Illinois Ruan Transport Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1967

165 N.L.R.B. 227 (N.L.R.B. 1967)

ILL. RUAN TRANSPORT
Illinois Ruan Transport Corporation and
Robert E. Adams. Case 14-CA-3969.
June 9,1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 29, 1966, Trial Examiner Arthur
Christopher, Jr., issued his Decision 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 Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Illinois Ruan Transport Corporation,
Wood River, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
Substitute the following paragraph for paragraph
1(a):
"(a) Interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in
Section 7 of the Act, by discharging employees for
engaging in protected concerted activity."
Substitute the following paragraph for the first
substantive paragraph of the notice:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of rights
guaranteed in Section 7 of the Act, by
discharging employees for engaging in
protected concerted activity.
In the third substantive paragraph of the notice,
delete the last four words, "the discrimination
227
against him," and substitute therefor "his unlawful
discharge."
' For the reasons stated by him, and in the absence of exception
thereto, we adopt the Trial Examiner's finding that it is
unnecessary to decide whether the discharge of Adams, found to
be a violation of Section 8(a)(1), was also a violation of Section
8(a)(3) However, as set forth infra, we deem it necessary to
correct the Trial Examiner's apparent inadvertence in basing his
Recommended Order and notice on an 8(a)(3) violation
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR CHRISTOPHER, JR., Trial Examiner: This
proceeding was heard before me in St. Louis, Missouri, on
July 18 and 19, 1966, on complaint of the General Counsel
and answer of Illinois Ruan Transport Corporation,
hereinafter called the Respondent.' The issues litigated
were whether the Respondent violated Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended. At
the hearing, the General Counsel, the Respondent, and the
Charging Party were represented by counsel and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to present evidence. At the
close of the hearing, the Respondent argued orally and
thereafter the General Counsel and the Respondent each
submitted briefs
Upon the entire record herein and upon the basis of my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation with its
principal place of business located at Des Moines, Iowa, is
a common carrier engaged in providing intrastate and
interstate trucking services. In the conduct of its business
enterprise, the Respondent maintains a number of freight
terminals, including a terminal at Wood River, Illinois,
involved herein. During the year ending December 31,
1965, which was a representative period, the Respondent,
in the course and conduct of its enterprise, performed
services valued in excess of $50,000, of which amount
services valued in excess of $50,000 were performed in,
and for various enterprises located in, States other than
the State of Illinois.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 525,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called either the Union, the Teamsters, or
Local 525, is a labor organization within the meaning of the
Act.
' The charge herein was filed by Robert E. Adams, an
individual, on May 11, 1966
165 NLRB No. 34
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The primary issue in this proceeding is whether the
Respondent violated Section 8(a)(1) by its discharge of
Robert E. Adams on or about April 21, 1966, because he
allegedly engaged in protected, concerted activities. A
secondary issue arises out of Respondent's contention that
the instant proceeding is barred because of Adams'
voluntary submission to, and his agreement to be bound by
the outcome of, the grievance procedure set forth in the
collective-bargaining agreement between the Union and
the Respondent.
B. The Facts
1. Introduction
The facts are not substantially in dispute.
Robert E. Adams, the alleged discriminatee,
commenced working for the Respondent in April 1953, and
worked until April 21, 1966, the date of his termination.
Adams was employed as a transport truckdriver and was
engaged in hauling bulk petroleum products throughout
1966 until the time of his discharge, utilizing a Fruehauf
trailer and an International tractor.
Adams credibly testified that during the period of his
employment by the Respondent as a transport truckdriver,
he had refused to drive certain units, on the grounds that
they were unsafe for operation. The last such refusal on
Adams' part to drive a vehicle of the Respondent occurred
during the month of February 1966. He testified that after
he refused to drive such units, he was "usually ... sent
home." He further testified that on one such occasion
following his refusal to drive a vehicle on the ground that it
was unsafe to operate, he had a heated discussion with
Floyd Holcomb, the shop maintenance foreman. As a
result of the discussion with Holcomb, Adams stated that
he filed a grievance complaining about the extreme
language directed by Holcomb at Adams.
