Tose, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1975

219 N.L.R.B. 55 (N.L.R.B. 1975)

TOSE, INC. 55
Tose, Inc. and Eugene Maney , Richard Cleary, and
John Lennon . Cases 29-CA-3975, 29-CA-4020,
and 29-CA-4054
July 10, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 22, 1975, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed
"objections" to the exceptions and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
and briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Based on the pleadings, I find that the Respondent is a
Pennsylvania corporation, with its principal place of busi-
ness located at Bridgeport , Pennsylvania . It is engaged in
interstate trucking, being licensed by the Interstate Com-
merce Commission, with terminals located in various
States, including New York and New Jersey. During the
12-month period preceding the issuance of the complaint, a
period representative of its annual operations, Respondent,
in the course and conduct of its business operations, per-
formed services valued in excess of $50,000 in and for vari-
ous enterprises located in States other than the State
wherein it is located. Based on the foregoing, and as admit-
ted by the Respondent, I find that the Respondent is en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Locals 641, 707, and 816, each of which is affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: Upon indi-
vidual unfair labor practice charges filed by Eugene Ma-
ney, Richard Cleary, and John Lennon on August 19,
1974,I September 18, and October 17, respectively, against
Tose , Inc., herein called the Respondent , the General
Counsel, by the Regional Director for Region 29, issued a
consolidated complaint on October 31, alleging that the
Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National La-
bor Relations Act, as amended, herein called the Act. Re-
spondent filed an answer , denying the commission of any
unfair labor practices . Hearing was held before me on De-
cember 4 and 5.
Upon the entire record, including my observation of the
witnesses , and after due consideration to the oral argument
Unless otherwise indicated, all dates hereinafter refer to 1974.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent has maintained trucking terminals in
various locations including one in Fairview, New Jersey. It
holds a bargaining relationship with Teamsters and its ter-
minal employees are covered by the National Agreement
and by the supplemental agreement relating to the New
Jersey-New York area. The Fairview employees are repre-
sented by Local 641. Prior to August, the Fairview terminal
serviced the New York City area and also Nassau and Suf-
folk counties. In the summer of 1974, the Respondent de-
cided to open a terminal in Farmingdale, Long Island, to
service Nassau and Suffolk counties as an economy mea-
sure-to reduce the running time from the New Jersey ter-
minal to Long Island. The Brooklyn, Queens, and Manhat-
tan areas would continue to be serviced from the Fairview
terminal.
Robert Valenti was hired by Leo Patterson,
Respondent's vice president in charge of operations, to be
the Farmingdale terminal manager. Valenti had last been
employed in the trucking industry 4-5 years previously as a
dispatcher for another employer. This was his first position
as a terminal manager. Under the contract, Local 641
could claim recognition at Farmingdale if the Fairview em-
ployees exercised their option to transfer there. But none
chose to transfer. Initially, both Locals 641 and 707 vied to
be the bargaining representative for the Farmingdale em-
ployees. The General Counsel had alleged that four of the
drivers initially hired at Farmingdale were terminated be-
219 NLRB No. 7
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of their support of Local 707 and their opposition to
Local 641 2
Between August 1 and 7, four drivers 3 and two dock-
men 4 were hired. Although actual delivery operations first
started on August 8, the first employees hired began work-
ing on August 7. On August 2, Cleary had visited the termi-
nal and was hired by Valenti. They went to a nearby diner
for coffee where they ran into Ralph Alimena, Local 707's
business agent . Alimena told Valenti Local 707 would
claim the bargaining rights for the Farmingdale terminal if
the Fairview employees did not transfer in. He told Cleary,
in Valenti's presence , he would make Cleary the shop stew-
ard when he attained seniority. Alimena gave Cleary Local
707 authorization cards. Valenti had dealt with Alimena
when Valenti had been employed at Associated Transport
where Local 707 was the bargaining representative. He also
knew Cleary to be a Local 707 member when they both
worked there.
Early in the morning on the first day of employment on
August 7, Cleary gave Local 707 authorization cards to
Lennon, Mendelsohn, and Fiori. Then at about 8 a.m., Va-
lenti told the drivers they were to go with him to New
Jersey to pick up trucks to bring back to the terminal. He
suggested they first have coffee at a nearby diner. Ralph
Alimena and Leo Schwartz, Local 707's recording secre-
tary, happened to be in the diner and were invited to sit
with them. Lennon, Mendelsohn, and Fiori gave their
signed authorization cards to Cleary who turned them over
to Alimena. Although Valenti testified he didn't notice the
authorization cards at the table, he candidly acknowledged
he was aware the employees wanted Local 707 to represent
them . As he stated he had dealt with Local 707 while at
Associated Transport and had no problems there. He had
openly expressed to the employees his preference for Local
707 to be the employees' bargaining representative.5 He
had told the employees they would operate under the
Teamsters contract.
