T.I.M.E.-DC, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1973

203 N.L.R.B. 1141 (N.L.R.B. 1973)

T.I.M.E.-DC, INC.
T.I.M.E.-DC, Inc. and Kenneth Smith
Local 294, International Brotherhood of Teamsters,
Chaufferus, Warehousemen and Helpers of America
and Kenneth Smith . Cases 3-CA-4869 and 3-
CB-1839
June 4, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On September 19, 1972, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, Respondent Company
filed exceptions and a supporting brief, and Respon-
dent Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent Local Union 294, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, its officers,
agents, and representatives, and the Respondent
Company, T.I.M.E.-DC, Inc., Albany, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Administrative Law Judge's
recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This is
an unfair labor practice case litigated pursuant to the provi-
sions of Section 10(b) of the National Labor Relations Act,
herein called the Act. 29 U.S.C. 160 (b). It was commenced
by a consolidated complaint issued on May 26, as amended
on June 22, 1972, by the General Counsel of the National
Labor Relations Board, herein called the Board, through
the Regional Director of Region 3 (Buffalo, New York). It
names as Respondents T.I.M.E.-DC, Inc., and Local 294,
1141
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America. That complaint is
based on separate charges filed on April 5, 1972, against
said T.I.M.E.-DC, Inc., and said Local 294, by Kenneth
Smith.
In substance said complaint alleges that said T.I.M.E.-
DC violated Section 8(a)(3) and (1), said Local 294 violated
Section 8(b)(1)(A) and (2), and such conduct by each Re-
spondent affects commerce within the meaning of Section
2(6) and (7) of the Act. Each Respondent has severally
answered admitting some allegations of the complaint as
amended but denying that it committed any unfair labor
practices.
Pursuant to due notice this case came on to be heard, and
was tried before me, at Albany, New York, on July 11 and
12, 1972. All parties were represented at and participated in
the trial, and had full opportunity to introduce evidence,
examine and cross-examine witnesses, submit briefs, and
offer oral arguments. Briefs have been received from the
General Counsel of the Board and each of the Respondents.
In the absence of opposition thereto, the General Counsel's
motion to correct transcript is hereby granted.
At the trial I excluded a decision of a board established
by the pertinent collective-bargaining agreement and of-
fered by Local 294. (See Local 294 EJ;h. 2.) At the close of
the hearing, when Local 294 requested that I reconsider this
ruling, I reserved decision on said request. Further reflec-
tion convinces me that said document is admissible. Ac-
cordingly, it is now received in evidence and will become
part of the record herein.
This case presents the following issues:
A. Whether Local 294: (1) engaged in conduct re-
straining or coercing employees contrary to the provisions
of Section 8(b)(1)(A) of the Act; (2) attempted to cause and
did cause Respondent Employer to fail and refuse to rein-
state Kenneth Smith for reasons proscribed by the Act;
(3) attempted to and did cause Respondent Employer to
give said Smith a lower seniority rating than he was entitled
to for reasons prohibited by the Act; and (4) attempted to
and did cause Respondent Employer to discharge said
Smith for reasons not permitted by the Act.
B. Whether Respondent Employer: (1) unlawfully
failed to reinstate Kenneth Smith; (2) unlawfully dis-
charged said Smith; and (3) unlawfully lowered his seniori-
ty for reasons proscribed by the Act.
Upon the entire record in this case, and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
T.I.M.E.-DC, Inc., herein called the Employer, a Dela-
ware corporation, is engaged in the business of providing
trucking services and related services. During the year 1971
it performed services valued in excess of $50,000, of which
in excess of $50,000 was derived from transporting goods
and materials between the various States of the United
States. I find that said Employer is an employer within the
meaning of Section 2(2) and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it
203 NLRB No. 174
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will effectuate the purposes of the Act to assert jurisdiction
over both Respondents in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 294 and Local 710, both locals of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, each is a labor orgainzation within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Genera! Counsel's Case
Kenneth Smith was hired by the employer , T.I.M.E.-DC,
Inc., herein called the Company , in 1969 as an over-the-
road driver to work out of its Chicago , Illinois , terminal. As
such he made no local deliveries . While employed there he
became a member of Local 710 of the Teamsters Union.
The Company has a collective -bargaining agreement "un-
der the Master Freight agreement."
In 1971 the Company changed its operations by requiring
more work out of terminals in Cleveland , Ohio , and Buffalo
and Albany , New York. Prior to this , Albany employed but
one over-the-road driver , Freddy Vermette . Chicago drivers
affected by this change were permitted to bid for jobs in
these terminals according to seniority. (See G .C. Exh. 2.
This exhibit states that Albany will require seven additional
drivers, but it was stipulated at the trial that eight was the
number "ultimately agreed" upon .) In December 1971,
Smith bid on an over -the-road job out of the Albany termi-
nal. Other Chicago drivers who bid on Albany jobs were
Latty , Greene , and Carter . All four were successful and
were required to report to Albany on January 17, 1972.
Ultimately , the Company hired more drivers for this termi-
nal, obtaining them from Respondent Local 294.
In December 1971, Smith told Anthony Pape, the
Company's terminal manager at Albany, that Smith would
report to Albany on January 17, 1972, and did not desire to
be "harrassed" by Local 294 when he did so . Pape answered
Smith that all would be well as long as Smith did the work
assigned to him and concluded by saying , "I will see you on
January 17th ."
On or about December 17, 1971, Smith injured his left
hand while driving one of the Company's trucks but thought
nothing of it. Then on December 23 he reported this to
Fmkbinder , the Chicago dispatcher , as the hand became
numb . The latter gave him a slip to see a doctor in Smith's
hometown in Missouri but insisted that Smith had "to see
the Company doctor when you come back ." This injury
caused Smith to remain out of work until February 23, 1972.
On or about January 31 , 1972, Alex Kearn, a business
agent for Local 710 in Chicago , called Smith . As a result
Smith wrote to Hanna , the Company's driver-supervisor in
Chicago, that Smith was not deceased , notwithstanding that
Western Union, through whom the Company sent Smith a
telegram , notified the company that Smith had died. This
telegram was addressed to Smith in LaGrange , Illinois, his
father's home, whereas Smith then lived in Kirksville, Mis-
souri . In fact Smith's father had died before said telegram
was transmitted.
On or about February 17, 1972, Smith telegraphed Pape
that the doctor would release Smith on February 23 and that
Smith would come to work at Albany on February 24. This
contained the same statements in a telephone call by Smith
to Pape on February 21 or 22. In this latter call Pape said,
"Fine, come on up."
At about 11:45 p.m. on February 23 Smith reported for
work at the Albany terminal. The dispatcher, Glen, told
Smith that, after speaking to Pape, he would get in touch
with Smith. On February 24, when Smith arrived at the
terminal, Pape informed Smith that he had been terminated
and was no longer employed by the Company, and that
Smith "would have to go to Local 294 and get things
straightened out." Continuing, Pape asserted that, because
Smith had not arrived "in 30 days," President Robilotto of
Local 294 "would not accept [Smith's] seniority on the Al-
bany board."
On February 25, 1972, Smith went to the office of Local
294 and, since Robilotto was out, spoke to Business Agent
Bentley. Among other things, Smith showed Bentley a
doctor's release . (See G.C. Exh. 3.) Bentley had it photostat-
ed. Then Bentley stated that he saw no reason why Smith
should not be placed on the seniority list. Soon Bentley
telephoned Pape and told Pape that Pape had never told
Bentley that Smith had been "off on an industrial injury."