Sometime in March 1965, Adams wrote the Respondent
at its Des Moines, Iowa, headquarters. In his letter, Adams
requested the intercession of President John Ruan in the
dispute Adams alleged that he had with the management
of the Respondent's Wood River, Illinois, terminal. Adams
complained in his letter that several months earlier, while
making a delivery at Springfield, Illinois, his truck lost 550
gallons of gasoline because of a defective air vent which
permitted pressure to build up in the tank, resulting in the
expansion and loss of gasoline out of the fill pipe. Adams
stated that it had been reported to him that the American
Oil Company, for whom the delivery was made, had
credited the Respondent for the loss but Terminal
Manager Fred E. Rose, nevertheless, told Adams that he
expected Adams to pay for the loss himself. Adams
declined to pay for the loss of the gasoline on the grounds
that the defective storage was previously reported and that
any existing negligence was due to the failure to correct
the defective mechanical equipment. He also stated that
the amount of gasoline overrate, i.e., gallons delivered in
excess of gallons loaded, would exceed the 550-gallon loss
in about a 60-day period. Adams also stated that in all his
prior service, without any demonstrable loss, the
customer, American Oil Company, should have been
indebted to him for several thousand-odd gallons. He also
called attention to a deteriorating relationship that began
between him, on the one hand, and Terminal Manager
Rose and the American Oil Company on the other. He
specifically referred to an incident at Decatur, Illinois, in
which a short-air warning hose worth only about $4.25 was
broken, but nevertheless, was carried as a chargeable
accident against Adams. Adams also stated in his letter to
Ruan that he had lost an average of about $40 each week in
wages and his assigned status. He stated "after being
assigned to a different defective truck each day for several
days . in compliance with ICC regulations, I was
compelled to refuse several trucks." He made a reference
to the foul language directed at him by Shop Foreman
Holcomb on an occasion in February when he refused a
truck that had a loose and misaligned front axle. He also
stated in his letter that during the winter months, he was
one of few, if not the only driver, who refused to overload
with respect to local deliveries. He stated that drivers
generally were asked to load 7,000 gallons of oil whereas
the St. Louis drivers were instructed to load 9,000 gallons
of gasoline, in violation of Illinois weight laws.2 Adams
stated that management told him that the latter loading
requirement was prescribed by the customer, American
Oil Company. He further stated that two of his defective
equipment reports were forwarded to the ICC in
Washington, D.C., with the request that they be
investigated. Concluding his letter, Adams stated that he
wanted to submit the following observations for Ruan's
appraisal or for some acknowledgement. Adams criticized
the fact that the service units of the Respondent, or
production units, consisted of two drivers on one truck
operating on a 24-hour basis without management
supervision. He stated that this was impractical and that
what was needed was more emphasis on teamwork and the
delegation of sufficient authority to carry out the
supervisor's responsibilities resulting from such an
arrangement.
Adams further complained that any truck, regardless of
cost and quality, requires "habitual attention" from the
driver as well as scheduled maintenance, and the
Respondent's practice of pooling and transferring
equipment was not compatible with such a requirement.
He also stated that to deprive an experienced and
conscientious driver of a well-maintained truck and to
assign him one from the St. Louis terminal were both
insulting and injurious to all concerned. In this connection,
he called attention to the unnecessary amount of risk to a
driver resulting from his driving a different truck each day.
He also added that one cement driver named "Dan," of
Staunton, Illinois, told Adams that his local deliveries ran
as high as 120,000 pounds, which was a full tank of
cement, Adams added that he did not believe the trucks
were ballistically safe at such weight. Adams concluded
his letter by suggesting to the Respondent that they
(1) stop all overloading in violation of State laws; (2) make
driver-tractor-team assignments for a period of at least 6
months; (3) set up a schedule of monthly team progress
reports; (4) post a graph in the drivers' room showing
actual maintenance and tractor expenses compared to
International Harvester pro rata figures for each tract
number-differentiating as to the major assemblies and
showing the drivers' assigned; (5) conduct weekly
business meetings at 12:30 p.m. on Mondays, requiring
attendance for not more than 1 hour; (6) with respect to
2 As shown above, the transport trucks were loaded near the
Wood River terminal in Illinois.
