Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Apr 19, 1967

164 N.L.R.B. 72 (N.L.R.B. 1967)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Overnite Transportation Company and Truck
Drivers and Helpers Local Union No. 728.
Case 10-CA-6657.
April 19,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 30, 1966, Trial Examiner William
Seagle issued his Decision 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 attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief
and the Charging Party filed a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
Union had given up its organizational efforts, and questioned
Blankenship as to what he would do if the union question came
up again When Blankenship gave his assurance that he would
stand with the Company, Croft then indicated that Blankenship
need have no fears However, upon subsequently learning of
Blankenship ' s continued union interests , as manifested by
Blankenship's refusal to cross the picket line, Croft effectively
discharged him In these circumstances , considered against
Respondent's history of unfair labor practices and opposition to
employee organization , we find the conclusion inescapable that
Respondent seized upon Blankenship 's refusal to cross the picket
line to rid itself of a known union sympathizer , who, though having
previously declared his support for the Respondent, again
revealed his union sympathies by refusing to cross the picket line
Accordingly, we find that Respondent discharged Blankenship in
violation of Section 8(a)(3) and (1) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: I heard this case at
Atlanta, Georgia, upon a charge filed by the Union on
August 18, 1966, and a complaint issued by the Regional
Director on October 3, 1966, in which it was alleged that
the Respondent had violated Section $(a)(1) and (3) of the
National Labor Relations Act, as amended, by discharging
and refusing to reinstate one of its employees, James T.
Blankenship, because he had refused to cross a picket line
established at Ideal Roller Bearing (hereinafter referred to
as Ideal Roller), a customer of the Respondent.
An answer having been filed by the Respondent in
which the commission of this alleged unfair labor practice
was denied, I held a hearing on the issue at Atlanta,
Georgia, on November 16, 1966.
Subsequent to the hearing, counsel for the General
Counsel filed a brief with me.
Upon the record so made, and in view of my observation
of the demeanor of the witnesses, I hereby make the
following findings of fact:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Overnite
Transportation Company, Atlanta, Georgia, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
i We agree with the Trial Examiner , for the reasons fully stated
in his Decision, that Respondent violated Section 8(a)(1) by
discharging Blankenship, not for justifiable business reasons, but
for the purpose of penalizing him for refusing to cross a picket
line, a protected concerted activity
We also agree with his further finding that the discharge of
Blankenship was motivated by Respondent' s union animus, and
hence violative of Section 8(a)(3) In affirming the Trial Examiner
in this regard, we note that Blankenship was a known adherent of
the Union, which though certified in May 1964, had failed in its
efforts to secure a collective-bargaining agreement with
Respondent In January 1966, Blankenship had been offered
employment with another -firm, and, out of concern for his
prounion record and failure to support recent employee-
decertification activity, sought out District Manager Croft to
discuss the security of his job tenure in the light of his union
activities In that discussion, Croft informed Blankenship that the
I. THE RESPONDENT
The Respondent, Overnite Transportation Company
(hereinafter referred to as Overnite), is, and at all material
times has been, a Virginia corporation, maintaining an
office and place of business at Atlanta, Georgia, where it
has been engaged as a common carrier by motor vehicle in
the interstate transportation of freight.
During the past calendar year, which is a representative
period, the Respondent received in excess of $100,000
from the interstate transportation of freight. The
Respondent admits, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 728
(hereinafter referred to as Local 728, or as the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Blankenship
Blankenship was employed by the Respondent in
August 1961, and he was terminated by it on August 8,
1966. He had thus been in its employe for approximately 5
years. His job was to deliver and pick up freight in an area
164 NLRB No. 13
OVERNITE TRANSPORTATION COMPANY 73
outside the city limits of Atlanta known as the Chamblee
area. He received bills of lading in the morning for the
deliveries which he was to make that day, but he also
made pickups as instructed on his truck radio, being
required to call his dispatcher , whose name was Thomas
Donald Goddard, every 30 to 45 minutes . There were other
drivers in the Chamblee area but Blankenship was the
first to arrive in that area in the morning.
The Respondent employs approximately 100 drivers, of
whom about half are known as "wild drivers ," who are
used to replace route men when the latter are sick, on
vacation , or otherwise unavailable . Some of the wild
drivers also make deliveries in the Chamblee area but
normally they make only volume load deliveries there; i.e.,
loads of over 15,000 pounds.
