Gateway Transportation Co.

National Labor Relations Board - Board Decisions

Jul 31, 1962

137 N.L.R.B. 1763 (N.L.R.B. 1962)

GATEWAY TRANSPORTATION CO. 1763
Gateway Transportation Co. and Max Willey. Case No. 13-CA-
4126. July 31, 1962
DECISION AND ORDER
On September 19, 1961, Trial Examiner Sidney Sherman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations to the extent consistent with our deci-
sion herein.
The Trial Examiner concluded that it would not accord with Board
policy to give effect to the arbitration award, upholding Willey's dis-
charge. We agree with that conclusion but for different reasons.
As found by the Trial Examiner, on September 24 Willey received
his discharge notice; on September 26 he received a telegram advising
that on September 28 the arbitration board established by the contract
would hold a hearing on his "discharge appeal"; and on September 28
such a hearing was held, despite Willey's protest that he had not
had sufficient time to prepare for it. The record further established
that the "discharge appeal" was filed by the Union, as the contract
apparently required, and not by Willey; that the attorney who repre-
sented the Union at the arbitration hearing declined to present
Willey's case because "Mr. Willey has never come up to the Local
Union to object to his discharge. . . ."; and that Willey's expressed
reason for protesting the hearing was his desire for time in which
to call certain drivers as witnesses in support of his position.
In the Spielberg case,2 the Board stated in substance that it would
give effect to arbitration awards if certain conditions were satisfied;
one of these conditions is that the proceedings be fair and regular.
As explicated in the Denver-Chicago case,3 "the procedures adopted
[must] meet normal standards as to sufficiency, fairness and regu-
larity ..." and there must not be "evidence of irregularity, collusion
1 The Respondent's request for oral argument is denied inasmuch as the positions of
the parties are adequately set forth in the record , exceptions , and the briefs.
3Spselberg Manufacturing Company, 112 NLRB 1080.
3 Denver- Chicago Trucking Company, Inc , 132 NLRB 1416.
137 NLRB No. 186.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or inadequate provisions for the taking of testimony." In this case,
as set forth above, Willey was forced to a hearing, with no more than
48 hours' notice, on the basis of an appeal which he did not initiate ;
union counsel, although present at the hearing, declined to represent
him; and his request for a continuance, in order that he might prepare
his case and call necessary witnesses, was rejected. Such a procedure,
in our opinion, does not satisfy the required standards of fairness and
regularity, and it is for that reason that we agree that no effect should
be given to the arbitration award involved herein. Accordingly, we
deem it unnecessary to consider whether this award should be rejected
for the reasons which have impelled the Trial Examiner to reject it.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(d) read: "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."'
[MEMBER BROWN took no part in the consideration of the above
Decision and Order.]
* In the notice attached to the Intermediate Report marked "Appendix," the words
"Decision and Order" are hereby substituted for the words "The Recommendations of a
Trial Examiner ." In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order."
The notice is further amended to add the following paragraph after the sentence be-
ginning "This notice must remain posted . . . "Employees may communicate directly
with the Board 's Regional Office, Midland Building, 176 West Adams Street, Chicago 3,
Illinois, Telephone Number Central 6-9660, if they have any question concerning this
notice or compliance with its provisions."
INTERMEDIATE REPORT
This case was heard at Chicago , Illinois, on August 1 and 2, 1961 , upon a com-
plaint filed by the General Counsel and ,an answer filed by the Respondent. The
issue litigated was whether the Respondent violated Section 8(a)(3) and ( 1) of the
Act by the discharge of Max Willey. After the hearing briefs were submitted by
the General Counsel and the Respondent.
Upon the entire record,' and from my observation of the witnesses , I adopt the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Gateway Transportation Company is a corporation organized under the laws of
Illinois , and is engaged in the transportation business . It maintains its principal
office at La Crosse, Wisconsin , and operates terminals at Chicago , Illinois, and in
a number of other States . The Respondent annually performs interstate hauling
services valued in excess of $28,000,000 , of which $9,000,000 in value were per-
formed in hauling goods from Illinois to other States.2
I find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction herein.
