P*I*E Nationwide, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 382 (N.L.R.B. 1989)

382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
P*I*E Nationwide , Inc. and Patrick N. Clement.
Case 30-CA-10110
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On October 28, 1988, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order2
as set forth in full below.
ORDER
The National Labor Relations Board orders that
the Respondent, P*I*E Nationwide, Inc., Franklin,
Wisconsin , its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Warning , discharging , or otherwise discrimi-
nating against an employee previously found to
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F . 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings. In the section of the judge 's decision entitled "The Present
Case," the first sentence in the last paragraph should read , "Clement was
called at 9 :00 p in . on June 17 and left Franklin ast 11:00 p .m bound for
Chicago."
In finding a violation of Sec. 8(a)(4) of the Act , the judge relied on the
record in the backpay proceedings in Case 30-CA-8074 (P'!'E Nation-
wide), and stated that it "is not difficult to imagine that [Larry] Scar-
brough felt uncomfortable if not humiliated by his role in that proceed-
ing." The judge found this humiliation motivated Scarbrough to retaliate
against Clement . In finding an unlawful motive, we do not rely on testi-
mony given at the backpay hearing . Instead , we rely on the dnvers' testi-
mony in this case that they verbally teased Scarbrough and played practi-
cal jokes on him based on Clement's account of Scarbrough's perform-
ance at the backpay hearing . In this regard, we agree with the judge that
it is impossible to believe Scarbrough did not know he was the subject of
the dnvers' widespread and prolonged jokes . We therefore find that
Scarbrough discriminated against Clement because Clement invoked the
Board 's remedial processes.
2 We shall modify the judge's recommended Order to conform to the
Board 's traditional make -whole language.
The judge included in her recommended Order a visitatonal clause,
reasoning that in the backpay proceeding the Respondent had "failed 'to
cooperate or otherwise attempt[ed ] to evade compliance ' and may do so
again" (quoting Cherokee Marine Terminal, 287 NLRB 1080 (1988)). We
have reviewed the record in the backpay case Although the Respondent
did fail to supply certain subpoenaed evidence (a failure that in fact un-
dermined its own contentions regarding the determination of gross back-
pay), it is not clear that in failing to produce the subpoenaed material, the
Respondent was acting in bad faith . Accordingly , we find it unnecessary
to include a visitatonal clause in this case. Cherokee Marine Terminal,
supra.
have been discriminatorily discharged in order to
discourage union activity or employee participation
in proceedings conducted by the National Labor
Relations Board.
(b) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Patrick Clement immediate and full re-
instatement to his former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the judge's decision.
(b) Remove from its files any references to the
June 18 , 1988 warnings and unlawful discharge of
Patrick Clement and notify him in writing that this
has been done and that the unlawful warnings and
discharge will not be used against him in any way.
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, 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
Order.
(d) Post at its Franklin, Wisconsin place of busi-
ness, copies of the attached notice marked "Appen-
dix."2 Copies of the notice, on forms provided by
the Regional Director for Region 30, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
295 NLRB No. 43
P*I*E NATIONWIDE 383
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT issue warning letters to or dis-
charge employees because they honestly and rea-
sonably assert a right grounded in the Union's col-
lective-bargaining agreement with us.
WE WILL NOT issue warning letters to or dis-
charge or otherwise discriminate against employees
because they file or process charges , give testimo-
ny under the National Labor Relations Board.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Patrick Clement immediate and
full reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge , less any
net interim earnings , plus interest.
WE WILL notify Patrick Clement that we have
removed from our files any reference to the June
18, 1988 warnings and unlawful discharge and that
these will not be used against him in any way.
P*I*E NATIONWIDE, INC.
Joyce Ann Seiser, Esq., for the General Counsel.
Peter R. Corbin, Esq. and John F. Dickinson, Esq., of
Jacksonville, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On a
charge filed on June 28 , 1988,1 a complaint issued on
I All dates refer to 1988 unless otherwise indicated.
August 5 alleging that P*I*E Nationwide , Inc. (the Re-
spondent or the Company) violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act (the Act) by
discharging Patrick Clement (Clement). The Respondent
answered on August 17 denying that it committed any
unfair labor practices.
