259 N.L.R.B. 1424 (N.L.R.B. 1982)

Transcon Lines

National Labor Relations Board - Board DecisionsFeb 5, 1982

259 N.L.R.B. 1424 (N.L.R.B. 1982)

1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transcon Lines and Transport and Local Delivery spondent had a pattern of granting exceptions to its Drivers, Warehousemen and Helpers, Local accident rules and that, under the circumstances, Union No. 104, International Brotherhood of the failure of Respondent's agent, Carl Johnson, to Teamsters, Chauffeurs, Warehousemen and report Haynes' accident in accordance with Re- Helpers of America. Case 28-CA-5662Helpers of America. Case 28-CA-5662spondent's rules does not denigrate from this find- February 5, 1982 ing. Thus, with the exception of Johnson, the record is devoid of evidence that Respondent has DECISION AND ORDER ever declined to report or condoned, forgiven, or BY MEMBERS FANNING, JENKINS, AND otherwise failed to act upon any accident which ZIMMERMAN was preventable by a casual driver. Additionally, as noted by the Administrative Law Judge, Chet- On May 14, 1981, Administrative Law Judge kauskas, Respondent's terminal manager, and Ken- Clifford H. Anderson issued the attached Decision tros, Respondent's chief of terminal operations, tes- in this proceeding. Thereafter, the General Counsel tified without contradiction that they both acted filed exceptions and a supporting brief, and Re- according to company procedures on all accidents spondent filed an answering brief. and that they knew of no unreported or ignored Pursuant to the provisions of Section 3(b) of the accidents. As further noted by the Administrative National Labor Relations Act, as amended, the Na- Law Judge, Chetkauskas credibly testified that he tional Labor Relations Board has delegated its au- would have acted as he did upon learning of thority in this proceeding to a three-member panel. Haynes' accident even if he had not discovered the The Board has considered the record and the at- EEOC charge. We further note that therepending EEOC charge. We further note that there tached Decision in light of the exceptions and is no evidence that Johnson's conduct in failing to briefs and has decided to affirm the rulings, find- act upon Haynes' accident was either pursuant to ings,' and conclusions of the Administrative Law any real or apparent authority from Respondent. Judge and to adopt his recommended Order. To the contrary, and as noted by the Administra- Unlike our dissenting colleague, we agree with tive Law Judge, Johnson had for several months the Administrative Law Judge's conclusion that the prior to the termination of his employment with General Counsel has not established by a prepon- Respondent displayed inattentiveness to his work derance of the evidence that Respondent violated a ad generally been negligent in following Re-and had generally been negligent in following Re- Section 8(a)(1) of the Act by discharging casual truckdriver James Haynes, Jr., on December 18 spondent's procedures regarding personnel matters,truckdriver James Haynes, Jr., on December 18, including accident recording. Therefore, unlike our 1979. Thus, we agree with the Administrative Law . T u o1979. Thus, we agree with the Administrative Law colleague, we emphasize, as did the Administrative Judge's findings that the General Counsel has not Law Judge, that substantive weight should not be,".onstrated ,hat i. spondent's te r> ax, ** r Law Judge, that substantive weight should not be demonstrated that Respondent's termination of accorded the fact that Johnson failed to report Haynes was motivated by its desire to defend i r ir against the EEOC c arge that had been filed Haynes' accident as required by Respondent'sagainst the EEOC charge that had been filed rules. against the Company by employee Black rather than by its desire to enforce its legitimate rules re- Furthermore, contrary to our colleague, we do garding accidents. And, in so finding, we point out, not regard as significant Chetkauskas discussion as did the Administrative Law Judge, that Haynes with employees Walters and Westbrook wherein admitted that he had been involved in a vehicle ac- they alleged that Haynes had been involved in an cident which was preventable by him. Further- accident. In this regard, we note Chetkauskas' posi- more, we emphasize that it is undisputed that Re- tion that he took no immediate action concerning spondent, at all relevant times, maintained unambi- the allegations of these employees since they made guous written rules which provided for the imme- t clear that they had not witnessed the event and diate termination of a casual truckdriver involved they further refused to reveal the identity of the in an accident which was preventable by that person who they claimed had been a witness there- driver. to. Under these circumstances, the allegations of As found by the Administrative Law Judge, Walters and Westbrook amounted to nothing more there is clearly no evidence to establish that Re- than rumor and we can draw no adverse inferences from Respondent's decision not to institute an in- 'Since we agree with the Administrative Law Judge's conclusion that vestigation based thereon. Respondent terminated James Haynes. Jr.. because he violated Respond- Finally, our dissenting colleague relies heavil ent's uniform rules against retaining probationary or casual drivers who have been involved in preventable accidents, we find it unnecessary to on his view that the EEOC charge was "on [Chet- pass on the Administrative Law Judge's additional finding that James kauskas'] mind" during the meeting with Union Black's action in filing an Equal Employment Opportunity Commissinon wic w charge constituted protected concerted activity within the purview of the Busness Agent Barton which was arranged for the Act purpose of discussing Haynes' termination. In this 259 NLRB No. 166 ' t , ' i t i it - el ers of rica. 8- -5662 spondent's , i , i t w a s l l i l , i , ' i l l i t' i f i l ti , t i f r l l i ti l ti rti f r i ll i t ri i ,.and t t t t r i r ti i t . ti l i l ti i l l ti l i i t it t i i t t l. ' i t i i i p t i i i li ti i ' t i f i t f i t li i ' i t i t t i ,' l i t i i i t ri li r i ti ll , r i r l t i i tr ti ' l i t t t i t t i i i l i r l l t t li t i l i tt ti i r f t i t t t i l t r ll li t i f ll i - ti (a)(l) f t t i r i l s ent's procedures regarding personnel matters, n .i, . r r truckdriver James Haynes, Jri'., onI December 1 ,,,. ,,, .,..,.e ' i i t t , ta ,".ntrte ,ha i. pndn' te r> ax, * r Law Judge, that substantive weight should not be de onstrated that espondent's ter ination of accorded the fact that Johnson failed to re rt s s ti t it i t H n a as *qired b s e i t t l l t F t it ir t f r it l iti t r l r - nFurther r , tr r t r c ll , r i i t . , i fi i , i t t, wot r r s i ifi t t i i as i t i i tr ti , t t w t h em py o y e e st a l t e r s ha W e st b ro o k w h e r ein i l t h e yacien.I t h a t H a y n e s h a d b e e n kskolved i t i s r v t l i . rt r- cci t. I t is r r , e note hetkauskas' posi r , i t t it i i t t t - tho n th at he to o k se i i t ti r i t, t ll r l t ti , i t i i- th e ll ti f t l i t tt t c l ear th at ^ had n ot itne v t l i fur th er f t l t i tit f t i t l w ho l i it t t o . , l i ,' t t h a n r u m o r a n w e c a n d r a w n o i f r fr t' ' i ce hereon. s t ter i ate Ja es aynes, Jr., because he violated Respond-Finally, our dissenting colleague relies heavily t harge uring ith on ' A * ri A ri for Business . 