Terminal Transport Co., Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1970

185 N.L.R.B. 672 (N.L.R.B. 1970)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terminal Transport Company, Inc. and Walter Pfaff.
Case 12-CA-4680
September 21, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
On April 30, 1970, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting-brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case and finds merit in
the Respondent's exceptions.
The Trial Examiner found that Respondent violated
Section 8(a)(1) of the Act by discharging Walter
Pfaff in reprisal for engaging in the protected activity
of filing, and then refusing to withdraw, a grievance.
In so finding, the Trial Examiner rejected a decision
by an arbitration panel, which, under the applicable
collective-bargaining agreement, was empowered to
render final and binding grievance determinations.
Without passing on the merits of the alleged unfair
labor practice, we find that the Trial Examiner erred
in not honoring the arbitration award, and on that
basis, we shall dismiss the complaint in its entirety.
The facts show that on April 28, 1969, the Union,
on behalf of Pfaff, filed a grievance contending that
a supervisor performed unit work in violation of
the contract. The grievance was settled. Pfaff was
to be paid for the work done if he had been available
to perform it. No final action or compliance with
that determination was taken by Respondent in July
or August even though Pfaff requested that he be
paid the amount of the settlement. Respondent's
regional supervisor of maintenance, on September
2, requested Pfaff, through the acting superintendent,
to withdraw the grievance. Pfaff refused to do so.
On September 12 and 15 Pfaff received warning letters
and on September 16, a letter of discharge, for failure
to perform his duties as a class A mechanic on
three specific jobs. On September 21 Respondent paid
Pfaff in settlement of his grievance.
Shortly after his discharge, Pfaff, through the
Union, filed a grievance against the Respondent,
claiming he had been improperly discharged. As the
Respondent and the Union could not settle the griev-
ance, it went to the multistate grievance committee.'
The committee met and considered this grievance
on November 4, 1969. Although Pfaff did not appear,
representatives of both the Respondent and the Union
were present. The Union read into the record Pfaff 's
warning letters and a letter from Pfaff to the Union
about the grievance, claiming he was discharged
because of his activity in connection with the original
grievance. The letter set out evidence in support of
the Union's claim that Pfaff was discharged in reprisal
for his grievance activity. The Union argued that
Pfaff had a good work record, but that he had a
problem getting a grievance paid. Respondent claimed
that Pfaff was unable to perform the duties of class
A mechanic and was discharged for cause. In essence,
the information before the grievance committee was,
in all material respects, the same as the evidence
brought out at the unfair labor practice hearing in
this case. The arbitration panel, as its final and binding
award, issued the following:
DECISION: The man to be given the job of
tearing down and rebuilding a 10-speed Road
Ranger transmission in the presence of the Union
and Company representative. Job to be completed
in the time prescribed in the flat rate manual.
If the employee properly completes the job and
the transmission is operable, the employee to
be returned to work and paid for time lost
If not, the discharge is sustained.
Pfaff refused to submit to the test, although he had
experience in rebuilding transmissions.
From the foregoing, it is clear that the issue specifi-
cally raised before the arbitration panel was identical
to that alleged in the unfair labor practice charge
in the instant case; i.e., was Pfaff discharged because
he engaged in protected grievance activity? In refusing
to accept the arbitrator's resolution of the dispute,
' The collective-bargaining agreement provides that a multistate griev-
ance committee shall consist of an equal number (at least three) of
union and employer members, none of whom can be representatives
of the particular employer of local involved in the grievance If a majority
of the committee decides the dispute, the decision is final and binding
If the committee is deadlocked, the grievance goes to the area grievance
committee, which is similarly set up There is no provision for a neutral
third-party arbitrator
185 NLRB No. 96
TERMINAL TRANSPORT COMPANY, INC
the Trial Examiner correctly found, "The whole gamut
of the evidence dealing with the alleged discriminatory
discharge was presented by the Union to the grievance
committee on behalf of Pfaff." There is no claim
that Pfaff was inadequately represented, nor is there
any suggestion that the arbitration proceedings were
not fair and regular on their face. The Trial Examiner
nonetheless rejected' the decision, because the commit-
tee made no findings of fact and did not disclose
in any way how the decision disposed of the discrimi-
nation issue or that it was even considered. More
specifically, he concluded that, "the issue whether
Pfaff was discriminatorily discharged . . was not
resolved by the Grievance Committee." In so finding
he analyzed the evidence and concluded therefrom
that the substantiating facts presented by the Union
established discrimination and should have been
accepted as true. Furthermore, in his view, the award,
since it related only to the question of Pfaff's qualifica-
tions, itself established that the arbitration panel did
not dispose of the issue before the Board.'
In the circumstances of this case, none of the
factors cited by the Trial Examiner furnish sufficient
basis for departing from the Board's established policy
of giving binding effect to arbitral determinations
made in proceedings to which all parties have
acquiesced where the proceedings are fair and regular
on their face, and where the results are not repugnant
to the purposes and policies of the Act.' On the
other hand, the Board has held that arbitration panels
of the type here involved, though operating without
neutral arbitrators, meet the Spielberg standards of
fairness.' Further, in the instant case, there is no
claim of fraud or collusion in the arbitral process.
Although Pfaff was not at the grievance hearing,
he was represented by the Union, whose interest
in successful prosecution of the grievance appeared
identical to his own. Moreover, this quite clearly
We disagree with the Trial Examiner's interpretation of Illinois Ruan
Transport Corporation, 165 NLRB 227, in so far as he construes that
case as holding that, "the Board refused to follow an arbitrator 's award
because although the evidence of alleged discrimination was presented
to it [the arbitrator] it did not consider it in its decision and making
the award " Contrary to this statement , as we read that case , the question
of discrimination was not raised before the arbitrator therein , and hence
no evidence was introduced in support of any such claim
' The Trial Examiner also found that the test which the committee
prescribed was too severe The evidence he relied on consists of a
nonsupervisory leadman's testimony thst Respondent's regional supervisor
of maintenance told him that neither he nor himself could perform
the test in the time set by the flat rate manual The evidence was
introduced by the General Counsel solely to show animus and was
not offered under circumstances that would reasonably lead Respondent
to believe that the severity of the test was in issue As the question
was not litigated , and, as, in any event, the evidence relied upon is
not entirely conclusive we do not adopt the Trial Examiner 's finding
in this regard
Spielberg Manufacturing Co, 112 NLRB 1080, 1082
Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, 1421,
Roadway Express, Inc, 145 NLRB 513, 514
673
is not a case where the issue of discriminatory dis-
charge was neither raised not litigated before the
arbitration panel.6 Nor is there reason to disturb
the award because the grievance committee, in its
decision, made no findings and did not mention the
nature of the grievance.'
In our opinion, the Trial Examiner exceeded his
authority under the Spielberg doctrine in rejecting
the award either because he would have reached
a different result on the evidence presented to the
arbitration panel or because the award, in his view,
evidenced a failure of the arbitrators to resolve the
issue of discrimination. Under established policy, the
validity of an award is not to be determined on
the basis of whether the Board would reach the
same result on the record made before an arbitrator.'
Equally without merit is the Trial Examiner's rea-
soning that the award, in setting up the qualification
tests, could not be construed as taking into account
the issue of discrimination.' In our opinion the award,
at the very least, was ambiguous as to the question
of discrimination. Whether or not an alleged discrimi-
natee has been terminated for cause or pretextual
reasons will very often, depending upon one's view
of the conflicting evidence, turn upon whether or
not the dischargee is qualified for the job from which
he was discharged. It is quite possible, therefore,
that the arbitration panel may have questioned the
evidence advanced in support of the grievance and,
hence, in its best judgment, allowed the decision
to turn on a test of qualification. Although decided
in another context, equally applicable here is the
following teaching from Enterprise Wheel & Car Corp.,
supra at p. 598: "A mere ambiguity in the opinion
accompanying an award . . . is not reason for
refusing to enforce the award."
For these reasons, we conclude that it will effectuate
the policies of the Act to give conclusive effect to
' Cf DClnternational, Inc, 162 NLRB 1383
' See, e g , Steelworkers v Enterprise Wheel & Car Corp, 363 US
593
Howard Electric Co, 166 NLRB 338, 341 Furthermore, in Steelworkers
v Enterprise Wheel & Car Corp, supra, the Supreme Court established
standards for reviewing arbitration awards by the courts , which would
apply equally under Spielberg, since designed to implement like statutory
policies At p 596, the Court stated "The refusal of the courts to
review the merits of an arbitration award is the proper approach to
arbitration under collective -bargaining agreements The federal policy
of settling labor disputes by arbitration would be undermined if the
courts had the final say on the merits of the awards "
' The fact that the award did not sustain or deny the grievance,
but set up a test does not detract from its binding nature Although
the award was based on a condition subsequent , the result of the test
will dispose of the dispute in a final and binding manner To honor
such an award is completely consistent with the concept that an arbitra-
tor " is to bring his informed judgment to bear in order to reach
a fair solution of a problem This is especially true when it comes
to formulating remedies" S,eelxorberr i Enlerpnre Wheel & Car Corp
supra at p 597
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arbitration award and, on that basis, we shall
dismiss the complaint herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
Member Jenkins, dissenting:
Where an arbitration award has been made which
clearly decides and disposes of the same issue which
is alleged to us as a violation of the statute, we
have in the past deferred to such an award and
refused to make our own independent review of that
same issue, if our examination of the arbitration pro-
ceedings disclosed that all parties had acquiesced
in having the issue decided by arbitration, the proce-
dure had been fair and regular, and the award made
was not clearly repugnant to the purposes and policies
of the Act. Even though we are not bound to accord
such recognition to an arbitrator's award, we have
done so with "the desirable objective of encouraging
the voluntary settlement of labor disputes." Spielberg
Manufacturing Co., 112 NLRB 1080, 1082.
The award here, however, is entitled to no such
deference from the Board, for several reasons.
To begin with, it is plain that the party principally
concerned, employee Pfaff who allegedly was discrimi-
natorily discharged, has not consented to have his
case determined by the joint union-employer Griev-
ance Committee.10 Instead, he has brought it here,
as he is entitled by the Act to do. There is therefor(
missing at the outset the element of "voluntary settle-
ment" by the parties which is the sole reason for
our deferring to arbitration awards. This is reason
enough not to defer to the joint Committee proceed-
ings-but there are other reasons equally compelling.
