Ryder/P.I.E. Nationwide, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1986

278 N.L.R.B. 713 (N.L.R.B. 1986)

RYDER/P I E NATIONWIDE
Ryder/P.I.E. Nationwide , Inc. and Clarence Eugene
Pate. Case 15-CA-9415
25 February 1986
DECISION AND ORDER
BY MEMBERS DENNIS , BABSON, AND
STEPHENS
On 16 August 1985 Administrative Law Judge
Arline Pacht issued the attached decision . The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a limited exception,
supporting brief, and a brief in answer to the Re-
spondent 's exceptions.
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 briefs and has
decided to affirm the judge's rulings , findings, i and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent,
Ryder/P.I.E. Nationwide, Inc., New Orleans, Lou-
isiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
' The General Counsel and the Respondent have excepted to some of
the judge's credibility findings 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
2 In adopting the judge 's conclusion that the Respondent violated Sec
8(a)(3) and (1) of the Act by discharging employee Clarence Pate, we do
not rely on the judge's statement in "Concluding Findings," sec B, par
15 of her decision, that "it was the very antithesis of fair play" not to
give Pate an opportunity to forfeit $ 14 for the I 1 hours on 2 April 1984
for which the Respondent asserted Pate dishonestly claimed pay
Member Babson, in adopting the judge 's conclusion, does not rely on
her finding that the Respondent , by discharging Pate for the asserted of-
fense , "imposed a draconian sanction "
Alan Ginsberg Esq and Lee J. Romero Jr , Esq, for the
General Counsel
John Paul Jones, Esq, for the Respondent
DECISION
STATEMENT OF THE CASE
ARLINE PAcHT , Administrative Law Judge. The
charges in the above-captioned case were filed on 27
July and 13 August 1984 The complaint, which issued
on 7 March and was amended on 16 April 1985, alleges
that Respondent, Ryder/P.1 E, Nationwide, Inc (Re-
spondent or Ryder), dismissed the Charging Party, Clar-
713
ence Eugene Pate (Pate) in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act In addition,
the complaint alleges that Respondent , through its
agents, made various statements to its employees which
independently violated Section 8(a)(1) of the Act
Respondent filed timely answers denying the commis-
sion of any unfair labor practice and asserting as an af-
firmative defense that deferral to a final and binding dis-
pute resolution procedure forecloses inquiry into the
merits of this case The trial in this matter was held
before me on 23 and 24 April 1985 , in New Orleans,
Louisiana The parties were given full opportunity to
participate , to introduce relevant evidence , ' to examine
and cross-examine witnesses , to argue orally , and to file
briefs
On the entire record of this case , including briefs filed
the General Counsel and Respondent , and from my ob-
servation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS
Respondent is a Florida corporation engaged in truck-
mg operations as an interstate motor carrier with offices
and a terminal in New Orleans, Louisiana During the
12-month period immediately preceding the issuance of
the complaint, Respondent, in the course and conduct of
its business operations, derived gross revenues in excess
of $50,000 for transporting products from Louisiana di-
rectly to points outside the State Accordingly, I find
that Respondent is now , and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No 270 (the Union), represents a unit of over-the-
road drivers, including the Charging Party, at Respond-
ent's New Orleans facility The Union is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Pate first began working for Respondent at its Bir-
mingham , Alabama terminal as an over-the-road driver
in March 1977 He transferred to Ryder 's New Orleans
terminal in January 1983 where he continued driving
freight between various intrastate terminals until his ter-
mination on 25 April 1985 . During the course of his em-
ployment at the New Orleans facility , Pate was 1 of ap-
proximately 12 over-the-road drivers. His discharge
came after Respondent accused him of falsely claiming
' During the course of the hearing in this matter , Respondent offered
and I rejected its Exits 4 and 5 However, these exhibits were inadvert-
ently included in Respondent 's formal exhibit file as if received To cor-
rect the record , the documents have been removed and placed in a re-
jected exhibit file
278 NLRB No. 109
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and accepting wages for a period of time on 2 April that
Pate said he was working at Respondent 's terminal in
Thibodaux, Louisiana The General Counsel submits that
Pate was innocent of any wrongdoing on that date and
that Respondent used this occasion as a subterfuge to rid
itself of an employee who had filed a significant number
of successful grievances
B Pate's Grievance-Filing Activity
Pate testified that he filed 8 to 10 grievances between
October 1983 and March 1984 Documentation for seven
such grievances were received into evidence and show
that in six of them Pate alleged he was deprived of cer-
tain job assignments which were wrongfully awarded to
drivers from other terminals 2 Each of the seven griev-
ances were resolved in Pate 's favor with monetary
awards to him totaling approximately $763 According to
the General Counsel, Pate filed more successful griev-
ances than any other over-the-road driver with the ex-
ception of the driver's union steward , Bill Cullen
Respondent contends, however , that Pate was not
alone in filing grievances , nor did his protests receive
undue attention New Orleans Terminal Manager Tom
Davis testified that shortly after assuming his post on 27
January 1984 he created a grievance filing system for
hourly paid employees since he was responsible for re-
solving grievances at the first step Although he recalled
resolving two or three grievances in Pate 's favor in 1984,
he denied having any knowledge of grievances which
Pate filed prior to his arrival . In fact, the record shows
that Pate filed three grievances in 1984 , on 6 and 14 Feb-
ruary, and on 3 March a The first two of these involved
claims for runaround trips and were similar to complaints