Then Bentley telephoned Kearn of Local 710 in Chicago
and told Kearn that Smith would have to return to Chicago
and file his grievance there. Thereupon Smith and Latty,
who was with him, departed, and Latty telephoned to Clo-
ward, the Company's northeastern manager in Chicago,
that Smith had a doctor's release and that Bentley had no
objection to Smith being put on the seniority list. Shortly
thereafter Smith and Latty went to Pape's office where they
engaged in a four-way long distance call to Cloward in
Chicago. In it Smith stated, and Pape denied, that Pape had
told Smith to come to Albany. In addition Pape threatened
to quit if Smith "goes to work here." Finally, Cloward asked
Smith to return to Chicago "to work something out."
Accordingly, Smith went to Chicago on February 27.
Then, with Kearn, business agent for Local 710, Smith vis-
ited Cloward. After some discussion Cloward insisted that
Smith file a grievance. He did so and, on February 29, a
hearing was held thereon pursuant to the master freight
agreement. The decision of the joint state meeting, which
determined said grievance, reinstated Smith without com-
pensation. (See G.C. Exh. 4.) Kearn and Kelley, business
agents of Local 710, told Smith that his decision reinstated
him with full seniority. (Tr. p. 111.) Consequently, on March
2, 1972, Smith reported to Glen, the company dispatcher at
Albany. But Glen refused to do anything until he communi-
cated with Pape. After contacting Pape, Glen informed
Smith that Pape would not place Smith on the seniority list
"until [Pape] got a decision from Chicago." As a result,
Smith telephoned Kearn in Chicago that Smith was being
denied full seniority.
Although Smith then telephoned Pape at the latter's
home, Pape refused to talk to him while at home. Later that
day Pape, at the office, again told Smith that Smith would
not be restored to the seniority list until he got word from
Chicago because "Robilotto wouldn't accept your seniority
in [Local] 294." However, Pape promised to have this sen-
T.I.M.E.-DC, INC.
iority "straightened out" with Robilotto . Latter that af-
ternoon Pape informed Smith that Smith 's seniority had
been "straightened out" with Robilotto.
On March 3 Smith drove a truck on a run to Boston. On
returning to Albany he observed a posted seniority list as-
signing him a seniority date of March 2 , 1972. (See G.C.
Exh. 5 .) But his "road seniority date ," according to Smith,
is August 5, 1969 . Such "road seniority" date was given to
the three other drivers who bid for jobs at the Albany termi-
nal. (See G .C. Exh . 5.) Notwithstanding that Smith desired
to protest his seniority date to Robilotto or Bentley, he was
unable to reach either of them.
On March 5 , following the regular membership meeting
of Local 294 , another meeting was held in Robilotto 's office
to elect a road steward . Among others , all 10 road drivers
from Albany attended this latter meeting . Robilotto told
those present that Local 294 men came ahead of Local 710
men. Although Latty received 5 out of 9 votes (one ballot
being left blank), Robilotto characterized the election as
invalid because everyone eligible did not vote . Thereupon
Robilotto declared that Vermette , a member of Local 294,
"had the job ." This was posted on the bulletin Board. (See
G.C. Exh . 8). Then Smith discussed his seniority with Robi-
lotto . But the latter declined to do anything about it unless
Smith established that he "drew workmen 's compensation"
for the injury to his hand.
Then Smith asked his attorney in Chicago , Goodman, to
transmit documents to him indicating that Smith had filed
a claim for such injury . These were sent to him (see G.C.
Exh.6), and he exhibited them to Bentley of Local 294 on
March 8 . Bentley took photostatic copies of both docu-
ments.
On March 12, 1972, Smith spoke to Road Steward Ver-
mette . The latter stated that Smith 's "full seniority" could
be obtained only if Smith "went in front of the Internation-
al." As a result Smith filed a grievance with Local 710 in
Chicago and it filed the same with the International on
March 15. It was returned to Smith with instructions to file
it with Local 294 . So he filed it with Local 294 . (See Resp.
Union's Exh. 1.)
On or about March 30 Smith complained to Pape that
Smith 's seniority was too low. However , Pape replied that
only Robilotto could change it. Then Smith spoke to Stew-
ard Vermette about his seniority.
While driving a company truck on March 30, 1972, Smith
encountered difficulty with the transmission . When he
called the Albany dispatcher about it, Smith informed the
former that the truck would be serviced by Green 's Garage.
The dispatcher approved of this action . When a employee
of Green arrived on the scene he told Smith to change
tractors so that Smith's tractor could be worked on. There-
upon , Smith called said dispatcher and informed him of the
switch in tractors . Smith also completed a report on the
incident and gave it to the Company . (See G .C. Exh. 9.)
On April 3 ,1972, Smith called the Albany dispatcher to
ascertain his seniority . During this conversation , Pape got
on the phone and informed Smith that the latter had been
terminated and no longer worked for the Company "be-
cause of the [transmission ] deal." On the same day Smith
received a letter notifying him he had been "terminated for
dishonesty" on March 30 , 1972, since there was "absolutely
1143
nothing wrong with" the tractor Smith claimed to be defec-
tive. (See G.C. Exh. 10.)
The next day Smith asked Union Steward Vermette
where to file a grievance about his discharge . Vermette sug-
gested that it be filed in Chicago , rather than in Albany,
because Smith "would probably get beat here ." So Smith
called Kearn of Local 710 in Chicago, only to learn that the
grievance could not be filed there . When Smith reported this
to Vermette on April 4, the latter promised to give employee
Carter a grievance form to bring to Smith . But when Smith
asked Carter for it on April 5 the latter replied that he had
none . The same day Smith asked for and received such form
at the office of Local 294.
In the evening of April 5, when Smith asked Vermette to
sign the grievance which Smith had executed , Vermette re-
plied that Robilotto had directed him not to sign it or to get
involved in any way because it was too hot to handle. Ver-
mette added that Local 294 would not represent Smith in
any way. On April 11 Smith presented to Local 294 cards
transferring his membership from Local 710 to Local 294
and a grievance form. (See G .C. Exh. 11 and 12 .) But Ver-
mette refused to sign the same because Smith was no longer
employed by the Company and also was not a member of
Local 294. In fact Vermette offered to bet Smith $ 100 that
Smith "did not get back in." Nevertheless in May 1972, the
Local 294 grievance committee accepted Smith 's grievance
for him , and a hearing thereon was held on May 9, 1972,
before said committee . At this meeting Bentley said he
wanted Smith reinstated with full seniority and backpay.
Thereafter Smith was reinstated by the Company on May
10.
As stated above , Smith returned to work on May 10.
When Pape checked Smith 's licenses , it turned out that one
of them had expired . However, only the Company could
obtain a renewal of this permit , but Pape did not do so. This
meant Smith could operate only "singles ." When Smith
asked Pape about the former 's seniority , Pape referred him
to Local 294 for the answer . But Pape added that Smith
"would stay in the number 10 position because that was the
decision from Nick Robilotto." Later, Smith called Bentley
of Local 294, who told Smith that Smith would be fourth on
the seniority roster, which Bentley described as Smith's
"regular seniority."
On June 19 , 1972, Lane, a business agent for Local 294,
told Smith that Local 294 had filed a grievance for Smith
as to his seniority , and that it would be heard the next day.
At said hearing Pape opposed Smith's contentions. It was
decided at the hearing that Smith would remain number 10
"as to road seniority" but would retain his 1969 seniority as
to vacations , holidays, and layoffs.
The foregoing is a summary of Smith 's direct examina-
tion . On cross-examination he contended that his perma-
nent address was at 1316 East Patterson , Kirksville,
Missouri, but that he could be reached by phone at three
other addresses in Chicago . According to Smith, it was usu-
al for truckdrivers to have more than one address. He also
admitted that he recieved a warning from the company,
dated July 14, 1971, that it was having trouble reaching him
"for [his ] call to work ." (See Resp . Emp. Exh. 1.)