There is no indication anywhere in this record
that the joint Committee considered or decided the
same issue which is before us, namely, whether Pfaff
was discriminatorily discharged for exercising his
rights under Section 7 of the Act to present and
follow up employee grievances relating to the collec-
tive-bargaining agreement. Rather, the Committee
10 When the joint Committee proposed to determine his case by requiring
the employee to take and pass a mechanical test to determine his
competence as a mechanic , a test which would do nothing to determine
whether the real reason for his discharge was his activity in presenting
employee grievances and his asserted lack of competence was pretextual,
Pfaff withdrew from the Committee proceeding and filed charges under the
Act To say that he has "consented" to the Committee 's award by his
participation in the proceedings up to this point at which it became apparent
the Committee would not resolve the issue of discrimination , which was the
only issue he had submitted to this "arbitration ," is to require him to accep^
in advance a change of rules in the middle of the game which deprives him of
any forum for the determination of the alleged violation of the Act
proposed to resolve Pfaff's case by requiring him
to tear down and rebuild a truck transmission properly
and within the time specified in a repair manual,
and Pfaff refused to take the test. Such a test might
show that Pfaff was entirely competent, entirely
incompetent, or somewhere in between and, depending
on the result, might also show that the employer
had a legitimate reason to fire him for lack of ability,
as it asserted it did. But the issue is not whether
a good reason existed for discharging Pfaff, but wheth-
er that reason was the real reason or a pretext,
and whether Pfaff was in fact discharged for the
reason that he vigorously pursued employee griev-
ances. The mechanical test does nothing to advance
this inquiry." Thus, the Committee's proposed deter-
mination of the propriety of Pfaff's discharge by
the outcome of the test necessarily means that Com-
mittee had no evidence on which to reach any conclu-
sion regarding the existence of discrimination, and
that it could not have decided that issue.
My colleagues would supply this deficiency in the
Committee's decision by inferring that, since the Com-
mittee proceeded to the question of Pfaff's competence,
it must have decided that his discharge was not
discriminatory unless the employer's assertion of his
incompetence was groundless. But the opposite conclu-
sion, that the Committee in no way considered the
issue of discrimination, is equally logical and requires
no assumptions. In such case, there is no warrant
for drawing any inference that the Committee of
necessity passed on some or all phases of the discrimi-
nation issue. Indeed, to draw such an inference here
amounts to saying that in discrimination cases under
Section 8(a)(3), if a valid reason exists for discharge
and the employer asserts that reason as a defense,
the Board need not and perhaps should not inquire
whether that, and not his protected activity, was
in fact the true reason for the discharge.
In the circumstances here, moreover, this inference
flies in the face of record evidence showing affirmative-
ly that the Committee did not consider the question
of discrimination. Lawson, the supervisor , who dis-
charged Pfaff, and the only employer representative
with firsthand knowledge of the material facts, was
present at the Committee meeting. The employer
indicated he was available to answer questions about
the grievance presentation which Pfaff asserted led
to his discharge. The Committee nevertheless made
no inquiry of him. Instead, the Committee heard
from the employer only evidence concerning Pfaff's
11 The irrelevance of this test to the issue of discrimination against
Pfaff is particularly apparent because at the time of his hiring Pfaff
had told the employer that he had not had much experience in rebuilding
work, was nonetheless hired , and seemingly performed his work without
incident until his problem with management arose over his filing of
grievances.
TERMINAL TRANSPORT COMPANY, INC
competence, much of it hearsay and none of it from
Lawson. From these facts it is plain, not that the
Committee necessarily decided, or can be inferred
to have decided, the issue of discrimination, but that
it avoided that issue. If on this type of evidence
it is asserted that the Committee did decide that
issue, then any such conclusion by the Committee
is on its face at variance with "fair and regular"
procedure and does not comport with our standards
for deferring to an arbitration award.
And, finally, it is the absence here of "fair and
regular" procedure inherent in the structure of the
Committee which renders its award defective in yet
another aspect. This Committee was not, properly
speaking, engaged in arbitration and the making of
a binding impartial award. It was a joint Committee
composed solely of representatives of the employer
and the Union, i.e., the disputants. It had no outside,
neutral member to provide impartial consideration
of the alleged discrimination against Pfaff. The Board
has in the past never deferred to any award where
such impartial consideration cannot be had, for to
do so would deprive the discriminatee of an impartial
determination of a claim arising under the statute.'Z
Whatever result such a Committee of the protagonists
might reach, it is in part the product of economic
power, adjustment with an eye on other disputes
or differences between them or on their future bargain-
ing positions, and other considerations unrelated to
the merits of the particular claim before the Commit-
tee.
Where the claim states a violation of the Act
this Board administers, as Pfaff's did, the employee
is entitled to an impartial determination of his claim
at some point. Pfaff did not get it from the Committee,
and under this decision he will not get it from this
Board. No other forum is available to him. The
National Labor Relations Act establishes specific and
basic employee rights, and the protection of such
rights is committed to this Board, particularly by
the entrustment to us of the power to take appropriate
steps to remedy any violations of the Act. The Board's
refusal to consider Pfaff's case on the merits is a
nonperformance of the obligation the Act imposes
on us for the protection of Pfaff and others like
him. It does not lie in our discretion to cut them
off from their statutory rights, and I would proceed
to a consideration of Pfaff's claim on the merits.
" Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, is distin-
guishable because the employees had clearly agreed to be bound by
the award of a Committee similar to the one here, and the General
Counsel stipulated that the Committee was constituted of "balanced"
representation If the dictum in footnote 6 of that decision is considered
a precedent for deferral to a tribunal which has no neutral and impartial
component, I would overrule it
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
675
JAMES F . FOLEY, Trial Examiner : This case , 12-CA-
4680, was brought before the National Labor Relations
Board (herein called the Board), under Section 10(b) of
the National Labor Relations Act, as amended (herein
called the Act), 61 Stat 136, 76 Stat . 579, against Terminal
Transport Company, Inc. (herein called Respondent), by
a complaint issued January 8, 1970, and an answer to
the complaint filed January 15, 1970. The complaint is
premised on a charge filed November 6, 1969, by Walter
Pfaff, the Charging Party, and amended by Pfaff on January
7, 1970.
It is alleged in the complaint that Respondent, in violation
of Section 8(a)(1) of the Act, discharged Pfaff on or about
September 16, 1969, and has failed and refused to reinstate
him since that date to his former or substantially equivalent
employment, because ( 1) he engaged in concerted activities
for the purpose of collective bargaining or mutual aid
or protection , (2) filed and processed a grievance through
Freight Drivers , Warehousemen and Helpers, Local Union
No 390 , affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America
(herein called the Union ), his collective-bargaining represent-
ative, and (3) because he refused to withdraw or abandon
his grievance at the request of Respondent.
In its answer , Respondent admits discharging Pfaff on
or about September 16, 1969, but denies it discharged
him for any discriminatory motive violative of the Act
It affirmatively defends the discharge on the ground that
Pfaff, employed as a Class A mechanic , was discharged
because he was unable to perform the duties of a Class
A mechanic . It further defends that Pfaff filed a grievance
on or about April 28, 1969, through the Union, one of
Respondent's supervisors performed unit work to be done
only by rank -and-file mechanics ; this grievance was heard
in Atlanta , Georgia, on July 2, 1969, by the Southeastern
Area Multi-State Grievance Committee (herein called Griev-
ance Committee); this Committee decided on this date
that if a mechanic were available to perform the work
the Respondent was to pay Pfaff , the grievant , wages for
2 hours straight time, but if a mechanic were not available
the claim was to be denied ; and on or about September
24, 1969 , Pfaff was paid the sum of $31 68 in settlement
of the grievance . It further defends that Pfaff, following
his discharge , filed a grievance against his discharge which
was heard by the Grievance Committee in Miami, Florida,
on November 4, 1969; the Grievance Committee decided
on that date that Pfaff was to be "given the job of tearing
down and rebuilding a ten ( 10) speed Road Ranger Transmis-
sion" and required to complete it in the time prescribed
in the flat rate manual , in the presence of a representative
of the Union and a representative of Respondent, and,
if the job were properly performed and the transmission
were operable , Pfaff was to be returned to work and paid
for lost time , and if not his discharge was to remain
in effect , and Pfaff has failed to comply with the decision
of the Grievance Committee.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hearing on the complaint and answer was held
before me on February 25 and 26, 1970, in Miami, Florida.
The parties were afforded an opportunity to present evi-
dence, make oral argument, and file briefs.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation with its principal
office and place of business in Atlanta, Georgia, is a motor
carrier engaged in the business of hauling freight interstate
and intrastate. It operates terminals in several cities in
Florida, and in cities of several states other then the State
of Florida. It operates pursuant to the laws, rules, and
regulations of the United States and States in which it
does business that are applicable to its motor carrier opera-
tions. Respondent annually derives gross revenue in excess
of $50,000 from its interstate motor carrier operations.
I find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and jurisdiction of this proceeding will effectuate the purpos-
es of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
had a rebuilding shop He was, however, hired as a Class
A mechanic by Respondent
Respondent is a member of the Southeastern Motor
Carriers Association comprised of common, contract, and
private carriers in the States of Alabama, Georgia, Florida,
Mississippi , and Tennessee (herein called Association), and
the Union is affiliated with the Southern Conference of
Teamsters (herein called Conference), a multi-state confer-
ence, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
Respondent, as a member of the Association, and the
Union, as an affiliate of the Conference, are parties to
a collective-bargaining contract known as the Southeastern
Area Garage Agreement, effective for the period April
1, 1967, to March 31, 1970. The unit of employees which
the contract covers is a multi-state employee unit of all
the employees in the Mechanical and Service Departments
of the employee-members of the Association. The contract
was negotiated by the Southeastern Area Motor Carrier
Labor Relations Association with the Southern Conference
of Teamsters. Grievances under the contract not disposed
of by settlement between a particular employee-member
of the Association and a particular member local of the
Conference handling the collective-bargaining relations with
the employee-member are heard and disposed of by the
Southeastern Area Multi-State Grievance Committee This
Committee consists of representatives of the Association
and representatives of the Conference Representatives of
an employer or of a union directly involved who are on
this grievance committee may not hear and dispose of
a grievance of an employee employed by this employer
or represented by this local
Is the Board stopped from considering the alleged unfair
labor practice by its policy of deferring to disposition by
grievance proceedings?