which Pate had submitted in 1983 The third involved
claimed compensation for a delay at the Thibodaux ter-
minal
Other managerial employees indicated they had scant
knowledge of employees ' grievances Specifically, a
former operations supervisor, Jun Christianson , testified
on direct examination that he was unaware of individual
employee protests unless he was directly implicated As
Christianson put it, drivers would inform him when they
intended "to file a grievance on you " He acknowledged,
however, that Cullen would announce to everybody
when he intended to file grievances both on his own
behalf and on behalf of others More circumspect than
Christianson , Dock Supervisor Julio Magana insisted that
he was never told by a union steward or by any other
employee when a grievance was to be filed . Yet, he con-
ceded on cross-examination that he did hear generally
about grievances being filed Moreover, Magana ac-
knowledged that after issuing a warning letter to Pate in
April, he checked twice with the then union steward,
S Pate explained that when he and some 8 to 10 other drivers were
transferred to New Orleans , the Union and Respondent agreed that the
New Orleans drivers would be assigned to transport shipments of freight
from New Orleanst westward If drivers from other terminals were as-
signed to such work (referred to as "run-around trips") the grievance
procedure would be available to the New Orleans drivers
8 Davis found only five copies of grievances in Respondent 's records
However , he seemed willing to acknowledge that Pate had filed the
seven grievances for which documentation was produced
Floyd, to find out if a grievance had been lodged He
also revealed that he engaged in daily conversations with
Assistant Terminal Manager Lacey and that during one
such discussion about 6 or 7 April, Lacey advised him
that Pate had been involved in misconduct which oc-
curred on 2 April
Respondent introduced grievances filed by other em-
ployees in order to demonstrate that Pate did not distin-
guish himself in this activity However , a careful review
of the documents submitted by Respondent does not
wholly support its position While serving as steward,
Cullen admittedly filed more grievances than did Pate
In fact, from January to mid-March when he transferred
to another depot, Cullen filed a total of 24 grievances, 18
of which were of a personal nature involving complaints
similar to those filed by Pate Although Cullen was not
disciplined for his efforts, he testified that he barely es-
caped Pate 's fate Thus , Cullen stated that in March 1985
when he advised Magana that he would soon be transfer-
ring to another Ryder facility, Magana responded that it
was all to the good since Cullen would have been fired if
he remained in New Orleans
Apart from Cullen and Pate , the record shows that
only two other employees filed grievances in any signifi-
cant number Thus, during the same time span in which
Pate filed his grievances John Willard , a mechanic and
shop steward for his unit , filed five grievances , three of
which were denied and two settled for approximately
$300.4 Estes, the drivers' steward who preceded Cullen,
filed eight grievances, three were withdrawn and one re-
sulted in a monetary award of $86 The General Coun-
sel's search of Respondent's personnel files disclosed no
evidence of other grievances filed during the relevant
time period
C. Alleged Threats
Pate, as well as a few other employees called as wit-
nesses by the General Counsel, testified that Pate's ef-
forts to secure his rights under the collective -bargaining
agreement did not go unnoticed by management and pro-
voked threats of retaliation on more than one occasion
Thus, Pate testified that in early February 1984, after
Magana overheard him advising a fellow driver, Henry,
to file a grievance about a matter , Magana warned
Henry , that if he listened to Pate, "he's going to get you
in trouble " Henry was not adduced as a witness
Pate related another incident which occurred late in
February when Magana told him that he intended to use
employees from another facility to perform work that or-
dinarily would be assigned to New Orleans drivers
After Pate said he would grieve such a practice , Magana
responded , "These grievances is going to get you fired "
Pate further stated that in the beginning of April Magana
summoned him to his office and warned that if he
* G C Exhs 10A-10I, include a few grievances filed by Willard be-
tween 26 April and 9 September As these documents are dated after
Pate's termination , they have not been taken into account I note that al-
though the exhibits are difficult to read , it appears that none of these
were personal claims resulting in monetary awards Similarly , G C Exhs
9A-9G are seven grievances filed after 25 April by another mechanic,
Campbell , only one of which appears to have been successful
RYDER/P I E NATIONWIDE 715
wanted to continue working in New Orleans he would
have to stop filing grievances Pate testified that on an-
other occasion in March, Christianson threatened to fire
him after he overheard Pate, Cullen, and some other
drivers discussing grieving about working conditions.
Cullen did not recall that other drivers were involved,
but substantially confirmed Pate 's testimony about this
incident
Another driver, Estes, testified to similar conversations
with Magana The first of several exchanges occurred
early in 1984 when Magana called Estes into his office
and urged him, as a friend of Pate's, to encourage Pate
to stop filing grievances, that if he did not, "they were
going to have to take action to stop it ." Subsequently,
some weeks before Pate 's discharge, Magana again told
Estes that Pate would be fired if he continued filing
grievances . Then, several days before Pate 's termination
was to be considered by an arbitration panel, Estes asked
Magana if he had heard anything about the matter
Magana replied that he had learned from Graham, Re-
spondent's labor relations director , they were going to
make an example of someone , either Pate or another em-
ployee A few days after Pate's case was presented for
arbitration , Estes said that Magana told him of the out-
come, adding they had gotten rid of a troublemaker.
