Jmc Transport, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 545 (N.L.R.B. 1984)

JMC TRANSPORT 545
JMC Transport, Inc. and Lemuel Marina. Case 9-
CA-17694
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 February 1983 Administrative Law Judge
Burton S Kolko issued the attached decision The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, JMC Transport, Inc, Jeffersonville, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Insert the following as paragraphs 1(a) and
(b)
"1 Cease and desist from
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and bnefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In adopting the judge's conclusion that the Respondent violated Sec
8(a)(1) by discharging employee Lemuel Manna, we find that Manna en
gaged in actual—not implied—concerted activity and was discharged
therefor In finding Marina's activities concerted, we rely on the meeting
that Manna and his co dnver, Terry Cathey, had with Thomas Denman,
the Respondent s operations manager, to complain jointly about a change
in the way wage payments were calculated, a matter of past practice re
garding a term and condition of employment This meeting establishes
the concerted nature of Manna s actions as well as the Respondent s
knowledge that this complaint was concerted Thus, although the 3 No-
vember exchange between Manna and Denman—occurring 2 days before
Manna's discharge—was tnggered by Marina's complaint regarding a
payment discrepancy in his own paycheck, this confrontation grew out of
the earlier concerted complaint regarding the same subject matter, 1 e
the change in the pay structure Accordingly, Manna's pay protests were
a continuation of protected concerted activity and, for the reasons set
forth by the judge, we find that those protests caused his discharge Cf
Meyers Industries, 268 NLRB 493 (1984)
Member Hunter notes that in some circumstances activity which re
lates back to concerted activity may be too remote to retain its concerted
nature Here, only a month had elapsed since Manna had concertedly
complained with his co-dnver of the adjustment in wage payments
"(a) Discharging employees because they protest
changes in the terms and conditions of employment
or engage in other protected concerted activities
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act"
2 Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs
"(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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"
3 Substitute the attached notice for that of the
administrative law judge
CHAIRMAN DOTSON, dissenting
I do not agree with my colleagues' conclusion
that Lemuel Marina engaged in concerted activity
when he individually complained to management
that his check did not include an unloading pay-
ment to which he felt entitled A review of the
background of this dispute will help to put the
issue into focus In September Marina discovered
that the Respondent had changed its policy regard-
ing unloading payments Under the new policy,
drivers would not be paid for unloading palletized
goods Marina confronted his supervisor, Denman,
to protest the change and was told that the previ-
ous payments had not been authorized
At some point in early October, Marina and his
co-driver, Cathey, had a meeting with Denman on
yet another issue—to verify the rumor that the
Company had reduced the percentage the employ-
ees were being paid on gross revenues On 3 No-
vember, a month later, Marina angrily confronted
Denman about an entirely different issue, i e, an al-
leged shortage in his paycheck resulting from the
Company's nonpayment for his unloading of a pal-
letized load He was discharged 2 days later
Although Marina may have been discharged for
complaining, in my view he was certainly not dis-
charged for complaining concertedly The majority
finds that the 3 November encounter with Denman
"grew out of' the earlier meeting attended by both
Marina and Cathey This incantation merely blurs
the issue and serves to conceal the fact that there is
no evidence to support the view that the 3 Novem-
ber complaint involved concerted activity It is sig-
nificant that there is no evidence showing that
Cathey and Marina agreed between themselves to
pursue the subject matter further Furthermore,
during the discharge- triggering incident, Marina
272 NLRB No 86
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made no reference to his earlier concerted activity
which had as its basis an entirely different concern,
which was a complaint over a reduction in the rev-
enue percentage to which drivers were entitled 1
The 3 November complaint did not involve the
percentage-cut issue but was a repetition of Mari-
na's original complaint regarding nonreceipt of
payment for unloading commodities at the time of
delivery to the consignee For these reasons I do
not find that Marina was discharged for complain-
ing concertedly
1 Contrary to my colleagues, I do not view the complaints as stem
