McLean Trucking Co.

National Labor Relations Board - Board Decisions

Aug 29, 1977

231 N.L.R.B. 706 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLean Trucking Company and Don F. Nichols. Case
6-CA-9393
August 29, 1977
DECISION AND ORDER
Charles E. Mise, about the suspension on June 7. 1976, 5 days before the
Charging Party was discharged.
3 For the reasons stated in her separate concurrence in General American
Transportation Corporation, 228 NLRB 808 (1977). Member Murphy agrees
that this case is inappropriate for deferral to the parties' contractual
grievance-arbitration procedure.
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7*-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On March 22, 1977, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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,2 and
conclusions3 of the Administrative Law Judge, to
modify his remedy, 4 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, McLean Truck-
ing Company, West Middlesex, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
i Respondent has requested oral argument. This request is hereby denied
because the record, exceptions, and brief adequately present the issues and
the positions of the parties.
2 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
credibility 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.
We find no merit in Respondent's assertion that the record does not show
its knowledge of the Charging Party's concerted activity. Our basis for
finding knowledge is predicated upon the fact that a representative of the
Union. to which the Charging Party belongs and to whom he went for
advice following his suspension, spoke to Respondent's terminal manager,
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at West Middlesex, Pennsylvania, on October 20
and November 1, 1976, based on charges filed July 2, 1976,
and amended on August 4 and 24, 1976, and a complaint
issued on August 30, 1976, alleging that Respondent
violated Section 8(a) I), (3), and (4) of the Act. The
General Counsel and Respondent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
McLean Trucking Company is a North Carolina corpo-
ration engaged as a common carrier in furnishing interstate
motor freight transportation services between several
States of the United States. Among its terminals in various
States is one at West Middlesex, Pennsylvania, which is
involved in this proceeding. During the year prior to the
issuance of the complaint herein, Respondent derived gross
income of more than $50,000 from its freight transporta-
tion services between several States. I find, as Respondent
admits, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 261, is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The complaint alleges that Respondent discriminatorily
discharged Don Nichols, the Charging Party, in violation
of Section 8(aX3) and (1) of the Act, because he sought
union representation in connection with a 5-day suspen-
231 NLRB No. 108
706
McLEAN TRUCKING CO.
sion he had received; that Respondent violated Section
8(a)(1) of the Act by interrogating employees "concerning
their union membership activities," by threatening employ-
ees with discharge "if they failed to persuade other
employees from engaging in union and/or protected
concerted activity," and by informing employees that the
basis for calling them in as casuals "had been changed
because a fellow employee filed charges against Respon-
dent with the Board"; and that Respondent violated
Section 8(a)(4) and (1) of the Act by changing the call-in
procedure because of the filing of charges with the Board
and other concerted activities engaged in by the employees.
This case turns in large part on the resolution of the
witnesses' credibility. Basically, the conflicts are between
Respondent's superintendent, George Kern, and eight
different General Counsel witnesses, three still employed
by Respondent at the time of the hearing.' The circum-
stances of Nichols' discharge, the facts surrounding the
downgrading on the list of casuals of a group of
Westminster College student and several residents of New
Wilmington. Respondent's (essentially Superintendent
Kern's) explanation for these actions, and the demeanor of
the witnesses, combine to impel me to credit the General
Counsel's witnesses. I go into detail below.
Facts and Discussion
On June 5, 1976, Superintendent Kern suspended three
employees, Thomas Hartwell, Norris Winters, and Don
Nichols, for 5 days. All three had failed to recount their
orders before loading them on the truck.2 When Nichols
called Kern a week later to check the duration of his
suspension, Kern told him he was terminated. According to
Nichols, the following conversation occurred: Kern said,
"Well, I didn't work on June 6th, but I understand you
didn't get your weight back up, and so you've been fired."
Nichols responded, "But George, I worked hard," and
pleaded for his job, telling Kern he was a good worker and
had always worked hard for him, tried to come out
whenever he needed somebody extra, and "called all the
times and stuff." Kern replied that it did not matter, and
talking was not going to do much good anymore. At the
close of the conversation, Kern said, "Oh, by the way, Don,
I heard a nasty rumor that you went to the Union about
being laid off for five days." Nichols replied that he had
done so, and Kern said, "Why did you do that?" When
Nichols said, "Because I felt I had been dealt with
unfairly," Kern replied, "Well, that was stupid. Don't you
know they can't do anything for you?" When Nichols said,
"Well, I didn't think it could hurt anything," Kern
repeated, "Well, talking isn't going to do any more good I
guess," and the conversation ended. Kern denied that any
such remarks were made by him.
Neither of the other two suspended employees, Hartwell
and Winters, was discharged, both returning to work right
I Shaffer, Erwin. and Ramm, the latter reemployed several weeks before
the instant hearing began.
