Smith's Transfer Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 28, 1967167 N.L.R.B. 632 (N.L.R.B. 1967) Copy Citation 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Huber & Huber Motor Express, Division of Smith's Transfer Corporation and Fred H . Neistat. Case 14-CA-4164 September 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 12, 1967, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled case, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders thhat the Respondent, Huber & Huber Motor Express, Division of Smith's Transfer Corporation, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION SAMUEL M SINGER, Trial Examiner. This case was heard before me at St. Louis, Missouri, on March 14 through 16, 1967, pursuant to a charge filed on December 5, 1966, and a complaint issued on January 31, 1967. The complaint alleged that Respondent violated Section 8(a)(1) of the National Labor Relations Act. Respondent denied commission of the unfair labor practices charged. All the parties appeared and were afforded full opportuni- ty to be heard and to examine and cross-examine wit- nesses. Briefs were received from General Counsel and Respondent. Upon the entire record,' the briefs, and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZA- TIONS INVOLVED Respondent, a Missouri corporation, with its principal office and place of business in St. Louis, Missouri, pro- vides and performs cartage and related services. During the representative year 1966, it provided services valued in excess of $500,000, of which over $50,000 worth were performed in, and for enterprises located in States other than Missouri. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act. Highway and City Freight Drivers, Dockmen and Helpers, Local 600, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union or Local 600), and Local Union No. 1, International Brotherhood of Electrical Workers, (herein called IBEW or Local 1) are labor organizations within the meaning of the Act. 11. THE UNFAIR LABOR PRACTICES A The Issues The issues in this case are whether Respondent vio- lated Section 8(a)(1) of the Act by interrogating, threaten- ing, and physically assaulting the Charging Party (Nei- stat) because of its belief that Neistat had telephoned the IBEW concerning a nonunion electrical contractor work- ing at Respondent's facility; by insisting and requiring Neistat to complete an "accident" report for injuries sustained through the assault; and by discharging him because of his refusal to file such report B. Neistat's November 23 Telephone CallforApproval of a Damaged Freight Notation; the Questioning of Neistat Concerning His Alleged Contact With IBEW Neistat, a city driver hired on June 1, 1965, last worked for the Company on November 28, 1966, and was formally discharged on December 15, 1966.2 He was the Union shop steward during the events here in question. A collective agreement governed the relations between Respondent and the Union Around 2:30 p.m., November 23, Neistat delivered six hot water heaters to Baldwin Gas Products Company. Upon the customer's insistence on a "notation" that the freight was damaged, Neistat telephoned Respondent's office and requested Lou Hall, the OS & D (overage, shortage, and damage) clerk to authorize such notation. The nature of the notation authorized is in dispute. Neistat testified that Hall approved a notation com- posed and typewritten by the customer, which he read off on the telephone, to the effect that the heaters "have sides and tops dented and crushed. Cartons are torn and are all Transcript corrected by my order, on notice, dated June 9, 1967 2 Unless otherwise specified, subsequent date references are to the period November 1966-January 1967 167 NLRB No. 87 HUBER & HUBER MOTOR EXPRESS 633 loose Heaters are good only for salvage." On the other hand, Hall testified that she dictated and approved the following notation: "Cartons in bad order, possible damage, subject to our inspection." She denied that Net- stat read off the customer's proposed notation and stated that, as a matter of fact, she had no authority to approve "any notation that certain goods were only good for salvage." I credit the testimony of Mrs. Hall, who impressed me as a credible witness. Furthermore, it is difficult for me to believe that Hall, a clerk, would have taken upon herself to give the customer what in effect was tantamount to a carte blanche valuation of the damaged freight.3 Moreover, Neistat admitted that Hall "usually" did in- struct him "what to put on the slip [the freight bill]" when he called in to report damaged freight. At the end of her telephone tall; with Neistat, Hall stated that Terminal Manager Morrow wished to speak with him. Morrow asked Neistat "what business [he] had in contacting the Electrical Workers Union [IBE, Local I]." Neistat testified that when he disclaimed any knowledge about the matter, Morrow said that an IBEW representative had called him, threatening to picket Respondent unless it "removed" a nonunion electrical contractor (Laverty) working on Respondent's premises; that after Neistat insisted that he had not contacted IBEW, Morrow inquired what Neistat would do if a picket line were placed around company premises; that he responded by asking whether the Company "would pay for the damage. . done to [his] body if [he] was to cross this picket line"; and that when Morrow indicated it would not, Neistat