Roadway Express Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 1117 (N.L.R.B. 1970)

ROADWAY EXPRESS , INC. 1117
Roadway Express Inc. and Charles A. Regan. Case
3-CA-3794
April 14, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Roadway
Express, Inc., Tonawanda, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
On December 30, 1969, Trial Examiner George J.
Bott 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. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
as to those allegations.' Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the heaiing 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 brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
'In the absence of exceptions thereto, we adopt , pro forma, the Trial
Examiner's dismissal of allegations that the Respondent violated Section
8(axl) by terminal manager Voelker's statement to payroll clerk Martin
that he was going to get Regan , terminal operations supervisor Heckman's
comment to Martin to the effect that there ought to be some way to get
Regan, and supervisor McDonnell 's statement to Regan that the Company
knew he had visited an attorney
'in adopting the Trial Examiner ' s finding that the Respondent had
knowledge of Regan 's protected activities , we note, in addition to the
reasons relied upon by the Trial Examiner in his decision that Regan was
present when employee grievances with regard to the "Breakbulk"
agreement were discussed with terminal manager Voelker in Voelker's
office prior to Regan's discharge
'The Employer 's exceptions , in large part , are directed to the credibility
findings made by the Trial Examiner It is the Board 's established policy
not to overrule ` a Trial Examiner's resolutions as to credibility unless, as is
not the case here , a clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, Inc . 91
NLRB 544, enfd 188 F 2d 362 (C A. 3) Nor do we find merit in the
Employer 's contention that because the Trial Examiner generally
discredited the Employer 's witnesses and credited the General Counsel's
witnesses , his credibility resolutions are erroneous or attended by bias or
prejudice N L R B v Pittsburgh Steamship Co. 337 U S 656
Accordingly, we find no basis for disturbing the Trial Examiner's
credibility findings in this case
STATEMENT OF THE CASE
GEORGE J BOTT, Trial Examiner: Upon a charge of
unfair labor practices filed by Charles A. Regan on June
6, 1969, against Roadway Express Inc., herein called
Respondent or Company, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing dated July 30, 1969, in which he alleged
that Respondent had engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, herein called the Act
Respondent's answer admitted certain allegations of the
complaint but denied the commission of any unfair labor
practices. A hearing was held before me in Buffalo, New
York, on September 23 and 24, 1969, at which all parties
were represented, subsequent to the hearing, Respondent
and General Counsel filed briefs which have been
considered.
Upon the entire record' in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a common carrier by truck in the
interstate shipment of general commodities Respondent's
Tonawanda, New York, terminal is the only location,
involved in this proceeding During the year prior to the
issuance of the complaint, Respondent performed trucking
services valued in excess of $1,000,000, of which services
valued in excess of $50,000 were performed between the
State of New York and other states
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Local 375, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The Discharge of Charles A Regan
1. Regan ' s activities in opposition to the supplemental
"breakbulk " agreement
Regan, a dockman and checker at Respondent's
Inc transcript is somewhat garbled in reporting the Trial Examiner's
ruling relating to the effect of the decision on Regan's grievance protesting
his discharge as a violation of contract The last four words on line 10,
page 72, for example, should be "it is not res adjud,cata "
181 NLRB No. 175
11 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tonawanda terminal, was discharged on March 10, 1969,
for chronic absenteeism and tardiness, according to
Respondent, but, according to General Counsel because he
and other employees had engaged in protected concerted
and union activities in opposing a supplemental agreement
the Respondent and the Union executed in July 1968
which affected the working conditions of unit employees
For sometime prior to August 1968, Respondent's
Tonawanda terminal was an end of the line terminal
servicing the Buffalo area, and its 30-odd dockmen
worked a 5-day week with premium pay for work on the
6th and 7th day. On July 18, 1968, Respondent and the
Union signed a supplemental agreement establishing a
breakbulk terminal to be effective as of August 25, 1968
This agreement made radical changes in the operations of
the terminal from a management point of view, but all
that we need be concerned with here is that it changed the
employees' workweek to 7 days a week, 24 hours a day.
This caused the dockmen to believe that they were being
deprived of premium pay and that casual labor was being
used to do work which the regular dockmen normally
performed.