If not, was employee Pfaff discharged for either filing
a grievance or refusing to withdraw it?
B Background Evidence
Pfaff's employment with Respondent began on or about
August 1, 1968. He was discharged on or about September
16, 1969, after approximately 14 months employment. He
was hired as a Class A mechanic and retained that classifica-
tion during the period of his employment. Prior to his
employment with Respondent, Pfaff was employed for the
month of July 1968 by W. E Johnson Equipment Company
in Hialeah, Florida, and prior to that time was employed
as a Class A mechanic by Denver-Chicago Trucking Compa-
ny of North Bergen, New Jersey, and served as a mechanic
in the United States Army on location with the Four
Hundred Twenty-Third Ordinance Division, at Fort Devens,
Massachusetts. He received training as an automotive
mechanic in the United States Army for a period of 2
or 3 months at Fort Dix, New Jersey. When Pfaff was
interviewed by Respondent's representative, he disclosed
to them that he had not had much experience in rebuilding
work as his employer, Denver-Chicago Trucking Company,
C. Undisputed Evidence
Pfaff was discharged by Respondent on or about Septem-
ber 16, 1969, for the alleged reason that although he was
employed as a Class A mechanic, he did not, and could
not, perform the duties of a Class A mechanic.'
On April 28, 1969, the Union, on behalf of Pfaff, filed
a grievance against Respondent because a supervisor per-
formed unit work which the contract precluded a supervisor
from doing. Just prior to a scheduled hearing on the griev-
ance in Atlanta, Georgia, on or about June 30, 1969,
before the Grievance Committee, the grievance was settled
by a representative of Respondent and a representative
of the Union, and the settlement was that the grievance
should be sustained and the grievant paid for 4 hours
work if a representative of the Union and Robert Davis,
manager of Respondent's terminal in Miami,' found that
a mechanic was available to do the work the supervisor
performed. Davis was apprised of the settlement. No final
action was taken in either July or August 1969, even
though Pfaff requested and demanded, through Leo J.
Jefferson, the union steward in Respondent's repair and
maintenance shop at its Miami terminal, that he be paid
' G C Exh 4, Respondent 's letter of discharge to the alleged discrimina-
tee, is received in evidence Through oversight, it was not offered Respond-
ent's counsel has no objection
' Davis is Respondent 's representative in bargaining with the Union
TERMINAL TRANSPORT COMPANY, INC. 677
the amount of the settlement. He insisted he was present
in Respondent's terminal and shop when the supervisor
did the work. James Lawson, Respondent's regional mainte-
nance supervisor, on or about September 2, requested Pfaff,
through James F Lusby, acting shop foreman at the Miami
terminal and Pfaffs supervisor, to withdraw the grievance,
but Pfaff refused to do so and threatened to file another
grievance if he was not paid the amount of the settlement.
Lawson, who was stationed in Atlanta, Georgia, at
Respondent's main headquarters, appeared at the Miami
shop and terminal on September 10, 1969, after being
informed by Lusby on or about September 5 or 6, 1969,
that Pfaff refused to withdraw the grievance and threatened
to file another grievance because Respondent would not
pay the amount of the settlement On September 12 and
15, 1969, Lawson issued to Pfaff letters of warning, and
on September 16, 1969, a letter of discharge for failure
to perform his duties as a Class A mechanic on the three
jobs that Pfaff worked on from the time Lawson met
Pfaff in the Miami shop on September 11, 1969, until
his discharge on September 16, 1969. He was on leave
September 12 and 13. The jobs on September 11 and
13, which were rebuilding jobs, a type of work on which
Pfaff had little experience , were assigned to Pfaff by Lawson
On or about September 21, 1969, Respondent paid Pfaff
$31.68 as a final deposition of the settlement of June
30, 1969, of Pfaff's grievance of April 28, 1969. Pfaff
filed a grievance against his discharge. It was not settled
by the Union and Respondent , and was heard by the
Grievance Committee on November 4, 1969, in Miami,
Florida. The Committee made the decision on November
4 that Pfaff was to be given the job of tearing down
and rebuilding a 10-speed Road Ranger transmission in
the presence of a representative of the Union and a represent-
ative of Respondent, the job was to be completed in the
time prescribed in the flat rate manual; and if Pfaff complet-
ed the job in the prescribed ' time and the transmission
were operable, he was to be returned to work and paid
for time lost, and if not, his discharge was to be sustained.
Pfaff refused to submit to this test He filed the unfair
labor practice charge on November 5, 1969.
D. Disputed Evidence3
Regional Supervisor Lawson's visit to the Miami shop
starting on September 10, 1969, followed closely a visit
he made there about the end of August to investigate
reports of a breakdown in service He returned to Atlanta,
Georgia, September 1, 1969.1 During the visit ending Sep-
' I make these findings after consideration and evaluation of all relevant
testimony and written evidence , in context, including the demeanor of
witnesses
' Lawson visits the Miami shop of Respondent , at most, five or
six times a year He would normally not visit the Miami shop 10
days after a previous visit With headquarters in Atlanta, Georgia, he
has responsibility for the operation of the shops in the terminals in
Jacksonville , Orlando, Del Ray Beach, Tampa , and Venice , Florida, as
well as Miami He communicates daily with their shop foremen, and
at times with the terminal managers , about their operations Lawson
is under the supervision of Benjamin White, the vice president of mainte-
nance for all Respondent 's operations which span 13 States from the
Great Lakes to the southern boundary of Flonda
tember 1, he discharged Reo Cella, the shop foreman,
and assigned James C Lusby, the leadman on the day
shift, 7 30 a m. to 3:30 p.m., to perform the duties Cella
had until a new shop foreman was appointed. Lusby per-
formed the duties of a shop foreman until a new shop
foreman named Jerry Ferrero was appointed about the
end of October or the beginning of November 1969 '
Just before Lawson left the Miami shop on September
1, to return to Atlanta, Georgia, by plane, he saw on
the bulletin board the Union's version of Pfaff's grievance
of April 28 and its settlement of June 30, 1969 6 He asked
Lusby about it, who replied he did not know about it,
and then asked Lusby to ask Pfaff if he would consider
withdrawing it. Lawson said he would telephone Lusby
about it, and he did so the next morning Lusby had
not spoken to Pfaff about it, and he told Lawson he
had not talked to him. He talked to Pfaff that day in
the presence of Jefferson, the union steward, and, as stated,
Pfaff refused to withdraw the grievance and said he would
file another if he was not paid the amount of the settlement
Lawson telephoned Lusby on or about September 6 about
the grievance, and Lusby informed him of Pfaffs refusal
to withdraw it and threat to file another one Pfaff told
Robert J. Aaron, the leadman on the afternoon shift begin-
ning at 3.00 p.m., that Lawson had called the second
time and Aaron so informed Jefferson Jefferson asked
Lusby about the second telephone conversation in the pres-
ence of Aaron. Lusby answered that all he knew was
that when Lawson called the second time he told Lawson
that Pfaff refused to withdraw the grievance, and Lawson
said he was very much upset about it and would be down
in a few days to deal with the matter himself'
I find that the holder of the job of shop foreman in Respondent's
shop at its Miami terminal effectively recommends the hiring , discharge,
and layoff of mechanics and other employees who work in the shop,
directs them in their work , authorizes time off for , and overtime working
by, these employees , consults with them about their work and time
spent on assigned work, has the authonty to pledge the credit of Respond-
ent by purchasing parts and other materials for the stock of the parts
department of the shop , has the responsibility for the maintenance of
records showing the work to be done in the shop , the work accomplished,
the time in which the work is done and by whom , the current workload
of the shop, and the reporting of this information to the regional mainte-
nance supervisor and the terminal manager I find that the shop foreman
in performing these duties exercises independent judgment, has the authori-
ty on behalf of Respondent to effectively recommend with respect to
hiring , discharging and laying off of shop employees , and to responsibly
direct the shop employees in the performance of their work, and is
a supervisor within the meaning of Section 2 ( 11) of the Act I further
find that Lusby performed the duties of a shop foreman during the
period from the end of August 1969 to the end of October or the
beginning of November 1969, and during that period was a supervisor
within the meaning of Section 2(11) of the Act The payment to Lusby
of wages at an hourly rate instead of an annual wage and the continuation
of his active membership in the Union , while holding the temporary
assignment of shop foreman , do not rebut the evidence of his temporary
supervisory status
The Union 's statement was that the gnevance was for 8 hours
pay, and that was the amount to be paid if a mechanic were available
to do the work the supervisor had done Ozment , a witness for Respondent,
testified the settlement was for 4 hours pay
This is the testimony of Jefferson and Aaron of what Lusby said
Pfaff testified that Lusby said to him that in the second conversation
he had with Lawson , the latter said he would come to Miami to deal
with him personally Lusby denied Lawson made this statement to him and
(cont'd)
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawson was present in the shop when Pfaff reported
for work between 2.30 and 3 p.m., on Thursday, September
11. He personally greeted Pfaff with a handshake. He
did not extend this greeting to Aaron, the leadman in
charge of the afternoon shift, which began at 3 p.m.,
or mechanic William Snyder, the other mechanic on this
shift. Lawson instructed Aaron to assign to Pfaff the work
to be done on a Reo motor in tractor W-70. It is undisputed
that this motor was old and had seen considerable service.