The case was tried before me in Milwaukee , Wiscon-
sin, on September 1 and 2 at which time the parties had
full opportunity to examine witnesses , introduce docu-
mentary proof, and present oral argument . Taking into
account the witnesses' demeanor , and on the entire
record , including posttrial briefs submitted by counsel for
the General Counsel (General Counsel ) and the Re-
spondent , pursuant to Section 10(c) of the Act, I make
the following
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Company , a Florida corporation with an office
and place of business in Franklin , Wisconsin , is engaged
in the interstate transportation of freight . In the oper-
ation of its business , the Company annually derives gross
revenues in excess of $50,000 for the transportation of
freight and commodities from Wisconsin directly to
points outside the State . I find , as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Patrick Clement, no newcomer to the Board 's process-
es, is now seeking the Act's protections for the fourth
time. As detailed in an earlier case , 282 NLRB 1060
(1987), Clement filed his first unfair labor practice charge
in 1981 . A complaint issued alleging that he was laid off
by a previous employer for engaging in union and pro-
tected activities . That matter was resolved by informal
settlement which provided , inter alia, that Clement
would be made whole , that he would waive reinstate-
ment, and would receive a letter of recommendation to
be furnished to all prospective employers , which stated
that ,his attendance was good and his work record satis-
factory: Lastly, Clement was to keep the terms of the
settlement strictly confidential.
Clement found employment with the Respondent in
September 1983. However, he was terminated 1 day after
he satisfactorily completed a 30-day probationary period,
allegedly for falsifying his employment application by
failing to report that he had been laid off from his previ-
ous job . At 'a hearing on the grievance , which Clement
filed to protest his discharge , the Respondent's then
labor relations representative read a prepared statement
which included the following comment:
Certainly, under Ryder/P.I.E.'s standards , had Mr.
Clement revealed the full and accurate information
regarding the conditions of leaving Smith 's Transfer
Co. (the prior employer), he would not have been
employed. [282 NLRB 1060, 1062.]
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The administrative law judge (ALJ) relied heavily on
this damaging admission as proof that the "Company had
a policy against employing individuals who engage in
such conduct" and concluded that Respondent had vio-
lated Section 8(a)(4) of the Act by terminating Clement
because he "filed and processed to settlement unfair
labor practice charges a former employer." Id. at 11.
The Respondent finally reinstated Clement on July 8,
1987, but challenged the amount of backpay due him. At
a backpay hearing held on April 21, Respondent ad-
duced testimony from Larry Scarbrough , line transporta-
tion manager at the Franklin terminal , who, on cross-ex-
amination , acknowledged that he had received the Gen-
eral Counsel 's subpoena but had failed to produce the re-
quested documents either because they no longer existed
or were maintained in Respondent 's Jacksonville , Florida
headquarters.
The drivers at the Franklin terminal were well aware
that a backpay hearing was scheduled in Clement 's case,
and in the weeks which followed the hearing , many of
them discussed the proceeding with him .2 He told his
coworkers about Scarbrough 's testimony indicating that
he had answered questions about his failure to produce
that subpoenaed documents by stating , "I don 't know."
Scarbrough 's testimony at the backpay hearing became a
matter of widespread derision . Jokes about his perform-
ance spread from one driver to another . Driver Richard
Eaton testified that employees began answering Scar-
brough 's questions with a stock answer, "I don 't know"
imitating the line manager's southern accent . On the day
that counsels ' briefs were due in the backpay proceeding,
some wag penned a message on a wall calendar hanging
in the drivers' room at the terminal , "Scarbrough fired."
However, Scarbrough testified in the instant trial that he
was unaware of any such teasing or joking and did not
observe the note on the calendar until sometime in July,
after Clement had been terminated.
A supplemental decision in the backpay case issued on
September 30 wherein the ALJ concluded that Respond-
ent owed Clement $77,959.72 with interest and another
$11,630 to the Teamsters Central States Pension Fund on
Clement's behalf. (Case 30-CA-8074, JD-235-88.)
B. The Present Case
Clement returned to Respondent 's employ as one of 30
extra board drivers; that is, drivers who are dispatched
from the Franklin facility to various terminals through-
out the midwest .3 As members of Teamsters Local 200,
the Franklin drivers were covered by the National
Master Freight Agreement and Central States Over-the-
Road Motor Freight Supplemental Agreement (R. Exh.
1).4 In addition, the Respondent and the Union negotiat-
2 Findings set forth in this paragraph concerning the drivers ' conversa-
tions with Clement about the backpay proceeding are based on the mutu-
ally corroborative and uncontradicted testimony of witnesses Richard
Eaton, Jerry McClellan, and Clement
S A second classification was composed of bid drivers , those who are
assigned to specific routes on a fixed schedule.
