of any such claim.
On August 20, 1971, in Collyer Insulated Wire, 192
NLRB No. 150, the Board, reviewing its authority and
duty to defer to arbitration where such deferral would best
effectuate the policies of the Act stated:
We find no basis for the assertion of our dissenting
coll eagues that our decision here modifies the stand-
ards established in Spielberg for judging the acceptabil-
ity of an arbitrator's award.
There was nothing in the Collyer case which should have
put the Union on notice that the Board contemplated any
modification of the rule followed in Illinois Ruan as
construed in Terminal Transport.
I conclude and find that the salutary general principles
enunciated in Collyer, as further explicated in Member
Kennedy's dissenting opinion in Airco Industrial Gases, 195
NLRB No. 120, should not be retroactively applied. As of
September ,and' November 1971, the union was guided by
the principles of Illinois Ruan and Terminal Transport and
scrupulously avoided any mention of Lee's union activities
before either of the Joint Committees. This is Lee's first,
and only opportunity to have the merits of his case
decided.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth above,
203
occurring in connection with the operations of Respondent
described above, have a close, intimate and substantial
relation to trade, traffic and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in
certain unfair labor practices. It will therefore be recom-
mended that it cease and desist therefrom and take certain
affirmative action, as set forth in the recommended order
below, designed to effectuate the policies of the Act.
I have found that Lee was discriminatorily discharged. I
have also found that his work and conduct while employed
by Respondent were in all respects satisfactory. I shall,
therefore, recommend that he be reinstated with full
seniority dating from August 16, 1971, the date when
Respondent accepted his formal application, and the date
when the Western Area Committee found him to be a
"regular" employee. I do not find, on this record any
attitude of opposition by Respondent to the self-organiza-
tion of its employees, and shall, therefore, recommend a
remedial order limited to the violation herein found and to
any like or related violation of the Act.
CONCLUSIONS OF LAW
1. Fleet Distributing Service, Inc., is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
17, is a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Stanley Lee, thereby discouraging member-
ship in and activities on behalf of the Union, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By thus interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The grievance proceedings before the Joint State
Committee and before the Joint Western Area Committee
were fair and regular, and all parties thereto had agreed to
be bound.
7. The decision of the Joint Western Area Committee is
clearly repugnant to the purposes and policies of the Act.
8. The Board should not, on this record, defer to the
decision of the Joint Western Area Committee.
Upon the foregoing findings of fact, conclusions of law,
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: i
ORDER
Respondent, Fleet Distributing Service, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
17, by discharging or refusing to reinstate employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the right to self-
organization, to form labor organizations, to loin or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Stanley Lee immediate and full reinstate-
ment to his former job, without probationary qualification,
and with full seniority dating from August 16, 1971, or, if
this job no longer exists, to a substantially equivalent
position and make him whole for any loss of earnings
suffered as a result of the discrimination against him.
Backpay shall be computed in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
(b) Notify Stanley Lee, if presently serving in the Armed
Forces of the United States, of his right to full reinstate-
ment upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, personnel records and reports, timecards,
social security payment records, and all other records
necessary to analyze the amount of backpay due under the
terms of this Decision.
(d) Post at its dock in Denver, Colorado, copies of the
attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply herewith.3
i 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.
2 In the event that the Board's 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals,
enforcing an Order of the National Labor Relations Board "
3 In the event that this Recommended Order is adopted by the Board,
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 27, in writing, within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging Stanley
Lee because of his activities on behalf of Teamsters Local
17 at Ringsby Truck Lines:
WE WILL offer Stanley Lee full reinstatement with
full seniority and pay him for the earnings he lost as a
result of his August 31, 1971, discharge, plus 6 percent
interest.
WE WILL NOT discharge or discriminate against any
employee for supporting Teamsters Local 17, or any
other union.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
FLEET DISTRIBUTING
SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
WE WILL NOTIFY Stanley Lee, if presently serving in
the Armed Forces of the United States, of his right to
full reinstatement upon application; in accordance with
the Selective Service Act and the Universal Military
Training and Service Act as amended, after discharge
from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, U.S. Custom House, Room
260, 721 19th Street, Denver, Colorado 80202, Telephone
303-837-3551.