Anthony Pape is the Company's terminal manager at
Albany. An abridgment of his testimony, as a witness for
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel, follows. When the Chicago drivers
came to Albany their seniority was determined "as they
were originally in Chicago," i.e., they were granted full road
seniority for their length of road service with the Company
and their seniority "would be dovetailed with the seniority
of the Albany drivers."
On February 17, 1972, Pape received a telegram from
Smith that Smith would report to work at Albany on Febru-
ary 24. Smith also on February 22 telephoned Pape to the
same effect, but Pape answered that there was no job for
Smith. Shortly after February 17 Pape inquired of Robilotto
of Local 294 as to "where [Smith] would fit, if he was to
come to Albany." Robilotto took the position that, as Smith
did not come to work "within the allotted time ," other men
were placed in the job and none was available for Smith.
When Smith came in to work on,-February 24, Pape ad-
vised him that Smith "didn 't have a job" and instructed
Smith to see the business agent of Local 294. After Smith
was reinstated by the joint grievance committee 's decision
in Chicago , Pape again spoke to Robilotto, telling the latter
that Smith should be placed on the seniority list. Robilotto
at first objected to Smith 's going to work at all . In fact,
Robilotto had previously sent a telegram to the company in
Chicago that Local 294 "would not accept Smith's transfer."
(See G.C. Exh. 14.) Robilotto finally agreed to Smith's
working at Albany and to have Smith 's name placed on the
seniority board. (See G.C. Exh. 14.)
When Smith complained to Pape that Smith had been
given number 10 on the seniority list, Pape advised him that
such position was decided upon solely by Local 294 and that
Smith would have to present his complaint to that Union.
On April 3, 1972, Pape discharged Smith for "faking a
breakdown to collect money." (See G.C. Exh. 10 for the
written notice of termination .) However, Pape did not dis-
cuss with Smith said breakdown or anything which hap-
pened on that trip before firing Smith.
Richard Pastors , the Company's northern division man-
ager of labor relations, also was called as a witness by the
General Counsel. A conspectus of his testimony follows.
Pastors prepared and executed General Counsel's Exhibit
14. In addition he received from Robilotto a telegram dated
February 28, 1972, objecting to Smith's "transfer and sen-
iority to your Albany terminal due to the fact that he was
to report for work at the terminal on January 17, and he
failed to do so . . . and made no attempt to inform this local
of any reason for this delay on his part. Under these circum-
stances we cannot accept him or accord him seniority .. .
at the Albany terminal ." (See G.C. Exh. 15.)
B. Respondent Company's Case
Wayne Hanna, a driver-supervisor for the Company's
over-the-road drivers, testified substantially as follows. Ac-
cording to the employer's Chicago unavailable list (see
Resp. Emp. Exh. 2), which is a list of employees who call
in to state they are not available for work, Smith signed off
sick (but not for "any injury involved") on December 19,
1971, a Sunday, but "probably on the preceding Friday";
that Smith also again signed off (at a date not mentioned
by Hanna) without indicating any "illness or injury in-
volved." According to this list Smith called in December 20
that he was available at 6 p.m. The sheet also, according to
Hanna, discloses that Smith was available on December 21
and 22 until 10 p.m., when he called in again and "signed
off sick again . . . non-occupational. . . ." In addition the
list carries the notation that the Company's and personal
doctor's release was necessary before Smith could again be
dispatched on a job. The list further indicates that Smith
continued to be out sick until December 31, 1971, the last
date thereon.
However, on December 23, 1971, Hanna was present
when Smith personally informed dispatcher Finkbinder
that Smith was injured on December 17. On this ocassion
Finkbinder handed Smith a slip authorizing him to be
checked for the injury by the company doctor. The next day
Hanna ascertained that Smith did not visit the company
doctor.
About January 19, 1971, Pape called Hanna to learn the
whereabouts of Smith because Smith had not yet shown up
to work at Albany. Consequently, Hanna consulted Pastors,
the Company's northern division manager of labor rela-
tions, concerning Smith's absence and Pape's concern about
it. Pastors told him to wait a couple more days. Then on
January 24 Hanna, after consulting with Pastors, sent a
telegram to Smith asking the latter as to his availability for
work and stating that Smith would be dropped "from the
seniority list" if he "fail[ed] to contact [Hanna] within 72
hours of notice of this telegram." (See Resp. Emp. Exh. 3.)
This was directed to Smith at 9800 Joliet Road, LaGrange,
Illinois , because "that is what his records showed as his
permanent address" and "his last known address." A copy
thereof was sent to Local 710 in Chicago and to Local 294
in Albany. A few days later "we received another telegram
saying that [Smith] was deceased." (See Resp. Emp. Exh. 4.)
In late January or early February 1972, Smith called Han-
na to say he "heard from somebody" about the foregoing
telegram . Then on February 22 Hanna received from Smith
a telegram dated Febraury 19 stating that Kearn of Local
710 had told Smith that Smith "was deceased supposedly."
It continues: "A telegram was supposedly sent to me asking
when I would be able to return to work . . . I never received
[said] telegram ... "
According to Hanna, whenever a driver had a change of
address it was incumbent upon him to notify the Company
of it. But Smith "never indicated a change of address to
Kirksville, Missouri." However, it is not unusual for the
Chicago dnvers to have more than one address. Further, the
Company's records showed a La Grange, Illinois, address
for Smith, and Hanna was not aware that Smith's address
was Kirksville, Missouri.
Richard Pastors, who testified for the General Counsel,
was a witness for the company also. A summary of his
testimony follows.
About January 18, 1972, Hanna called to the attention of
Pastors that Smith had not yet reported to the Albany termi-
nal. Pastors asked Hanna to wait a couple of days. Then, a
couple of days later, when Hanna again told him that Smith
had not arrived at the Albany terminal, Pastors instructed
Hanna to send Smith a 72-hour notice by telegram. This was
done. (See Resp. Co. Exh. 3.) Sometime later, when Pape
informed Pastors that Smith had telegraphed that he would
be available to work on February 24, Pastors insisted to
T.I.M.E.-DC, INC.
Pape that Smith was out of a job at Albany because Smith
did not respond to the telegram in evidence as Company's
Exhibit 3.
Not long after that Pastors sent Smith a telegram on
February 22 "reaffirming our position on January 21st,
1972." That position was that since Smith "failed to con-
form to the provisions of the telegram" of January 24 (see
Co. Exh . 3), "therefore we had no alternative" but to deny
him a job at Albany . (See Co . Exh. 6 .) A copy was also sent
to Local 710 in Chicago.
On February 28 Business Agent Kearn of Local 710 in
Chicago asked to meet with Pastors about Smith 's "being
dropped from the seniority list." That meeting was held the
same day . Pastors refused to change his position as outlined
above . Local 710 then appealed Pastors' decision to the
joint local greivance committee . (See Co . Exh. 7 .) That com-
mittee heard the parties on February 29. Its decision reins-
tated Smith without backpay , but ordered the Company to
make health and welfare benefits and pension benefits lost
due to dispute . (See Co . Exh. 8 ; an identical document is
also G .C. Exh . 4). As a result the Company paid Smith the
expense of "moving his personal automobile to Albany."
After Smith went to Albany, Pape , following a discussion
with Pastors , told Smith that Smith was placed at the bot-
tom of the seniority board. Seniority is determined pursuant
to section 5, of Article 43, of the national master freight
agreement. (See Emp . Exh. 9 .) Smith 's seniority at the Alba-
ny terminal was taken up at a meeting attended by Pastors,
Pape , and Cloward of the Company , and Robilotto of Local
294. At that meeting the Company there contended that
Smith belonged at the bottom of the list inasmuch as he had
"failed to respond to the recall" to the Albany job. Howev-
er, the Company 's said contention was arrived at "without
any consultation or communication with Mr. Robilotto."
Prior to the decision in Chicago reinstating Smith the
company's contention was "that he didn't work here" in
Albany because he "didn't show up on the 17th of January"
and because he did not reply to the "telegram sent to him."