' In the absence of any objection thereto, the General Counsel's motion filed after the
hearing to make certain additional corrections in the transcript is hereby granted.
2 This finding is based on a stipulation submitted after the close of the hearing, which
I hereby order to be incorporated in the record as Trial Examiner's Exhibit No. 1.
GATEWAY TRANSPORTATION CO.
II. THE UNFAIR LABOR PRACTICES
1765
The complaint alleges that the Respondent discharged Willey on September 23,
1960, because he engaged in concerted activity. The answer admits the discharge,
but alleges it was for filing "false time cards" and that the discharge was upheld in
an arbitration proceeding.
Willey was employed by Respondent as an over-the-road driver from January
1957 until his discharge on September 23, 1960.3 His home terminal was in Chicago.
He had been a member for 20 years of Local 710 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called
the Union, which at all times here material was the representative of Respondent's
drivers, and enjoyed a contractual relationship with the Respondent.
Willey testified without contradiction, and I find, that during his employment by
Respondent he received three safety awards, that he was frequently assigned to the
more exactly emergency runs, and that he had been complimented by a supervisor
for his competence as a driver. Brooks, Respondent's central division operations
manager, admitted at the hearing that Willey was a "very competent" driver.
In May 1959, Gardner, steward for the Union at that terminal, took up with
Respondent's vice president, Murphy, the claim of the Chicago over-the-road drivers
that Respondent was not compensating them for trips to Akron, Cleveland, and
Mansfield, Ohio, and other points on the basis of the correct mileage between those
points and Chicago. (This claim will be referred to hereinafter as the "short-
mileage" claim .) The record indicates that the aggregate amount of the alleged
deficiency in compensation for these runs was substantial. Various steps were there-
after taken by the Respondent and the Union to check the mileage on these runs but
no agreement was reached as a result of these checks.4 Gardner took the matter
up with Murphy again in the fall of 1959, but Murphy refused to discuss the matter
further, suggesting that the Union file a formal grievance under the contractual
grievance procedure. The Union did not adopt this suggestion.
However, the following May, Kidd, one of the Chicago over-the-road drivers, pro-
posed to several of his fellow drivers that they retain Edward LeVine, an attorney,
to prosecute their short-mileage claim and on June 13 Kidd delivered to Dobbins,
another driver, and Willey petitions to be circulated among the drivers, calling for
them to pledge an amount of money toward a $1,000 retainer fee for LeVine. Such
petitions were circulated by Kidd, Dobbins, and Willey during the ensuing months.
On June 13, Willey affixed his own name to the petition entrusted to him, and
during the next 31/2 months he obtained the signatures and pledges of other drivers.
On various dates between June 13 and August 1, Ridell 5 and Vitello, admitted
supervisors at Respondent's Chicago terminal,6 questioned Willey about the status
of the petitions and Willey indicated what progress had been made in obtaining
signatures on his petition. On July 28, in response to one of these questions by
Vitello, Willey, after expressing resentment over his treatment in connection with
another grievance,7 stated," . I will make sure we raise enough money for attorney
retainer fees." On August 8 Vitello also discussed the petitions with Kidd, and about
the same time Ridell asked Dobbins about the status of the drivers' short-mileage
claim. On on unspecified date in August, Union Steward Gardner notified Vice
President Murphy and Operations Manager Brooks of the circulation of the petitions;
and Brooks admitted at the hearing that he had heard about the petitions from the
drivers, as well as Gardner, and knew that Willey was one of the drivers who was
interested in the petitions. However, Brooks denied that he was aware of Willey's
exact connection with the petitions or that he knew that Willey had a more promi-
nent part in the circulation of the petitions than any of the other drivers.