When Jordan, another driver regularly stationed at
Birmingham, Alabama, asked Magana what had hap-
pened to Pate, the dispatcher replied that "his grievances
got him " Jordan and Cullen, both long-term employees,
stated that throughout their careers with Ryder they
knew of no other driver who had been discharged for
stealing time Both Magana and Christianson denied
having made any of the above comments
D The Events Leading to Pate 's Discharge
Pate was terminated on 25 April for conduct which
Respondent alleged took place on 2 April The parties'
versions of the events on that date are in sharp dispute.
To set their contentions in perspective, it will be helpful
to describe the various records which each Ryder driver
is required to maintain
First, in accordance with Federal regulations, each
driver must chart his on and off duty times and his driv-
ing hours on a daily log . He also is responsible for com-
pleting a trip card on which he clocks the times of arriv-
al and departure at each destination and records reasons
for any delay in transporting freight The driver's pay is
computed on the basis of the trip card Additionally, the
driver is supposed to enter his arrival and departure
times on a sign-in and sign-out sheet at each terminal.
Pate testified to the following sequence of events with
reference to these three documents Pate stated and his
timecard shows that he left the New Orleans terminal on
April 1 at 23 9 or 11 .55 p m . r He arrived at the Thibo-
daux terminal some 65 to 70 miles distant at 2 a .m.6 Pate
5 To record their times of arrival and departures at each terminal, driv-
ers insert their trip cards into clocks which record hours from 0 to 24
and minutes by hundredths of an hour
6 The exact distance between the New Orleans and Thibodaux termi-
nals was in dispute with estimates ranging from 61 to 76 miles
further testified that on arriving at Thibodaux, he insert-
ed his trip card into the timeclock , but it failed to regis-
ter He then described in painstaking detail his activities
at the Thibodaux terminal which included unhooking
each of the two trailers he had been conveying , maneu-
vering them around other trailers in the small terminal
yard and positioning them in alignment with the dock so
that the freight could be unloaded He completed his pa-
perwork and left, hauling two other empty trailers. On
leaving Tlbodaux , Pate inserted his trip card into the
timeclock and noticed for the first time that the clock
had failed to register his arrival time , an occurrence
which Pate and Cullen said often happened . He, there-
fore, entered a handwritten notation setting his arrival at
2 a.m While Respondent normally allows one -half hour
for the type of work which Pate performed at Thibo-
daux, Pate claimed that on 2 April, his activities took 1.6
hours As required by company policy, when drivers
exceed the standard time , Pate provided an explanation
for the delay on his trip card , writing tersely that he had
to "break down , set spot bolt to dock and to hook set "
The two other records which Pate completed for this
journey are inconsistent with his trip card in several re-
spects On his driver's log, Pate marked his departure
from New Orleans at 11:30 p.m, his arrival at Thibodaux
at 1.45 a .m., and his departure at 3:30 am On the sign-
in, sign-out sheet, Pate noted his arrival at Thibodaux as
12.30 a.m. and his departure one-half hour later at 1 a.m
Pate suggested that the sign-in, sign-out sheet was unun-
portant, and that he and other drivers often neglected to
register their times in it, a common omission according
to him and several other witnesses.
Far different accounts of Pate 's activities were provid-
ed by two Ryder employees assigned to the Thibodaux
terminal. George Lockett, a Teamsters member and the
only night dockman at Thibodaux, is responsible for un-
loading freight there for delivery to customers in the
area. On those occasions when drivers are more than an
hour late, Lockett had standing instructions to report the
matter by telephone to his terminal manager, Louis
Catton, and to copy the driver's trip card so that Catton
may inquire into the cause of the delay In accordance
with this policy , Lockett estimated that he had reported
at least six late arriving drivers to Catton in the past sev-
eral years
Lockett related that when the freight had failed to
arrive by 2 a in on 2 April, he telephoned the New Or-
leans terminal, and learned that Pate had departed there
at midnight. He then telephoned Catton who reminded
him to make a copy of the driver 's trip card on his arriv-
al at Thibodaux . When Pate arrived at 3.39 a.m, Lock-
ett, following instructions, requested his trip card , dupli-
cated it, and left the copy on Catton's desk. He also
called Catton again to assure hun of Pate 's arrival. Lock-
ett then assisted Pate in aligning one of the trailers with
the loading dock and helped him hook together two
empty trailers for the return trip to New Orleans. Lock-
ett observed Pate writing 2 a.m. as his arrival time on
the trip card He also noticed that the timeclock regis-
tered 4-16 a .m when Pate left the terminal
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Catton called Davis the following morning to com-
plain about Pate 's late arrival and informed him that, al-
though Pate had signed in at 12 .30 a.m , Lockett was
sure he had not arrived before 3 .39 am Davis asked
Catton if Lockett would sign a prepared statement docu-
menting Pate's timing Catton passed this request along
to Lockett who agreed to sign a memo which the termi-
nal manager prepared The memo states in pertinent part*
On 4/2/84 Mr . Gene Pate arrived at the Thibodaux,
LA terminal at 3.66 a m . However, he signed the
log as amvmg at 0.5 a .m. and dispatched back to
New Orleans at 100 a m See enclosed copies Also,
he was hooked up and dispatched at 4:16 a.m ''
After receiving this memo several days later and com-
paring a copy of the Thibodaux sign-in and sign-out
sheet with Pate 's trip card and driver 's log, Davis con-
cluded that Pate had been dishonest and decided to dis-
charge him under the terms of article 45 of the parties'
collective-bargaining agreement which authorizes imme-
diate terminations for dishonesty . However, Davis ex-
plained that out of a sense of fairness , he would give
Pate an opportunity to recant his wrongdoing. Davis
therefore waited until Pate accepted a paycheck which
included a sum of money covering the 2 April events
Pate continued driving in the interval between 2 April
and the date of his discharge more than 3 weeks later
He testified that on his next trip to Thibodaux, Lockett
confided that he had been compelled to sign the memo
incriminating Pate . However, at the trial in this matter,
Lockett denied that he had been coerced in any manner
Then, in mid-April, Pate was involved in another inci-
dent involving an accusation that he falsified his driver's
log. On 8 April Pate left New Orleans at 12.30 p m. on
an assigned route to Lafayette, Louisiana While on his
way to work approximately an hour and a half later,
Magana happened to observe Pate entering his parked
truck at a location some 4 miles from the New Orleans
facility On arriving at the terminal, Magana learned that
Pate had been dispatched at 12 .30 Later, Magana re-
viewed Pate 's log and found that it showed he was dnv-
ing between 1 and 4 p m with no indication of a break at
the time Magana saw him. Based on these facts , Magana
issued a warning letter to Pate on 12 April Although
Pate demed any wrongdoing and asserted that he filed a
grievance protesting the warning letter with the then
steward, Floyd, no copy of his protest was offered into
evidence , nor was Floyd called as a witness.