4 Hereinafter , Respondent 's exhibits shall be referred to as R. Exh.;
General Counsel 's exhibits shall be designated as G.C. Exh
ed written dispatch procedures which provided, inter
alia, that "Extra board drivers are subject to dispatch
through their home domicile, either turnaround runs or
layover runs ." (R. Exhs . 2 and 3.) Beyond the standards
and requirements set forth in the above agreements, the
Respondent and its drivers also were governed by De-
partment of Transportation (DOT) Federal Motor Carri-
er Safety Regulations . DOT Regulation sec. 395 . 3(a)(1),
of some pertinence to this matter, provides that no driver
shall be required to work more than 15 hours, 10 of
which may be spent driving, following an 8-hour rest
break . (G.C. Exh. 16.) In other words, taking these re-
quirements together , Respondent was permitted to dis-
patch extra board drivers on various assignments as long
as they did not exceed 15 hours of work. In the event a
driver reached his maximum hours of work while he was
on the road at a terminal other than Franklin , Respond-
ent could direct him to "Go to bed" at that location for
the requisite 8-hour rest period.
Clement's tour of duty just prior to the one which led
to his discharge , began at 8:15 a.m . on June 16 and con-
cluded at approximately 12:15 a.m . on June 17, after he
completed two round trips between the Franklin termi-
nal and Respondent's facility in Chicago . He returned to
his home and , although he had the day off, Clement tes-
tified that he was unable to rest while awaiting his next
assignment.
Clement was called at 9 p .m. on July 17 and left
Franklin at 11 p.m. bound for Chicago. He arrived there
at 1 a.m . and left at 3 a.m., arriving in Franklin at 6:45
a.m. after making several authorized stops en route. He
left Franklin at 7:30 a .m. arriving at Chicago for the
second time at 9 : 15 a.m. He left Chicago at 10:15 a.m.
reaching the Franklin terminal shortly after noon.
C. Clement's Discharge
Clement offered a largely unrebutted recital of the
events which immediately preceded his discharge. A
summary of his account follows. On returning to the
Franklin terminal , he began completing his paperwork.
Scarbrough asked him how many hours he had left to
drive to which Clement responded that he was going
home to bed . When Scarbrough repeated his question,
Clement estimated he had approximately 3 of his 15
hours remaining . In fact, he realized shortly thereafter
that fatigue had caused him to miscalculate his time and
that he actually had only 2-1/4 hours left. Scarbrough
then told him that there was more work for him. Clem-
ent replied that he had completed his work and was
going home. Scarbrough then asked if he was refusing
work . Clement responded that he had performed two
trips and that was all he was required to do. Specifically,
Clement stated : "Larry, you know that we are only re-
quired to do two trips. A third trip is up to the driver if he
wants to do it or not." (Emphasis added .) (Tr. at 80.)
Scarbrough demanded that Clement take another run
to Chicago and go to bed there . When Clement again de-
clined insisting that he was going home to bed, Scar-
brough attempted to hand him a warning notice for re-
fusing the assignment . Clement rejected Scarbrough's re-
quest that he accept and sign the disciplinary notice,
P*I*E NATIONWIDE 385
pointing out that the parties' collective -bargaining agree-
ment required that such warnings had to be sent by certi-
fied mail . As Clement prepared to leave the terminal,
Scarbrough again tried to hand him a second and final
disciplinary notice for the same offense ; that is, refusing
to accept the dispatch to Chicago. At this, Clement de-
manded to see the union steward . Determined to proceed
without waiting for a steward , Scarbrough announced
that if Clement refused the assignment , he would be ter-
minated . When Clement said nothing, Scarbrough fired
him on the spot.
Respondent did not cross-examine Clement . Moreover,
when Scarbrough testified on behalf of the Respondent,
he concurred with virtually all of Clement 's account, de-
nying only that Clement had said he was going home to
bed. According to Scarbrough , Clement offered no
reason for his refusal to accept the assignment. By the
same token , Scarbrough gave Clement no reason for in-
sisting that he accept the third run to Chicago . However,
at the trial , Scarbrough stated that the assignment in-
volved driving a rail trailer to Chicago in time to reach a
3 p.m. train bound for Florida. Clement was supposedly
the only driver on hand to make that run. However, ac-
cording to Scarbrough , another driver who arrived at
the Franklin terminal at approximately 12:30 p .m. made
the run, reaching Chicago just in time to meet the train
which fortuitously departed at 3:30 rather than 3 p.m.
Respondent offered no documentation to support Scar-
brough's account . Scarbrough acknowledged that he re-
ceived daily projections of deliveries, but failed to ex-
plain why no other driver was available for an assign-
ment which had a shipment deadline.