10uckdri i t r r W an d ivl r i Ceksav '., ccdn.I TRANSCON LINES 1425 respect, our colleague emphasizes the fact that, In May 1979,3 James Haynes, Jr., a white em- during this meeting, Chetkauskas mentioned the ployee employed as a casual truckdriver, reported EEOC charge more than once.2 Even were we to to Respondent's then chief of terminal operations, find that the EEOC charge was, in fact, on Chet- Carl Johnson,4 that he had been involved in an ac- kauskas' mind during this meeting, that finding cident which was preventable by him. Apparently, would not be controlling since it is undisputed that Johnson never reported the accident to any other it was Respondent's investigation of the EEOC official of Respondent. On December 10, Respond- charge which prompted Haynes to admit his in- ent hired Haynes as a permanent employee. In con- volvement in an accident and any discussion of trast, on or about October 12, John Black, a black Haynes' termination would therefore necessarily in- employee who was also employed by Respondent elude some reference to the EEOC charge. Such a as a casual truckdriver, was involved in an accident finding, however, would be insufficient to establish which Respondent classified as preventable by him. that Respondent acted unlawfully in discharging On October 15, Respondent, pursuant to its rule, Haynes. discharged Black. In sum, while we recognize, as did the Adminis- On December 12, 2 days after Haynes started trative Law Judge, that there exists some circum- full-time employment, two of Respondent's perma- stantial evidence tending to discount the reason as- nent drivers, Walters and Westbrook, told B. J. serted by Respondent for its discharge of Haynes, Chetkauskas, Respondent's terminal manager and such evidence cannot serve as proof of a violation. the highest ranking management official at the Rather, the General Counsel has the burden of es- plant, that there was a witness to Haynes' accident tablishing unfair labor practices by a preponder- and that it was unjust for Respondent to have ter- ance of all the relevant evidence. Based on the minated Black, a black man, when Haynes, a white record as a whole, we agree with the Administra- man, was retained despite the fact that both men tive Law Judge that the General Counsel has not had been involved in similar accidents. Chetkauskas met his burden here. admitted that he became "irate" at Walters and Westbrook because they had taken company time ORDER to alert him to a matter "that was [not their] con- cern .... " Chetkauskas testified that he then spe-Pursuant to Section 10(c) of the National Labor cifically told Walters, the employee who had done Relations Act, as amended, the National Labor Re- most of the talking, that the matter didnt concern lations Board adopts as its Order the recommended him . . . it was none of his business . . . [and] he Order of the Administrative Law Judge and had better get back to work." Chetkauskas did not hereby orders that the complaint be, and it hereby investigate or take any other action concerning the is, dismissed in its entirety. report given by these employees. MEMBER JENKINS, dissenting: Later that same day, Black filed a charge of race Contrary to my colleagues and the Administra- discrimination with the Equal Employment Oppor- tive Law Judge, I find that the facts surrounding tunity Commission (EEOC) against Respondent. Respondent's discharge of employee James Haynes, The charge alleged that Black was termated be- cause of his involvement in an accident while anJr., establish that the motivating cause for Haynes' olvemen a a t il a discharge was the protected concerted activity of unn am ed w hn te empyee w h o had a similar ac c - another employee, John Black. Accordingly, I find de n t w as o t termin a te d but, rather, was being con- that Haynes' discharge violated Section 8(a)(l) of s der ed fo r a pt p . the Act. A full analysis of the facts reveals the fol- Respondent was first notified of the existence of ~~~~~lowine~g: -this charge on December 17 when Chetkauskas re- lepndn, teoearofowi nrcemnlg: ceived a copy. While the charge did not mentionRespondent, the operator of a truck terminal, as- Chetkauskas immediately gave instructions serted that its policy is that all employees involved to have Haynes report to his office "as soon as pos- in vehicle accidents must report them to manage- ible." Haynes, however, was absent from work ment, who in turn report them to the Company's that day and did not meet with Chetkauskas until safety office. Pursuant to Respondent's rules, a de- his return to work the following morning. Al- termination by its safety office that an accident was though apparently not considered by the Adminis- preventable by a casual truckdriver results, inter trative Law Judge, Chetkauskas admitted at the alia, in that driver's immediate termination. 3 All dates hereinafter refer to 1979. 'We are constrained to note that, during this meeting, Chetkauskas ' At the hearing. Haynes identified Johnson as his immediate supervi- also specifically stated that Haynes' discharge resulted from his involve- sor and the Administrative Law Judge found that Johnson was Respond- ment in a preventable accident. ent's agen. 3 ' t h a t h e r e w a s a a n d t h a t i m a n , ti h ad b ee n Pursuant to Sct**ion/ \0() of the National Labor c er n . . . ." t t tifi t t t s -t t ti (c) f the ti l LaborR c ally told alters, the employee who had done l , t ti l r - J aligththeatr"dntcoenlatins Bardadops a itsOrdr th reommeded most of the talking, that the matter "didn't concernlations Board adopts as its rder the reco ended i . twanneohsbunss [d]eOrderof te Adinisrativ LawJudg and him . .. it was none of his business . .. [and] hei i i tt t t . t i t hereby orders that the co plaint be, and it hereby investigate or take any other action concerning the i , is iss i its tir ty.^report given by these employees. ti : L a t e r t h a t sa m e d a , B l a c k f le d a l i i ti i t l l t r- i i i i i t t. T he ll ed th at B lac k w as ter m in ated be- t li his inv l t in n ccident while n ti i it ploye h o had a si ilar ac c i- l , i l , i d e t n t ter m inated t, r t r, as i con- ' ti l) si r f r ermanent osition. l l i l i tifi f t i t f lowing: this charge on December 17 when Chetkauskas re- n , . ,. , , . , ~~~~ceived . il t i t tint, l c opy. iediae inotr ti n sered hatitspolcy s hatallempoyes ivoled Haynes, Chetkauskas immediately gave instructionsserted that its policy is that all employees involved to have Haynes report to his office "as soon as pos- mn vehicle accidents must report them to manage- sible." Haynes, however, was absent from work ent, i t r r rt t t t ' t t i t t it t il s f ty ffi . r t t t' r l , - i r t r t t f ll i i l t r i ti it f t ffi t t i t t r ntl i i i t l l t i lt , i t i , i t i , volve-_sor t. t. tligththeatr"dntcoen ommen ed~ ...i a o i ies...[n]h 1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing that, soon after receiving notice of the The General Counsel contended that Respond- pending EEOC charge, he telephoned Respond- ent's discharge of Haynes violated Section 8(a)(l) ent's corporate office to discuss the EEOC charge. of the Act. He argued that Respondent's termina- Upon reporting for duty on the following morn- tion of Haynes was motivated by its desire to ing, Haynes was again summoned to Chetkauskas' defend against Black's EEOC charge rather than office where the latter asked him, inter alia, if he because of any legitimate interest in enforcing its had ever had an accident while working for the rules regarding accidents. Although the Adminis- Company. Haynes hesitated but then admitted, and trative Law Judge found that the Act would pro- related, the circumstances of his accident in May. tect Haynes from any discriminatory action by Re- The Administrative Law Judge found that Re- spondent motivated by the EEOC charge filed by spondent's chief of terminal operations, Kentros,s Black, or by any discrimination intended to im- who was also present, then attempted to coach prove Respondent's defense to that charge, he de- Haynes into modifying his account of the accident dined to find that the discharge was for either of by suggesting to him that he claim that the acci- these reasons. In so doing, the Administrative Law dent had occurred while he was working for an- Judge reasoned that, with the exception of John- other company. However, Chetkauskas interrupted son, the evidence did not establish a pattern on the and reminded Kentros that Haynes' report could part of Respondent's agents of granting exceptions not be changed because the meeting was being tape to its rules on accidents, and that Respondent recorded. (The conversation had been recorded on should not be held bound by Johnson's decision to a tape recorder that was prominently displayed.) ignore or forgive Haynes' accident. He further Chetkauskas then discharged Haynes. found that Respondent's accident rules were uni- Later that day, Chetkauskas and the Union's formly applied since Chetkauskas and Kentros tes- business agent, Barton, met to discuss Haynes' ter- tified that, unlike Johnson, they acted consistent mination. The record indicates that Chetkauskas with company procedure whenever and however immediately explained the facts surrounding the they learned of an accident. Further, the Adminis- EEOC charge that had been filed by Black against trative Law Judge apparently credited Chetkaus- the Company. While Chetkauskas told Barton that kas, whose testimony was elicited in response to a Respondent's rule on accidents was the ground for leading question asked by the Administrative Law Haynes' discharge, Chetkauskas also told Barton Judge, that he would have acted as he did upon about the discussion that he had had with Walters learning of Haynes' accident on December 18 even and Westbrook 6 days prior to receiving notifica- if he had not discovered that Black had filed an tion of the pending EEOC charge wherein they EEOC charge The Administrative Law Judge had reported