said, "Well, there's your answer." Morrow testified that he had hired Laverty for electri- cal work, unaware that he was a nonunion contractor, and that Laverty worked on the premises from around November 25 or 28. He further testified that after receiv- ing IBEW's November 23 telephone call, he became "worried" and "alarmed" about a picket line and con- tacted Campbell, manager and secretary of the Motor Carriers Council who handles Respondent's labor rela- tions, for advice. Campbell assured him that IBEW "could only put up an informational picket line." Later the same day, Morrow made "a passing comment" to several dockhands that "we might have pickets down here on account we were trying to improve the situation," i.e , work facilities. When one of the men said that "none of us guys called" IBEW and that only "a couple of peo- ple around here" could have done that, Morrow "narrow[ed] it down to" Neistat or another driver, Cheatham." Morrow admitted that when he later spoke with Neistat on the telephone (after Hall and Neistat conversed about the freight "salvage" notation), he asked Neistat why he reported him to IBEW. According to Morrow, Neistat admitted that he had made the call, stating, "I am going to cause you all of the problems I can ... You won't cooperate with me or the union ," an apparent reference to Morrow 's refusal to reinstate Cheatham (supra, fn. 4).s Morrow then called back Campbell and identified Neistat as the culprit . Campbell advised Morrow to send Neistat a warning letter for violating article 20 of the collective agreement dealing with "union membership cooperation with the Company ."6 As hereafter noted , Morrow sent such "warning letter" to Neistat 2 days later (November 25). C. The November 23 Meeting, Manager Morrow's Further Questioning of Neistat Concerning His Alleged IBEW Contract, the Altercation Between Morrow and Neistat 1. The testimony When Neistat returned to the terminal around 5 p m , he turned in his bills to Hall who took one of them directly to Morrow's office. Immediately thereafter Operations Manager Fischer questioned Neistat about a $4.50 c.o.d. shipment for which Neistat, according to Fischer, had failed to turn in the money Neistat told Fischer that if he "picked this money up, it was inside this office " At this point, Hall appeared and told Neistat that Morrow wanted to see him in his office.' Neistat went into Morrow's office, accompanied by fellow driver Foster. Operations Manager Fischer also entered. Although the testimony as to what transpired in Mor- row's office is in large part undisputed, the sequence of the subjects discussed is in sharp conflict. The two major topics of conversation were (1) Neistat's role in report- ing the presence of the nonunion electrical contractor on company premises, and (2) his responsibility for the "salvage" freight notation on the Baldwin Gas bill 8 The significance in the order of events lies in the fact that the last item of discussion aroused emotional feelings, led to a "scuffle," and, according to General Counsel, to an as- sault upon Neistat. Neistat's claimed injuries prompted Morrow to demand that Neistat fill out an "accident" or "personal injury" report, which Neistat refused to do. Morrow thereupon discharged him Neistat and Foster testified that the last item discussed concerned Neistat's alleged telephone call to IBEW while Morrow and Fischer testified that the last such item con- cerned the freight bill. Mrs. Hall was not present throughout the meeting, but, as we shall see, her testimony is a major factor in the credibility resolution. a. Neistat Neistat testified that Hall was already present when he entered Morrow's office. Morrow opened the discussion by asking "What was the idea of you giving [Baldwin Gas] this kind of a notation ," pointing out that he in ef- fect gave the customer "a blank check" in fixing the 9 The record shows that the total value of the shipment was $600 to $700, that later in the afternoon, as soon as he learned of the notation, Company Manager Morrow dispatched a salesman to check on the extent of the damage , and that the customer was ultimately credited only $162 as total damage " Around 8 30 a in on the same day (November 23), Morrow turned down Neistat 's appeal (in his capacity as shop steward) to reinstate Cheatham whom Morrow previously fired Morrow testified that Neistat "was disappointed but there was nothing out of line " S As previously noted, Neistat denied telling Morrow that it was he who reported him to I BEW 6 Art 20 provides that "The Union, as well as the members thereof, agree at all times as fully as it may be within their power, to further the in- terests of the Trucking Industry and of the Employer " 7 The above finding as to how Neistat was summoned into the office is based on Hall's testimony I do nct credit Neistat's testimony that Mor- row personally directed him to enter " While Morrow and Fischer testified that the $4 50 c o d bill (supra) was one of the matters taken up - in fact the first item of discussion -Nem- stat denied that that question came up at that meeting General Counsel's witness Foster at one point testified that "the first thing " discussed was the c o d bill, but at a later point denied that it was discussed at all 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of damage. Neistat said that Mrs. Hall gave him "the O.K " After stating that "this notation shouldn't have