Superior Motor Transportation Co, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1972

200 N.L.R.B. 892 (N.L.R.B. 1972)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Motor Transportation Co , Inc and Frank T
Davis Case 1-CA-8014
December 13, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 21, 1972, Administrative Law Judge'
Sydney S Asher issued the attached Decision in this
proceeding Thereafter, the Respondent and the
General Counsel each filed exceptions and support-
ing briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findmgs,2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Superior Motor
Transportation Co, Inc, Pawtucket, Rhode Island,
its officers, agents, successors, and assigns, shall take
the actions set forth in the Administrative Law
Judge's recommended Order
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19, 1972
2 The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board s
established policy not to overrule an Administrative Law Judge s resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions were incorrect Standard
Dry Wall Products Inc 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We
have carefully examined the record and find no basis for reversing his
findings
TRIAL EXAMINER'S DECISION
SYDNEY S ASHER, Trial Examiner On December 22,
1971, Frank T Davis filed charges against Superior Motor
Transportation Co, Inc, Pawtucket, Rhode Island, herein
called the Respondent Amended charges were filed on
February 9, 1972 Based on these charges, the General
Counsel of the National Labor Relations Board on
February 16, 1972, issued a complaint alleging that since
1 The Respondent is and at all material times has been a Rhode Island
corporation engaged in the transportation of freight by truck The
Respondent maintains its principal office in Roxbury Massachusetts and
terminals at Roxbury, Massachusetts and Pawtucket Rhode Island The
Respondent transports freight from points within the State of Rhode Island
directly to destinations outside the State of Rhode Island, and vice versa Its
on or about July 21, 1971, the Respondent has interfered
with, restrained, and coerced its employees in certain
specified respects, and that the Respondent discharged
Frank T Davis, an employee, on or about October 4, 1971,
and since then has refused to reinstate him, because he
joined or assisted International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local
Union No 251, herein called the Union, or engaged in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection It is alleged
that this conduct violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (29 U S C Sec
151, et seq ), herein called the Act The Respondent filed an
answer admitting that it had discharged Davis but denying
that it did so for the reasons set forth in the complaint and
denying the other allegations of the complaint As an
affirmative defense the answer alleges that Davis' dis-
charge "has been adjudicated by an arbitration award "
Upon due notice, a hearing was held before me on
March 23, April 11, and April 12, 1972, at Pawtucket,
Rhode Island All parties were present in person or by
representative and participated fully in the hearing At the
beginning of the hearing, the General Counsel was
permitted to amend his complaint in certain respects, and
the Respondent later filed an amended answer The
Respondent filed a written motion to dismiss the complaint
in its entirety Ruling on this motion was reserved For the
reasons set forth hereafter, the motion is now granted in
part and denied in part After the close of the hearing, the
General Counsel and the Respondent filed briefs, which
have been duly considered
Upon the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
A Preliminary Matters
The complaint alleges, the answer admits, and it is found
that the Respondent is, and at all material times has been,
an employer engaged in commerce as defined in the Act,
and its operations meet the Board's jurisdictional stand-
ards i
The record indicates, and it is found, that International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No 251, herein called
the Union, is, and at all material times has been, a labor
organization as defined in the Act 2
B The Setting
Ignatius Giglio is, and at all material times has been,
president of the Respondent Jesse Souza is, and at all
material tunes has been, manager of the Respondent's
Pawtucket terminal At the Pawtucket terminal-the only
terminal involved here-the Respondent employs approxi-
mately 21 truckdrivers
gross revenue as a result of this interstate transportation of freight exceeds
$50 000 annually
2 The brief for the General Counsel states It is submitted that the
Petitioner is a labor organization within the meaning of Section 2(5) of the
Act It is assumed that by the designation Petitioner the General
Counsel intended to identify the Union
200 NLRB No 139
SUPERIOR MOTOR TRANSPORTATION CO 893
At all material times the Respondent and the Union have
been parties to a collective-bargaining contract covering
the truckdrivers working out of the Respondent's Pawtuck-
et terminal Jesse Mariano is, and at all material times has
been, the Union's business agent
C Souza's Threats to Davis
In March 1969, Manano appointed as union steward
under the collective-bargaining agreement Frank Diaz, a