On Sepember 23, Brooks sent Willey a letter notifying him of his discharge for
filing "fraudulent" claims for waiting time in August, and at the hearing Brooks
asserted that he alone had made the decision to discharge Willey and that the reason
therefor was the one stated in the foregoing letter and not the fact that Willey
had circulated the petition described above. Brooks testified that the false claims
referred to in the discharge letter were claims for time allegedly spent by Willey
at Akron, Ohio, on August 29 and 31, while waiting for freight bills to be prepared
8A11 dates hereinafter refer to 1960 unless otherwise indicated
'Test runs made to verify the drivers ' claims yielded conflicting results.
5 Erroneously spelled "Redel" In the transcript.
6 Vitello was the road dispatcher and Ridell the night foreman.
T This grievance related to the cancellation of a trip to Akron that Willey had been
scheduled to make. The matter had not been settled to Willey's satisfaction and he had
expressed his dissatisfaction to Brooks.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent's clerk at that terminal. It is conceded that the total amount involved
in these claims was $2.65.
An understanding of the nature of Willey's alleged offense may be aided by
setting forth certain procedures governing Respondent's over-the-road drivers upon
arrival at a "foreign" terminal.8 They are required to rest during the first 8 hours
after arrival, and during the next 7 hours are allowed a period of "free time." There
is thus a maximum of 15 consecutive hours during which they are either required
or entitled to remain off duty. Under its contract with the Union, the Respondent
is required to dispatch a driver at the end of this 15-hour "break," but must give
him 2 hours' advance notice of his next assignment-i.e., he must be given such
notice during his 13th off-duty hour.
On August 29, Willey was in Akron enjoying a 15-hour break while waiting for
his next assignment. At 5 p.m. on that day, he received the prescribed 2 hours'
advance notice of his next trip. He reported to the Akron terminal at 5:40 p.m.,
found that his load was ready, punched in at 5:45 p.m., but was required to wait
until 6:30 p.m. for his freight bills. On his timecard 9 for this trip he claimed com-
pensation for the 45 minutes that he waited for the bills.
On August 31, he was again required to wait for bills under similar circumstances,
and on his timecard he claimed compensation for the 15 minutes so spent by him.
In both cases his timecards showed the hour he had punched in and the hour of his
departure but failed to state that the waiting for bills had occurred during a 15-hour
break. Early in September, Willey actually received full compensation for the fore-
going waiting periods. However, a post-audit investigation thereafter conducted by
Respondent disclosed that the two waiting periods had fallen within a 15-hour break.
According to Brooks, discovery of this fact led him to discharge Willey. It was
apparently Brooks' view that Willey should not have punched in until the bills were
ready. He was not required to report for work until the end of his 15th hour. Had
he delayed reporting until then, the bills would have been ready and there would
have been no occasion for him to claim waiting time. In other words, it seems to
have been Brooks' view that Willey punched in knowing that the freight bills were
not ready, in order to impose liability on the Respondent to compensate Willey for
standby time.
Brooks was examined at length concerning the respect in which Willey's case
differed from that of other drivers whose claims for various types of standby time
had been disallowed. Brooks' testimony on this point was at times confused and
obscure. However, taking the view most favorable to the Respondent, one may
glean the following from such testimony.
The Respondent had disallowed many claims by drivers for various types of
standby time but has not discharged any driver therefor, other than Willey. Willey's
conduct was deemed more reprehensible than that of the other drivers because he
failed to disclose on his timecard that his claim was for time spent waiting for bills
before he was required to report for work, a circumstance which would normally
disentitle him to be compensated for such time. In all other cases where claims for
standby time had been disallowed, the driver had made full disclosure on his timecard
of all the relevant facts.