Two days later, on June 20, Clement filed a grievance
challenging his discharge on the ground that he had "the
right to turn down a third dispatch." (R. Exh. 9.) This
statement as well as his similar comment to Scarbrough
on June 18 stemmed from Clement 's understanding that
the Union and the Respondent had entered into an agree-
ment allowing drivers to reject third trips to Chicago.
According to Clement, he first learned from a fellow
driver that the agreement came about in late January
after a driver, Bill Hanes, was terminated for challenging
a dispatcher 's order. While seeking reinstatement for
Hanes , Union Business Representative Frank Busalacchi
and Michael Crowley, then labor relations director at the
Franklin terminal , discussed the problem many drivers
had with taking three round-trip tours of duty between
Franklin and Chicago. Although the distance between
the two cities was only 69 driving miles, traffic and road
conditions often made it an arduous and not very profita-
ble experience .5 Therefore, as Clement understood it,
Busalacchi and Crowley agreed that the drivers could
reject a third trip at their option . 6 Clement testified that
during a subsequent telephone call Busalacchi confirmed
this arrangement . Clement and fellow drivers Eaton,
Lynn, and McClellan testified that they also had conver-
sations either with Steward Louie Schmidt or alternate
S Extra-board drivers were paid by the mile . Therefore, they were paid
less for short runs , such as the one to Chicago, even if the trip took an
extended period of time.
s Regrettably , Crowley died shortly before this proceeding com-
menced
Union Steward Lowell Wall who told them that third
runs to Chicago were discretionary . Clement maintained
that over the next few months he sometimes accepted
third trips to Chicago and at other times refused them
without offering any excuse to the various dispatchers in-
volved . However, on one occasion at the end of March,
when Clement refused to accept a third dispatch to a ter-
minal in Manitowoc, Wisconsin , insisting that he had
taken his two trips for the day and was going home to
bed, Scarbrough threatened to withhold full pay. Scar-
brough concluded the dispute by simply noting on a dis-
patch sheet that Clement was too tired to accept an addi-
tional assignment . (See G.C. Exh. 12.)
The four other drivers who appeared as witnesses in
this trial each testified that like Clement they occasional-
ly had taken third runs between Franklin and Chicago,
but even more often , had turned them down without
reason. Unlike Clement, none of them was disciplined or
threatened with discipline by any of the dispatchers for
such refusals . The drivers gave varied testimony as to
when they first learned about the optional third trip.
Eaton stated that Union Steward Schmidt and alternate
Steward Wall told him about the agreement sometime in
April or May. McClellan placed the date in May. Lynn's
testimony was somewhat ambiguous ; it was not clear
whether he said he learned of the agreement from the
stewards in January 1988, or 4 years earlier when he first
began driving for the Company . I am unable to account
for these disparities , and thus can only speculate that the
witnesses either had faulty memories or learned of the
agreement at different times.
Respondent called several witnesses whose testimony
differed not only with the drivers', but with each others'.
First, Union Business Representative Busalacchi con-
firmed that while discussing the grievance which Hanes'
filed to challenge his discharge , he and Labor Relations
Director Crowley reviewed the problem of third runs to
Chicago and reached an understanding which permitted
drivers to refuse third trips to Chicago if they were fa-
tigued or another extra -board driver was available.
Thereafter , he related the substance of this understanding
to Schmidt and Wall . However, Union Steward Schmidt
did not recall that Busalacchi informed him of an agree-
ment reached with Crowley regarding third trips to Chi-
cago and denied having told any driver that such runs
were discretionary . He further stated that if a driver re-
fused an assignment for any reason other than illness or
fatigue, it was considered an automatic quit . I have no
reason to disbelieve Busalacchi 's testimony that he and
Crowley had entered into an understanding or that he
subsequently shared the contents of that agreement with
the Franklin terminal stewards . Therefore, I conclude
that Schmidt forgot having been told that an agreement
was reached , which at a minimum , gave the drivers the
option of refusing third runs if they were tired or if an-
other driver was available . Schmidt's lack of recall may
be due to the fact that during the relevant time period,
that is, from February to the time of the hearing, he was
absent from work while recuperating from an automobile
accident . Although he visited the terminal perhaps once
a week during his convalescence , he was not there on a
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sustained basis and apparently was unaware that drivers
were routinely rejecting third runs to Chicago.
