Maietta Trucking Co.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 794 (N.L.R.B. 1971)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dennis Maietta & Frank Maietta , a Partnership d/b/a
Maietta Trucking Company and John L . Carter.
Case 5-CA-5121
FINDINGS AND CONCLUSIONS
1. JURISDICTION
December 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 16, 1971, Trial Examiner Charles W.
Schneider issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. The Respondent
filed a brief in response to the General Counsel's
exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided io affirm the Trial Examiner's
rulings, findings, and conclusions.
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 Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Trial Examiner: This case was
tried before me in Baltimore, Maryland, on June 30, 1971,
upon an unfair labor practice charge filed on April 5, 1971,
by John Carter against Maietta Trucking Company, the
Respondent, and upon a complaint issued by the General
Counsel on May 18, 1971. The Complaint alleged in
substance that Carter was discharged by the Respondent on
or about April 2, 1971, because he engaged in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and thereafter was refused
reinstatement, in violation of Sections 8(a)(1) and 2(6) and
(7) of the National Labor Relations Act. (29 U.S.C. 158.)
The Respondent duly filed an answer on June 10, 1971,
denying the commission of unfair labor practices.
Upon the entire record, including my observation of the
witnesses, I make the following further:
Maietta Trucking Company is, and at all times material
herein, has been, a partnership having its office and place of
business in State Line, Pennsylvania, with a truck lot
located in North East, Maryland.
Respondent is engaged in the business of hauling sand
and gravel and other commodities in and across state lines
of the Commonwealth of Pennsylvania and other states. In
the course and conduct of its business operations as
described above, during the preceding 12 months, a
representative period, Respondent derived in excess of
$50,000 for its services from interstate hauling operations
which constitute a link in the chain of interstate commerce.
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 ALLEGED UNFAIR LABOR PRACTICE
The General Counsel contends that Carter was dis-
charged by the Respondent because while acting as
representative or spokesman for other employees of the
Respondent, he requested a wage increase. The Respon-
dent, admitting that Carter asked for a raise, denies that he
was acting as a representative of other employees and
asserts that he spoke only for himself. The Respondent also
admits that Carter's employment was terminated, but
contends that he was laid off for economic reasons
unrelated to any concerted activity.
I have concluded that the evidence does not establish that
Carter was acting in a representative capacity, or on behalf
of other employees, or in connection with their activities, at
the time of the incident which resulted in his termination.
No claimed right to a particular wage under law or a
collective-bargaining contract is presented, nor is the
situation one involving presentation of a grievance to a
bargaining agent.' Consequently Carter was not engaged in
protected concerted activities and thus his termination was
not in violation of the Act, even if in retaliation for his
requesting a wage increase. This conclusion disposes of the
case. It is therefore unnecessary to determine the merits of
the Respondent's affirmative defense.
The operative facts are as follows.
Carter was a truckdriver for the Respondent on a
highway construction project near North East, Maryland.
The Respondent's office and headquarters are at State
Line, Pennsylvania, approximately 100 miles from North
East, Maryland. The North East operations are conducted
out of a truck lot at North East and are supervised by a
foreman or superintendent named Paul Beaver.
The incident which resulted in the termination of Carter
was described as follows in Carter's testimony: On Friday,
April 2, 1971, a payday, at the conclusion of the day's work,
Carter and the other truckdrivers (five in number)
employed by the Respondent on the North East project on
that day were seated in a car on the truck lot at North East,
waiting for Frank Maietta and Dennis Maietta to bung
i Questions involved in cases such as Bunney Bros Construction Co., 139 163 NLRB 72, which are consequently inapplicable here
NLRB 1516, Circle Contracting Co, 143 NLRB 1330, Rotax Metals, Inc,
194 NLRB No. 136
MAIETTA TRUCKING CO. 795
their paychecks from State Line. Several weeks before,
Carter and some others of the drivers had been told by
Beaver that they would get a wage increase. Subsequently
they had asked Beaver about it and Beaver had replied that
he would "get to it." While waiting for the Maiettas on this
Friday, the drivers decided to ask for a raise of a quarter
and designated Carter to ask the Maiettas for it. When the
Maiettas arrived Carter spoke to Frank Maietta, in the
presence of the other drivers, about a raise. Apparently
Dennis Maietta was not a witness to this conversation.2
Carter's testimony as to what was said is as follows:
I said, "The boys are Wondering when you are going to
give us a raise," and he said to me, "Where were you
working before you came here?" I told him nowhere,
and then he said, "Well, you got a raise."
That seemed to be a favorite phrase of his. He used it
quite often. And then I heard him, overheard him say to
Paul Beaver, and he told Paul Beaver that if anyone else
was not suited with their wages or had any other
complaints, that they could get up the road. They didn't
need them.
Carter's testimony indicates that this was the end of the
discussion, that he was then given his paycheck, went back
to the car, and waited for the Maiettas to leave. Carter
further testified that he was then told by Foreman Beaver,
in the presence of Gary Carpenter (another driver) and out
of earshot of the Maiettas, that he was discharged for going
over Beaver's head about the raise. Carter's testimony in
this respect is as follows:
We approached Paul Beaver, and Paul Beaver turned
around to me, and he jumped on me and he said,
"You're fired. Get out of here. I don't want to see you
around here anymore."
I asked him why, and he said, "You went above my
head." He said, "You know I told you that I'd take care
of the raise." And I tried to talk to him. I tried to tell
him that it wasn't just me-it was everyone who weren't
satisfied with the pay, and he wouldn't hear it. He just
wouldn't hear it.
He told me to get off the lot and not come back
again, and then I left.
