Van Haaren Specialized Carriers

National Labor Relations Board - Board Decisions

Feb 19, 1980

247 N.L.R.B. 1185 (N.L.R.B. 1980)

VAN HAAREN SPECIALIZED CARRIERS
Van Haaren Specialized Carriers, Inc., A Subsidiary
of Dobson Heavy Haul, Inc. and Vincent Sacco.
Case 7-CA-15685
February 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On October 29, 1979, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering 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 recommended
Order of the Administrative Law Judge and hereby
orders that the amended complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In affirming the Administrative Law Judge's finding that, under Spielberg
Manufacturing Company. 112 NLRB 1080 (1955), deferral to the arbitration
decision is not appropriate in this case, Member Truesdale relies only on the
fact that the arbitration decision does not reflect whether any consideration at
all was given by the arbitration committee to the issue of whether Sacco's
All dates referred to are in 1978 unless otherwise stated.
: These grievances as described by the General Counsel consisted of a
grievance filed by Sacco on May 30 and a threat made by him on September 7
to file a grievance.
alleged protected concerted activities could have been the reason for his
discharge.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard in Detroit, Michigan, on June 25 and 26,
1979, pursuant to a charge filed on October 23, 1978,' by
Vincent Sacco, an Individual, and a complaint issued on
December 29.
The complaint, which was amended at the hearing, alleges
that Van Haaren Specialized Carriers, Inc., A Subsidiary of
Dobson Heavy Haul, Inc. (herein referred to as Respon-
dent), violated Section 8(a)(1) of the National Labor
Relations Act, as amended (herein referred to as the Act), by
threatening its employee Vincent Sacco with discharge
because of his complaints regarding Respondent's placement
of him on its seniority list of employees threatened Sacco
with harassment and discipline because he filed a grievance
regarding Respondent's improper placement of him on its
seniority list of employees and discriminatorily discharged
Sacco and refused to reinstate him because of his protected
activity in filing and threatening to file grievances: with the
Union alleging that Respondent had violated its existing
collective-bargaining agreement with the Union and because
he threatened to file a complaint with the Department of
Transportation.
Respondent, in its answer dated January 5, 1979, which
was amended at the hearing, denies having violated the Act
as alleged. It also raised at the hearing as an affirmative
defense that the discharge of Sacco should, under Spielberg, '
be deferred to a decision rendered under the grievance and
arbitration provisions of the parties' collective-bargaining
agreement.
The issues involved are whether Respondent violated
Section 8(a)( 1) of the Act by unlawfully threatening Vincent
Sacco because of his complaints about and filing a grievance
regarding his placement on the seniority list, whether
Respondent discriminatorily discharged and refused to
reinstate Sacco because of his protected concerted activities,
and whether the issue of Sacco's discharge should be
deferred under Spielberg to the arbitration decision.
Upon the entire record in this case, from my observations
of the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby make
the following.'
'Spielberg Manufacturing Company. 112 NLRB 1080 (1955).
' Unless otherwise indicated the findings are based upon the pleadings.
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
247 NLRB No. 171
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONI)ENT
Respondent, a Michigan corporation with its principal
office and place of business located at Detroit, Michigan,
operates as a motor common carrier engaged in the business
of the interstate transportation of various commodities
including machinery. During calendar year 1977, a represen-
tative period, Respondent, in the course of its operations,
performed transportation services valued in excess of
$500,000 of which services valued in excess of $50,000 were
performed in the interstate transportation of goods through-
out States other than the State of Michigan.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (herein
referred to as the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and the Alleged Unlawful Threats
Respondent operates a terminal located at Detroit, Michi-
gan, where it is engaged in business as a motor common
carrier hauling commodities including machinery. Its super-
visory personnel include Terminal Manager Duane Craw-
ford and Dispatcher Randall Goddard.'