After that decision the Company was of the opinion that
Smith 's seniority belonged at the bottom of the list because
said Employer's Exhibit 9 provided that "terminal seniority
as measured by length of service at such terminal shall
prevail . . . excepting [where the employee and union] agree
to the contrary ." Thus according to Pastors , Smith's "com-
pany seniority" was broken when Smith "didn't show up on
the 17th of January ," and so he went to the bottom of the
list. However, Pastors conceded that Smith 's seniority "as to
fringet" continued uninterrupted , notwithstanding said fail-
ure to report on January 17.
Smith objected to being last on the seniority list and filed
a grievance thereon ; and a hearing was held thereon on
June 23, 1972. The decision on said grievance (which I
excluded at the trial but have now admitted) was made by
a joint Company-Local 294 tribunal. That tribunal or com-
mittee established Smith's seniority as of March 2, 1972, at
the Albany terminal for "trip seniority , layoffs , etc.," and as
of September 5, 1969 , for "benefits , such as vacations, holi-
days , health and welfare , pensions, etc."
On cross-examination Pastors asserted that when the Chi-
cago drivers were transferred to Albany there was no ques-
tion that they "would carry their Company seniority to
1145
whatever location they went , including Albany, for all pur-
poses," and that when Smith was transferred to Albany he
had a seniority date "back to 1969" when he carried with
him to Albany. Further, once seniority has been acquired it
cannot be broken or lost except under circumstances delin-
eated in the collective -bargaining agreement . (See Emp.
Exh. 9 , articles 42 and 43, and G.C. Exh. 16 for the contrac-
tual provisions in questions .) Pastors also on cross-examina-
tion testified that Robilotto of Local 294 on about March
1 or 2, 1972, did not feel that Smith was entitled to work at
the Albany terminal.
Finally, Pastors admitted that he sent a telegram to Smith
at Kirksville , Missouri , on February 22, 1972 (see G.C. Exh.
6), but only because Smith had given such an address when
he telegraphed Hanna that he, Smith , "was not dead."
The Company's Albany terminal manager, Anthony
Pape , also testified for it . A synopsis of his testimony is here
set forth . In December 1971, Smith dropped in to talk to
Pape in Albany. Among other things , Smith said he would
be Pape's problem child . But Pape assured him "we won't
have no problems ." Then on January 17, 1972, Smith was
due to arrive in Albany but did not . Consequently, Pape
called Cloward, the company regional manager in Chicago,
and informed him of Smith 's nonarrival . Thereafter, Pape,
for about a week , daily informed Chicago that Smith had
not arrived.
On January 24, 1972 , Hanna sent Smith a telegram. (See
Co. Exh. 3.) Pape took part in discussions which culminated
in transmitting said telegram . And, on February 11, Pape
"closed out Smith 's employment folder at [the Albany] ter-
minal." (See Emp . Exh. 12.) However, on February 17 Pape
received a telegram from Smith informing Pape that Smith
would "be released from doctor on February 23 and will
report for work February 24 in Albany." ( See Emp. Exh.
13.) Upon receiving it Pape notified Pastors and Cloward of
its contents . Then on February 22 Pastors sent Pape a copy
of a telegram previously sent to Smith notifying Smith he
had been "dropped from the seniority list" for "failing to
abide by our instructions ." (See Co. Exh. 14.)
On or about February 21 Smith asked Pape about coming
to work but Pape answered there was nothing for Smith in
Albany. Nevertheless , Smith insisted "he was coming up
anyhow." Towards midnight of February 23 Smith came to
the Albany terminal and sought work from dispatcher Mile-
sky, but Pape advised Milesky that "our position had not
changed" that there was no work for Smith at that terminal.
However, about 2 a .m. on February 23 Smith telephoned
Pape at the latter 's home for work, but Pape told him not
to bother Pape at home.
On February 24 Smith, accompanied by driver Latty,
asked Pape at the terminal "for his [Smith's] job." When
Pape replied there was no job because Smith did not show
upon January 17, Smith explained that he was "on compen-
sation ." This caused Pape to remark it was the first time he
heard of anything about compensation . Then Smith and
Latty departed.
On February 25, when Smith and Latty came in to see
Pape , the latter had a phone talk with Cloward in Chicago
with Smith and Latty listening in on separate extensions.
Latty "appeared to do the talking for Smith ," seeking to
have Smith put to work. Cloward maintained "there was no
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job" for Smith because Smith "did not show up on January
17th." Then Smith and Latty left.
Up to this date Pape testified that he had not discussed
Smith's status at the Albany terminal with a representative
of Local 294. However, in an affidavit given to the General
Counsel, Pape stated that upon receiving the decision of the
Chicago tribunal he contacted Robilotto of Local 294 and
told him that Smith would have to be put on the seniority
list "pursuant to the Chicago decision"; and that Robilotto
had telegraphed the Company in Chicago that Local 294
would not accept Smith "as a transfer and wouldn't grant
him seniority at the Albany terminal because Smith had not
informed the Local of his injury or unavailability." (See
G.C. Exh. 13, para. 10.)
Sometime during February 25 Pape spoke to Local 294
Business Agent Bentley about Smith. Pape gave Bentley the
Company's position that no job existed for Smith because
he had not reported for work on January 17.
Following a decision by a joint employer-union tribunal
in Chicago, Pape received a telephone call from Pastors to
reinstate Smith but to place Smith at the bottom of the
seniority list. Later, on March 2 or 3, 1972, Smith reported
to work in Albany. Shortly thereafter Pape posted such a list
disclosing that Smith was number 10 thereon with a seniori-
ty date of March 2, 1972. (See G.C. Exh. 5.)
On April 3, 1972, after investigating the facts, Pape dis-
charged Smith "for dishonesty on March 30, 1972, [in that]
you called the Albany dispatcher and told him that tractor
2975 [was disabled but] Greene's garage found absolutely
nothing wrong with it." (See G.C. Exh. 10.) Greene's garage
invoice to the Company indicates "check transmission
found it O.K." (See Co. Exh. 15.) When Smith objected to
being discharged, Pape suggested he "should take it up with
Local 294." Thereafter, on April 10, Local 294 did file a
grievance protesting "the unjust discharge of Smith." (See
Co. Exh. 16.) After a hearing was held on said grievance the
tribunal on May 16, 1972, ordered Smith reinstated with
backpay. (See Co. Exh. 17.) Such hearing was conducted
pursuant to the applicable collective-bargaining agreement,
the pertinent provisions of which are recited in Company
Exhibit 18.
Smith returned to work following the foregoing decision
reinstating him, but he told Pape that Smith's seniority sta-
tus was incorrect. Pape orally advised Smith to see Local
294 about filing a grievance over it, and also wrote to him
to the same effect. (See Co. Exh. 19, which was rejected at
the trial but which, on further reflection, I rule is admissible.
It is hereby received in evidence.) Thereafter, a grievance
was filed by Smith and a hearing thereon was held on June
20. The decision on said grievance was that Smith's seniority
for "trips, layoffs, etc., at the terminal level is established as
March 2, 1972," and that "for purposes of benefits, such as
vacations, holidays, health and welfare, pensions, etc., the
Company seniority date of September 5, 1969, shall be re-
tained by Smith." (See Local 294 Exh. 2, originally rejected
at the trial but now admitted in evidence.) At the trial before
me it was stipulated that, if Smith prevailed, his "proper
seniority position should be five rather than four.
