Jacobs Transfer, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1973

201 N.L.R.B. 210 (N.L.R.B. 1973)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jacobs Transfer, Inc. and Daniel George. Case
5-CA-5308
January 11, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 28, 1972, Administrative Law Judge'
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 2(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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
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, Jacobs Transfer,
Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the said Order.
1 The title of "Thal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Chairman Miller agrees with the Administrative Law Judge that the
Joint Committee's arbitration award does not preclude the Board from
determining this case on the merits, but, in doing so, he relies solely on
grounds that the Committee was arrayed in interest against the grievant. See
Roadway Express, Inc., 145 NLRB 513
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Trial Examiner: This case was
tried before me in Washington, D.C., from February 23 to
March 3, 1972, upon an unfair labor practice charge filed
on September 23, 1971, and an amended charge filed on
September 28, 1971, by Daniel George, the Charging Party,
against Jacobs Transfer, Inc., the Respondent, and upon a
complaint issued by the General Counsel of the National
Labor Relations Board on January 19, 1972. The Com-
plaint alleged in substance that the Respondent terminated
George and has refused to reinstate him because of his
union and concerted activities in violation of Section
8(a)(1) and (3) of the National Labor Relations Act (29
U.S.C. 158). On February 2, 1972, Respondent filed its
Answer admitting the discharge, asserting that it was for
cause, and denying the commission of unfair labor
practices. As separate defenses the Answer asserted that
George's conduct was not protected concerted activity, and
further, that the Board should defer to the determination of
a grievance-arbitration panel which had sustained the
discharge.
The parties waived oral argument. Briefs were filed by
the General Counsel and Charging Party on April 24, and
by the Respondent on April 26, 1972.
Upon the entire record, including my observation of the
witnesses, I make the following further:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is, and at all times material herein has been,
a corporation duly organized under and existing by virtue
of the laws of the District of Columbia, with its offices and
principal place of business located in Landover, Maryland,
where it is engaged as a Class I Common Carrier in the
interstate distribution of freight in the District of Colum-
bia, Maryland, and Virginia area. Respondent derives gross
revenues in excess of $50,000 annually from its interstate
operations.
Respondent is, and at all times material herein has been,
engaged in commerce within the meaning of Section 2(6) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 639 (herein
referred to as the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The case arises out of the discharge in September 1971,
of the Charging Party, Daniel George, a driver employed
by the Respondent at its Ardmore terminal in Prince
Georges County, Maryland, adjoining Washington, D.C.
The Respondent operates some 10 terminals at various
locations in Maryland, the District of Columbia, and the
State of Virginia, and employs over 400 employees who are
represented by the Union, Local 639 of the Teamsters,
pursuant to collective-bargaining contract.
The contract contains provision for a Maryland-D.C.
Joint Committee, composed of an equal number of-
employer and union representatives to decide disputes or
grievances arising under the contract. The decision of a
majority of the Joint Committee is final and binding on all
parties. In the event of deadlock in the Joint Committee on
a discharge case, the contract requires submission of the
issue to an impartial arbitrator in other deadlocked cases
either to such an arbitrator or to an Eastern Conference
Joint Committee.
The Union has some 6,500 members employed in the
trucking industry in and around the Washington, D.C.
area, and has contracts with various employers in that
territory. In the last 20 years the Union has had only two
Presidents. The present incumbent, Frank DeBrouse, has
been in office about 5 years.
The executive vice president and general manager of the
Respondent at the time of the events herein was James N.
201 NLRB No. 34
JACOBS TRANSFER, INC.
Mills. Mills had formerly been a business agent of the
Union and went directly from that employment to the
executive office of the Respondent on April 6, 1967. There
is some remote relationship by way of marriage between
Mills and DeBrouse , which I do not find of significant
bearing on the issues here.'
George was discharged on September 24, 1971, because
of comments made in a pamphlet composed by George in
connection with a forthcoming union election in which
George was the candidate for president of a so-called
reform group within the Union. In that pamphlet George
suggested that Mills and DeBrouse were engaged in a
combination in opposition to the interests of union
members. The Joint Committee provided by the collective-
bargaining contract subsequently upheld the discharge of
George, upon a grievance filed by the Union protesting the
discharge . The Respondent's ground for the discharge was
"disloyalty."
The Issues
The issues are: (1) whether the Board should accept as
dispositive of the case the determination of the Joint
Committee, which upheld the discharge of George; (2)
whether George 's conduct in connection with issuance of
the pamphlet was protected concerted activity under the
Act, and his discharge therefore an unfair labor practice as
a matter of law; and (3) whether in any event his discharge
was on pretextual grounds-that is , whether the Respon-
dent's actual motivation was George's union and concerted
activities, and the publication merely pretext.
For reasons stated later I do not find the action of the
Joint Committee to be dispositive of the case.
Other issues aside, the first problem is whether, in their
context, George's statements in the pamphlet were suffi-
ciently privileged to protect him from discharge for
uttering them. Central to resolution of that issue is the
question of George 's good faith in making his accusations
and the objective justification for them. This requires a
view of the total circumstances. The second problem is
whether the publication was a pretext for the discharge.
A. The Facts 2
George's most recent period of employment with the
Respondent commenced on August 11, 1966, and until his
discharge on September 24, 1971, he was employed at the
Respondent's Ardmore, Maryland terminal as a driver. In
the Company's view, George was "a good employee," in
fact, "a far better than average" employee.
George became actively interested in the internal affairs
of the Union about mid-1969 when he observed what
appeared to him to be "a great deal of concern about the
lack of response from the officers toward the desires of the
membership ." In summary, this stemmed from dissatisfac-
tion among certain members with an increase in union
dues, payments to shop stewards, the establishment of a
i Mills is married to the stepdaughter of Charles Bell, who was president
of the Union for some 17 years prior to DeBrouse . DeBrouse is the nephew
of Bell.
2 Unless otherwise indicated , findings herein are based on uncontradict-
ed and credited testimony or other evidence. Where material matter was
con- •'rrr^d the facts are noted and the contradictions resolved . Some of
211
new union headquarters, and disposition of the old union
hall. After a speech by George critical of the union
leadership, at a union meeting in early 1970, George was
approached by several like-minded union members. As a
consequence, a committee was formed which ultimately
became known as the "Committee for Reform of Local
639" herein Committee or Reform Committee. The
Committee was initially composed of Leon Britt, an
assistant shop steward in the Respondent's operation at
National Aeronautics and Space Administration, James
Dyson, a shop steward at the Henry B. Gilpin Company, a
local drug wholesaler, Joe Daniels, an assistant shop
steward at United Parcel Service, and George. Later Saul
Macklin, shop steward at Smith's Transfer, became active
in the Committee. Initially Britt was the titular head of the
Committee and its prospective candidate for the presiden-
cy of the Union. In early 1971, Britt ceased to be employed
in the industry and terminated his activity in the program.
George thereupon assumed leadership of the Committee.
Shortly after its formal organization a post office box
was rented in the name of the Committee. Britt, Dyson,
and George contributed funds for pamphleteering and
other expenses, and the Committee began to seek candi-
dates for a slate of officers in a forthcoming union election
scheduled for January 1972.
The first formal meeting of the Committee was held in
September or early October 1970. Beginning in October
1970 and extending at least through September 1971, the
Committee issued a series of pamphlets designed to interest
union membership in its reform program. These pamphlets
were distributed among union members at the various
employer locations in the area where the Union was the
bargaining representative, at union meetings, and outside
the union hall. Vice President Mills of the Respondent was
aware of the activity of the Committee and of George's
part in it, and at his request received copies of the
Committee's literature as it was issued.
The Reform Committee ran a slate of candidates for
union office in an election on January 23, 1972. Although
by that time he had been discharged by the Respondent,
George was the reform candidate for president. Only one
member of the reform slate, a'trustee, was elected.3
The activities of the Reform Committee, and particularly
of George, soon aroused resentment among some union
members. At a stormy union meeting in October 1970 the
action of the dissidents in questioning the disbursement of
some $400,000 in union funds almost resulted in an assault
on George by two union members. On the following day a
business agent of the Union told George that he (George)
had been "set up" the previous night and that the two
union members had been "supposed to work you over," an
assertion later confirmed by one of the two members.
