Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Dec 26, 1961

134 N.L.R.B. 1513 (N.L.R.B. 1961)

OVERNITE TRANSPORTATION COMPANY 1513
appropriate for the purposes of collective bargaining within the meaning of Section 9
of the Act.
5. By picketing with the object of forcing and requiring Educational Supply
Service of California to recognize and bargain with the said Union, as the repre-
sentative of individuals in the employ of Educational Supply Service of California,
as found above , the said Union has engaged in unfair labor practices within the
meaning of Section 8(b) (7) (C) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Overnite Transportation Company and Jake W. Christopher
and James B. Cheek . Cases Nos. 11-CA-1734-1 and 11-CA-
1734-2. December 26, 1961 r
DECISION AND ORDER
On October 12, 1961, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. He also found that the Respondent had not engaged in
other unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
However, as South Carolina has a right-to-work law, we shall delete
from paragraph numbered 1(c) of that Order, and from the notice to
be posted, the words "except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a) (3)
of the Act."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Overnite Transportation Company, herein also called
the Respondent or the Company, involves Section 8(a) (1) and ( 3) allegations, and
134 NLRB No. 159.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was initiated by Jake Christopher and James Cheek, individuals. A hearing was
conducted on June 13 and 14, 1961.
Upon the entire record in the case, and from his observation of the witnesses,
the duly designated Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Upon the facts and for the reasons stated by the Board in Overnite Transportation
Company, 129 NLRB 261, it is found-that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented are whether the Respondent engaged in certain conduct in
violation of Section 8(a)^ 1), and discriminated against Jake Christopher on Novem-
ber 10, 1960, and James Cheek on February 8, 1961, in violation of Section 8(a) (3)
of the Act.
B. The events
This proceeding has its background in the case cited above in the section relating
to the business of the Company, where the Board, among other things, found that
the individuals involved in the instant proceeding, Jake Christopher and James
Cheek, were discriminatorily discharged. Christopher and Cheek, among others,
were thereafter reinstated by the Company in November 1960, pursuant to a Board
order. They were again discharged by the Company, and it is here alleged, as
already noted, that these discharges were discriminatory.
Several weeks prior to the reemployment of Christopher, Cheek„and others, Cecil
Long, assistant warehouse superintendent on night duty, declared, in the presence of
employee James Waters and other employees whom Waters could not name, that
he would hate to be in the shoes of those reinstated depending upon the job to
keep up a family, that the Company would be watching for some excuse to dis-
charge them, and that they would be gone if they made one mistake. During this
same period, Long declared, in the presence of employee Mahland Waters and other
employees Waters could not recall, that the reinstated employees would not be with
the Company long, that he would hate to be in their shoes depending upon that job
to keep up a family. About the same time employee Walter Lowdermilk inquired
of Long whether the Company would have to lay any of its employees off in view of
the reinstatement of the former discriminatees. Long replied that there would be
no layoffs and that the returned employees would not be with the Company over
2 weeks. After the former discriminatees returned to work, Lowdermilk again
talked with Long. Long then declared to Lowermilk that management was going to
keep its eyes open and that these men would be gone with the first mistake they
made. Long suggested to Lowdermilk that he keep an eye on those men and report
anything he noticed. Long also suggested that Lowdermilk spread the word around
among the men to stay away from the reinstatees as that might bring about their
quitting. According to former employee McKinley Mann, about the time the
former discriminatees returned to work, then terminal manager, J. W. Brown, stated
when Mann expressed concern about layoffs, that there would be no layoffs, and
the Company was watching for one mistake and out the reinstatees went.,
Christopher and Cheek were discharged on November 10, 1960, and February 8,
1961, respectively.
C. The conclusions
1. Interference, restraint , and coercion
In view of Long's declarations involving James Waters, Mahland Waters, and
Walter Lowdermilk, it is found that the Company interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the Act, by threatening to
discharge reinstated employees upon the basis of a pretext.
1 Long denied making the above statements. Brown did not testify on the subject. As
James Waters , Mahland Waters, and Lowdermilk impressed the Trial Examiner favor-
ably as witnesses and Long did not , their testimony is credited and Long's denials are
not credited
OVERNITE TRANSPORTATION COMPANY 1515
2. Jake Christopher
The Respondent defends the discriminatory discharge allegation in the Christopher
case on the ground that he was late for work.
On the day of his discharge, November 10, Christopher was to report for work
at 6 p.m. Christopher, however, punched in about 32 minutes late on that day.