On 19 April, Pate received a paycheck which covered
the 2 April date which he cashed about 23 April On 25
April Davis summoned Pate to his office and in the pres-
ence of the steward , fired him for the reasons set forth in
the following termination notice.
On Monday, April 2 , 1984 you claimed and were
paid for 1.6 hours drop and hook time at the Thibo-
daux, La. Terminal .. In fact you were only de-
layed .5 hours This is to advise you that you are
hereby discharged for dishonesty under Article 45
T The time 366 translates to 3 39 a in and 4 16 to 4 10 a in standard
time
Sec 1 of the current National Master Freight
Agreement
Pate stated that during his interview with Davis he re-
counted his activities at Thibodaux to justify the length
of time he claimed to have spent there Davis allegedly
reacted to his explanation by stating that he might have
believed him if it had not been for his recent letter pro-
testing the 12 April warning from Magana Davis re-
called that while Pate may have offered some excuse for
his delay at Thibodaux, neither of them made any refer-
ence to the earlier Magana warning letter The difference
in the sum Pate claimed for his 2 April work and the
amount to which the Respondent believed he was enti-
tled amounted to $14 28 for 1.1 hours of work
E. The Arbitration Proceeding
Pate quickly filed a grievance protesting his discharge
which Respondent rejected at the initial stage Thereaf-
ter, on 21 May, the grievance was presented to the
Southern Multi-State Grievance Committee, a panel with
final and binding authority which included three man-
agement and three union representatives
A verbatim transcript of the hearing , introduced into
evidence as General Counsel's Exhibit 2, reveals that
two principal issues were presented to the panel. At the
outset, Teamsters Business Agent Brown contended that
the discharge was not timely since the Company re-
frained from firing Pate for 23 days after it learned of the
critical events of 2 April The Company responded that
the operative act causing the dismissal occurred when
Pate accepted a paycheck which included the allegedly
unearned sum After caucusing , the point committee de-
termined that it would hear the grievance on its merits
The balance of the hearing then focused on the factual
representations bearing on Pate's conduct on April 2 Re-
spondent presented documentation , including Pate's trip
card, the driver's log, the sign-m and sign-out sheet from
the Thibodaux terminal and the memo from Lockett, in
support of its position that Pate falsely claimed 1 .6 hours
delayed time at the Thibodaux terminal when, in fact, he
was entitled to claim no more than the alloted 5 hours
In defense, Union Business Agent Brown read Pate's
grievance into the record which contained a detailed ex-
planation of his conduct at Thibodaux in order to prove
that Pate could not have completed his tasks there be-
tween 3 39 and 4: 10 a m , as Lockett's memo represented.
Brown further argued that Respondent had treated Pate
more severely than other drivers who had engaged in
similar conduct but who were not discharged Specifical-
ly, Brown referred to grievances of other drivers who
experienced nothing more than deductions in pay when
Respondent unilaterally decided that they had failed to
justify delivery delays on their trip cards . There was no
mention at the hearing of Pate's grievance filing activity
nor of the alleged threats and warnings by supervisors
regarding that activity Brown explained at the instant
hearing that he did not raise these matters for Pate had
not disclosed them to him
Respondent attempted to distinguish Pate 's case from
those to which Brown referred by arguing that these
RYDER/P I E NATIONWIDE
other employees had simply failed to sufficiently detail
their terminal delays whereas Pate had submitted an ex-
planation which was false When one of the committee
members questioned Pate about the discrepancy between
the 145 a in arrival time on the sign-in sheet and the 2
am arrival time on his timecard , he explained that the
timecard was accurate . However, he charted 1.45 on the
log in compliance with a dispatcher 's suggestion so that
he would not exceed the driving time limits set by Fed-
eral regulation
Without any on-the-record discussion of its reasoning,
the joint committee simply announced cryptically that
Pate's discharge was upheld
IV CONCLUDING FINDINGS
A Deferral to Arbitration is Inappropriate
As a threshold issue, it is necessary to determine
whether the outcome of the hearing before the joint
committee precludes a decision on the merits in this
forum.