There is no evidence connecting these occurrences with the
Respondent or the union leadership.
the findings are based on hearsay statements considered, not as proof of the
basic facts asserted in the statements , but for their bearing on the
motivation of the actors
9 Union President DeBrouse, the incumbent , received around 800 votes,
George approximately 570
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The warning notice concerning the January
1971 accident
On January 19, 1971, George had an accident in which
he was not at fault. Several weeks later he received a
warning notice entitled "Complaint and Disciplinary
report" in which he was advised that the accident was
under investigation. The form contained the statement that
this was a "first warning." George immediately wrote to
the Respondent's terminal manager , and to the business
representative of the Teamsters, Furman Jenkins, asking
for an explanation for the delay in investigation of the
accident, noting that he had reported the matter on the
same day that it occurred. When several weeks later he had
received no response to his communication George wrote
to the Joint Council of the Eastern Conference of
Teamsters asking for an investigation of the issuance of the
warning notice. In his letter to the Joint Council George
stated that because of the delay he felt he had been denied
the protection given him by the collective-bargaining
agreement. On March 1, 1971, however, George was
advised by letter from Respondent's Vice President Mills
that the accident had been judged nonchargeable. The
letter requested him to "keep up the good driving record
you have established with this company."
The evidence indicates, and I find, that the issuance of
notices of this character involving accidents is routine and
automatic.
2. The $1.80 grievance
The collective-bargaining contract between the Respon-
dent and the Union provided that on runs beyond a radius
of 40 miles from Washington, D.C., drivers shall be paid
$ 1.80 per day over and above their customary pay.
Though this provision first appeared in a collective-
bargaining agreement sometime in the 1960's such pay-
ments had never been made by the Respondent .4 Among
the Respondent 's runs customarily extending beyond the
40-mile radius were trips to Southern Maryland and to
certain locations in Baltimore . Various informal requests
directed to the Respondent and to the Union for
application of the provision were unsuccessful.5
Consequently , on February 16, 1971, George , on behalf
of himself and several other employees of Respondent,
filed a grievance for payment of the additional $ 1.80 for
runs beyond the 40-mile radius. Respondent's Vice
President Mills stated , in response , that the Respondent
would pay the $ 1.80 for runs to Southern Maryland
beyond the 40-mile radius , but not to Baltimore. The
reason asserted by Mills for the refusal to pay on runs to
4 The exact year is not clear. At one point in his testimony, Vice
President Mills indicated that provision was carried over from a Baltimore
contract when it was merged with a Washington contract in 1961. At
another point his testimony seems to suggest that it had its origin in 1968
when the Respondent acquired operating rights to haul to Baltimore by
purchase of Standard Transfer , an intercity hauler.
S Thus George testified that in 1970 the steward at the Ardmore
terminal , Duncan, brought the matter to the attention of the Respondent in
1970 without result ; that thereafter appeals to the Union 's business agent
servicing the terminal were unavailing; and finally that a conversation with
Union President DeBrouse proved equally fruitless.
On the other hand , Respondent 's Vice President Mills, conceding that the
grievance had merit as to Southern Maryland runs , testified that he could
Baltimore , was that during the negotiation of the provision
it had been agreed that it would not be applicable to
Baltimore runs made by the Respondent . No such
exclusion appears in the contract . This contention occa-
sioned a dispute between George and Mills , George
contending that Mills' position was in violation of the
terms of the contract, Mills taking the contrary position.
In early April 1971, the grievance not having been
disposed of, George wrote to Business Agent Furman
Jenkins asking for information concerning the matter and
requesting action in the near future . Subsequently, the
matter was placed on the agenda for disposition by the
Joint Committee under the contract . About May 14, 1971,
the Joint Committee handed down a decision holding, in
sum, that the $1.80 applied only to runs to Southern
Maryland, and not to Baltimore . The basis for the
Baltimore exclusion was stated by the Committee as being
"past practice." In addition, the Joint Committee made the
reimbursement retroactive only to January 1, 1971, though
the requirement was first established in the 1960s, and the
current contract pursuant to which the grievance was filed
was effective April 1, 1970.6 Dissatisfied with the decision,
as not in accordance with the contract, George attempted
to appeal it to the International Brotherhood of Teamsters,
which advised him that the decision of the Joint Commit-
tee was final and binding.
Contemporaneously with the filing of the $ 1.80 grievance
George also filed a grievance signed by himself and four
other employees alleging violation of article 61 of the
collective-bargaining agreement in a failure of the Respon-
dent to provide protective apparel in foul weather, and in
addition discriminatory assignments to yard work. The
matter of foul weather gear was apparently settled to the
satisfaction of the grievants . With respect to the alleged
discriminatory assignments, George was later advised by
Vice President Mills that a review of the dispatch sheets for
the past 3 months did not disclose any evidence of
discriminatory assignments to yard work. George did not
pursue the matter further.?
3. The B.S.C. cards
During February 1971, the Respondent secured a
contract involving the delivery of B.S.C. cards to various
locations on a regular basis .8 George was taken off his
regular run and assigned to this job on a number of
occasions. George considered the assignment to be
inconsistent with his seniority prerogatives, and deemed
the job itself undesirable because of the demands associat-
ed with picking up and delivering the cards. The Respon-
dent's explanation for this assignment, which I accept, in
not understand why it had not previously been pressed by the Union.
While Mills denied that he personally discussed the matter with Duncan,
it seems clear from the testimony , and I find , that the issue had been called
to the attention of the Respondent and the Union prior to 1971 without
result, whether to Mills' knowledge or not.
6 There is no explanation for the retroactivity date. The point was not
argued by the parties , and Mills expressed himself as suprised by it.
7 Mills' testimony , in sum, is that though the review revealed several
instances of a junior employee who, because of early arrival at the terminal,
was put to work 15 or 20 minutes before George, be found "no evidence of
discriminatory assignments ." or of greater earnings by thejunior employee
8 Business Supply Corporation cards , presumably for a computer or
information retrieval system , similar to I.B.M. 11 ,
JACOBS TRANSFER, INC. 213
the testimony of Vice President Mills, is that the Respon-
dent was anxious to keep the contract, that it had had a
succession of cQmplaints from customers relating to the
performance of its drivers in connection with the card
deliveries, and that George was assigned to the runs
because he was considered to be a responsible driver.
George's testimony indicates that during this period of
time he also felt that he was being assigned vehicles with
mechanical defects, a conclusion I deem genuine, but on
the evidence unfounded.
4. The March 1, 1971, offer of a supervisory
position
On the afternoon of March 1, 1971, near the end of the
workday, George was asked by Dispatcher Baron if he
wished to work overtime that evening, and George replied
that he did not. Nevertheless, at the end of the day,
Terminal Manager Peters told George that he was required
to work overtime. When George stated that he would
rather not, because he was not feeling well, Peters said that
if George punched out he would be considered as
voluntarily resigning . George thereupon attempted to get
in touch with Teamsters Local 639 about the matter by
phone, but as he was doing so, other employees advised
him not to "blow" his job over the incident, saying "you
know they are trying to get you." George thereupon
performed the overtime work, which consisted of going to
another location and securing a truck which he brought
back to the terminal. When George returned Peters told
George that he (Peters) considered that George had
resigned his job since he had not performed the work.
When George informed Peters that he in fact had got the
truck, Peters told George that Vice President Mills wished
to speak to him. George thereupon waited for Mills, who
was not then at the terminal.