working foreman in the Respondent's employ Diaz was a
friend of Mariano's and had acted as Mariano's campaign
manager in the union election which had resulted in
Mariano's election as business agent After awhile, some of
the Respondent's drivers became disenchanted with the
manner in which Diaz carried out his functions as steward
In June 1971 Diaz resigned his stewardship On June 263
the Respondent's drivers duly elected one of their number,
Frank T Davis, to fill the vacancy Davis vigorously and
energetically performed his duties as steward The events
to which we now turn our attention occurred soon after
Davis' election
The complaint, as amended at the hearing, alleges, and
the answer as amended denies, that on various dates
commencing on or about June 28 and ending on or about
October 4 Souza "threatened Frank T Davis with
discharge if he persisted in processing grievances on behalf
of employees in accordance with his duties as union
steward " During the hearing the General Counsel conced-
ed that "The General Counsel will agree that probably the
month of September, there were no threats, as the record
shows now, because they were located in the period of
June, July and August " The record also shows that Davis
was on vacation from August 16 through 20
In support of this allegation of the complaint, Matthew
Guglielmetti and John C Cooper, both truckdnvers
employed by the Respondent, testified as witnesses for the
General Counsel Gughelmetti testified that sometime in
July he prepared a written grievance protesting his
assignment to the Boston run and gave it to Davis Shortly
afterward Guglielmetti overheard Davis discussing with
Souza this grievance and another one concerning the
starting time for one of the other drivers During the
discussion (which was inside Souza's office) Souza raised
his voice and said to Davis "I'll do what I want around
here There's nobody telling me what to do, because I
consulted my lawyer You think you're smart I'll get
you one way or the other " According to Gughelmetti,
after "much yelling," Davis left the office Souza then
"[came] storming out of the office and [said] `He thinks
he's smart I'll get him' " Cooper's testimony was along
the same vein apparently about June 15 Cooper submitted
to Davis a written grievance in which Cooper claimed he
was entitled to an earlier starting time At approximately
7 30 am a few days later, Cooper overheard Davis tell
Souza that he (Davis) wanted to talk to Souza about earlier
starting times Souza warned Davis "that he'd [Davis]
better lay off the earlier starting times or he [Davis] would
be out " Souza added "I mean that, that you will be out
I'll get you You'll be out " Cooper further testified that
about 2 weeks later (still in July) he overheard Davis ask
Souza about "opening up the bids, because the situation
was very bad over there they had broken the bids "
Cooper heard Souza reply to Davis, "You better lay off the
bids I don't like your attitude, and if you don't straighten
up, you'll be out You won't have to worry about no bids "
According to Cooper, Davis, "a little flushed in the face,"
then "turned around and walked away "
Souza admitted that he had a conversation with Davis
while Davis was union steward regarding starting time, and
that Davis had submitted to him (Souza) grievances filed
by Guglielmetti and Cooper However, he flatly denied
that he had ever threatened Davis, or told Davis "I'll get
you " His denials were not convincing Guglielmetti and
Cooper were both still in the Respondent's employ at the
time they testified They both impressed me as sincere and
candid witnesses, and their testimony regarding these
Souza-Davis conversations withstood vigorous cross-exam-
ination and moreover was corroborated, in substantial
part, by that of Davis I credit their versions and conclude
that at least twice in July Davis, while presenting
grievances to Souza as union steward, was threatened by
Souza that Davis would be "out" and that Souza would
"get" Davis if Davis continued to press grievances It is
concluded that Davis' conduct in presenting grievances as
union steward was activity protected by Section 7 of the
Act and that consequently Souza's above-described threats
in July constituted interference, restraint, and coercion
violative of Section 8(a)(1) of the Act To this extent, the
Respondent's motion to dismiss the complaint in its
entirety is therefore denied
In thus concluding, I deem it unnecessary to reach the
issue whether, as Davis testified and Souza denied, Souza
had also warned Davis "You're on thin ice You better
watch your step around here," and had uttered numerous
other threats Assuming, without deciding, that Souza had
made these additional threats, that fact would merely be
cumulative and would not affect the Order hereafter
recommended
D Davis' Discharge
I Events up to and including the discharge
Frank T Davis began working for the Respondent in
1957 as a truckdriver Throughout his employment with the
Respondent he was a member of the Union in good
standing He was paid by the hour and his workday
normally ended at 4 30 p in
Davis' relations with Souza were not always pacific On
April 27 Davis came in from a run at about 6 p in Souza
told Davis to drop his trailer , fuel his tractor, and put it
away Davis refused , used foul language toward Souza, and