2 Kern had deliberately removed one item from the cart of each
employees. There was nothing invidious about his doing this: it was part of
company policy . and done to check whether the employees were checking
their loads.
:' According to employee Steven Long, Nichols' "fists were clenched. He
after their 5-day suspensions. Kern's explanation for
singling Nichols out for discharge, while retaining the other
two employees, was that "Upon review of their records and
based on Mr. Nichols' attitude, sometime that following
week, I made the decision not to call him [Nichols] for
work anymore." With respect to Hartwell, who had an
"admittedly bad work record," Kern testified he called him
back because, on the day of the suspension, "the man
indicated to me that he had admittedly had not done his
job and indicated to me that he had several other problems,
including a discharge and reinstatement. He told me and
convinced me at that time, that he was sincere, he wanted
to do his job and that he asked for another chance, and this
is what I gave him, based on his attitude in that meeting
and his commitment to do his job." With respect to
Winters, Kern testified that he "had a much better work
record than Mr. Nichols . .. less errors, better attitude."
He described the difference in attitude between Nichols
and the other two suspended employees as being that
Nichols "would take offense when an error was brought to
his attention." 3
As, on June 5, there was no suggestion by Kern that the
5-day suspensions might have been a prelude to discharg-
ing the employees involved, it is difficult to see what "other
chance" Hartwell might have been seeking at that time.
Nichols' testimony that he pleaded with Kern for his job
after being told in the June 12 telephone conversation that
he had been fired makes sense; Kern's testimony that
Hartwell asked for another chance when no firing was
being contemplated does not.
Respondent adduced testimony from Kern, supported by
documentary evidence, of previous "errors" by Nichols.
One, on February 21, 1976, indicates "Improper stacking
- corrected on spot." A second, on April 25, 1976, also
indicates "Improper stacking - corrected on spot." The
final one other than the one leading to the June 5, 1976, 5-
day suspension was on October 23, 1975, and indicates
"man left remainder on dock with bill in cart," and
contains a notation "Teach this man what a Free Astray is!
Found this bill in a cart with ten cartons. Other 16 were
already coded on a trailer." 4 The four bills (delivery
receipts), including the one on June 5, were the only ones
presented by Respondent out of the literally thousands that
Nichols handled during his tenure with the Company.
Kern in fact responded, "That's what that indicates," to the
question "During the course of Mr. Nichols' employment,
are these the only four freight bills that apparently have
some correction marked on?" Thus the record shows very
few errors by Nichols, and scarcely very much opportunity
for him to have demonstrated a propensity for taking
offense at criticism. Nor did Kern even attempt to
was stomping around, his face was red, and he just generally looked like
he'd like to punch George [Kem I" after he emerged from Kern's office from
having been suspended. Nichols did not recall whether his fists were
clenched when he came out of Kem's office; he did state that he was very
angry.
4 Nichols testified that he was aware of only one "improper stacking"
incident, and that nothing was ever said to him about the "free astray."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delineate the nature of Nichols' alleged bad attitude in this
respect.5
In sum, even looked at in isolation, Kern's explanation
for discharging Nichols following the 5-day suspension
lacked persuasiveness, and viewed against the lack of any
discharge of Hartwell or Winters, the former with a much
worse employment record than Nichols, and the latter with
a much worse "attitude" at the time of the June 5
suspensions, the discharge seems to have been disparately
imposed. It would appear, in short, that some other
explanation for the discharge existed, and that explanation
is found in Kern's statements to Nichols, whose testimony
I credit, concerning his having gone to the Union about the
suspension. The subsequent events in this case confirm that
conclusion.
Thus, within the next few weeks, according to witnesses
Ramm and Shaffer, both still employed by Respondent,
Kern sought to enlist their aid in getting Nichols "off the
Company's back," by using any means at their disposal to
dissuade Nichols from pressing charges against the Com-
pany with the National Labor Relations Board. When
Ramm asked Kern what the matter had to do with him,
Kern replied, "I really don't want the casuals to lose their
jobs." When Kern sometime later asked Ramm whether he
had talked to Nichols, and Ramm said he had not, asking
what the situation was between the casuals and McLean's,
Kern replied, "It's getting pretty hairy. The Labor
Relations Board is getting on our backs, and we're not
going to put up with it."