When Mills arrived, he spoke first to Terminal Manager
Peters and Dispatcher Baron and then called George to his
office. Though Mills knew that George in fact had
performed the assignment , he told George that he
understood that George had voluntarily resigned and
walked off the job, which George denied. Mills then said
"let's forget that," and asked George what his problem
was. George said that he felt that the Respondent was not
abiding by the contract, a statement which Mills said was
wrong, since Mills had helped to write the contract. There
ensued a long conversation in which Mills attempted to
explain to George the Respondent's problem in running
the terminal, including a disposition of the grievances
9 The letter said in substantial part (Typographical errors have been
corrected):
This is to further advise you that if I do not receive a favorable reply,
from the International or the Eastern Conference , I will have no choice
but to seek relief out of the change [chain?I of command of the
Teamsters.
I find this very hard to do, inasmuch as I would not like to give anti-
labor people any more ammo than they have already However, I feel
very strong about my rights , and in this case I don 't have any, under
our frame work.
More members of this local than I have been affected , by this, and we
feel that we must seek relief from someone. We are hoping that the
union will continue to support us in our efforts We only desire the
moral support of our leaders. We feel sure, since you as the President
represent this local that you will lead the fight to see that a company
which George had submitted. The two men then apparent-
ly engaged in an argument as to the Respondent's
obligations under certain sections of the contract.
After a time Mills asked George whether he had ever
considered working for management, to which George
responded in the negative. After some further discussion,
Mills offered George a job as dispatcher or supervisor on
the night shift, a position which would have entailed the
discontinuance of George's political activities within the
Union, and would have removed him from the protection
of the collective-bargaining contract. Mills indicated that
he could secure George a leave of absence from the Union
for a limited period of time, during which George could
occupy the job of night dispatcher on a temporary basis for
a period of about 30 days. Mills assured George that
adjustment would be made to ensure that George would
not suffer any loss of pay or benefits resulting from the
transfer. He urged George to talk the matter over with his
wife and to consider it.
George did consider the matter for several days, and did
try the position for at least I night, but ultimately decided
not to accept it. The grounds given in his testimony for the
declination were, partly because he was hesitant to
abandon what he considered to be the protection of the
contract, partly for reasons of personal inconvenience, and
to a certain extent that he was uncertain as to the
Respondent's motive in offering him the job. However, on
declining he wrote the Respondent thanking it for the offer
and stating only that he was unable to accept the position
because he was unable to work out domestic arrangements.
Mills' testimony is that he offered George the job because
of his competent record, and because at the time Mills was
being pressed by Federal authorities on the matter of
minority employment in management positions.
On May 18, 1971, the same day on which George
appealed to the Teamsters International concerning the
decision of the Joint Committee on the $1.80 grievance,
George also sent a letter to President DeBrouse of Local
639 enclosing a copy of his appeal. In this letter George
threatened to seek relief elsewhere-the courts or the
NLRB-IF HE DID not receive it from within the Union.9
Following receipt of the decision of the Joint Committee
on the $1.80 grievance Terminal Manager Peters or
Dispatcher Baron told George, according to George's
uncontradicted testimony, that Executive Vice President
Mills had said that George should no longer be assigned to
such runs . However, George, appears to have continued to
receive some such assignments. 10
George and another employee thereupon filed a griev-
cannot hide behind it duty to it's employees , by using this past practice
device . We will not only take our case to the courts and the Labor
relations board if necessary , but we will take it to the members as one
way the company get s around it's contract duties. Again we feel sure
that you will agree, no company is deserving of special treatment.
i° George's testimony, in part, is that ". I was informed by Mr. Dick
Baron or Joe Peters that I would not have to worry about making this $1.80
inasmuch as they had been informed by Mr. Mills that I was not to be
assigned to this run . This grievance part of it was submitted in hopes of
overcoming that decision of Mr. Mills." Mills denied giving any such
instructions . Neither Peters nor Baron testified . George's testimony is that
from May through September 1971 he made five to six Southern Maryland
runs beyond the 40-mile zone . I do not find that Mills gave the instructions
to Peters or Baron.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance dated May 18, 1971, alleging that junior men were
assigned to runs beyond the 40-mile radius , and that this
denied the grievants the opportunity for the $1.80 and
overtime. This assertion was bottomed on the contention
that the contract permitted senior drivers to bid for runs.
This grievance also raised the question of starting times.ii
5. Starting times
The collective-bargaining contract (art. 43, sec. 3), in
substance , requires the Respondent to establish and post
regular starting times in sufficient number to accomodate
80-percent of the employees. It further provides that
drivers may then bid for such starting times in seniority
order . It also provides that starting schedules shall be
reposted for rebid at 6-month intervals . However, the
Respondent is authorized by the contract to cancel starting
times under certain circumstances.
Apparently due to disinterest on the part of the drivers,
this starting time and bid procedure had never been
followed by the Respondent at the Ardmore terminal. The
May 18 grievance raised this question, and in late May or
early June Mills , Jenkins , and George met to discuss it. No
agreement was reached.
At this meeting Mills accused George of filing frivolous
grievances, and told George that he was "not going to run
my Company." Mills further said, according to George,
that if he continued to file such grievances Mills would
cease handling certain freight, and further that he would
cut the seniority list in such fashion as to exclude George
from employment.
Capsulized , Mills ' position as to the starting time and bid
grievance apparently was that such provisions of the
contract (1) applied only to "house accounts," of which
there were none at the Ardmore terminal; (2) were
applicable to over-the-road operations, and not to local
cartage operations such as the Respondent 's; and (3) that
his experience as a union representative was that employ-
ees did not want starting times . Local cartage of over-the-
road freight , Mills testified, is a low profit margin
operation, which he had expanded over opposition within
the Company. His testimony is that what he said at the
meeting respecting reduction of the seniority list was that it
looked as if opposition within the Company would compel
elimination of the cartage work, with consequent substan-
tial reduction in the seniority list. This reduction would
probably not, Mills testified, reach George, but it would
cut his work opportunities. Union Business Agent Jenkins
said that he did not wish to see any men "on the street"
and indicated that he would refer the matter to President
DeBrouse and the Union 's Executive Board.
It is not clear from Mills' testimony that the inauguration
of starting times would have adversely affected the
11 Sustaining of the grievance would have permitted George to bid for a
Baltimore night run , thus enabling hun to carry a full - time day college
schedule. At that time the driver on the night run was Mills' son , who also
had a full-time day driving job for the Respondent at its NASA operation.
Mills' son was being paid straight time , though the contract requires
premium pay over 8/40 hours. When George inquired about this job later in
the summer, Mills told him that he saw no reason for making an operating
change at that time.
Apparently no grievance was filed respecting the matter, though George
testified that in January or February 1971 he asked the Union to take the
Respondent 's operations . Indeed , some officials of the
Respondent felt that it would be beneficial to the
Respondent.
On June 8 , 1971, the union executive board met. George
was present . Jenkins explained George's grievance respect-
ing starting times . DeBrouse stated that he had sought on a
number of occasions to induce Jacobs' employees to agree
to starting times , but that they would not accept it. Union
Trustee Grafton Lewis who had formerly been union
steward at the Ardmore terminal stated that he was not
aware of any such effort. The upshot of the matter was that
under date of June 9, 1971, Business Agent Jenkins wrote
to Mills and requested that he post bid starting times in
accordance with the agreement . Mills' response was to call
a meeting of the Ardmore employees on June 19 at which
he explained the starting time proposal in terms unfavora-
ble to the proposition. Mills then withdrew with the
suggestion that the employees might wish to vote on the
question. George spoke in favor of the proposition. A vote
was taken and the men voted against starting times, with
only George being in favor of it. The union business
agents, Jenkins and Lewis, though present, stated that they
were taking no position on the matter.
Two days later on June 21, 1971, George wrote to the
International Director of the Eastern Conference of
Teamsters complaining again about violations of the
contract by the Respondent and accusing the Local Union
officials of a negligent attitude toward enforcement of the
contract.
6. Lewis' luncheon with Mills in mid-1971
About mid-June 1971, Grafton Lewis, Trustee and an
organizer for the Union, lunched with the Respondent's
Executive Vice President Mills, at the latter's invitation, to
discuss problems of the Respondent, as they had done at
times in the past. During the conversation George's
activities were discussed and somehow, in a fashion not
altogether clear from the testimony, reference was made to
the possibility of George's being "punched in the mouth."