Regan said he learned about the supplemental
agreement to the collective bargaining contract when
Clayton, president of the Union, visited the terminal and
met with the assembled employees. Clayton explained that
from then on the workweek would be different, but Regan
and other employees were dissatisfied with the
arrangement and decided to do something about it. The
date of the Clayton explanation to the members working
at Respondent is not clear in the record, but, in any case,
according to Regan's credited testimony, the employees
selected a committee of four, including himself, Foley, a
union steward, and employees Korda and Pepperday, to
investigate the problem created by the change in
operation. This occurred before November 1968, when
Regan and Steward Foley visited and retained Attorney
Henry O'Brien to assist them
O'Brien advised the employees to use the grievance
procedures of the collective-bargaining agreement to
obtain relief. On November 29, 1968, O'Brien wrote
Clayton, the Union's president who had signed the
supplemental agreement which the employees were
unhappy about, and told him that he had been consulted
by Donald Foley, steward, and Charles Regan, dockman,
as to their rights under the supplemental agreement. He
informed Clayton that he had advised the employees that
certain provisions of the "Breakbulk" agreement were in
violation of the existing collective bargaining contract and
that the men should file grievances in that regard O'Brien
also cautioned Clayton that if he did not have an
employee ratification meeting on the supplemental
agreement, which, in his opinion, was required by the
master agreement, then O'Brien would take further action
The writer concluded by letting Clayton know that he had
told the men to consult him again if they were not
satisfied after "exhausting their remedies under the
contracts "
In line with O' Brien 's advice, four grievances were filed
on December 26, 1968. Twenty-eight of approximately 30
to 35 dock employees, signed one of them and a smaller
group of employees signed the others Regan's .lame was
on two grievances at the top of the list. Regan also
discussed these grievances with Terminal Manager
Voelker on one occasion when he accompanied Steward
Foley to Voelker's office.
Regan testified credibly that he continued his activity
with respect to the effects of the new operation during
January and February 1969. In January 1969 he prepared
a notice and posted it on the terminal bulletin board
announcing a meeting of employees. Regan was unable to
say that the notice was signed by him, but he took part in
the meeting and answered dockmen's questions. There
were two other similar meetings. According to Regan, at
these meetings, the employees were informed about what
advice O'Brien had given and what progress had been
made As a member of the committee, he, along with
Foley, Korda and Pepperday presided at the meetings
2 Evidence with respect to Respondent's knowledge
and opposition to Regan's activities relating to the
breakbulk agreement
There is a substantial amount of testimony, but it is all
contradicted, that management knew of and opposed what
Regan and Foley were doing in regard to the change in
operations resulting from the supplemental agreement
Many of the employees and supervisors frequent a
restaurant and bar near the terminal called the Nitecap
Lounge, and this is where some of Respondent's
supervisors are supposed to have revealed to Regan, Foley
and others that Regan was heading for discharge if he
continued his activities. In considering this testimony it is
necessary to keep in mind that Regan was allegedly
discharged for excessive absenteeism and tardiness and
that it is a fact that his record in those respects was poor
Regan had worked for Respondent about four and one
half years, and during that time had been supervised by
McDonnell, Fox, Hunt and others. He testified that he
met McDonnell by chance at the Nitecap Lounge in
December 1968 and exchanged a few pleasantries with
him During the conversation which then occurred, he said
McDonnell warned him that he ought to be more careful
about getting to work because the Company was building
a case against him because it knew that he and Foley had
been to see a lawyer about the change in operation
In January 1969, according to Regan, Supervisor Fox
told him in the same bar to guard against absenteeism, to
see to it that he made no mistakes in his work and not
overstay his rest periods. Regan asked Fox why he was
giving him this advice, and he said that Fox told him that
he thought the Company was watching him closely. Regapi
probed deeper for a reason, and Fox first avoided an
explanation by telling him to "figure it out" for himself
When Regan suggested that he was being watched because
he was involved with Foley in opposing the change in
operations, Fox admitted that such was the case.
Regan was late getting to work in January and
telephoned Supervisor Fox to let him know about it Fox
told him that he could not let him start work when he
arrived because Terminal Manager Voelker had ordered
him not to let Regan begin work if he appeared after the
shift began. Regan admitted that he had been late on
previous occasions and had called the terminal about it
According to him, and this is uncontradicted, on some
occasions he was permitted to work and others he was
not, but this was the only time that Fox had told him that
Voelker had given instructions about him.
Gary Hunt was a close friend of Regan's and was dock
foreman in February 1969 Regan testified that Hunt
ROADWAY EXPRESS, INC. 1119
telephoned him at home and warned him to be careful
about being late or absent and not to take too long for
lunch. Regan asked Hunt for a reason, and Hunt told him
that "they are building a case on you " Regan said he
tried to elicit more information, but Hunt only said "Its
just a word to the wise."
McDonnell, Fox, and Hunt all denied telling Regan
that the Company was watching him or building a case
against him because of his activities in opposing the
breakbulk agreement, and each of them said that he was
unaware that Regan was opposed to the agreement.