The conversation between Kern and Shaffer followed
similar lines. When Kern told Shaffer "we got to get
Nichols off the back of the National Labor Relations
Board so they get off the back of McLean's," and Shaffer
asked "What do you want me to do, beat him up?" Kern
replied, "I don't care what you do. I don't care if you
threaten him by yourself or if you get other people to help
you. I don't care if you beat him over the head with a
baseball bat. You have to stop him from going to the
National Labor Relations Board and keep him from
causing any trouble out here. If you don't, it's just going to
make it tough on all you guys. Rather than fight it, we're
just going to drop all the casuals. You will all be fired plus
go through the hassle with Nichols." Sometime later, Kern
told Shaffer "You are going to lose your job if you don't
get on Nichols." 6
Kern denied all of the testimony of Ramm and Shaffer
concerning these conversations. Here, too, what in fact
later occurred tends to confirm the testimony of the
: As noted, Nichols only recalls being spoken to about one of the threeerrors occurring prior to June 5, and there is no indication in his or Kern'stestimony that there was any problem with Nichols' attitude on thatoccasion. Indeed, Winters testified that he gave Kern "a hard time about it,"that he "kept arguing, you know, trying to get off of this punishment that hewas giving me... . He told me if I didn't leave the office, he was going tofire me. I still didn't go and I kept asking him why he was giving me the five
days off, I thought it was unfair .... I kept arguing with him. He told methat he was going to fire me three times before I left the office." All this wasin reference to the same June 5 incident for which Nichols. Hartwell, and
Winters received the 5-day suspensions. In terms of"attitude," and there isno denial by Kern of Winters' testimony, Nichols' attitude, even as testified
to by Kern, compares quite favorably to that of Winters.
" The General Counsel also refers to a conversation between employeeCesari and Terminal Manager Mise as indicating a promise of benefit toCesari if he helped to resolve the problem with Nichols. I am not convinced
General Counsel's witnesses. For, on July 17, the Company
changed the order of listing of its casual employees. Up
until that time, the casuals had been called in based on the
order of listing on a casual list, kept according to seniority
with the Company. 7 Number one was given the most senior
employee, and so on down the line. On July 17, the list was
changed drastically. All the casuals who were students at
Westminster College, located in New Wilmington, Penn-
sylvania, were downgraded, as well as two casuals who did
not go to Westminster (one of whom had the previous
year), but lived in New Wilmington, Nichols was a
Westminster College student.8 On August 4, pursuant to an
agreement between the Company and the Union, the lists
were changed back to reflect order of seniority with the
Company.
According to Mise, the change of July 17 was occasioned
by a severe drop in the volume of work to be done at the
West Middlesex terminal, so that the Company wanted to
be able to use its best employees, at a time when not all
employees on the list would be called in. The Company
had never before used a drastic change in the seniority
order of its casuals to cope with a drop in the volume of
work. Furthermore, the weeks of July 4 and July 11 were
also very light weeks, yet the Company made no such
changes. But even assuming Mise's reasons for utilizing anew method were the actual motivation, Kern, not Mise,
made the actual changes, and Kern failed even to attempt
to support his generalized testimony that the lowering onthe list of all the Westminster College students and New
Wilmington residents on the list was based on their
productivity. No figures were adduced, no company
records presented, and Kern did not even testify to relative
productivity of the lowered employees vis-a-vis those who
were not lowered, but rather moved up as others moved
down.
Again, an explanation must be found elsewhere, and in
this instance it lies in the testimony, which I credit,
discrediting Kern's denials of employees Shaffer, Winters,
Ramm, Forrester, Erwin, Long, and Hartwell. Without
detailing all the testimony, the general gist of it was that
Kern told employees who came to work, discovered their
numbers had been changed to their detriment, and asked
why, that it was "because of Nichols" (Shaffer), because
"Westminster students weren't looked upon too favorably
around here anymore" (Winters), because "the casuals of
the Westminster College and the Wilmington area weren't
too favorably liked around the area of McLean's due to the
hassle between Don and McLean Trucking" (Ramm),
that Mise was at all involved (there is no question but that Kern alone made
the determination to discharge Nichols), and do not, therefore, draw theinference that Mise was referring to Nichols a reference never explicit in the
conversation as reported by Cesari.
7 Except for a period when relatives of regular company employees were
given preference over all other casuals. This practice was changed, and all
other casuals moved up on the list, in April 1976. Other than this, the onlychanges in the list before July 17, 1976, consisted of moving employees up
when others left the Company. There is testimony by Terminal Manager
Mise that a few individuals were moved up or down based on their being
very poor or particularly good performers in the past No documentation
was presented on this.
8 Among the changes were the following: Winters, from 14 to 66;
Shaffer, from 33 to 71; Ramm, from 25 to 74; Forrester, from 17 to 68;
Erwin. from 13 to 65; Long, from II to 78; Ives, from 21 to "in the 70's."
708
McLEAN TRUCKING CO.
because "Westminster has fallen into disfavor" (Forrester),
and because "You are a Westminster student, aren't you?
That is why." (Hartwell).
