Merrill Transport Co., Inc.

National Labor Relations Board - Board Decisions

May 27, 1976

224 N.L.R.B. 150 (N.L.R.B. 1976)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merrill Transport Co , Inc and Kenneth A Morrison
Case 1-CA-10475
May 27, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On November 11, 1975, Administrative Law Judge
Ivar H Peterson issued his attached Decision in the
above-entitled proceeding finding that Respondent
had not engaged in certain alleged unfair labor prac-
tices and recommending that the complaint be dis-
missed in its entirety Thereafter, the General Coun-
sel filed exceptions and a supporting brief, and
Respondent filed a brief in reply
By Order dated February 6, 1976, the National La-
bor Relations Board remanded the instant proceed-
ing to the Administrative Law Judge for the purpose
of preparing and issuing a Supplemental Decision
setting forth resolutions of the credibility of witnesses
and containing new findings of fact, conclusions of
law, and a recommended Order in light thereof On
March 16, 1976, the Administrative Law Judge is-
sued his Supplemental Decision, attached hereto, in
which he resolved the credibility of witnesses and re-
affirmed his findings of fact, conclusions of law, and
recommended Order as made on November 11, 1975
Thereafter, the General Counsel filed exceptions to
the Administrative Law Judge's Supplemental Deci-
sion and a brief in support of its exceptions, and Re-
spondent filed a brief in reply
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the entire record and
the attached Decision and Supplemental Decision in
light of all of the exceptions and briefs and has de-
cided 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
Act The Administrative Law Judge, however, did -iot resolve this issue
Although Respondent has not raised this issue before us, we note that the
requirements of Sec 10(b) have been satisfied as the record establishes that
the instant charge was filed, and a copy thereof was served on Respondent
on March 3, 1975 a date within 6 months of the alleged unfair labor prac-
tices
DECISION
STATEMENT OF THE CASE
IVAR H PETERSON, Administrative Law Judge This case
was heard in Augusta, Maine, on 4 days commencing Au-
gust 26, 1975, and concluding on August 29, upon the com-
plaint issued by the Acting Regional Director for Region I
on May 9 and amended on June 3, based upon the charge
filed by Kenneth A Morrison, an individual, on March 3,1
alleging that Merrill Transport Co, Inc, herein called the
Respondent, on September 3, 1974, discharged Morrison
and thereafter refused to reinstate him for the reason that
he joined or assisted Oil, Chemical and Atomic Workers
International Union, AFL-CIO, herein called the Union,
or engaged in other protected concerted activities, thereby
violating Section 8(a)(3) and (1) of the Act In its answer,
dated May 14, the Respondent admitted certain jurisdic-
tional allegations and that it had discharged Morrison, but
it alleged that the discharge was for good cause By way of
affirmative defense, the Respondent alleged that issuance
of the complaint "is improper in that the Respondent was
not served with a copy of the charge within six (6) months
from the date of the alleged unfair labor practice in accor-
dance with Section 10(b) of the National Labor Relations
Act"
Upon the entire record in the case, and after considering
the briefs filed with me by counsel on October 14, I make
the following
FINDINGS OF FACT
i The General Counsel 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
The Administrative Law Judge found that the U S Coast Guard has
levied a $50 fine against Respondent for the oil spill at Blake s Marina
whereas the record clearly discloses that this penalty in fact was assessed
against Blake's itself This apparently inadvertent error however, is insuffi-
cient to affect the result of our Decision herein
In his Decision the Administrative Law Judge alluded to an affirmative
defense raised by Respondent in its answer to the complaint whereby it
contended that the finding of a violation was barred by Sec 10(b) of the
I JURISDICTION
The Respondent, a Maine corporation, maintains its
principal office and place of business in the city of Port-
land, Maine, and also maintains five terminals in Maine,
including one in Augusta and three terminals in Vermont,
where it has been engaged in the over-the-road transport of
freight and other materials In addition, the Respondent
performs services in excess of $50,000 per year for enter-
The Union filed a charge on September 19 1974, but it was withdrawn
without prejudice on October 23
224 NLRB No 34
MERRILL TRANSPORT CO
prises located outside the State of Maine which are directly
engaged in interstate commerce The Respondent admits,
and I find, that it is engaged in commerce within the mean-
ing of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act It is further
admitted, and I find, that at all material times the follow-
ing persons occupied the positions indicated opposite their
names and were agents and supervisors of the Respondent
within the meaning of Section 2(11) of the Act
Paul Merrill-President
Richard Davenport-Augusta Terminal Manager
James Mountain-Safety Director
II THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
President Merrill began operations in 1929 with one
truck, since then the Respondent has grown to the point
where it presently employs between 350 and 400 employees
in its transportation business and, as stated above, has a
total of 8 terminals in the States of Maine and Vermont A
principal part of the Respondent's business is the delivery
of oil by tanker truck to various customers Over the years,
the Respondent has experienced a substantial number of
oil spills which have created environmental problems and
involved considerable expense In 1973, both state and
Federal agencies, acting under powers granted them by
legislation, took a variety of actions against the Respon-
dent with respect to oil spills, assessing monetary penalties
against it The Respondent's insurance carrier, in 1973,
canceled its policy because of the spill and accident record
In 1973, the Respondent lost some 30,000 gallons of oil in
Maine and 10,000 gallons in Vermont by reason of spills
The cost of spills for that year in Maine was over $71,000
In January or February 1974 the Respondent issued a driv-
ers' manual which set forth in detail the procedures to be
followed for loading and unloading product and what to
do in the event of a spill Thus, in the case of a spill, the
driver was required to report it immediately to his dis-
patcher or terminal manager, who in turn was required to
report to higher authority The Respondent also sent num-
erous Safe-T-Grams to its drivers discussing various oil
spills and the proper procedures that should be followed
These contained warnings that failure to follow the pre-
scribed procedures would mean immediate discharge
About the middle of 1974, the Respondent's safety direc-
tor, who was primarily responsible for the safety program,
was terminated because of poor performance President
Merrill took a personal interest in the safety program, testi-
fying that he was concerned over the loss of the
Respondent's insurance carrier, the adherence of employ-
ees to company policies and the safety program, as well as
the fact that employees did not seem to bear the dangers
involved in mind As a result of these changes in policy, in
1974 the cost of spills was reduced to something less than
$7,000, and for the first two quarters of 1975 the cost was
$1,200 The number of gallons spilled in 1974 in Maine was
reduced to 9,000 and the figure for the first two quarters of
1975 was 3,529
B Union Organizational Efforts
151
Robert Burdick, an International Representative of the
Union, first came in contact with employees of the Re-
spondent in April or May 1974 As the result, an initial
meeting was held in Auburn, Maine, on May 26, attended
by three employees On July 28, a second meeting was held
in Augusta, with 14 employees in attendance, all of whom
signed union cards The third meeting was held on August
8, in Bucksport, with six employees in attendance, who also
signed authorization cards On September 8, another meet-
ing was held in South Portland, attended by some 60 em-
ployees By the end of August, so Burdick testified, he had
approximately 104 signed authorization cards from em-
ployees of the Respondent Burdick testified that the orga-
nizational leader in Augusta was an employee named Or-
mand Piper The Union filed a petition with the Board on
September 19, thereafter, an election, by agreement of the
parties, was held, with the result that the Union lost
C The Termination of Morrison
Morrison, a somewhat portly man of 40, was hired by
the Respondent as a truckdriver in September 1968 His
personnel record indicates that in January 1969 he spilled
300 gallons of gas, resulting in a loss of $97, the stated
reason for the incident was that Morrison was not standing
by the hoses Also, during the year 1969, the record indi-
cates that he had a number of small accidents, for all of
which except one, he was responsible The record contains
no entries for the years 1970 and 1971 In May 1972 he was
awarded a second-year safe driving pin In October of that
year, he had two accidents, both of which were listed as
nonpreventable In May 1973 he was awarded a third-year
safe driving pin for 1972 In 1974, prior to his termination,
he had one accident, involving no damage, in the
Respondent's yard In June of that year, he was awarded
his fourth-year safe driving pin
Morrison signed a union authorization card on August 1,
at the solicitation of Piper, who gave him a supply of cards
to use in signing up other drivers According to Morrison,
he talked to other drivers about the Union Morrison testi-
fied that about the middle of August, Davenport asked him
"how the union was going," and Morrison replied that vir-
tually all drivers in the Augusta terminal had signed up On
the Saturday before Labor Day, so Morrison testified, he
had another conversation with Davenport, in the latter's
office, during which Morrison said if the Union got in mat-
ters would be different to which Davenport replied that
"he wasn't too sure the union was going to get in" and said
"that if the union didn't get it [in] I was all through any-
way "
On September 3, Morrison was sent to Blake's Marina in
Boothbay Harbor to deliver 5,000 gallons of diesel fuel