McDonnell testified that he did visit the Nitecap bar
and occasionally spoke with Regan there. In addition to
specifically denying that he had warned Regan for the
reasons Regan had given, -he explained that he had
discussed Regan's work record with him in a friendly way
urging him to mend his ways lest he get himself in
trouble. He said Regan would either shrug off the advice
or admit his delinquencies.
Fox is presently a terminal operations manager, but
supervised Regan as dock foreman in January 1969. He
said he had no recollection of a particular conversation
with Regan at the Nitecap Lounge about Regan's work,
but he said he had conversations with Regan there. Any
discussions he had with Regan about work were connected
with his absenteeism and tardiness, and nothing else
Hunt said he recalled no telephone call to Regan's
home in February 1968, but he said he had talked with
Regan about absenteeism at the terminal He said he was
concerned about Regan because they had been friends,
and he did not want to see him lose his job. Regan's reply
to his admonition was that he would try to get to work on
time and not take too much time off. As already
indicated, Hunt denied giving any warnings based on any
activities Regan may have been engaged in or having
indicated that the Company was watching him or building
a case. Like the other supervisors, he denied that anyone
in management had instructed him to watch Regan.
Union Steward Don Foley, was also a good customer
of the Nitecap Lounge. He testified that Supervisor
McDonnell spoke with him at the Nitecap in December
1968 and told him to tell Regan to watch his step because
the Company was out to get him because he and Foley
were resisting the supplemental agreement. Foley
maintained that what the men were doing was right, and
he said that during the talk McDonnell added that
Respondent was "going to get" both Regan and Foley
"sooner or later."
Terminal Operations Supervisor Heckman dropped into
the Nitecap Lounge after work sometime in December
1968 and spent 3 or 4 hours, an hour or more of it
admittedly talking with Foley about Regan. Foley testified
that Heckman, in the presence of Pepperday, another
employee, told him that he and Regan were going to get
themselves in trouble because they were "fighting the
contract." Heckman argued that there was nothing the
employees could do about what had already been decided,
and warned Foley that "They might not be able to get
you because you're steward, but they can get Chuck
Regan."
Ronald Pepperday overheard part of the long
conversation between Foley and Heckman at the Nitecap
in December 1968. The breakbulk agreement was
mentioned specifically and often in the discussions, he
said, and he heard Heckman argue heatedly to Foley that
he ought to let matters rest because the contract was not
going to be changed and there was no sense in fighting.
As Foley continued to debate his case with Heckman,
Regan's name got into the discussion, and Pepperday
testified that Heckman made a remark to the effect that
"with a record like Regan's, Roadway could get him or
anyone else."
McDonnell conceded that he had talked with Foley at
the Nitecap Lounge many times, but he denied that he
told him that Regan should watch his step because the
Company was out to get him for fighting the breakbulk
agreement.
Heckman testified that the entire discussion with Foley
was concerned with Regan's record of absenteeism, and
the supplemental agreement changing the terminal to a
breakbulk operation was never mentioned He said that he
knew at the time that Regan was away from work too
often because he had been getting warning letters from the
Company about it He reasoned that if he talked to Foley
about Regan's problem, as he had about several other
employees, Regan might mend his ways. Foley's response
to this, he said, was that he could do nothing for Regan.
Heckman denied that he knew that Regan and Foley were
against the agreement which permitted the change in
operations, or that he told Foley that Regan was in
trouble and the Company was going to get him. What he
did say, according to him, was that if Regan did not
straighten himself out, he would be dismissed because of
his work record.
Although most of the Respondent's alleged admissions
about the reason for its intense interest in Regan's work
habits occurred at the Nitecap Lounge, there is also some
evidence of supervisory scrutiny of Regan's conduct at the
plant for improper reasons. Employee Williams, who is
also the steward on the night shift, testified that in very
cold weather it is the custom for dock employees to leave
the dock for a short while to warm themselves If
employees stay away an unreasonable length of time, the
dock foreman hunts them out and sends them back to
work. He stated that in January 1969, Hunt, the dock
foreman, told him that foremen had been notified to time
Regan when he left the dock in such a situation and not
to call him back no matter how long he remained away
from his duties Later that day, according to Williams,
Hunt told him that the Company was going to watch and
to get Regan because he had been involved in "some sort
of claim for 8 hours pay."2 Williams also had a third
conversation with Hunt about Regan at or about this time
in which Hunt stated that if Regan transferred from the
first shift to the second he would be "out of the limelight"
and the Company would let up on him
Williams also frequents the Nitecap Lounge, and he
testified that Foreman Fox told him there in January 1969
that Regan ought to be on guard because the Company
was out to get him, and if he did anything wrong he
would be hanged for it.