Kern's antipathy toward Nichols, as demonstrated by his
treatment of Nichols' fellow students and what he told
them, also serves to support the conclusion that Nichols'
discharge was unlawfully motivated. Although Kern could
have been upset at Nichols' challenging his discharge by
filing charges with the Board, and indignant at being
"falsely accused," his unsuccessful attempts to enlist the
aid of other casuals to dissuade Nichols, and his taking
reprisals against that group (the "Westminster" group)
thereafter, is much more demonstrative of antipathy
toward union and concerted activities by employees than
of "righteous indignation."
For all these reasons, I conclude that Respondent
violated Section 8(aX1) and (3) of the Act by discharging
Nichols, Section 8(a)(1) and (4) by lowering the position of
the casuals from Westminster College and the New
Wilmington area on the seniority list, and Section 8(a)(1) of
the Act by threatening employees if they did not assist him
in persuading Nichols not to pursue his charges with the
Board, and by interrogating Nichols concerning his
attempt to enlist the Union's aid in regard to his
suspension.
The final allegation of the complaint concerns an alleged
reprimand of employee Knight for seeking to have a union
committeeman accompany him in connection with a
possible disciplinary hearing. The testimony does not show
any such reprimand. Rather, according to Knight, he was
told that casuals "are not represented by a union," and that
a casual "has no benefits whatsoever." I therefore shall
dismiss this allegation of the complaint, as only a statement
of the Company's view that the casuals had no union
representation, a view shared at least in part by Union
Business Agent Listoria, rather than a reprimand, was
involved.
Respondent's final contention is that all the issues in this
case are "appropriate for deferral under Collyer Insulated
Wire, 192 NLRB 150 (1971)." As the thrust of the
violations alleged, and found herein, consist of reprisals for
going to the Union, in Nichols' case, and for Nichols
having gone to the Board, together with the failure to other
employees to dissuade him from doing so, in the case of
employees downgraded in seniority, and further, because
the Company did not even regard the casuals as being
represented by the Union, I do not regard this case as even
remotely appropriate for deferral to the arbitration proce-
dures of the contract between the Company and the Union.
Diversified Industries, 208 NLRB 233 (1974).
CONCLUSIONS OF LAW
1. Respondent, by discriminatorily discharging Don
Nichols, has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
2. Respondent, by changing its call-in procedure
because an employee filed charges against it with the
National Labor Relations Board, has engaged in unfair
" In the event no exceptions are filed as provided in 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.
labor practices within the meaning of Section 8(a)(4) and
(1) of the Act.
3. Respondent, by threatening its employees with
reprisals if they would not persuade other employees to
refrain from filing charges against it, and by interrogating
employees about their union activities, has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. Respondent has not violated the Act in any other
respect.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it offer reinstatement to
Don Nichols, with backpay, computed as provided in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), that it
make whole all employees discriminatorily lowered on its
seniority list for losses suffered between July 17, 1976,
when the discrimination occurred, until August 4, 1976,
when the employees were restored to their proper places on
the list, backpay to be computed as above, and that it take
certain affirmative action in order 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 9
The Respondent, McLean Trucking Company, West
Middlesex, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 261, or any other
labor organization, by discriminatorily discharging, or
otherwise discriminating against, employees in any manner
with regard to their hire and tenure of employment or any
term or condition of employment.
(b) Interrogating its employees concerning union activi-
ties.
(c) Threatening employees with reprisals unless they
persuade other employees from filing charges against it.
(d) Taking reprisals against employees because other
employees have filed charges against it.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Don Nichols immediate and full reinstatement
to his former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights or privileges, and make him whole
as provided for in the section of this decision entitled "The
Remedy."
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.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole all employees from Westminster College
and residents of the New Wilmington, Pennsylvania, area,
who were discriminatorily downgraded on Respondent's
list of casual employees, in the manner described in the
section of this decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examining or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this Order.
(d) Post at its West Middlesex, Pennsylvania, facility
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it 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 insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Decision, what steps the
Respondent has taken to comply herewith.
"I 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."
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
against any employees because of their concerted or
union activities, or because any employees filed charges
with the National Labor Relations Board.
WE WILL NOT interrogate our employees concerning
union activities.
WE WILL NOT threaten our employees with reprisals
if they do not persuade other employees not to file
charges with the National Labor Relations Board
against us.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by the National Labor Relations Act.
WE WILL offer reemployment to Don Nichols, and
WE WILL pay him for any losses suffered as a result of
having discharged him on June 12, 1976.
WE WILL pay all employees who were discriminatori-
ly lowered in seniority on the casual list on July 17,
1976, for any losses they may have suffered between
then and August 4, 1976.
MCLEAN TRUCKING
COMPANY
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