punched out , leaving his trailer "right in the middle of the
driveway " Souza told Davis that Davis "was walking off
the job and not to come back the next morning because
there'd be no job there waiting for him " The next day at
about 2 30 or 3 p in , Mariano came to see Souza and,
pointing out that Davis had "14 years service and having
so many children," asked Souza to give Davis another
3 All dates hereafter refer to the year 1971 unless otherwise noted
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chance Souza then reconsidered, transmitting to Davis the
following letter on the Respondent's letterhead
Union" On September 13 Mariano sent the following
letter to Souza on the Union's stationery
Dear Mr Davis
On Tuesday, April 27, 1971, while in the employ of this
Company, you refused to follow an order given to you
by the terminal manager and subsequently quit your
job
The Company is being lenient in this matter only
because of the pleadings of your Business Agent, James
Mariano, on your behalf This is to inform you that you
are being suspended for three (3) days and you may
report for work on Monday, May 3, 1971, at your
regular starting time
Any further insubordination on your part will result in
immediate discharge
VERY TRULY YOURS,
/S/ JESSE SOUZA
JESSE SOUZA
TERMINAL MANAGER
cc Mr James Mariano
TEAMSTERS LOCAL 251
121 BRIGHTRIDGE AVENUE
EAST PROVIDENCE, RHODE
ISLAND 02914
After the 3-day period Davis returned to work He filed a
grievance with regard to this disciplinary suspension,
which the Union appealed to the New England Joint Area
Committee, under the terms of the collective-bargaining
contract between the Respondent and the Union On June
17 a hearing was held before a panel of three employers'
representatives and three union representatives Davis
appeared and was represented by Marano The decision of
the panel reads "The Union's claim is denied " On June 26,
as related above, Davis was elected steward And in July,
as described above, Davis was threatened at least twice by
Souza
Early in September Mariano was campaigning for
reelection as union business agent A committee had been
formed to oppose his reelection On the outside of the
Respondent's terminal building a sign reading "Dump
Mariano" had been painted On September 7 at approxi-
mately 7 45 am Mariano came to the Respondent's
Pawtucket terminal and conferred with Davis in Marino's
car 4 Mariano questioned Davis about the "Dump Marian-
o" sign , Davis denied any knowledge of it Mariano
claimed that he (Marano) "knew who was behind it "
Mariano chided Davis, observing that Davis, being the
steward, "should have had control over the men at
Superior Motors " Davis replied that he "didn't think [he]
could stay with them all weekend, and see who was
painting signs on the building " Mariano then stated that
he was removing Davis as steward "for the good of the
4 When Davis had punched in earlier that morning Souza had directed
Davis `to hang around because Mariano was coming to the ternunal to see
Dear Mr Souza
In accordance with Article 41, paragraph (b) of the
New England Supplemental Freight Agreement, this is
to inform you that Mr Frank Davis had been removed
as Shop Steward for the good of the Union
VERY TRULY YOURS,
/s/ JAMES MARIANO
JAMES MARIANO
BUSINESS AGENT
Davis was neither sent nor shown a copy of this letter
From September 20 through October 3, Souza was on
vacation During this period his place as terminal manager
at Pawtucket was temporarily filled by Robert W Giglio
On Thursday, September 30, at about 3 or 3 15 p in Davis
came in from a run with an empty trailer He asked Giglio
for instructions Giglio told him to drop the trailer in the
yard and to refuel the tractor if he needed Davis did so At
about 3 30 p in (an hour before his regular quitting time)
Davis returned to the office and asked Giglio if he could go
home Giglio replied "Go see your working foreman, Mr
Diaz " However, despite this directive, Davis punched out
and went home without contacting Diaz Giglio ascer-
tained that Davis had not cleared with Diaz before leaving
early He (Robert Giglio) related the entire incident to
Ignatius Giglio by long-distance telephone at about 6 or 7
p in that day Ignatius Giglio instructed Robert Giglio to
make a written report of this event, which Robert Giglio
did
On Friday, October 1, at about 6 30 or 7 a m, Davis
telephoned to Robert Giglio and said he was not feeling
well and would not be in to work that day but would can
again later Giglio replied "Okay " Later that day Davis
again telephoned to Giglio and stated "I'll see you
Monday morning " Once more Giglio answered "Okay "
Souza returned from vacation on Monday, October 4
When Davis reported for work that morning at his usual
starting time, approximately 7 30 am, Souza called him
into the office and asked "What did you do Thursday9"
When Davis inquired "What do you mean" Souza
responded "You went home early" Davis answered
affirmatively Souza stated that Davis was discharged
because he had gone home early, adding that Davis should
"go down and see the B A" [union business agent ] With
Souza's permission, Davis then telephoned to Mariano
The record does not reveal what was said in that Davis-
Manano telephone conversation On the same day, Souza