The Marina had two tanks, each holding 3,000 gallons, at
its wharf An equalizer line, running from one tank to the
other, is controlled by two valves The record shows that
Morrison did not check the tanks to see if they would hold
the load, nor did he "double check" the valves of the
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tanks 2 With respect to the delivery, Morrison testified that
he did not go to the Respondent's office to obtain any
information concerning how to unload at the Marina be-
fore he made his trip, nor did he go to the terminal manag-
er and inquire for such information Morrison admitted
that he did not walk down to the tanks to ascertain whether
the valves there were in proper order According to Morri-
son, when he made the delivery it was raining, and, after
the spill occurred, he saw no oil on the dock but saw some
under the dock on the water He testified that he did ob-
serve the rain washing the oil into the water Morrison ad-
mitted that when he became aware of the spill he did not
report it to the dispatcher or the terminal manager Morri-
son related that a man at the Marina office, as Morrison
was getting his bill of lading signed, "asked me not to re-
port the spill " He stated that if the spill had been "of any
size I wouldn't have hidden it " Morrison, in a telephone
conversation he had with Davenport that morning, did not
inform him of the spill at Blake's Marina He telephoned
the Portland Terminal after unloading, at approximately
11 or 11 30, but did not tell the dispatcher of the spill
Morrison was then given another assignment
Sometime in the afternoon of September 3, the Coast
Guard base in Boothbay Harbor received a telephone call
advising that there was a smell of oil in the harbor Chief
Harvard Urquhart, the Coast Guard officer in charge, went
out in to the harbor, accompanied by another member of
the Coast Guard He could smell the fuel oil before he
actually came upon it and testified, "I observed, I would
say, the largest covering of an oil sheen on the water in my
career " 3 With the aid of a chart, Chief Urquhart testified
that the oil slick measured 475 by 800 yards, and that he
traced it to Blake's Marina Chief Urquhart further testi-
fied that high tide in Boothbay Harbor on that day oc-
curred at 12 45, and that at the time he came upon the slick
the tide was going out
The Respondent was first informed of the spill at ap-
proximately 4 30 in the afternoon, when Safety Director
Mountain received a telephone call from Seacoast Ocean
Services, a concern that cleans up discharges in navigable
waters and which had been instructed by the Coast Guard
to go to Boothbay Harbor to clean up the oil slick About
5 30 that afternoon, Morrison returned to the Augusta ter-
minal and, after being asked about the spill incident by
Davenport, informed the latter about it
President Merrill first learned of the spill on September
4 Morrison was then suspended pending an investigation
ordered by Merrill After concluding the investigation of
the spill incident and the further investigation of several
complaints Morrison raised by telephone, Merrill dis-
charged Morrison on September 6, for the stated reason
that he had failed to comply with the Respondent's policy,
rules and regulations, had attempted to cover up the Sep-
tember 3 spill, and because "the fact that the Coast Guard
2
Morrison testified that in 1969 he had delivered oil to this Marina but
that he had not gone down to see where the oil was going because he `was
told not to " In 1970 he again made a delivery to this customer and again
did not go down to see where the oil was going
3 The transcript contains the word "lightest," in describing the oil sheen
but, obviously the correct word is largest" the transcript is corrected
accordingly
were the people that had to bring it to our attention in the
home office before we knew anything about it "
Seacoast proceeded to the Marina to clean up the oil
spill and arrived there at approximately 7 p in, it cleaned
up 5 to 10 gallons of oil in the catch basin below the tank
which overflowed The report of Seacoast indicates that it
was unable to recover the fuel that had gone into the water
because the tide had gone out Seacoast rendered a bill of
$331 04, which was paid by the Respondent's insurance
carrier, in addition, the Coast Guard levied a fine of $50
against the Respondent which also was paid by the insur-
ance company
Merrill testified that he first became aware of the fact
that the Respondent's employees were attempting to orga-
nize on September 15, 16, or 17, when one of the employees
asked him whether he knew "that there is some activity
and request for signing of applications " As previously stat-
ed, the Union filed a representation petition on September
19, and an election was held on December 13, resulting in
the defeat of the Union
Guy Savage, who had worked for the Respondent as
safety director from September 1968 to July 1974, testified
that the Respondent had "no hard and fast policy" with
respect to disciplinary action against a driver who failed to
report a spill that subsequently came to the attention of the
Respondent He further stated that he did not know of any
driver that was "fired dust having a spill " Ormand Piper,