In January 1964 Blankenship had joined Teamsters
Local 728, which, on May 1, 1964, was certified as
bargaining representative . There seems to have been an
attempt , subsequently , to decertify the Union but the
decertification petition was later withdrawn . At the time of
his termination Blankenship was still a member of
Local728.
In January 1966 Blankenship had been offered a job
with another employer, the Kroger Company. Being a
member of Local 728, and having declined to sign the
decertification petition , Blankenship felt insecure in the
tenure of his job , and decided to speak to Walter Donald
Croft, the Respondent ' s district manager , who was in
charge of the Atlanta terminal . Blankenship told Croft
about the offer of the Kroger job, and asked the latter how
secure his job would be, explaining that he was
apprehensive because of his prior union activities. Croft
remarked that the effort of the Union to organize Overnite
was over , and asked Blankenship what he would do in the
event that the union question came up again . Blankenship
replied that if the Union had ceased its attempt to organize
the employees , it had lied to them , and that if the union
question came up again , he would stand with the
Company. Croft then told Blankenship that he need have
no fears as long as he did a good job, and Blankenship
decided to remain with Overnite.
On August 4, 1966, which was a Thursday, when
Blankenship arrived in the Chamblee area, he noticed that
the employees of Ideal Roller were on strike. This strike
began on August 4 but it was not to end until August 30,
1966. Although Blankenship had a shipment for Ideal
Roller on his truck on August 4, he decided not to deliver
it, since this would involve crossing the picket line. After
completing his other deliveries , he called Goddard and
explained the situation to the latter . Goddard said he
would speak to Croft but instructed Blankenship to leave
the Ideal Roller freight on his truck, eat his lunch, and
make his scheduled pickups. Blankenship did so, keeping
in touch with Goddard on his truck radio , and returning as
usual to the terminal at the end of the day.
On August 5, 1966, when Blankenship reported for work
at 7 a.m . he found Ideal Roller freight loaded on his truck
again , and told Goddard that he would not cross the picket
line there to deliver it. Goddard told Blankenship that he
could move the Ideal Roller freight , which was at the rear
of his truck , and leave it on the dock, and that he would
"try to talk to Mr. Croft that day." Croft, Goddard
explained , "was not there at that time ." Blankenship
complied with Goddard' s instructions , and performed his
normal duties the remainder of that day.
On August 6, which was a Saturday and on August 7,
which was a Sunday, Blankenship was not scheduled to
work and did not work . When he came to work on Monday
morning, August 8 , and received his bills of lading, he
found that Ideal Roller freight had been loaded on his
truck again , and, since Monday was a heavy day for
freight , the Ideal Roller freight had been partially covered
by other deliveries . Since neither Goddard nor Croft was
available at this time, Blankenship drove to the Chamblee
area, and made all his deliveries except for the Ideal Roller
freight , since he found that the Ideal Roller employees
were still on strike . He then called Goddard and asked the
latter whether he had yet had an opportunity to speak to
Croft . Goddard answered this question in the negative but
said that he would talk to Croft. In the meantime , he told
Blankenship that he should have his lunch and make his
normal pickups . Blankenship kept in touch with Goddard
over his truck radio, and in the conversation which he had
with Goddard over the radio at about 3 p.m., the latter told
Blankenship that he had talked to Croft , and that Croft
had directed that Blankenship should deliver the Ideal
Roller freight . Blankenship then told Goddard that he
would quit before he would do so but that he would talk to
Croft when he came to the terminal . Goddard instructed
Blankenship to go ahead with his 'normal pickups in the
meantime . When Blankenship arrived at the terminal
about 7 p.m., he went to get his timecard from the rack in
order to punch out but he noticed that his timecard was
missing. Thereupon he went to Croft' s office, and told the
latter that he understood he wanted to see him. Croft
replied in the affirmative , and asked whether it was true
that he had refused to cross the Ideal Roller picket line.
When Blankenship admitted that this was true, Croft told
him that " the Company was obligated to deliver freight
and that due to Company policy that I had left him no
choice except to fire me." (Emphasis supplied .) Croft had
Blankenship 's paycheck already made out and gave it to
the latter . The check only covered Blankenship 's pay until
6 p.m. that day , and since he considered that he had
worked until 7 p.m., he demanded an extra hour's pay,
which was given to him from the petty cash account.
Blankenship then left the terminal.