However, in rebuttal of this explanation, the General Counsel adduced uncontra-
dicted evidence that Willey had claimed compensation for 21% hours spent on
April 20, 1959, at Akron, waiting for bills during a 15-hour break, that this claim
had been paid, and that a similar claim for 49 minutes so spent on March 16, 1960,
at Akron had been disallowed, but without any disciplinary action. While the time-
cards for these trips contained notations by Willey on the reverse side giving some
details about the claims, there was no mention therein of the all-important fact that
the waiting for bills occurred during a 15-hour break and before Willey was required
to report for work. Yet Respondent had presumably ascertained that to be the case
when it disallowed the second claim, if not when it paid the first one.10 Nevertheless,
8 I e , a terminal other than their home terminal
9 These were cards routinely submitted by the drivers as a basis for computing their
compensation.
10 Brooks testified that the Respondent routinely investigates the basis of any claim for
waiting time.
While Brooks testified that he had not personally seen the timecards for Willey's Akron
trip on April 20, 1959 , and March 16, 1960, before Willey's discharge, there is nothing in
the record to rebut the inference that, in accordance with the Respondent's standard pro-
cedure, either Brooks or some other representative of management had investigated the
basis for Willey 's claims for waiting time on those dates, and had determined , at least in
GATEWAY TRANSPORTATION CO. 1767
it took no disciplinary action in either instance . It was not until Willey repeated the
same offense in August, after he had become involved in the circulation of the
petition described above, that the Respondent deemed his conduct so reprehensible
as to warrant discharge. Absent any explanation of this disparity in the treatment
of Willey before and after he began to circulate the petition, the inference seems
warranted that Willey's discharge was motivated by his concerted activities rather
than by his claim for standby time. This inference is fortified by the undisputed
evidence as to Willey's proficiency as a driver and by the fact that the amount in-
volved in his claim was so trivial. I do not believe that Brooks, who by his own
admission had never before discharged a driver for making an excessive or unjustified
claim for standby time, would summarily discharge one of his more highly regarded
drivers, and brand him as dishonest, thereby jeopardizing his prospects of future
employment, because of a claim involving $2.65.
While Brooks denied that he knew that Willey was circulating one of the "short
mileage" petitions, he admitted that he had discussed the petitions with the drivers
and had heard that Willey was one of the subscribers to the petitions. It is also
undisputed that, as already related, Supervisors Ridell and Vitello, both subordinates
of Brooks, on several occasions questioned Willey about the progress of the petitions
and received responses from Willey which put them on notice that he was active
in enlisting support of the petitions among the drivers. In view of these circum-
stances, and upon the basis of my appraisal of Brooks' demeanor on the stand, I do
not credit his disclaimer of any knowledge of Willey's role in the circulation of the
petitions.
THE ARBITRATION PROCEEDING
The Union's contract with the Respondent provides for arbitration of any dispute
arising from the discharge of an employee.
The letter notifying Willey of his discharge was received by him on September 24.
On September 26 he received a telegram from the arbitration board established by
the contract to the effect that his "discharge appeal" would be heard by that board
on September 28. At the arbitration hearing on that date, Willey protested, without
avail, that he had not had sufficient time to prepare for the hearing. The record
shows that the only evidence presented at the arbitration hearing related to the
propriety under the Union's contract of Willey's aforementioned claims for waiting
time in August 1960.11 The arbitration board ruled that the claims were not justified
under the contract and upheld Willey's discharge.
The Respondent contends that the Board should honor this decision, consistently
with the policy announced in certain Board cases.12 However, I deem to be con--
trolling here the recent decision of the Board in the Ford Motor Company (Sterling
Plant, Chassis Parts Division) case,13 declining to honor an arbitration award which
upheld the discharge of certain employees, because the arbitrator considered only
whether the employees' conduct was proper under the applicable collective-bargaining
contract, and did not consider whether such conduct though in breach of the con-
tract, was nevertheless, protected by the Act. Since, here, the arbitration board con-
sidered only the propriety of Willey's conduct under the Union's contract, and
received no evidence as to whether the true cause of Willey's discharge was such con-
duct or his protected, concerted activity, the situation in the instant case seems
analogous to that in the Ford Motor case, supra. Accordingly, I do not believe that
it would accord with Board policy in this area to give effect to the foregoing arbitra-
tion award.14
the case of the March 1960 claim , that such waiting time occurred under circumstances,
not disclosed In Willey's report, which invalidated his claim.