Lewis' testimony in this respect is that the reference was
made by Mills and that he (Lewis), thought that Mills
might be suggesting that Lewis should have his two sons,
who were employed at the Ardmore terminal, assault
George. Mills' testimony is that, if the matter came up, it
consisted merely of a reference to the fact that some of the
employees at Ardmore were angered at George's activity
and might provoke a fight with him. However, it seems
clear from Mills' testimony that he does not deny that he
might have said, "in a more or less joking manner," that if
there was a fight, he hoped it would be with Melvin, who
was husky and "could take care of himself." 12
In any event Lewis was so disturbed by the reference,
matter up Mills' explanation for the use of his son was that the Respondent
was unable to find any other driver willing to take the job, even though the
Respondent's staff was canvassed several times . George's testimony
establishes that he was offered the run in the spring of 1971 but declined it,
and that the job was posted at that time . Presumably George's concern in
early 1971, when he asked the Union to take the matter up, related only to
the apparent violation of the contract , since George at that time had no
interest in the Job.
12 Mills testimony in this respect is as follows:
A. I think that I might have said, "If there is going to be a fight, I
JACOBS TRANSFER, INC.
according to his testimony, that he "froze" further
discussion and changed the subject . His upset was such
that he discussed the matter with his wife that evening. On
the following morning, Lewis appeared early at the
Ardmore terminal and told Union Steward John Welles to
tell George to "be careful and watch himself ." He further
said that he would see George later in the day. He also told
Welles to watch his sons and to keep them out of trouble.
On the following day Lewis saw George and warned him.
There is some conflict in the testimony of George and
Lewis as to precisely what Lewis told George in warning
him. I find that Lewis said , in substance , that Mills was
seeking a pretext to discharge George, perhaps by
involving him in a fight , and that George should watch
himself and be careful.13
According to Lewis' testimony the reason he warned
George was because he had heard rumors about George
being "framed ," that he (Lewis) wanted to protect George,
"because in this type of a situation the Company is going
to do something to hurt an employee." 14
7. The June warning notices
On June 18, 1971, George was required to appear in
court as a result of an accident in a company vehicle earlier
in the month . On June 7, 1971, George advised dispatcher
Baron of this requirement and was told to remind Baron
several days prior to the 18th so that the matter could be
entered in the logsheet . Overtime work on June 4 resulted
in George missing an appointment with a dental surgeon
on that day and he received permission from dispatcher
Baron to be off Thursday, June 17 for another appoint-
ment . On Wednesday, June 16 , George reminded Baron of
his tentative appointment for Thursday and his court
appearance on Friday. George kept his dental appointment
hope it's with Melvin."
Q. Who is Melvin?
A. Mr. Lewis' son-because Melvin is a pretty husky fellow to
take care of himself.
Q. Was this the extent of the discussion between yourself and Mr
Lewis about Mr. George?
A. Yes. There wasn ' t much discussion about it. At this point when
it was mentioned , we was getting ready to leave , anyway , as I recall.
We had already asked for the check and was getting ready to go.
Q. What did you mean by this comment about Melvin? Were you
serious about hoping-
A. No, I think it was more or less made jokingly , you know. He
said, "Somebody is going to punch him in the mouth."
And I said , "Well, if there is going to be a fight with anybody, I
hope it 's Melvin," or something like that-because I've known Melvin.
He has been with the Company 10 or 12 years . And he is a husky guy.
He is the kind of guy that can pretty well take care of himself.
. . . . .
A. I believe I asked him, (Lewis ] "What's the matter with that
guy? [George 1 What's the problem?"
Q. Did he give you a response?
A. I don't remember exactly what he said , because I pointed out
that he had a starting time.
Q. Anything else said relative to George?
A. He indicated at that point that some of the people were getting
pretty irritated with George and that there was two or three of them
going to bust him in the nose or hit him in the face , or something to
that effect . I'm not sure exactly of the exact words that he used.
Q. And did you make a reply?
A. Yes. I said-I believe that I said , "If he approaches anybody or
it takes place , I hope it 's Melvin , because Melvin knows how to take
215
on Thursday. On Friday before appearing in court he
stopped at the terminal to pick up his paycheck and was
handed a warning notice for an unexcused absence on
Thursday, June 17. On the following Tuesday, June 22,
George was again in court . When he reported for work on
Wednesday, June 23, he was directed to report to Mills
who gave him a warning notice dated June 22, 1971, in
Mills handwriting , for his absence in court on Friday, June
18.
On June 30, 1971, George sent a written appeal to the
warning notices to the Respondent . He also sent a copy to
Business Agent Furman Jenkins and requested Jenkins to
investigate their issuance . Though the contract requires
that answers to an appeal from a warning notice be filed
within 30 days, the Respondent did not respond until
August 30, the answer in effect denying George 's version of
the facts . George thereupon filed a grievance based on the
Respondent's failure to respond within the time limits
provided by the contract. The Joint Committee ultimately
denied that grievance on procedural grounds : A committee
practice of refusing to hear appeals from warning notices
-of which , according to Mills, there may be as many as
40 or more per day . However if the subject of the notice is
a factor in subsequent disciplinary action, the Committee
then reviews the merits of the notice.
8. The Gilpin negotiations
Henry B. Gilpin Company, a wholesale druggist in the
Washington area, is a Local 639 shop. James Dyson, one of
the Reform Committee , is the steward at Gilpin's. Dyson
was a candidate for secretary-treasurer on the 3eorge
ticket in the 1972 union election . Some of the information
which George considered and acted upon was based on
reports given him by Dyson concerning assertedly improp-
care of himself."
13 George's testimony is that Lewis said that George should watch his P's
and Q's, that Mills was seeking to involve Lewis in some kind of frameup to
discharge George, that George need not worry about it because Lewis
would not go along with it. George further testified that he asked Lewis
what he should look out for and that Lewis replied a fight or something like
that-anything to get George fired.
Lewis originally corroborated George 's testimony to the effect that Lewis
told George that Mills was attempting to frame him . He later modified his
testimony to deny that he used the word "frame," although he had heard
rumors about George being framed . And though he "probably" told George
that Mills had talked to him (Lewis), he told George no more than that he
should "be careful , to watch himself."
Lewis was an extremely reluctant witness . The record suggests that Lewis
has special qualities which make him valuable to the union and to
employers as an intermediary in u.iusual situations where conventional
procedures would be less effective . It is apparent from his testimony that
Lewis regarded himself as in a difficult position, perhaps out of fear of
jeopardizing his usefulness in the future . He refused to appear voluntarily as
a witness when requested by George , and when pressed on subsequent
occasions told George that he had gone as far as he could to protect George
and would do no more.
It seems apparent , and I find, that Lewis must have told George more
than that he should be careful ; George could not have known that Mills was
involved unless Lewis told him
14 Lewis further testified:
And a lot of times I will go back and tell the employee to be careful, to
watch yourself . You are going to lose your job, or such and such a
thing . You will hear a dispatcher say, "I will get even with that fellow. I
will keep after him 'til he quits ." Or one way or the other. And I was
afraid when I had this meeting with Mr . Mills that it would come to
this if I kept on talking with him on that , so I just stopped it right there
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er activities of Local 639 officers in representing the
employees at Gilpin. Thus Dyson reported to George, and
testified, that in 1968, Union President DeBrouse negotiat-
ed a contract with Gilpin which was unsatisfactory to the
employees, and over their protest; that thereafter employ-
ees sought without avail to secure a written copy of the
contract and were unable to get one until they threatened
to bring legal proceedings.