When Christopher arrived at the timeclock he noticed the clock was later than his
watch and, having been offered a sum of money to waive his reinstatement rights
and having been informed by a fellow employee that the Company was looking for
an excuse to discharge him, declared to an unidentified employee nearby that he
had "messed up." 2 After Christopher punched in and proceeded to work, Ware-
house Superintendent Giles Myers, who had meanwhile transferred another man to
do Christopher's work, approached Christopher and after determining that Christo-
pher had just punched in, asked him to the office where the matter was discussed in
the presence of then Terminal Manager J. W. Brown. At the office, Myers asked
Christopher where he had been and if he had any excuse. Christopher replied that
he had not been anywhere except on his way to work, he had no excuse except that
his watch was slow, and he did not realize he was late. Christopher showed Myers
his watch which then showed 5:55. Christopher explained to Myers that on the way
to the warehouse he had stopped at a service station to take care of his car and that
thereafter he stopped at a truck stop near the warehouse for some coffee where he
noticed his watch and it was something before 6. Myers stated that that was no
excuse. Christopher stated that he would like to continue working, and make up
the time in the morning as he had done during his prior employment. Christopher
further stated that he was not intentionally late and that he was not trying to be
smart. Christopher was thereupon discharged .3
Myers explained that during the summer of 1960, timeliness and its effect on the
entire system had been emphasized to the men under a new procedure that had been
established in handling freight. Myers also testified that in addition to Christopher,
employee H. C. Jamison was discharged in DBcember for lateness. It appears that
Jamison was 35 minutes late, and except for a number of late arrivals of a few
minutes each the record does not disclose the surrounding circumstances of Jamison's
discharge.
Brown, who was terminal manager at the time of Christopher's discharge, testified
that his rule on tardiness which was uniformly enforced is that lateness of 2 or 3
minutes was overlooked, but if after 15 or 30 minutes a man did not call in to his
superior, the man was automatically discharged. O. E. Stoner, who took over the
terminal managership from Brown in January 1961, explained that under his rule
on lateness if a man was 30 minutes late and had not called in giving a reason he
was terminated.
Myers testified that he excuses a man for lateness if the man does not have an
opportunity, due to circumstances such as an accident in the family, to call in to the
warehouse; if, however, a man had to take a member of his family to the hospital
and had an opportunity to call in but did-not do so he would lose his job. In the
instance of employee George Evans, when Evans failed to show up for work, and
the record does not show that Evans notified the Company of his absence, Myers
did not-consider that Evans was automatically discharged on the first day Evans failed
2 Christopher explained the use of the quoted expression on cross-examination as fol-
lows, that he had concluded that the Company did not want him back as an employee
and was seeking an excuse to discharge him, as he had been offered a sum of money not
to return to work and a fellow employee had informed him that the Company was looking
for an excuse to discharge him
At the time of Christopher's reinstatement he was on a 2-week leave of absence from
another employer where he was employed as an extra over-the-road driver According to
Joe Knuckles, a warehouse supervisor , after Christopher's discharge, Christopher stated
to him that the Company did not do him any harm by the instant discharge as he was
only there for 2 weeks Christopher testified that he told Knuckles that if he had lasted
with the Company for 2 weeks he would probably have quit and returned to the other
employer Christopher's uncontradicted version of the transaction with the other em-
ployer in obtaining a leave of absence is that he told that employer that the job with the
Company was regular and that if he liked it he would stay, and if he did not like he
would return to his job as an extra driver. Christopher's version of his conversation
with Knuckles is accepted as accurate.
3 These findings are based upon Christopher's credible testimony which in some respects
is contradicted by Myers, whom the Trial Examiner does not consider a reliable witness
Brown was not questioned as to this incident
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to appear for work on time. Evans stayed away from work for 2 weeks and Myers
considered him a quit. Myers thereafter rehired Evans.
In view of the disparate treatment Myers accorded Christopher when compared
to Evans,4 the explanation Christopher gave Myers at the time of the discharge, and
the Company's efforts by offering Christopher money to get him not to come back
to work, it is found that the Company carried out its threat to seize upon an excuse
to rid itself of reinstated employees and discriminatorily discharged Jake Christopher
on November 10, 1960, thereby discouraging employees from asserting their right to
reinstatement.
3. James Cheek
The reason given for Cheek's discharge is that Cheek had damaged a vending
machine and thereafter lied about having done so.