Lawson testified that the block was to be cleaned and
liners (cylinders), pistons, and piston rings installed
The work Lawson instructed Aaron to assign to Pfaff
had been assigned to Snyder, a mechanic with 25 years
experience and he had spent about 10 minutes on it Aaron
told Snyder that Pfaff was to do the job, that Lawson
wished him to "get experience" on that engine, and then
assigned the job to Pfaff. The latter knew he was to do
it as he overheard Lawson instructing Aaron to assign
it to him.' Pfaff found the block warped and very dirty
with protrusions on it. He talked to Aaron about its condi-
tion, and the latter told him to use a hand file to rectify
it. He smoothed the block with a hand file, and inserted
the liners. He then cleaned the crankshaft, and cleaned
and polished the journals. He noticed that the crankshaft
had excessive end play and brought this situation to the
attention to Aaron. Aaron instructed him to "check it
out." He pulled down the main bearing and showed it
to Aaron. Aaron told him not to do any further exploratory
work. He put the rings on the pistons, and fitted the
wrist pins. It was the end of the shift. He took 7.9 hours
to do this work. While he was working Lawson passed
him a number of times, looked at what he was doing,
but said nothing. Another mechanic on the shift that fol-
lowed installed the pistons in the liners and closed up
the motor.
On September 12, Lawson prepared a warning letter
to Pfaff in which he criticized him for taking 7 9 hours
to do the rebuilding work of installing six liners and installing
rings on six new pistons. He stated in the letter that
this work should have been done in 2.5 hours. Lawson
also stated that Pfaff was paid Class A mechanic wages,
and was expected to do the work of a Class A mechanic.
In the last paragraph of the letter, Lawson stated that
the letter was a final letter of warning for failure to perform
Class A mechanic duties, and any future incidents would
warrant further disciplinary action and possible discharge.
Lawson showed the letter to Union Steward Jefferson
during the first shift on September 12. Jefferson asked
Lawson what Pfaff said about the letter, and Lawson said
he had not showed it to him. Jefferson, a mechanic with
20 years experience, looked at the work Pfaff had done.
It was still open. He then told Lawson it was a rough
Lawson denied he made it I have credited the testimony of Aaron and
Jefferson of what Lusby said Lawson came to Miami a few days after
September 6, the date of the second telephone conversation he had with
Lusby
$ Lawson testified that he wanted Pfaff to do the work because Snyder
was slow , and it would be done quicker if Pfaff did it. Pfaff made
full disclosure to Respondent of his experience , including his limited
experience in rebuilding , before being hired by Respondent as a Class
A mechanic . This job was the first rebuilding job Pfaff was given in
the 14 months he was employed by Respondent
job and would have taken him the same time or longer
to do it, and then said to Lawson "see what explanation
Walt had for it." Lawson replied that he did not care
who did the work, that it should not have taken 7.9
hours. Pfaff did not work on September 12 or 13. On
September 13, he received from Respondent in the mail
the letter of September 12.
Both Jefferson and Snyder, as witnesses for the General
Counsel, testified that they would have taken about the
same time as Pfaff took to do this work. The job was
open when Jefferson viewed it on Friday morning , September
12 Snyder was told what work Pfaff had done, and he
gave his opinion based on the description given him of
the work that was done Pfaff testified that ordinarily
he could do in 2.5 hours the rebuilding job of cleaning
the block , installing liners for six pistons and installing
rings on the six pistons. He testified that the additional
4.5 hours was used in cleaning the block, rectifying it
with a hand file and checking out the excessive play in
the crankshaft. As found, Jefferson and Snyder testified
they would have taken the same amount of time to do
the work Pfaff did on the W-70 motor.
At the commencement of the second shift, about 3 p.m.,
on September 14, Aaron assigned Pfaff a job of installing
a transmission and a clutch cylinder in tractor W-68.
He completed this job and roadchecked the tractor to
see that it shifted properly. He placed it where tractors
were placed that were to be fueled. The fueler drove it
to the pump, fueled it, and drove it to the line of tractors
to be used the next morning
On September 18, 1969, 2 days after his discharge, Pfaff
received in the mail a letter dated September 15, 1969,
prepared by Lawson in which Lawson charged him with
failing to adjust the clutch arm properly on tractor W-
68 in connection with the job he did on it on Sunday,
September 14. Lawson stated that on the morning of Septem-
ber 15, the tractor "had no clutch," and the driver lost
30 minutes while the clutch arm was being adjusted. Lawson
also charged him with leaving three brackets loose on
the transmission. But Lawson testified that the brackets
that were loose held the air hose. In the final paragraph
of this letter to Pfaff, Lawson stated that the letter was
the final letter of warning for failure to perform his duties
as a Class A mechanic, and any future similar incident
would warrant immediate discharge.
Pfaff did not have notice of this warning letter until
it was received by him on September 18, 2 days after
his discharge on September 16, for allegedly improper work
he performed on September 15. Lawson saw Lusby making
the adjustment on the clutch about 8 a.m. on Monday,
September 15. At this time he apparently saw the three
loose brackets or Lusby told him they were loose. Lawson
then prepared the September 15 letter and showed it to
Shop Steward Jefferson. Jefferson asked him if he had
talked to Pfaff, and he said he had not. Pfaff saw Lawson
in the shop when he worked during the afternoon of Septem-
ber 15, but Lawson did not speak to him. Lawson testified
that Pfaff did a good job of installing the transmission
on September 14, and performed the work in a reasonable
time . He found fault only with the clutch adjustment and
the loose brackets.
TERMIN %L TRANSPORT COMPANY, INC 679
At the beginning of the second shift, at 3 p.m, on
September 15, Leadman Aaron, at Lawson's direction,
assigned Pfaff a rebuilding job on tractor W-82. The job
was to install liners , piston rings, and pistons It was
similar to the job Pfaff was assigned on September 11.
There were six liners and six pistons The pistons were
four-groove pistons. A ring was to be installed in each
of the four grooves on each of the six pistons. The first
two rings were compression rings and the last two were
oil rings. One oil ring was a four-piece unit and the other
oil ring was a single -piece unit.
When Aaron assigned the job to Pfaff, he told him
to just clean the block and install the liners, pistons, and
rings, and to get the job done in a hurry. He testified
he did not want him doing the extra work he did on
the September 11 job when he was trying to make an
impression since it was his first assignment on this type
of work. Pfaff installed the liners in the block, and the
rings in the pistons. He placed a four-piece oil ring in
the third groove of each piston, and a one-piece oil ring
in the fourth groove of each piston. This was the extent
of the work Pfaff did on this job on September 15. At
the beginning of the first shift at 7 a m., on September
16, Arthur Glennon, a Class A mechanic, employed 5
years, went into the shop office and asked for work. Lawson
assigned to him the remainder of the work to be done
on the W-82 tractor The pistons, with the rings installed,
had to be inserted in the liners after the connecting rods
were affixed
Glennon inserted the pistons in the liners, and then
he saw a manufacturers diagram and instructions for the
installation of the four-piece oil rings . It showed the four-
piece oil ring in the lowest groove, which Glennon took
to be the fourth groove, and not the third groove. He
subsequently found that the diagram and instructions were
for a three-groove piston and not for a four-groove piston,
but at the particular time on the morning of September
15, he was of the opinion that Pfaff had made an error
in installing the four-piece ring in the third groove instead
of the fourth groove, and in installing the one-piece ring
in the fourth groove instead of the third groove, and set
about to switch the four-piece rings to the fourth grooves
and the single-piece rings to the third grooves. This meant
a switch of two rings on each piston. Lawson walked
by and asked him what he was doing, and he told him.
He also showed Lawson the diagram and instructions
Glennon testified that Lawson picked up the diagram and
instructions and took them with him, and that he completed
the switching of the four piece and single-piece oil rings
on each of the pistons and installed them in the liners.
Lawson also found and picked up an envelope with the
words "4th Groove," and a set of instructions for both
compression rings and oil rings and for supplementary
work to be done in connection with the installation of
the liners, pistons and rings. Lawson took these documents
and placed them in Pfaff's personnel file, and set about
preparing a letter of discharge to Pfaff.
It was stated in the first paragraph of Lawson's letter
of September 16 to Pfaff, that on September 15, 1969,
Pfaff installed improperly rings on pistons in tractor W-
82. He installed number four oil ring in number three
groove, and number three ring in number four groove,
when he had instructions on each ring package with all
information, and also pictures, "of how to install these
rings properly." In the second paragraph, it was stated
that Pfaff had been previously informed of his repeated
negligence as a rated and paid Class A mechanic in letters
dated September 12 and 15, 1969. In the final paragraph
Lawson stated the following.
Be advised due to your poor performance, repeated
negligence and apparent lack of knowledge of a Class
A mechanic you are hereby discharged from your
duties as an employee of Terminal Transport Company
Incorporated in accordance with the Local Union 390
contract
Pfaff had not received warning letters prior to the two
dated September 12 and 15 that Lawson sent him
Lawson called Jefferson into the office between 12 a.m.
and I p in on September 16, and showed him the letter
Jefferson asked Lawson what Pfaff had said about it, and
Lawson replied that he had not asked Pfaff about the
matter. Jefferson looked at the job on the W-82 tractor,
which had been completed by Glennon He asked Glennon
what he had done, and Glennon told him. Jefferson then
informed Lawson that Pfaff had mounted the rings properly
When Pfaff reported for work between 2:30 p.m and 3
p.m. on September 16, he found that his timecard was
not in the rack. Jefferson told him that Lawson had a
letter for him. Pfaff and Jefferson went to the office where
Lawson handed him the letter and a paycheck in the
presence of Jefferson After he read the letter Pfaff said
he installed the rings properly He left the office to find
Aaron, and excitedly showed him the letter. Pfaff had
asked Aaron on the afternoon of September 15 how he
should install the rings The instructions in the box which
contained the piston kits for installing the rings were for
installing rings on a three-groove piston. The pistons on
which Pfaff had to install rings were four-groove pistons
Aaron had told Pfaff to follow the manufacturer's instruc-
tions on the envelopes. The manufacturer stated on each
envelope the groove in which the ring in the envelope
should be installed. Aaron went into the office with Pfaff
He told Lawson in the presence of Jefferson and Pfaff
that Pfaff had installed the rings properly and had followed
his instructions, and if Pfaff deserved a letter he should
have one also. Lawson turned and walked away.