been given," Morrow called in a salesman (Shields) and directed him to take the matter up with Baldwin Gas. Shields then left and Morrow turned to the IBEW contact about which he spoke to Neistat earlier in the day on the telephone. Morrow asked Neistat why he "went to the Electrical Workers Union." As in his earlier telephone conversation, Neistat denied the accusation. Morrow read off article 20 of the collective agreement providing for union cooperation in furthering the employer's "in- terests"and said that Neistat was "going to get a warning letter, possibly a discharge" pursuant to that article. Nei- stat replied that he "better be right," suggesting that he "find the right party that contacted" IBEW. Morrow also repeated his earlier telephone question as to whether Nei- stat would cross an IBEW picket line and, as before, Nei- stat answered that he would do so only if the Company agreed to compensate him for possible injuries. When Morrow again mentioned the warning letter, Neistat an- swered that he "could send [him] all the warning letters on this" and that he "would fight him" on the matter. "The argument got a little loud" and Morrow ordered him out of the room with abusive language. Neistat admitted that he, too, "raised" his voice and "might have" used similar language. Neistat further testified that as he approached the door, Morrow continued to make abusive remarks, dragged Neistat down a hallway approximately 10 feet long through a door leading to an outside porchway, and had Neistat hanging over a porch railing with his hands on Neistat's throat. At this point, Operations Manager Fischer broke the two apart, stating "That's enough of this."9 b. Foster Foster corroborated Neistat on the sequence of the conversation, the substance of discussion, and Morrow's "attack" on Neistat following on the heels of the argu- ment regarding Neistat's alleged contact with IBEW. He indicated, however, that he could not remember "the whole conversation" on the latter subject and `just know[s] parts of the discussion that led to Neistat's evic- tion from the office. He "believe [d]" that both Morrow and Neistat were "pretty heated" and that both used cuss words. At one point in cross-examination he admitted that it was "a possibility" that the "argument over the damaged freight," as well as over the electrical contrac- tor, caused Neistat "to get loud and boisterous." c. Morrow cause you all the problems I can." Morrow replied that he "was sorry he felt that way and did he know he violated an article of the contract." Neistat said he did not. According to Morrow, after "we got the other two problems out of the way, and I told Fred I was going to send him a warning letter on the Electrical Workers Union, then we got to what I was really concerned about, this delivery with this notation." When Neistat stated that Hall authorized the notation he had given to the customer, he motioned to Hall, who was in the outer office,1° to come in. Hall joined the group, denied that she had approved the notation in question, and stated that she authorized a different one (supra),11 Morrow then telephoned Regna, the dockhand who loaded the freight onto Neistat's truck, who told him that "the condition of the merchandise wasn't in nearly as bad a state as the notation [Neistat] gave the customer would indicate." He accordingly directed Shields, the salesman who was "standing by" his desk, to drive out to the customer "and inspect this merchandise because we will be in serious trouble . if this notation holds up."12 He also telephoned the customer to await Shields' arrival. Morrow further testified that his argument with Neistat began after he completed his phone call to Regna. Ad- dressing himself to Neistat, Morrow said that "something wasn't right here, I wasn't getting the right information, because Regna said that the merchandise wasn't as bad as all that...." Morrow went on to say that the merchan- dise was better than "good only for salvage" which "would leave us wide open, it was like giving a customer a blank check." According to Morrow, Neistat got all excited and said "You aren't going to pull the`same crap on me that you did on Cheatham." Morrow replied that he wasn't "trying to pull anything on anybody, I am just trying to find out what happened here, and I don't even have the authority to give a customer a notation of this order." Morrow testified that when he persisted in getting an explanation why Neistat had given the "salvage" nota- tion, Neistat got up, walked over to his desk, shook his finger at him and shouted and cursed; he then requested Neistat to leave, saying, "we aren't getting anywhere with this type of attitude"; Neistat refused to leave and "shouted more" obscence language; when he repeated his request that Neistat "get out of the office," Neistat "just stood there yelling"; he directed Neistat to leave for the third time, saying he did not wish "to talk to [him] about it any more"; and when Neistat still refused to comply, he got hold of him, pushed him out of the door, "grabbed" him around the arms, and dragged him out to the porch, holding him against the railing. At this point Operations Manager Fischer intervened, saying, "that's enough, cool down." Morrow testified that after a brief discussion on the $4.50 c.o.d. shortage he turned to Neistat and said, "Fred, I want to know more about why you called the Electrical Workers Union." Neistat