Schwerman Trucking Co.

National Labor Relations Board - Board Decisions

Aug 14, 1974

212 N.L.R.B. 876 (N.L.R.B. 1974)

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwerman Trucking Co. and Francis K. Lapinski.
Case 6-CA-6832
August 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On April 25, 1974, Administrative Law Judge Ben-
jamin B.. Lipton issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: Trial in
this case was conducted before me in Pittsburgh, Pennsylva-
nia, on January 18, 1974,1 upon a complaint by the General
Counsel 2 alleging that Respondent discharged Francis K.
Lapinski in violation of Section 8(a)(1) and (3) of the Act.
Upon the entire record, with due consideration of the
beefs filed by General Counsel and Respondent, and upon
my observation of the demeanor of the witnesses, I make the
following:
FINDING OF FACT
I JURISDICTION
Respondent, an interstate carrier by motor truck, has its
1 All dates are 1973, unless otherwise indicated
2 The charge was filed on July 17 and served by registered mail on July
18
principal offices and terminal in Milwaukee, Wisconsin.
This proceeding solely involves Respon'dent's'termipals at
Universal and Neville Island, located near Pittsburgh,
Pennsylvania. During the calendar'year precedirig.issuance1 1,
of the complaint, Respondent received in excess of $50,000
for services rendered in the transportation of goods and
materials across state lines to and from the Commonwealth
of Pennsylvania. Respondent admits, and I find, that it is
engaged in commerce within the meaning of the Act.
II LABOR ORGANIZATION
General Teamsters , Chauffeurs and Helpers Local 249
a/w International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union , is a labor organization within the meaning of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Description of the Issue
The violations alleged concern the discharge of Lapinski,
a tractor-trailer driver, because he threatened to "file an
arbitration" while he was questioning the amount of pay he
would receive on a particular work assignment. Respondent
defends on the ground that Lapinski was terminated within
its proper discretion, not for threatening to utilize the con-
tract grievance procedure, but because of certain incidents
in his conduct as a probationary employee which caused
Respondent to conclude he would be an unsatisfactory em-
ployee if allowed to attain the seniority status within the
terms of the union contract.
As the issue is presented, it must turn on whether the
evidence establishes that Respondent's true reason for dis-
charging Lapinski was predicated on his threats to "file an
arbitration," or for engaging in a protected concerted activi-
ty. The facts recited below substantially describe the version
of Dennis G. Sucke, a supervisor, whose testimony as to the
principal incident herein I credit as forthright, plausible,
and convincing.
B. Essential Facts
Lapinski was hired on May 16 as a tractor-trailer driver
to operate out of Respondent's terminals at Universal and
Neville Island. He was terminated on June 23, as described
infra. During his short tenure, he worked only when called
or assigned by Respondent, which averaged about 3 days a
week. He was a member of the Union for some 20 years.
The major incident in question occurred in the afternoon
of Friday, June 22, after Sucke came on duty as the second
shift dispatcher at Universal. In the order of their appear-
ance, several drivers, including Lapinski, were seperately
dispatched by Sucke to Anmore, West Virginia. These driv-
ers then proceeded to have their vehicles loaded at the num-
ber 4 scale, located about one-eight of a mile from the
terminal. Shortly after making the assignments, Sucke dis-
covered that the mail and payroll checks had to be delivered
to Neville Island, about 16 miles west of the Universal facili-
ty. Thereupon, Sucke telephoned the loader at the number
212 NLRB No. 143
SCHWERMAN TRUCKING CO. 877
4 scale and asked to speak to Harry Buchanan, one of the
drivers. Lapinski picked up the phone.3 Sucke told him that,
after he was loaded, he would have to stop back at the office
to pick up the mail for delivery to Neville Island and then
continue to Anmore.4 Lapinski asked what was he [Sucke]
trying to do-take him off the trip incentive plan and place
him on the clock? 5 Sucke answered no-and repeated that
the mail had to be delivered to Neville Island. Lapinski
responded, "Okay, but I'm going to file an arbitration."
