Trojan Transportation, Inc.

National Labor Relations Board - Board Decisions

May 20, 1980

249 N.L.R.B. 642 (N.L.R.B. 1980)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trojan Transportation, Inc. and James P. Leale.
Case 4-CA-10161
May 20, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELIO
On February 11, 1980, Administrative Law
Judge Irwin H. Socoloff issued the attached Deci-
sion in this proceeding. Thereafter, Trojan Trans-
portation, Inc., Respondent herein, filed exceptions
and a supporting brief and the General Counsel
filed 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, find-
ings, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Trojan Trans-
portation, Inc., Delanco, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
I Respondent argues that, if it is required to make the alleged discri-
minatees whole, backpay and seniority should date from the time two
employees were added to the ork force without recalling the alleged
discrimiliatees This argument presupposes that the alleged discriminatees
were laid off for economic reasons and that the violation of the Act oc-
curred when Respondent hired new employees without recalling them.
On the contrary, the Administrative Law Judge concluded that the al-
leged discriminatees were discharged, not laid off, on December 15, 1978,
for engaging in protected concerted activity, a conclusion we affirm. Ac-
coirdingly. we conclude that backpay and seniority should date from De-
cember !, 1978, the date of the unlawful discharges. In mitigation of its
backpay liability, Respondent may attempt to show in compliance pro-
ceediigs that the discriminatees would have been laid off for economic
reasons at some time after December 15, 1978, had they not been dis-
charged for engaging in protected concerted activity however, Respond-
ent is precluded from attempting to show, contrary to our findings, that
the alleged discriminatees were laid off on December 15, 1978, for eco-
nomic reasons
249 NLRB No. 84
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because
they have filed contractual grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer James P. Leale and Ernest I.
Harris, Sr., immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges previously enjoyed.
WE WILL make James P. Leale and Ernest
I. Harris, Sr., whole for any loss of earnings
they may have suffered because of the discrim-
ination against them, plus interest.
TROJAN TRANSPORTATION, INC.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
a charge filed May 2, 1979, by James P. Leale, an indi-
vidual, against Trojan Transportation, Inc., herein called
Respondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 4,
issued a complaint dated June 29, 1979, alleging viola-
tions by Respondent of Section 8(a)(1) and Section 2(6)
and (7) of the National Labor Relations Act, as amend-
ed, herein called the Act. Respondent, by its answer,
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Philadelphia, Pennsylvania, on December 7, 1979, at
which the General Counsel and Respondent were repre-
sented by counsel. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation engaged in
the operation of a trucking business at its Delanco, New
Jersey, facility. During the year preceding issuance of
the complaint, a representative period, Respondent, in
the course and conduct of its business operations, re-
ceived more than $50,000 for the transportation of goods
and merchandise from the State of New Jersey directly
to points located outside that State. I find that Respond-
TROJAN TRANSPORTATION, INC. 643
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It. LABOR ORGANIZATION
Local Union No. 830, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
Trojan Transportation, Inc., a wholly owned subsidi-
ary of Food Fair, Incorporated, is a "contract carrier"
licensed by the Interstate Commerce Commission, and
hauls, by truck, merchandise sold in retail food and de-
partment stores. In 1978 some 95 percent of Trojan's
hauling activities were performed for Food Fair. In Oc-
tober of that year, after the filing of a bankruptcy peti-
tion, Food Fair reduced the scope of its business oper-
ations causing a decrease in hauling work available to
Trojan. In this case Respondent contends that, when, on
December 15, 1978, it laid off truckdrivers James Leale
and Ernest Harris, it did so as part of an effort to reduce
operating expenses in response to its decreased volume of
business.
The Union is the representative of Trojan's truck-
driver employees. At the time of the layoffs the drivers
were covered by a collective-bargaining contract, negoti-
ated by Respondent and the Union, effective August 30,
1976, to April 30, 1979. The General Counsel urges
herein that Leale and Harris were laid off, and were not
thereafter recalled, in violation of Section 8(a)(l) of the
Act because they sought to enforce certain provisions of
the contract.
B. Facts'
The contract requires that each covered employee be
paid for certain holidays, including Election Day and
Thanksgiving Day, provided that the employee works
"both the scheduled full workday before and the sched-
uled full work day after" the holiday. In 1978 Harris
worked both the day preceding and the day following
Thanksgiving Day. While Leale "called-in" on both the
Wednesday before and the Friday after that holiday, he
was told on both occasions that work was not available
for him. When they obtained their paychecks following
the holiday, Leale and Harris discovered that they had
not received Thanksgiving Day pay. Thereafter, Harris
raised the matter with Raymond Robinson, the then dis-
patcher and a conceded statutory supervisor, who told
Harris that he was entitled to the holiday pay. When,
nonetheless, Harris did not receive that pay, he referred
the matter to his shop steward, truckdriver Robert
Vaughn. Leale also asked Vaughn to investigate the
I The fact findings contained herein are based upon a composite of the
testimony of Leale. Harris, truckdrivers James Diamond and Robert
Vaughn, and Respondent's president, Leonard Schaeff, all of whom im-
pressed me as truthful witnesses. I have not credited the testimony of Re-
spondent's vice president, Albert Berman, who was an evasive and, at
times, self-contradictory witness.
matter after first speaking to Robinson and to Respond-
ent's vice president, Albert Berman, who told him that
he, Leale, would not be paid for Thanksgiving.
In early December 1978 Vaughn met with Respond-
ent's then general manager, Abraham Berman, now de-
ceased, concerning the holiday pay issue, the first step in
the contractual grievance procedure. Berman stated that
Harris and Leale were not entitled to the claimed holi-
day pay since they did not work the day preceding and
the day following Thanksgiving. Vaughn again met with