Glennon spoke to Lawson three times about the work
he had done on the W-82 tractor following the work
Pfaff had done on it Just before the hearing Lawson
asked him to write down what he did in switching the
rings Later that day he told Glennon it had not been
necessary to use what Glennon had written. In the last
conversation Glennon told Lawson that he had talked to
some of the mechanics about his switching the piston
rings, and he had doubts that it had been necessary for
him to have changed the rings from the way Pfaff had
placed them on the pistons. He told Lawson that the
diagram which he had followed, and which Lawson had
taken, was for a piston with three grooves and not for
a four-groove piston It was stated in the instruction accom-
panying the diagram that the four-piece oil ring should
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be placed in the lowest groove The third groove on a
three-groove piston would be the lowest groove
A few days after the Grievance Committee 's November
4 decision on Pfaffs grievance against his discharge , Jeffer-
son had a conversation with Lawson . Another mechanic
was present . Lawson asked them if they knew where he
could get a couple of mechanics . Jefferson asked if he
meant two in addition to 0. H . Cross, the casual employee.
Lawson replied that maybe only one was needed as they
might have to put Pfaff back to work , but then he said
that two were needed as he would not work Pfaff.
As stated supra, Pfaff filed a grievance against the dis-
charge, and a hearing was held on it before the Grievance
Committee in Miami on November 4, 1969. The Committee
decided that Pfaff, in the presence of a representative of
the Union and the Respondent , was to tear down and
rebuild a 10-speed Road Ranger transmission in the time
prescribed in the flat rate manual , and if he completed
the job in the prescribed time, and the transmission were
operable, he was to be returned to work and paid for
time lost, and if not, his discharge was to be sustained
Shortly after this decision , Lawson asked Aaron if he
had done the type of job assigned to Pfaff by the Committee,
and Aaron said he had torn down and rebuilt that type
of transmission about 2 years before . Lawson remarked
that Aaron could not do it in the time prescribed in
the flat rate manual , and he could not do it either.
Lawson testified at the hearing that the first diagram
and accompanying instruction introduced through him in
evidence went with the envelope with the words "4th
Groove" on it, which was also introduced in evidence
through him He identified the oil ring on the diagram
as a four-piece oil ring, and testified that the accompanying
instructions contained the information for installing it in
the fourth groove of the piston He also testified that
the ring that was in the envelope marked "4th Groove"
was a four-piece oil ring . Pfaff on rebuttal testified that
the envelope marked "4 th Groove" contained a ring he
used , but that the ring was a single-piece oil ring and
not a four-piece oil ring as Lawson testified . He testified
that the instruction and diagram for a four -piece oil ring
introduced through Lawson was for installation on a three-
groove piston and not a four -groove piston like the six
in the W-82 tractor He agreed that the four-piece ring
in the diagram would go in the lowest groove, as the
accompanying instruction directed , because the third groove
was the lowest groove in a three -groove piston He testified
that the four-piece ring ir, the case of a four-groove piston
goes in the third groove, and the single unit ring , a supple-
mental oil ring, goes in the fourth groove or lowest groove.
He further testified that he installed the rings properly
by placing the four-piece ring in the third groove, and
the single-piece ring in the fourth groove of the six four-
groove pistons of the NN -82 tractor , in accordance with
the directions on the envelopes.
tee of the grievance filed by the Union on Pfaffs behalf
against his discharge on September 16, 1969' The grievance
was presented by Larry Hicks, business representative of
the Union R. V Pulliam , a vice president of Respondent,
represented the Respondent . He is in charge of labor rela-
tions and transportation Transportation includes Respond-
ent's over -the-road operations
The Union 's evidence consisted of the grievance filed
with the Union by Pfaff, the two warning letters of Septem-
ber 12 and 15 , 1969, and the letter of discharge of September
16, 1969, received by Pfaff from Respondent , and a letter
to the Union from Pfaff in which he recounted his personal
knowledge and opinion of the circumstances giving rise
to the issuance of the three letters.
Pfaff's statements in the letter to the Union dealt with
Lawson 's request that Pfaff withdraw his grievance of April
28, 1969, which had been settled by the Respondent and
the Union on June 30 , 1969, his refusal , the visit of Lawson,
beginning September 10, 1969, following Pfaffs refusal and
about 10 days after a prior visit to the shop , Pfaff 's experi-
ence prior to his employment by Respondent , his employ-
ment by Respondent as a Class A mechanic although
it had knowledge of his limited experience in motor rebuild-
ing, his 14 months' employment by Respondent without
being assigned to motor rebuilding work , Lawson 's assign-
ment to Pfaff, through Aaron , of two motor rebuilding
jobs, ostensibly to give Pfaff experience in this work, and
Pfaffs performance of this work . The work was the subject
of Lawson's warning letter of September 12, 1969, and
his discharge letter of September 16, 1969, to Pfaff. Pfaff
stated that he explained to Lawson that he did more
than Lawson stated he did in the September 12 letter,
but Lawson said to him he did not want the end play
on the crankshaft fixed He wanted only new liners , pistons,
and piston rings installed . In connection with the charge
in Lawson 's September 16 letter that Pfaff installed the
four-piece oil rings and the one -piece oil rings incorrectly
on the pistons, Hicks stated he had the manufacturer's
diagrams to show that Pfaff installed them correctly.
Pfaffs letter to the Union also dealt with Leadman
Aaron 's assignment to Pfaff of the work of installing a
transmission and a cylinder in a clutch assembly, and
Pfaff's performance of this work . This work was the subject
of Lawson's warning letter of September 15, 1969. Pfaff
stated in his letter that he had performed this work numerous
times, and without criticism . The Union 's presentation con-
cluded with Hicks' statement that Respondent had no diffi-
culty in considering Pfaff a qualified Class A mechanic
for 14 months, until he refused Lawson's request that
he withdraw the April 28, 1969 , grievance filed through
the Union . Hicks, in conclusion, stated that Pfaff had
not only worked for Respondent 14 months, but was a
good mechanic, had no absentee or drinking problem, and
was considered by Respondent as a Class A mechanic
until he refused to withdraw the grievance filed through
E. The Evidence Presented to Grievance Committee Against,
and in Support of Pfaffs Discharge
Respondent offered in evidence the transcript of the
The transcript is a transcription of a record made of the testimony
Certain parts of the record were inaudible, and the inaudible portions
hearing on November 4, 1969, before the Grievance Commit - are so identified in the transcript
TERMIN kL TRANSPORT COMPANY, INC
the Union on April 28, 1969, and settled by Respondent
and the Union on June 30, 1969.1°
When Pulliam presented Respondent's case to the Griev-
ance Committee, Lawson sat beside him to assist him.
Lawson did not, however, answer any questions or otherwise
give any testimony Pulliam made Respondent's representa-
tion. It appears that Lusby, who was acting shop foreman
from the end of August until the end of October 1969,
and who was waiting in the hall outside the waiting room,
may have been called in and may have answered a few
questions about incidents in which he was directly involved.
It appears that Bates, a representative of the employers
on the Grievance Committee, asked Lusby five questions,
and Payne, a representative of the Union on the Committee,
asked him two questions. One question was asked by some-
one identified as "Voice." One of the answers to Bates'
questions was audible. The answers to his other four ques-
tions were not. Part of Payne's first question and part
of his second question were inaudible. There was no answer
to his first question, and the answer to his second question
was inaudible. The question by "Voice" and Lusby's answer
were audible.
Respondent's Vice President Pulliam began the presenta-
tion of Respondent's case to the Grievance Committee
by stating that Lawson did not know anything about the
grievance until he ordered it paid "so there was no conversa-
tion on the grievance between Mr. Lawson, Mr. Lusby
or anyone else because I told them to pay the grievance."
Pulliam also stated that so much emphasis was placed
on the April 28 grievance and its settlement that he ordered
it paid.
Pulliam then represented that Pfaff was not a Class
A mechanic, and that the other mechanics in the Miami
shop were covering up for him. He referred to Lusby,
said he was in the hall, and that he was the man who
repaired part of what Pfaff did. Pulliam said that he had
the statement of Glennon who straightened out the rings
on the pistons that Pfaff allegedly installed improperly.
He also said at this time that he was going to call Lusby
in and let them question him about the conversation between
him and Lawson about the grievance
Pulliam again repeated that Pfaff was not a Class A
mechanic. He referred to his alleged inability to place
a clutch in a truck He said that Pfaff failed to put the
brackets back on after he worked on a clutch, left bolts
out, failed to put the rings properly on a piston, and
took 8 hours to install liners in a block and to install
rings on six pistons when this work was a 2-hour job.
He then said that Lawson, sitting beside him, and Lusby,
in the hall, could tell them about Pfaff 's April 28, 1969,
grievance, and its settlement, and what happened after
the settlement, because he knew nothing about it until
he read the letter Pfaff sent to the Board.
10 Pfaff's letter to the Union presented by Hicks to the Grievance
Committee presented Pfaffs version of what happened that led to his
discharge In making my evidentiary findings, I have credited Pfaff's
testimony before me of what happened, and its corroboration by Aaron,
Jefferson, and Glennon Pfaffs letter to the Union presented to the
Grievance Committee on November 4, 1969, contains substantially what
was presented at the hearing before me in his behalf
681
At this point in the Respondent's presentation to the
Grievance Committee the Committee examined Lusby about
jobs Pfaff had done that he had to straighten out. As
stated supra, the colloquy between Lusby and Bates and
Payne of the Committee was not recorded properly on
the record made of the testimony and could not be tran-
scribed. It is referred to as inaudible in the transcript
Payne asked Lusby if he had a conversation regarding
Pfaff's withdrawal of a grievance he had filed for 4 hours
pay because of two violations of the collective-bargaining
contract, and Lusby answered he had Undoubtedly, the
reference was to the conversations in the early part of
September 1969 between Lusby and Lawson about Pfaff s
withdrawal of the April 28, 1966, grievance that was settled
on June 30, 1969. Bates or Payne asked Pulliam if major
repairs were made in the Miami shop, and he answered
yes Pulliam then read to the Committee from Pfaffs applica-
tion for employment the experience Pfaff had as a mechanic
prior to his filing the application He had been employed
by W. E. Johnson Equipment Company, Hialeah, Florida;
Denver-Chicago Trucking Company, North Bergen, New
Jersey; Four Hundred-Twenty-Third Ordnance Division,
Fort Devens, Massachusetts, and United States Army, Fort
Dix, New Jersey.