who had worked for the Respondent at the Augusta termi-
nal for some 4 years prior to April 1975, testified that he
was involved in two incidents in which spills occurred In
one instance, a period of 2 or 3 days elapsed before he
reported the matter to Terminal Manager Davenport, who
said nothing Piper also reported the second incident some
days later to Davenport and again nothing was said
Counsel for the General Counsel contends that, prior to
the discharge of Morrison, the Respondent "had an exten-
sive history of spills" of which many "were found by the
safety committee to have been preventable by the driver"
and that several of these had not been reported by the
driver as reflected by the Respondent's records, and in
other cases it appeared that the driver had failed to follow
proper procedure She contends that from 1972 until the
discharge of Morrison, the records of the Respondent re-
flect that no driver had been discharged for failing to re-
port a spill and that those drivers who were terminated for
accidents and spills were discharged for continued inci-
dents of that nature with the apparent exception of one,
Pearly Provo, who was terminated in June 1974 because of
a spill in which he failed to follow designated procedure
because he was sleeping in the cab of his truck before un-
loading In addition, government counsel points out that
the Respondent had in the past imposed disciplinary action
short of discharge, such as reprimand, suspension, and
warnings Counsel contends that the termination of Morri-
son was pretextual and that therefore "only one driver had
been discharged for having one spill," namely Provo, "who
was sleeping in the cab while unloading" whereas the error
committed by Morrison "cannot be equated with such
gross dereliction of duty " Concerning the circumstance
that subsequent to the filing of the charge in the present
matter the Respondent terminated four employees for fail-
MERRILL TRANSPORT CO 153
ure to report spills, counsel argues these may be viewed in
two aspects, either that the Respondent "is making it up or
Respondent suddenly, because of the unfair labor practice
charge, has to take action in an area, where previously,
except for Morrison, it had not " In consequence, she ar-
gues that the fact that, except for Morrison, failure to re-
port a spill did not play a part in the discharge of any
individual, indicates that the "disparate treatment accord-
ed Morrison becomes even more apparent "
On the other hand, counsel for the Respondent points
out that Morrison was not a union leader but "merely one
of the followers", and that Merrill first learned of a union
campaign some 9 days after Morrison was terminated In
addition, counsel for the Respondent points out that Piper
was a key man in the Union's campaign and that he was
never threatened by Davenport Concerning the testimony
by Savage that he recalled some unreported spills that did
result or did not result in discharge, counsel for the Re-
spondent points out that these occurred "long before the
crackdown" by State and Federal agencies and the
Respondent's own program of reducing oil spills, which
demonstrate that the spill at Blake's Marina was "abun-
dantly different and it occurred in a different era " As to
the testimony of Piper regarding a spill, counsel for the
Respondent states that this resulted from the fact that the
Company had set its pumps in reverse, with the result that
the oil being spilled was out of the customer's tanks and
not oil of the Respondent Another incident relating to Pip-
er was that a spill occurred by virtue of the topping off
procedure followed by the customer Both incidents were
reported to Davenport and, according to counsel, "are so
foreign to the Morrison case that they are irrelevant" and
"certainly don't establish discriminatory conduct "
With respect to the testimony of Morrison that he did
not report the spill because a "man" at the Marina asked
him not to and that he did not check the tanks or the
valves, counsel argues that Morrison "should not have dis-
regarded his company responsibilities in light of the
company's problems with spills, the manual, the repeated
Safe-T-Grams which Morrison admits knowledge of, be-
cause someone asked him not to obey them " In conclu-
sion, counsel for the Respondent argues that it had a valid
reason for terminating Morrison "who had violated critical
company policy and procedures, which the company had
been striving hard to enforce," and that Morrison was
"well aware of his obligations as well as the problems" of
the Respondent in regard to spills and its efforts to mini-
mize them, yet "he chose to disregard his duties " Accord-
ingly, he contends that the termination of Morrison did not
violate the Act
D Conclusions
While the position urged by counsel for the General
Counsel has considerable plausibility, upon all the evi-
dence and the reasonable inferences to be drawn there-
from, I am not persuaded that the Respondent terminated
Morrison because of his union activity In the first place,
Morrison was not outstandingly active in behalf of the
Union, in fact, as counsel for the Respondent states, he
was more of a follower than a leader While it may well be
that President Merrill was opposed to the unionization of