Discussion and Concluding Findings
The complaint raises two separate but related ques-
tions involving alleged violations of Section 8(a)(3) and
(4) of the Act: (1) whether Clement was discharged for
engaging in union activity and (2 ) whether he was dis-
charged for filing charges, giving testimony and pursuing
backpay with the Board . In either instance, the General
Counsel bears the burden of proving that Clement was
engaged in protected concerted activity and that the Re-
spondent penalized him for that reason . If the General
Counsel succeeds in establishing a prima facie case, the
burden shifts to the Respondent to prove that its adverse
action would have been the same even in the absence of
the employee 's protected conduct . NLRB v. Transporta-
tion Management Corp ., 462 U . S. 393, 395 ( 1983), citing
with approval Wright Line, 251 NLRB 1083, enfd. 662
F.2d 899 (1st Cir. 1981), cert . denied 455 U.S. 989
(1982).'
A. The 8(a)(3) Issue
General Counsel contends that when Clement refused
a third dispatch to Chicago , he was asserting a right
based upon what he in good faith believed was a negoti-
ated agreement between the Union and Respondent and
thus, was engaged in protected concerted activity. As
authority for her contention , General Counsel properly
relies on NLRB v. City Disposal Systems, 465 U.S. 822,
831-832 ( 1984), in which the Court, endorsing the
Board's Interboro doctrine,8 reasoned that:
The invocation of a right rooted in a collective-
bargaining agreement is unquestionably an integral
part of the process that gave rise to the agreement.
That process-beginning with the organization of a
union, continuing into the negotiation of a collec-
tive bargaining agreement, and extending through
the enforcement of the agreement-is a single, col-
lective activity.
Thus, an employee is engaged in protected concerted ac-
tivity if he asserts a right which is reasonably and in
good faith grounded in his collective-bargaining agree-
ment . Moreover , as Justice Brennan, writing for the ma-
jority, made clear, the rights asserted need not only be
those expressly stated in the collective-bargaining agree-
ment for "Collective bargaining is a continuing process.
Among other things, it involves day-to-day adjustments
in the contract and other working rules [and] resolution
of new problems not covered by existing agreements."
Id. at 831 fn . 9. Therefore, "even an employee 's initial
refusal to perform a certain job that he believes he has
no duty to perform" may constitute concerted activity.
Id. at 836.
On applying the standards set forth in City Disposal to
the facts in the instant case, I conclude that Clement was
engaged in protected concerted activity within the mean-
ing of the Interboro doctrine . In reaching this conclusion,
I start by noting that Busalacchi , called by Respondent
as its witness, testified without controversion that he dis-
cussed the driver's difficulties with third runs to Chicago
with Respondent 's labor relations consultant and that
they reached an understanding , although it may have
been differed from the one communicated to the drivers.
Further, I credit Busalacchi's testimony that he subse-
quently told the Franklin terminal stewards about this
agreement . Admittedly, he was not on the scene to hear
how the stewards (particularly Lowell Wall) relayed the
terms of this agreement to the drivers nor how it was
put into practice.9
Clement and other drivers may have been mistaken
about the precise terms of that agreement . However, I
am persuaded that he and some of his coworkers had a
reasonable basis for believing that the union business
agent reached an understanding with their Employer
which permitted extra-board drivers at their option to
decline third runs to Chicago. The dispatchers at the
Franklin terminal also must have had some reason to
assume an agreement was in place since they routinely
allowed drivers to reject third runs to Chicago. Undis-
puted testimony regarding the dispatchers' practice in
this regard lends additional support to the reasonableness
of Clement's belief. Therefore, when Clement refused the
third dispatch to Chicago, he was rejecting a task that he
reasonably and honestly believed he was not required to
perform and, thus, was asserting a Section 7 right which
had its source in collective-bargaining activity.
Evidence that Clement genuinely believed he had such
a right comes from several sources : first, at the very
moment that Scarbrough was threatening him with dis-
charge, he asserted , "Larry, you know we are only re-
quired to do two trips . A third trip is up to the driver if
he wants to do it or not." At the trial, Scarbrough did
not deny that Clement made this statement . Indeed, he
expressly acknowledged the accuracy of Clement's ac-
count . Moreover , he gave no testimony that he was puz-
zled by Clement's statement or that he questioned him
about it. Scarbrough 's silence in the face of such an as-
sertion, and his failure to deny that Clement made it sug-
gest that he knew full well that Clement was referring to
and invoking a right granted to extra-board drivers to
turn down third trips to Chicago without reason. Simi-
larly, in filing a grievance to protest his discharge, Clem-
ent claimed the right to refuse third trips to Chicago. It
is unlikely that he would stake his future employment on
a claimed right unless he sincerely believed the agree-
ment gave him that right.