The remainder of the transcript, insofar as it can be
considered evidence, is marked inaudible. Harp, a represent-
ative of the employers on the Committee, asked that the
Union and the Respondent leave the specifications and
diagrams for installing the piston rings that they had brought
to the hearing with them
The decision of the Committee is then stated It is:
The man to be given the job of tearing down and
rebuilding a 10-speed Road Ranger Transmission in
the presence of the Union and Company representative
Job to be completed in time prescribed in the flat
rate manual. If the employee properly completes the
job and the transmission is operable, the employee
to be returned to work and paid for time lost. If
not, the discharge is sustained.
As stated supra, Pfaff refused to submit to this test,
and filed the unfair labor practice charge on November
5, 1969.
ANALYSIS AND FINDINGS AND CONCLUSIONS OF LAW
AND FACT
In reaching a decision in this case, the threshold question
is whether the Board should consider itself bound by the
November 4, 1969, decision of the Grievance Committee,
and decline to resolve the issue whether Respondent, in
discharging Pfaff on September 16, 1969, discriminated
against him in violation of Section 8(a)(1) of the Act
Section 10(a) of the Act provides that the Board's power
to prevent unfair labor practices "shall not be affected
by any other means of adjustment or prevention that has
been or may be established by agreement, law or otherwise
... " In International Harvester Co., Indianapolis Works
et al.,", the Board stated that "there is no question that
" 138 NLRB 923, 925, affd sub nom, Ramsey v NLRB, 327
F2d784(CA 7)
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board is not precluded from adjudicating unfair labor
practice charges even though they might have been the
subject of an arbitration proceeding and award "12 However,
the Board also stated therein that "it is equally well estab-
lished that the Board has considerable discretion to respect
an arbitration award and decline to exercise its authority
over alleged unfair labor practices if to do so will serve
the fundamental aims of the Act ""
The Board also stated that "If complete effectuation
of the Federal policy is to be achieved, we firmly believe
that the Board, which is entrusted with the administration
of one of the many facets of national labor policy, should
give hospitable acceptance to the arbitral process as `part
and parcel of the collective bargaining process itself' (citing
United Steelworkers ofAmerica v. Warrior & GulfNavigation
Company, 363 U.S. 574, 578), and voluntarily withhold
its undoubted authority to adjudicate alleged unfair labor
practice charges involving the same subject matter, unless
it clearly appears that the arbitration proceedings were
tainted by fraud, collusion, unfairness, or serious procedural
irregularities or that the award was clearly repugnant to
the purposes and policies of the Act," In dismissing the
complaint, the Board stated that "while an arbitrator's
award could not oust the Board of its jurisdiction to adjudi-
cate unfair labor practice charges, we conclude that, under
the facts and circumstances herein, it will effectuate the
purposes of the Act of respect the award and dismiss
the complaint in its entirety. 1114
In accomodating its statutory responsibility to prevent
unfair labor practices with recognition in the Act and
other Federal legislation and Court decisions15 of arbitration
as an instrument of national labor policy for composing
contractual differences, the Board has set the standards
for its "hospitable acceptance of the arbitral process" and
its voluntary withholding of its authority to adjudicate
unfair labor practices involving the same subject matter.
In International Harvester, it held that it would not defer
where the arbitration proceedings were tainted by fraud,
collusion, unfairness, or serious procedural irregularities,
or that the award was clearly repugnant to the policies
of the Act. These are the same standards it established
in Monsanto Chemical Co., 97 NLRB 517, enfd 205 F.2d
763 (C A 8), and in Spielberg Manufacturing Company,
112 NLRB 1082, 1080, and relied on in Raytheon Company,
140 NLRB 882.
In D. C. International Inc., 162 NLRB 1383, the Board
declined to defer to the arbitration because the issue of
discrimination was not before the arbitrator 16 In Illinois
Ruan Transport, 165 NLRB 227, 232, the Board refused
" The courts have uniformly so held See NL R B v Walt Disney
Productions, 146 F 2d 44, 48 (C A 9), cert denied 324 U S 877, NL R B
v Hershey Chocolate Corporation et a!, 297 F 2d 286, 293-294 (C A
3), Carey v Westinghouse Electric Corporation, 375 U S 261, NL R B
v C & C Plywood Corp., 385 US 421, NL R B v Acme Industrial
Co, 385 U S 432
" Supra, fn 11 at 925-926
" Supra, fn 11 at 927, 929
" See Southern Steamship Company, v NLRB, 316 U S 31, 47
and NLRB v Hershey Chocolate Corporation, et al., 297 172d 286,
293-294 (C A 3)
" See also The John Klann Moving and Trucking Company, 170
NLRB No 133, enfd 4 1 1 F 2d 261 (C A 6), cert denied 396 U S
833 (1969). and Rotax Metals, Inc 163 NLRB 72, 78
to follow the arbitrator's award because although the evi-
dence of the alleged discrimination was presented to it,
it did not consider it in reaching its decision and making
the award. It did not make findings of fact, and its award
did not disclose that the evidence of the discrimination
was considered The Eighth Circuit Court of Appeals agreed
with the Board on this issue 11
The whole gamut of the evidence dealing with the alleged
discriminatory discharge was presented by the Union to
the Grievance Committee on behalf of Pfaff. This included
the warning letters and the discharge letter Lawson gave
or sent to Pfaff, Pfaffs statement about the motor rebuilding
work Lawson assigned him after Lawson returned on Sep-
tember 10, 1969, to the Miami shop following his request
to Pfaff, through Lusby, a few days before, that Pfaff
withdraw the grievance he had filed on April 28, 1969,
and which the Union and Respondent settled on June
30, 1969, and Pffafs refusal and threat to file another
one. Hicks, the Union's business representative, also present-
ed Pfaff 's statement about the transmission and clutch
job he performed in between the two motor rebuilding
jobs, and what Lawson found fault with in that job. Pfaffs
statement also disclosed that during his 14 months of
employment by Respondent he had not been assigned motor
rebuilding work by Respondent prior to the jobs Lawson
assigned him, that Respondent knew when he was hired
that his experience in motor rebuilding was very limited,
that they hired him anyway as a Class A mechanic, that
ostensibly Lawson assigned Pfaff the motor rebuilding work
so he could obtain experience in that line, and then issued
a warning letter and a discharge letter to Pfaff because
allegedly he did not meet the standards for the performance
of this work by a Class A mechanic.
For the Respondent, Pulliam, vice president of Respond-
ent, met the Union's presentation of Pfaffs case He made
the conclusionary statement, unsupported by any personal
knowledge, that Pfaff was not a Class A mechanic, that
the other mechanics were making it possible for him to
continue as a mechanic in the Miami shop, and that Pfaff
was discharged because he could not do in the required
time the rebuilding work of installing liners or cylinders,
pistons and piston rings, did not know what piston rings
to install in the third and fourth grooves of a four-groove
piston, and could not install properly a transmission or
a clutch cylinder
The statement of Pulliam was supported only by answers
Lusby gave the Committee to questions it asked him about
jobs Pfaff had done and which he straightened out. Although
Lawson was sitting next to Pulliam he did not offer any
testimony as to why he discharged Pfaff. Lusby could
only answer questions about the half hour he took to
adjust the arm on the clutch Pfaff installed and tighten
the brackets that held the air hose which he or Lawson
found loose at the time that the clutch was adjusted.
Although Lawson had the statement of Glennon regarding
what the latter did in switching the piston rings in the
17 Illinois Ruan Transport v N L R B 404 F 2d 274, (C A 8) See also
Ford Motor Compam, 131 NLRB 1462, 1463 Milne Trucb Lines, 171
NLRB No 25 Wagoner Transport Compant, 177 NLRB No 22
TERMINAL TRANSPORT COMPANY, INC 683
third and fourth grooves of the pistons in connection with
the second motor rebuilding job Lawson assigned to Pfaff,
this statement was not presented to the Committee So
the only evidence dealing with Pfaffs work that the Commit-
tee received from Respondent was Lusby's recounting of
what he did to adjust the clutch arm and tighten the
brackets Pulliam's derogatory statements about Pfaffs work
were not based on knowledge but on sheer hearsay from
Lawson.
Pulliam stated he had no knowledge of Lawson's efforts
to have Pfaff withdraw his April 28, 1969, grievance, and
its settlement on June 30, 1969, but that Lawson was
available to answer the Committee's questions about that
incident. The Committee did not question Lawson. It asked
Lusby if he had a conversation about the withdrawal of
the grievance and he answered yes Pulliam stated to the
Committee that Respondent paid Pfaff the amount due
him under the settlement in accordance with his instructions,
but did not disclose that he gave the instructions 5 days
after Pfaff was discharged, and the payment was made
at that time He was silent on the facts that Pfaff had
requested payment many times in August 1969, and no
payment was made, and in early September 1969, shortly
before his discharge, Lawson requested him to withdraw
the grievance, and Pfaff refused and threatened to file
another one It could well be true that Pulliam was not
personally aware, prior to the discharge, of what transpired
between Pfaff, Lusby, and Lawson before Lawson's return
to the Miami terminal , but he failed to ask Lawson to
give testimony regarding it. This silence should have estab-
lished the truth of the evidence presented by the Union
on this matter.
The Committee had before it the diagram on which
the Union relied to show that Pfaff installed properly
a four-piece oil ring and a supplemental single-piece oil
ring on four-groove pistons in connection with the second
rebuilding job Lawson assigned him on September 15, 1969,
and which was the subject of Lawson's letter of discharge
to Pfaff of September 16, 1969. The Committee also had
the diagram on which Respondent relied to show that
Lawson installed the rings improperly. The diagram
Respondent had was for the installation of a four-piece
oil ring on a three-groove piston. Pfaff had the job of
installing a four-piece oil ring and a supplemental single-
piece oil ring on a four-groove piston.
The Committee rendered the decision that Pfaff should
tear down and rebuild a 10-speed Ranger transmission
in the time prescribed by the flat rate manual in the
presence of a representative of the Union and a representative
of the Respondent If Pfaff did this work properly in
the time prescribed by the manual , in the judgment of
these representatives, he was to be returned to work, and
paid for time lost, and if not his discharge was to be
sustained.