ming from the same ongin Although both complaints onginated from a
pay discrepancy based on a changed compensation policy, the discharge
tnggenng complaint was based on a change in unloading payments and
the concerted complaint was based on a reduction in the percentage dnv
ers were paid on the gross revenue of a tnp
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge employees because of
their protected concerted activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Lemuel Marina immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way
JMC TRANSPORT, INC
DECISION
BURTON S Kouco, Administrative Law Judge
Lemuel Marina, a driver for the Respondent, was dis-
charged for having beer in his truck Alleging that this
was a pretext, the General Counsel seeks a finding that
Marina was discharged for his union or other protected
concerted activities I grant the General Counsel's re-
quest
The Discharge
Marina's discharge occurred on November 5, 1981, 2
days after beer allegedly was found in his truck The
supposed discovery of beer is a bizzare episode that goes
to the heart of this case and affects its resolution
On the afternoon of November 3, Marina pulled into
Respondent's terminal while en route to Columbus,
Ohio, from Greenville, Kentucky, with the rest of a load
that he had picked up in California He parked his rig
near the mechanic shop to offload some dead batteries
that had been replaced while he was en route After
leaving the compound, he returned later in the day to
pick up his paycheck for a previous run to California
Noting that the paycheck omitted an unloading fee that
he thought was due him, Marina angrily confronted Tom
Denman (operations manager) and Deanna Owens (gen-
eral manager) and, unsatisfied, left the premises
At 5 p m the shop mechanic "J R" Denman moved
Marina's rig to the parking lot He testified that the driv-
er's door would lock only from the inside, which re-
quired him to leave by the passenger's door and lock it
from the outside As he was changing positions and leav-
ing, he testified he saw beer cans (Colt 45) under the pas-
senger's seat Two cans remained affixed to a plastic six-
pack tie, and several pulled tabs were strewn about the
cab J R locked the truck, put the keys in the office, and
went home with his uncle Tom Denman
The rest of Marina's load was due in Columbus the
next day Late that evening, Marina returned to the ter-
minal to complete his delivery Finding the truck locked,
Marina drove to a nearby truckstop and called Tom
Denman at home, after first calling Respondent's dis-
patcher, Hayes Marina reached Tom Denman at ap-
proximately 10 p m and told him that he was at the ter-
minal but could not get into his tractor because it was
locked Tom Denman told Marina he would come to the
terminal and attempt to locate the keys so Marina could
make his delivery Marina responded by saying that he
would be waiting for Denman
Tom Denman, described by J R Denman as a "nerv-
ous" type of person, took Marina's last comment as a
threat After telephoning Deanna Owens, he telephoned
J R and requested that J R accompany him there He
stated that the request was because Marina had sounded
hostile on the telephone and possibly was intoxicated or
JMC TRANSPORT 547
drugged J R then told Denman about the beer he had
seen when locking Marina's truck Denman next called
Respondent's security contractor, Ernie Keck, and ar-
ranged for Keck to be picked up by the two Denmans en
route to the terminal
They arrived about 11 50 p m, found the area secure,
but did not find Marina After waiting for another one-
half hour, they left Keck was driven to his car and re-
turned to Respondent, where he stayed until 7 a m,
when Owens arrived
Keck told Owens why he was there, including that
when the Denmans and he had unlocked Marina's truck
while waiting for Marina, they had seen the beer that
J R had seen earlier Owens, in turn, related these events
to Broaddus, Respondent's president, when he arrived
later Broaddus thought that Marina should be terminat-
ed, but said that Tom Denman should be consulted first
Moreover, since Denman had locked Marina's keys in his
desk drawer the previous midnight, access to the truck
awaited Denman's presence Denman did not arrive until
mid-day, whereupon he, Owens, dispatcher Tom Hayes,
and Shop Foreman Bill Sanders went out to inspect the
truck In Owens' words, "It was immaculate" There was
no beer Tom Denman, nevertheless, advised Owens to
terminate Marina for having beer in his truck But
Marina was not there, and Broaddus had left because his
son had just been in a car accident So Broaddus and
Owens did not meet with Marina until the next day, No-
vember 5
When they did, 'Broaddus asked Marina why he had
beer in his tractor when he knew it was against company
policy Marina's heated response was "What beer? Show
me the beer" Asking whether he was being terminated,
Marina was told by Broaddus that he was, whereupon
Marina called those present "a bunch of lying bastards"