On August 8, Ralph Alimena visited the Farmingdale
terminal while Patterson was present. He informed Patter-
son Local 707 was claiming the bargaining rights. Patter-
son responded it did not make any difference to him which
local came in; all he wanted was peace and harmony. On
this same date, Local 707 filed a representation petition
with the Board's Regional Office .6
On August 12, Alimena, accompanied by his brother,
Louis, Local 707's president, and Schwartz met with Pat-
terson and Valenti at the terminal. Patterson said that Lo-
cal 641 was also claiming bargaining rights and he would
deal with whichever local was determined to be the bar-
gaining representative. He expressed concern that Local
707 would insist that New York traffic be serviced from the
Farmingdale terminal. Schwartz assured him Local 707
had no intention of asking for the New York traffic. He
agreed the Farmingdale terminal would handle only the
Nassau and Suffolk counties' traffic. He said he would pro-
2 Richard Cleary, John Lennon , Eugene Maney, and Seymour Mendel-
sohn.
3 Cleary, Lennon , Mendelsohn , and Fiori
4 Kellett and Urbancik.
5 Corroborated by Cleary, Maney, and Mendelsohn
6 On August 20, Local 707 requested withdrawal of the petition. The re-
quest for a withdrawal was approved on August 23
vide a rider to the contract to the effect that Local 707
would not claim the New York traffic. He left a copy of the
Teamsters contract with Patterson and told Patterson he
would contact him in about a week.
On August 15, before the drivers went out on their runs,
Jack Spero, Local 641's business agent , visited the termi-
nal. Patterson introduced him to the employees and then
withdrew to the office. Neither Valenti nor Patterson was
present while Spero spoke to the employees.' He informed
the men Local 641 was also claiming bargaining rights at
the terminal . He said he had heard the men wanted Local
707 but maintained the employees should leave it to the
locals to determine who should represent them. The em-
ployees asked questions and, according to the testimony of
the four alleged discriminatees, they spoke critically of Lo-
cal 641. After the meeting, Spero told Patterson, in effect,
that Local 641 would be the bargaining representative. Ac-
cording to Patterson, Spero said nothing about employee
comments at the meeting.8
Immediately after the meeting, Valenti handed out as-
signments to the drivers. Maney and Mendelsohn stopped
with their trucks at a nearby diner. They had not yet made
their first deliveries. Patterson credibly testified he drove
by the diner and observed the two trucks at the diner.9 He
stopped nearby and observed the two drivers come out of
the diner and chat near their trucks. He then drove off and
called Valenti from a phone booth. Patterson related what
he had observed and identified the trucks by their num-
bers. Valenti named the drivers and, upon Patterson's in-
quiry, said he had not given the drivers permission to take
a coffeebreak at that time. Patterson said the drivers were
stealing company time and congregating. He told Valenti if
they were kept on beyond their 16-day trial period, they
would continue to abuse the coffeebreak privilege and di-
rected Valenti to let them go.10 Later that morning Patter-
son called again and asked Valenti if he had spoken to the
drivers. Valenti said the drivers had reported they had
stopped for coffee. Patterson again told Valenti they
should be let go. That afternoon, when Maney and Men-
delsohn returned to the terminal, they were told by Valenti
that Patterson had directed their discharges because he had
seen them at the diner before making their first stops. He
told them to come to the terminal the next day and he
would see if Patterson would agree to reinstate them. The
next day Maney and Mendelsohn returned to the terminal
and awaited Patterson's arrival. When Patterson came, Va-
lenti first spoke to him privately. Patterson reiterated his
decision was final. Maney and Mendelsohn then were told
by Patterson they were discharged for taking a coffeebreak
before their first stop. They protested they had not been
told of this company rule, i.e., no coffeebreak before the
first stop. Patterson responded that was management's
fault but they were still terminated.
r Present at the meeting in addition to the four alleged discriminatees
were driver Fiori and the dockmen, Kellett and Urbancik.
8 Spero did not testify.
9 Because of the morning rush hour traffic, this being 9 a .m., Valenti had
directed him to use a route back to New Jersey unfamiliar to him. He made
a wrong turn and ended up passing the diner.
10 Under the terms of the supplemental agreement, an employee attains
seniority after he has worked 16 days in a 60-day period. In effect, he is a
probationary employee until then.
TOSE, INC.
The record is not clear on precise dates but within a day
or two after their discharges, Local 707 was told by the
Teamsters Joint Council that Local 641 had the bargaining
rights. But then somewhere between August 17 and August
22, Local 816 was determined to have the bargaining
rights."
Cleary was terminated on August 27. Patterson testified
that on August 12, a driver from the New Jersey terminal
reported to him he had been stopped on the Long Island
Expressway by a Farmingdale driver. He gave the number
of the truck to Patterson. He told Patterson the Farming-
dale driver had warned him to stay out of the area because
it belonged to the Farmingdale terminal.'2 Patterson then
related to Valenti what had been reported to him by the
New Jersey driver and directed Valenti to discharge the
driver-he could turn out to be an agitator." According to
Valenti, at some point in the conversation after Valenti
identified Cleary as the driver involved, Patterson asked if
Cleary was supposed to be the union steward. Valenti re-
plied it was up in the air-there was no steward yet. Valen-
ti stated the frame of reference to Cleary being the steward
was merely in a context of identifying Cleary as the driver.
Later that day Patterson spoke to Cleary at the terminal
and asked Cleary about the incident. Cleary first said he
initially stopped the driver thinking he was a Farmingdale
driver, with the intention of taking the freight on board
which Cleary could then deliver for him. Cleary then ad-
mitted telling the driver the territory now belonged to the
Farmingdale terminal. Cleary said he didn't mean any
harm. Patterson testified he saw Cleary working at the ter-
minal afterward and asked Valenti why Cleary had not
been let go. Valenti said he would terminate Cleary before
the end of his probationary period.14 Valenti testified when
Cleary returned to the terminal on August 9 Cleary told
him he mistakenly radioed a driver ahead of him to stop,
thinking it was Fiori. He discovered it was a New Jersey
man delivering freight and they merely passed the time of
day chatting about the merits of Local 707 vis-a-vis Local
641.15 On August 12, after receiving Patterson's report of
the incident with the New Jersey driver, Valenti told
Cleary of Patterson's report and asked, "Why did you stop
him and why did you tell him not to come out here?"
Cleary denied threatening the driver. Valenti, within a day
or two, told Patterson of his conversation with Cleary and
they agreed Cleary should be let go. Valenti's explanation
for delaying the discharge of Cleary until the close of the
probationary period was a follows: "at that time I felt that
I'm losing a lot of my good men and I wanted to hold on to
as many as I possibly could so I really wanted to find out
what the story was figuring maybe again he [Patterson]
would change his mind and bring him back." Cleary de-
nied that he threatened the New Jersey driver or told him
to stay out of the area nor did he say anything to Patterson
11 Patterson testified Local 816 had prior claim based upon it having been
the bargaining representative at Respondent 's Brooklyn terminal a number
of ears ago. The terminal was then closed.
1The driver had been discharged 2 weeks before the hearing . He did not
testify.
13 Based on the testimony of Patterson and Valenti.
14 Corroborated by Valenti.
15 Cleary's testimony as to this conversation is in substantial accord
57
or Valenti to that effect. He testified Patterson had asked
him about the incident and he related he had stopped the
driver thinking it was Fiori for the purpose of delivering his
freight since they were both going in the same direction.
According to Cleary, Patterson responded that his actions
sounded reasonable and nothing more was said about it.16
He testified when he returned to the terminal on August 27
after the day's run, he asked Valenti if he were to work the
next day-the next day being the last day of his probation.
According to Cleary, Valenti asked who opened their big
mouth about his being the steward. Valenti then said he
had received a call from Patterson to fire Cleary. Cleary
said he couldn't be fired for that reason and Valenti then
said the reason then would be nonproduction. According
to Cleary, nothing was said about the incident with the
New Jersey driver. Cleary returned to the terminal on a
number of occasions afterward looking for work. As he
testified he was still friendly with Valenti. Valenti put him
to work at the terminal again from October 16 through 25.
Valenti said he put Cleary on as a casual.
Lennon had started his employment on August 7 as a
driver. On August 21, when he reported at the terminal,
Valenti told him he wanted to try out other men for the
work and couldn't use him that day. For about 2 weeks
thereafter, Lennon kept contacting the terminal but was
told he wasn't needed. Lennon was never told he was dis-
charged. Valenti testified Lennon's driving ability was sat-
isfactory although Lennon was not experienced in the de-
livery type operation run by the Respondent. There were
many applicants for employment and, in the initial phase
of the terminal's operation, he was looking for the best
men. He decided to retain another driver, Peterson, who
had over 20 years' experience and was being used as a
casual. Peterson was known by Valenti to be a Local 707
member.
Analysis
An employer may terminate an employee for any reason,
good, bad, or indifferent, without running afoul of the Act,
provided he is not motivated by unlawful considerations.
The burden of proof to show the illegality of the discharges
rests with the General Counsel. I find the evidence insuffi-
cient to establish any of the four alleged discriminatees
were discharged because of their support of Local 707 and
their opposition to Local 641. There is no independent
8(a)(1) violations alleged or to be considered.
The Farmingdale terminal was a new operation and Va-
lenti was hired as the terminal manager. This was his first
experience in such role. Patterson visited the terminal
about every other day to see how the terminal was func-
tioning. As Valenti said, "This was the first time I was a
terminal manager and so I sort of let him run the show
there in the beginning and I just listened and watched."
The record is clear that Patterson, not Valenti, directed the
discharge of Maney, Mendelsohn, and Cleary. The con-
tract with the Teamsters, with the attendant uniform wag-
es, hours, and working conditions, was to be implemented
16 This does not seem plausible in light of Cleary's testimony that later in
the day Valenti told him Patterson was mad.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the Farmingdale terminal regardless of which local was
determined to be the bargaining representative. Patterson's
concern was to weed out employees before they attained
seniority because the basis for discharge afterward became
more restrictive under the contract. Employees were hired
regardless of their union affiliation, including those who
were Local 707 members. Although Patterson was initially
apprehensive that Local 707 might create a jurisdictional
problem concerning the New York traffic , Local 707 dis-
pelled such fears on August 12 in the meeting with Patter-
son. As Ralph Alimena testified, "I don't think any em-
ployer will care which local it is . It is all the same
contract." It may have been harsh disciplinary action to
have discharged Maney and Mendelsohn for taking the
coffeebreak when they did, particularly when they hadn't
been informed of the rule. Valenti said he himself would
have merely warned the employees. The General Counsel
considers it significant that Patterson ordered their dis-
charges within 2 hours of Spero's meeting with the employ-
ees at the terminal. I believe it entirely too tenuous to draw
an inference that after the meeting Spero gave Patterson
the names of the Local 707 supporters and that Patterson
then decided to eliminate them. Respondent did not dis-
play any animus towards Local 707; it was aware all the
employees favored Local 707. The only open manifestation
of favoritism at all among the locals was by Valenti-and
this was a display of a preference for Local 707, the choice
of the employees. Under these circumstances, I am com-
pelled to the view that the discharges of Maney and Men-
delsohn were not based on unlawful considerations. The
decision to discharge Cleary was made on August 12, sev-
eral days before Spero even appeared at the terminal, and
only 5 days after Cleary began working. Regardless of
whether or not Cleary indeed threatened the driver, I am
convinced that Patterson believed he did engage in such
conduct and was not satisfied with Cleary's explanation.
For even after Cleary offered his version to Patterson on
August 12, Patterson was still mad. I do not read anything
suspicious into reference by Patterson to Valenti of
Cleary's position as steward . 7 Rather I believe this was
only a reference to his individual identity. When Cleary
17 It will be remembered that Ahmena intended to make Cleary the stew-
ard after he attained seniority.
was asked at the hearing if there was anything he felt guilty
about when he asked Valenti on August 27 if he was to
continue working, he referred to the incident with the New
Jersey driver, although he had protested innocence of any
wrongdoing. I am convinced that it was on August 12 Va-
lenti remonstrated with him because of stopping the New
Jersey driver. I am equally convinced Valenti did not tell
Cleary he was discharged because he was the union stew-
ard. Again, here too, I believe Patterson was concerned in
screening out potentially unsatisfactory employees during
their trial period, rather than being motivated because of
any nonexistant opposition to Local 707. Nor do I consider
that any unlawful considerations attached because Valenti
waited until the end of Cleary's trial period before dis-
charging him. Rather, there would have been less of an
unlawful motivation to discharge him on August 27 be-
cause by then Local 707 was already out of the picture,
having withdrawn its petition and having announced it no
longer sought to represent the employees. Valenti himself
decided to replace Lennon with another employee with
more extensive experience and who himself was a known
Local 707 member. As the record shows, there were many
applicants for employment and the Respondent was at-
tempting to retain those employees it considered to be the
most satisfactory. Local 707 had already requested with-
drawal of its petition. Here too, the evidence does not sup-
port a finding that Lennon was discharged because of any
protected activity.
Accordingly, I shall recommend the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Locals 641, 707, and 816, each of which is affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organi-
zations within the meaning of Section 2(5) of Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]