Haynes' involvement in an accident. therefore concluded that Respondent had not vio- The Administrative Law Judge omitted entirely lated the Act. from his discussion the further testimony that After considering the entire set of circumstances during this meeting Chetkauskas revealed to Barton surrounding the discharging of Haynes, I am con- that only recently an EEOC charge filed by an- vinced that the reason asserted by Respondent for other employee against the Company had been re- his discharge was pretextual and that the discharge solved in favor of that employee. Furthermore, was unlawful. Simply stated, Respondent's position Chetkauskas agreed with Barton that Haynes' dis- that Haynes' discharge was based entirely upon the charge was unfair. In this regard, Chetkauskas tes- enforcement of its accident rules is contradicted by tified that he told Barton, inter alia, that, if he were the evidence. Thus, the record is devoid of support Haynes, he would file NLRB charges and "scream for the Administrative Law Judge's finding that it to the highest rooftop." The Administrative Law substantial weight should not be accorded John- Judge also apparently failed to consider the evi- son s decision not to report Haynes' accident. dence that in his report to his superior, dated De- Haynes identified Johnson as his immediate super- cember 18, Chetkauskas explained the circum- visor and, as found by the Administrative Law ~~cember .eplie hecru- Judge, Johnson was an agent of Respondent. stances surrounding Haynes' termination and addi- u dg Johnson was an agent of Respondent. tionally described the December 12 discussion that Indeed, Respondent admitted at the hearing that, as chief of terminal operations, Johnson was thehe had with Walters and Westbrook wherein they chief of terminal operations, Johnson was the had, in essence, accused Respondent of race dis- e c o n h s oiil at the te Moreover, undisputed testimony established thatcrimination. Further, Chetkauskas attached a copy Respondent ha d ted to its c hie o t minal of the EEOC charg to this report.Respondent had delegated to its chief of terminal f te E C c e to ts r operations, inter alia, the specific task of receiving Johnson. who voluntarily resigned on August 2, was replaced by accident reports from employees. Neither Board Kentros as chief of terminal operations. law nor the law of agency requires that an employ- Upon reporting for duty on thefollowing morn- tion of Hayneswas motivated by it -------e t ' ti l ,. 5 . t h t i t. t , t i is- k a s w h o e J u d , l o f ' t i i ti h e h a d n o t d sc o v e r ed t h a t B l ac k h a d fi l ed a n i i E E O C c h a r e . T h e i i t ti ' i t l t t t t i - i ti l la t e t h e A c t . i ti t i ri ti l i r i , l ntl l c e d rt t i t s t l l l . l f l i l i ' t h a t H a n e s' ti l i t i t i i i . i t h e i . , t r r is i f s rt , f o r t h e i i t ti ' fi i t t i t nti l i t l t r - r ntl i i so n ' s d eci i o n no t to r rt ' cci t. t rt i ri r, t - aynes identified Johnson as his immediate super- ce ber 18. hetkauskas explained t ir - i so r , fo und t he i i i cemer 8, hetausas exlaied ircm- . stances surrounding aynes' ter ination and addi- }I de Re s on a d at the hearindent. tionally described the December 12 discussion that f Respondent admitted at the hearing that, as he hd wth ltr nd t kw i the c i f f ter inal r ti s, the had with alters and estbrook herein they scn ihs akn fiila h emnl had, in essence, accused espondent f race dis- M e o vr uit testimonyiealatlthe that cri ination. Further, Chetkauskas attached a copy oreovent ha d tedto istahie hed te a t OC r Responde t i f of the EEOC*charge to this eport. ti , i , cifi t f r i i *Johnson. tr s as i f f t r i l r ti s. l t l r ir t t l - . ndspte o esta blih e t ha t TRANSCON LINES 1427 er expressly authorize its agent's specific conduct. tempting to hide its true motivation for the dis- Thus, it is sufficient that, at the time that Johnson charge. Indeed, the true reason for the discharge is decided that Haynes' accident did not warrant fur- evident from the timing and manner in which it oc- ther action, Johnson was an agent for whose con- curred. As detailed above, the record is replete duct Respondent was responsible. with substantial and credible evidence that Re- Respondent's position is additionally undercut by spondent's discharge of Haynes was motivated by the fact that Chetkauskas declined to take action in the race discrimination charge filed by Black with response to the reports by Walters and Westbrook the EEOC and its desire to defend against that that Haynes had been involved in an accident. charge. I therefore conclude that Respondent's dis- Indeed, Respondent was spurred to action only charge of Haynes was violative of Section 8(a)(l) after being notified of the pending EEOC charge. of the Act and I dissent from my colleagues' failure Moreover, in light of the evidence that Respondent to so find. had direct knowledge that Johnson had on prior occasions been lax in enforcing its rules, it is sig-DECISION nificant that Chetkauskas, despite the report by STATEMENT OF THE CASE Walters and Westbrook, not only failed to investi- gate the matter, but also irately told the employees CLIFFORD H. ANDERSON, Administrative Law Judge: that the matter was none of their business. Had This matter came to hearing before me on February 12, Chetkauskas been genuinely concerned with acting 1981, at Phoenix, Arizona, pursuant to a complaint and in accordance with company procedure, as he con- notice of hearing issued by the Regional Director for In accordance ompay as Region 28 of the National Labor Relations Board on tended, he undoubtedly would have been more re- August 7, 1980, based upon a charge filed by Transport ceptive to the information offered by Walters and and Local Delivery Drivers, Warehousemen and Help- Westbrook and he certainly would have initiated ers, Local Union No. 104, International Brotherhood of some investigation in response thereto. This he did Teamsters, Chauffeurs, Warehousemen and Helpers of not do. Furthermore, any lingering doubt about America, herein the Union, on January 10, 1980, against Respondent's true motive is dispelled by the fact Transcon Lines, herein Respondent. that, even after Haynes admitted to Chetkauskas The complaint, as orally amended at the hearing, al- and Kentros that he, in fact, had been in a prevent- leges that Respondent terminated its employee James E. able accident, Kentros attempted to coach him into Haynes, Jr. and thereafter refused to reinstate him be- retracting that admission. And this from an em- cause of his and other employees' protected concerted ployer who claims that it strictly adheres to com- activities in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, herein the Act. Re-pany procedures on all accidents and that it would r Relations di s and subsequent refusal tospondent admits the discharge and subsequent refusal to have terminated Haynes upon learning of his acci- reinstate Haynes but denies that Haynes or any other em- dent irrespective of its knowledge of a pending ployee or employees were engaged in protected concert- EEOC charge. ed activities or that Haynes' discharge was for reasons Finally, the fact that the EEOC matter was very other than the consistent application of permissible rules much on Respondent's mind is clear from the Ad- of employee conduct. ministrative Law Judge's finding, which both the All parties were given full opportunity to participate majority and I have adopted, that at the meeting at the hearing, to introduce relevant evidence, to exam- immediately after Haynes' termination which was ine and cross-examine witnesses, to argue orally, and to arranged for the purpose of discussing that termi- file post-hearng briefs. nation with the Union, Chetkauskas, rather than Upon the entire record herein, including briefs from dealing with Haynes' accident, spent an extraordi- the General Counsel anesand the and from m oaservation of the witnesses and their demeanor, I make nary amount of time telling Barton about the pend- the following: ing EEOC charge, the unrelated EEOC charge that had recently been resolved against the Compa- FINDINGS OF FACT' ny, and the earlier report from Westbrook and Walters concerning Haynes' involvement in an ac- . JURISDICTION cident. Moreover, during that meeting, Chetkaus- Respondent is now, and has been at all times material kas agreed with Barton that Haynes had been un- herein, a California corporation with an office in Phoe- justly discharged and encouraged Barton to protest nix, Arizona, where it is engaged in the business of inter- that discharge by filing an unfair labor practice state and local transportation of linehaul freight and charge with the Board. Under the