Further, Clement was not alone in believing that such
an agreement existed , for other drivers testified that they,
7 The Board applies its Wright Line burden shifting analysis to alleged
8(a)(4) as well as 8(a)(3) violations . See NLRB Y. Sea-Land Service, 837
F.2d 1387 (5th Cir. 1988).
8Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d
495 (2d Cir. 1967).
9I find it puzzling that Busalacchi and Crowley had to enter into a
special arrangement to excuse drivers who claimed they were fatigued
since drivers always had the option to decline an assignment if they were
overly tired Of course , there was one new element of their understand-
ing-drivers were given the right to reject third trips if another driver
was available.
P*I*E NATIONWIDE 387
too, knew of it. The record shows that regardless of
when they first learned of an agreement , drivers Eaton,
Heimerl , Lynn, and McClellan regularly refused third
runs to Chicago without offering any excuse ; yet, they
suffered no discipline . 10 Respondent did not call as wit-
nesses either alternate Steward Wall who was alleged to
have informed some of the employees of the third trip
agreement , or Respondent 's dispatchers , each ' of whom
was identified as having acquiesced in the practice. Con-
sequently , the drivers ' testimony was uncontradicted that
they freely and frequently engaged in the very conduct
for which Clement was penalized . Since by his own ac-
count, Scarbrough spent long hours in the terminal, he
had to know of a practice of several months duration
which involved at least five drivers and all of his dis-
patchers . Therefore, when Scarbrough singled out Clem-
ent for disparate treatment , it is fair to infer that Re-
spondent was driven by a discriminatory motive. See,
e.g., Southwire Co., 277 NLRB 377, 380-382 ( 1985); Jones
Plumbing Co., 277 NLRB 437 ( 1985).
In addition , contrary to the terms of the parties' col-
lective-bargaining agreement which called for sending
warning notices to employees by certified mail, Scar-
brough handed both a first and second warning to Clem-
ent and then, in rapid order, fired him for a single pur-
ported violation . Scarbrough 's unseemly haste in issuing
multiple warnings for what in reality was one act, sug-
gests that he seized on Clement's conduct as a device to
be rid of an unwanted employee . " See Florida Tile Co.,
255 NLRB 360, 363 ( 1981), affd . 692 F.2d 34 (6th Cir.
1982), cert . denied 464 U.S. 817 ( 1983).
By the time of trial, Scarbrough apparently recognized
that he needed to offer a compelling reason for assigning
a third Chicago run to Clement . Thus, he told a tale
about an urgent delivery that had to reach Chicago in
time to meet a 3 o'clock train . Since he admitted that he
received daily projections of freight deliveries so that he
would know in advance how many drivers were needed,
and since Respondent's trip sheets shows that drivers
often received second assignments at the time they were
first dispatched or called the home terminal on arriving
at another depot, Scarbrough could have easily assigned
this urgent delivery to an available driver well in ad-
vance without waiting until the last moment . Further,
Respondent 's records show that another driver, Marken,
left the Franklin terminal at 12 noon . (See Exh. 11.)
Scarbrough failed to explain why he was not given this
special assignment . I conclude , therefore , that Scar-
brough invented this story so that Respondent could
10 McClellan testified that on one occasion on June 14, a dispatcher in-
sisted that he provide a reason for refusing a third run . He obliged by
saying he was tired in such a facetious manner that the dispatcher knew
he was dissembling. However , McClellan , who impressed me as a par-
ticularly credible witness , implied that even this was an unusual occur-
rence and that he had rejected third runs on many occasions without of-
fering any justification.
11 Scarbrough maintained that he always handled insubordinate con-
duct in the same manner; that is, by giving successive warnings , because
he wanted to "give the employee every opportunity to do what I am
asking him to do , and think about what he is doing ." In my view, Scar-
brough's actions certainly would promote instant obedience , but not
thoughtful response . It is far more reasonable to assume that the collec-
tive-bargaining agreement provided for mailed disciplinary notices in
order to deter the precipitous conduct in which Scarbrough engaged
claim that Clement was the only driver available, and
thereby make his refusal of a third trip appear unjusti-
fied.
In light of the foregoing considerations , I conclude
that the General Counsel has established a prima facie
case that Respondent violated Section 8 (a)(1) and (3) of
the Act by warning and terminating Clement for engag-
ing in protected concerted activity . Before discussing
Respondent 's defenses, I next consider whether the Gen-
eral Counsel also has met the burden of proof requisite
to establishing a prima facie violation of Section 8(a)(4).