Berman I week later, and told him that the union busi-
ness agent insisted that Harris and Leale be paid for the
holiday since both employees were available for work on
the days surrounding Thanksgiving. At that point
Berman said that there would be no further problem
about the matter.
On Friday, December 15, when Leale asked Robinson
for a reporting time for the following Monday, Robinson
replied, "No, the only thing I have for you is your check
for Thanksgiving and as of today, you're laid off." On
that same day Abraham Berman gave Harris a check
covering Thanksgiving Day pay, and told him that, as of
that day, he, Harris, was laid off because of a lack of
work. Neither Leale nor Harris was thereafter recalled. 2
Immediately preceding the layoffs, truckdriver James
Diamond was present in Respondent's offices during a
discussion among Robinson, Abraham Berman, and
Albert Berman. At that time Abraham Berman handed
two checks to Robinson, stating:
Ray, here's Leale's and Harris' holiday pay for
Thanksgiving. Call them up. Tell them to pick up
their checks and lay them off. I don't know how
you feel about it but I don't want those mother
fuckers working here anymore.
In January Abraham Berman told Diamond that he,
Berman, had heard that Diamond had had a lot to say to
the other drivers about the layoffs. Diamond reminded
Berman of the December 15 conversation in Respond-
ent's offices. Berman replied that that was the second
time that Leale had "fucked" him, and that it would not
happen again.
As noted, Respondent contends that the Leale and
Harris layoffs were economic in nature and caused by a
decided decrease in business activity. Thus, prior to
those layoffs, on November 7, 1978, Respondent had laid
off its most junior driver, John Daniels, for lack of
work.4 Leale and Harris, laid off on December 15, were
the next most junior truckdrivers. There were no further
layoffs. Albert Berman testified that, following the lay-
offs, there was an increase in available work, requiring
additional drivers. Thus, on April 9, 1979, Respondent
a In January 1979 Leale filed a complaint with the Department of
Transportation, claiming, inter alia, that Respondent's drivers were work-
ing in excess of 15 hours per day in violation of DOT regulations. The
record in this case does not contain evidence sufficient to show that Re-
spondent learned that Leale was the complainant in that matter.
I Preceding the Thanksgiving Day pay matter, Leale had complained
to Respondent about its failure to pay him for the Election Day holiday
4 At that time Respondent also laid off driver Joseph Haughey How-
ever, Haughey was immediately recalled when Respondent realized that
he had been laid off "out-of-seniority."
TROJAN TRANSPORTATION, INC.
_ _
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recalled Daniels who, as indicated, was junior in senior-
ity to both Harris and Leale. In addition, four new driv-
ers were hired. Nonetheless, Respondent did not offer to
recall Harris and Leale.A
C. Conclusions
While I accept Schaeffl's testimony that in the latter
part of 1978 Respondent suffered a decrease in its
volume of business, I nonetheless conclude that Leale
and Harris were laid off in violation of Section 8(a)(1) of
the Act as a reprisal for their grievance activities. That
that was Respondent's reason for the sudden layoffs of
those employees is revealed implicitly in Robinson's
statement to Leale at the time of the layoffs, and shown
explicitly in Abraham Berman's contemporaneous com-
ments to Robinson, Albert Berman, and Diamond. In
1979 Respondent chose to recall Daniels, its most junior
driver, and then to hire new employees, rather than
recall Harris and Leale, actions explainable, on the state
of this record, only in terms of Respondent's hostility
toward those individuals because of their previous griev-
ance activities. 6 Indeed, there is not a scintilla of record
evidence showing that Harris and Leale were other than
satisfactory employees. In these circumstances, the
record permits no other conclusion than that Harris and
Leale were, on December 15, 1978, discharged, not laid
off, and that that action was taken because of Respond-
ent's anger about paying them Thanksgiving Day pay
following their grievance activities. Respondent then de-
cided that it did not want "those mother fuckers working
here anymore." I find and conclude that Leale and
Harris were discharged in violation of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
I The collective-bargaining agreement provides that laid-off employees
employed less than 2 years at the time of layoff are subject to recall for a
3-month period. Under that provision. Leale and Harris were subject to
recall until March 15. 1979.
6 It is true that after March 15, 1979, Respondent was not contractual-
ly obligated to recall Harris and Leale. Likewise, it was not contractually
obligated to recall Daniels. However, this factor does not explain why
Respondent chose to recall the junior Daniels, and then hire new em-
ployees, rather than recall Harris and Leale, who assertedly had been laid
off solely because of lack of work.
CONCLUSIONS OF LAW
I. Trojan Transportation, Inc., is an employer engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local Union No. 830, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging James P. Leale and Ernest 1. Harris,
Sr., because they filed grievances under the applicable
collective-bargaining contract, Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 7
The Respondent, Trojan Transportation, Inc., De-
lanco, New Jersey, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees because they have filed
contractual grievances.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer James P. Leale and Ernest 1. Harris, Sr., im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges.
(b) Make James P. Leale and Ernest 1. Harris, Sr.,
whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them by
payment to each of them of a sum of money equal to
that which that employee normally would have earned
as wages from the date of the discrimination to the date
of Respondent's offer of reinstatement, less net earnings
during such period, with backpay to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977) (see, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962)).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
? In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations ot the National Labor Relations Board, the find-
ings, 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.
TROJAN TRANSPORTATION, INC. 645
(d) Post at its facility located in Delanco, New Jersey,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Regional
Director for Region 4, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
T R O J A N T R A N SP O R T A TIO N , I N C~~~~~~~~~~~~~~~~~~~~~~~~~~~~~.