In 1971 the Gilpin-Union contract was renegotiated. The
negotiations were conducted on behalf of Gilpin by the
Respondent's Vice President Mills.15 Dyson reported to
George that during the negotiations Mills had character-
ized George as "a fool" and "a trouble maker."16 Dyson
also advised George during the negotiations that Mills and
DeBrouse were "collaborating"-specifically that Mills
appeared to be giving orders to DeBrouse, that Mills
praised DeBrouse as having done a "wonderful" job for
the Union, and that Mills indicated that the reform group
were "a bunch of trouble makers" interfering with the
Union's activities. Dyson further informed George that
Mills appeared to be well informed on the activities of the
dissident movement and on intraunion affairs. Dyson
quoted Mills as saying that he could "get anything he
wanted from the Union.' Dyson frequently told George
that he could not understand the relationship between
Mills and DeBrouse.
With respect to working conditions at Gilpin, Dyson
informed George that employees there had a guaranteed
starting time and a $1.80 extra payment for all trips beyond
40 miles, without exception. Finally, Dyson told George
that members of the reform group were being terminated
in their employment and asked George to make an
investigation to determine whether there was any relation-
ship between the discharges and their dissident activity
because, Dyson said, union agents would not help. Dyson's
testimony is that he was the only one of the four original
members of the reform committee who had not been
forced out of hisjob.17
9. The September 22 newsletter and George's
discharge
By September 1971 the Reform Committee had been
sufficiently established as a dissident intraunion group as
to receive regular communications from union members in
the area who were dissatisfied with the administration of
the Local. The Committee therefore decided that a
newsletter incorporating the gist of many of these com-
plaints and grievances was in order. After consultation
with other members of the Committee, George thereupon
drafted a document summarizing these views, which was
reviewed by Dyson, Macklin, and other members of the
Committee. George then issued the document. The
document bore only George's name at the bottom, in
addition to identification as a committee publication.
When Dyson saw the pamphlet after its issuance he
15 One of the Respondent's affiliates provided negotiating services for
employers It was in this capacity that Mills represented Gilpin
16 Mills denied making these statements . His version is that he said that
the employees had made a fool of George Since what is important is what
Dyson reported to George it is unnecessary to decide what Mills actually
said.
telephoned George and remonstrated with him for having
put his own name on it rather than Dyson's. Dyson
testified that:
He should have let me put my name on it. It was very
foolish to put his name on it because it would be
trouble... .
I didn't want him to step this far out of line and do this
because I knew he probably would get himself into
trouble. And I felt that I could stand more trouble than
he could. Because this man has a family. I didn't want
him to stick his neck out himself. If he was going to be
in trouble I was as much to blame as he was going to
be.
The newsletter contained the following statements, in part,
and these are what precipitated the discharge of George:
LOCAL UNION LEADER JOINS WITH FORMER UNION
OFFICIAL IN AN ALL OUT EFFORT TO DENY UNION
MEMBERS THEIR RIGHTS
We members of Local 639, are being treated to a
spectacle of what we can expect in the next three (3)
years if Frank DeBrouse and his agents are reelected
this December. In an effort to dis-courage certain
members of this local from receiving their legitimate
rights and the right to free speech concerning the
conduct of our local, Mr. DeBrouse may have enlisted
the aid of a local employer and former business agent.
They have embarked on a campaign to suppress all
activities and dissenting views to the way Frank
DeBrouse is running the union. This oppressive action
is being taken in an effort to prolong Mr. DeBrouse's
regime . Mr. DeBrouse and several of his agents and
others have engaged in some very unscrupulous deeds
[sic] to either discredit this writer's activities or frighten
him. This has ranged from the feign offer of a job, (out
of the local) to the outright fabrication of disciplinary
charges and threats of physical harm if I don't keep my
mouth shut . Brothers ! this is a democracy and not a
dictatorship and I will not be silenced by these small
minded individuals. We have and will continue to
question the true relationship of our union's president
and certain local employers of this city. It seems to us
that there is more to some of these relationships than
they would have the members of local 639 believe. I
feel sure that most of us know of the flagrant dis-regard
for our contract by some employers and this attitude is
manifested almost daily in some form of contract
violation. We bring this to your attention for one
purpose, and that is to remind you, that such action can
take place with any company. Those of us working
under the "National Freight Agreement," need only
worry about having it enforced, but think about our
brothers that have their contract negotiated and
enforced by Frank and his crew.
Do we really want the kind of leadership that will form
17 No finding is made that the individuals referred to by Dyson were
illegitimately terminated because of their connection with the reform group.
Dyson 's views however , communicated to George , are of relevant bearing
on the issue of George 's good faith in making his charges , and the existence
of an objective base for them.
JACOBS TRANSFER, INC.
an alliance with an employer to keep the very members
he is serving from obtaining their rights?.. .
Respondent's Vice President Mills was first advised of
the existence of the newsletter about September 22, 1971,
by a phone call from another Company. After reading the
document and giving the matter some thought, Mills called
George to his office at the end of the day on September 24,
1971, and asked George why he had taken Mills into
George's controversy with the Union. George replied that
he didn't see Mills' name mentioned. However, he
admitted that it was Mills that he was referring to in the
document. Mills told George that he could sue him and
stated that he was discharging him. George asked for a
letter of discharge, which is provided for in the contract,
and was told that he would receive it along with his pay on
the following Monday, September 27, 1971. On Monday
the Respondent gave George and his attorney a letter
stating that George was discharged for disloyalty. The
collective-bargaining contract requires that an employee be
given a written warning notice before being discharged
except for certain grounds. Disloyalty is not one of the
excepted grounds.
In the meantime, and prior to his discharge, on
September 23, 1971, George had filed unfair labor practice
charges with the Board alleging violations of Section
8(a)(1), (3), and (5) of the Act by the Respondent based on
the allegation that the Respondent had refused to abide by
the Joint Committee's decision on the $1.80 per day
grievance. The basis for this charge was apparently that the
Respondent had not up to that time paid the amount
determined by the Joint Committee to be due-because,
according to Mills, computation required a detailed search
of the records. Mills was aware of this charge at the time he
discharged George. On September 28, 1971, George filed
an amended charge with the Board alleging that the
Respondent had discharged him because of his union and
concerted activities.
On the day he filed the amended charge with the
Regional Office of the Board, George was advised by a
representative of that office that, because of a recent
decision by the Board, n'o action would be taken by the
Regional Office on the charge until the grievance proce-
dures provided by the collective-bargaining contract had
been utilized.18 After consulting with his attorney, John
Long, George filed a grievance over his discharge, which
the Union forwarded to the Respondent. The Union
prosecuted the grievance on George's behalf and the
matter was ultimately taken before the Joint Committee.
The Union's basic position was that disloyalty was not one
of the grounds in the collective-bargaining agreement
authorizing immediate discharge.
In a consultation between George, Attorney Long, and
DeBrouse prior to the opening of the hearing before the
Joint Committee on November 4, 1971, Long requested
DeBrouse to inform the Joint Committee that unfair labor
practice charges had been filed with the NLRB regarding
the discharge and ask that the Committee refer the matter
to a neutral arbitrator . DeBrouse declined , but suggested
18 The decision referred to is the case of Collyer Insulated Wire, Gulf &
Western Systems Co., 192 NLRB No. 150, in which a ma jority of the Board
declined to pass upon an unfair labor practice charge alleging violations of
217
that George make his own statement at the hearing to that
effect . Though parties are not normally represented by
attorneys before the Joint Committee , the Respondent and
the Union agreed that they would not oppose if George
requested the Committee to permit him to be represented
by counsel.
The Joint Committee which heard the case was a four
member body made up of two employer representatives
and two union representatives , none connected with the
Respondent or Local 639. At the opening of the hearing
DeBrouse told the panel that George would like to be
represented by counsel . The Committee ruled that George's
attorney , Long, could remain to advise his client, but
could not directly address the tribunal , and that any
communications from him would have to be made by
George either personally or through DeBrouse.