Respondent's employees are represented by the Union
with which it has a collective-bargaining agreement covering
them. This agreement known as the national master freight
agreement covering over-the-road and local cartage employ-
ees of private, common, contract, and local cartage carriers
was effective from the period April 1, 1976, through March
31, 1979, This agreement was also supplemented by a rider
effective during the same period.
Vincent Sacco, the alleged discriminatee, was employed
by Respondent as a driver from March 13 until his final
discharge on September 7 except for a period from on or
about July 19, when he was first discharged, until on or
about July 27, when he was reinstated.
Articles 5 and 43 of the collective-bargaining agreement
and article ii of the rider provide seniority rights for the
drivers and for a seniority list covering them.
The undisputed testimonies of Terminal Manager Craw-
ford, Dispatcher Goddard, and drivers Sacco, Fred Heintz,
and Norman Kaske, who is also the union steward, establish
that drivers are dispatched on the basis of their seniority to
the longest trips.
About the middle of May, Sacco had a conversation with
Terminal Manager Crawford at which Dispatcher Goddard
was present. Sacco's version of the conversation was that
upon questioning Crawford about a rumor going around
that Crawford had put a close friend of his on the top of the
seniority list Crawford told him that if he listened to what
the drivers said to him he was not going to have a job there
any longer. Crawford further stated that he ran the place the
way he wanted, and he was the boss. He then picked up the
seniority list, showed it to Sacco, and told him he could see
that he started work on March 13 while Robert Galecki,
who was the driver Sacco had referred to as being Craw-
ford's close friend, had started work on March 3. Crawford
then put the list down and told him if he ever came back
over there again and said things like that to him he would
not have a job.
Crawford acknowledged that Sacco had questioned him
about how his placement on the seniority list was arrived at,
that he had shown him the dispatch record, and that he
pointed out Galecki had more seniority. However, Crawford
denied making those statements attributed to him by Sacco
or saying anything about Sacco not having a job. Crawford
also denied that Sacco mentioned Galecki was a close friend
of his.
Goddard corroborated Crawford's testimony regarding
this conversation.
I credit the testimonies of Crawford and Goddard rather
than Sacco, whom I discredit, and find that Crawford did
not threaten Sacco with discharge because of his complaints
regarding his placement on the seniority list as alleged.
Apart from my observations of the witnesses in discrediting
Sacco, his testimony was self-contradictory.
Sacco described Galecki as being a close friend of
Crawford on the basis that he was the only person allowed to
go in the office and use the typewriter, he had put notices on
the bulletin board, and he was running for the position of
union steward. On cross-examination Sacco acknowledged
that he never observed Galecki using the typewriter or
posting notices on the bulletin board.
Robert Galecki credibly denied using the typewriter or
running for union steward. He did acknowledge posting a
notice on the bulletin board about having an election for
union steward. Both Galecki and Crawford also denied that
they were friends.
According to both Crawford and Galecki, Galecki was
hired by Respondent on March 3. After working for
Respondent about a week, while on sick leave from Ford
Motor Company where he was still employed at the time, he
returned to Ford Motor Company with Crawford's permis-
sion where he then gave notice he was quitting. After
working out a 2-week notice at Ford Motor Company, he
returned to work for Respondent about the end of March or
first part of April. Crawford further stated that he informed
Galecki he would be placed on the seniority list as of his
original hire date on March 3.
Sacco filed a grievance with the Union, dated May 30,
alleging that GaleckiP had started work after him, and he
disagreed with the seniority list showing that Galecki started
work on March 3 while he started on March 13.
According to Sacco, Dispatcher Goddard told him that he
had grounds to file a grievance against Crawford. Goddard
also told him, pursuant to his inquiry, not to worry about his
' Both Crawford and Goddard are supervisors under the Act.
1186
' The ievance missplled Galeckt'% name as being "DeLocky."
VAN HAAREN SPECIALIZED CARRIERS
job but cautioned him to remember that after he filed a
grievance to watch his step because Crawford was after him.'
I discredit Sacco's testimony for reasons previously given.