The Respondent introduced in evidence Willey's timecard for a trip to Akron on June 7,
1960, which contains a claim for one-half hour spent in "waiting for bills " On the-
reverse side of the card is a notation by Willey that he was called at 8:15 p.m. for
10:15 pin and the "bills" were not readly until "10.50 pm." However, the times given
coincide with Willey's departure from Chicago, and there is no evidence that any 15-hour-
break at Akron or that any issue of "abuse of free time," was Involved Accordingly, It
does not appear that this timecard has any relevance here.
"A verbatim transcript of the arbitration hearing was received In evidence by me.
13 E.g., Spselberg Manufacturing Company, 112 NLRB 1080; Denver-Chicago Trucking
Company, Inc ., 132 NLRB 1416.
18131 NLRB 1462.
141 deem the Denver-Chicago case, supra, distinguishable on the ground that here, un-
like there , it affirmatively appears that the question whether the discharge was in fact-
for concerted activities , rather than for the reason alleged by the employer, was not litigated`
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In conclusion, I find that the Respondent discharged Willey because of his con-
certed activity in circulating the "short-mileage" petition and not because of his
waiting-time claims, and that the Respondent thereby violated Section 8(a)(1) of
the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, 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 com-
merce and the free flow of commerce.
IV. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8 (a) (1) of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Max Willey on September 24, 1960, I will recommend
that the Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights,
and make him whole for any loss of pay suffered as a result of the discrimination
against him, by payment of a sum of money equal to the amounts he would have
earned from the date of the discrimination to the date of the offer of reinstatement
less net earnings to be computed on a quarterly basis in a manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in any one quarter
shall have no effect upon the backpay liability for any other such period. It will also
be recommended that the Respondent preserve and, upon request, make available to
the Board, payroll and other records to facilitate the computation of the backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I adopt the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Max
Willey because of his concerted activity the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Gateway
Transportation Co., La Crosse, Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
,(a) Discharging employees because of their participation in concerted activities
for their mutual aid and protection.
,(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to engage in concerted activities for mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act:
(a) Offer Max Willey immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth in the section hereof entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
before the arbiration board. (All that appears from the Intermediate Report and Board
opinion in the Denver-Chicago case, is that the arbitration board there upheld the
,discharge.)
As the arbitration award has been found inapplicable for the reasons stated above, it is
-not necessary to consider whether such award was defective on procedural grounds.
REA CONSTRUCTION COMPANY 1769
(c) Post at its terminal at Chicago , Illinois, copies of the notice attached hereto
marked "Appendix ." Copies of such notice to be furnished by the Regional Director
for the Thirteenth Region, shall , after being duly signed by an authorized repre-
sentative of the Respondent , be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region , in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith.
It is further recommended that unless within 20 days from the date of the receipt
of this Intermediate Report, the Respondent notifies the said Regional Director in
writing that it will comply with the foregoing recommendations, the Board issue an
order requiring the Respondent to take the aforesaid action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge any employees because of their participation in
concerted activities for mutual aid or protection.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to engage in concerted activities for
mutual aid or protection , or to refrain from any and all such activities.
WE WILL offer Max Willey immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and make him whole for any loss of pay suffered as a
result of the discrimination against him.
GATEWAY TRANSPORTATION Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for,60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Rea Construction Company and United Brotherhood of Carpen-
ters and Joiners of America, Local 1165 , AFL-CIO. Cases Nos.
11-CA-1875 and 11-CA-1896. July 31, 1962
DECISION AND ORDER
On May 3, 1962, Trial Examiner James V. Constantine issued his-.
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and'
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the-
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
137 NLRB No. 190.