Since Spielberg Mfg Co, 112 NLRB 1080 (1955), the
Board in preferring the voluntary resolution of labor dis-
putes , has deferred to arbitration where (1) the proceed-
ings were fair and regular, (2) the parties agreed that the
proceedings were final and binding, and (3) the award
was not clearly repugnant to the purpose and policies of
the Act. More recently, in Olin Corp, 268 NLRB 573
(1984), the Board reviewed the case law which arose
under Spielberg, and redefined the criteria to be em-
ployed in determining when an arbitration award should
be honored The Board announced that it "would find
that an arbitrator has adequately considered the unfair
labor practice aspect of a case if (1) the contractual issue
is factually parallel to the unfair labor practice issue and
(2) the arbitrator was presented generally with the facts
relevant to resolving the unfair labor practice" Id at
574 The Board stated that it would weigh any differ-
ences part of its determination under the Spielberg stand-
ards of whether an award is 'clearly repugnant' to the
Act " Id However, it noted that its "inquiry would
not require an arbitrator 's award to be totally consistent
with Board precedent " Rather, "[U]nless the award is
'palpably wrong,' r.e., unless the arbitrator 's decision is
not susceptible to an interpretation consistent with the
Act" deferral is appropriate . Id Finally , under Olin, the
burden of proving the arbitral process defective is im-
posed on the party seeking a de novo determination. Id.
An examination of the evidence presented to the joint
committee which heard and decided Pate 's grievance
leads to the conclusion that several of the critical ele-
ments required by Olin were not met
As discussed above, the arbitration hearing focused on
whether Pate falsified his timecard to support an other-
wise unjustified pay claim and whether Respondent
treated Pate more severely than other employees who
were, according to Brown , engaged in purportedly anal-
ogous conduct What the committee did not hear was
any testimony bearing on the number of grievances
which Pate successfully filed or the warnings and threats
of discharge which were allegedly made to him and
others because of his grievances
717
Notwithstanding these significant omissions , Respond-
ent argues that the Union 's contentions of disparate treat-
ment satisfied Olin's command that evidence of the unfair
labor practice be presented to the arbitrators in at least a
general way Respondent 's argument fails to recognize,
however , that a bare accusation of disparate treatment,
without any reference to the factors giving rise to such
conduct, falls far short of the showing required by Olin.
Discrimination may be the product of many causes Only
when evidence is presented that the discrimination oc-
curred for reasons condemned by the Act may a pre-
sumption arise that the arbitrators considered the unfair
labor practice Since the joint committee was presented
with no information bearing on the allegation that Pate
was discharged in retaliation for his engaging in protect-
ed concerted activities,8 I cannot fairly presume that the
joint committee considered the unfair labor practice
aspect of the case , since it was not "presented generally
with the facts relevant to resolving the unfair labor prac-
tice." Moreover , the absence of such evidence from the
prior record precludes a finding that the contractual
issue before the committee , i e., whether Pate was justly
discharged under the parties' collective -bargaining agree-
ment, is factually parallel to the statutory inquiry of
whether he was terminated for his union activities. Cf.
Yellow Freight Systems, 273 NLRB 44 (1985), Chemical
Leamen Tank Lines, 270 NLRB 1219 (1984); Altoona
Hospital, 270 NLRB 1179 (1984). Accordingly, the Gen-
eral Counsel has established that the joint committee's
award is repugnant to the Act and that deference to that
award would be improper.
B Pate's Discharge Violates the Act
The General Counsel submits that Respondent's reason
for discharging Pate is pretextual , masking its true intent
to eliminate a persistent and successful grievant In sup-
port of this theory, the General Counsel contends that
Pate's version of the events on April 2 should be be-
lieved and that the accounts provided by Lockett and
Catton are fabricated products of a conspiracy
To accept Pate's scenario, Lockett's and Catton's con-
trary testimony would have to be discredited However,
my observation of these latter two witnesses , together
with my review of all the evidence bearing on the events
of 2 April and the logical inferences to be drawn there-
from, persuade me that Lockett and Catton's accounts
were more consistent and credible than Pate's
Even without reference to the conflicting testimony of
the respective parties , the inconsistent documents which
Pate completed on 2 April cast doubt on his tale. Pate's
explanation of the discrepancies between the times re-
corded on his trip card , driver's log, and Thibodaux's
sign-m, sign-out sheets were not persuasive For example,
although Pate said a dispatcher urged him to trim 15
minutes from his driving time so as to comply with Fed-
eral regulations , he supplied no convincing explanation
as to why he did not obviate the problem by resting in
8 See NLRB v City Disposal Systems , 465 U S 822 (1984), where the
Supreme Court ruled that the invocation of a right by an individual em-
ployee which is rooted in a collective-bargaining agreement is protected
concerted activity
'718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thibodaux.' He also failed to provide a logical explana-
tion for the admittedly, inaccurate arrival and departure
entries on the sign-in and sign-out sheet. Pate apparently
recognized the incriminating nature of these entries for
he exised them on a subsequent trip to Thibodaux.9
In a valiant effort to vindicate' Pate, the General Coun-
sel suggests that Pate could not have departed from Thi-
bodaux 'at 4:10 a.m. (4:16 clocktime) as Lockett main-
tained and still arrive in New Orleans by 5:30 a.m.-the
time recorded 'on his trip card. However, on the return
trip, Pate was 'driving. empty trailers on roads which
were, at that-early morning hour, very likely uncongest-
ed.' Under these conditions a . trip' of approximately .65'
miles could be completed in 1 houvand 20 minutes. Fur-
ther, although there is support in the record (to be dis-
cussed further below), that several of Respondent's New
Orleans' agents knew 'of Pate's grievance filings, there is
no evidence that Lockett 'or Catton' were, aware of his
activity in this regard. 'Moreover, I detected no animosi-
ty in Lockett's.attitude toward Pate, nor did he seem to
be. engaged in a vendetta' against , him. i 0 Lockett ex-
pressed himself in a forthright manner ; his testimony was
reasonable and internally,consistent. -Moreover, both his
and Catton's testimony were mutually corroborative.