circumstances, other commodities. Respondent annually enjoys gross the only explanation consistent with the facts is that Respondent's asserted reason for discharging The facts were largely undisputed. Except where otherwise noted,a Respondent's a ssrtedt reasoent's r decthese findings are based on the pleadings, admissions, stipulations of the Haynes was contrived and that Respondent is at- parties, or uncontradicted credible testimonial or documentary evidence. )(l) I N , it t re rt by STATEMENT OF THE CASE T h is m at t er c am e to , 19 8 1 at A rizo na , in accordance with company procedure, as he con- t i f ri g i t io nal irec tor for i l l t l l , . , c au se o f h is l) l t in Act, s amnded h er ein th e ct Re- t r i t l r i i i i t t t i t t it l l r i r t t rt- ' in e l e ari i . t l l nd Respond nt, and fro y ob- t lli rt a t the pend- the following: 1. ISDII ll --- that Reson ndent'i asserted reasnn for th rcsins I T he fac ts were lar el is te . t t i that Respondent's a serted eason fo isc arging these fndings r s t e lea i s, ad issions, stipulations of the W ent i . l r l ndings 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revenues in excess of $50,000 resulting from the transpor- for the accident asserted as the cause of his termination, tation of freight and other commodities from the State of there is no dispute that throughout his employment with Arizona directly to points outside the State. Respondent Haynes was considered an excellent employ- ee and was highly regarded by Respondent. II. THE LABOR ORGANIZATION In the latter part of May, while driving a truck for Re- The Union is a labor organization within the meaning spondent, Haynes scraped the top of his trailer against of Section 2(5) of the Act. the eave of a building doing no apparent damage to the building but making a slight scratch in the skin of the 111. THE ALLEGED UNFAIR LABOR PRACTICES trailer. Haynes immediately notified the appropriate agent of the building owner at the site, who after in- A. The Events specting the eave told Haynes the incident was of no consequence and to forget it. When Haynes returned to 1. Background the terminal he reported the accident to Johnson who in- Respondent operates a terminal in Phoenix, Arizona, spected the trailer with Haynes and told him the matter from which it picks up and delivers freight by truck. At did not warrant further action. Apparently Johnson all relevant times B. J. Chetkauskas was Respondent's never reported the incident to any other agent of Re- terminal manager. Until August 1979, when he left Re- spondent. There is no contention that Haynes' conduct spondent's employ, Carl Johnson was chief of terminal following the accident either in reporting to the building operations-second in charge of the terminal. On August agent or to Johnson was other than in full accord with 2, 1979, Peter D. Kentros replaced Johnson and thereaf- Respondent's required procedures. ter served as chief of terminal operations. Haynes was informed on December 7, 1979, that his At all relevant times the Union has represented Re- work was good and that he was to be made a permanent spondent's terminal drivers and has entered into a series employee on December 10. Commencing on December of collective-bargaining agreements with Respondent 10 until his termination on December 18, 1979, Haynes covering these employees. Respondent maintains a corn- worked without event as a full-time employee for Re- plement of permanent drivers. As its needs require, Re- spondent although in his probationary period. spondent utilizes casual drivers who are procured 3. The EEOC allegation, its investigation, and through the Union's hiring hall. Although such employ- Haynes' termination ees may be repeatedly utilized, they are employed on a short-term or temporary basis. When a driver is hired as John D. Black, a black man, had been employed as a a full-time or permanent employee, he or she is subject casual employee by Respondent. Apparently on or about to a probationary period. Probationary employees have October 12, he had an accident involving the separation lesser rights under the contract and under Respondent's of his tractor from its trailer which Respondent classified rules of conduct than permanent employees who have as chargeable against him. Respondent discharged Black completed their probationary period. on October 15 for that reason and did not thereafter Respondent's policy is that all vehicle accidents must reemploy him. Black contacted David M. Barton, the be reported by employees to management, who in turn Union's assistant business agent, regarding his discharge; report them to their safety office. Respondent has a sepa- however, the Union after contacting Respondent deter- rate office located in Oklahoma City, Oklahoma, which mined nothing could be done on Black's behalf. evaluates reported accidents and classifies them as pre- On or about December 12, soon after the commence- ventable or not preventable by the driver. Striking a sta- ment of the work shift, Chetkauskas was approached in tionary object, absent mitigating circumstances, is a pre- his office by two of Respondent's employees who told ventable accident. A determination that an accident was him it was unjust for Respondent to have fired Black, a preventable results in the driver-employee being black man, when Haynes was retained even though "charged" with the accident. Respondent's rules provide Haynes, a white man, had had an accident similar to for differing actions against an employee charged with Black's accident. The men professed to have a witness to an accident: A nonprobationary permanent employee re- Haynes' accident whose name they would not divulge. ceives a warning letter stating that additional chargeable Chetkauskas told the employees the matter was none of accidents may require greater discipline; a casual em- their concern and, since they were talking to him on ployee or a probationary employee is immediately termi- company time, they should return to work. Chetkauskas nated.2 took no immediate action on the matter. That same day Black filed a charge of discrimination 2. The actions of Haynes prior to his termination with the Equal Employment Opportunity Commission (EEOC) against Respondent alleging his discharge in James E. Haynes, Jr., was employed by Respondent as October was because of his race. The charge contained a casual truck driver commencing i the following n Massertion: 2 Respondent produced substantial credible and essentially unchal- My accident n October 12, 1979, was mechanical lenged testimony and documentation of the existence of the rules and , eh their application to reported accidents. while a similarly situated White employee had the All dates hereinafter refer to 1979 unless otherwise indicated identical accident through negligence on October I i ti i t t f i tr il r i t ti i Ill. i t t l ni , iz i l i no t w a r r an t f t h er a c t io n . r tl J s ll t ' nev er r rt t i i t t y t r t f e- l ti l t. r i t ti t t y s' c ct l i f t i l f ll i t i t it r i r rti t t il i e o r t s t r t in f ll accord ith , l t r f- t' r ir procedures. r i f l ti . w as ll t t w o r k w as l i l r . i c r r ini g t 10 un t ti , ri . t m w o r k ed w t ho u t ev e nt as f ll-ti l f r - . i lt i i r ti r ri . t tili s l d r i h o ar e ed . ll ti , it i ti ti , ' ll lt l ' t i ti . . James E. Haynes, Jr.,r was employed by Respondent as ) i t ll i i i r i . , Jr., as e ployed by espondent as ctober was because of his race. The charge contained a casual tr ck driver co encing in ay 1979.3 Save ^the following assertion: ' espondent produced substantial credible and essentially unchal- My accident On October 12, 1979, was mechanical f t i t f t r l s and e i i l 'All . O i l t . TRANSCON LINES 1429 15, 1979, and was allowed to complete his 30 days agreed that it might be unfair but that the matter was out probation to be considered on a permanent basis. of his hands. Barton several times claimed the discharge was not because of the accident. Chetkauskas rejoined on A copy of this charge was received by Chetkauskas on each occasion that casuals who had accidents could not December 17. It was his first notification of the existence be used by the Company and that this rule was the of the charge. Chetkauskas, thinking the charge refer- reason for Haynes' discharge. ence to the similarly situated employee referred to Barton again asserted that Haynes was being denied Haynes, tried to talk to Haynes that same day but his rights and that charges would be filed against the Haynes could not be reached. The next morning, De- Company with the NLRB and EEOC Chetkauskas re- cember 18, Haynes was summoned to Chetkauskas' office sponded that he did not disagree with Barton's