and left The remainder of Manna's load was dispatched
to Columbus that day, after the consignee was notified
on the 4th that delivery would lie a day late
From this we are asked by Respondent to believe that
Marina was discharged either because he violated com-
pany rules (and D 0 T regulations) by having beer in his
tractor, or for having violated company rules by failing
to make a scheduled delivery
The beer episode is incredible J R Denman and Ernie
Keck testified that they saw two unopened Colt 45 beer
cans in Marina's locked tractor just before midnight on
November 3 1 They also testified that Tom Denman
locked the keys to the locked truck in his desk drawer,
and J R testified that Tom Denman (and he) did not get
to work until almost 12 hours later because Tom
Denman needed a new muffler on his car and had it put
on during the morning of November 4th When he ar-
rived, Tom Denman, Deanna Owens, Broaddus, and
others trooped out to the truck with the keys from Den-‘
man's desk The tractor was opened and, after a thor-
ough search, was found to be either "immaculate," in the
words of Deanna Owens, or to contain "a bunch of pa-
perwork, an overfilled ash tray, a cola can in the bunk,
and a bunch of stereo tapes" according to Shop Foreman
1 And of course, J R testified that he had seen it at 5 p m that same
day
Sanders No wonder Marina's incredulous response to
the accusation made to him 24 hours later was "What
beer'?"
Respondent deals with this missing beer with a maxi-
mum of five words in its brief "The beer had been re-
moved" How the beer was removed is left to my imagi-
nation, which balks at this implied invitation Was it re-
moved during the night, when Keck stood guard from 1
to 7 a m, and the building and Denman's desk were
locked then? Or was it during Keck's absence while he
was being driven by the Denman's to get his car? The
keys were still locked in Denman's desk until almost
noon, when J R says they arrived So who took the
beer? On this record, nobody It was never there to be
taken, or so I conclude having observed J R and Keck
testify that it was
Very helpful testimony on this question could have
come from Tom Denman, the operations manager, and
the one who, as Sanders credibly testified, said to all
even after no beer was found "He had beer in his truck
and we're going to have to fire him" By the time of the
hearing, September 1982, Denman was no longer in Re-
spondent's employ, having left under what counsel repre-
sented were not hostile circumstances Yet Denman did
not appear Indeed, he seems to have twice evaded Re-
spondent's attempts to subpoena him Without his testi-
mony and my observation of his demeanor in giving it,
and in view of my finding of the lack of credibilty in the
testimony of J R and Keck that the beer was there, I
find no record support for Respondent's claim that
Marina was discharged for possessing beer in his tractor
Broaddus and Owens both believed Keck and Tom
Denman that there was beer in Marina's truck, and
Broadddus discharged Manna on the basis of that belief
But an employer's good-faith belief that the misconduct
occurred is not a defense to such discharge if it is shown
that the misconduct never occurred, NLRB v Burn up &
Sims, 379 U S 21 (1964), which I have found to be the
case See Co-Con, Inc , 238 NLRB 283, 288 (1978), Classe
Ribbon Co, 227 NLRB 406 (1976), and, regarding the
General Counsel's burden of proof when the employer
establishes his honest belief, Rubin Bros Footwear, 99
NLRB 610 (1952), enf denied 203 F 2d 486 (5th Cir
1953)
Nor do I find that Marina was discharged for failing
to make a scheduled delivery For this Respondent relies
on the J R and Keck testimony that Marina did not
show up at the terminal on the night of November 3 to
get the keys to the locked truck in order to complete his
run But Marina had been there, as he credibly testified,
and finding the truck locked called dispatcher Hayes for
the keys and then, at Hayes' request, called Denman
That was somewhere between 9-10 p m, although nei-
ther Hayes nor Marina could be sure Yet, according to
Keck's report, R Exh 8, he and the Denmans did not
reach the terminal until 11 50 p m 2 By this time, accord-
2 J R testified that It was 11 35 pm but he was not sure Keck, too,
testified as to 11 35 p m, but I find the report he gave to Deanna Owens
at 7 a m the next day the more credible evidence of the arrival time
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Marina, he was back home watching what was
left on a rerun of "Saturday Night Live," since he had
waited until between 11 30-11 45 and then gone home
Thus, Marina and Keck/Denmans missed each other by
minutes
But Respondent faults Marina for not "bother[ing] to
again call Denman about the keys or the late delivery to
Columbus " (Br at 13 ) In this it is somewhat aided by
Marina's attitude, which was portrayed in the following
cross-examination
Q All right How long would you estimate you
were at the terminal, Mr Marina?
A Between the hours of 9—say 9 00 or 9 30 until
11 45
Q But it never occurred to you during any of
that time to call to see if Mr Denman were on his
way?
A No
Q How about when you got home, did you call
him?
A No
Q Did you just not care?
A Yes, sir That's basically, that's what _ hap-
pened I didn't—I weren't no more concerned about
it because he had more than ample time to come
from his house to J M C Terminal and give me the
keys to the truck And company policy had stated
the way it were, all of this never would have hap-
pened in the first place 3
From this Respondent proffers the conclusion that
"[l]n failing to make the scheduled delivery, Marina vio-
lated the JMC company policy [which] required
drivers to advise the office when they cannot meet their
delivery schedules "(Br at 13 )
But it strikes me that Marina did make a reasonable
effort to resume delivery of his load He went to the ter-
minal to start out in time to arrive in Columbus for a
morning delivery on the due date of November 4 4 Find-
ing his truck locked, he called the dispatcher, who told
him to call the operations manager, which he did He
waited vainly at the terminal for at least 90 minutes for
the operations manager to make a 30 minute drive to the
terminal, after which he went home He then reported to
the terminal the next morning, but was told by Owens
that Denman had his keys and was not there Thus, I
conclude, in the words of the General Counsel, which
aptly sum up my own deep skepticism of Respondent's
case, that "by its own actions, Respondent was responsi-
ble for preventing Marina from completing the delivery
The very fact that Respondent claims that Marina's fail-
ure to deliver the load was grounds for termination is a
3 Tr 118-119
4 There is no Issue whether Manna acted properly in leaving the ter
minal when he brought his truck in earlier in the afternoon and not re
summg his delivery until after the terminal had closed for the day Re-
spondent's dispatcher had approved the terminal stop while Manna was
en route to Columbus from Greenville, Kentucky, and this was the first
time Manna had brought a truck into the terminal while en route to a
consignee The load was not due in to Columbus until the next morning,
and the distance takes only 4 hours to traverse
specious argument which raises a serious question con-
cerning the veracity of its witnesses" (Br at 13)
Indeed, in view of the beer debacle, Respondent's
whole case is suspect The General Counsel is guilty of
gross understatement in observing that "it is highly suspi-
cious that only Respondent's witnesses saw the alleged
beer and those same cans subsequently disappeared from
a locked truck parked on Respondent's property" Br at
12 Respondent's explanations of why it discharged
Marina are pretextual The real question is, for what are
they pretextual ? To that we now turn
Protected Activities
The central issue is what was Respondent's real reason
for discharging Marina, for if it was because Marina was
engaging in union or other protected concerted activi-
ties, then his discharge would violate Section 8(a)(3)
and/or Section 8(a)(1) of the Act
1 Union activities
Whether Marina was passing out union authorization
cards on November 5 before or after he was terminated
that afternoon is in dispute Marina testified that on the
morning of November 5 he went to the union hall and
met with a representative of Teamsters Local 89 5 He
signed an authorization card and took some as he left for
the terminal On the way there he obtained the signature
of Philip McCormick, another employee, whom Marina
met at a truckstop Marina then attempted to solicit
cards from other employees at the terminal One was
Sanders, who testified that Marina approached him that
morning to get his signature on a card He also observed
Marina soliciting signatures from other employees that
morning
To refute this, the Respondent offered the testimony
of J R Denman, Deanna Owens, and Russell Broaddus
who testified that they were present at the hearing con-
cerning Marina's claim for unemployment compensation
and that they heard him testify there that he did not go
to the union hall until after he was terminated
Nevertheless, the weight of the credible testimony is
that Marina was at the terminal passing out union cards
in the morning I rely on Sanders' corroborating testimo-
ny Although he admitted being friends with Marina, his
testimony impressed me as given sincerely and without
embellishment
But it does not follow that Marina was discharged by
Broaddus later that day for that activity Broaddus was
relying on what Tom and J R Denman and Deanna
Owens had told him about the beer in Marina's tractor
(Owens' information, of course, coming just from Keck's
report) There is no evidence that Broaddus had any
knowledge at that time of Marina's union activities of
that same day, and without that knowledge, there is no
basis for linking Marina's discharge to his union activities
and concluding that it was discriminatory 6
5 His motivation for doing so will become apparent in the discussion of
his other protected concerted activities
6 Causley Pontiac v NLRB, 620 F 2d 122 (6th Cir 1980) While Re
spondent as a small firm may be presumed to know of the union activities
Continued
JMC TRANSPORT 549
2 Marina's pay protests
Respondent made changes in its payments to drivers
for assisting in unloading deliveries These changes were
instituted by Owens after she became general manager in
the summer of 1981, when she concluded that her prede-
cessor was erroneously overpaying the drivers Marina
took these changes to violate the terms of payment he
had been told would exist when he was hired in May
1981 He vehemently protested the pay changes after dis-
covering in early fall 1981 that Respondent was no
longer paying the drivers for loading and unloading pal-
letized loads and had changed the percentage of gross re-
ceipts that the drivers were receiving 7 Marina initially
spoke to Tom Denman in late September, who told him
that previous payments for these charges had been unau-
thorized, hence the dismissal of the former general man-
ager and treasurer Marina contacted these former em-
ployees, who said that Broaddus had authorized the pay-
ments that they had been making Marina then met with
Denman and Owens and very angrily and violently
argued that Respondent owed him additional unloading
charges Keck, Respondent's security contractor, was
called to stand by He testified that "they were arguing
over the payroll There was beating of fists on the desk,
there was considerable yelling going on Mr
Marina was [shouting] 'You mother-fuckers are ripping
us off You're not paying us right " (Tr 335)
This scene was repeated on the afternoon of Novem-
ber 3 After Marina unloaded the batteries he had re-
placed while en route from California, he left his rig to
get his paycheck for a previous run He found that he
had not been paid for unloading, which he felt he was
due He confronted Owens and Denman and "sort of
went to pieces
Q Well, what do you mean you sort of went to
pieces? We assume that's not literally, what do you
mean?
A I was highly upset because J M C Transport
or J M C Transport personnel, say their bosses or
whatever you want to call them, was trying not to
pay—trying to get out of—say renege on paying us,
for stuff that we had been paid to do And I was
totally against it
Q What did you do when you sort of went to
pieces?
A Got angry
of its employees, Galar Industries, 239 NLRB 28 (1978), there was insuffi-
cient time between Marina's card solicitations and his discharge to pre-
sume, without more, that Broaddus knew of It He credibly testified that
he did not know
7 The percentage change was a revision in the pay formula to account
for the fuel surcharge that the ICC was requiring be an integral part of
the carrier's tariff charge to customers While the percentage figure for
dnver pay was reduced, the base the percentage was applied to was
higher, resulting, as Owens credibly testified, in a slight benefit to the
drivers
The loading policy was tightened so that drivers were paid a premium
for loading or unloading a floor load, not a load that was on pallets (the
premise apparently being that the drivers did not have to assist a ware
houseman using a forklift to remove pallets from the trailer, whereas they
did when dealing with a load piled on the trailer's floor)
Q What did you do?
A What did I do?
Q Yeah, what did you do?
A Oh, I got into an argument I lost self-control
Q All right, what did you—
A I started arguing with Mr Denman
Q What did you say?
A About not paying us for unloading the load
Q What did you say?
A I told him that I was tired of them trying to
cheat or take away all of the benefits that this com-
pany had promised us and that every time it seemed
that when we go out, come back in [sic], they either
going to cut this or they're not doing this or—and
that I was tired of it, that I wanted to be paid in the
way that was promised to me by Mr Schweitzer
when I first began to work for the Company
I told Mr Denman that I was tired of them
screwing me or fucking me out of my money
That's about the extent of what it was (Tr 97-100,
102)
Respondent has two things to say about these out-
bursts The first is that Marina was acting for himself,
and thus, his protests about the new pay arrangement did
not constitute protected activity Second, Respondent
argues that Marina's discharge should be excused be-
cause of Marina's rank insubordination
The General Counsel's view is that Marina was dis-
charged for protesting about the revisions in the pay pro-
cedures, that his protest was concerted activity that is
protected by the Act, and that Marina's insubordination
does not excuse Respondent
Protected concerted activity
The test of the United States Court of Appeals for the
Sixth Circuit was stated a
[F]or individual action to be deemed concerted
action it must be shown that the individual in fact
was acting on behalf of, or as a representative of,
other employees rather than acting for the benefit
of other employees only in a theoretical sense
The Board's test, however, allows for what the Sixth
Circuit Court would probably deem "a theoretical
sense", for the Board has stated, in the above ARO, Inc
case, which the court refused to enforce, that "[e]ven in-
dividual protest [that] redounds to the group's benefit is
protected concerted activity," 227 NLRB 243, 244,
citing Hugh H Wilson Corp, 171 NLRB 1040, 1046
(1968), enfd 414 P 2e1 ,145 (3d Cir 1969) 9 The Court of
Appeals for the Seventh Circuit would likely reject this,
since it prefers "activity for the purpose of inducing
or preparing for group action to correct a grievance or a
complaint" over the mere "public venting of a personal
grievance, even a grievance shared by others ""
8 ARO Inc v NLRB, 596 F 2d 713, 717 (6th Or 1979)
9 A similar rationale was expressed most recently in W C Electrical
Co 262 NLRB 557 (1982)
'° Pe/ton Casteel Inc v NLRB, 627 F 2d 23 (7th Or 1980)
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "tightening up" of drivers' pay by Deanna Owens
when she became General Manager was an act that af-
fected all the drivers and was a concern of most Sanders
credibly testified that practically every driver, including
Marina, had talked to him in the garage about these
changes Their concern is borne out by Owens, who tes-
tified that between 12-20 drivers commented in writing
on the revisions when they signed acknowledgements
that they had seen and read the policy changes And
Marina knew that he was not the only driver who was
bothered by the changes, for as he testified, credibly,
that he had not only discussed them only with his co-
driver Cathey (they were considered by Respondent as a
California "team"), but Cathey and he met with Tom
Denman in late September or early October to complain
about the drop in the percentage of trip revenues that
the drivers were receiving Moreover, he and five or six
other drivers discussed these changes during this period
The upshot is that in the several meetings and confron-
tations that Marina had with Tom Denman, he was pro-
testing a discontinuance of a past practice concerning a
term and condition of employment that affected all em-
ployees And in doing so at least once with Cathey, who
corroborated Marina's testimony that he went with
Marina to complain to Denman about the lower percent-
age of revenues they were receiving, Marina's activity
fell within the protection afforded by Section 7 of the
Act to concerted activity concerning a term and condi-
tion of employment " See Timet v NLRB, 671 F 2d 973
(6th Cir 1982)
Insubordination
Nor does Marina's insolence cause him to lose the
Act's protection, as Respondent belatedly would have it
For Marina was not disharged for pounding desks or
cursing, not until Respondent's brief was filed on De-