replied "Like I told you before, you won't cooperate with us, we are going, I am going to 4 Morrow is about 6 feet 2 inches tall, weighs 234 pounds, and is 29 years old Neistat is 5 feet 5 inches, weighs 140 pounds, and is 27 years of age 10 Hall 's desk is in the large office area outside Morrow's office She can look into Morrow's office through a glass window in the wall separat- ing the two offices but cannot see anyone in Morrow's office unless the in- dividual and she are in standing position 11 Morrow testified that Hall had shown him the delivery receipt Nei- stat had brought back immediately after Neistat returned , and that Hall at d. Fischer Operations Manager Fischer generally corroborated Morrow's version of the November 23 interview, includ- ing as to the alleged sequence of events. Like Morrow, he that time pointed out that she had not authorized that notation but one she had dictated to Neistat on the telephone According to Morrow, he first learned of the damaged freight earlier in the afternoon when the customer himself asked for an inspection , but decided against sending out a salesman to do that that afternoon because no salesman was available until 4 30 p in., and this was the day before Thanksgiving 'Z It was on the basis of this inspection that Respondent "ultimately" paid out, as previously noted (fn 3), $162 as opposed to the $600 or $700 for whi^h it might have been liable as salvage HUBER & HUBER MOTOR EXPRESS 635 testified that the "last thing discussed" was the "bill of lading"; and that "things started to get ... a little bit hotter" in the discussion of the damaged freight notation just after Neistat remarked that "Morrow wasn't going to railroad him like he did Mr. Cheatham." Neistat con- tinued to be "loud and antagonistic" and Morrow said "We are getting no where.... This meeting is ended, let us just get out of the office." After further shouting in foul language Neistat shook his finger at Morrow. Morrow again directed Neistat to leave, but without avail. Finally, Morrow got up and "escort[ed] Mr. Neistat out [of the office] with his hand on his back." Morrow "then just grabbed him around the chest or back and shoved him on out, pushed him down the corridor toward the outer door" onto the outside porch whe-e Morrow had Neistat lean a "little bit" against the railing, until he (Fischer) asked the two to "cool down." e. Mrs. Hall and Prince Hall, a company witness, testified that it was she who summoned Neistat to Morrow's office at Morrow's direction; "after going into the office" Morrow asked Neistat "why he gave this [salvage] type of notation"; Neistat responded, "You can't pull this stuff on me like you did Cheatham"; the men then "discussed" the nota- tion further; that Morrow directed Shields to inspect the shipment and telephoned the customer (Baldwin GAS) to await his arrival; and she thereafter left to answer a phone call. Hall did not witness and could not testify as to what led to the scuffle between Morrow and Neistat, although she heard "loud talking" and Neistat's voice before Mor- row escorted Neistat out of the office. She was typing at the time the door was opened and Morrow was "leading" Neistat to the front door. Prince, another company witness, corroborated por- tions of Morrow's testimony. Prince, a clerk whose desk is outside Morrow's office facing the office window, testified that he saw Neistat shake his finger at Morrow and that he heard both Neistat's and Morrow's loud vo- ices through the closed window, including Morrow's request that Neistat leave "because he was getting loud." 13 2. Credibility resolution As already noted, much of the testimony as to the na- ture of the discussion in Morrow's office is undisputed. Thus, there is no question that the two major items of discussion were the "salvage" freight notation signed by Neistat and Neistat's alleged report to IBEW that a non- union electrical contractor was working on company premises. Morrow admittedly questioned Neistat con- cerning his contacting IBEW and, believing that Neistat was the culprit (despite Neistat's denials), warned that he would be disciplined therefor. Nor is there any dispute that the meeting ended in a loud argument and scuffle and that Morrow forcibly evicted Neistat from his office and dragged him onto the outside porch. The major disputed items are (1) the sequence of items discussed, i.e., whether the electrical contractor matter or the freight bill preceded the fracas; and (2) whether the forcible eviction was provoked by Neistat's refusal to comply with Mor- row's direction that he leave his office. I do not credit Morrow's testimony that the last item of discussion at the November 23 meeting was the salvage notation. I find, as Neistat testified, that the discussion leading to the scuffle was the dispute over the nonunion electrical contractor. Morrow admitted that he was "really upset about this [freight] notation." He took swift and effective steps to rectify what he regarded to be a gross and costly error on the part of Neistat. He summoned Neistat to his office as soon as Hall called the notation to his attention, telephoned the dockhand (Regna) to check on the condi- tion of the freight, directed one of his salesmen (Shields) to personally inspect and appraise the damage, and ar- ranged with the customer to await the salesman's arrival. In these circumstances, it is hard to believe that an in- dividual, so