the Respondent's employees, the fact remains that the
communications he sent them were within the bounds al-
lowed employers The record further shows that the Re-
spondent did hire persons known to be union adherents
Another factor which must not be overlooked is that in
recent years the Respondent, by reason of governmental
actions, had been increasingly vigilant concerning acci-
dents and spills, and had embarked upon a campaign to
reduce them following the cancellation of its insurance
coverage and substantial expense involved with spills Cer-
tainly it does not seem reasonable to me to conclude that,
because in the past the Respondent had been lenient with
drivers who had been involved in accidents and spills, it
was required to continue that policy on pain of being held
to have engaged in discriminatory conduct within the
meaning of the Act I conclude, therefore, that the Respon-
dent did not violate the Act in terminating Morrison Ac-
cordingly, I shall recommend that the complaint be dis-
missed in its entirety
CONCLUSIONS OF LAW
1 Merrill Transport Co, Inc, is an employer within the
meaning of Section 2(2) of the Act and its operations affect
commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER4
The complaint is dismissed in its entirety
4 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
SUPPLEMENTAL DECISION
My Decision in this case issued on November 11, 1975
Therein, I found that the Respondent had not engaged in
violations of Section 8(a)(3) and (1) of the Act and, accord-
ingly, I recommended that the complaint be dismissed in
its entirety Thereafter, counsel for the General Counsel
filed exceptions to my Decision and a supporting brief, and
counsel for the Respondent filed a brief in reply Under
date of February 6, 1976, the Board remanded the proceed-
ing to me "for the purpose of preparing and issuing a Sup-
plemental Decision setting forth resolutions of the credibil-
ity of witnesses and containing new findings of fact,
conclusions of law, and a recommended Order in light of
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such credibility resolutions " In its Order, the Board stated
that I had, in my Decision, "summarized the testimony of
various witnesses and recited the factual contentions of the
parties without making credibility resolutions and specific
findings of fact " The Board expressed the opinion "that
the disposition of the issues presented in the instant case
requires further findings by the Administrative Law Judge
with respect to the credibility of all of the witnesses, and
particularly a resolution of the conflicting testimony of
Morrison and Davenport concerning a threat of discharge
allegedly made by the latter on or about August 31, 1974,
and with respect to all facts developed at the hearing "
I have, in compliance with the Board's direction, re-
viewed my Decision and the entire record in this case I
come to the same conclusion In the first place, Morrison
did not impress me as a credible witness On the other
hand, Paul Merrill, the president of the Respondent, im-
pressed me favorably and, in this connection, it should be
observed that it was he that made the decision to discharge
Morrison some 4 or 5 days after the spill at Blake's Marina
There is no question that Morrison failed to report the
spill Davenport, the Respondent's terminal manager, who
began working for the Respondent as a driver, credibly
testified that he had never threatened any employee with
discharge on account of his union activity Moreover, a
former driver for the Respondent, James Alpert, who was
discharged by the Respondent in January 1975, and who
admittedly was hostile toward the Respondent, credibly
testified that Davenport did not discuss the Union with
him It seems to me, upon a review of my Decision and the
record, that I necessarily discredited Morrison, at least in-
sofar as his testimony conflicted with that of Davenport
Thus, I stated that I was not persuaded that the Respon-
dent terminated Morrison because of his union activity
and said that he "was not outstandingly active in behalf of
the Union," but was "more of a follower than a leader"
Secondly, I observed that while President Merrill admitted-
ly was opposed to the unionization of his employees, the
communications issued by the Respondent "were within
the bounds allowed employers " In addition, I found that
the Respondent had hired persons known to be union ad-
herents and that a factor not to be overlooked was that in
recent years the Respondent, because of the actions of gov-
ernmental agencies, "had been increasingly vigilant con-
cerning accidents and spills, and had embarked upon a
campaign to reduce them following the cancellation of its
insurance coverage and substantial expense involved with
spills " Under these circumstances, it seems fairly plain to
me, as I felt I had articulated in my Decision, that Morri-
son was, in substantial part, not a credible witness whereas,
on the contrary, witnesses produced by the Respondent,
including Davenport, who gave testimony conflicting with
that given by Morrison, were more credible I so find
Accordingly, I recommend that, consistent with my No-
vember 11 Decision, the complaint in this proceeding be
dismissed in its entirety