ILL. RUAN TRANSPORT
public relations and also for the benefit of the current
emphasis on damage-control measures, design and
publicize the use of a low-semicircle-contoured front truck
bumper to coincide with automobile bumpers, and capable
of reflecting an out-of-control automobile away from the
truck wheels and frame, thus preventing a transport truck
from overriding an automobile from the rear, crushing the
fuel tank.
After receiving the letter from Adams, President John
Ruan contacted his local management at the Wood River
terminal and upon receiving a report from Terminal
Manager Rose, acknowledged Adams' letter. Ruan stated
in his reply that he was asking Rose for additional
information in connection with the various allegations
made by Adams in his letter.
Sometime in early March 1966, Adams, concerned
about the operation of vehicles which he deemed to be
unsafe and believed did not comply with the ICC
standards, talked to a number of people about the matter,
including Patrolman Robert M. Churich of the Alton,
Illinois, police department, a personal acquaintance.
Adams told Churich that he thought that he was being
discriminated against resulting from the fact that the
Respondent had established a policy of overloading its
vehicles and that he had refused to go along with such
overloading. Churich told Adams that he knew a State
patrolman who he thought would investigate the charges
upon request. Later Churich told Adams that he had
referred to Patrolman Whitmore of the Illinois State Police
and that Patrolman Whitmore was going to inspect some
of the Respondent's equipment at Hartford, Illinois, and
that if Adams had any friends he wanted to notify so that
they would not be caught with overloads, that Adams
should do so. Thereafter, Adams contacted Edward
Ruffato, a driver of the Respondent who also served as
union shop steward at the Respondent's terminal and
advised him of his prior conversations with Patrolman
Churich. Following his talk with Ruffato, Adams stated
that the next day a notice appeared on the bulletin board
for all drivers to begin loading the St. Louis loads "legal."
The notice was signed by Superintendent Fred Rose.
Adams testified that during his 13 years of employment
with the Respondent, he had never seen a similar notice as
the foregoing notice posted by the Respondent.
2. The discharge of Robert E. Adams
Robert E. Adams reported for work as usual on April 12,
1966, and was assigned tractor 8792 and trailer 2165. As
was customary, prior to driving the vehicle, Adams filled
out the driver's vehicle report. He stated thereon that two
of the tires on the trailer were worn out. Thereafter he
placed the form in the slot where drivers' reports were
deposited. On April 13, 1966, Adams was assigned tractor
8792 and trailer 2165, the same two vehicles he had driven
the previous day. He again executed the driver's vehicle
condition report and again indicated that two tires were
worn out. Adams explained that he did not speak to
anyone connected with management about his assignment
to the same tractor and trailer that he had driven the day
before because he believed that if he had insisted on any
necessary repairs, he would have been sent home.
His first assignment on April 13 was to deliver a load to
the American Oil Company, located on Park Street in St.
3 The time was definitely fixed by reference to the tachograph,
a mechanical instrument installed on the truck . The tachograph
makes an imprint on a round piece of paper , indicating each
229
Louis, Missouri. He left the Respondent's Wood River,
Illinois, terminal, which was located about 26 miles from
the delivery point at approximately 7:50 a.m. With respect
to the route traveled, Adams credibly testified that he had
never been given a particular route with instructions to
follow, nor was he given a return route. In this respect, the
Respondent, a number of years before, had posted
specified routes for certain runs, but it is clear from the
testimony of several drivers that no one was required to
follow such a specific route outlined by the Respondent
but was free to use his own discretion with respect to such
trips. On the day in question, Adams left the refinery at
7:50 a.m.3 He proceeded to St. Louis, and had a coffee
stop en route which consumed about 20 minutes and
which likewise was reflected on the tachograph.
Thereafter he arrived at the American Oil Company
installation at 10:20 a.m. On arrival at the American Oil
Company premises, he observed that a truck belonging to
the latter company was parked in the unloading area and
was in the process of unloading. An American Oil
Company employee named Matthews told Adams that
if he desired, he could pull his vehicle up to the left side
of the American Oil Company truck and throw his hose
beneath the truck with an extension and pump the oil
from his vehicle to the tank in that manner. Adams asked
Matthews how long would be required for the unloading of
the American Oil Company truck and when told that 15 or
20 minutes were required, Adams told Matthews that he
preferred to wait.