B. The 8(a)(4) Issue
Pointing to the Board 's decision in 282 NLRB 1060 as
outlined above, the General Counsel contends that Re-
spondent's treatment of Clement in this case is a continu-
ation of the unlawful discrimination previously practiced
against him. If Respondent 's legal entanglements with
Clement had ended in 1986 when the Board issued its
Decision and Order , or even in 1987 when he was rein-
stated, it would be difficult to find a timely connection
between Clement's prior action before the Board and his
second discharge . But, of course , Clement's reinstatment
did not end his or Respondent 's involvement with Board
processes . In April of this year , the Company once again
found itself on the defensive in an NLRB forum; a back-
pay hearing was required because Respondent disputed
the method used to compute the wages owed to Clem-
ent.
Respondent points out that Scarbrough was not in-
volved in Clement 's earlier termination . However, he
certainly knew that his employer had fired Clement and
had resisted reinstating him. Moreover , Scarbrough was
Respondent 's chief witness at a backpay proceeding at
which Clement was seeking a significant amount of
money from the Company. The transcript of that hearing
shows that Scarbrough acknowledged that he had re-
ceived a subpoena duces tecum from the Board ; that he
was responsible for complying with it, and that he had
not produced the requested documents either because he
had destroyed them or because he had failed to obtain
them from Respondent 's Jacksonville , Florida headquar-
ters. It is not difficult to imagine that Scarbrough felt un-
comfortable if not humiliated by his role in that proceed-
ing. His torment did not end there . His performance
became a matter of common knowledge among the driv-
ers at the Franklin terminal. I find it impossible to be-
lieve that he did not know he was the butt of the drivers'
jokes for their banter went on for weeks and was too
widespread to be ignored . As the General Counsel sub-
mits in her brief: "One need not condone or favor such
behavior by employees in order to find [as I do] that it
may reasonably have fueled Scarbrough's animosity
toward Clement." 12 Scarbrough certainly had good
12 Respondent correctly points out that the transcript of the backpay
hearing shows that Scarbrough never answered questions with the
phrase, "I don't know." However, this does not at all negate the fact that
he failed to produce subpoenaed documents without good reason, does
not lesson the amount of joking that went on about his role at that pro-
ceeding , and does not undermine the inference that Scarbrough did not
look kindly on Clement as the cause of his embarrassment.
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reason to assume that his Employer was not especially
enamored with Clement, having fired him once, resisted
reinstating him the amount of his backpay. Added to
this, Scarbrough appeared at the backpay proceeding as
Clement's primary adversary. Even if he wished to put
that hearing out of mind, he was unable to do so for he
had to endure ridicule about this testimony there for
weeks on end. Given the timing of the discharge which
came on the heels of these events, it is reasonable to infer
that as Respondent's agent, Scarbrough was motivated to
retaliate against Clement because of his resort to the
Board's processes. See Viracon, Inc. v. NLRB, 736 F.2d
1188, 1192 (7th Cir. 1984); Wayne W. Sell Corp., 281
NLRB 583 (1986).
Further, at a hearing before the Union-Management
State Area Committee on Clement's discharge grievance,
Respondent revealed that its animus toward Clement for
successfully seeking the Board' s remedies had not abated.
At the June 29 hearing, Clement read a prepared state-
ment which began, "I had been a road driver for P.I.E.
Nationwide since . . . 1983." The company representa-
tive responded to this statement by announcing that
Clement had not been continuously employed by Re-
spondent for he had been discharged. By referring to
Clement's earlier unlawful dismissal , Respondent violated
the spirit if not the letter of the Board's order which in-
structed that "evidence of this unlawful discharge will
not be used as a basis for future personnel actions against
him." 282 NLRB at 1066.
Based upon a showing of Respondent' s unrelenting
hostility toward Clement and its disparate treatment of
him, I conclude that the General Counsel has more than
adequately satisfied the requisites of a prima facie case
that Respondent issued warning to and discharged Clem-
ent because he continued to invoke the Board's remedial
processes.
C. The Respondent's Defense
In defending its treatment of Clement, the Respondent
submits that Scarbrough behaved in a manner entirely
consistent with his past practice, invariably issued warn-
ings to and fired employees who defied his instructions.
Thus, Scarbrough testified about two other instances
when he had felt compelled to issue multiple warnings.
The first involved a driver, Starks, who, like Clement,
received two warnings and then was discharged when he
refused to accept an assignment from Scarbrough. On
closer examination, however, the Starks affair turned on
facts quite different from those in Clement's case for
Starks refused a dispatch after having completed only
one 69-mile run to Chicago and had 8 more hours left to
work. More importantly, unlike Clement, Starks could
not claim that his refusal was based on an agreement be-
tween the Union and management or on common prac-
tice by other drivers. Thus, he was unjustifiably insubor-
dinate. And yet, his discharge subsequently was convert-
ed to a suspension.