signed a letter (dated October 1) which had been prepared
by someone other than Souza on a date which is not clear
and apparently transmitted it to Davis in some fashion
The letter, on the Respondent's letterhead, read
Dear Mr Davis
Davis
SUPERIOR MOTOR TRANSPORTATION CO
On Thursday, September 30, 1971, while in our employ,
you refused to follow an order given to you by our
acting terminal manager
You were warned in our letter to you of April 28, 1971
that any further insubordination on your part would
result in immediate discharge
In view of our previous warning letter and your refusal
of September 30th, you are hereby notified that you are
discharged from our employ
VERY TRULY YOURS,
SUPERIOR MOTOR
TRANSPORTATION CO, INC
/S/ JESSEE SOUZA
JESSE SOUZA, TERMINAL
MANAGER
cc Teamsters Local 251
Attn Mr James Mariano
N E Motor Carriers Council, Inc
2 Events after Davis' discharge
Davis filed a written grievance regarding his discharge,
which the Union appealed to the New England Joint Area
Committee, herein called the Area Committee, under the
terms of the existing collective-bargammg contract be-
tween the Union and the Respondent On October 21 a
hearing was held in Boston, Massachusetts, before a six-
man panel of the Area Committee, consisting of three
representatives of trucking firms doing business in the area
and three representatives of Teamsters' locals located in
the area Neither the Union nor the Respondent had any
representation on the panel Davis appeared and was
represented by Mariano The Respondent was represented
by an attorney, Souza also attended The Respondent's
representative reminded the panel of Davis' previous
disciphne-a 3-day suspension and warning-for a similar
offense less than 9 months before this discharge It
produced Davis' timecard showing he had punched out
early on September 30, the written report of the incident
which Robert Giglio had prepared on September 30 at the
behest of Ignatius Gigho, and a verbal description by
Souza of what he knew of the event Davis, either
personally or through his representative, Mariano, pointed
to Davis' long record of employment, and the fact that he
had, in his capacity as union steward, presented grievances
to Souza and often quarreled with him over them Davis
told the panel that he felt that the Respondent's antago-
nism against him because of the vigorous manner in which
he presented grievances was the true reason for his
discharge,-3 but he did not mention Souza's threats to "get"
him, described above Davis further explained that he had
been ill on September 30, and that this was the cause of his
going home early He also stated that he had been treated
by a physician that day (September 30) and produced his
physician's statement (dated October 7) to that effect This
part of the hearing lasted about an hour The panel then
5 This finding is based on the credited testimony of H Terence Lyons, a
witness for the Respondent Davis denied that this subject was discussed
895
deliberated its decision in executive session During the
deliberations the panel members examined all the docu-
ments which had been offered by both sides, including the
letter of discharge quoted above , the timecard in question,
the statements of Robert Giglio and Davis' physician, and
the decision of the New England Joint Area Committee of
June 17 (by a panel composed of six individuals other than
those involved in the October 21 hearing) upholding the
Respondent 's 3-day disciplinary suspension of Davis on
that prior occasion After approximately a half hour of
deliberation in executive session , the members unanimous-
ly agreed to uphold Davis ' discharge All six members
signed a formal "Decision" which reads simply "Based on
the evidence presented the Union position is denied " Two
months later, on December 22, Davis filed the charges
herein
3 Contentions of the parties
The General Counsel takes the position that the hearing
before the Area Committee on October 21 did not meet the
Board's standards for a proceeding sufficient to persuade
the Board to defer to arbitration and to refuse to consider
the case on its merits On the merits, the General Counsel
maintains that the true motivation for the discharge was
Davis' vigorous prosecution of grievances which antagon-
ized the Respondent He contends that the fact that Davis
clocked out early on September 30 was a mere pretext In
his words the Respondent " seize[d] upon the opportunity
to get rid of Davis-a thorn in management's side-be-
cause he attempted to carry out his statutorily protected
duties as steward " In this connection , the General Counsel
argues that on September 30 Davis went home ill , and that
his doing so "in no way interfered with, hindered or
reduced the satisfactory completion of the [Respondent's]
work obligations "
The Respondent, conversely, insists that the proceedings
before the Area Committee met all the Board's prerequi-
sites and therefore under Board policy foreclose further
examination of the meets of the discharge However,
should the Board reject this defense and examine the
merits, the Respondent insists that Davis was discharged
"because he left work without permission on September 30,
1971, a day in a month which was extremely busy" after
having received a written warning less than 9 months
previously Moreover the Respondent, in its brief, de-