Sucke then stated, "You better know what you are talking
about before you get involved in an arbitration." Lapinski
also remarked that he [Sucke] "might be a bigger man and
smarter . . . but he [Lapinski] had the right to say and do
as he wished." When Lapinski reported back to the
dispatcher's office to pick up the mail bag, Sucke told him
he would be paid for an extra hour in making the detour to
Neville Island. Lapinski said, "Okay," but that he "was
going to see the Union about it." Thereafter, the full assign-
ment was carried out by Lapinski.6 There is no evidence that
a grievance was filed on behalf of Lapinski?
Later on June 22, Sucke made out an "Operation Re-
port" 8 concerning the incident with Lapinski and placed it
on the desk of the area manager , Eugene Pugliese.9 After
reporting to work for the second shift on the following day,
3 Sucke called for Buchanan because he was the first or second driver
dispatched to Anmore Through misunderstanding or confusion . Lapinski
answered the phone, with Buchanan in his presence. However , it was not
material to Sucke which driver made the side trip to Neville Island, and he
proceeded to speak to Lapinski.
4 This is a routine assignment given to a driver at least once each week,
and the assigned driver is paid for additional time in making the side run.
Appparently, Lapinski at this time had no knowledge of such practice.
On the trip incentive basis, the driver is paid his hourly rate for a certain
number of hours, even though the driver may actually consume less than the
specified number of hours for the trip. Payment "on the clock" is based solely
on the time used by the driver to complete the trip It was apparently consid-
ered by Lapinski to be more advantageous for him to drive directly to
Anmore by interstate highway, without having to travel through congested
areas on the side run to Neville Island.
6 Lapinski's testimony was that he was told of the mail delivery when he
was initially given the main assignment to Anmore ; that he agreed to go
anywhere but felt he should be reimbursed for the side trip to Neville Island,
that Sucke then told him he would be paid for an additional hour above the
trip amount, and that he said, "Fine," but added that if his pay was not
correct , he would "file an arbitration " He also testified that, in the phone
call at the loading scale, Sucke instructed him to go to Neville Island and a
similar exchange took place concerning payment and filing "an arbitration "
At one point Lapinski indicated that the phone call request was to speak, to
"the first driver down ," thus tending to confirm Sucke that there was only
one conversation in which Lapinski was assigned the Neville Island trip
From Lapinski's account, Sucke's call to the loading scale would appear to
have been totally unnecessary; Lapinski could originally, during the first
conversation, have been given the mail bag for delivery without having had
to return to Sucke's office from the loading station In the phone conversa-
tion, according to Lapinski, Sucke stated at the outset, "hey fellow . look
we don't like arbitration around here . . . and you aren't going to use it
around here." Particularly I regard this portion of Lapinski 's rambling ver-
sion as contrived. And in substantial part , I find Lapinski 's testimony highly
erratic, self-contradictory, and untrustworthy.
7In describing his role as a dispatcher in handling problems with drivers,
Sucke stated that the driver has,a right to and does talk it over with him, and
"often they do . . turn a grievance in. Sometimes it can be cleared up.
by letting him talk to my superiors."
8 An operation , report is a standard form used by supervisors to record
unusual events involving employees.