The Committee made no findings of fact, nor disclosed
in any way, how the decision disposed of the issue before
the Committee-whether Pfaff was discharged for filing
and refusing to withdraw his April 28, 1969, grievance,
or whether he was discharged only because he failed to
do the work properly that he was assigned on September
11, 12, and 15, 1969. The decision itself does not disclose
any resolution of this issue. As far as it goes, it appears
to set the basis for a determination by the Union and
the Respondent as to whether Pfaff was a Class A mechanic
The issue whether Pfaff was a Class A mechanic was
not placed before the Committee by Pfaffs grievance,
although it appears that the Committee acted on such
an issue
The issue of Pfaffs qualifications as a Class A mechanic
is not before the Board in this proceeding The issue whether
Pfaff was discriminatorily discharged is before the Board
by the charge filed by Pfaff on November 5, 1969 This
is the issue before me by the complaint in January 8,
1970, and the answer filed on January 15, 1970. This
issue was not resolved by the Grievance Committee. The
Committee only returned the controversy to the Union
and Respondent with directions to determine whether Pfaff
could be considered a Class A mechanic as a result of
his performance of the prescribed test The Committee's
decision was not even a final decision or a final award
For the reason that the issue whether Respondent discrimi-
natonly discharged Pfaff on September 16, 1969, because
he filed and refused to withdraw a grievance, in violation
of Section 8(a)(1) of the Act, was not resolved by the
arbitration of November 4, 1969, and because the Grievance
Committee did not make a final decision or final award,
this issue is properly before me by the complaint of January
8, 1970 and answer of January 15, 1970, for disposition
in an unfair labor practice proceeding.18
It is not necessary to decide whether the Committee's
decision failed to resolve the issue before me for the reason
that the test the Committee prescribed was too severe.
It will be recalled that Aaron gave the unrebutted testimony
that Lawson said to him that neither he nor himself could
perform the test in the time set by the flat rate manual
An employer can discharge for good cause, bad cause
or no cause at all providing that a motivating purpose
behind the discharge is not to do what the Act forbids."
However, when the impact of a discharge or other conduct
of management is even only "comparatively slight" with
respect to interference with, restraint, or coercion of an
employee in connection with rights set out in Section 7
of the Act, the employer must come forward with evidence
of legitimate and substantial business justifications for the
discharge in order to avoid a finding that he violated
Section 8(a)(1) of the Act Proof of motivation is most
accessible to him. When the employer had advanced these
justifications, General Counsel must then show antiunion
motivation by the preponderance of the evidence on the
record considered as a whole 20
18 Hrtbar Trucking Company, Inc, 166 NLRB 745, 754, Precision
Fittings, Inc, 141 NLRB 1034, 1041-43, Illinois Ruan Transport, 165
NLRB 227, 232, Illinois Transport v NLRB, 404 F 2d 274, 280
(C A 8), Spielberg Manufacturing Company, 112 NLRB 1080, D C
International. Inc, 162 NLRB 1383, Rotax Metals, Inc, 163 NLRB
72, 78, Milne Truck Lines, 171 NLRB No 25, Monsanto Chemical
Co, 97 NLRB 517, enfd 205 F 2d 763 (C A 8)
11 NLRB v McGahey, 233 F 2d 406, 412-413 (CA 5), enforcing
in part 111 NLRB 1162
'° NLR B v Great Dane Trailers, 388 U S 26, 34, NL R B v
Fleetwood Trailers Co, 389 U S 375, 378, Atlanta Newspapers, inc., 172
NLRB No 152
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence before me discloses that 14 months before
his discharge on September 16, 1969, Pfaff was hired by
Respondent as a Class A mechanic, and worked in that
classification during his period of employment without
receiving any warning letters or other reprimands Respond-
ent knew when it hired him that he had only limited
motor rebuilding experience, but hired him anyway as
a Class A mechanic. It did not, however, assign him any
motor rebuilding working during the 14 months until
Regional Maintenance Supervisor Lawson came to the
Miami terminal shop on September 10, 1969, after he
unsuccessfully sought, in early September 1969, through
Acting Shop Foreman Lusby, to have Pfaff withdraw his
grievance of April 28, 1969, which the Union and Respond-
ent settled on June 20, 1969, but which could not be
disposed of because Terminal Manager Davis refused to
pay to Pfaff the amount of the settlement." Pfaff refused
to withdraw the grievance and threatened to file another
one if he was not paid the amount of the settlement
Within 6 days after his arrival at the Miami shop on
September 10, 1969, Lawson gave Pfaff two motor rebuilding
jobs, and issued to Pfaff a warning letter on one and
a discharge letter on the other, and issued a warning
letter on the transmission and clutch cylinder job Pfaff
did between the two motor rebuilding jobs. This evidence,
in context with the background evidence, constitutes an
adequate showing of interference with rights of employees
protected by Section 7 of the Act,22 to place upon Respondent
the burden of coming forward with legitimate and substantial
business justifications for Pfaff's discharge to avoid a finding
that it violated Section 8(a)(1) of the Act.2J
On September 11, 1969, Lawson instructed Leadman
Aaron to assign Pfaff the rebuilding job of installing liners,
pistons, and piston rings in a tractor (W-70) with a Reo
motor. It was old and had seen considerable service Aaron
had assigned the job to mechanic Snyder, but Lawson
told him to give it to Pfaff to permit him to acquire
experience in this work Snyder had done about 10 minutes
work on it. Pfaff cleaned the block, removed protrusions
and rectified a warped condition with a hand file pursuant
to Aaron's instructions, cleaned the crankshaft, and cleaned
and polished the journals. He found that the crankshaft
had excessive end play, and, on Aaron's instructions, pulled
down the main bearing to check out the excessive end
" Pfaffs grievance was undoubtedly abrasive It was against a supervisor
doing unit work However , the collective -bargaining contract between
the Union and Respondent provided against Respondent's officials and
other nonunit employees doing this work , and gave the employees and
the Union the right to file grievances against their doing it The Union
and Respondent settled the grievance on June 30 , 1969, shortly before
it was to be presented to the Grievance Committee According to the
settlement, Pfaff was to be paid by Terminal Manager Davis for the
work done by the supervisor if he was available in the terminal to
do it at the time the supervisor did the work Pfaff testified he was
available Neither Davis nor any other representative of Respondent
who could give probative evidence of Pfaffs presence or absence testified
In these circumstances , I credit Pfaff Pfaff and the Union claimed
that the amount of the settlement was for 8 hours pay, but the Respondent
claimed it was for 4 hours pay As stated , Davis, in any event , refused
to pay it It was not paid until Vice President Pulliam ordered it paid,
but that was not until 5 days after Pfaffs discharge
" See D. C International, Inc, 162 NLRB 1383
" See cases cited supra, fn 20.
play. He installed the liners and installed piston rings
on the pistons. This work took 7.9 hours, the complete
workday.
On September 12, Lawson issued Pfaff a warning letter.
He stated to Pfaff that he took 7 9 hours to do work
that should have been done in 2.5 hours. Lawson's position
was that the work of installing liners in the block and
installing rings on the pistons, was a two and a half hour
job. Lawson showed the letter to Shop Steward Jefferson
before giving it to Pfaff Jefferson asked him if he had
talked to Pfaff and he said he had not. Although Jefferson
told Lawson he ought to see what Pfaff had to say before
issuing the letter, he did not talk to Pfaff. When Pfaff
told Lawson after he had received the letter that he did
much more than installing liners in the block and installing
rings on the pistons, Lawson told him that he was assigned
to the job of installing liners, rings, and pistons only
He told him this notwithstanding that he walked by Pfaff
a number of times when Pfaff was doing the extensive
work in an obvious attempt to make a good impression
on his first rebuilding job, looked at what he was doing,
but never said a word to him.
Shop Steward Jefferson, a mechanic with 20 years experi-
ence, and Snyder, a mechanic with 25 years experience,
testified that they would have taken about the same time
as Pfaff did to do the work Pfaff did. It is clear from
the evidence that the time in excess of 2.5 hours taken
by Pfaff was due to his cleaning and rectifying the block
with the hand file, cleaning the crankshaft, cleaning and
polishing the journals, and checking the excessive end play
of the crankshaft If Lawson was acting in good faith
toward Pfaff, he would have informed Pfaff he did not
want this extra work done on the type of assignment
he gave him when he saw him doing this work, or at
least he would have talked to Pfaff about this doing the
extensive work, instead of giving him his first warning
letter after 14 months employment, and in connection with
his first rebuilding job, when he had only limited experience
in this work, and when Lawson ostensibly assigned this
work to Pfaff to enable him to obtain experience
I credit Pfaffs unequivocal testimony that in performing
the second motor rebuilding job on September 15, 1969,
he installed in the fourth groove of the six four-groove
pistons the piston rings that came in the envelopes marked
"4th Groove." I credit his testimony that the rings in
these envelopes were one-piece supplemental oil rings I
also credit his testimony that he installed in the third
groove of these pistons four-piece oil rings that came in
envelopes marked "3rd Groove "
I find that Lawson , in his grasping at straws to find
an excuse for Pfaffs discharge, accepted without question
mechanic Glennon's statement to him that Pfaff should
have installed the four -piece oil rings in the fourth groove
of the pistons and the single-piece oil rings in the third
groove of the pistons. Shop Steward Jefferson, who looked
at the work Pfaff did before Lawson presented the discharge
letter to Pfaff, informed Lawson before he gave Pfaff the
letter that Pfaff had installed the rings properly. Leadman
Aaron who assigned Pfaff the rebuilding work at Lawson's
direction, told Lawson after Pfaff had received the discharge
letter that Pfaff had installed the rings properly. He gave
TERMINAL TRANSPORT COMPANY, INC 685
his opinion after being informed of what Pfaff did, and
of Glennon's statement that he did it incorrectly. Glennon,
who told Lawson that the rings were improperly installed,
testified at the hearing he told Lawson about the time
of the hearing before the Grievance Committee that he
could have been mistaken when he said Pfaff installed
the rings improperly as he was looking at a set of instructions
for installing rings on a three-groove piston when he talked
to him, but that the pistons on which Pfaff made the
installation were four-groove pistons.
I credit Pfaff's testimony that on a four-groove piston
the one-piece oil ring is a supplemental oil ring, and is
installed below the four-piece oil ring which is the main
oil ring, and that the instruction on which Glennon relied
stated that the four-piece oil ring went in the lowest groove
because the third groove is the lowest groove of a three
groove piston. The first two grooves are for compression
rings, and it is very important that the oil rings not be
juxtaposed with the compression rings. Lawson had doubts
about his discharge letter to Pfaff. Just before the hearing
before the Grievance Committee he said to Shop Steward
Jefferson and another mechanic that he might have to
take Pfaff back It is true that on second thought, Lawson
then said that he would not work Pfaff. However, this
decision not to reinstate Pfaff was not because of any
error Pfaff had made.
This evidence discloses clearly that Lawson, in issuing
Pfaff the discharge letter, was not acting with the motive
of reprimanding Pfaff for cause. Pfaff had done nothing
in connection with the second rebuilding job that could
be considered as cause for discharge or cause for discipline
or any kind.
The warning letter for errors in Pfafrs work on September
14 was not received by him until September 18, 1969,
2 days after his discharge Again Lawson did not talk
to Pfaff about the errors before issuing the letter although
Shop Steward Jefferson told Lawson he should. The letter
charged Pfaff with failing to adjust properly the arm of
the clutch on which he was working, and leaving loose
three brackets on the transmission he installed The clutch
arm needed an adjustment . Brackets holding the air hose,
and not the transmission , as Lawson stated in the letter,
were loose. They had to be tightened. Pfaff had installed
many transmissions and clutch assemblies , and had not
been previously reprimanded by a warning letter. Acting
Shop Foreman Lusby adjusted the clutch arm, and tightened
the brackets. It took him a half hour. Pfaff testified that
he drove the tractor after he completed the work and
found no fault with its operations . He also testified that
the fueler drove it to the gasoline pump and then to
the line for vehicles available for operation the next morning,
September 15 There is no testimony that connects the
loose air hose brackets with the job Pfaff did on the
transmission and the clutch cylinder . Lawson testified that
he was satisfied with Pfafrs work of September 14, except
for the loose brackets and failure of the clutch because
the clutch arm needed adjustment . The loose brackets
appeared to be quite serious as Lawson represented them
as holding the transmission Pfaff installed . But at the
hearing Lawson testified that the brackets held the air
hose. As stated, there is no evidence that the looseness
of the brackets was due to Pfaff s work.
Considered in isolation, the work failures of September
14 were not serious and appear to be the type that call
for an oral reprimand rather than a warning letter. But,
aside from the other warning letter and the discharge
letter, the warning letter of September 15 could be considered
as a legitimate reprimand from a maintenance supervisor
who insisted on a high level of efficiency in service opera-
tions, and who considered even a minor lapse in efficiency
to be serious. However, this letter takes on a new dimension
when it is considered with the warning letter of September
12 and the discharge letter of September 16. Those two
letters were clearly unjustified Considered in a context
that also includes those two letters, the letter of September
15 was clearly pretextual and motivated by reasons other
than legitimate and substantial business reasons.
I find and conclude that the Respondent has not advanced
legitimate and substantial business reasons for its warnings
to Pfaff of September 12 and 15, 1969, and for its letter
of discharge to Pfaff of September 16, 1969. I find and
conclude that the preponderance of the evidence shows
that Pfaff's discharge was for the reason that Pfaff filed
the April 28, 1969, grievance and refused to withdraw
it This is clear from the evidence that the discharge followed
on the heels of Lawson's request to Pfaff, through Lusby,
on or about September 2, 1969, to withdraw his grievance
of April 28, 1969, which had been settled by Respondent
and the Union on June 30, 1969, but which Terminal
Manager Davis refused to finally settle by paying the amount
of the settlement to Pfaff; Pfafrs refusal to withdraw the
grievance and his threat to file another grievance because
of Davis' refusal to pay the amount of the settlement;
Lawson's receipt of the information about September 6,
of Pfaff 's refusal and threat; Lawson's appearance at the
Miami shop of Respondent on September 10, although
he had only left there on September 1 to return to his
headquarters in Atlanta , Georgia, following a reorganization
in supervisory personnel in the Miami shop , Lawson 's assign-
ment of motor rebuilding work to Pfaff on September
11, although this work had already been assigned to mechan-
ic Snyder, and although Lawson knew that Pfaff had only
limited experience in this work and had not previously
been assigned such work during his 14 months of employ-
ment, and Lawson's pretextual reasons for warning Pfaff
in his September 12 letter in regard to this work; Lawson's
second assignment to Pfaff of motor rebuilding work on
September 15, and his pretextual reasons for finding fault
with the way Pfaff did this work; and the pretextual reason
for the warning Lawson gave Pfaff on September 15 for
the work Pfaff performed on September 14.24 The right
to file a grievance stems from the Act and from the collec-
tive-bargaining contract between Respondent and the Union.
Interference with the right to file a grievance pursuant
14 NLRB. v Great Dane Trailers, 388 US 26, 34, Kamp Togs,
Inc., 148 NLRB 196, N.LR.B v Tru-Line Products, 324 F 2d 614,
616 (C A. 6), enforcing 138 NLRB 964, cert denied 377 U S 906,
N.LR.B v D'Armigene, Inc, 353 F 2d 406, 409-41 1(C A 2), enforcing
148 NLRB 2, NL R B v WTV.J, Inc., 268 F 2d 346, 347-348 (C A
5), enforcing 120 NLRB 1180, and Ames Ready Mix Concrete, Inc.,
170 NLRB No 174, enfd, 411 F 2d 1159, (C A 8)
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a collective-bargaining contract and the discharge of
an employee for filing a grievance pursuant to a collective-
bargaining contract constitute a violation of Section 8(a)(1)
of the Act.26
For the foregoing reasons, I find that Respondent violated
Section 8(a)(1) of the Act by discharging Pfaff in reprisal
for engaging in the protected activity of filing a grievance,
pursuant to a collective-bargaining contract between
Respondent and the Union, and refusing to withdraw it,
and otherwise interfering with, coercing, and restraining
Pfaff for his filing and processing of the grievance, and
refusing to withdraw it
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V. THE REMEDY
Respondent has been found to have discharged Walter
Pfaff for discriminatory reasons under the Act. I shall
recommend that it be ordered to cease and desist from
engaging in such conduct, and to take the affirmative
action specified to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact and
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent discriminatorily discharged employee Pfaff
on September 16, 1969, in violation of Section 8(a)(1)
of the Act in reprisal for filing a grievance pursuant to
a collective-bargaining agreement and refusing to withdraw
it
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in the case, I recommend
that the Board enter an order requiring Respondent, its
officers, agents, successors, and assigns, to:
1 Cease and desist from:
(a) Discharging or in any manner discriminating against
employees in reprisal for the filing or processing of griev-
ances pursuant to the terms of a collective-bargaining agree-
ment, or refusing to withdraw them
" D C International, Inc, 162 NLRB 1383
(b) By like or related conduct, interfering with or restrain-
ing or coercing employees in the exercise of rights to
self-organization, to join or assist the Union, or any other
labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other concert-
ed activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section
7 of the Act
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer immediate and full reinstatement to employee
Walter Pfaff to his former or substantially equivalent
employment, without prejudice to his seniority and other
rights and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by payment to
him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination
to the date of reinstatement less any net earnings during
such period, in accordance with the formula in F. W.
Woolworth, Company, 90 NLRB 289, together with interest
at 6 percent per annum computed in accordance with
the formula in Isis Plumbing & Heating Co., 138 NLRB
716.
(b) Notify the above-named employee, if presently serving
in the Armed Forces of the United States, to his right
to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military and
Service Act of 1948, as amended, after discharge from
the Armed Forces.
(c) Preserve and make available to the Board or its
agents upon request, for examination and copying, all payroll
records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and material to Respondent's compliance with the
provisions of this Order
(d) Post in conspicuous places at its terminal in Miami,
Florida, including all places where notices to employees
are customarily posted, copies of the notice attached hereto
as Appendix 26 Copies of said notice on forms provided
by the Regional Director for Region 12 of the National
Labor Relations Board shall, after being duly signed by
an authorized representative of the Respondent, be posted
by it immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter in such conspicuous
places Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced or
covered by any other material.
(e) Notify the Regional Director for Region 12, in writing,
within 20 days from the date of the receipt by the Respond-
" In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall , as provided in Section 102 48 of the said Rules and Regula-
tions, be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all
purposes in the event that the Board's Order is enforced by a judgment
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
TERMINAL TRANSPORT COMPANY, INC
ent of this Trial Examiner's Decision and Recommended
Order what steps the Respondent has taken to comply
therewith 27
It is further recommended that unless on or before 20
days from the date of the receipt of this Trial Examiner's
Decision and Recommended Order the Respondent notifies
the Regional Director in writing that it will comply with
the foregoing Recommendations, the National Labor Rela-
tions Board issue an order requiring the Respondent to
take the action aforesaid.
" In the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any manner discrimi-
nate against employees in reprisal for filing or process-
ing grievances pursuant to the terms of a collective-
bargaining agreement, or refusing to withdraw them
WE WILL NOT engage in like or related conduct
that interferes with, coerces, or restrains employees
in the exercise of their rights to self-organization, to
join or assist the Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities
687
for the purpose of collective bargaining or other mutual
aid or protection
WE WILL offer immediate reinstatement to employee
Walter Pfaff to his former or substantially equivalent
employment, without prejudice to his seniority and
other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may
have suffered by reason of the discrimination against
him with interest at 6 percent per annum
Dated By
TERMINAL TRANSPORT
COMPANY, INC
(Employer)
(Representative)
(Title)
NOTE. We will notify Walter Pfaff, if presently serving
in the Armed Forces of the United States, of his right
to full reinstatement upon application in accordance with
the Selective Service Act and Universal Military Training
and Service Act of 1948, as amended, after discharge from
the Armed Forces.
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
826, Federal Office Building, 51 S.W. First Avenue,
Miami, Florida 33130, Telephone 305-350-5391.