Further, Lockett had good reason' to note Pate's late ar-
rival since ' such' a -delay affected his own work. Thus, I
conclude that. he reported Pate's delay not- out of a
desire to harm a fellow teamster, but rather because he
was required to do-s6 in accordance with standard oper-
ating procedures. - ' " -
Based on the information and documentation which
Davis compiled, I conclude that Respondent had reason-
able grounds= to suspect that Pate falsified his trip card to
show his arrival at Thibodaux at 2 a.m. when, in fact, he
clocked in there, at 3:39 a.m. Thus, I cannot agree with
the General Counsel that Respondent's motivation in
seeking to discipline Pate stemmed-from wholly pretex-
tual motives.. •
The analysis of, this, case does not end here, however,
for even where an„employer., has a legitimate reason for
disciplining an employee,-,if an illegitimate, reason exists
as well , then the evidence -must be considered under the
principles, of Wright ( Line, 25,1 NLRB 1083, enfd. 662
F.2d 899 (1st Cir. 1981);; cert. denied, 455 U.S. 989
(1982). That case holds, that in mixed motive cases such
as this, the General,}Counsel bears the initial burden of
proving that protected concerted activity was a substan-
tial factor which prompted, the discipline imposed by,the
employer. I L -
,0 , nce this is'accomplished, the burden shifts to the em-
ployer to prove affirmatively that the disciplinary deci-
sion .would have been the same even in the absence of
the protected conduct. Id.,at 1089. •
In proving the elements of his case-in-chief, the Gener-
al Counsel submits that Pate's successful grievance `filings
Pate probably made these deletions on his next .run to Thibodaux
after Lockett told him about the memo he signed for Cation Since Pate
was the only person affected by the hours he recorded on these sheets, it
is reasonable to infer that he was the person who deleted them
10 Pate suggested that Lockett was angry with him and was now re'
taliating because Pate had questioned[ Lockett's assumption of authority
in a previous incident.
were a significant factor in causing Respondent's antipa-
thy toward him. Although Respondent "contends other-
wise, there is sufficient record evidence which supports
the General Counsel's. position.
The record clearly'shows that Pate filed moresuccess-
ful grievances than any' other driver' except Cullen and
that his grievances were costly to Respondent. It is now
well settled that such activity is protected and concerted
under the Act. ' • •
In spite of Respondent's disclaimer, the evidence also
persuades that management was well aware of and dis-
pleased with Pate's grievance filing efforts. For example,
although Magana insisted that he was unaware' of griev-
ances filed by any employee or union stewards, he made
a series of contradictory admissions. Thus, on cross-ex-
amination he acknowledged hearing shop talk about vari-
ous employee complaints. He also conceded that he
twice questioned Floyd (the union steward who succeed-
ed Cullen), as to whether Pate had grieved the protest
letter which Magana issued to him. His inquiries belie his
avowed disinterest in such matters. Significantly, Magana
disclosed that he engaged in daily conversations with his
superior, Assistant Terminal Manager Lacey, and that it
was during one such conversation shortly after _2 April
that he heard of Pate's misconduct. It was only,' after
learning of management's investigation of Pate's,behavior
that Magana went to considerable lengths to track' Pate's
schedule on 8 April, and then issue him,a'written ,warn-
ing. This is not to say that I doubt Magana's account •of
Pate's activities on 8 April. Rather, the4,point here is that
it is doubtful that Magana would have investigated Pate, 's
schedule so meticulously if he was, , not aware of Re-
spondent's plan to terminate him, since, Pate, had, not
been disciplined throughout his 7-year career ,with
Ryder. Magana's reluctance to admit knowledge of em-
ployee grievance filing activity must be'assessed in.light
of Christianson's _ concession, on cross-examination- that
Cullen broadcast to everyone, when he intended to file
grievances. Such announcements, would In all likelihood
include. grievances, which-as stewards -he processed'-for
Pate. A grievance which Cullen filed,on 11 March and
which is a=part of the record in this case (see G.C. Exh.