scribes Davis' claim that he was ill that day as "specious "
The Respondent also maintains that it could hardly have
been motivated by a desire to get rid of a bothersome
steward because Davis had already been removed as
steward some time before his discharge Therefore, urges
the Respondent, this was "a discharge for cause completely
unrelated to any statutory rights of Davis "
4 Conclusions
It is well established that the Board is not precluded from
adjudicating unfair labor practice charges even though
His denial was not convincing and is not credited
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they might have been the subject of an arbitration
proceeding and awards It is also well settled that the
Board has considerable discretion to respect an arbitration
award and to decline to exercise authority over alleged
unfair labor practices, thereby encouraging parties to
resort to collective bargaining, and to the settlement of
their disputes under procedures which they have specifical-
ly designed to that end Thus, the Board voluntarily
withholds its authority to adjudicate alleged unfair labor
practices involving the same subject matter, unless the
arbitration proceedings are shown to have been tainted by
fraud, collusion, unfairness, or serious procedural irregu-
larities, or unless the award is clearly repugnant to the
purposes and policies of the Act 7
The General Counsel contends in this case that the
Board should not defer to the award of the Area
Committee, which upheld Davis' discharge, because (1)
Mariano did not fairly represent Davis at the hearing, (2)
there were certain procedural irregularities, and (3) the
Area Committee neither considered nor decided the issue
involved herein, namely, whether Davis' discharge was
motivated by his protected activities as union steward
We turn first to Mariano's representation of Davis The
General Counsel maintains that Mariano was friendly and
sympathetic toward Souza and antagonistic toward Davis
In my opinion there is no convincing evidence of a
particularly cozy relationship between Mariano and Souza
As for Mariano's attitude toward Davis, it is true that
Mariano told Davis that Davis was removed as union
steward and followed this with a letter so informing
Souza 8 Unquestionably, this engendered friction between
the two individuals arising from their conflicting views of
the manner in which Davis had performed his duties as
union steward But there is no evidence that Mariano in
fact failed to prosecute Davis' grievance in a fair and
impartial manner, nor is there any substantial indication
that Mariano held back any arguments or documents in
Davis' favor 9 Indeed, at the close of the hearing before the
panel went into executive session Davis, in answer to a
question posed by the chairman of the panel, stated
unequivocally that he was satisfied with Manano's repre-
sentation of him While Davis' opinion of the fairness of
the proceedings is certainly not controlling, it is neverthe-
less significant that he was unable, when given an
opportunity to do so, to point to any fault or shortcoming
in the way his grievance had been handled by the tribunal,
or the manner in which he had been represented
So far as procedural defects are concerned, the General
Counsel points to the fact that the Area Committee had no
transcript made of the proceedings and failed to serve a
copy of its written decision on Davis personally However,
in neither of these instances was it shown that the Area
Committee departed from its normal and usual procedures
I therefore find no merit in the General Counsel's claim of
irregularities 10 Nor do I consider the time consumed by
6 N L R B v Walt Disney Productions 146 F 2d 44 (C A 9) cert denied
324 U S 877
7 Spielberg Manufacturing Company 112 NLRB 1080
S I do not reach the issue whether Mariano s highhanded conduct in
removing an elected union official complied with the Union s constitution
or bylaws which are not in evidence
the Area Committee on Davis' grievance to have been
inadequateper se
There remains the question whether the Area Committee
considered the possibility that Davis had in fact been
discriminated against because of his conduct as union
steward The General Counsel relies in part on the brevity
of the written decision and the Area Committee's failure to
state affirmatively that it had considered this issue Such
reliance is misplaced The test is not what the written
decision contains, but what the panel actually consid-
ered 11 On this point we have the benefit of the testimony
of H Terence Lyons, one of the employer representatives
who sat on the panel which heard and decided Davis'
grievance He impressed me as a straightforward and
convincing witness I credit his testimony, which on this
point was as follows
Q Do you recall any other matters that were
brought to the attention of the Joint Area Committee in
support of Mr Davis' position9
A Well, it was definitely brought out that Mr
Davis had been a steward and that there was a feeling,
in response to a question, a question directed to Mr
Davis, that the basis of the proceedings that day was
because of the fact that Mr Davis had been a steward
for a period of time
Q Do you recall any statements made by any
particular person [in the executive session of the
panel ]9
A Mike Allen, from the union side, stated