Scarbrough also issued two successive warnings to an-
other employee, Crowell, for failing to submit a report of
his medical examination as required by DOT regulations.
Since Crowell had no reasonable basis for disregarding
the warning given to him, acceded to Scarbrough's re-
quest after the second warning and was not fired, his
case is an inapposite precedent in support of Scar-
brough's claim of consistent conduct. Although other
employees received warnings, the record contains no
evidence to suggest that anyone else beside Starks and
Clement received two warnings in a row followed by
immediate discharge for a single act. These two exam-
ples, different on their facts and more than 3 years apart,
hardly constitute evidence of Scarbrough's consistency
in dispensing discipline. 13
Further, Scarbrough's conduct cannot be examined in
a vacuum. He had to know that his dispatchers were
routinely permitting drivers to reject third trips to Chica-
go. Respondent may not disclaim responsibility for its
adverse treatment of Clement when its dispatchers con-
doned identical conduct by other drivers. Thus, Re-
spondent has failed to disprove the General Counsel's
claim that Clement suffered disparate treatment and has
offered no convincing evidence that Clement would
have been disciplined even if he had not engaged in pro-
tected union activity or invoked the Board's processes. It
follows that Respondent violated Section 8(a)(1), (3), and
(4) of the Act by warning and discharging Clement on
June 18.
In answering the complaint, Respondent urged the
Board to defer this matter to the grievance-arbitration
provisions of its collective-bargaining agreement with
Teamsters Local 200. However, in Filmation Associates,
227 NLRB 1721, 1722 (1977), the Board unequivocally
held that "issues involving Section 8(a)(4) are solely with
the Board's province to decide." The Board further de-
clined to defer to arbitration where, as here, the "alleged
violations of Section 8(a)(3) and (1) of the Act are .. .
closely intertwined with the allegations involving Sec-
tion 8(a)(4)." The Board has adhered to this policy con-
sistently. International Harvester Co., 271 NLRB 647
(1984). Accordingly, Respondent's affirmative defense is
without merit.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By warning and then discharging Patrick Clement
because he invoked the Board's remedial processes and
engaged in union activity by reasonably and in good
faith relying on his understanding of an agreement be-
tween the Union and management , the Respondent vio-
lated Section 8(a)(1), (3), and (4) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has violated Section 8(a)(1).
4. The above-cited unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
18 I do not find that Scarbrough's handling of Clement's earlier refusal
of a third trip to Manitowoc is relevant to his conduct on June 18. The
previous refusal , which occurred prior to the backpay hearing, did not
result in a warning because Scarbrough contented himself with Clement's
comment that he was tired
P*I*E NATIONWIDE
THE REMEDY
Having found that Respondent has violated Section
8(a)(1), (3), and (4) of the Act, I shall recommend that it
be required to cease and desist from and in any other
manner interfering with the rights of employees guaran-
teed by Section 7 of the Act. Since Respondent had
demonstrated a continuing propensity to discriminate
against Clement , I conclude that a broad cease-and-desist
order is required.
Further, having concluded that Clement was wrong-
fully discharged , I shall recommend that the Respondent
be ordered to offer him immediate and full reinstatement
to his former job or, if it no longer exists , to a substan-
tially equivalent position , without prejudice to his senior-
ity or other rights and privileges , and make him whole
for any loss of earnings and benefits that he may have
suffered from the time of his discharge to the date of the
Company's offer of reinstatement . Backpay shall be com-
puted on a quarterly basis, less net interim earnings in ac-
389
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).14 Also, I shall recom-
mend that the Company be ordered to expunge from its
records any reference to the unlawful discharge of Pat-
rick Clement, to give him written notice of such expun-
gement and advise him that its unlawful conduct will in
no way be used for further personnel actions against him.
I shall grant General Counsel 's motion for a visitator-
ial clause, for the record in the backpay proceeding to-
gether with the recent ALJ decision in that matter (JD-
235-88) indicate that the Respondent , having previously
failed "to cooperate or otherwise attempt [ed] to evade
compliance" may do so again. Cherokee Marine Termi-
nal, 287 NLRB 1080 ( 1988).
[Recommended Order omitted from publication.]
14 Under New Horizons for the Retarded, supra, interest is computed at
the "short-term Federal rate" for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621.