Mills presented the case for the Respondent and
DeBrouse that for the Union , after which George made a
statement . George asked that because the matter involved
allegations that the Union and the Respondent were in a
conspiracy , that the Committee refer the matter to a
neutral arbitrator . He further advised the tribunal that an
unfair labor practice charge involving his discharge was
pending before the Board , to which the Committee
responded that it had no interest in such charges . George
was asked by the Committee whether he wrote the
newsletter and whether the reference therein was to Mills,
to which George replied in the affirmative . Asked whether
he had anything further to add, George replied that he did
not. The Committee then asked George whether he had
been given a full and fair hearing and if he had been
adequately represented . George responded affirmatively to
both questions . The hearing then closed.
Later in the day the Joint Committee issued its decision,
the text of which is as follows:
The panel meeting in Executive Session , a motion was
made, seconded and passed that based on the facts
presented in this case , the claim of the union is denied
and the discharge is sustained.
Thereafter the complaint in the instant case was issued
by the Regional Office of the Board on January 17, 1972.
B. Conclusions
1. In general
As has been indicated heretofore there are three basic
issues : (1) whether the conduct of George in publishing the
September 22 newsletter was a protected concerted
activity; (2) whether George's union and grievance
activities were reasons for his discharge; and (3 ) whether,
in any event, the decision of the Joint Committee should be
regarded as final disposition of the matter.
Concededly George's activity was concerted within the
meaning of the National Labor Relations Act. Was it then
protected activity?
It seems apparent from a review of the facts in the
possession of George, that the assertions made by George
in the newsletter were made in the good-faith belief that
Sec. 8(a)(5) of the Act in the absence of exhaustion of arbitration
procedures provided by the collective -bargaining contract there involved.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union 's administration was inadequately representing
the employees , that the contract was being improperly
administered , and that the Respondent and the union
administration were collaborating against the interests of
union members . There also appears to have been a prima
facie objective basis for such a conclusion . This is not to
say that the true facts established such a situation, but in
determining whether or not George's activities were
protected by the Act, a good-faith belief supported by
colorable facts is in my opinion all that is necessary to
establish such protection . A union member seeking to
exercise his right to criticize the union administration and
to suplant it does not speak at his peril. He is permitted
reasonable lattitude , even for error, though that error may
be hurtful to others , if his utterances are in good faith, on
colorable ground, and not deliberately or maliciously false.
Board and court decisions appear to support this proposi-
tion.
Thus, in the case of Ben Pekin Corp., 181 NLRB 1025,
the Board found unlawful the discharge of an employee
who upon being advised that he was not going to be given
an anticipated raise , asked whether "there had been a pay
off," suggesting thereby that union representatives had
been bribed by the employer. The Board held that the
remark , though imputing criminal conduct , was a legiti-
mate expression in connection with protected concerted
activity . The Board said that:
... the critical question is whether Chunnoff was
acting in good faith on behalf of himself and his fellow
employees for the rights he thought they all were
entitled to. In our opinion , the record supports the
conclusion that Churinoff was at all times acting in
good faith and that his conduct falls within the limits of
concerted activity as set forth in Section 7 of the Act.
To hold otherwise, because of a genuine mistake of fact
on the part of an employee , would severely curtail
employees ' rights to act on behalf of themselves and
their fellow employees . As Churinoff was engaged in a
protected activity on behalf of himself and his fellow
employees , and in view of the fact that the allegation of
a "payoff" was made in the context of this activity, the
remark was part of the protected activity unless, as the
Trial Examiner properly noted, it was so offensive,
defamatory or opprobrious as to remove it from the
protection of the Act. Like the Trial Examiner,
however, we agree that the remark alleging a payoff,
taken in the total context of the case herein , was not so
defamatory or opprobrious as to isolate the allegation
from the related protected activity.
In the case of Texaco, Inc. v . N.LR.B., 462 F.2d 812
(C.A. 3, 1972), the court upheld a Board ruling to the effect
that misstatements made in the course of union activity
forfeit the protection of the statute only when "deliberately
or maliciously false."
In that case Texaco refused to permit the distribution on
its premises of union literature which accused Texaco of a
policy of "non-recognition" of the Union and engaging in
an antiunion campaign by granting wage increases to
nonunion employees and refusing increases to union
employees . The literature further urged employees to
boycott Texaco products . Actually Texaco had lawfully
secured the decertification of the union at two facilities and
had thereafter granted wage increases to the employees, as
it could legally do. In addition Texaco had successfully
resisted union strikes . Over contention by Texaco that the
union's claims were false charges of antiunionism and
sought to procure "disloyalty" of employees by boycott,
the Board found Texaco's action in refusing to permit
distribution of the leaflet unlawful . In affirming the
Board's order, the circuit court said:
In these circumstances , the trial examiner found, and
the Board agreed , that the statement in question,
though not technically correct, was "not deliberately or
maliciously inaccurate ." Moreover, quoting the trial
examiner : "It is well settled that misstatements made in
the course of concerted activity which denounce an
employer for his conduct in labor relations . . . only
forfeit the statutory protection when it is evident that
the statements are deliberately false." 5 Accordingly, we
conclude that the Board was justified in holding that
the inaccuracy in the leaflet was not such as to excuse
the employer's refusal to permit distribution of this
union literature on its premises.
S Accord, Owens Corning Fiberglas Corp. v N.LR.B, 4th Cir.
1969, 407 F .2d 1357; Walls Mfg. Co v. N.LR.B., D.C. Cir. 1963, 321
F.2d 753, cert. denied 375 U.S. 923.
See also Bettcher Mfg. Corp., 76 NLRB 526; and Tracy
Towing Line, Inc., 166 NLRB 81; Gustin Bacon Mfg. Co., 173
NLRB 332; Socony Mobil Oil Co., 153 NLRB 1244.
The Labor Management Reporting and Disclosure Act
protects union members in the making of charges against
union officials regarding the handling of union funds even
if the charges are libelous . Thus in the case of Salz Handler
v. Caputo, 316 F.2d 445 (C.A. 2, 1963 ), cert . denied 375
U.S. 946, the court of appeals found lawful the action of a
financial secretary of a union in issuing a leaflet accusing
the president of the union of improper manipulation of
expense accounts and branding him as a "petty robber,"
asserting that the president deprived two widows of a
refund of over payment of union dues and diverted the
funds to himself and others.
The Board has held that the protections of the Labor-
Management Reporting and Disclosure Act are also to be
read , at least to the extent here involved , into the National
Labor Relations Act. Thus, in the case of Carpenters Local
Union No. 22, et al. (William Graziano d/b/a Graziano
Construction Co.), 195 NLRB No. 5, the Board found that a
union's action in fining a dissident union member who had
participated in a union election , for violation of a union
rule, was a violation of Section 8(b)(IXA) of the Act where
the rule violation was a pretext to penalize the member for
his intraunion political activity . The Board held that the
fact that the public policies involved protecting the
intraunion conduct are embodied in the Labor Manage-
ment Reporting and Disclosure Act, did not require a
different conclusion. The Board noted that the U.S.
Supreme Court said in the case of Scofield v. N.LR. B., 394
U.S. 423, 430, that Section 8(bXI)(A) of the Act:
Does not permit enforcement , by fine or expulsion, of a
rule which "invades or frustrates an overriding policy
of the labor laws...."
JACOBS TRANSFER, INC. 219
The Board went on to say:
... The policies which the Union's conduct here
seeks to frustrate are embodied in the Labor-Manage-
ment Reporting and Disclosure Act of 1959, rather
than specifically in the National Labor Relations Act.
This difference does not, however, impel a different
conclusion.
As the above-quoted language from the Supreme
Court's decision in Scofield implies, the Board is
charged with considering the full panoply of congres-
sional labor policies in determining the legality of a
union fine .5 Here the Union, in the guise of enforcing
internal discipline, has sought to deprive its members of
the right, as guaranteed by the Labor-Management
Reporting and Disclosure Act, to participate fully and
freely in the internal affairs of his own union. A fine for
that purpose not only in our opinion fails to reflect a
legitimate union interest but rather in fact impairs a
policy that Congress has imbedded in the labor laws.
For these reasons, we conclude that the Respondent
Union's conduct in fining Shanley because of his
intraunion activity violated Section 8(b)(1XA) of the
Act.