assertions where he spoke with Chetkauskas and Kentros. Their of injustice and that, if he were Haynes, he would file conversation was openly recorded on Respondent's tape NLRB charges and "scream it to the highest rooftop." recorder. Chetkauskas asked Haynes if he had ever had Chetkauskas suggested Barton try and secure other em- an accident involving a separation from a tractor. ployment for Haynes but Barton asserted he would Haynes said no. Chetkauskas then asked Haynes if he obtain the return of Haynes to his employment with Re- had ever seen anybody damage Respondent's property spondent. The conversation then turned to Haynes' work Haynes said no. Chetkauskas then asked if Haynes had qualities. Chetkauskas made reference to the uniformly ever had an accident with Transcon. Haynes said no, ood attributes of Hanes and offered to recommend hesitated a moment, and then related the circumstances employment elsewhere. Haynes was broughtHaynes for employment elsewhere. Haynes was brought of the May events described above. in to the meeting at this point. Barton explained his own Chetkauskas told Haynes that company policy pro-t position regarding the dispute and that he was going to vided that if a casual employee has an accident that em- file a grievance on aynes behalf and inquire into the ployee cannot thereafter be employed by Respondent. possibility of EEOC and NLRB charges. The meeting Kentros asked Haynes if the accident had perhaps oc- ended 5 curred when he was driving for another company.rr e e s ri i f r t r . On January 24, 1980, the State of Arizona's depart- Before Haynes could answer Chetkauskas told Kentros- On Januy 24, 1980, the State of Arizona s depart- pointing to the running tape recorder-that Haynes' re- ment of law, civil rights division issued a no cause order marks were on tape r indig ng the statement that he had on Black's charge after investigating the matter pursuantmarks were on tape including the statement that he had to the deferral procedures of the Equal Employment Op- reported the accident to Johnson. Chetkauskas told to the deferral procedures of the Equal Employment Op- Haynes that Respondent could not use him anymore and portunity Commission The order stated there was no that he was terminated. The meeting ended. reasonable cause to believe an unlawful employment practice had occurred as alleged and dismissed the 4. Post-termination events charge. A grievance was filed by the Union concerning Haynes left Respondent's premises after his termina- Haynes' discharge which came before the Joint State tion and reported the events to Barton at the union Committee for the Trucking Industry of Arizona and office. Barton phoned Chetkauskas and a meeting was ar- New Mexico (the Committee)-the dispute resolution ranged for that afternoon. Chetkauskas, Barton, and forum established under the contract-on or about Janu- Haynes met at Chetkauskas' office. Almost immediately ary 28 1980. The minutes of those proceedings reflect Haynes was asked to step outside and did so. Barton and that the Union presented the argument to the Committee Chetkauskas continued the meeting alone. that Haynes was discharged because he was a union Chetkauskas told Barton of the EEOC charge, the two member and because of "reverse discrimination due to employees who had earlier confronted him regarding the the circumstances surounding his termination." In sup- matter, and his meeting with Haynes in which Haynes port of its argument the Union presented to the Commit- had admitted he had had an accident. The two men disa- tee the factual background resulting in Haynes' termina- greed on the propriety of Haynes' termination. Barton tion. Respondent asserted that in investigating the merits asserted that Haynes was being used as a "sacrificial of the EEOC complaint it first determined Haynes had lamb" and that "the whole thing stinks." Chetkauskas had an accident and then applied its firm policy not to employ casuals who had had a chargable accident. The These findings are a composite of the essentially corrobative versions Committee decision minutes contain the following reso- of each participant in the conversation. Two points were in dispute First, Chetkauskas and Kentros testified that there was a break in the meeting lution: during which time Haynes was asked to leave the room and Chetkauskas The motion was made and seconded that there is no consulted by telephone with his Los Angeles based industrial relations department. Haynes did not recall such a hiatus. Each witness exhibited a violation of Article 41; therefore, the termination of sound demeanor. The telephone call is not implausible for Chetkauskas Mr. Haynes is proper. The motion carried. may well have sought guidance in this unforseen situation Such an oc- currence is not likely to be incorrectly recalled by an honest witness These findings are based upon the credited testimony of Barton Since Haynes may have simply forgotten the interruption I credit Che- Baon had a sound demeanor and demonstrated a detailed recollection oBarion had a sound demeanor and demonstrated a detailed recollection of kauskas and Kentros and find that the telephone call occurred as theykauskas and Kentros and find that the telephone call occurred as the events. Chetkauskas had essentially no recollection of the details of this described. Second, Haynes denied that he ever told Respondent's agents c b . hithis meeting tt he kw of a c y re tt conversation but what he did recall generally corroborated Barton. Whilein this meeting that he knew of a company rule that an accident by a there is some evidence Kentrosthere is some evidence Kentros was present briefly at the conclusion ofprobationary or casual employee required his discharge While this he did not testify concerning this onvrsation the conversation, he did not testify concerning this conversation.remark was attributed to Haynes by Kentros, Chetkauskas does not cor- roborate Kentros on this point nor does the written statement of Chet- Insofar as the record reflects, the minutes are the only written record kauskas' or Kentros' own minutes of this meeting of the Committee's ruling or the basis of its decision i i l l i t l t ' rti i ti l ' i i r f i t l r ti i . t t if i ' rt . i . t t if l i r i t it . i , g i yne i t H „in ti t i i t. rt l i i l ^Chetausks tod Hanes hat o pay poicy ro- position regarding the dispute and that he as going to i t t if l l i t t t - H ' l t t ft r l t. il ti i t .' u , , r f r l r t t l tros- ° ment flaw c2 4, 19 80r t he s t a te f ri rt- pointing to the running tape recorder--that Haynes' re- ment of law, civil rights division issued a no cause order t i l in t e state ent t t B l ac k 's c h ge a ft i t . hetkauskas told to the deferral procedures of the Equal Employment Op- l t use hi any ore and portunity Commission. The order stated there was no ti .h mreasonable t li an unla ful e ploy ent t-t r i ti l r i l t' i i i i i i i t ti t li t t t - ' l l , t t i i . t t t l t f t r , t t e er and because f "reverse discri ination due to rl r i i tt , i ti i i i i i i i i t. ' r t i ' i ti rt i t i t l l l l l i t fi i r it t i ll i i tt i i . 6 i g i ti t l t t kas ult s t i l f . n i rtn „. ,, , . , „ , - - , ,- /,,~~~~~5These Cindings are based upon the credited testimony of Barton. , l- , , ,.,.t.i iSince Haynes may have simply forgotten the interruption, I credit Che , t i s s t i e C h e no i, - th detai o ti. .. .c. j., j -_ i i_ ,^n -> . ' ~~~~~events. Chetkauskas had essentially no recollection of the details of this , ,. . . .* , , , . ' ., *- ~~~~~~conversation b he di r g c Bo ile probationary or casual employee required his discharge While ths Ithere is s i tr s r t ri fl t t l i f , .. -i , .. .,, . ' -,. , , ,~~~~~~~the . ' ' , ' l ' i t i i findings l 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article 41(a) of the current collective bargaining agree- the General Counsel's case is the factual argument that ment states in part that during an employee's probation- Respondent discharged Haynes not because of his acci- ary period: dent but rather because of Black's EEOC allegation. The [H]e may be discharged without further recourse, elements and Respondent's defenses thereto are consid- provided however, that the Employer may not dis- ered separately. charge or discipline for the purpose of evading this . r Agreement or discriminating against Union mem- a. Do the protections of the Act apply to single bers. employees who file charges with the EEOC and, if so, do these protections extend to other employees to B. Analysis and Conclusions protect them against employer discrimination motivated by the EEOC charge? 