The Company also called Smith as a witness for it. In
substance he testified as follows. Smith lived at 9800 Jolliett
Road, Chicago, until December 1969. His father, Kenneth
C. Smith, and his mother also lived there. Then he moved
from Kirksville, Missouri, back to 1316 East Patterson for
14 months because "it was a layoff." After this he returned
to 9800 Jolliet Road for about a couple weeks and from
there went to the Skylark Motel. From Skylark he moved
to the Southwest Inn. He reported each of these addresses
to the company dispatcher "because they had to get hold of
me by phone to go out"
But his wife and children still live in Kirksville, Missouri,
and he was residing there in December 1971. In December
1971, he was in said Kirksville, but "for work purposes [the
Company in December 19711, called 9800 Jolliet Road
when they called." However, he also testified that in De-
cember the Company called him in his "room in Chicago"
at the Southwest Motel.
C. Respondent Union
Local 294s, Case
Charles Bentley is a business agent for Local 294. On
February 25, 1972, Smith, accompanied by driver Latty,
asked Bentley to try to get Smith's job back, as Smith had
been terminated. Upon investigating the situation Bentley
ascertained that Smith did not show up at Albany on Janu-
ary 17, 1972, the "change of operations date." When Bent-
ley talked to Pape about it, Pape said "the man didn't show
up so we have no job for him." So Bentley replied to Pape
that Smith claimed he was on compensation and this ac-
counted for Smith's not showing up on January 17. But
Pape answered that neither he nor the Company had any
record that Smith was on compensation. Bentley was quite
positive in his testimony that he never told Smith or Pape
that Bentley saw no reason why Smith should not be on the
seniority list.
Then in the presence of Smith and Latty, Bentley called
Local 710 in Chicago. Among other things Keam of Local
294 told Bentley to remind Smith of a hearing in Chicago
on February 28. Bentley did this.
On March 5, 1972, Local 294 held a regular monthly
meeting . When it ended, Smith spoke to Robilotto in the
presence of Bentley about Smith's seniority. Robilotto told
Smith that if proof was produced that Smith was on com-
pensation Robilotto would "reopen the matter . . . and see
what we can do." Smith promised to bring such proof. In
addition Robilotto stated that Local 294 and the Company
did not "put [Smith] on the rightful seniority" because
Smith had notified neither Local 294 nor the Company that
he would not report to work on January 17. Smith countered
that since he was on compensation he felt he did not need
to report until he was able to go to work. Bentley has never
seen any proof that Smith was drawing compensation.
However, he received a copy of a letter from Smith's lawyer
that Smith had filed a claim for compensation.
Bentley handled Smith's discharge grievance in May
1972. The hearing thereon resulted in a decision favorable
to Smith. Later Smith thanked Bentley for representing him
on this grievance and commented that "it restored his
[Smith's] faith in Local 294." Continuing, Smith asked Bent-
ley to restore Smith to Smith's proper seniority. Bentley
asked Smith to discuss such seniority with him at the office
of Local 294 the next day, but Smith never kept that ap-
T.I.M.E.-DC, INC.
pointment. But Bentley testified that he did not say to Smith
that Smith was entitled to be fourth, rather than tenth, on
the seniority list.
Howard Campbell, a local driver for the Company at
Albany, and once a steward for such drivers, in substance
gave the following testimony. He became acting steward for
the over-the-road drivers when the change in operations
took place on January 17, and continued as such until
March 5, 1972. As such steward in February he distributed
applications to transfer from Local 710 to Local 294, to
Chicago transferees Latty, Green, and Carter. These three
were eventually so transferred.
On March 5, such a transfer card was given to Smith by
Campbell. On that date Campbell introduced the four Chi-
cago transferees to Robilotto. But Campbell did not hear
Robilotto tell these men that Local 294 men came first and
that the Chicago men came second.
On March 5, Latty's request, which had been made the
previous month, an election was conducted to select a stew-
ard for the over-the-road drivers. Although 10 were eligible
to vote, only 9 voted, of whom 5 were for Latty, 4 for
Vermette; 1 ballot was blank. But further examination dis-
closed that one of the ballots in the Latty pile was for "Fat
Freddy," who, in fact was Vermette. So it was counted for
Vermette. Then the person who cast the blank vote stated
he was for Vermette, so that Vermette won by a 6-to-4
count.
Smith sought to transfer to Local 294 from Local 710, but
Local 710 prevented this because Smith was behind in pay-
ing his dues to it. See article 18 of Local 294 Exhibit 3 for
the applicable provisions governing transfers of union mem-
bership from one local to another local.
The steward for the Albany terminal's over-the-road driv-
ers is Joseph Frederick Vermette. The substance of his testi-
mony ensues . Although Smith called him about filing a
grievance over his discharge in Albany, at no time did Ver-
mette state to him that Vermette was told not to handle it
because it was "too hot," or that Local 294 would not repre-
sent him. In fact Local 294 did represent him and succeeded
in getting Smith back to work.
However, Vermette told Smith that the former was un-
able to sign Smith 's grievance because Smith "was terminat-
ed from the company at the time," i.e., on April 11, 1972.
So Smith stated "he was going to Local 710 anyway." But
Vermette denies that he bet Smith would not get back his
job. Nevertheless, Vermette did testify that "I'll bet you
$100 if they make this [charge of dishonesty] stick, you'll
never get a job no place, and that's an awful name to be
hung on anybody."
D. General Counsel's Rebuttal Evidence
Hugh Latty was a Chicago driver who transferred to the
Company's Albany terminal. On January 14, 1972, Hanna,
a Chicago official of the Company, told Latty that "Smith
was off sick." Then on February 21, Pape, its Albany termi-
nal manager, mentioned to Latty that Pape had received a
telegram from Smith that Smith "wants to come here .. .
that's fine, he's got a job and everything is fine; he's got a
good safety record." However, when Pape declared that
Smith went to the bottom of the seniority roster, Latty
1147
countered by saying he "understood this man goes in fourth
position."
Smith was recalled and testified substantially as set forth
hereafter. Around the end of January 1972, having learned
that the Company considered him to be deceased, Smith
called Hanna to affirm that Smith was still alive. In this
conversation Smith asked about receiving workmen's com-
pensation but Hanna stated "they were not going to pay any
workmen's compensation."
Further, Smith testified that the Company obtained per-
mits for him to operate 40-foot tandems in New York and
in Ohio. These were issued on 4/20/71 and 11/16/70, and
expired on 5/8/72 and 11/16/71, respectively. (See G.C.
Exh. 17 and 18. They both disclose that Smith's address is
1316 E. Patterson, Kirksville, Missouri.)
At no time did Smith tell Pape he would be Pape's prob-
lem child, and on February 22, when Pape talked to him,
Pape did not tell Smith not to come to Albany.
D. Concluding Findings and Discussion
In arriving at the findings recited below I have credited
Smith and Latty, both witnesses for the General Counsel,
and have not credited the witnesses for either Respondent
to the extent that the testimony of Respondent's witnesses
is inconsistent with that of Smith and Latty.
In early December 1971, the Company's change of opera-
tions resulted in awarding four of its Chicago over-the-road
drivers a transfer to its Albany, New York, terminal, with
their seniority to be dovetailed with that of the sole Albany
driver, Fred Vermette. The Chicago drivers so transferred
were Latty, Greene, Carter, and Smith. Latty, Greene and
Carter became the top three in seniority, Vermette was
fourth, and Smith should have been fifth.
Said Chicago drivers were scheduled to start work in
Albany on January 17, 1971. Latty and Greene reported on
that date and Carter obtained permission to report later.
However, due to an injury to his hand on December 17,
Smith signed off sick, and on December 23 reported said
injury to Finkbinder, the Company's Chicago dispatcher.
Thereupon, Smith went to his home in Kirksville, Missouri.