5 Teamsters Local 663, a/w International Brotherhood of Teamsters,
etc (Continental Oil Company), 193 NLRB No. 84. Cf. Southern
Steamship Company v. NL.R.B., 316 U.S. 31; compare Local 1976,
United Brotherhood of Carpenters, etc (Sand Door & Plywood Co J v.
N.L.R B, 357 U.S. 93 We are not unmindful of the fact that the
Department of Labor, and not this Agency, is directly charged with
the administration of the requirements of the Landrum-Gnffin Act.
We traditionally respect this differentiation. See, e .g., Desert Palace,
Inc., d/b/a Caesar's Palace, 194 NLRB No. 140, In. 5. In this area,
however, as we understand it, we have been specifically charged by
the Supreme Court with the duty of determining the overall
legitimacy of union interests , and must therefore take into account all
Federal policies and not limit ourselves to those embodied in our own
Act.
Manifestly, if this principle is applicable to rights protected
against union aggression under Section 8(b)(1)(A) of the
Act, it is equally applicable to employer action under
Section 8(a)(1). Since reprisal or discrimination by a union
against a union member because of his intraunion political
activity is an impairment of his rights as an employee under
the National Labor Relations Act-because public policy
expressed in the Labor Management Reporting and Disclo-
sure Act requires the preservatio of employee freedom to
engage in intraunion activity-etfectuation of that policy
would seem required regardless of whether impairment of
the freedom is threatened by a union or by an employer.
This is not to suggest that the Respondent's discharge of
George was motivated by desire to penalize his intraunion
activity. That activity, however, was inextricably bound
here with George's dealings with the Respondent: his
efforts to secure changes in employment conditions thru
the collective-bargaining contract; efforts required because
of what he deemed the laxity of the Union's administration
in dealing with the Respondent.
Since the essential question is whether the conduct for
19 The case of United Parcel Service, Inc., 195 NLRB No. 77, in which
the Board stated that it found it unnecessary to determine whether
intraunion campaign activity was protected activity (fn. 3), appears
distinguishable from the instant case . The essential issue in United Parcel
was the right of an employer to prohibit neatly uniformed parcel
deliverymen who were in contact with the public from wearing buttons
which discipline is imposed is a protected concerted
activity, the fact that a pretext may have been employed to
conceal the true purpose, as in Graziano, supra, is not of
relevance here, where it is conceded that the concerted
activity was the basis for the discharge.19
I therefore find that the assertions made by George in
the Newsletter of September 22, 1971, which were the
cause of his discharge were made in the good-faith belief
that they were true. The issuance of the newsletter
therefore constituted a concerted activity protected by
Section 7 of the Act, and his discharge was thus violative of
Section 8(axl) of the Act.
Whether the accusations are libelous or defamatory so as
to support a law suit by Mills against George, I find of no
relevance here. The question is not whether the facts will
support a defense by George to a suit for libel but whether
in their context the utterances were sufficiently privileged
to constitute a protected concerted activity. It may be that
the publication did, as Mills asserts, harm his standing in
the industry. That, however, is not a sufficient ground to
hold that George's statements exceeded the bounds of
privilege.
2. Prima facie ground
In addition I find that there was prima facie ground for
some of George's suspicions, even though the facts, as now
fully developed, may not find them all sustained.
The record reveals evidence of the Respondent's failure
to live up to the collective-bargaining contract in some
particulars and of the Union's failure to police compliance.
Thus, for years the Respondent failed to pay the $1.80
premium for runs beyond the 40-mile zone. It was only
when George filed a grievance that the matter was partially
rectified. Even when the result was not wholly in accord
with the language of the contract, the remedy inexplicably
limited as to retroactivity, and the arrearages due not paid
until after the unfair labor practice charges had been filed
5 months later. Mills' son was permitted to work double
shifts at standard time in apparent violation of the
contract.
In addition, on the evidence available to him, George
had reason to believe that his activities had marked him for
reprisal both within the union and within the company.
The resentment among certain union elements' involving
threats of violence against him, has been referred to
previously. When he was compelled to work overtime
against his wishes fellow employees advised him that a
pretext was being sought to frame him and that he should
not "blow" his job. Thereafter, though Mills knew that
George had performed the work demanded, he warned
George of his vulnerability to discharge for refusing to
carry out an assignment . In this circumstance George can
scarcely be blamed if he was skeptical over the good faith
of Mills in offering him a management job which would
have removed him from the protections of the union
some 2-1/2 in . in diameter supporting the candidacy of a union steward for
the office of business agent . The Board upheld the employer's prohibition of
such a display in the circumstances. In the light of the Graziano decision the
reservation of decision in United Parcel as to whether the wearing of
campaign buttons was a protected activity does not seem of substantial
significance to the issues presented in the instant case.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract, as well as making him ineligible for union office.
That Mills' offer may have been in good faith is beside the
point. From George's position I do not believe his
skepticism unreasonable.
After the $1.80 rate on Southern Maryland runs had
been established George complained that he was not being
assigned his fair share of such runs, and was advised by
supervisors Peters and Baron that Mills had ordered that
he not be assigned to them. The estimate of Mills which
those statements could be expected to produce in George is
evident. That Mills did not issue such instructions George
could not know. That George did receive some Southern
Maryland assignments is not necessarily inconsistent with
his claim that he did not receive his fair share.
In May Mills accused George of filing frivolous
grievances. In the same discussion, involving the starting
time grievance, Mills said without evident relation to the
merits of the grievance, that he would probably have to
eliminate cartage work, reducing the seniority list by half
and limiting George's work opportunities, if not eliminat-
ing them altogether.
In June, though George's undenied testimony is that he
advised both supervisors Baron and Peters well in advance
of his court appearance and his dental appointment, and
understood that his requests for absences were approved,
George was given warning notices for unexcused absences.
The Respondent's only explanation is Mills' testimony that
he was advised by the supervisors that George did not give
proper notice. Even if this is so, the action could only
reinforce George's conviction that he was an object of
reprisal by the Respondent for his activities.
In the same month George was advised by Gilpin
Steward Dyson that during the Gilpin negotiations Mills
praised Union President DeBrouse, stated that he (Mills)
could get anything he wanted from the Teamsters, referred
to George as a fool and to the dissident group as
troublemakers. Dyson further informed George that he
believed that Mills and DeBrouse were collaborating to the
disadvantage of the union members, and that there was a
"sweetheart" relationship between the Respondent, Gilpin,
and DeBrouse. While Mills denied the import of much of
that testimony, Dyson's reports to George were consistent
with George's conception of the Respondent's pattern of
action, its relationship to the union leadership, and Mills'
attitude toward him.
In July, union trustee Grafton Lewis had his luncheon
conversation with Mills about George which so disturbed
Lewis that he warned George about Mills.
In my opinion all these factors gave George reasonable
basis for his views as to Mills and an explanation for what
the dissidents regarded as management avoidance of
contract obligations and a lax union leadership.
3. George's grievance activity as motivation
Beyond that , the facts establish , in my opinion, a
resentment on Mills ' part toward George because of what
Mills regarded as George 's filing of baseless grievances to
further his political ambitions. This conviction could not
help but contribute to Mills ' conclusion that George's
published indictment of Mills was disloyalty meriting his
discharge . I so conclude.
In this regard the nature of Mills' statements in his
luncheon conversation with Grafton Lewis seems signifi-
cant. Accepting Mills' version, we have him stating that
George was merely furthering his political ambitions, and
if there was a fight he hoped it would be with Melvin,
Lewis' husky son, because Melvin "knows how to take care
of himself." Mills' explanation that he "thinks" he was
.,more or less joking," reveals as much as it conceals. It
reflects an antagonism toward George consistent with
George's hypothesis; and throws additional light on Mills'
attitude toward George. I think it significant that Lewis
described Mills as being "upset" about George on this and
other occasions.