perturbed about and absorbed with the freight notation, would have calmly turned to the minor subject of a $4.50 c.o.d. shortage, or even to the more important IBEW telephone call on a nonunion contractor, when Neistat entered his office. Furthermore, the testimony of Hall, whom I already credited with respect to other mat- ters, confirms Neistat's, not Morrow's, version of the order of events, including the fact that the notation discussion preceded the electrical contractor discussion. Although she confirmed Morrow's testimony that it was in the freight discussion that Neistat remarked that Mor- row "can't pull this stuff on me like you did Cheatham," her testimony indicates that this remark did not im- mediately lead to the "scuffle," as Morrow indicated. Hall remained around while the two men continued to discuss the matter, then left the office (to take a phone call), and did not return, presumably because discussion on the notation - the only matter with which she was con- cerned - was near completion. It was not until some time lapse, and while typing at her desk, that she heard voices in Morrow's office. The door then opened and the scuffle continued. I find that on calling Neistat into Morrow's office to discuss the damaged freight notation, Mrs. Hall remained there until the discussion on that subject was completed or near completion; Mrs. Hall returned to her desk and did not return to the office because a matter with which she was no longer concerned was to be raised and discussed thereafter; and this new matter (Neistat's al- leged call to IBEW) which was then discussed led to the ensuing altercation. On the other hand, I do not credit Neistat's testimony to the extent it purports to indicate that he was entirely without fault and did nothing to provoke his physical eviction from Morrow's office. Although Morrow's testimony on this point is exaggerated, I am persuaded that after the argument between Neistat and Morrow over the nonunion electrical contractor became tense and heated, Morrow asserted that he had enough of it and requested Neistat to leave; that Neistat continued shout- ing back without leaving; and that it was only after Nei- stat's refusal to comply with Morrow's direction to leave, that Morrow resorted to physical force. General Coun- sel's witness Foster admitted that Neistat was "pretty heated" and did "some cursing" in the latter part of the meeting. He also indicated that Morrow had "possibly" '3 Although Prince indicated that he also heard a reference to heaters, dealt almost entirely with Morrow's "escorting" Neistat out of the office, his testimony on this point is vague and unreliable and I do not credit it contributed little to the resolution of matters in conflict The testimony of another company witness, Dispatcher Loomis, which 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested "more than once" that Neistat leave the premises. Other witnesses, including Hall, a credible wit- ness, heard Neistat's loud voice or shouting prior to the opening of the door and Neistat's removal. D. The Discharge of Neistat for Refusing to Comply With Respondent's Request to Complete an "Accident" or Personal Injury Report In the evening of November 23, Neistat went to-a hospital where he was examined and told to see his per- sonal physican. His physician had him hospitalized from December 1 to 4. On December 9, the physician advised him that he "could go back to work, but to take it easy." In the meantime, on Friday morning, November 25 (November 24 was Thanksgiving Day), Neistat telephoned Company Dispatcher Cox that he would not be at work, that he was trying to see his physician, and that if he wanted to know why he was not working to ask Morrow Morrow testified that on learning of Neistat's call, he "realized that we were going to probably be in- volved in a compensation case" and contacted Campbell, the Motor Carrier Council official Campbell told him that he "made a mistake touching the man" and Morrow admitted that he "knew it." Campbell then advised him to obtain "an injury report" from Neistat. Morrow in- structed Hall to telephone Neistat for such report. When Neistat came to the terminal later that day to pick up his check, Operations Manager Fischer asked him to fill out an "accident report " Neistat refused, stat- ing "there was no accident on my part" and left. After discussing the matter with Campbell and calling the Com- pany's insurance carrier, Morrow sent Neistat a letter, noting that Neistat had refused "to fill out an accident or physical injury report" for an alleged claim of "physical injury sustained while on Company property," advising him that article 16 of the collective agreement required him to file such report,14 warning him that he was "not eligible" to return to work until it was completed, and requesting him to make himself "available" for a physicial examination by the company doctor "before returning to work." On the same day, Morrow sent him another letter. After referring to Neistat's morning telephone call that he would not come in to work, Morrow stated, "This is a warning letter for failure to protect your work shift, without just cause.... Any further recurrence of a similar nature will result in more disciplinary action, up to and including possible discharge." 