Crawford acknowledged receiving the grievance from the
Union the first week in June. The grievance was subsequent-
ly disposed of by Crawford who entered the notation, "No
cause for grievance-other employee quit."
Robert Galecki quit his job in June. His undisputed
testimony establishes that in late May or early June Sacco
questioned him about his being ahead of him on the seniority
list. When he replied that he assumed the reason was
because he had been hired before Sacco, Sacco told him it
was all crooked.
According to Galecki, following his conversation with
Sacco several incidents occurred at the facility. The first part
of June, upon returning to the terminal one evening, he
found his automobile out of gear, and it had been either
pushed or rolled from its parking spot up against a junk pile.
That same week a tire on his automobile was punctured, and
he also found sand in the gas tank and fuel filter of his
automobile. About the middle of June, upon finding his
fuzzbuster, CB radio, gloves, and crowbar missing from his
truck, he informed Crawford of the various incidents which
had happened and told him that he was quitting. He also
informed Crawford that he thought he knew who had done
it but did not have any proof and did not mention any
name.' Crawford informed Galecki not to come back.
Terminal Manager Crawford corroborated Galecki's testi-
mony about the reasons he gave for quitting. Crawford
testified that it was his opinion Sacco was responsible for the
incidents involving Galecki, because he felt that Sacco was
the only person he knew who had any hard feelings against
Galecki.
After Sacco filed the grievance he had another conversa-
tion with Terminal Manager Crawford. Sacco was not
certain whether this conversation occurred a couple of days
or a couple of weeks after the grievance was filed. Sacco
stated that on this occasion Crawford asked him whether he
was happy and mentioned that Sacco had won the grievance.
Crawford then told him he was going to pay for the
grievance he had written against him because no damn wop
was going to come to him and start something like that
against him and get away with it. Crawford further accused
Sacco of having lost a good friend of Crawford's because of
it.
Crawford denied making the statements attributed to him
by Sacco or threatening Sacco with harassment or discipline
because he filed the grievance, as alleged in the amended
complaint.
According to Crawford, all he told Sacco was that the
grievance would not be heard because the other employee
had quit. I credit Crawford rather than Sacco for reasons
previously stated and find that Crawford did not unlawfully
threaten Sacco as alleged.
Both Dispatcher Goddard and Terminal Manager Craw-
ford testified without dispute that the Department of
Transportation, a Federal agency, regulates the hours of the
This alleged threat by Goddard was not set forth in the amended
complaint.
Galecki's opinion was that Sacco was responsible.
drivers, who are required to keep logs and are not allowed to
drive over 70 hours in an 8-day period."
Sacco contends that he exceeded the 70-hour limitation
several times each month while employed by Respondent.
Although Sacco claimed while testifying at the hearing that
he had logs with him which would show this, no such
records were ever produced as evidence. Sacco also testified
a couple of weeks after he started work Terminal Manager
Crawford instructed them that if they went over 70 hours to
put the rest of their hours on a piece of paper and turn it into
the office, and they would be paid on the side, which he
thereafter did. About a month after he started work, upon
asking Crawford whether it was against the law to do this,
Crawford told him not to worry about it. When he
mentioned that if they got caught on the highway they were
the ones who had to pay the fines, Crawford said to do what
he told him and he would not get caught.
Terminal Manager Crawford, whose testimony I credit,
denied having such conversations with Sacco about violating
regulations of the Department of Transportation.
Sacco was first discharged by Respondent on July 19."'
The circumstances surrounding his discharge establish
that Sacco, upon returning from a trip the evening of July
18, contacted Dispatcher Goddard at home. Sacco stated
that he informed Goddard he did not have too many hours
to work the next day. Pursuant to Goddard's inquiry, he
told him that he already had 73-1/2 hours plus 5-1/2 more
hours, and he had signed the piece of paper that he could not
log. Goddard instructed him to call Crawford.