1. The threshold issue-deferral to the determination of a contractually established The General Counsel argues that the filing by Black of grievance resolution procedure the EEOC charge is protected concerted activity under the Board's recent articulated constructive concert doc- Respondent urges deferral of the instant case to the trine which attributes a collective or concerted purpose ruling of the contractually established Committee under to single employee actions in dealing with governmental the Board's doctrine established in Spielberg Manufactur- agencies concerning employment regulations. 9 The Gen- ing Company, 112 NLRB 1080 (1955). The General eral Counsel then analogizes such protected activity to Counsel opposes such deferral. Each party argues its po- the situations where an employer illegally discriminates sition is consistent with the Board's holding in Suburban against otherwise uninvolved employees in an attempt to Motor Freight, Inc., 247 NLRB 146 (1980). In that case conceal other discrimination against union activity. A the Board, overruling prior law, stated: second discharge to hide an initial illegal discharge is In specific terms, we will no longer honor the re- also illegal. 1 The General Counsel also calls attention to suits of an arbitration proceeding under Spielberg the Board's decision in Sioux City Foundry, 241 NLRB unless the unfair labor practice issue before the 481 (1979), as persuasive of his position. Following the Board was both presented to and considered by the General Counsel's theory here the Board found in that arbitrator. In accord with the rule formerly stated case that an employer discharged two employees in vio- in Airco Industrial Gases, 7we will give no deference lation of ection 8(a)() of the Act when it fired them to an aribration award which bears no indication for the purpose of avoiding or defending against an unre- that the arbitrator ruled on the statutory issue of lated job applicant's threats to file charges with the discrimination in determining the propriety of an EEOC. The Board found the single job applicant's threat employer's disciplinary actions. to file sexual discrimination charges with the EEOC con- structively concerted and hence protected activity. That In the instant case the minutes of the Committee's de- protection extended to the two individuals whose termi- cision state only that Haynes' discharge was not in viola- nations were undertaken by the employer in an attempt tion of article 41 of the collective-bargaining agreement, to meet the threatened EEOC charges. which article only protects against employer discrimina- Respondent defends against the General Counsel's ar- tion based on employee union membership or discrimina- gument by noting the statement by the General Counsel tion based on contract evasion. Neither subject is theory is dependent specific issue herein. The decision does not indicate that continuing vitality of the constructive concerton the continuing vitality of the constructive concert the protected concerted activity theory of the General theory of Alleluia Cushion and its progeny. Respondent Counsel advanced in the instant case was in any way notes that this Board doctrine has been rejected by var- considered by the Committee. There being no evidence ious courts of appeals including the Ninth Circuit in ious courts of appeals including the Ninth Circuit inthat the Committee ruled on this statutory issue, 8 it fol- ri n i in i. rwhose jurisdiction this action lies. Thus, argues Respond-lows that no deference may be paid to its holding. Ac- the eneral ounsel has ceson cordingly, I decline to defer to the award and shall turn en the Gene ral Counsel has conceded h is case rests on~to the merits of the cas . a doctrine specifically rejected by the Ninth Circuit. to the merits of the case. Second, Respondent notes that the protections which 2. The discharge on its merits may arguably extend to Black in filing his charge with the EEOC do not necessarily attach to Haynes who did The General Counsel's case may be roughly divided not himself engage in or have any connection to conduct into two elements. The first element is the legal argu- protected by the Act. Nor, in Respondent's view, would ment that Haynes was protected by the Act from dis- employee Section 7 rights be chilled were discrimination crimination against him intended to improve Respond- of the type contended by the General Counsel to have ent's defense to Black's charge. The second element of occurred. This is so, Respondent asserts, because the ~~~~~~-------- ~~person whose activities are to be protected-the filer of ' Airco Industrial Gases-Pacific. a Division of Air Reduction Company. the EEO chareiiihas "n o mmn interests or fsympa Incorporated, 195 NLRB 676 (1972). the EEOC charge-has "no common interests or sympa- 'Respondent argued that the fact that the Committee, contrary to normal practice, met several times during the hearing of the dispute, sup- See the fountainhead case, Alleluia Cushion Co., Inc. 221 NLRB 999 ports the inference that the General Counsel's theory was considered. I (1975), and its progeny. reject this view. I rely only on the decision itself and decline to infer ' The General Counsel cites: Jack August Enterprises. Inc., 232 NLRB from circumstances that a particular argument was considered, and ruled 881 (1977); Armor Industries. Inc.. 227 NLRB 1543 (1977), and Haynie on, sub silentio, by the Committee. Electric Co.. Inc. 225 NLRB 353 (1976). , i r r is i li f r t r i t i a .D t p o t A r t i i i ti i t a, D o ' P t the Age n oemployees who file charges with the and, if so, T h e G e n e r a l C o u n se l t h a t t h e B l a c k o f th e E E O C s " . t In specific ter s, e ill no l r r t r - l ill l 0 r l l l ll ti i i i t h e B o ar d 's ec i ry, i 4 8 1 97 9), as P r i iti . l i G en er a l C o u ns e l 's he r e t h e B o ar d fo u n t h at l t t c as e t h a t a n l r i r t l y s in vio- ial s,'7 i l a t o n o f S e c t io n ( )(1) o f th e A c t w h e n it fir ed t hem ti i f o r i i i i t i t t r l a ted l i i t r i i E E O C . T h e fo u n d t h e l i li ry ti . t o le sex u al i i t ti l ti it . it ee' ti l i l ' l i i t . i ti l l i t l i i i t i t r l ti l i i i i i r l l ti t t i . it j t i t a t h t Government's theory cifi i i . i i i i o li tr ti ti i r l t l i t i t t i t s t t t i r tri has r j ct y v r- i r t itt . r i i i i t i i... ,-, .. ,, r ... - «-.ri ~~~ious i t at 8 . ,. - *r -in jthattheComitte rued n tis tattoryisse,"it ol- hose jurisdiction this action lies. hus, argues espond- l t t f r i t it l i . - ehe Guraldcons aston de d his ase reston i l , I li t f t t ll a re neral reject ed his C ircst. to the merits of the case. a d o c t r ln e *'peciicly rejected by the inth ircuit. econd, espondent notes that the protections hich . ' ' ' ------- ~~~~~~~~~~~~person ted- f I irco I t i ., peson aroea - iv t a n r trprc he ime o Incorporated, 195 L 676 (1972). lt e i t t ' Respondent r l . 1 ), ° , ); , ), tio, ., . e r e d -_ I>>D t t . 7 t t r t e i t TRANSCON LINES 1431 thies" with those who might be adversely affected by the charge. The General Counsel's theory then depends on a employer. Thus, here, Black is not aligned in interest finding that the motive of Respondent in discharging with Haynes. Haynes was to defend against Black's charge rather than For the reasons hereinafter stated, I agree with the other legitimate business reasons such as enforcing its General Counsel that the protections of the Act extend rules concerning employees who have accidents. Re- to shelter uninvolved employees from discrimination by spondent argues that its discharge of Haynes was based employers motivated by discrimination charges filed with entirely upon its uniform enforcement of permissible government agencies by single employees alleging dis- rules of employee conduct. crimination based on race. Respondent at all relevant times had unambiguous I reach the above result guided by the general princi- rules concerning employee vehicle accidents. Its Oklaho- ples contained in the cases cited by the General Counsel ma City, Oklahoma, safety division evaluates accidents and, more particularly, due to the holding of the Board reported to it by Respondent's various terminals and ren- in Sioux City Foundry, supra. The legal theory of that ders a judgment on whether they are "chargeable" to the case differs from the theory asserted by the General driver because they were preventable. There is no doubt Counsel in the instant case only in that (1) the initiating and I find that Respondent's rules, which require the ter- protected action was a threat to file a discrimination mination of casual and probationary employees who charge by a job applicant, not the actual filing of a have chargable accidents, are not impermissible rules of charge and, (2) the discrimination allegation involved sex employee conduct. It follows therefore that if Respond- rather than race. These differences are of no legal conse- ent terminated Haynes because of his violation of the quence. The filing of a charge with a government rules and not because of Black's EEOC charge, his dis- agency is no less protected than the threat to do so. Em- charge is not impermissible. ployees and job applicants are equally protected by the The General Counsel's argument does not challenge Act. Finally, the Board makes no distinction between the validity of Respondent's rules but rather disputes racial and sexual discrimination but finds the protest of their application to the Haynes events. In his brief coun- each to be protected activity in appropriate situations. sel for the General Counsel calls Haynes' accident "ex- Without addressing Respondent's assertions regarding tremely minor" and adds: the degree of acceptance of the Board's constructive concert theory in the courts of appeals, it is sufficient to Such an "accident" could not seriously be envi- note that as an administrative law judge I am bound to sioned by the Respondent as the type of accident follow Board precedent which has not been reversed by which would constitute a dischargable offense. the Supreme Court. Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1965). Accordingly, it is appropriate to turn to The General Counsel buttresses his argument by noting the second element of the General Counsel's case, the that when the accident was reported to Johnson, Re- issue of Respondent's motive in terminating Haynes. spondent's admitted agent, he told Haynes no further action was warranted and did not require Haynes to fill b. Was Haynes' discharge motivated by Black's EEOC out an accident report. The General Counsel further charge? argues that Respondent's concern on December 18 was In examining the evidence adduced by the General the EEOC charge rather than the May accident. He Counsel in support of its discharge allegation, it is impor- notes that Chetkauskas dismissed the report by the two tant to note what the General Counsel is not arguing. It employees of the occurrence of a preventable accident is undisputed that Respondent fired Haynes based upon by Haynes without even a cursory investigation at a time its interrogation of him as part of its investigation of he when he had not yet had notice of the EEOC charge. It EEOC charge filed by Black. It is reasonable to believe was only when the charge was received, the General that Respondent would not have learned of Haynes' May Counsel argues, that Respondent became interested in an accident as opposed to the contended later accident had accident by Haynes. it not been for Black's charge and the subsequent investi- Respondent introduced evidence showing it has regu- gation. If the General Counsel were arguing that infor- larly enforced its rules regarding accidents. Each acci- mation gained in the investigation of an EEOC charge dent declared preventable by Respondent's Oklahoma could not be the basis of actions against other employees, City office in recent times was the basis of subsequent i.e., some form of immunity, then the General Counsel employee discipline consistent with Respondent's rules. would be arguing for an automatic violation here irre- Some of these accidents were relatively minor in terms spective of Respondent's motives." Rather the General of physical damage to vehicles. No written rule address- Counsel is arguing that Respondent took the action it es the question of minor accidents. While the Oklahoma did, not because of any legitimate interest in enforcing its City office did not have an opportunity to rule on the rules regarding accidents, but rather because of Black's Haynes accident, for Chetkauskas fired Haynes immedi- ately upon learning of the accident from him, the record " Nor would such an argument if made have prevailed. The Board has is clear and I find that any accident involving striking a specifically ruled that even testimony in an unfair labor practice hearing building 2 would have been classified by Oklahoma City may provide the basis of not otherwise improper adverse action against a as a preventable accident and that Chetkauskas so knew wrongdoing employee. Los Angeles County District Council of Carpenters w h frd . United Brotherhood of Corpenters and Joiners of America. AFL-CIO: Elec- en e re aynes. tronic and Space Technicians Local 1553. AFL-CIO (Hughes Helicopters. Division of Summa Corporation. 224 NLRB 350 (1976). No issue of mechanical failure was raised. ) ,. , . t h e i t l r l ti i n o t es t h at t i i t r rt t t r l l i i . l t rr f r t l i t i b H ay n es w t h o u t e v en a ti ti ti ti ti t w he n h e ha d n o t t h ad o t i c e o f t h e E E O C c h r . It l t l l w as w h en t h e i , t r l o un el t h at t i t i t i t M . t ti i ti f l l i i l i i t . i i ti ti d en t ' l l i i t i t i r l l ' l i ti o m e o f t h es e i l i l i i t r i l . tt l i t ti es t he i i il t l f i t y i i t t it t r l t r i i , ' es fi i i- l i i t Stri 1 r i t sis f t t er ise i proper adverse action against a as a preventable accident and that hetkauskas so knew ,. , j u a ica. wh h fr d H S - IO ). ). No i i l f il r s r is . ' 1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To meet the General Counsel's arguments that Haynes rigidly apply the rules. Chetkauskas thus would feel accident did not rise to the level of a reportable accident compelled to fire Haynes because the accident report Respondent introduced two types of evidence. First it was not subject to be ignored with the confidence that elicited uncontradicted evidence that Johnson, during the no one outside the terminal would ever learn of the period from May, the month of Haynes' accident, until matter. Under this analysis, it was the presence of the his separation from Respondent in August, was lax and tape recorder and the official nature of the EEOC in- inattentive to his work particularly as to paperwork and quiry which caused Haynes' accident to be treated as a procedure. Respondent also demonstrated that Johnson rule violation rather than ignored or forgiven-Haynes had not followed approved procedures as to personnel was fired because he had the misfortune to speak at the matters such as attendance recordkeeping and accident wrong time. This scenario is supported by Chetkauskas' reporting. I find this evidence persuasive of the proposi- remarks to Kentros in the termination meeting. Kentros tion that Johnson was negligent in following Respond- attempted to coach Haynes into modifying his earlier ent's procedures and that no substantial weight should be report of the accident by claiming the accident occurred accorded the fact that Johnson did not report Haynes' while working for another employer. Chetkauskas inter- accident consistent with procedure. Johnson was not rupted and, pointing to the running tape recorder, noted doing what was required by Respondent. No pattern of that Haynes' report could not be changed because it was granting exceptions to the rules is thus established. on tape. Such a motive by Chetkauskas would explain Second, Respondent showed its accident rules were uni- his remarks to Barton in which he agreed with Barton's formly applied. Repondent's agents Chetkauskas and protestations of injustice in Haynes' discharge but assert- Kentros testified without contradiction that each report- ed the matter was out of his hands. 