Adams thereupon parked his truck and made a
telephone call to the ICC's local office and talked to a man
named O'Hara. Adams told O'Hara about his previous
vehicle equipment report of the previous day and about
the one he executed for that day and asked O'Hara if he
could come by and have his truck inspected. O'Hara told
Adams to bring the truck by and he would inspect it.
Thereafter, Adams returned to his truck, spotted, and
unloaded it. Adams explained that if he had followed
Matthews' suggestion and unloaded his truck by pumping
the oil beneath the American Oil Company truck, he
would have been required to disconnect the hoses when
the latter truck was ready to leave because his hose would
have been damaged if the American Oil Company truck
had driven over it. Moreover, it required from 5 to 10
minutes to hook several such hoses together. After
unloading his truck, Adams proceeded to the ICC office.
According to Adams' credible testimony, the distance
between the American Oil Company and the place where
he parked his truck, at the ICC inspection station, is from
500 to 600 feet.
O'Hara, the ICC employee, inspected the truck and
executed the appropriate ICC form. Thereafter, O'Hara
gave Adams a copy of the form and instructed him to turn
it in with his log report, which Adams did. In this
connection, O'Hara admonished Adams to be certain that
he reported the interval required for the inspection on all
his trip sheets and all company worksheets pertaining to it.
In this connection , the time required for the ICC
inspection is shown on the tachograph chart. According to
the chart, Adams arrived at the ICC inspection station at
11:40 a.m. and departed about 12:40 p.m. According to the
tachograph chart, Adams returned to the Wood River
terminal at 1:20 p.m. and made other runs during the
instance the truck 's motor was started and shut off, thereby
furnishing a complete record of all stops by the vehicle
299-352 0-70-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remainder of that day . He made out all the necessary
forms required by the Respondent when he returned,
including a form J-60 equipment report. Adams, in
addition to making out the tachograph chart, also made out
an IBM card in triplicate which is used as a trip sheet and,
in addition , completed a logsheet and attached the
inspection report to it as directed by the ICC inspector.
These forms were likewise deposited in the slot designated
for such drivers ' forms.
The ICC inspection report, which was signed by ICC
Inspector Thomas P. O 'Hara, although not requiring that
the truck be withdrawn from service , disclosed findings
that the right front inside dual tire on the trailer had been
worn through three plies of fabric to such an extent that
the fourth ply fabric was exposed . The report also revealed
that the trailer had a leaking discharge valve on the right
side and a broken leaf in the right front spring. The
tractor's stop and tail lights were inoperative and its brake
chambers were chafing against the axle housing. The
center identification light on the tractor was likewise
inoperative and the right front reflector on the trailer was
cracked.The left front outside dual tire on the trailer was
likewise worn smooth.
On the evening of April 20 , Adams was told by Holmes,
his dispatcher , that Terminal Manager Rose wanted to see
him the next morning. About 9 a.m. the next morning,
Adams went to Rose's office where Rose told Adams "we
assume that you do not want to work for us any longer, you
have pushed us too far ." Adams replied that he thought
the Respondent was pushing its drivers too far. In answer
to a remark by Holmes that Adams had taken the tractor-
trailer to the ICC inspection station with the expectation of
getting the vehicles tied up so that the Respondent would
have to pick them up at the station, Adams replied that he
took the vehicles over "to try to get it repaired and to find
out, to see if I have the right, the authority , to get the truck
repaired ." In the ensuing discussion , Adams referred to an
upset incident that occurred early in 1965, involving a
driver named Plank, in which Adams told Rose that he
believed the brakes on that vehicle were defective . He also
stated that he had heard other drivers say that they had
refused to operate defective trucks or had written up
reports on defective trailers. Adams also made a reference
to a driver who was killed in an accident at Denver,
Colorado, in 1965 or early 1966, stating that he believed
much of the Respondent ' s equipment was damaged
because of overloading. He also stated that it was possible
that the man killed in the Colorado accident did not have
sufficient brake traction to avoid the train collision. To
Adams' remark, Rose replied that "the Company had a
clear record of that accident ." Rose told Adams that all
drivers had driven equipment after Adams had refused
such equipment and had been advised that Adams had, in
fact , refused such equipment . In this connection, Adams
credibly testified that he had refused equipment on five
occasions , most of which occurred in 1966. With respect to
whether he was paid for the stopover at the ICC inspection
station , Adams testified that he was not supposed to be
paid for idle time and he should not have been paid for the
ICC inspection time because he had indicated the nature
of his stops on his various reports , but it was up to the
dispatcher to make the determination as to whether a
driver was to be paid for such time as the ICC inspection.