During the period from August 4 to 8 , other Overnite
drivers made pickups of freight at Ideal Roller , and they
had no trouble, appparently , in making these pickups, the
picketing being peaceful . At least this is what Goddard
told Blankenship without being able to induce him to cross
the Ideal Roller picket line . On August 9, the day after
Blankenship's termination , his route was taken over by
one Fred Swiney, who was already working under
Goddard. On August 12, one Hubert Brown was hired to
replace Swiney.
B. Concluding Findings
The Respondent challenged at the hearing the basic
assumption on which the present proceeding is based; i.e.,
that Blankenship was discharged by it on August 8. It
contended that he voluntarily quit his employment when
faced with the necessity of crossing the Ideal Roller picket
line. It seems to me that the evidence does not support,
however , the Respondent ' s contention. It shows that
Blankenship threatened to quit his job but that he was
discharged before he could carry out his threat. In
reaching this conclusion , it is not necessary , moreover, to
discredit the testimony of Croft, for the testimony of
Blankenship and Croft are in close agreement , so far as
the termination of the former is concerned.
Croft testified that in the middle of the afternoon on
August 8 Goddard reported to him that Blankenship would
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not deliver the Ideal Roller shipment because of the strike
there; that Blankenship had told Goddard that "if he had
to go in, he would just quit, and come in to get his money"
(emphasis supplied); that he then told Goddard "to
reiterate to Blankenship the company's position that we
had to cross the picket line to deliver the man 's freight"
(emphasis supplied); that thereafter Goddard reported to
him that Blankenship still persisted in his refusal to cross
the Ideal Roller picket line; that Blankenship confirmed
this when he finally came to his office by declaring that "if
the Company insisted that he cross the picket line then he
would just have to quit and get his money" (emphasis
supplied); and that he then told Blankeenship "what we
had to do and he said that he would just have to quit"
(emphasis supplied). The use of the subjunctive mood by
both Blankenship and Croft indicates that they were both
discussing a threat to quit rather than an actual quitting.
That Croft certainly intended to discharge Blankenship,
moreover, no matter what the latter told him when he
arrived, is plainly indicated by the fact that Croft had had
Blankenship's timecard removed from the rack and that
he also had his terminal paycheck ready. I find, therefore,
that Blankenship was discharged by Croft before he could
quit . However, even if it could be said that Blankenship
did quit, it was Croft who put him in a position which
compelled him to quit, and this would amount on familiar
principles to a constructive discharge. I
The law governing the discharge of an employee for
refusing to cross a picket line at the premises of another
employer had been laid down by the Board in a preceding
case involving the present respondent; i.e., Overnite
Transportation Company, 154 NLRB 1271, enfd. in
material part in 364 F.2d 682 (C.A.D.C.). This case
involved another pickup-and-delivery truckdriver of the
Respondent whose name was Wayne O. Styles, and who
was discharged by the Respondent's district manager,
Albert P. Vigue, for refusing to cross a picket line at the
premises of another employer called the Warren
Company. In discharging Styles, Vigue told him that he
would have to let him go "for not following direct orders,"
and, further, that "as a matter of company policy" we
didn't honor pickets anywhere, that we packed up freight
everywhere (emphasis supplied). In holding that the
discharge of Styles was violative of Section 8(a)(3) and (1)
of the Act, the Board said:
The Board had held, with court approval, that
employees engage in protected concerted activity
when they respect a picket line established at the
premises of another employer. Recognizing the right
of an employer to run his business despite this
protected activity, the Board has held that an
employer does not violate the Act in terminating such
employees if the employer acts "only to preserve
efficient operation of his business , and ... only so
[that he] could immediately or within a short period
thereafter replace them with others willing to perform
the scheduled work ...." [Emphasis supplied.] At
the same time, however , it is the Board's view that if
the protected right of employees is to have any
meaning at all, then the employer who would justify a
discharge on the basis of an overriding employer
interest must present more than a mere showing that
someone else may have to do the work. That fact is
inherent in every situation where employees fail to
perform a portion of their assigned tasks by
respecting a picket line. To accept it alone as
conclusive proof that their services were terminated
solely to preserve efficient operation of the
employer's business would be to render illusory any
finding that the employees engaged in protected
concerted activity. It would leave the refusal to cross
a picket line without any protection at all. Clearly,
what is required is the balancing of two opposing
rights, and it is only when the employer' s business
need to replace the employees is such as clearly to
outweigh the employees' right to engage in protected
activity that an invasion of the statutory right is
justified.
The Respondent has not shown that Blankenship's
discharge was necessary to get freight delivered to Ideal
11-oller. It had a second deliveryman in the Chamblee area
by the name of Lewis, as well as the other drivers, who
were not averse to crossing the Ideal Roller picket line,
and who in fact made pickups of freight at Ideal Roller.