15 In a third letter to Neistat on that day (November 23), Morrow wrote: This is a warning letter as set forth under Article 20 of the Central States Area Local Cartage Supple- mental Agreement for the following offense. Under your own admission you called Electrical Workers Local No I on this company with regards to using the Laverty's Electric Company, the ensuing is [sic ] that we have received a letter from Local No. 1 stating they are to picket our company.' b This is a warning letter for not furthering the interest of this company. Any future recurrence of a similar nature will result in more disciplinary action, up to and including possi- ble discharge 17 Several times thereafter (November 28 or 29, November 30, and December 9) Respondent requested Neistat (verbally and in writing) to fill out an "accident" or personal injury report, indicating that he could return to work if he completed such report. Neistat refused to comply. When Neistat appeared at the terminal ready to work on December 12, he was again advised that he must first fill out a report. Later that day Union Business Agent Abboud and Neistat met with Morrow. Morrow told Abboud that Neistat would be put to work if he filled out the report and submitted to a physical examination. Abboud asserted that Neistat would not complete the re- port "under advice of his attorney,""' but would submit to a physical examination. Abboud also said that "if [Morrow] wanted an accident report, that he should be the one to fill it out because he knew what happened." Morrow then had Mrs. Hall make an appointment at the office of the company physician for 11 a.m. that morning. The company doctor certified Neistat as able to return to work and Neistat so advised Mrs. Hall later that after- noon. Hall informed Neistat that Morrow had given in- structions not to put him to work until he filled out the in- jury report. On the next day (December 13), the dispatcher (Cox) told Neistat the same thing when he re- ported for work at the terminal. On December 15, Morrow wrote Neistat that he was discharged as of December 13 "for failure .to protect [his] work shift," citing three separate occasions when Neistat "steadfastly refused to fill out an accident-per- sonal injury report" as he was required to do under article 16 of the collective agreement. E. The Grievance Proceeding On December 16, Neistat filed a grievance under the contractual grievance procedure, claiming he was "un- justly discharged." A grievance "hearing" was thereafter held at St. Louis, Missouri, before a panel, composed of three Employer and three Union (Local 600) representa- tives at which Business Agent Abboud represented Nei- stat and Morrow represented the Company. The trans- cript of that "hearing," as well as the testimony in the present hearing, establishes that the issue discussed was Respondent's justification for discharging Neistat because of his refusal to file an "accident" or "personal injury" report and his alleged failure "to protect his work 11 Art 16 provides that "Any employee involved in any accident shall immediately report said accident and any physical injury sustained When required by his Employer, the employee, before starting his next shift, shall make out an accident report in writing on forms furnished by the Em- ployer and shall turn in all available names and addresses of witnesses to the accident Failure to comply with this provision shall subject such em- ployee to disciplinary action by the Employer " 15 The letter was written "under Article 44" which provides, inter a/ia, that an " Employer shall not discharge nor suspend any employee without just cause ," that the employee shall receive "at least one warning notice of the complaint" except if discharged for certain reasons such, as dishonesty, and that the employee may appeal the Employer's action to the Joint City Committee, the Joint State Committee, and the Joint Area Committee " The Union's letter indicated that the "sole purpose in picketing is to advise the public of the substandard wages and working conditions" of the nonunion contractor, that the picketing would be conducted in such a way as not to interfere with deliveries , and that if Respondent was in posses- sion of information that the nonunion contractor 's wages and benefits were not substandard , to so advise the Union " As previously noted, art 20 of the collective agreement provides "The Union, as well as the members thereof , agree at all times as fully as it may be within their power, to further the interests of the Trucking In- dustry and of the employer " 18 The attorney represented Neistat in a personal injury suit for $ 100,000 compensatory and punitive damages, based on the November 23 "assault" on Neistat HUBER & HUBER MOTOR EXPRESS 637 shift," as stated in the Company's December 15 discharge letter. Speaking for Neistat, Abboud took the position that Neistat had protected his work shift by presenting himself for work on December 12; that he was under no contractual obligation to file a report because no "accident" or injury "on the job" was involved; and that Neistat's attorney similarly advised Neistat. Morrow, on the other hand, contended that Neistat was obligated to file a report concerning the incident alleged to have caused "injury," although conceding that he "wouldn't call it an accident"; and recited his repeated requests and Neistat's repeated refusals to do so. Neither respon- sibility for the November 23 altercation nor the alterca- tion itself was discussed. Nor was the Neistat's alleged report to