Adams credibly testified that when he returned from his
April 13 trip, he was questioned by the dispatcher as to
what took him so long to make the trip and Adams replied
that he was delayed, stating as the reason for his delay that
there was some fault with the truck ahead of him. Adams
did not recall whether he told the dispatcher definitely
what was wrong with the truck in front of him. He
admitted that he might have made the statement at some
time that the truck in front of him had a faulty pump on it.
In this connection, the Respondent asserted that it
checked with the American Oil Company station and
determined that the truck did not have a faulty pump.
Adams credibly testified in this connection that the
American Oil Company's spotter, Carl Matthews, had
stated that the pump contained a leakage.
Terminal Manager Rose, on the occasion of Adams'
discharge on April 21, indicated that he would detail the
reasons for Adams' discharge in a letter to him, in
accordance with the provisions of the collective-bargaining
agreement between the Union and the Respondent. The
letter, which was dated April 21, 1966, and was signed by
Fred C. Rose, stated that on completion of Respondent's
investigation, and in accordance with the uniform rules
and regulations governing employees of tank truck
carriers signatory to the Central Conference of Teamsters'
Tank Truck Agreement, Adams was being served notice of
discharge for dishonesty, falsification of records, and
unauthorized use of motor vehicles. Although the
Respondent, in the letter did not specifically rely on the
following as reasons asserted for Adams' discharge, the
letter nevertheless stated that on April 13, 1966, Adams
took it upon himself to move the Respondent's transport
number 8792-2165 from the Standard Oil Company-
American Oil Company plant in St. Louis, to 16th & Clark
Streets, St. Louis, where he had arranged for an ICC
equipment compliance check, which constituted an
unauthorized movement of Respondent's equipment. It
also stated that after he returned to the terminal after a
delay of nearly 2 hours, he told the dispatcher that he had
been delayed by another truck and, in his J-60 operational
report, stated that he was delayed at the American Oil
Company-Standard Oil plant because an American Oil
Company truck with a defective pump was unloading
ahead of him whereas the Respondent's investigation
developed that the above statement was incorrect. The
letter also stated that he had been given four warning
notices since November 2, 1965, for violations. On
November 2, 1965, it stated Adams was given a warning
letter because of "running" a railroad crossing. On
December 3, 1965, it alleged that he likewise received a
warning notice for failure to park and load his transport. It
also stated that on January 28, 1966, he was given a
warning notice for accidents involving him on January 25,
1966, and on January 28, 1966. It also stated that, on
February 9, 1966, he received a warning letter for a
violation of "ICC hours." The letter concluded by stating
that discharge was effective on April 21, 1966.
3. The grievance proceedings
Following his discharge, Adams immediately went to the
Union's business office in Alton, Illinois, and filed a
notification of grievance, pursuant to the existing
collective-bargaining agreement between Teamsters'
Local No. 525 and the Respondent. The hearing following
his filing of the grievance took place at the Local 525 hall.
In addition to Adams, the Union's Business Agent Lee
Aldridge, Union International Representative Doty, and
Terminal Manager Rose were present. At that time, Rose
stated that Adams was dismissed for misrepresenting a
ILL. RUAN TRANSPORT
delay. On conclusion of that meeting, the Respondent
declined to comply with the Union's request and put
Adams back to work As a consequence, the grievance
matter was referred to the Joint State Committee, which
met at Springfield, Illinois.
The Joint State Committee's meeting was held on
May 9, 1966, and likewise was held pursuant to the
collective-bargaining agreement. At that meeting, the
Respondent was again represented by Terminal Manager
Rose; Doty again represented Local 525, and Lee Aldridge
served as the personal representative of Adams. The
committee was composed of three members from
management and three members from labor. No verbatim
record of the proceedings was made. Edward Ruffato
credibly testified that the State Committee considered the
question of the unauthorized use of the vehicles and the
alleged false report by Adams to his superiors. William
Doty, business agent of Local525, substantially
corroborated Ruffato's testimony According to Doty, the
Union admitted a violation on Adams' part, but took the
position that discharge was too severe a penalty for the
violation. After deliberating, the committee voted
unanimously to let the discharge stand. As no appeal to the
national committee in the circumstances was provided for
by the agreement, the committee's action marked the end
of Adams' grievance.
C. Concluding Findings
The Respondent contends that Robert E. Adams was
discharged for cause; i.e., he was discharged because of
his unauthorized use of the tractor-trailer assigned to him
on April 13, 1966. It further contends that the General
Counsel has not met his burden of proof and established
that Adams was, in fact, discharged because he reported
the Respondent to the ICC and requested an inspection of
the vehicles by the ICC. It also urges, contrary to the
General Counsel, that Adams driving the vehicles in
question to the ICC inspection station on company time
and without the Respondent's consent, does not constitute
protected concerted activity within the meaning of the
Act.
In this connection the Respondent argues that although
Adams had the right to request an inspection by the ICC,
he did not have the right to accomplish such an inspection
by unauthorized use of the vehicles on company time and
by taking the vehicles to the ICC inspection station.
The Respondent further asserts that Adams' refusal to
be bound by the grievance procedure set forth in the
existing collective-bargaining agreement between the
Union and the Respondent precludes his utilizing the
processes of the Board in the instant proceeding and, as a
consequence of all the foregoing, the complaint herein
should be dismissed.
The General Counsel urges that the Respondent, by its
discharge of Adams on April 21, 1966, violated Section
8(a)(1) of the Act, asserting that Adams was engaged in
protected, concerted activity by virtue of his having the
vehicles inspected that day, and the evidence clearly
shows that he was discharged because of such activity.
The General Counsel argues that Adams' action in having
the vehicles inspected by the ICC was taken not only
because of his personal safety and that of the other
drivers, but in implementation of both the existing
collective-bargaining agreement as well as ICC rules and
regulations relating to such motor carriers.
'See B & M Excavating Inc , 155 NLRB 1152
231
It is clear from the record that the Respondent was very
annoyed by Adams' refusal of vehicles in the past for the
asserted reasons that they were unsafe Its annoyance was
climaxed when he took the vehicles assigned to him on
April 13 to the ICC for inspection as to their road
worthiness. The foregoing is demonstrated by Terminal
Manager Fred E. Rose's statement in a communication to
President John Ruan in which Rose, reporting to Ruan as
to Adams' background and prior employment record with
the Respondent, stated that he had been given warning
notices in the past but that the incidents were so spaced
that the discharge of Adams was not feasible but that
Adams' present and future conduct would be watched
very carefully. The Respondent's annoyance at Adams is
also reflected in Rose's statement to Adams when Adams
was given verbal notice of his termination, that Adams had
"pushed us too far." Respondent's argument that Adams
was discharged pursuant to its rules, which recognized as
valid by the collective-bargaining agreement between the
Union and the Respondent, is lacking in merit. That
Adams was deeply concerned for his own safety as
revealed by his several refusals of vehicles because of his
belief that they were unsafe to operate. As a result, he kept
up an almost constant campaign for improved vehicles and
also urged that a ban be instituted on the overloading of
vehicles. Adams' complaint to the ICC and his subsequent
taking the vehicles to the ICC for inspection, are protected
activities within the meaning of Section 7 of the Act.' Even
though Adams' action in taking the vehicles to, and in
communicating with, the ICC occurred without prior
consultation with the other drivers, it is clear that such
individual action was taken in implementation of the
collective-bargaining agreement and amounted to an
extension of the concerted activity that gave rise to that
agreement.' Moreover, the fact that Adams engaged in
concerted protected activity is not open to serious doubt
as revealed by his talk with Union Shop Steward Ruffato
concerning the then imminent road check of Respondent's
vehicles by the Illinois State Police, which resulted in an
order by Respondent to all its drivers to carry only legal
loads in Illinois on the day of the anticipated police check.
In the recent Thurston Motor Lines, Inc., 159 NLRB 1265,
1306-07 the Board stated:
When Respondent discharged Poss in the belief that
he had complained to the Interstate Commerce
Commission in the course of that concerted activity,
the discharge violated Section 8(a)(1) of the Act, even
if Respondent's belief were well founded, unless the
complaint to the ICC were made in bad faith, with
knowledge of its falsity, or with intent to harass
Respondent. The merit or lack of merit to the
complaint is immaterial. As the refusal of the
Interstate Commerce Commission to divulge the
names of informants indicates, public policy requires
that employees and private individuals be free to
make complaints to public agencies without fear of
reprisal. It would be contrary to that policy to hold
that the making of a complaint to a public authority in
the course of concerted activity removes the
protection from the concerted activity, particularly
where, as here, statements by the Respondent's
mechanic, although later amended by him, were such
as to raise doubt as to conditions of the tachograph.
... As Poss was clearly a participant in the concerted
protests over the tachograph to Respondent, and
Respondent's conclusion that he made the complaint
See the B &A/ case, supra , and cases cited therein.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the 1CC was based in part on his role therein, it
makes no difference whether Respondent's belief that
Poss made the complaint was well founded or
mistaken.
As shown by the ICC inspection report which, inter
alia, revealed several defective tires, Adams' complaint to
the ICC was not made in bad faith.
In Socony Mobil Oil Co., Inc., 153 NLRB 1244,1247, the
Board approved findings in an earlier case," where the
Board stated:
Any discharge predicated in whole or in part on the
effort of an employee, representing himself and one or
more other employees, to present such grievances,
absent unusual circumstances not present here,
would be a discharge for protected union and
concerted activities and therefore a violation of the
Act. The merit or lack of merit in the grievance that
would be presented, if permitted, is immaterial.
The Respondent's defense that Adams violated one of
its rules by his unauthorized use of the vehicles is not
tenable. As shown hereinabove, Adams' departure or
deviation from his route of delivery amounted only to 500
or 600 feet. Moreover, the record is replete with evidence
that other drivers had departed from their routes of
delivery for a number of personal reasons, including the
obtaining of license plates at Springfield, Illinois, and
visits to barber shops for haircuts. Although the record
does not show that the Respondent had definite knowledge
of such unauthorized use of its vehicles, it is clear that
such unauthorized use extended over a period of several
years and, in at least one instance, was for the benefit of
the Respondent's office secretary at the Wood River
terminal . I infer that because of such extended
unauthorized use of Respondent's vehicles and the long
period of time over which such unauthorized use occurred
that the Respondent, in fact, had knowledge. I therefore
find and conclude that the Respondent's defense that
Adams was, terminated because of his unauthorized use of
the vehicles in question on April 13, is lacking in merit.
The Respondent's contention that the Board's powers
may not be invoked, or should not be exercised, in this
case because of Adams' reliance on a provision in the
subsisting collective agreement authorizing arbitration in
the event of a discharge under the grievance procedure,
likewise is lacking in merit . I am of the opinion that the
proceeding before the State committee did not meet the
standards of fairness and regularity set forth by the Board
in Spielberg Manufacturing Company, 112 NLRB 1080, as
to warrant honoring its determination or award.7 Thus, it is
clear that Terminal Manager Fred Rose, in his
presentation of Respondent's case to the State committee,
relied on other reasons for discharge as set forth in his
letter of April 21, to Robert Adams. Rose had stated in an
affidavit to a Board agent that the other incidents related
in the letter were set forth therein "not because they were
actually the reasons for the discharge, but for the purpose
of strengthening . [Respondent's] case before the
Union." Apart from the fact that the committee was not an
6 Top Notch Manufacturing Company, 145 NLRB 429
' See Monsanto Chemical Company, 130 NLRB 1097 at
1098-99
s See Precision Fittings, Inc., 141 NLRB 1034 at 1040-43.
° See Monsanto Chemical Company, supra, and Raytheon
Company, 140 NLRB 883.