The degree of Mills' opposition to George's proposal for
starting times also appears significant, in view of the
Respondent's apparent minimal interest in the matter. In
his testimony Mills indicated that employers generally
desired starting times, and that some of the Respondent's
officials thought them beneficial to the Company. At the
time of the meeting in which the employees voted against
starting times, Mills had drawn up a list of starting times
with which the Respondent "could live." The only reason
Mills gave for his opposition is that it would affect the
"morale" of the drivers. That such a concern could lead
him, as a management representative, to oppose the
proposal to the extent of calling a meeting of the drivers
and persuading them to overrule their bargaining repre-
sentatives, is at best ambiguous-and reasonably of
doubtful candor. A more likely supposition is that Mills,
irritated at what he deemed George's filing of unfounded
grievances for political effect, and confident from his
union background of his ability to best George on the
issue, seized the occasion to defeat him publicly before the
drivers, and-as Mills' later statement to Dyson about the
matter reflects-thus made a fool of him.
It is therefore found that George's actions in filing
grievances under the contract was a factor which contrib-
uted to the decision to discharge him. This, of course,
requires a finding of violation of Section 8(a)(3) of the Act,
which I make.
However, I do not find that in discharging George, Mills
was motivated in any way by desire to hinder George or
the reform group, or to assist the Union's administration,
in the intraunion political fight.
C. The Arbitration Proceeding as a Bar
The Respondent asserts that the Board should in any
event defer to the decision of the Joint Committee and
dismiss the complaint. Section 10(a) of the National Labor
Relations Act provides in part that the Board's authority to
decide unfair labor practice questions is exclusive.
However, in accordance with national policy favoring
voluntary resolution of labor disputes (Section 203(d),
NLRB; International Harvester Co., 138 NLRB 923, affd.
327 F.2d 784 (C.A. 7, 1964) sub nom. Ramsey v. N.L.R.B.,
cert. denied 377 U.S.1003 (1964)), the Board has held that
where a matter within the jurisdiction of the Board has
been fairly resolved through the parties' use of voluntary
final and binding arbitration procedures in a manner
consistent with the policies of the National Labor
Relations Act, the Board will defer to the arbitration
JACOBS TRANSFER, INC.
decision and withhold exercise of its own jurisdiction.
Spielberg Manufacturing Co., 112 NLRB 1080. In the
Spielberg case the Board stated the following as the
standards governing its declination to assert jurisdiction
after arbitration:
... 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 repug-
nant ' to the purposes and policies of the Act.
So far as I am aware , the Spielberg decision continues to
state Board law on the subject. There have been recent
suggestions to the effect that where arbitration machinery
established by the parties is available for resolution of a
controversy, the Board should withhold jurisdiction until
the machinery has been utilized. See, for example, Collyer
Insulated Wire, A Gulf and Western Systems Co., 192 NLRB
No. 150; Coppus Engineering Corp., 195 NLRB No. 113.
However , there is no indication that the Board has
entertained any thought of deferring completely to the
result of the arbitration. As I read them, both the Collyer
and the Coppus decisions envision retention of jurisdiction
by the Board until it has been determined whether the
result of the arbitration fulfills the Spielberg requirements.
Thus the question here is simply whether the Joint
Committee 's decision may be considered final and binding
within the standards required by Spielberg. In my opinion
it may not. I conclude that George did not voluntarily
submit the issue to the Joint Committee , and did not agree
to be bound by the award, and also that the decision itself
is not consistent with the purposes and policies of the Act.
The Board has held that it will not recognize the
arbitration decision as a bar where the issue before the
Board was not considered by the arbitration committee.
Raytheon Company, 140 NLRB 883, set aside on other
grounds 326 F.2d 471 (C.A. 1, 1964). While the Board has,
in some situations , deferred to a decision by a joint
committee , such as the instant one, composed of an equal
number of employer and union representatives (Terminal
Transport Co., 185 NLRB No. 96) it has declined to do so
where the nature of the discriminatee 's activities may have
resulted in a common array of the panel against him.
Roadway Express Inc., 145 NLRB 513; The Youngstown
Cartage Company, 146 NLRB 305. It has also declined to
defer to arbitration decisions where the issue presented to
the Board was not decided by the arbitrator. Auburn
Rubber Co., 156 NLRB 301; Montgomery Ward &
Company, 195 NLRB No. 136; Gateway Transportation Co.,
193 NLRB No. 1; Curtiss Manufacturing Co., 189 NLRB
No. 38; Kalamazoo Typographical Union, Local No. 122
(Booth Newspapers, Inc.), 193 NLRB No. 159.
In the instant case George was advised by the represent-
ative of the General Counsel that his unfair labor practice
charge would not be processed by the General Counsel
until he had exhausted the grievance procedures of the
contract. It was only then that George resorted to the
contract machinery. At the hearing before the Joint
Committee George advised the Committee that unfair
labor practice charges had been filed, and asked the
Committee to refer the dispute to a neutral arbitrator in
221
view of the nature of the conduct for which he had been
discharged . The Joint Committee did not grant his request
for an impartial arbitrator . As to George's statement that
unfair labor practice charges were pending before the
Board the Committee replied that it had no interest in
unfair labor practice charges. It is therefore clear that
George did not voluntarily submit the dispute to the
contract procedures, did not agree to be bound by the
result , and in effect specifically asked the Committee to
disqualify itself and to submit the dispute to a neutral for
disposition . In addition, it is clear from the Committee's
statement that it did not consider the issue of whether
George's discharge constituted a violation of the National
Labor Relations Act. For both those reasons , then, it must
be held that the Joint Committee's decision may not be
recognized as a bar to the instant proceeding.
Apart from those considerations, however, the Commit-
tee's decision in my opinion should not be considered a
bar, for the reason that it is not consistent with the policies
of the National Labor Relations Act. The rights which
George was exercising were basic to effective engagement
in concerted activity and free selection of his collective-
bargaining representatives. His discharge for that action
was a restraint upon such rights . On the facts presented
here public policy requires the rejection of the Joint
Committee's decision as a final and binding disposition of
the matter.
CONCLUSIONS OF LAW
1. Jacobs Transfer, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. By discharging and thus discriminating in employ-
ment against Daniel George because he invoked grievance
or contractual procedures, protected by Section 7 of the
Act, Respondent violated Section 8(a)(3)' of the Act.
3. By discriminating against Daniel George , by inter-
fering with , restraining, or coercing him, concerning his
activities involved in issuance of the September 22, 1971,
newsletter , Respondent denied him the exercise of his
rights guaranteed in Section 7 of the Act, and thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. This will
include reinstatement of George and making him whole for
any wage losses.
Upon the foregoing findings of fact , conclusions of law,
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed: 20
ORDER
Jacobs Transfer, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in employ-
ment against employees because they have invoked
grievance or contractual procedures, or because they have
engaged in other protected concerted activities.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Daniel George immediate and full reinstate-
ment to his former job, without prejudice to his former
rights or privileges, 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 Company, 90 NLRB 289, with interest
thereon in the manner set forth in Isis Plumbing and
Heating Co., 138 NLRB 716.
(b) 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.
(c) Post at all its terminals copies of the attached notice
marked "Appendix." 21 Copies of the notice, on forms
provided by the Regional Director for Region 5, after
being signed by an authorized representative of the
Respondent , shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from receipt of this Decision, what steps
Respondent has taken to comply herewith 22
20 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
21 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
22 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 5, 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
WE WILL NOT discharge or otherwise discriminate in
employment against employees because they have
invoked grievance or contractual procedures, or be-
cause they have engaged in other protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their !rights guaranteed by Section 7 of the Act.
WE WILL offer to Daniel George immediate and full
reinstatement to his former job , without prejudice to his
former rights or privileges , and make him whole for any
loss of earnings suffered as a result of the discrimina-
tion against him.
JACOBS TRANSFER, INC.
(Employer)
Dated By
(Representative) (Title)
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, Federal Building, Room
1019, Charles Center, Baltimore, Maryland 21201, Tele-
phone 301-962-2838.