On the night shift of February 7, Cheek and fellow employee James Switzer were
at the cake vending machine. Switzer deposited a coin and the machine failed to
deliver the merchandise or return the coin. Cheek offered to help Switzer and struck
the machine with his hand a few times. After Cheek bumped the machine a piece
of glass from an old crack fell onto the floor. Later that night Cecil Long, assistant
warehouse superintendent, asked Switzer if he knew who had broken the machine.
Switzer replied that he knew but he would not state who had broken the machine.
The following night, Switzer, Cheek, Long, and Terminal Manager O. E. Stoner,
met in Stoner's office. Cheek denied having broken the machine. Cheek thereafter
left the meeting. Switzer declaring that he did not want to lose his job asked that he
be permitted to talk to the man who had broken the machine and give him a chance
to come into the office and admit the incident himself. Switzer told Cheek at the
warehouse of the transaction in the office. Cheek, stating to Switzer that he did
not want to see Switzer discharged, instructed Switzer to return to the office and to
state that he, Cheek, had bumped the machine and that a little piece of glass fell out.
Thereafter, Cheek returned to the office, stated that there was a crack in the glass
beforehand, and again denied having broken the machine. Stoner told Cheek that
there was too much evidence against Cheek, that Cheek was lying about the incident,
and that he was discharging Cheek .5
Under the circumstances described above, the Trial Examiner finds that Stoner
discharged Cheek believing that Cheek broke the vending machine and that Cheek
lied about it, and that by this discharge the Company did not violate the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and -tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by threatening to discharge reinstated employees on the basis of a pre-
text, the Trial Examiner will recommend that the Respondent cease and desist from
this conduct.
Having also found that the Respondent discriminated with regard to the hire and
tenure of employment of Jake Christopher on November 10, 1960, the Trial Ex-
aminer will recommend that the Respondent offer him immediate and full rein-
statement to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss of pay
suffered as result of the discrimination against him, by payment to him of a sum of
* The Trial Examiner views as unnecessary to the decision , the continuation in employ-
ment of an employee who went home during the supper period and did not return for about
an hour after the others resumed working, and the instance of another employee who
appeared for work 45 minutes late on a Sunday night, both of which instances occurred
shortly after Christopher's discharge.
5 These findings are based principally upon the testimony of Stoner who impressed the
Trial Examiner as a reliable witness. To the extent inconsistent with these findings,
Cheek's testimony is not credited.
OVERNITE TRANSPORTATION COMPANY 1517
money equal to the amount he would have earned from the date of the discrimination
to the date of the offer of reinstatement, less net earnings, to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. Earnings in any one particular quarter shall have no effect upon the
backpay liability for any other such period. It will also be recommended that the
Respondent preserve and, upon request, make available to the Board, payroll and
other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recommended
that the Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Jake Chris-
topher, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
2. By threatening to discharge reinstated employees upon the basis of a pretext,
the Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not discriminated with regard to the employment of
James Cheek as alleged.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended in order to effectuate the policies
of the Act, that Overnite Transportation Company, Greenville, South Carolina, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging employees from asserting their right to reinstatement by dis-
criminating in regard to their hire or tenure or any terms or conditions of employment.
(b) Interfering with, restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, by threatening to discharge reinstated
employees upon the basis of a pretext.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist a labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Jake Christopher immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make Christopher whole in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Recommended Order.
(c) Post at its facilities at Greenville, South Carolina, copies of the notice at-
tached hereto marked "Appendix." 6 Copies of such notice, to be furnished by the
Regional Director for the Eleventh Region, shall, after being duly signed by an
authorized representative of the Respondent, be posted immediately upon receipt
sin the event that the Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals Enforcing an Order."
1518 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
thereof, and be maintained by it for a period of 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 insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report and Recommended Order, what steps the Respondent has
taken to comply herewith.?
7In the event that the Recommended Order be adopted by the Board , this provision shall
be modified to read "Notify said Regional Director , in writing within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendation of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage employees from asserting their right to reinstate-
ment by disciminating in regard to their hire or tenure or any terms or con-
ditions of employment.
WE WILL NOT threaten to discharge reinstated employees upon the basis
of a pretext.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining, or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Jake Christopher, immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3) of the Act.
OVERNITE TRANSPORTATION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Lapeer Metal Products Co. and International Union, United
Automobile, Aircraft and Agricultural Implement Workers
of America (UAW) AFL-CIO and Local 614, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., Party to the Contract. Case No.
7--CA-2955. December 26, 1961
DECISION AND ORDER
On August 8, 1961, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
134 NLRB No. 154.