The Respondent's representatives , Goddard and Croft, did
not convey to Blankenship until the moment of his actual
discharge that the delivery of freight to Ideal Roller was of
great urgency, for on August 4 Goddard merely instructed
Blankenship to leave the Ideal Roller freight on the dock
and to go ahead with his pickups after lunch, and on
August 5 Goddard instructed Blankenship to pull the Ideal
Roller freight off his truck and leave it on the dock. In fact,
there is no affirmative evidence that before Blankenship's
discharge the Respondent delivered the Ideal Roller
freight which Blankenship would not deliver. Indeed, the
evidence as a whole shows that the objective of Croft was
not to get the Ideal Roller freight delivered but to enforce a
company policy not to respect a picket line under any
circumstances. The union animus of the Respondent is
attested to by a whole series of recent cases involving a
large variety of unfair labor practices.2 Its motives in the
present case must be judged in the light of this history, of
which I take official notice. In discharging Blankenship,
Croft was following the same company policy which Vi^ue
had declared in discharging Styles. I do not credit Cro is
testimony that he did not say a word to Blankenship about
the Union when the latter discussed with him, in January
1966, the offer of the Kroger job. I credit rather the
testimony of Blankenship that Croft asked him on this
occasion what he would do if the union question came up
again. When Blankenship then told Croft that he would
stand with the Company, the latter assured him that he
had nothing to fear. However, when Blankenship refused
to cross the Ideal Roller picket line in August 1966, he
made manifest to Croft that his sympathies were still with
the Union, and Croft seized the opportunity to discharge
him for refusing to cross the Ideal picket line.
IV. THE REMEDY
As the record shows that the Respondent has persisted
in violations of the Act, I shall recommend that it be
ordered to cease and desist from infringing in any manner
upon the rights guaranteed to employees in Section 7 of
the Act.
By way of affirmative relief, I shall recommend that the
Respondent be required to offer to James T. Blankenship
full reinstatement to his former or substantially equivalent
' See, for instance , Cone Brothers Contracting Company, 135 NLRB 1026 , enfd in part 308 F 2d 279 (C A 4) 134 NLRB 1513,
NLRB 108, 135-141 141 NLRB 384, enfd in part 327 F 2d 36 (C A 4), 157 NLRB 1185,
2 See 129 NLRB 261, enfd in part 308 F 2d 284 (C A 4), 129 and 158 NLRB 879.
OVERNITE TRANSPORTATION COMPANY
position , without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of pay
which he may have suffered by reason of his discharge.
The loss of pay shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, and shall bear interest at the rate of 6 percent per
annum , as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent , Overnite Transportation Company,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Truck Drivers and Helpers Local Union No. 728 is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging James T. Blankenship on August 8,
1966 , because he had engaged in a protected concerted
activity , the Respondent has committed an unfair labor
practice affecting commerce within the meaning of
Section 8 (a)(1) and (3) of the Act.
RECOMMENDED ORDER
Upon the entire record in this proceeding , and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended , it is hereby recommended that the Respondent,
Overnite Transportation Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers and
Helpers Local Union No. 728, or any other labor
organization of its employees , by discharing any of its
employees or discriminating in any other manner against
them with respect to the tenure of their employment.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of any of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to James T. Blankenship 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 he
may have suffered as a result of his discharge, as provided
in section IV of this Decision, entitled "The Remedy."
(b) Notify the above -named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) 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.
(d) Post at its terminal in Atlanta, Georgia, copies of the
attached notice marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for Region
10, after being duly signed by a representative of the
Respondent , shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 10, in
75
writing, within 10 days from the date of this Decision, what
steps the Respondent has taken to comply therewith.4
3 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words " a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 10 , in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT interfere with the right of employees
to engage in any protected concerted activity by
discharging them or threatening to discharge them in
violation of Section 8(a)(1) and (3) of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
right to self-organization , to form, loin, or assist Truck
Drivers and Helpers Local Union No. 728, or any
other labor organization of our employees , to bargain
collectively through representatives of their own
choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all
such activities.
WE WILL offer to James T. Blankenship 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 earnings he may have suffered as a result
of his discharge.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of-Truck
Drivers and Helpers Local Union No. 728, or any other
labor organization.
OVERNITE TRANSPORTATION
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, NE., Atlanta,
Georgia 30323, Telephone 526-5741.