IBEW concerning the Company's employment of a nonunion electrical contractor raised. The panel "deadlocked," unable to agree on a decision, and referred the matter to the next step in the grievance procedure, a "hearing' before a board at "the state level." At the "state level" hearing in Kansas City, Missouri, on January 5, the panel again consisted of three Em- ployer and and three Union (none from Local 600) representatives. The same issues and "basic facts" were raised and considered as at the St. Louis "hearing." As at St. Louis, there was no discussion or consideration of the freight bill notation, the altercation, and the electrical contractor report antedating the discharge.'" The panel "upheld" the discharge and the decision against Neistat became "final."20 F. Conclusions 1. The interrogation and reprimands As already noted, it is undisputed, indeed admitted, that Terminal Manager Morrow questioned Neistat as to whether he had contacted IBEW about Respondent's em- ployment of a nonunion electrical contractor on company premises and, believing that he had, upbraided him. Mor- row also threatened to send, and sent, the Union a "warn- ing letter" for his alleged activity. In his letter of November 25, Morrow threatened that "Any future recurrence of a similar nature will result in more disciplin- ary action, up to and including possible discharge." The issue presented is whether a report such as that at- tributed to Neistat is a protected concerted activity within the meaning of Section 7 of the Act. If the activity is protected, the fact that Neistat did not actually engage in it (Neistat denied the accusation) is immaterial, so long as Respondent acted in the belief that he did. "It was the animus and actions of the respondent which were at issue here in determining if there was a [violation]. Proof of an unfair labor practice does not require proof of actual [concerted] activity ... once it is shown that suspected [concerted] activity was what motivated the respondent. " N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d 90, 98 (C.A. 8). See also N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 589-590. Nor is there any sub- stance to Respondent's contention that even if the activi- ty was protected, the right to engage in it was "contracted away" by article 20 of the collective agreement, requiring employees "to further the interests of ... the employer." To be effective, a waiver must be clear and unmistakable and will not readily be implied. The Timken Roller Bear- ing Company v. N.L.R.B., 325 F.2d 746,750-751 (C.A. 6). Cf. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16-17. Section 7 of the Act secures to employees "the right to ... assist labor organizations ... and to engage in other concerted activities for the purposes of collective bar- gaining or other mutual aid or protection." In Sandpiper Builders, 152 NLRB 796, the Board held that it is pro- tected Section 7 activity for an employee of one employer (a subcontractor in that case) to contact and report to his own union that another employer (the general contractor) was employing nonunion workers. There is no reason in principle why this statutory protection be withheld from an employee (such as Neistat) who purportedly made a similar report to a union other than his own. Cf. Redwing Carriers, Inc., 137 NLRB 1545, 1546-47, affil. 325 F.2d 1011 (C.A.D.C.).21 Both cases involve the fundamental right of employees to make common cause with em- ployees of other employers. By reporting the employment of nonunion electricians, Neistat, the Union's steward, "assure[d] himself, in case his turn ever comes, of the support of the one[s] whom [he was] then helping; and the solidarity so established is `mutual aid' in the most literal sense, as nobody doubts." N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F.2d 503, 505-506 (C.A. 2). I conclude that by questioning and reprimanding Nei- stat because of its belief that he was responsible for re- porting the employment of a nonunion electrical contrac- tor on company premises, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 2. The altercation and assault As found , the discussion on the nonunion electrical contractor culminated in a heated argument and emo- tional exchange between Morrow and Neistat . Morrow directed Neistat to leave his office , but Neistat continued to shout at Morrow . On Neistat's refusal to comply with his direction to leave, Morrow physicially ejected him out of his office and in the process assaulted him. In issue is whether this assault constitutes an 8(a)(1) violation. The instant case is distinguishable from cases where an employer assaults an employee or union representative during and in the course of the conduct of protected con- certed activity, as, for example , during distribution of union literature at an employer ' s plant . See N . L.R.B. v. American Thread Company, 204 F. 2d 169 , 170 (C.A. 5); N.L.R.B. v. GIBBS Corporation , and Southern Ship- building, Inc., 297 F.2d 649, 651 (C.A. 5). Here the as- sault took place after the conduct found unlawful (the questioning and reprimanding concerning protected ac- tivity ) was at an end . Under the circumstances , the criti- cal inquiry is Respondent's motivation , not the reasonableness or justification for the force utilized. 