10 See B & M Excavating, Inc., 155 NLRB 1152, Socony Mobil
Oil Co , Inc, 153 NLRB 1244. See also Thurston Motor Lines,
Inc., supra
arbitration panel, its decision forms an insufficient basis
insofar as showing the disposition of the issues before the
members of the joint committee. Its report merely stated
that the "discharge be upheld. Motion carried
unanimously." No specific reasons for its determination
were set forth therein. In all the circumstances, the
withholding of the real reason for discharge from the
committee, in my opinion, impugned the fairness and
regularity of the proceeding before that body." Moreover,
it is clear that the committee's action was silent as to
certain issues relevant to the instant case, including the
question of whether Adams was engaged in protected,
concerted activity when he visited the ICC in the
circumstances, there is no basis for a finding that the
Board is in any way bound by the determination of the
committee's
On the basis of all the foregoing, I find and conclude
that, by discharging Robert E. Adams on April 21, 1966,
and its subsequent failure and refusal to reinstate Adams
thereafter, the Respondent violated Section 8(a)(1) of the
Act. Io
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities as set forth in section III, above,
occurring in connection with the operations of Respondent
set forth 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 commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily
discharged Robert E. Adams on April 21, 1966, and
thereafter discriminatorily refused reinstatement to him, I
shall recommend that the Respondent be ordered to offer
Robert E. Adams immediate and full reinstatement to his
former of substantially equivalent position without
prejudice to his seniority or other rights and privileges,
dismissing if necessary any person hired on or after
April 21, 1966, to provide a place for him. I shall also
recommend that Respondent be further ordered to make
Adams whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to that which he
normally would have earned as wages during the period
commencing on April 21, 1966, to the date of the
Respondent's offer of reinstatement, less his net earnings
during such period, in accordance with the formula
prescribed in F. W. Woolworth Company, 90 NLRB 289,
Although the complaint alleged that the Respondent violated
Section 8(a)(3) and (1) of the Act by its discharge of Robert E
Adams and its subsequent failure to reinstate him, the General
Counsel, in his brief to the Trial Examiner, took the position that
the Respondent had only violated Section 8(a)(1) of the Act. In the
circumstances , it is unnecessary to decide whether the
Respondent also violated Section 8 (a)(3), as such a further finding
would not affect the remedy herein Canada Dry Corporation, 154
NLRB 1763.
ILL. RUAN TRANSPORT
together with interest on such sums, such interest to be
computed in accordance with the formula prescribed by
the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging Robert E. Adams on April 21, 1966,
and by its subsequent failure and refusal to reinstate him
to his former and substantially equivalent position, the
Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization
by discriminatorily discharging any of its employees
because of their participation in concerted activities
protected by the Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent
that those rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is found
to effectuate the policies of the Act:
(a) Offer to Robert E. Adams immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges. -
(b) Make Robert E. Adams whole for any loss of
earnings he may have earned by payment to him of a sum
of money equal to the amount he would have normally
earned as wages from April 21, 1966, to the date the
Respondent offers him full and complete reinstatement,
together with interest on said amount at the rate of 6
percent per annum . Backpay and interest are to be
computed and paid in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and in Isis Plumbing
& Heating Co., 138 NLRB 716, less the net earnings
during the aforesaid period.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Notify Robert E. Adams 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.
233
(e) Post at its Wood River, Illinois, terminal, copies of
the attached notice marked "Appendix." " Copies of said
notice, to be furnished by the Regional Director for Region
14, after being duly signed by Respondent, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to Respondent
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 12
i 1 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
12 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge or otherwise discriminate
against any employee in regard to hire or tenure of
employment or any term or condition of employment
for engaging in any activity protected by Section 7 of
the National Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act, except to the extent that those
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(1) of the
aforesaid Act.
WE WILL offer to Robert E. Adams 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 earnings he may have suffered as a result
of the discrimination against him.
ILLINOIS RUAN TRANSPORT
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employee 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
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Military Training and Service Act, as amended, If employees have any question concerning this notice
after discharge from the Armed Forces. or compliance with its provisions , they may communicate
This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, 1040 Boatmen's
from the date of posting and must not be altered, defaced , Bank Building , 314 North Broadway, St. Louis, Missouri
or covered by any other material. 63102, Telephone MA 2-4154.