As Smith's injury kept him disabled until February 23,
1972, he did not report to work on January 17. This caused
the Company to telegraph Smith on January 21 to inform
it within 72 hours of his intentions or it would "drop you
from the seniority list." However, it was addressed to Smith
at 9800 Jolliet Road, LaGrange, Illinois. The Company re-
ceived a reply from the telegraph company that the addres-
see was dead. Instead of taking steps to ascertain whether
the "addressee" was in fact deceased, as the telegram was
directed to Smith's father's home, the Employer did nothing
and made no effort to reach Smith in Missouri. Thus, the
Employer, knowing that Smith's family remained in Kirks-
ville, Missouri, did not even express sympathy to Smith's
wife. It is also significant that no one, whether a relative or
not, informed the Company that Smith had died, and that
the Company did not notify the alleged widow of Smith that
she was entitled to benefits as a result of his supposed de-
cease. Failure to try to reach Smith or his wife at Kirksville,
especially since no one from Smith's family notified the
Company that he had passed away, displays an attitude
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicative of a desire to eliminate Smith from the
Company's employ.
It is understandable why the Company sought to remove
Smith from its payroll. This is because Respondent's Com-
pany had hired members of Local 294 in Albany and Local
294 wanted these new hires to attain seniority, if possible,
over the Chicago transferees . This attitude of Local 294 was
communicated to the Company which acquiesced in it. It
was also made known to the Chicago drivers when Robilot-
to told them that Local 294 drivers came first and that the
Chicago transferees came second.
Hence, I find that Local 294 sought to prefer the Albany
drivers hired after January 17, 1972, over Smith, that such
a position demonstrates a discriminatory animus against
Smith, and that the Company had acquiesced in this ani-
mus. It follows, and I find , that the subsequent treatment of
Smith by the Company and Local 294, except the espousal
of Smith 's grievance by Local 294 over his discharge in
April 1972, was motivated by this discriminatory hostility
towards Smith . This is further attested by the fact that both
Local 294 and the employer relied on Smith's failure to
appear at Albany on January 17 as causing him to lose
seniority notwithstanding that no provisions in the collec-
tive-bargaining contract destroyed or otherwise affected
seniority for this reason. See section A(1) of article 43 of said
contract whereby "Seniority shall be broken only by dis-
charge, voluntary quit, or more than a three (3) year layoff."
(Emp. Exh. 9.)
That Local 294 was opposed to Smith because he was not
a Local 294 member is patent from the fact, which I find,
that it opposed him at first from being hired , giving as a
reason that he had not reported on January 17. I find that
this is a pretext to cover up the real reason , i.e., it wanted
to make sure that Local 294 members hired after January
17, 1972, obtained seniority antedating Smith 's, since Smith
had not yet at that time transferred his union membership
from Chicago's Local 710 to Albany's Local 294.
The next fact of importance is that Smith filed a grievance
when the Company refused to take him back at its Albany
terminal on February 24. This grievance was decided in his
favor in the following words : "Reinstate-no compensa-
tion. Company to effect continuous coverage health, wel-
fare, and pension by making all contributions to the funds
not made because of this dispute ." While not couched in
words of art, I find that the reasonable import of the fore-
going language not only restored Smith to his job but also
reestablished all rights appurtenant to that job, including
seniority. Indeed Local 710 interpreted that decision to
mean that it reinstated Smith with full seniority . I credit
Smith that Keam and Kelley, business agents of Local 710
in Chicago, both told him that said decision awarded him
his job with full seniority. Hence, I find that Smith was
entitled to his job at the Company's Albany terminal with
number 5 seniority dating back to the day he first started
to work in the Chicago terminal in 1969. The refusal of the
Company to grant him such seniority resulted from the
insistence of Local 294 that Smith 's seniority commence on
March 2, 1972, when he first started to work at the Albany
terminal, and I so find.
Then on March 5, following the regular membership
meeting of Local 294, Smith requested Robilotto to consider
the question of Smith's seniority. But Robilotto refused to
look in the matter unless Smith proved that Smith drew
compensation for the injury to Smith's hand. I find that this
insistence by Robilotto demonstrates that Robilotto, as an
officer of Local 294, was discriminating against Smith be-
cause the applicable provisions of the contract do affect or
destroy seniority while an employee is out on workmen's
compensation. In fact, an employee retains seniority while
out of work and such seniority is "broken only by discharge,
voluntary quit, or more than a three (3) year layoff." (See
section A(1) of article 43 in Co. Exh. 9.) Hence, I find that
this article 43 preserved Smith's seniority while he was out
on sick leave, regardless of whether such leave was caused
by a compensable injury, and that refusing to consider
Smith's request unless he showed a compensable injury
discloses an antagonism to Smith by Local 294 because his
position threatened the seniority of other Local 294 drivers
other than Vermette.
Further, I find, crediting Smith, that when Smith protest-
ed to Albany terminal manager Pape that Smith's seniority
was too low, Pape replied that only Robilotto could change
it. This indicates, and I find, that Smith's seniority was
controlled by Local 294, that it caused or at least attempted
to cause the Company to place Smith at the bottom of the
seniority board as demanded by Local 294, and that the
Company yielded to such claim by the Union.
On April 3, 1972, Albany terminal manager Pape dis-
charged Smith for alleged dishonesty in connection with
transmission trouble which Smith encountered while driv-
ing a company vehicle. I expressly find that Pape terminated
Smith without offering Smith an opportunity to defend him-
self or otherwise explain or give his version of this incident
and without otherwise seeking to ascertain the facts. This
action discloses , and I find, that Pape did not conduct a fair
and objective investigation of this incident. And I further
find that failing to conduct a fair investigation of an
employee's alleged misconduct is evidence of a discrimina-
tory intent. Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059.
When Smith on April 4 endeavored to induce Local 294
steward Vermette to file a grievance over this discharge,
Vermette refused to do so but told Smith to file it in Chica-
go. Patently, this attitude by Vermette reflects the antago-
nism of Local 294 towards Smith, and I so find. Crediting
Smith, I also find that Vermette told Smith that Robilotto
had described this grievance as "too hot to handle." This,
too, reveals that Local 294 was opposed to the best interests
of Smith.
While it is true that Local 294 did ultimately represent
Smith in prosecuting the foregoing grievance, it is equally
true, and I find, that such representation was extended to
him only after Smith had filed a charge against it on April
5, 1972. (See G.C. Exh. 1(c).) And I further find that by
representing Smith, Local 294 was not prejudicing the sen-
iority of any of its members as the grievance attacked only
Smith's discharge and did not concern his seniority stand-
ing. Hence , I find that by taking up Smith's cause on this
issue Local 294 in no way relented or abated its discrimina-
tory attitude in relegating Smith to the bottom of the Alba-
ny seniority list.
On the foregoing grievance Smith prevailed and was
reinstated on May 10, 1972, with backpay "for all trips
T.I.M.E.-DC, INC.
made by the next junior man to him from April 18, 1972,
to May 9, 1972." (See Co. Exh. 17.)
Shortly after returning to work on May 10, 1972, Smith
sought to ascertain his seniority from terminal manager
Pape. Although Pape told him that Robilotto had the an-
swer, Pape volunteered the information that Smith would
remain in the No. 10 spot because that had been decided by
Robilotto. Patently, this reveals, and I find, that the Compa-
ny still acquiesced in whatever position Local 294 took re-
garding Smith's seniority and that Local 294 specified that
Smith should continue in the last or No. 10 place.
For some unexplained reason Lane, a business agent for
Local 294, on June 19 filed a grievance under the contract
for Smith contesting the latter's seniority. It may be that
Bentley of Local 294 was behind this filing as Bentley short-
ly before this had informed Smith that Smith would not be
last on the seniority board. I credit Smith that Bentley so
told him. Said grievance was decided on June 20 as follows:
1. The terminal seniority date of Kenneth J. Smith is
established as March 2, 1972, the date of his first run
from the Albany, New York terminal. This date will be
used for determining trip seniority, layoffs, etc., at the
terminal level.
2. For purposes of benefits , such as vacations, holi-
days , health and welfare , pensions , etc., the Company
seniority date of September 5, 1969 , shall be retained
by Kenneth J. Smith . (See Local 294 Exhibit 2)
Notwithstanding said decision placing Smith 's seniority
at Albany as No. 10, I find that it is not binding upon me
under Collyer Insulated Wire, 192 NLRB 837. Accordingly,
I have considered the issue before me without giving any
weight to the aforesaid grievance decision.
It is my opinion , and I rule, that Collyer Insulated Wire,
supra, does not govern the instant case. At least two reasons
point to this conclusion.
1. The Chicago decision disposing of Smith's grievance
specifically reinstated him to his job without loss of seniori-
ty. While said decision does not expressly mention that he
retained his seniority, nevertheless , it does put him back to
work in accordance with the contract . And said contract
unambiguously states that only certain enumerated situa-
tions, none of which were involved in Smith 's case, would
break his seniority . Hence I find that by reinstating Smith
to his job said decision restored to him all contractual bene-
fits connected with his job , one of which was retention of
his seniority . It follows that the Company was obligated not
only to take back Smith , which it did , but also told to
preserve his original seniority status. Indeed there necessari-
ly flows from the decision a restoration of seniority rights.
Cf. N.L. R.B. v. Hilton Mobile Homes, 387 F.2d 7, 11 (C.A.
8, 1967), where the court pertinently observes that "an offer
of reinstatement which excludes seniority is not an offer of
substantially equivalent employment."
Since the Chicago decision restored Smith's seniority, nei-
ther the Company nor Local 294 could ignore it or relitigate
it. Otherwise an employer and a cooperating union can, by
not abiding with a valid decision in favor of an employee,
force him to file and litigate a further grievance on exactly
the same issue and run the risk that the new decision may
be adverse to him . Nothing in the Collyer case, supra, con-
1149
fers upon a union or an employer the right to compel an
employee to resort to a second grievance for the same wrong
simply because the parties failed or refused to comply with
the decision on the original grievance.
2. In any event, I find that Local 294 had an adverse
interest to that of Smith in that Local 294 from the begin-
ning not only opposed him but also insisted that Smith
should not displace Local 294 members (other than Ver-
mette) in seniority standing. Since Local 294, or at least
Robilotto, its president, is adverse to Smith's, I find that it
could not fairly represent him at the hearing of June 19,
1972, which resulted in a decision adverse to Smith. Thus,
this latter decision is not protected by Collyer, supra. See
Kansas Meat Packers, A Division of Aristo Foods, Inc., 198
NLRB No. 2 (slip op. p. 3 and 5).
Of course I am aware that Local 294 represented Smith
at the hearing passing on his discharge of April 4, 1972. But
as pointed out above, not only did this occur after Smith
filed a charge against Local 294, but also that the issue in
that grievance in no way involved seniority. Hence Local
294 could espouse Smith's said cause without affecting the
seniority of any member of Local 294.
Further, I recognize also that Local 294 did participate in
the June 19 grievance hearing on Smith's behalf. But as
pointed out above, it could not fairly represent him because
his interest conflicted with the position taken by Local 294
from the very beginning ; i.e., when Smith failed to report for
work at Albany on January 17, 1972. In fact, the decision
of June 20, 1972, (a) merely repeats the positions previously
taken by Local 294 and the Company in defeating Smith's
cause, (b) neither mentions nor alludes to contractual provi-
sions clearly relevant to the grievance, and (c) is totally
silent as to the meaning or effect of the Chicago decision on
the proceeding of June 19, 1972. (See Local 294 Exh. 2.) In
my opinion the decision of June 20, 1972,'sounds as though
Local 294 was taking a position adverse to Smith's. Accord-
ingly, I cannot accept that decision as binding on me under
the Collyer case, supra, as I believe that Spielberg Manufac-
turing Company, 112 NLRB 1080, has not been complied
with. In my opinion Yourga Trucking, Inc., 197 NLRB 928;
and Hensley v. United Transports, Inc., 346 F. Supp. 1108
(D.C.Tex., 1972), are distinguishable.
"It is well established that direct evidence of discrimina-
tory motivation is not necessary to support a finding of
discrimination . Such intent may be inferred from the record
as a whole ." Heath International, Inc., 196 NLRB 318. The
record herein, fairly permits such a finding, and I so find.
On the basis of the foregoing subsidiary findings I make
the following ultimate findings. These correspond to the
numbered allegations of the consolidated complaint. (G.C.
Exh. 1(e).)
Local 294 violated Section 8(b)(1)(A) of the Act when
steward Vermette told Smith that Vermette had been in-
structed by Robilotto not to handle Smith's grievance be-
cause it was too hot. (See para. VII (a).)
Local 294 violated Section 8(b)(1)(A) and (2) when it
attempted to cause and did cause the Company to fail and
refuse to grant Smith his rightful seniority because Smith
was not a member of that Union. (See pars. VIII, IX, and
XI.)
The Company violated Section 8(a)(3) and (1) of the Act
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by placing Smith lower (i.e., in No. 10) on its Albany termi-
nal seniority list than Smith was rightfully entitled to, and
refusing to place him in his proper seniority on said list; i.e.,
in No. 5. (See pars. XI, XIV, and XV.)
In addition the Company violated Section 8(a)(3) and (1)
of the Act by discharging Smith on April 3 or 4, 1972. (See
par. XIV.) The abruptness of the discharge, coupled with
the failure to conduct a fair and impartial investigation of
the alleged breakdown of the tractor operated by Smith,
convinces me that Pape was inspired by discriminatory mo-
tives in discharging Smith . "The abruptness of a discharge
and its timing are persuasive evidence as to motivation."
N.LR.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497,502
(C.A. 2, 1957), cert. denied 355 U.S. 829. Also, an
employer's failure to ask an employee's version of an inci-
dent involving said employee amounts to evidence of a
discriminatory intent towards said employee . Service Tech-
nology Corporation, 196 NLRB 1036.
In arriving at the foregoing findings I have been guided
by the following principles of law:
1. The burden of proof rests upon the General Counsel
to establish the allegations of his complaint, and it does not
shift to Respondents at any time during the trial.
2. No burden is imposed on either Respondent to dis-
prove any of the allegations of the complaint. Council of
Bagel and Bialy Bakeries, 175 NLRB 902, 903.
3. The noncrediting by the Trial Examiner or some of the
evidence of Respondents , or the failure of either Respon-
dent to establish one or more of its defenses, does not con-
stitute affirmative evidence capable of aiding the General
Counsel in sustaining his burden of proof . N.L.R.B. v. Har-
ry F. Berggren & Sons, Inc., 406 F.2d 239,246 (C.A. 8, 1969),
cert. denied 396 U.S. 823; N.LR.B. v. Joseph Antell, Inc.,
358 F.2d 880, 883 (C.A. 1, 1966); Council of Bagel and Bialy
Bakeries, supra, 903.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Those activities of Respondents set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with the operations of Respondent Company
as set forth in section I, above , have a close , intimate, and
substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V THE REMEDY
As each Respondent has been found to have engaged in
certain unfair labor practices I shall recommend that each
of them cease and desist from those committed by it, and
that each take specific affirmative action , as set forth below,
designed to effectuate the relevant policies of the Act.
In view of the finding that Respondents have unlawfully
deprived Smith of his rightful seniority on the over-the-road
roster at the Albany terminal, I shall recommend that he be
immediately restored to said status by the employer and
that Local 294 withdraw its opposition to such seniority
rating. It will additionally be recommended that said Re-
spondents jointly and severally make Smith whole for any
loss of earnings suffered by him since February 23, 1972, by
reason of the discriminatory seniority rating assigned to
him, except that only the Respondent Company shall be
liable for backpay due solely to Smith's discharge by the
Company on April 4, 1972.
The backpay obligations of the Respondents, if any, shall
be computed on a quarterly basis in the manner established
by F. W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent calculated according to the formula
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent employer
preserve and, upon request, make available to the Board or
its agents, all pertinent records and data necessary to assist
in any analysis and determination of the amount, if any, of
backpay due Smith.
On the record unfolded before me I am of the opinion,
and find, that the conduct of neither Respondent reflects a
general disregard of or hostility to the Act. Accordingly, I
find that a broad remedial order, as requested by the Gener-
al Counsel, is not warranted. Rather, I find that the policies
of the Act will be effectuated by enjoining Respondents
from repeating the conduct found above to be a violation
of the Act and any similar or like conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Local 294 is a labor organization within
the meaning of Section 2(5) of the Act.
2. Respondent Company is an employer within the
meaning of Section 2(2) and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By instructing its steward not to handle a grievance for
Smith because it was too hot to handle, Respondent Local
294 has engaged in an unfair labor practice condemned by
Section 8(b)(1)(A) of the Act.
4. By attempting to cause, and causing, Respondent
Company to fail and refuse to grant Smith his rightful sen-
iority because he was not a member of said Union, Local
294 has engaged in conduct prohibited by Section
8(b)(1)(A) and (2) of the Act.
5. By (a) discharging Smith, (b) placing Smith on its Al-
bany terminal seniority lower than he was entitled to, and
(c) refusing to accord to Smith his proper seniority on said
list, Respondent Company has committed unfair labor
practices violating Section 8(a)(3) and (1) of the Act.
6. Respondents have not committed any other labor
practices as alleged in the complaint as finally amended.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
T.I.M.E.-DC, INC. 1151
ORDER1
A. Respondent Local 294, its officers, agents, and repre-
sentatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause T.I.M.E.-DC, Inc., to
deny their proper seniority to Smith or any other of its
employees because they are not members of Local 294.
(b) Informing employees of said T.I.M.E.-DC, Inc., that
it will not handle their grievances against said Employer
because they are not members of Local 294.
(c) In any like or similar manner restraining or coercing
employees of said Employer in the exercise of rights guaran-
teed to them by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Notify Smith and T.I.M.E.-DC, Inc., in writing, that
it withdraws its insistence that Smith be assigned a seniority
date of March 2, 1972, and that it has no objection to
Smith's retaining his seniority date of September 5, 1969, for
all purposes.
(b) Jointly and severally with T.I.M.E.-DC, Inc., make
Smith whole for any loss of wages he may have incurred
since February 23, 1972, by reason of the seniority rating of
No. 10 assigned to him, except that Local 294 shall not be
liable for any backpay due solely to Smith's discharge by the
Company on April 4, 1972.
(c) Post at its business offices , meeting halls, and all other
places where notices to members are customarily posted,
copies of the attached notice marked "Appendix A." 2 Co-
pies of said notice, to be provided by the Regional Director
for Region 3, after being signed by a duly authorized repre-
sentative of Local 294, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter , in conspicuous places , including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Local 294 to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Furnish the Regional Director for Region 3 signed
copies of said notice for posting by the Company, if said
Company is willing, in places where copies to employees of
said Company are customarily posted. Copies of said no-
tice, to be supplied by said Regional Director, after being
signed by a duly authorized representative of Local 294,
shall be forthwith returned to said Regional Director to be
transmitted by him to said Company.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from receipt of this Decision, what steps have
been taken to comply herewith .3
B. Respondent T.I.M.E.-DC, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against employees at its Albany, New
York, terminal in regard to their tenure of employment by
not granting them their proper seniority, solely because they
are not members of Local 294 or because Local 294 de-
mands that they be assigned a lower seniority than that to
which they are entitled.
(b) Discharging employees because they are not mem-
bers of Local 294. In any like or similar manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Restore Smith to his proper seniority at its Albany,
New York, terminal by reckoning his seniority as of the date
he was first hired to work out of its Chicago, Illinois, termi-
nal; i.e ., September 5, 1969.
(b) Notify Smith that he no longer is No. 10 on said
Albany's terminal seniority list, and that his proper seniority
there for all purposes will be determined by giving him a
starting date of September 5, 1969.
(c) Jointly and severally with Local 294 make Smith
whole for any loss of wages he may have incurred since
February 23, 1972, by reason of his seniority rating as No.
10, except that Local 294 shall not be liable for any backpay
due solely to Smith's discharge on April 4, 1972.
(d) Post at its terminal at Albany, New York, copies of
the attached notice marked "Appendix B." 4 Copies of said
notice, to be furnished by the Regional Director for Region
3, after being signed by a duly authorized representative of
the Company, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this decision, what steps
have been taken to comply herewith.'
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Board 's Rules and Regulations , the findings , conclusions , recommendations,
and recommended Order herein shall, as provided in Sec. 102 .48 of said
Rules and Regulations , be adopted by the Board and become its findings,
conclusions , and Order, and all objections thereto shall be deemed waived
for all purposes.
2 In the event 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."
3 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 3, in writing , within 20 days from the date
of this Order, what steps said Local 294 has taken to comply herewith."
4 In the event 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."
5 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
Continued
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 3, in writing, within 20 days from the date
of this Order, what steps the Company has taken to comply herewith "
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WEWILL NOT cause or attempt to cause T.I.M.E.-DC,
Inc., to deny their proper seniority to Kenneth Smith
or any other of its employees because they are not
members of Local 294.
WE WILL NOT inform employees of T.I.M.E.-DC, Inc.,
that we will not handle their grievances because they
are not members of Local 294.
WE WILL NOT in any like or similar manner restrain or
coerce employees of said employer in the exercise of
right guaranteed to them in Section 7 of the National
Labor Relations Act, except to the extent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the Act.
WE WILL jointly and severally with T.I.M.E.-DC,
Inc., make Kenneth Smith whole for any loss of wages
he may have incurred since February 23, 1972, by rea-
son of the seniority rating of No . 10 which was assigned
to him, except that we shall not be liable for any back-
pay due to him solely by reason of his discharge by said
employer on April 4, 1972.
WE WILL notify Kenneth Smith and T.I.M.E.-DC,
Inc., in writing, that we withdraw our request that he
be given a seniority date of March 2, 1972, and that we
have no objection to his retaining his seniority date of
September 5, 1969 , for all purposes.
Dated By
LOCAL 294, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN,
AND HELPERS OF AMERICA
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office, 9th Floor , Federal Building, 111
W. Huron Street , Buffalo , New York 14202, Telephone
716-842-3100, or the Board's Subregional Office, 11th
Floor, Standard Building , 112 State Street , Albany, New
York 12207, Telephone 518-472-2215.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discriminate against our employees in
regard to their tenure of employment by not granting
them their proper seniority, solely because they are not
members of Local 294 of the Teamsters or because said
Local 294 demands that they be assigned a lower sen-
iority than that to which they are entitled.
WE WILL NOT discharge employees because they are
not members of said Local 294.
WE WILL NOT in any like or similar manner interfere
with, restrain , or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the National
Labor Relations Act, except to the extent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of said Act.
WE WILL restore Kenneth Smith to his proper seniori-
ty by reckoning it as of the date he first started to work
for us, that is, September 5, 1969, and we will notify
him that his seniority starts on said date.
WE WILL jointly and severally with said Local 294
make Kenneth Smith whole for any loss of wages he
may have suffered since February 23, 1972, by reason
of his seniority rating as No. 10, except that Local 294
shall not be liable for any backpay due solely to Ken-
neth Smith's discharge by us on April 4, 1972.
T.I.M.E.-DC, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 9th Floor, Federal Building, I l l
W. Huron Street, Buffalo, New York 14202, Telephone
716-842-3100, or the Board's Subregional Office, 11th
Floor, Standard Building, 112 State Street, Albany, New
York 12207, Telephone 518-427-2215.