1e Although in reciting the events leading to the discharge , the company spokesman mentioned , among other things , the warning letter to Neistat on the electrical contractor , it is clear that this was neither considered nor treated as an issue before the panel. 21 The collective agreement provides for a further appeal to the Chicago Joint Council in the event of deadlock at the State level. 21 In Redwing , the Board held that an employee's refusal to cross a picket line at the premises of an employer not his own constituted pro- tected concerted activity as well as assistance to a labor organization, within the meaning of Sec 7 of the Act See also L G Everist, Inc , 142 NLRB 193, 195, enforcement denied 334 F 2d 312 (C A 8) 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the totality of the situation, I find that the substantial, credible evidence does not support a finding that Morrow's assault was motivated by Neistat's suspected concerted activity in reporting or turning in Respondent to the Electrical Workers, nor was the as- sault so related to the concerted activity as to warrant a finding that it was unlawful under Section 8(a)(1) of the Act. There is no sufficient basis for concluding that Mor- row's conduct was prompted by any considerations other than Neistat's refusal to comply with Morrow's direction that he leave his office. Cf. The Youngstown Cartage Company, 146 NLRB 305, 306-307; De DEIGO Taxi Cabs, Inc., 107 NLRB 1026, 1038; Atlanta Broadcast- ing Company, 79 NLRB 626, 635. Although it may be that Morrow used more than reasonable and necessary force to evict Neistat from his office, this is a matter best left to resolution in private litigation before another tribu- nal. 3. Respondent's insistence that Neistat file an accident or personal injury report and his discharge for refusing to file such report After the altercation and assault upon Neistat, Re- spondent repeatedly requested Neistat to file an "acci- dent" or personal injury report as a condition of his re- turning to work. Neistat refused to comply and thereupon was discharged. The propriety of the discharge was sub- sequently processed under the contractual grievance procedure before two successive panels, in each case composed of an equal number of the Employer's and the Union's representatives. The discharge was ultimately upheld, presumably on the ground that Neistat's failure to file the requested injury report was in breach of the col- lective agreement. Having found that the altercation and assault in which Neistat sustained the claimed injury was unrelated to the conduct found unlawful, it follows that Respondent's in- sistence that Neistat fill out the "accident" or injury re- port - whether or not warranted by the collective agree- ment or unjustifiable for nondiscriminatory reasons - is not an unfair labor practice. Nor is the discharge for Nei- stat's failure to file the report in contravention of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. By questioning Neistat as to whether he had con- tacted IBEW about a nonunion electrical contractor working on company premises, and by reprimanding and threatening Neistat because of its belief that he had en- gaged in such activity, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. 2. The aforesaid violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent did not violate the Act by assaulting Neistat, by requiring him to file an accident or personal injury report, and by discharging him for refusing to file such report. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend the customary cease- and-desist order in cases of this nature, designed to effec- tuate the policies of the Act. On the basis of the foregoing findings of fact and con- clusions of law and on the entire record , and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER Huber & Huber Motor Express, Division of Smith's Transfer Corporation, St. Louis, Missouri, its officers, agents , successors, and assigns , shall: 1. Cease and desist from coercively questioning em- ployees about union or concerted activities , reprimanding and threatening reprisals for engaging in such activities, and in any , like or related manner interfering with, restraining , or coercing employees in the excerise of their rights under Section 7 of the Act. 2. Post at its terminal in St . Louis , Missouri , copies of the attached notice marked "Appendix."22 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.23 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 82 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order." 23In 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act , as amended , we hereby notify our em- ployees that: WE WILL NOT unlawfully question our employees about union or concerted activities, nor reprimand or threaten them with reprisals for engaging in such ac- tivities. WE WILL NOT in like or related manner interfere with, restrain , or coerce employees in the excerise of their rights under the Act. HUBER & HUBER MOTOR EXPRESS , DIVISION OF SMITH'S TRANSFER COR- PORATION (Employer) Dated By (Representative ) (Title) HUBER & HUBER MOTOR EXPRESS 639 This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate days from the date of posting and must not be altered, directly with the Board's Regional Office, 1040 Boat- defaced, or covered by any other material. men's Bank Building, 314 North Broadway, St. Louis, If employees have any question concerning this notice Missouri 63102 , Telephone 622-4167. Copy with citationCopy as parenthetical citation