that this man, Mr Davis, had been employed for
fourteen years with the company and that that should
be given consideration, his length of service and the
fact that it was easy to understand how there
could-how this could have come about, where Mr
Davis had been the steward who had been presenting
grievances and he felt that this was the basis for the
case
Based on this credited testimony, it is found that the Area
Committee considered the identical issue raised by the
complaint herein, namely, whether Davis' discharge had
been motivated by his conduct as union steward
On the entire record, it is concluded that the proceedings
held in October before the Area Committee, which
considered Davis' discharge earlier that month, appear to
have been fair and regular, all parties had agreed to be
bound and did in fact participate fully, and the decision of
the panel is not clearly repugnant to the purpose and
policies of the Act Furthermore, the panel considered the
issue of the alleged discriminatory nature of Davis'
discharge Under these circumstances , the Board's stand-
ards have been met and, under policies laid down in
9 It is true that for some unexplained reason Davis failed to relate to the
Joint Board that Souza had threatened him But there is no showing that
Mariano was responsible nor indeed that Mariano even knew of these
threats
io See W R Grace & Co 179 NLRB 500 504-505
11 See Terminal Transport Co 185 NLRB No 96
SUPERIOR MOTOR TRANSPORTATION CO 897
Spielberg, the decision of the Area Committee is entitled to
be honored 12 Accordingly, the Board should decline to
decide the issue raised by the allegations of the complaint
concerning Davis' discharge, and the Respondent's motion
to dismiss this part of the complaint should be granted
Upon the above findings of fact, and upon the entire
record, I make the following
20 days from the date of the receipt of this Decision, what
steps the Respondent has taken to comply herewith 15
It is further recommended that the Respondent's motion
to dismiss the complaint should be granted, insofar as the
complaint alleges that the Respondent discriminated
against Frank T Davis in violation of Section 8(a)(1) or (3)
of the Act
CONCLUSIONS OF LAW
1 Superior Motor Transportation Co, Inc, is, and at
all material times has been, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local Union 251,
is, and at all material times has been, a labor organization
within the meaning of Section 2(5) of the Act
3 By threatening reprisals against an employee because
he presented and/or processed grievances on behalf of
other employees, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act
4 The decision of the panel of the New England Joint
Area Committee, dated October 21, 1971, upholding the
Respondent's discharge of Frank T Davis, was fair and
regular, not clearly repugnant to the purposes and policies
of the Act, all parties had agreed to be bound thereby, and
it is entitled to deference
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 13
ORDER
Superior Motor Transportation Co, Inc, Pawtucket,
Rhode Island, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Threatening reprisals against its employees because
they have presented and/or processed grievances on behalf
of themselves or any other employees
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights protected by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its terminal in Pawtucket, Rhode Island,
copies of the attached notice marked "Appendix 1114
Copies of such notice, on forms provided by the Regional
Director for Region 1, after being signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and shall 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 the Respondent to insure that such notices are
not altered, defaced, or covered by any other material
(b) Notify the said Regional Director, in writing, within
12 Spielberg Manufacturing Company supra Denver Chicago Trucking
Co 132 NLRB 1416 Modern Motor Express 149 NLRB 1507, Eazor
Express Inc 172 NLRB No 291 W R Grace & Co supra, and Terminal
Transport Co supra
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
14 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals, the words reading Posted by Order of the
National Labor Relations Board' shall be changed to read Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board
15 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
'Notify the said Regional Director in wasting within 20 days from the date
of this Order what steps the Respondent has taken to comply herewith '
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten reprisals against any employ-
ee for filing or presenting grievances on behalf of
himself or other employees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form, join or
assist any union, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from such activities, except to the extent that
such rights may be affected by an agreement requiring
union membership as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended
SUPERIOR MOTOR
TRANSPORTATION CO, INC,
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
mg this notice or compliance with its provisions may be
directed to the Board's Office, Seventh Floor-Bulfmch
Building, 15 New Chardon Street, Boston, Massachusetts
02114, Telephone 617-223-3300