cember 13, 1982, is that reason given for his discharge
This post hoc rationalization will not suffice, even
though Marina's extremely intemperate outbursts gave
Respondent ample grounds to discharge Marina But
these were tolerated at the time, perhaps because, as the
General Counsel suggests, "it is not uncommon for
truck drivers to use such language as a means of expres-
sion " 12 Perhaps But having countenanced Marina's
cursing then, it ill becomes Respondent now to come
forward and say, with the whole "missing beer" episode
to deal with, that Marina was discharged for insubordi-
nation That reason is, clearly, pretextual
" To be sure, Owens, a very credible witness, explained in her testi
mony the valid business reasons for changing the pay practices, and gave
a lucid explanation for the percentage adjustment in the drivers share of
the revenues that to troubled Manna and Cathey when they complained
to Denman Denman s explanation was unconvincing to the two drivers,
and they left angry, confused, and with the erroneous perception that
their lower percentage cut (off a higher revenue base) worked to their
detriment And Marina's angry confrontations with Owens and Denman
about the lack of payment for helping to unload a palletized load were,
also, due to his erroneous perception that he was due an unloading fee
for such loads Thus, on the merits of the issues that he was protesting,
Manna was wrong But an employee s mistaken belief about his rights
under the terms and conditions of his employment does not invalidate the
protected nature of concerted activity involving those nghts Cf Firch
Baking Co, 232 NLRB 772 (1977)
" Br at 8
CONCLUSIONS OF LAW
1 By discharging Lemuel Marina because he protested
changes in pay practices and rates, Respondent has vio-
lated Section 8(a)(1) of the Act
2 The unfair labor practice described above affects
commerce within the meaning of Section 2(6) and (7) of
the Act i 3
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, JMC Transport, Inc , Jeffersonville,
Indiana, its officers, agents, successors, and assigns, shall
1 Cease and desist from discharging employees be-
cause they protest changes in the terms and conditions of
employment or engage in other protected concerted ac-
tivities
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Offer Lemuel Marina immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent job, 15 without prejudice to his
seniority or other rights and privileges previously en-
joyed, and make him whole for any loss of earnings suf-
fered as a result of the discrimination against him 16
(b) Expunge from its files any reference to the dis-
charge of Lemuel Marina on November 5, 1981, and
notify him in writing that this has been done and that
evidence of this unlawful discharge will not be used as a
basis for future personnel actions against him
(c) Post at its facility in Jeffersonville, Indiana, copies
of the attached rnitice marked "Appendix "17 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
i3 Respondent, engaged in the interstate transportation of freight and
commodities, is a Kentucky corporation doing business in Jeffersonville,
Indiana, across the Ohio River from Louisville Dunng 1982 it derived
gross revenues in excess of 550,000 in the interstate transportation of
freight and commodities
" If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
15 On February 1, 1982 Respondent discontinued employing drivers
Instead, it offered to some of its drivers the opportunity to lease equip
ment from the Respondent as independent contractors The record does
not indicate how Manna would have fared under this arrangement had
he not been discharged a determination that awaits the compliance pro
ceeding
15 Respondent shall pay to Manna a sum of money equal to what he
normally would have earned as wages from the date of his disharge on
November 5, 1981, to the date of his offer of reinstatement, less his net
earnings during such period, with backpay computed as in F W Wool
worth Co 90 NLRB 289 (1950), and with interest thereon as in Florida
Steel Corp, 231 NLRB 651 (1977) Respondent shall make available to
the Board upon request, all payroll and other records to facilitate check
ing the amount of earnings due
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading Posted by Order of the Na
tional Labor Relations Board' shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
JMC TRANSPORT 551
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply