Transcon Lines

National Labor Relations Board - Board Decisions

Apr 27, 1978

235 N.L.R.B. 1163 (N.L.R.B. 1978)

Transcon Lines and Archie Elliott Brown. Case 16-
CA-7145
April 27, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
TRUESDALE
On December 7, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, 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
Relations Board adopts as its Order the recommened
Order of the Administrative Law Judge and hereby
orders that the Respondent, Transcon Lines, Dallas,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substitut-
ed for that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we have violated the
National Labor Relations Act and has ordered us to
post this notice to our employees.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choosing
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To engage in activities together for the
purpose of collective-bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT prohibit our employees from
distributing literature which concerns the exercise
of any of these rights.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL rescind our rule prohibiting employ-
ees from distributing literature relating to the
exercise of their rights protected by the Act.
WE WILL expunge from Archie Elliott Brown's
personnel file all letters prepared and distributed
by him to other employees, and all references
thereto.
TRANSCON LINES
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: Upon a
charge filed on April 14, 1977,1 by Archie Elliott Brown, an
individual, herein Brown, a complaint issued by the
Regional Director for Region 16 of the National Labor
Relations Board on May 26, 1977, and an answer timely
filed by Transcon Lines, herein Respondent or Transcon, a
hearing was held on August 16, in Dallas, Texas. At issue
was whether Respondent interfered with, restrained, or
coerced its employees in the exercise of their rights under
Section 7 of the National Labor Relations Act, in violation
of Section 8(a)(I) of that Act, by prohibiting Brown from
distributing certain literature expressing opposition to the
Union which represented Transcon's employees.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs were filed by General
Counsel and Respondent. Upon the entire record, includ-
ing my careful observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
The Respondent, a California corporation, is engaged in
interstate freight handling, hauling, and storage. It main-
tains a terminal and office in Dallas, Texas, the only
facility involved herein. Jursidiction is not in issue. I find
and conclude that Respondent is an employer, engaged in
I All dates hereinafter are 1977 unless otherwise specified.
235 NLRB No. 161
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce, within the meaning of Section 2(6) and (7) of
the Act.
Respondent is party to the National Master Freight
Agreement, a collective-bargaining agreement with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, the union which
represents its employees. In the Dallas, Texas area, the
Teamster Local is Local 745. The complaint alleges,
Respondent's answer admits, and I find and conclude that
International Brotherhood of Teamsters, Dallas General
Drivers, Warehousemen and Helpers Local 745, herein
Local 745, is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. Brown's 2rotected Activity
Archie Brown is an over-the-road driver employed by
Transcon at its Dallas terminal. He is a member of the
International Brotherhood of Teamsters; whether he was
also a member of Local 745 at the time of these proceed-
ings was in dispute. At sometime, he became a member, or
supporter, uf an organization of dissident Teamsters
known as PROD, the Professional Drivers Council.
Beginning in December 1976, or January 1977, Brown
began to distribute literature questioning or attacking the
offices and policies of Local 745 among Respondent's 240
Dallas-based drivers. He made most of his distributions in
the drivers' room at the Dallas terminal, handing copies to
other drivers, posting them on bulletin boards, or leaving
them on the table.
Brown's first distribution outlined his difficulties in
securing membership in Local 745 because of his refusal to
join DRIVE (Democrat Republican Independent Voter
Education), the Union's political arm. It urged Teamsters
members to resist pressure from Local 745's officers to join
or support DRIVE and to assert their control over the
Local and its officers.
Brown's second distribution, in strong language, such as
in "Mafia Types, Filth, Scum . . . Underworld figures,"
charged that in the Teamsters Union were criminal
elements, operating to the detriment of the membership. It
urged the membership to "fight for your Union back," and
solicited them to join PROD and work for the reform of
the Union. Reiterated were Brown's personal problems in
securing Local union membership because of his refusal to
join DRIVE. He offered to assist other members who
wished to withdraw from DRIVE.
In April, Brown distributed a letter contending that the
officers of Local 745 did not care for the membership, that
grievances were being lost, and members were losing jobs,
because the top officers of the Local were preoccupied with
securing "bigger and better positions in the International
Teamsters." Listed were all of the titles and jobs held by
Local 745's president and its secretary-treasurer. Addition-
ally, the letter protested increases in the dues, rules, and
procedures restricting who may run for union office, and
harassment of a potential candidate for union office. It
urged members to go to the next union meeting. Another
distribution, about this same time, protested the treatment
Brown had received at a meeting of the Local in February
and to the use of racial epithets at that meeting. It referred
to the officers as "Thugs . . . Gutless Swine .. Scum,"
and "Bare-Faced Liar[s]." Membership in PROD was
again solicited.
In a pamphlet distributed in May 1977, Brown informed
the membership of the salaries and other payments made
to the officers of Local 745, in their various union
positions. He protested against the multiple positions and
their effect on the officer's salaries and their ability to work
for the membership. The next intraunion election was
discussed and support for one candidate was solicited. He
also proposed that other people challenge the existing
officers in that election. The pamphlet reiterated the
members' right to refuse to support DRIVE and suggested
enlisting the help of the Federal Bureau of Investigation if
coerced into joining. Also included were allegations that
the employers were able to terminate employees by making
deals with Local 745's officers and that unjustly discharged
employees were not getting backpay when reinstated.
Finally, it urged employees to insist upon compliance with
the contract by both their employers and the Union.
At the time of the hearing, Brown was distributing a one-
page letter describing certain grievances he had filed under
the collective-bargaining agreement. That letter also de-
scribed other alleged contract violations in which he was
interested.
B. The Time and Place of Brown's Distributions
As noted, the distributions in question took place in
Respondent's drivers' room. Respondent contended that
the drivers' room, which is adjacent to and separated by a
sliding glass partition from the dispatcher's office, is a work
area and that all time spent in the area is working time.
The record establishes that Respondent maintains a 24-
hour-per-day operation, with drivers arriving or departing
at all hours. Prior to a trip, drivers receive a 2-hour notice,
come to the terminal, punch the timeclock in the drivers'
room, pick up and complete necessary trip documents,
read company notices and bulletins, and may wait there for
the driver who will share the trip with them. Similarly,
upon their return, they will complete their travel docu-
ments and necessary reports, such as those pertaining to
their equipment, tire changes, or accidents, and may then
wait there for transportation home. While in the drivers'
room, the employees may drink coffee or eat snacks from
machines provided therein, and may converse freely with
other drivers. Some drivers may come there on their off-
duty time to talk with their fellow drivers, but it is not an
area where they generally loiter as, most often, they are
anxious to either start their trip or get home.
On the walls of the drivers' room are three bulletin
boards, one exclusively for Respondent's use which the
drivers are expected to check for bulletins, one provided
the Union by contract, and one which was referred to as
the "buy-sell-swap-miscellaneous" board. On the latter
board are contained such matters as religious tracts, offers
to sell pets, cars, campers, and to rent homes. Religious
tracts are also contained in a box on the wall and are left
on the table. Within the drivers' room the Union has
solicited membership in DRIVE and funds for various
causes have been collected.
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TRANSCON LINES
Drivers are paid by the mile and receive no separate pay
for time spent completing their travel documents. How-
ever, their mileage rate takes into account that they will be
required to spend a certain amount of time in these
activities.
There is no other site or room on Respondent's Dallas
premises where drivers may congregate, meet, or exchange
information.
C. Respondent's Rule Application and Enforcement
Respondent's superintendent of transportation, George
Zinck, testified that there was a general company policy to
the effect that "We don't allow this [referring to Brown's
distributions and some anti-Brown materials] to be posted
because of the dissension it does cause .... " He said that
the reason for this policy was the fear that such distribu-
tions would distract the driver and interfere with his ability
to safely handle his equipment.
Brown testified that he had a conversation with Zinck, in
March, while he was attempting to post one of his letters.
Zinck told him, "[N ]o more, I've had it, this is it. You're
causing friction here and I've got a company to run."
Brown had a similar conversation with Shaw, the terminal
manager. Shaw told Brown that Brown knew that he was
not supposed to put such material out and that Shaw did
not want any more of it on the dock or the parking lot.
Zinck testified that he merely told Brown that Brown was
causing dissension among the drivers and suggested that
Brown discontinue this activity. Brown, he testified, agreed
to do so. Shaw did not testify. I credit Brown, noting the
Employer's practice, and deeming it improbable both that
Zinck would have made such a restrained request concern-
ing these documents or that Brown would have so readily
agreed. I note, also, that Brown continued his activity,
conduct inconsistent with such an agreement.
Brown's distributions, and the anti-Brown letters which
accused him, among other things, of being a communist,
were placed in Brown's permanent personnel file.
In justification of its rule or practice regarding such
distributions, Respondent adduced evidence of its concern
for safety, contending that such disturbing distributions
tended to interfere with the drivers' concentration behind
the wheel. [t acknowledged, however, that while drivers
were requested to keep their minds on their driving, there
was no prohibition upon such distributions as religious
tracts. Neither did there appear to be any prohibition of
discussions of politics, sex, or sports.
Additionally, Respondent contended that at appropriate
times, prior to elections of union officers or representation
elections, it permitted campaigning for all contenders in
the drivers' room. No such elections were pending at the
time of the events herein.
D. Analysis and Conclusions
The threshold question, in any case which concerns an
employer's restraint of employee efforts to distribute
literature on the employer's premises, is whether the
distribution is pertinent to a matter encompassed by
2 That Respondent permits such activity prior to elections does not
protect its conduct herein. Statutorily protected activity must be permitted
Section 7 of the Act. McDonnell Douglas Corporation, 210
NLRB 280 (1974). "If that pertinence does not exist, there
are no restraints in the Act on the employer's power to ban
distribution." Eastex Incorporatea, 215 NLRB 271, 274
(1974), enfd. 550 F.2d 198 (C.A. 5, 1977).
In the instant case, I find that the literature prepared and
distributed by Brown bears sufficient pertinence to the
purposes and policies of the Act to warrant the Act's
protection. Thus, Brown expressed concern for the way
grievances were being processed, clearly a protected activi-
ty, informed members as to how their dues money was
being spent (see McDonnell Douglas Corporation, supra),
supported an opposition candidate for union office, and
solicited other members to run for office or otherwise
become more active in the affairs of their collective-
bargaining representative. See United States Steel Corpora-
tion, Lorain Works, 216 NLRB 874 (1975).
Contrary to Respondent's contention, I cannot conclude
that Brown's distributions lost their statutory protection
because of their "inflammatory" or "baiting" nature. His
choice of language, while strong and perhaps intemperate,
was not so offensive, flagrant, violent, or extreme as to
render him unfit for further service. See Dreis & Krump
Manufacturing, Inc., 221 NLRB 309 (1975).
Respondent further contended that the drivers' room was
a work area, and that the time the drivers spent there was
working time, so that a prohibition of distribution therein
would not be impermissible. This contention must fail for
several reasons. First, Respondent did not maintain any
nondiscriminatorily applied no-solicitation or no-distribu-
tion rule. Other distributions and solicitations were permit-
ted, even those relating to union political activities or to
religion. Those presented as great a potential for distracting
drivers from the mental concentration required to pilot an
18-wheeler as Brown's literature did. Respondent's rule,
moreover, was so vague that an employee could never
know what distributions or solicitations would be permit-
ted. It therefore could not be validly enforced against
Brown. Finally, I must conclude that the drivers' room is,
at best, a mixed use area, where drivers may either work or
relax. It is also the only area where drivers can regularly
communicate with one another on subjects of mutual
concern, a fact recognized by Respondent when it permits
all parties to campaign there prior to union elections. 2 As
such, the drivers' room must be open to the exercise of
statutorily protected activities.
Accordingly, for all of the foregoing reasons, I find that
Respondent has violated Section 8(a)(l) of the Act by
prohibiting the distribution of statutorily protected litera-
ture in the drivers' room and elsewhere on its premises.
ADDMONAL CONCLUSIONS OF LAW
1. By prohibiting its employees from distributing litera-
ture which was related to the exercise of their Section 7
rights, Respondent has interfered with, restrained, and
coerced its employees in the exercise of those rights, in
violation of Section 8(aX 1) of the Act.
to go on throughout the term of a contract; there can be no restnction upon
when employees may began to discuss the quality of their representation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The unfair labor practice described above affects
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having been found that Respondent engaged in an
unfair labor practice in violation of Section 8(a)(l) of the
Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As it has been found that Respondent's rule or policy
regarding solicitations and distributions is unlawfully
vague, it is recommended that Respondent be required to
rescind that rule or policy. Further, as inclusion of Brown's
letters and pamphlets within his personnel file may have an
inhibiting effect on the employees' exercise of statutorily
protected rights, it is recommended that Respondent be
required to expunge those documents and all references to
them from the file. Finally, it is recommended that
Respondent be required to post the notice attached hereto
entitled "Appendix" and to comply with its terms.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I make the following recommended:
ORDER3
The Respondent, Transcon Lines, Dallas, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Prohibiting employees from distributing literature
which is related to their exercise of the rights guaranteed
them by Section 7 of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Rescind its rule or policy prohibiting employees from
distributing literature relating to the exercise of statutorily
protected rights.
(b) Expunge from Archie Elliott Brown's personnel file
all letters prepared and distributed by him to other
employees, and all references thereto.
(c) Post at its Dallas, Texas, terminal copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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