3 ed and acted according to procedure on all accidents What is critically lacking in the General Counsel's they learned of by whatever means and that they knew proof as to either discharge theory, however, is even a of no unreported or ignored accidents. Chetkauskas also scintilla of evidence that any accident, however minor, testified that he would have acted as he did on learning was condoned, forgiven, or otherwise unreported or not of Haynes' accident on December 18 irrespective of the eventually acted upon by Respondent's agents save John- circumstances of the discovery-EEOC charge or not. son. Respondent has done all it could to prove the nega- It is not implausible that an employer's agents would tive proposition that it allowed no exceptions in the ap- let pass unreported minor transgressions which violated plication of its accident rules other than unwillingly and the letter but not the spirit of a company rule. This may unknowingly through the unreliable Johnson. Respond- be particularly true where the rule, if invoked, could be ent's witnesses credibly testified that they knew of no ex- foreseen as requiring a draconian punishment out of all ceptions allowed under the rules. Respondent produced apparent proportion to the transgression. If such is the substantial documentation showing that its accident re- case here, i.e., Haynes' accident was a minor matter not procedures are regularly utilized and the rulesporting procedures are regularly utilized and the rules worthy of formal treatment which would cause Haynes' formly applied. Thus, while the General Counsel has discharge, Respondent's later invocation of the accident adduced some circumstantial evidence tending to dis- rule during the EEOC investigation would indicate the adduced some ccumstantio, the eneral Counsel of- asserted reason for the discharge was pretext. Such an count Respondent's assertions, the General Counsel of- fered no direct evidence of exceptions to the accident re-overreaction to an event earlier forgiven would not be a ence eptons to th normal or customary act but rather the exaggerated and ortng n rue enfo ent procedures otr th through Johnson. If Repondent has condoned or forgiv-defensive manifestation of an employer determined to J I R h c en accidents by employees of the type Haynes describeddefend itself against an EEOC charge by creating, post en accidents by employees of the type Haynes described to Chetkauskas, employees or other witnesses or recordshoc, a strict, invariable rule against accidents, however to C, e o o w o minor. The General Counsel's evidence, noted supra, should have been produced by the General Counsel to sominor. The General Counsel's evidence, noted supra, tends to support this view. So, too, do the statements of n dcate Evidence of a minor accident ignored or forgiv- Chetkauskas to Barton immediately after Haynes' termi- en woud have been rect evdence ofa de m s nation that Chetkauskas too would protest the termina- threshold standard required to trigger Respondent's en- tion in similar circumstances. Further, Chetkauskas spent forcement of the rules Without such evidence, on this a great deal of time telling Barton about the EEOC record, I cannot but find that Respondent has established charge rather than dealing exclusively with Haynes' acci- by a preponderance of the evidence that its rules were dent, thus revealing the EEOC matter was much on his uniformly enforced and that Chetkauskas would have mind. taken the action he did in firing Haynes under any cir- It may also be argued that Chetkauskas did not fire cumstances whether or not the EEOC charge had been Haynes because of a motivation to defend Respondent filed against Respondent. The General Counsel's circum- against the EEOC charge, but rather because Haynes' stantial evidence does not meet Respondent's evidence report of the accident was made at a time when his re- mareport of thwere b eing recorded on tape and, t a time when his re- Since this latter view of the facts was not argued by the General marks were being recorded on tape and, presumably, the Counsel, it is not clear whether the General Counsel's theory of a viola- tape would be subject to review by higher officials in iion includes the situation where Haynes was terminated not because of other locations as part of their investigation of the the contentions of the EEOC charge but rather because his disclosure of EEOC charge. Minor matters could perhaps be forgiven the accident occurred during the investigation of the EEOC charge and at the local level, but Respondent's agents outside the therefore was treated formally and was not excused or forgotten as it would have been if the accident was revealed in another context. In view terminal could not with confidence be expected to be of my additional findings, infra, it is unnecessary to decide if such a factu- forgiving to either the driver or the agent who failed to al resolution supports a violation . . ' ' 1 r i ll i i i ll l i i t r l l' r i i t , r, i i t . l i till i t t i t, r i r, ti i ' i t ti t a l r t ll l t i i iti l ti l t t i t i i i l li i it i t l il l l i i i l l rti l rl t t l if i l ' i l ti f r i i i i t t ll ti ll t l . t r t r rti t t t i . If i t t nti l t ti i t t it i t r - ~ ' i t , r l rl tili t r l uni li , il r l l ti i t uniforly app i t ti l i t i t i - ti ti adduc Respondent's assertions, t e General l f- rt e tions, the accid l f- overeacion o a vnt erlir fogivn wuld ot e a fere ir t e i e ce f e ce ti s t t acci e t re- t rli r f r i l not be a^ nocmn rcdrsohrta pt a d rl hr t defensive manifestation of an employer determined to t . t s r f r i - t -. , , r , .. ,r . . cc."^ i. i- t- m t i , .*** 1.1 i * . -i . i ~ ~~~to , 1to , e r h w e recrd i r i icate. i f i r i t i r r f r iv- l ' i e n w o u ld h a v e be en dir ec t e v id en c e o f a de m inim s o r ti l t r ir t tri r t' - i i s. t f t f t r l . it t s c vi c , on this l l r ec o r d , c an n o t b ut n d t h at t li li l i ly ' i f t i t t its r l s r li f t t t l ti i t t e d t. l l' ir - i t ' st an t a l t t t' i r rt f the cci t as ade at a ti his re-------- marks ere being recorded on tape and, presumably, the„ " si l i t r vi w f l f l s t r e h y t r al marks were being reco ded on tape and, presu ably, the Counsel, it is not clear hether the eneral ounsel's theory of a viola- S Offi i l t r i t t f Ot h e at the local level, but espondent's agents t i t t er efo e w as r eated f r ma ly and w as not cused or forgo ten as l Wi , i f , t i if f t - . i t TRANSCON LINES 1433 here. Even assigning the burden of proof to Respondent protect Haynes from discrimination by Respondent moti- on this issue, I find that Respondent, through Chetkaus- vated by Black's charge. Notwithstanding all of the kas, would have terminated Haynes upon learning of the above, I have also found that Respondent fired Haynes accident as Haynes reported it to him on December 18, because he violated Respondent's permissible and uni- 1979, even if Black had never filed his charge with the formly enforced rule against retaining probationary or EEOC. 4 I find therefore that the termination of Haynes casual drivers who have had a preventable accident. was not because of the protected concerted activity of Therefore, I have found the allegations of the complaint Black. Thus, no violation of Section 8(a)(l) of the Act are without merit and should be dismissed. has occurred as alleged in the complaint. Accordingly, I Upon the foregoing findings of fact and the entire shall dismiss the complaint in its entirety. record herein I make the the following: C. Summary CONCLUSIONS OF LAW I have considered Respondent's motion to defer this 1. Respondent is an employer engaged in commerce matter to the Committee decision rendered under the within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean-contractually established grievance resolution process. n a labor organization within the mean- have declined to defer because of my determination that ng of Secton 2(5) of the Act. 3. Respondent did not commit any unfair labor prac- the Committee decision did not indicate on its face that ponn t i not commit an nai lao pac the Committee had considered the statutory issues here pon the foregoing f ings of fact, conclusions of presented in reaching its decision. I have determined that , an the fentre re cord herein, and pursuant to Sec- Black's action in filing an EEOC charge constitutes pro- tion 1 ) the ct, I isue td he following recommend- tected concerted activity within the purview of the Act e which protection extends to all those who might suffer discrimination motivated by Respondent's desire to ORDER 15 defend against the charge. Such protection applies to The complaint shall be, and it hereby is, dismissed in '' Such a determination precludes the necessity of deciding if the Gen- its entirety. eral Counsel's evidence rises to the level of a prima facie case of illegal motivation. This is so for, even if such a case is made, a subsequent con- '5 In the event that this Order is enforced by a Judgment of a United clusion that Respondent would have taken the action it did even in the States Court of Appeals, the words in the notice reading "Posted by absence of the protected activity requires a finding that the activity was Order of the National Labor Relations Board" shall read "Posted Pursu- not illegal Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 ant to a Judgment of the United States Court of Appeals Enforcing an (1980). Order of the National Labor Relations Board." U.S. Government Printing Office 1982-361-554/6 kaswoud h ve erm nate Ha nesupo lernin ofthe abo e, hav alo f und tha Respondent fie Hayn fr 1 1 )(l) r CONCLUSIONS i . t i l r i r tt t itt i i t it i t i ti ( ) ( ) f t t ctua ly t li l ti I 2 h e n io is l i ti it i t - l r i ti i t. tt i i 3 R d com mit, tt i t t tcpon f i ftcm i f t, l i f i i i . Upo foreg oing f indingo fac t, concl us n o ti i ti law, and enir r ecord here f ll i rec e - thhi f i t t r . t ti li T .s. . . 1 < r I* i t e t l l ). i vernment ffice ' s ice: