Johnson Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1977

228 N.L.R.B. 393 (N.L.R.B. 1977)

JOHNSON MOTOR LINES , INC. 393
Johnson Motor Lines , Inc. and Matthew Fortino. Case
3-CA-6445
February 23, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 10, 1976 , Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter , the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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.
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 the Respondent , Johnson Motor
Lines, Inc., East Syracuse , New York, its officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge: On April 16,
1976,1 a complaint and notice of hearing issued pursuant to
a charge filed February 25 by Matthew Fortino, an
individual . The complaint alleges , in essence, that Johnson
Motor Lines , Inc. (herein Respondent or Company),
violated Section 8(a)(l) of the National Labor Relations
Act, as amended (herein the Act), by threatening its
I
All dates hereinafter refer to the calendar year 1976, except for
references to events in December, which refer to calendar year 1975.
2 There is no issue raised as to thejurisdiction of the Board or of the status
of the Union as a labor organization . The complaint alleges sufficient facts,
which are admitted in Respondent's answer, upon which I may, and do
hereby, find that the Respondent is, and has been at all tunes material, an
employer engaged in commerce within the meaning of Sect. 2(6) and (7) of
the Act . The complaint alleges, the answer admits, and I find that at all times
material Teamsters , Local No. 317 (herein the Union), has been a labor
organization within the meaning of Sec. 2(5) of the Act.
228 NLRB No. 50
employees with discharge or other reprisals if they engaged
in protected activities on behalf of a labor organization
(Teamsters , Local No. 317). By its duly filed answer
Respondent admitted the jurisdictional allegations of the
complaint, but denied the commission of any unfair labor
practices . By way of an affirmative defense , the answer
alleges that the statements made by Respondent 's agent
and supervisor were not reprisals for the Charging Party's
protected activities but were rather the results "solely of
Fortino's insubordination, refusal to carry out instructions,
and challenging and criticizing of management's deci-
sions."
A hearing in this case was held before me on July 13 in
Syracuse, New York . Subsequent to the hearing, a brief has
been received from counsel for the General Counsel, which
has been duly considered.
Upon the entire record , including arguments of counsel,
and my evaluation of the reliability of the witnesses, based
on their testimony and demeanor and the inherent plausi-
bility of the circumstances , I make the following:
FINDINGS OF FACT2
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a common carrier in interstate truck
transportation of goods and commodities along the eastern
seaboard ; its terminal in East Syracuse, New York, is the
only facility involved in this proceeding. At this facility, the
Respondent employs approximately a half dozen truckdri-
vers who, at all times material , since at least July 1, 1973,
have been represented for purposes of collective bargaining
by the Union. The Union's steward at the facility is the
Charging Party , Matthew Fortino , who has worked as a
truckdriver for the Company approximately 11 years.3 The
manager of the East Syracuse terminal is, and has been at
all times material , William G. Stemmler, an admitted
supervisor within the meaning of the Act.
The record reflects that in December and February
Stemmler became quite dissatisfied with some of the acts
and conduct of Fortino, the result of which was that
Stemmler threatened Fortino with discipline and, in fact,
disciplined him on these occasions . As previously noted,
counsel for the General Counsel urges that the motivation
behind Stemmler's acts was to interfere with , restrain, and
coerce Fortino in the exercise of his rights as a union
steward. On the other hand, the Respondent contends the
discipline and threats thereof were solely a result of
Fortino's misconduct as a truckdriver . We come now to a
consideration of the evidence adduced in support of these
respective contentions.4
3 The record does not reflect how long he has served as union steward.
4 It should be noted that the original charge in this case alleged an 8(a)(3)
violation . However , the Charging Party filed a grievance concerning this
matter pursuant to grievance procedures of the collective-bargaining agree-
ment, and Region 3 of the Board deferred the 8(a)(3) violation to the arbitral
process. The decision of the arbitration board is incorporated in this record
and will be referred to, infra. The Region refused to defer with respect to the
8(axl) allegations inasmuch as the Charging Party expressly stated his
(Continued)
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The December Events
The record reflects that on December 19 Stemmler
determined to discharge Fortino as a result of three
incidents-two of which occurred on December 17 and one
on December 19. The first incident on December 17 was
concerned with a load of material which Fortino was to
pick up at a local General Electric Corporation facility, and
bring back to the terminal . The issue in dispute appeared to
be whether Fortino carried out this duty with the prompt-
ness and competency which could be expected of him.
Stemmler was of the view that Fortino took too much time
in the process , thereby causing an undue expense to the
Company. Fortino denied this, but was more upset because
Stemmler had assigned another driver to a run to Rome,
New York, to which Fortino claimed he was entitled.
Stemmler denied Fortino was entitled to the Rome run,
claiming that it was necessary , in any event, to assign
another driver to that run in view of Fortino's lateness in
returning from the G .E. job . Stemmler noted both incidents
in a letter which he wrote to Fortino on December 19,
which contained the reasons for Stemniler's decision to
discipline Fortino.5
On December 19, an incident arose in which Fortino
questioned the right of the Company to schedule a run to
Central Square, New York, because it was outside of the
Company's operating authority . Stemmler, in his testimony,
denied that the Central Square run was outside the
Company's operating authority, noting that Fortino and his
brother had made 'the run on several occasions as long as
the brother was driving .6 Stemmler further testified (which
testimony is corroborated in part by employee Dwayne
Jewett) to the effect that Fortino said on that occasion that
"if he [Fortion] isn't going to take it, nobody is going to
take it." Stemmler included this incident in his December
19 letter to Fortino , and again accused Fortino of "interfer-
ing with the operation of the terminal and the right of
management to make decisions on the operation of the
terminal."
Stemmler notified Fortino on December 22 of his
decision to discharge the latter . Fortino then contacted
Thomas Hall, president of the Union , and both men
proceeded to the Respondent's terminal to discuss the
matter with Stemmler.
The conversation among the three men centered around
the above-described incidents and the seeming inability of
Stemmler and Fortino to resolve such incidents short of
"shouting matches." 7 Hall recalled particularly the incident
wherein Fortino suggested that the Company was placing
reluctance to resort to the grievance procedure to resolve these allegations,
and because it was uncertain whether the arbitration panel would have
authority to consider such allegations.
S See G C. Exh. 2. Stemmler referred to Fortino's conduct as being a
criticism of management's decision to assign the Rome run to another driver,
and stated that it constituted "interference with management's right to
operate the terminal and make management decisions."
6 The record contains an order of the Federal highway administrator,
dated November 21, 1974, to the effect that Matthew Fortino was barred
from "driving a commercial motor vehicle and the transportation of property
in interstate commerce outside of the commercial zone and in the transporta-
tion of hazardous materials anywhere ... " (Reap . Exh. I.)
7 Testimony of Hall.
8 Testimony of Hall as corroborated by Fortino. Stemmler denied making
such a statement , saying that he only told the two men that he was "manager
employees in jeopardy by dispatching them into an area
where the Company lacked operating authority. According
to Hall, Stemmler took the position that Fortino was
infringing on management 's rights and that Fortino did not
have a right to voice an opinion on that subject. The
conference ended upon an agreement to reinstate Fortino
without backpay . Hall further requested that no warning
notice be issued to Fortino. However , according to Hall's
testimony , Stemmler declined to agree to that stipulation
since "when Matthew Fortino had warning letters in his
personnel file, under the terms of the collective -bargaining
agreement, it makes him open to loss of pay or discharge
after the warning letter had been issued ... [as ] long as the
warning letter was in Mr . Fortino's personnel filed, he
seemed to be a lot less agressive in his performance of
duties as union steward." s
C. The February Events
The record reflects that on or about February 10
Stemmler determined again to terminate Fortino based
upon a series of events which Stemmler summarized in a
letter to Fortino bearing the date February 10, as follows:
February 10, 1976
Mr. Matthew Fortino
Herman Road
Syracuse, N. Y. 13209
Dear Mr. Fortino:
On Monday, February 9, 1976, you engaged in criticism
of terminal operations concerning the make up of
certain peddle runs and local city operations, specifical-
ly the selection of what freight would go on the various
runs . Once again this is interference with the operation
of the terminal and the right of management to make
decisions.
At the end of the day you criticized the operation
manager for permitting three union men to punch out at
their normal 4 P.M. leaving time, while you remained
with another union man to load interline on overtime.
Since overtime is premium pay and is offered to Senior
men first your criticism was unwarranted and again
interfered with the operation.
You further engaged in a deliberate slowdown while
performing your duties on overtime.
of Johnson Motor Lines, and as long as Matthew Fortino confined himself to
being a driver and union steward , we have no problem . But, if he begins to
interfere with the managing operation , and gets into these series of episodes
that he does from time to time , then he is going to receive letters of warning,
or discharge as the severity of the case may be."
The credibility issue here has been a difficult one to resolve since I am
convinced that during the conversation each participant , being quite
articulate, made many statements the exact nature of which may not have
been recalled 6 or 7 months after the incident . Under all circumstances,
including the generally favorable impression which Hall and Fortino made
upon me on the witness stand, I am disinclined to believe that they fabricated
the statement attributed to Stemmler . Accordingly, I do not credit
Stemmler's dental , and find that the statement testified to by Hall, as
corroborated by Fortino, was made substantially as he testified.
JOHNSON MOTOR LINES, INC. 395
You further then filed trivial grievances against the
company in an attempt to harass the company and
interfere with our managerial rights.
On December 23rd, 1975, you were advised, in writing,
that you had been issued a final letter of warning and
that any further violations would result in your immedi-
ate discharge.
This letter is your formal notice of discharge from
Johnson Motor Lines, Inc.
Yours truly,
/s/ W.G. Stemmler
Terminal Director
With reference to the incident referred in the first
paragraph of the above letter, Fortino testified that several
of the truckdrivers came to him that morning to protest the
freight assignments made to them that day .9 The drivers
apparently complained to Fortino that freight which was,
for example, assigned to a northerly direction was mistak-
enly included in assignment to a driver who had selected a
western direction. When Fortino brought this matter to
Stemmler's attention, the latter became quite angry and
told Fortino to "get out of there and load my freight, and
do my job." 10
With respect to the incident contained in the second
paragraph of the February 10 letter, Fortino testified that at
the end of the day there was some overtime work to be done
loading a truck, and that since there were only two
truckdrivers (Fortino and his brother) left at the terminal,
the operations manager assigned them to do the work,
although Fortino did not desire it. James Andrews, the
operations manager, a witness for Respondent, testified
that another driver, Dwayne Jewett, was present part of the
time and at no time while Jewett was there did Fortino ask
to be relieved of the assignment . In any event, Fortino and
his brother performed the overtime work. While there,
another piece of freight came in which was interlined with
another company. Fortino was of the opinion that this
particular piece of freight should have been delivered by the
Respondent rather than interlined. Accordingly, at the
conclusion of the day, he complained to the operations
manager concerning the assignment of overtime as well as
the alleged wrongful interlining of freight. Subsequently,
Fortino filed two grievances concerning the aforesaid
matters.)"
9 It appears that the procedure at Respondent 's terminal is for the
terminal mansger, at the commencement of the workday , to make assign-
ments for freight deliver to the different geographical areas of the city. The
drivers then bid upon such selections based upon their respective seniority.
10 Testimony of Fortino . Stemmler testified that , on the day in question,
Fortino indicated to him that drivers were picking or selecting at their own
choosing the freight to go out on certain runs, and that if "they could do it
then he could do it ." Stemmler indicated that he was unaware of this but that
if it was happening he would put a stop to it. In his testimony , Stenunler did
not deny the statements attributed to him by Fortino, nor did he appear to be
particularly critical of Fortino at the time for bringing the matter to his
attention . However, he apparently viewed it significantly serious to include
D. The Aftermath of the February 10 Discharge
According to Stemmler's testimony, the matter of Forti-
no's discharge was taken up between Union President Hall
and Gene Henderson, vice president of Respondent in
charge of labor relations. The result of that negotiation was
that the discharge of Fortino was converted to a 2-day
suspension without prejudice to Fortino's right to grieve
concerning the matter. Fortino did, in fact, file a grievance
which was heard in the regular course of the grievance
procedure on May 5, 1976. The minutes of the joint local
grievance committee state the decision of that body as
follows:
DECISION: Based on the facts and evidence as presented
in this case the employee is to be reimbursed for the
two-day's pay. The employee is instructed by this
committee to comply with instructions issued by the
company and should the steward disagree with such
instructions, any discussion of the matter should take
place at a mutually agreed upon time between the
steward and the terminal manager.12
II. ANALYSIS AND CONCLUDING FINDINGS
It is by now well established that conduct by an employer
which interferes with, restrains, and coerces an employee in
the legitimate exercise of his right to police a collective-
bargaining agreement constitutes a violation of Section
8(a)(1) of the Act.13 Of course, this protection to the
employee does not affect his obligation to either perform
the duties assigned to him in a competent and efficient
manner, nor does it broaden his right to complain to
management concerning matters which are not properly
within the scope of his duties to protect the rights of the
employees in the unit covered by the collective-bargaining
agreement.
The evidence in this case, as reflected by the December
19 and February 10 letters, indicates that Stemmler failed
to distinguish between these principles in determining to
discipline Fortino. For example, Stemmler equally criti-
cized Fortino for his failure to properly and expeditiously
complete the General Electric job (which, if any criticism
was justified, would appear to be based purely upon a
deficiency on Fortino's part as an employee), with his
"criticism" of management's decisions to make assignments
based upon seniority, or the filing of grievances based upon
Fortino's opinion that management was violating the
contract in interlining freight.14
Accordingly, I find that there is ample evidence in the
record to support the conclusion that at least part of the
the incident as a reason foi his decision to terminate Fortino in the February
10 letter.
11 These are the grievances referred to in par. 4 of the February 10 letter,
above cited. Stemmler also considered , based upon the time consumed in
unloading the freight during the overtime period, that Fortino had engaged
in a "deliberate slowdown," as referred to in the third paragraph of the said
letter.
12 See Resp. Exh. 2.
13 Merlyn Bunney, et at, d/b /a Bunney Bros. Construction Company, 139
NLRB 1516(1962).
14 It is well established that the employee does not have to be "right" in
his interpretation of a collective-bargauung agreement . Rather, the critical
question is whether he was acting in good faith on behalf of himself and his
(Continued)
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivation for Stemmler's threats to discipline Fortino was
because of his activities in policing the collective-bargain-
ing agreement, and in the raising of complaints and filing of
grievances pursuant thereto. Additionally, I find that there
is insufficient evidence in the record to establish that, by his
acts and conduct, Fortino forfeited or waived his protection
in pursuing such activities.15 Therefore, I find that the
Respondent has, in violation of Section 8(aXl) of the Act,
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(aXl) of the Act.16
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with the interstate operations of
Respondent, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening its employees with discharge or other
reprisals if they engage in concerted activity for their
mutual aid or protection, the Respondent has interfered
with , restrained, and coerced its employees in the exercise
of rights guaranteed them by Section 7 of the Act, thereby
engaging in unfair labor practices proscribed by Section
8(aXl) of the Act.
fellow employees for rights he thought they all were entitled to. See Ben Pekin
Corporation, 181 NLRB 1025 ( 1970). See also Mushroom Transportation Co.
Inc., 142 NLRB 1150,1157-58 (1963).
15 Cr. Northern Motor Carriers, Inc. and Fort Edward Express Co., 130
NLRB 261 (1%1), where the Board dismissed a complaint because the
individual involved "had deliberately harassed his prior employer with the
filing of complaints."
16 In the overall consideration of the evidence in this case , it should also
be noted that the record reflects what appears to be a well-established
satisfactory bargaining relationship between the Respondent and the Union
which has deteriorated to a large extent at the East Syracuse terminal, to the
detriment of both parties. The deterioration appears to be caused in large
part by the rather dominant personalities of the two principal participants,
and the foregoing findings should not be construed as a determination that
all conduct on one side is all "wrong" and the other is all "right." Rather, it
would seem that, in the interest of future harmonious relations at the
terminal , the directions of the Joint Local Grievance Committee, above
cited, should be adhered to by both the steward and the terminal manager.
17 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.
18 In the event the Board 's Order is enforced by a Judgment of the 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."
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
certain unfair labor practices violative of Section 8(a)(l) of
the Act, I shall recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
The Respondent, Johnson Motor Lines, Inc., East
Syracuse, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge or other
reprisals if they engage in concerted activities for their own
mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Remove and expunge from its personnel records or
reports, all warning letters or other documents which refer
to threats of discharge or other disciplinary action against
Matthew Fortino for engaging in concerted activities
protected by Section 7 of the Act.
(b) Post at its East Syracuse , New York, terminal copies
of the attached notice marked "Appendix." 18 Copies of
said notice, on forms provided by the Regional Director for
Region 3, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order what steps the
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 remove and expunge from our personnel
records all warning letters or documents issued to
Matthew Fortino for engaging in concerted activities
protected by Section 7 of the National Labor Relations
Act, as amended.
JOHNSON MOTOR LINES, INC. 397
WE WILL NOT threaten Matthew Fortino with dis- rights guaranteed in Section 7 of the National Labor
charge for other reprisals for engaging in concerted Relations Act, as amended.
activities for his mutual aid or protection.
WE WILL NOT in any like or related manner interfere JOHNSON MOTOR LINES,
with, restrain, or coerce our employees in the exercise of INC.