On the following Monday Carter returned to the jobsite
and told Foreman Beaver that he had contacted the
National Labor Relations Board in Philadelphia, which
had advised him to ask for his job back. Beaver told Carter
that he did not care who Carter had talked to and that he
should leave the premises. Carter did so. Four other drivers
left with him-according to Carter because they felt that if
they were not going to get a raise there was no further point
in working there. None of the other drivers who were
identified by Carter as being present at these incidents-the
discussion in the car, Carter's confrontation with Frank
Maietta, and his two conversations with Foreman
Beaver-and none of whom are presently employed by the
Respondent testified. Nor did Beaver.
Frank Maietta denied Carter's version of their conversa-
tion. Frank Maietta's testimony is that as they arrived at the
2 Though he arrived at the lot with Frank Maietta, Dennis Maietta is
not identified in the evidence as being present during this conversation.
Dennis' testimony is that after arriving at the lot he devoted himself to
other matters , and had no knowledge of Carter 's request for a raise.
3 The testimony does not specifically reveal whether Beaver was in a
project with the paychecks Carter got out of a car in which
there were a number of other drivers, came up to Frank
Maietta and said, "Hey, I want more money." Frank
Maietta's further testimony is that he told Carter that he
could not give him any more money, that the contract was
for a fixed sum without any provision for price increases
due to wage changes, and that therefore the wage structure
would not be changed during the term of the contract.
Maietta denied that Carter indicated that he was a
spokesman for any other employees or that he gave any
indication that he was acting for anyone but himself.
So far as the evidence discloses the only individuals in a
position to give testimony concerning whether Carter was
designated by the other drivers as a spokesman for them are
Carter and those drivers. With respect to what was said
between Carter and Frank Maietta, the only observers were
apparently Carter, Frank Maietta, the other drivers, and
(possibly) Foreman Beaver.3
There is thus clear and crucial conflict between the
testimony of Carter and that of Frank Maietta. Only if
Carter's testimony is accepted, and Frank Maietta's
rejected, is there a basis for concluding that Carter was
engaged in protected concerted activities-a necessary
prerequisite for a finding of unfair labor practice. Where
then does the truth lie?
Perhaps Carter himself has inadvertently supplied the
answer. For his testimony is susceptible of an interpretation
that corroborates Frank Maietta's. Thus, according to
Carter, Frank Maietta's response to Carter's request for a
raise was that Carter had already got one. In addition,
according to Carter, Maietta told Foreman Beaver that if
anyone else was not satisfied with his wages, they could
"get up the road," the Respondent did not need them. This
language appears to me to be most consistent with an
understanding on the part of Maietta that Carter was
asking for himself, not for the others. If Carter spoke for
everyone, Maietta's reference to Carter having got a raise
was an irrelevancy, and the statement to Beaver should
logically have been made to Carter. In any event, the matter
is sufficiently equivocal that I am unable on this record to
accept the testimony of Carter as to this conversation in
preference to that of Frank Maietta's. With the possible
exception of Beaver, the Respondent has produced all the
evidence available to it bearing on the issue. The General
Counsel, however, has not. For there is more evidence
evidently available to the General Counsel-the testimony
of the five other drivers who assertedly designated Carter as
spokesman and who overheard what he said to Frank
Maietta. If Carter is correct , these individuals would
corroborate his testimony. None are presently working for
the Respondent-and hence their testimony could not be
influenced by such a relationship, their interests are in
apparent harmony with those of Carter and the General
Counsel, and opposed to the interests of the Respondent.
The burden to present the evidence which may establish the
position to overhear the conversation between Carter and Frank Maietta
However , I interpret Carter's testimony , quoted above, to the effect that he
"overheard" Frank Maietta speak to Beaver , as suggesting that Beaver was
somewhere in the vicinity when Carter spoke to Maietta.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice is on the General Counsel and not on
the Respondent or the Trial Examiner.4 It is not asserted
that the witnesses are unavailable, and the ' only- explanation
for not securing their evidence is that it was not deemed
necessary to establish the General Counsel's case.
I am thus unable, on the existing record, to accept
Carter's version in preference to Frank Maietta's. The
General Counsel's case therefore fails for want of adequate
credible proof that Carter was engaged in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as alleged in the complaint. The
complaint must therefore be dismissed.
In these circumstances, there is no occasion to pass upon
the merits of the Respondent's affirmative defense, to the
effect that Carter was laid off because the truck which he
drove was transferred to a project at Hagerstown,
Maryland, some 100 miles away, and that there was
consequently no further need for his services. It is therefore
also unnecessary to determine whether-as the Respondent
4 See Evans Packing Co, 190 NLRB No. 70
5 Frank Maietta testified that after his conversation with Carter on
April 2, he instructed Foreman Beaver to lay off Carter because of the
transfer of the truck It would appear from Carter's testimony that Beaver
did not follow his instructions. Accepting Carter's testimony in this respect
for lack of a denial by Beaver, the latter's stated reasons for the discharge
do not establish that Carter's activity was concerted rather than individual.
asserts and the General Counsel denies-Carter was
selected as the individual to be laid off because of
dissatisfaction'on the part of the Maiettas with his driving
record.5
Upon the basis of the foregoing findings of fact and
conclusions, and the entire record in the case, I make the
following:
CONCLUSION OF LAW
It has not been established that the Respondent
terminated the employment of John L. Carter because he
engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection. I therefore
issue the following recommended
ORDERS
The complaint is dismissed in its entirety.
6 In the event no exceptions are filed as provided in Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herem shall, as provided in
Section 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.