Hunt and Fox denied making the statements attributed
to them by Williams. Hunt never talked with Williams
about Regan's employment, he said, and Fox had no
recollection of seeing Williams at the Nitecap bar in
January He said the only time he ever spoke with
Williams there was in August, 1969, but the conversation
did not concern Regan
Miss Gay Martin, a former office employee and payroll
clerk, also testified about Respondent's interest in Regan's
work record. She said that Terminal Manager Voelker
instructed her in the second week of December 1968 to
'Regan had successfully filed a grievance involving pay around this time
which was unrelated to the breakbulk problem
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
call to his attention any evidence of tardiness appearing
on Regan's timecards even if it amounted to only one
hundredth of an hour. When she asked Voelker what was
going on, he replied that,- "we are going to get him."
Neither Voelker nor any other supervisor had ever in the
past asked her to inspect any other employee's timecards
and report on tardiness or absenteeism. Martin proceeded
to survey Regan's arrivals and reported regularly to
Voelker up to the time of Regan's termination.
In January 1969, Martin said she asked Terminal
Operation Supervisor Mac Master why Regan was being
watched, and he answered that Regan was a
"troublemaker" and "too involved."
In early February 1969, Martin spoke with Terminal
Operations Supervisor Cox at work. She said she asked
him if "they are still out to get Regan," and he said,
"Yes."
In late February or early March 1969, as Martin was
preparing timecards for transmission to the Company's
Akron office, Terminal Operations Supervisor Heckman
asked to see Regan's timecard for that week, she said.
When Heckman had finished inspecting it, he stated,
"There must be some way to get him. If it were up to me,
I would have had him and a few others at this time."
Cox, McMaster and Heckman, although admitting
frequent contacts with Martin in the ordinary course of
employment, denied that they had made any of the
statements about Regan she said they had, and all three
said that they had no knowledge that Regan was involved
in any activity at the time the remarks were supposed to
have been made. Terminal Manager Voelker did not deny
that he may have asked Martin questions about Regan's
absences or tardiness, but he said that he might have done
this also with respect to any other employee so that he
could make periodic reviews of their records. He admitted
that he was checking Regan's records at that time because
of his previous absences, but this, he said, was along with
the records of others. He denied, however, that he told
Martin that the reason for his interest in Regan's
timecards was in order to "get Regan."
3. Regan and absenteeism and tardiness
Records in evidence show that, between October 1968
and March 1969, Regan was absent from work on 17
days. These absences were normally of one day's duration
and were for sickness or personal business. Between
October 1 and December 30, 1968, Regan was absent 11
times. On December 30, he received a warning letter, and
on December 31 he was suspended. Between January 1,
1969, and February 13, 1969, Regan was absent five times
and was again suspended for absenteeism. After his return
to work on February 28, Regan was absent once on
March 10, and was discharged for chronic absenteeism
and tardiness
Voelker testified about Regan's record and added some
information about him to the bare records in evidence. He
said that a letter he sent to Regan on December 28, 1968,
advising him that his record "over the past three months
is at an alarming high rate" and warning him of possible
discharge in the event that his poor attendance record was
maintained, was sent after he had reviewed Regan's
record After Regan was suspended for 3 days on
December 31 because he was absent and had not called in
to report his absence, until the shift had started, he filed a
grievance, but subsequently withdrew it
Regan continued to miss time, Voelker said, and, on
February 13, he was suspended for 10 days On February
17, however, Voelker wrote Regan and advised him that
the suspension would be reduced to 5 days. It appears
from the letter, and Voelker also testified without
contradiction that the reduction was arrived at after a
conference with Clayton, president of the Union, and
Union Steward Foley in which it was suggested by
Clayton and agreed that Regan change to the afternoon
shift to help resolve his absenteeism problem ' Regan
approached Voelker personally after the Union had met
with him and explained that his absences had been caused
by "domestic problem of a personal nature" which had
been solved, and Voelker reduced the suspension further
to 4 days.
Voelker said that he personally spoke to Regan a
number of times in his work area about absenteeism and
tardiness. In addition, he met with him and Foley in his
office on or about February 15 to discuss the matter and
make it clear that Regan faced discharge if he did not
improve. On February 28, 1969, Voelker had to warn
Regan again because he was late for work. The letter
stated that Regan had been verbally told that he would
face immediate discharge if he were late again, and it
concluded that "Absenteeism or tardiness by you, as
stated in each of your warning letters and letters of
suspension will result in immediate discharge."
On March 10, Regan failed to report, and that day
Voelker sent a telegram to his home informing him of his
discharge.
Regan filed a grievance under the contract protesting
his discharge, and the case was heard on March 13 by the
Joint Grievance Committee made up of three union and
three employer representatives. Regan was not present,
but representatives of the Union were, and Voelker
presented Respondent's evidence on Regan's work record.
The Committee upheld Regan's discharge
At the time the Respondent entered into the breakbulk
agreement it employed approximately 32 dockmen, but
subsequently the staff was increased to approximately 60
as a result of the change in operations During the last
several years there has been little turnover in employment;
three persons had been fired, including Regan, and two
quit, according to Voelker. All three persons discharged
have been discharged for absenteeism; one person, Cole,
was discharged in 1967, prior to the Regan issue, and the
other, Patti, was fired about 2 months before the hearing
in this case, and is presently the subject of a grievance.
One of the subsidiary issues in the case is how Regan's
record compares with others, because General Counsel
contends that Regan was singled out for discharge from
other dockmen whose records were similar. Voelker gave
testimony on this point
Voelker surveyed the absenteeism records of a group of
employees and testified that, in his opinion, based on the
documents themselves and certain information not
apparent from them, Regan's absenteeism problem was
more "severe" than the others. Briefly, he said that Foley,
the steward, who the records show has been absent as
much as Regan in an equal period, did not show the same
pattern as did Regan in that he had no earlier record of
the same problem and his excuses were somewhat
different. Moreover, Foley has also been warned of
discharge, if his habits do not change.
'It appears that Regan did not go along with the arrangement, and he
stayed on the day shift until he was terminated
ROADWAY EXPRESS, INC.
Regarding Welborn, whose records show that he was
absent 16 times in a 6-month period, which was one less
than Regan, Voelker noted that he had been injured in an
automobile accident, accounting for part of his time off.'
The records in evidence also show that Welborn was
verbally warned about discipline and threatened in writing
with removal from the payroll for unexplained absence in
July 1969. Subsequently he went into the Army.
Employee Butcher, for the 6-month period March 1 to
August 30, 1969, shows 24 unexcused absences. Butcher
had been warned and suspended over absenteeism more
than once. Voelker explained that Butcher was a new
employee in November 1968, and so no pattern had
developed when he made the decision in Regan's case In
addition, Butcher had consecutive days of sickness, not
single days, as in Regan's case.
Supervisors McDonnell and Fox both testified that they
had spoken with Regan and with Foley, the Union's
steward, about Regan's tardiness and absenteeism.
Supervisor Hunt, who had been a close friend of Regan,
also stated that he warned Regan in February 1969 to be
careful about being late or absent, although, as set out
above, he denied that he connected Regan's activity
against the breakbulk operation with the warning. He also
stated that other employees reported late about as many
times as Regan and he spoke with them too about it.
Clayton, president of the Union, testified that he
learned about Regan being absent in early 1969 when he
received copies of the warning letters as required under
the labor agreement According to Clayton's
uncontradicted - testimony, he spoke with Regan about
absenteeism and tardiness three or four times in the first
few months of 1969, and he also discussed the matter with
the Company and with Foley in order to prevent
disciplinary action against Regan He recalled the
arrangement whereby it had been agreed that Regan
would transfer to the second shift, and he said he was
surprised to learn from Voelker that Regan had not
accepted the arrangement. With respect to absenteeism
generally, Clayton stated that the Respondent had a
"bad" problem in that respect and had called to his
attention the records of certain employees in that regard.
He recalled talking with the Company about Regan, Patti,
Cole, Welborn and even Foley, but he could not
remember Butcher.
4. Resolution of the credibility issues involved in
management's statements about Regan's activities
Ultimate findings on what various company
representatives said to Regan and others about his
activities, and what the Respondent might do about it had
to await an outline of the evidence on tardiness and
absenteeism, because these matters were admittedly
involved in almost all of the conversations in which a
management representative is supposed to have warned
Regan to be careful because Respondent was out to get
him. From the evidence set out on absenteeism it is clear
that it would not have been odd or unusual for a
supervisor to interest himself in Regan's reporting habits
and mention it to him in a friendly but admonitory way,
and this must be kept in mind in resolving the credibility
problems Nevertheless, I find that the supervisors made
the statements that General Counsel's witness said they
did and connected their warnings to or about Regan with
'The figure of 16 includes only isolated absences , like in Regan 's case,
not a lengthy illness of 2 weeks in July
1121
his activities in opposing the breakbulk agreement.
First of all, Regan impressed me as telling an honest
story without exaggeration. He did not minimize his
reporting problems and did not seem to inflate his
accounts of his contacts with supervisors at the Nitecap or
over the telephone, as in Hunt's case. Moreover, in regard
to Hunt's warning to watch himself because Respondent
was building a case on him, Hunt and Regan had been
good friends, apparently until this case arose, for Hunt
was godfather for Regan's daughter, and Regan godfather
for a child of Hunt's It is unlikely that Regan would
fabricate the conversation, but is not beyond
understanding how Hunt, as a management representative
with other loyalties, would deny that he had given his
friend a friendly tip.
I also find that McDonnell told Regan that the
Company knew that he and Foley had consulted a lawyer
about the change in operations and was building a case on
him because of it. Similarly, I find that Supervisor Fox
warned him to be careful in all respects because he was
being watched closely because of his involvement with
Foley in opposing the change in operation. Both
McDonnell and Fox, in addition to denying that they had
any information that Regan was involved in anything in
January and February, 1969, indicated that they were also
fairly ignorant about the employees being concerned or
upset over the change in operations at all This professed
lack of interest or knowledge impressed me as contrived.
Although, in my opinion, Foley was not completely
candid about knowing that Regan was having an
absenteeism problem before Voelker called him and
Regan into his office in February to talk about it, I credit
him over Heckman whose insistence that he never
mentioned the breakbulk contract once in a conversation
with Foley lasting much over an hour I find incredible.
This was another example of some of management's
witnesses down-playing the effect of the change in
operations on employees and the interest and talk it must
have engendered Moreover, Pepperday was present
during a substantial part of the conversation, and he
corroborated Foley. Pepperday stated that the principal
part of the long argument that Heckman, Foley and he
engaged in was over the change in operations and that
Regan's name was only incidentally mentioned, and, of
course, this was the logic of the situation as it would have
developed between the people involved in the debate. I
find that, in December 1968, Heckman made the
statements about Regan that Foley and Pepperday said he
did to the effect that Regan and Foley would get into
trouble for fighting the contract under which operations
had been changed, and that Respondent might not be able
to get Foley because he was a union steward, but it would
get Regan. I also believe and find that McDonnell told
Foley in the Nitecap Lounge in December 1968, in a
conversation about the change in operations in which the
employee grievances and appeals to the Joint Grievance
Committee were discussed, that the Company was out to
get him and Regan because they "were fighting the Union
contract." Foley's version of how the remark was made in
the context of a discussion of grievances arising out of-the
change in operations was natural and was more credible
than McDonnell's suggestions in his testimony that he
knew of no real employee problems connected with the
new agreement
Supervisor Hunt stated that he had never talked with
employee Williams, who is also the Union's steward on
the night shift, about Regan's employment, but I credit
Williams' testimony to the effect that Hunt told him the
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was out to get Regan because he had won a
claim for unpaid wages; that supervisors had been told to
time Regan when he went on breaks; and that if Regan
would transfer to the night shift the Company "would
more or less lay off him," because he would be out of
sight. It is of some significance in this connection that
subsequently the Respondent did offer Regan a transfer to
the second shift.
Although Miss Martin is a friend of Regan's and
Foley's and has seen them both socially, and I assume she
was friendly with them when the events in this case took
place, I find that there is no reason to discredit her
testimony that Terminal Manager Voelker and
Supervisors Cox, MacMaster, and Heckman made
statements to her about Regan indicating that he was
being watched carefully. Voelker did not really deny that
he asked her to bring any deviations from the standard
work schedule which might show on Regan's timecards to
his attention, and I credit her testimony that Regan was
the only employee who got this kind of attention, for there
is no evidence of any substance in the record that anyone
else did In addition, I find that when she asked Voelker
what the purpose of his direction was, he told her he was
going to get Regan.
There does not appear anything abnormal to me about
Martin's curiosity in regard to Regan and her daily
inspection of his timecards, and I credit her testimony
that when she asked MacMaster in January why Regan
was being watched so carefully, he replied that Regan was
a troublemaker and "too involved." Similarly, I credit her
over Cox, and I find that when she asked him if "they"
were still "out to get Regan," he said they were.
Heckman I have previously discredited as incredible, and
I find that he said to Martin in late February or early
March, after he had inspected Regan's timecard, that
there "must be some way to get" Regan, and, if it were
up to him, he would have taken care of it by that time.
5. Analysis, additional findings, and conclusions in
Regan's case
Regan admitted he was tardy and absent even after
being warned about it. There really is no substantiated
evidence as far as tardiness is concerned that he was
significantly worse than the average employee, but with
respect to absenteeism, at least for the period October to
March, he appears to have led the list of those off work
without excuse. It also appears, however, that in given
6-month periods, which do not coincide with the 6-month
period in Regan's case, Foley's, Welborn's and Butcher's
records were worse than Regan's. On the other hand,
Respondent has issued warnings to and imposed
suspensions on persons like Foley, Welborn and Butcher,
and it also fired two other persons for absenteeism, one of
them after the proceeding in this case commenced. I find,
therefore, that Respondent had cause to fire Regan if it
acted without regard to his activity in the grievance field,
but I also find that his conduct, compared with others,
was not so far from accepted standards that
management's action in discharging him speaks for itself
and carries its own justification. Respondent's action in
Regan's case is equivocal; it could very well be proper, or,
if motivated by illegal considerations, discriminatory. On
analysis, I find that a preponderance of the evidence
establishes that Respondent was substantially motivated in
discharging Regan by resentment over his activities in
taking the actions he did with Foley, Including
participating in rank-and-file meetings, acting as one of
four committeemen chosen to take further action,
retaining an attorney, and filing grievances, all in
resistance to the supplemental agreement with the Union
which was the only contractual foundation in the labor
relations field which could justify the impact on employees
of the change in operations S
Respondent denied that it knew that Regan was active,
but I have found from the statements of supervision that
it did. It is also logical to find from the circumstances
themselves that Foley's and Regan's activities would
naturally come to Respondent's attention. The breakbulk
agreement was important both to the Company and the
Union On November 29, 1968, Attorney O'Brien wrote
Clayton, president of the Union, who had signed the
breakbulk agreement on behalf of the Union, and advised
him that Foley and Regan had consulted him about the
agreement. O'Brien's letter, after informing Clayton that
in the writer's opinion the agreement was in violation of
the overriding labor contract and that the men had been
advised to file grievances, ominously notes that Regan and
Foley have been advised to consult further if they are not
satisfied As O'Brien had advised, the grievances were
prepared and filed on December 26, 1968, and they
showed that much more than half the bargaining unit had
complaints arising out of the supplemental contract. Two
days later, Regan received his first warning in at least a
year 6 Not only is the timing significant, but Clayton,
although stating that "to his knowledge" he did not
discuss O'Brien's letter with representatives of
Respondent, agreed that it was "possible" that he did. As
a responsible union official, it would have-been unnatural
if he had not brought the matter to the attention of the
other party to the contract. In the light of the
circumstances described, I find that O'Brien's
communication to Clayton was passed onto the
Respondent and Respondent knew not only that the
employees were bothered about the Union-Company
arrangement, but were planning legal action to upset it.
At that point, and because of that, if for no other reason,
Foley and Regan were the leaders in the movement in the
Company's eyes.
The remarks which I have found that the supervisors
made to Regan and Foley and others forecast reprisals as
a possibility because the two had seen a lawyer and "were
fighting the contract." Regan, I have found, was carefully
watched. One supervisor said he had given him "breaks"
in the past, and Welborn and Butcher appear to have been
treated kindly by Respondent despite their poor records.
No one can say with complete certainty how Regan would
have been dealt with if he had not bucked the Union and
the Company and exercised his statutory rights. It is a fair
inference, which I draw, from the whole record and
particularly on the basis of management's intense interest
in his daily habits and the various warnings and comments
which connected Respondent's observation of him with the
protected activities he was engaging in, that he would have
been treated differently if he had not engaged in those
activities. I find, and conclude, that Respondent was
substantially motivated in discharging Regan because of
'These activities are protected, and a discharge on that basis violates
Section 8(aXI) and (3) of the Act H E Wiese, Inc. 169 NLRB No 145,
Price Brothers Company, 175 NLRB No 47, Pride Candy and Tobacco
Company, 178 NLRB No 16
'Voelker said he was warned and suspended in 1967, but Regan had no
recollection of it There are no documents in the case to support Voelker's
claim, and I accept Regan's testimony that his problems began in the fall
of 1968 In any case, Voelker said that Regan unproved in 1967 and did
not backslide until October 1968
ROADWAY EXPRESS, INC.
his activities in opposition to the breakbulk agreement. By
such conduct, Respondent violated Section 8(a)(1) and (3)
of the Act.'
6. The arbitration of Regan's discharge
Regan was fired on March 10, and his grievance was
heard on March 13, 1969, by the Joint Grievance
Committee provided for under the labor agreement. The
Committee upheld Regan's discharge and it is conceded
that the only issue it considered was Regan's absenteeism
and that it did not consider whether Regan was discharged
because he exercised rights protected by the Act.
Respondent argues that it has been concluded in a
proceeding apparently fair and regular that Regan's
record justified his discharge and that the Board should
defer to that determination. Without reference to the
fairness of the proceeding in the facts of this case, since
the issue involved here is different from that heard by the
committee, I find that the Joint Grievance Committee's
decision is no reason why the Board should stay its hand.'
B Alleged Independent Violations of Section 8(a)(1)
of the Act
Although some of the warnings about what would
happen to Regan and Foley if they continued with their
activities may have been given with the best of intentions,
nevertheless, no matter how close the relationships
involved between the speaker and listener or how informal
the atmosphere in which the statements were made, they
were bound to have had an inhibiting effect on the listener
and coerced and restrained him in the exercise of his
rights under the Act. I find, therefore, as alleged in the
complaint, and as set out more fully above, that
Respondent threatened its employees with reprisals
because of their union and concerted activities in violation
of Section 8(a)(1) of the Act by:
I Heckman's warnings in December 1968, in the
Nitecap Lounge, to Foley and Pepperday
2. McDonnell's warnings on two occasions, at the same
bar in December 1968, to Foley and Regan separately
3 Fox's warnings to Regan and Williams, in January
1969, in the Nitecap Lounge.
4. Hunt's statements to Williams, in January 1969, at
the terminal about Regan, and his warning to Regan in
his telephone call to him in February 1969.
I do not find that Voelker's statement to Martin that
he was going to get Regan, or Heckman's comment to her
that there ought to be some way to get Regan were
violations of the Act in the absence of evidence that
Martin was aware at the time of the kind of activity
Regan was engaged in or the reason for the statements.
Although the statements are evidence of Respondent's
motive in discharging Regan, they are not coercive on
their face
I also find that it would be totally unrealistic to find, as
alleged in the complaint, that Respondent was attempting
to create the impression of surveillance when McDonnell
told Regan that the Company knew he had visited an
attorney.
'N L R B v. Solo Cup Company, 237 F 2d 521, 525 (C A 8), where the
court said , that a "justifiable ground for dismissal is no defense if it Is a
pretext and not the moving cause "
IN L R B v Strong, 339 U S 357, 361, Klann Moving & Trucking Co
v NLRB,411 F.2d261 (CA 6)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
1123
It is found that the activities of the Respondent set
forth above in section III, occurring in connection with its
operations described ►n section 1, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
it will be recommended that the Board issue the
Recommended Order set forth below requiring
Respondent to cease and desist from said unfair labor
practices and take certain affirmative action designed to
effectuate the policies of the Act
Having found that Respondent unlawfully discharged
Charles A Regan, it shall be recommended that
Respondent reinstate him to his former or substantially
equivalent position of employment without prejudice to
seniority and other rights and privileges and make him
whole for any loss of pay he may have suffered as a result
of Respondent's unlawful conduct Backpay shall be
computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289, with interest added thereto in
the manner set forth in Isis Plumbing & Heating Co , 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following
CONCLUSIONS OF LAW
I The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. By discharging Charles A. Regan because he engaged
in union and other concerted activities, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act
4 By engaging in the conduct found to be violations of
the Act set forth in section III, B, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
5 The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
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 that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with reprisals if they
engage in union or other concerted activities for the
purpose of collective bargaining or mutual aid or
protection
(b) Discouraging activity having for its purpose the
investigation, submission, presentation, and processing of
grievances pursuant to the terms of a collective-bargain ing
agreement, by discharging, refusing to reinstate, or in any
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other manner discriminating against any of its employees
in regard to their hire or tenure of employment, or any
term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to
self-organization, 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 as
guaranteed in Section 7 of the Act, or to refrain from any
and all such activities, except to the extent that such rights
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, as modified by
the Labor-Management Reporting and Disclosure of 1959
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer Charles A. Regan 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, in the manner set forth in "The Remedy"
section of this Decision.
(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 make available to the Board or its
agents all payroll and other records necessary to compute
the backpay and reinstatemtnt rights, as set forth in "The,
Remedy" section of this Decision.
(d) Post at its Tonawanda, New York, terminal, copies
of the attached notice marked "Appendix"' Copies of
said notice, on forms provided by the Regional Director
for Region 3, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places, including all places where notices to
employees are customarily posted, and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
"In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discourage our employees from
engaging in activity having for its purpose the
investigation, submission, presentation, and processing
of grievances pursuant to the terms of a
collective-bargaining agreement, by discharging,
refusing to reinstate, or in any other manner
discriminating against any of our employees in regard
to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT threaten our employees with discharge
or other reprisals because they seek to exercise their
rights under a collective-bargaining contract or engage
in other concerted activities for the purpose of collective
bargaining for their mutual aid or protection.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of their
rights guaranteed under Section 7 of the Act.
WE WILL offer Charles A. Regan immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make him
whole for any loss of pay he may have suffered by
reason of the discrimination against him
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.
ROADWAY EXPRESS INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board 's Office,
4th Floor, The 120 Building, 120 Delaware Avenue,
Buffalo, New York 14202, Telephone 716-472-2215