11(x)) provides strong evidence,.of management's hostili-
ty to such activity. Cullen's,grievance -states that Chris-
tianson told him that supervisors, were "going, to ' take
care of him" and` were getting "sick of his filing griev-
ances." I credit Cullen's account of this episode, first, be-
cause it was written close, in time to the event and not
for,purposes of litigation, and second, because Cullen did
not impress, me as a man who would bother to submit, a
grievance about a nonevent. i i Finding that, Cullen testis
feed truthfully as to Christianson's remarks, I am -con-
vinced that ,he also should ,be credited as to his statement
that Magana told him that his reassignment from New
Orleans to. Nashville saved him from -;dismissal. With
Cullen removed from the • scene the major grievant was,
of course, Pate. - • ' ,
If Magana and. Christianson were aware of Pate's per-
sistent and lucrative grievance' filing' efforts, it is fair'to
11 Christianson's version of this incident was not convincing '
RYDER/P.I.E. NATIONWIDE 719
assume that Terminal Manager Davis was equally well
informed particularly since it was his responsibility to re-
solve such complaints initially. Davis claimed he did not
know about any grievances which Pate had filed in 1983
but his denial did not ring true. In order to resolve Pate's
1984 grievances, Davis would have been compelled to
learn of the agreement with the Teamsters regarding
run-around trips upon which Pate's protests were based.
It is impossible to believe that he would not also have
learned at the same time of Pate's successful grievances
previously filed under this agreement. Thus, Magana's,
Christianson's, and Davis' efforts to conceal their knowl-
edge that Pate had filed and prevailed in a substantial
number of grievances gives rise to the very result they
tried to avoid; that is, a reasonably based inference that
Respondent was well aware of and hostile to Pate's con-
certed activity. This conclusion does not rest on infer-
ence alone, for I credit Jordan's testimony regarding Ma-
gana's admission that "Pate's grievances got him." 12
This remark dispels any lingering doubt about Respond-
ent's animus and motive in discharging Pate.
As further proof of Respondent's discriminatory mo-
tives, the General Counsel also argues that Respondent
treated Pate disparately by discharging him when other
drivers suffered nothing more than pay deductions for
similar conduct. The Respondent counters that there is
no comparison between Pate's act of claiming pay for a
period of time when he was not working and the con-
duct of other drivers who failed to adequately explain
their terminal delays. Although Pate's conduct on 2
April may not be identical with the behavior of other
drivers involved in undue delays, neither are the situa-
tions as dissimilar as Respondent contends. In both sets
of circumstances, Respondent rejected explanations
which Pate as well as other drivers gave for their work-
ing hours.
It is important to note that in its termination notice
Respondent discharged Pate for dishonesty in claiming
1.6 hours of working time rather than the one-half hour
to which he was entitled. It was only at the hearing
before me that Respondent characterized Pate's miscon-
duct as dishonesty for theft of time, an offense for which
according to a number of witnesses, no other employee
had been terminated. Whatever name Respondent chose
for Pate's offense, it nevertheless imposed a draconian
sanction upon an employee with a 7-year unblemished
record. 13
Upon evidence showing that Pate was at least one of
the most persistent and successful grievants in Ryder's
New Orleans work force, that Respondent's supervisory
personnel were aware of and opposed to such activity,
and treated Pate more harshly than other employees for
conduct not vastly different in nature, I find that the
General Counsel has established a prima facie case that
Pate was discharged for discriminatory reasons.
The record contains cumulative and uncontroverted
evidence that Respondent had never before discharged
12 This episode is discussed more fully in the next section of this deci-
sion
13 This excludes the 12 April warning letter which I believe was
issued in part to bolster Respondent 's case against Pate
an employee for conduct such as Pate's. In defense of its
unprecedented decision to fire Pate; Respondent asserted
that he was the first employee whom Davis caught in
the act of stealing time. It is difficult to reconcile Davis'
contention in this regard with Lockett's testimony that
on at least six occasions over the past several years he
reported other employees to Catton who, like Pate, were
over an hour late in arriving at Thibodaux. Catton also
confirmed that he then reported such incidents to Davis.
Yet, Respondent produced no evidence that it investigat-
ed or followed up on these other late-arrival incidents in
order to catch others "in the act." Thus, while Pate's
late arrival was not unique, the discipline imposed on
him was extraordinary. Although Respondent bore the
burden of proving that it would have imposed the same
discipline on Pate even in the absence of his concerted
activity, it made no effort to explain why Pate was treat-
ed so much more severely than other tardy drivers.
Respondent also failed to provide a convincing expla-
nation for the delay which preceded Pate's discharge.
Although Davis learned of Davis' wrongful conduct on
2 April, he said nothing to him for more than 3 weeks,
allegedly out of a sense of fairness. But in this context,
silence only served to further implicate Pate in wrongdo-
ing. Thus, it was the very antithesis of fair play. If Davis
had discussed the matter with Pate, it is possible that
Pate might have agreed to forfeit $14 for the 1.1 hour at
issue. He then would not have "converted" his employ-
er's money, the act which Davis claimed was critical to
fording Pate guilty of dishonesty. Moreover, Davis ap-
parently was determined to fire Pate before he had an
opportunity to present his side of the story, for the ter-
mination notice was prepared before the discharge inter-
view began. Although Pate was discharged for the single
act specified in the dismissal memo, at the hearing, Davis
attempted to portray Pate as an inveterate malingerer.
By failing to provide any concrete details as to alleged
complaints about Pate's performance,, Respondent's effort
to denigrate Pate's work record appears to be an after-
thought, hastily contrived to bolster its disciplinary deci-
sion.
Based on the all the foregoing considerations, I con-
clude that although Pate was involved in, wrongful con-
duct, Respondent has failed to meet its burden of prov-
ing that he would have been terminated even in the ab-
sence of his protected concerted activity. It follows that,
in firing Pate, Respondent violated Section 8(a)(3) and
(1) of the Act.
C. Conclusions as to Alleged 8(a)(1) Violations
The General Counsel urges that the Respondent vio-
lated Section 8(a)(1) of the Act through numerous
threats and warnings made to Pate and other drivers re-
garding grievance filing activities. For the reasons set
forth below, I find that only the testimony of one of
these employees, Kenneth Jordan, survives scrutiny.
As discussed in the- preceding section of this decision,
I found that Pate was less than truthful in recounting the
events that occurred on 2 and 8 April. Even apart from
his lack of candor as to, these incidents, however, it is
difficult to credit his testimony with regard to the state-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments allegedly made to him by Magana and Christian-
son. I find it peculiar that Pate did not grieve about any
of these purported statements, particularly the one by
Christianson which supposedly was made in the presence
of a number of witnesses including the union steward.
Pate was an experienced grievant and certainly had the
example of Cullen who filed a protest when he was
threatened because of his concerted activity. Even more
difficult to comprehend is Pate's failure to mention Ma-
gana's and Christianson's alleged threats and warnings to
either his business agent or to the joint committee which
was to decide his employment fate. These lapses coupled
with other flaws in his testimony compel me to conclude
that the statements were invented.
For much the same reasons , I am unable to credit
Estes' testimony regarding the warnings and admissions
which Magana ostensibly made to him concerning Pate.
Certainly, if Magana had made such patently unlawful
remarks, Estes, a former steward, would have alerted
Pate. Yet both Pate and Estes remained silent about such
comments until several months after the discharge was
upheld.
I take a different view of testimony offered by another
driver, Kenneth Jordan. Jordan, who was still driving
for Ryder at the time of this hearing, was in the unenvia-
ble position of having to bear witness adverse to his em-
ployer's interests . Nevertheless, he testified in a credible
manner . He did not concoct a host of hostile remarks by
supervisors. Rather, he related only one extremely signif-
icant conversation with Magana which gave every sem-
blance of truth since it was accompanied with certain
homely details. Moreover, in response to a question put
to him on cross-examination, Jordan indicated in a spon-
taneous and unrehearsed manner that Pate did not try to
contact him and solicit his testimony. Rather, Jordan ini-
tiated the contact, calling Pate and attempting to tele-
phone the union business agent only after his conversa-
tion with Magana. These circumstances convince me that
Magana indeed told Jordan that Pate's "grievances got
him." This remark not only discloses Respondent's un-
lawful motivation, it clearly constitutes a violation of
Section 8(a)(1) of the Act. See Heck's, 273 NLRB 202
(1984).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local Union
No. 270 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Clarence Eugene Pate on 25 April
1984.
4. Respondent violated Section 8(a)(1) of the Act by
advising its employee , Jordan, that Pate was discharged
for his grievance filing activity.
5. The unfair labor practices described in Conclusions
of Law 3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom and from
like or related conduct. In addition, Respondent will be
required to offer reinstatement to Pate as a driver and to
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).14 Also, Respondent will be
required to remove from its files any reference to Pate's
unlawful termination and to notify him in writing that
evidence of that termination will not be used as a basis
for future personnel action against him. Sterling Sugars
261 NLRB 472 (1982). Finally, Respondent will be re-
quired to post an appropriate notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed15
ORDER
The Respondent, Ryder/P.I.E. Nationwide, Inc., New
Orleans, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in union activity, including
the filing of grievances pursuant to a collective-bargain-
mg agreement.
(b) Advising any employee that other employees were
terminated or disciplined for engaging in said protected
activity, including the filing of contractual grievances.
(c) In any like or related 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 necessary to
effectuate the policies of the Act.
(a) Offer Clarence Eugene Pate immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Pate in writing that this has been
done and that the 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 copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
14 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
15 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
RYDER/P.I.E. NATIONWIDE
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its jobsite in New Orleans , Louisiana,
copies of the attached notice marked "Appendix."" B
Copies of the notice, on forms provided by the Regional
Director for Region 15, after being duly signed by the
Respondent 's authorized representative , shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted at Respondent 's trucking terminals locat-
ed at New Orleans, Louisiana, Thibodaux, Louisiana, etc.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that insofar as the
amended complaint sets forth allegations which have not
been found, these allegations are dismissed.
is 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
721
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered ' us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in union activity in-
cluding the filing of grievances pursuant to a collective-
bargaining agreement.
WE WILL NOT advise any employee that other employ-
ees were terminated or disciplined for engaging in union
activity including the-filing of contractual grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you under Section 7 of the National Labor
Relations Act.
WE WILL offer to reinstate Clarence Eugene Pate to
the job which he held before he was unlawfully dis-
charged without prejudice to his seniority or other rights
and privileges and WE WILL make him whole , with inter-
ests, for any loss of pay resulting from his unlawful ter-
mination.
WE WILL remove from our files any reference to
Pate 's termination , and notify him in writing that this has
been done and that evidence of his termination will not
be used as a basis of future personnel action against him.
RYDER/P.I.E. NATIONWIDE, INC.