9 Sucke's operation report substantially conforms with his testimony. It
also indicates the logical sequence of certain remarks, as essentially de-
scribed, supra
Sucke verbally described the incident to his immediate su-
pervisor, Chief Dispatcher Emanuel (Poach) Sahene. Subse-
quently, Pugliese joined this conversation and was apprised
of the details . Among other things, Sucke told Sahene and
Pugliese that he was merely following standard procedures
regarding the Neville Island mail delivery, but that Lapinski
"became very abusive to the point where he was trying to
tell me how to do my job ," and that Sucke's "opinion was
that Lapinski was being insubordinate ." 10 Sucke then re-
turned to his office , while Sahene and Pugliese continued
the discussion on the question of Lapinski 's "attitude" as a
probationary employee . They also considered certain other
complaints involving Lapinski , as will be treated below.l t
The decision was ultimately reached by Pugliese, with the
concurrence of Sahene , to terminate Lapinski as a potential-
ly unsatisfactory employee. On June 23, a termination let-
ter, signed by Sahene , was mailed to Lapinski, as follows:
This is to advise that your employment with Schwer-
man Trucking Co. is terminated in accordance with
Article II, Section 2 of the labor agreement.12
Article II, section of the contract provides:
A new employee shall work under the provisions of this
Agreement but shall be employed only on a thirty-day
trial basis, during which period he may be discharged
without further recourse, provided, however, that the
Employer may not discharge or discipline for the pur-
pose of evading this Agreement or discriminating
against Union members. After working thirty (30) days
within any sixty (60) calendar day period, the employee
shall be placed on the regular seniority list. (Emphasis
supplied.)13
The contract also contains grievance procedures involving
three subordinate steps prior to final arbitration. The evi-
dence indicates that probationary employees are entitled to,
and do in fact, file grievances which are processed pursuant
to the contract. It is reasonably inferable that the contract-
ing parties intended to withhold from probationary employ-
ees the full protection and rights afforded under the
contract to regular, seniority status employees. In article X,
applying to such regular employees, it is stated:
The employer shall not discharge nor suspend any
employee without just cause, but in respect to discharge
shall give at least one warning notice of complaint
10 Sucke was asked by Pughese and explained to him what he meant when
he told Lapinski "he better watch out what he's doing" before he gets in-
volved in an arbitration. According to Pughese, Sucke said that he was
merely indicating that Lapinski was not familiar with the labor agreement
in using the term "arbitration," that it should go through the grievance
procedure, after which arbitration follows in some cases.
11 Publiese testified that, as part of the same discussion, he told Sahene, "It
would be pretty difficult to send a man out like this, out to one of our
touchy customers and use the attitude with our customer that he uses within
the terminal in talking to management in the fashion that he does."
12 Copies were sent to the Union's business agent, the shop steward,
Respondent's divisional vice president, and its manager of industrial rela-
tions.
13 From May 16 through June 22, Lapinski had served 22 of the required
30 days.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against such employee to the employee in writing, and
a copy of the same to the Union and Jobs Steward
affected. . . . (Emphasis supplied.)
Respondent's witnesses testified that it maintains a strict
policy of keeping probationary employees under continual
review, and that it normally terminates any such employee
when it has cause to doubt the employee's acceptability.
Pugliese stated that, in Lapinski's case, he carried out the
company policy as he was advised by Industrial Relations
Manager Gerald LeClaire. LeClaire testified he specifically
instructed Pugliese regularly to review a new employee's
work record a week to 10 days before the end of his proba-
tionary period to determine whether such employee should
be retained; if "any doubt" is indicated, termination should
be effected immediately so that the employee is not permit-
ted to gain seniority status. Unlike regular employees (e.g.,
Art. X of the contract, supra), probationary employees are
not given advance warnings. Respondent's policy is based
on the general position that the union contract provides a
probationary period which is too short in time to give Re-
spondent a sufficient opportunity to see what the employee
can do, and that the Union has repeatedly been made aware
of such position in contract negotiations.
Respondent has approximately 63 terminals throughout
the country, in which all its drivers are covered by contract
with the Union. About 300-350 drivers are employed out of
the "Eastern Conference Area," and about 110 drivers are
employed at the Universal and Neville Island terminals.
There is no independent allegation or evidence of opposi-
tion by Respondent to union activity or the utilization of the
grievance procedures by probationary or regular employees,
in general or particularly relating to Lapinski.
As earlier indicated, while reviewing Lapinski's proba-
tionary status on June 23, Pugliese and Sahene considered
certain other incidents and factors in arriving at the termi-
nation decision. On June 20, Lyman Tickle, a working fore-
man in the truck maintenance shop at the Universal
terminal, verbally complained to Pugliese, in substance:
Several days earlier, and on at least one other occasion while
Lapinski's truck was in the shop, Lapinski had disrupted the
work of the mechanics by "carrying on" in the shop in a
"smart, loud and abusive" manner. Tickle suggested that
Pugliese "watch this man." On June 20, Pughese made out
an operation report concerning this incident.14
In the review conducted on June 23, Pugliese and Sahene
also discussed past conversations with Lapinski concerning
his difficulties in filling out the logging forms required of
Respondent under Federal law. It was testified by Pugliese
that Respondent deems it important that drivers comply
with the logging procedures "100 percent by the book."
Several incidents were considered during which Lapinski
14 in the operation report, after briefly describing Tickle's complaint, Pug-
hese wrote under the caption "To Be Completed By Terminal Manager," and
"Additional action taken , if any," the following "Advised Lyman to notify
myself or dispatcher next time this happens in order that we can take correc-
tive action on the spot " General Counsel's argument lacks support that this
entry by Pughese evidences an "established policy" of giving advance notice
to probationary employees to permit them to remedy any unsatisfactory
conduct
had sought the assistance of Sahenen and Sucke in prepar-
ing the log form. Both agreed that Lapinski seemed to treat
the matter "very lightly," in a "lackadaisical" manner, as a
"joke." Lapinski's own testimony shows that, in making
certain computations on the log, he repeatedly approached
Sucke and Sahene for help, was unable to understand the
explanations, continued to have the same problems, and on
at least one occasion had broached the questions laughing-
ly. He admitted to Sucke, "I guess I'm dumb, I can't get it."
Sahene observed, in the review of Lapinski, that "for a man
that had that many years in the trucking business prior to
coming to work for us should have a lot more knowledge of
the logs... .
The concern here is not whether Respondent was unfair
or arbitrary regarding the Tickle and logging incidents.
These were the impressions obtained by Pugliese from inter-
nal reports which contributed to his conclusion to sever
Lapinski. Respondent's testimony is accepted as constitut-
ing its basis for a good faith belief that these additional
factors cast further doubt on Lapinski's potential as a desir-
able employee. Thus, I find no merit in General Counsel's
contention that these other incidents were mustered by Re-
spondent as pretexts to discharge Lapinski for an unlawful
reason.
C. Conclusions
If General Counsel established by a preponderance of the
evidence that the real reason or motive for terminating La-
pinski was that he had threatened to invoke the grievance
machinery of the union contract, the alleged violation
would indeed be clear.15 Though inartfully expressed, such
was the implied effect of Lapinski's threat "to file an arbi-
tration," and therefore it was of a concerted character. 16
However, there are varying circumstances of concerted ac-
tivity which may produce different results as to whether
protection against discipline is afforded by the Act.1T
This case was litigated, and presents the type of issue
which can only be considered, on the theory of unlawful
motivation by Respondent. There is no independent evi-
dence that Respondent harbored union animus or opposi-
tion to the filing of grievances as related to Lapinski or any
other employees; rather, the contrary appears.
Respondent's stated policy of screening out probationary
employees when, in its judgment, doubts are created as to
their suitability for continued employment-was not shown
to have been impelled by other than legitimate business
reasons 18 I believe that such policy was normally imple-
mented and provided the basic motivation in Respondent's
resolution to terminate Lapinski.19 In sum, I conclude on
15 E g, Price Brothers Company, 175 NLRB 277 (1969), Loose Leaf Metals
Company, 181 NLRB 202 (1970) ( these and similar cases cited by General
Counsel)
16Cf Snap-On Tools Corporation, 207 NLRB No 31 (1973)
17 See N L R B v Burnup & Sims, Inc, 379 U S 21 (1964), holding as
unlawful the discharge of an employee for misconduct arising out of a protected
activity, when it is established , despite the employer's good faith, that the
alleged misconduct never occurredwed
e g , McDonnell Douglas Corporation (Douglas Aircraft Company
Division), 189 NLRB 87 (1971), Norge Division, Borg-Warner Corporation,
155 NLRB 1087 (1965)
19 Moreover, in my opinion, Respondent 's asserted doubts regarding
Lapinski's desirability as a regular employee were not so unreasonably
SCHWERMAN TRUCKING CO. 879
the record of this case that General Counsel failed to sustain tion" was an actual factor entering into Respondent's deci-
the burden of proof that Lapinski's threat to ",file an arbitra- sion to terminate him as a probationary employee.
founded as to lend substance to the complaint allegation of an unlawful
motive as the true basis for the termination decision.
ORDER
It is hereby recommended that the complaint be dis-
missed 3n its entirety.