According to Goddard, that same day he and Crawford
had gone through the drivers' hours and knew that Sacco,
for whom they left a note to report to work the next
morning, would have approximately 5 or 6 hours left to
work after allowing for the hours he would use that day.
Goddard stated that when Sacco called him that evening he
informed him to be in the next day at the time they had
previously set up. When Sacco replied that he could not and
said he did not have hours to do anything and was not
coming in, he informed Sacco that he should come in, it was
his job, and if they were wrong he could file a grievance. He
also told Sacco to call Crawford.
The same evening Sacco contacted Terminal Manager
Crawford, who was at a club. Sacco stated, upon explaining
to Crawford that he did not have enough hours, Crawford
after cursing him about calling him at that hour of the night
told him he did not give a damn how many hours he had and
told him beginning at 6:30 a.m. the next morning he could
go look for another job. Upon telling Crawford that he could
not force him to work the next day Crawford said that he
could because he was the boss and ran it the way he wanted
to and for him to be in. Sacco stated that he then told
Crawford he was going to the DOT; Crawford's response
was he had news for him and said that he did not give a
damn who he brought to him saying a lot of guys had tried it
and never succeeded. Crawford also mentioned that it would
cost Sacco a lot of money to fight him. Under cross-
examination Sacco acknowledged Crawford told him to go
No regulations of the Department of Transportation were offered as
evidence.
'" This discharge was not alleged to be unlawful.
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ahead and take it to DOT but also said that it would not do
him any good.
Crawford, who corroborated Goddard's testimony about
checking Sacco's available hours for work the next day,
stated that Sacco called him and informed him he was not
coming to work the following morning and did not have the
hours. After telling Sacco he and Goddard had checked the
hours, Sacco repeated that he was not coming in and did not
have the hours and then said he was going to the DOT. He
told Sacco to go ahead and go to DOT but said that he still
had hours to work and he expected him to be in at 6:30 in
the morning or whatever his scheduled time was.
I credit the testimonies of Crawford and Goddard
concerning their conversations with Sacco on that occasion
for reasons previously given.
The next day Sacco acknowledged that he did not show
up for work. He was then discharged. His termination notice
dated July 19 reflects that he was discharged for refusing
instructions to report to work on July 19.
Sacco filed a grievance dated July 20 with the Union over
his discharge.
A grievance meeting on the discharge was held on July 26.
It was attended by Sacco, Union Steward Kaske, Union
President George Kirchner, Terminal Manager Crawford,
Dispatcher Goddard, and Lewis Sutherland." The grievance
was resolved at this meeting and the written disposition,
which was signed by Sacco and the other union representa-
tives, was as follows: "Discharged Waived-Time off till
7/27 to be used as penalty-any further violations will be
subject to discharge."
Sutherland testified without denial that following the
meeting he informed Sacco in the presence of Union Steward
Kaske, that he could not refuse when the Company asked
him to do something and if it was not right he could file a
grievance.
Following the grievance meeting Sacco returned to work.
Sacco stated that a couple of days later, while he and
driver James Clark were in the office picking up papers,
Terminal Manager Crawford came in, pointed his finger at
him, and said that he could not send him to places like
Taylor & Gaskin, Hydromation Company, Cross Company,
or to Kingsville, Ohio. Crawford then told Clark to leave
because it was of no concern of his, whereupon Clark left.
Sacco stated that Crawford then told him he was going to
get his ass and fire him one of these days and said if he even
spit on the floor and he saw him he was going to write him
up for anything he did.'
James Clark, called as a witness by the General Counsel,
denied hearing such a conversation between Crawford and
Sacco or hearing Crawford mention anything about Sacco
being fired. Clark did acknowledge providing Sacco with a
written statement, which provided in pertinent part as
follows: "I heard him be told, he would be fired one way or
another by Mr. Crawford." However, Clark denied knowing
whether this statement was true, and he testified that he
wrote it at the request of Sacco, who told him what to write.
" Sutherland is employed by Labor Research Consultants, Incorporated,
and represents Respondent in labor relations.
': These alleged threats by Crawford are not contained in the amended
complaint.
"' While Sacco denied that he had ever been asked to pick up railroad ties
Sacco, while stating he requested Clark to write the letter,
claimed that it was Clark's own statement.
Although the statement was signed by Clark and appears
to have been notarized on October 7, both Sacco and Clark
testified that the notary public, whose name appears on it,
was not present at the time it was given, and Clark further
denied that he ever authorized the notary public to sign it.
Clark further stated that except for I week he was off
work with a broken arm from July 6 until the middle of
September or the first part of October. Since Clark denied
hearing such a conversation between Sacco and Crawford
and the evidence does not show this is a true statement or
one taken under oath, I do not attach any weight to it.
Moreover, Sacco's own testimony indicates that Clark was
not present when the alleged threat was made.
While Terminal Manager Crawford did not testify specifi-
cally concerning this alleged conversation, he did deny
having threatened Sacco with harassment, discipline, and
discharge for filing the grievance, and I credit his denial.
B. Sacco's Discharge
Sacco's final discharge occurred on September 7, and he
was never reinstated.
That morning, after reporting to work and being assigned
the truck he was supposed to drive, it was discovered that
the brakes were not working. While waiting for the mechan-
ic to fix the brakes Sacco had a conversation with Terminal
Manager Crawford, culminating in his discharge.
Sacco, on direct examination, testified that Crawford told
him to go into the backyard, pick up all the railroad ties,"
and put them against the building. After going to the
backyard and picking up four or five blocks weighing
between 2 and 5 pounds and putting them against the
building, which took about 5 minutes, he went to the office
and asked Crawford to send someone to help him because
there were quite a few there and they were too heavy to
carry." Crawford denied his request, saying that he did not
have to give him anything, and he did not need a hand.
According to Sacco, as he walked out of the office Crawford
was right behind him, pointing his finger at him and saying
that he had him where he wanted him to be and told him he
was through and was fired for refusing a direct order from
the dispatcher. When he denied that he had refused
Crawford said that he did. During the conversation and as
he was about ready to leave Sacco mentioned to Crawford
that he had two men under him on the seniority list and said
that since the truck he was driving was not working he
should have taken one of their trucks." Crawford's response
was that he did not have any seniority over there and asked
him who the hell he thought ran the place. Crawford then
said that he ran the place, and the other two drivers would
go to work, and Sacco would go home. Sacco then told
Crawford he was going to the Union and talk to Kirchner
and Kaske, whereupon Crawford said screw the Union, he
was the boss of the place, not the Union or Sacco, and he
would run it the way he wanted.
before. he acknowledged there was nothing wrong with the assignment.
Further, other drivers including union steward Kaske and Andy Porter both
stated they had been assigned to pick up railroad ties on occasions.
' Sacco estimated that the heavy blocks weighed 75 or 80 pounds.
" Sacco observed two other drivers come in.
1188
VAN HAAREN SPECIALIZED CARRIERS
Under cross-examination, Sacco's version was that Craw-
ford followed him back to the garage and said he was
starting to get on his nerves and told him to go and get the
blocks. Upon telling Crawford that he had picked them up
Crawford denied it and said that he was refusing a direct
order from the dispatcher, and he was through.
Sacco, in a grievance written and signed by him later the
same day, gave another version of his discharge. There Sacco
stated that Crawford told him his truck did not work and to
go home, whereupon he informed Crawford it did not work
that way and he was going to talk to Kaske and Kirchner.
Crawford then said screw the Union, screw Kaske, that he
ran the place and they did not. When Sacco told Crawford
he had other men lower in seniority than him and he was
supposed to take one of those men off the truck and give it to
him, Crawford repeated that he ran the place and not the
Union. Sacco stated Crawford went into the office, returned,
and told him to pick up the railroad ties and bring them
behind the building. After picking up a couple of pieces he
told Crawford that he needed help to pick up the rest,
whereupon Crawford told him he did not get any help and
he was through.
Sacco also stated that after he was told he was discharged
Crawford took his CB radio and suitcase out of the truck,
threw them on the floor, and told him he would give him 2
seconds to get off the Company's property.
Fred Heintz testified that that morning, while he was
sitting in his truck, he observed Sacco standing in the yard
about 75 feet away with some small pieces of wood in his
hand. However, under cross-examination, Heintz acknowl-
edged that he was not there when Sacco was fired.
Terminal Manager Crawford's version was that upon
instructing Sacco to go out in the yard and pick up blocks
Sacco replied he was not going to do it. Upon repeating the
instructions Sacco said he had a bad back, whereupon he
told Sacco he could go home and return with a doctor's slip
because they had these complaints all the time. When he
again asked Sacco if he was going to pick up the blocks and
told him that if he did not he was going to fire him, Sacco
again replied he was not. He then told Sacco that he was
fired. Crawford also stated during the conversation after he
told Sacco to pick up the blocks he saw some trucks leaving
the yard, at which time Sacco mentioned the drivers were
younger men and he should be going out in their places. He
informed Sacco they had already been dispatched '" and he
had been told to pick up blocks.
Crawford denied making remarks about the Union, being
the boss, or running the place his way. He also did not
remember telling Sacco he had no seniority or that Sacco
had advised him he was going to the Union.
Dispatcher Goddard corroborated Crawford's version of
the discharge conversation and further stated that Sacco had
also said he was not picking up the blocks because it was not
his job. Goddard also denied that Sacco made any reference
to the Union or filing a grievance or that Sacco had asked
Crawford for help in picking up the blocks.
,' Dispatcher Goddard and drivers Andy Porter and Shirley Young all
testified that once drivers have been assigned their trucks they are supposed to
keep those assignments while minor type repairs are being made to the trucks.
Andy Porter, another driver, called as a witness by
Respondent, corroborated Crawford's testimony about the
discharge conversation.
Crawford, Goddard, and Porter all denied that Sacco
picked up any blocks on that occasion. Porter also stated
that later the same day he went out and picked up blocks,
and that there were none which he was not able to pick up.
According to Porter, it was he who took the CB radio and
suitcase out of Sacco's truck so that they could work on the
truck.
Union Steward Norman Kaske, called as a witness by
Respondent, stated on several occasions Sacco told him he
could have picked the blocks up.
I credit the testimonies of Terminal Manager Crawford,
Dispatcher Goddard, and Porter concerning Sacco's dis-
charge rather than Sacco, whom I previously discredited.
Immediately following Sacco's discharge, Dispatcher
Goddard, at Crawford's direction, typed up the discharge
notice. This notice dated September 7, which Crawford
acknowledged signing and advising Goddard of the reasons,
sets forth the following reason for Sacco's discharge:
On September 7, 1978 Vincent Sacco refused to pick up
blocks in our yard while waiting for his truck to be
repaired. He stated that he was to [sic] sick and could
not pick them up because he has a bad back, but refused
to go home sick and return with a doctors [sic] release.
Terminal Manager Crawford, in response to a request for
information from the Michigan Employment Security Com-
mission concerning the reason for Sacco's discharge, submit-
ted a written statement" signed by him and dated October
16, in which he stated that the reason was "Claimant was
fired for refusing to perform a direct order from supervi-
sion." On November 15, Crawford, in writing, reaffirmed to
the Michigan Employment Security Commission that this
was the reason for Sacco's discharge. Further, Dispatcher
Goddard, who represented Respondent at the hearing before
the Michigan Employment Security Commission held on
January 10, 1979, stated that he informed them there were
no other instances considered in the discharge of Sacco other
than his refusal of a work order on September 7.
Terminal Manager Crawford testified at the hearing in the
instant case that the principal reason he discharged Sacco
was because of his refusal to work on September 7. However,
he further stated other factors he considered in making his
decision were that they had put Sacco back to work after a
prior refusal to work; he had caused them to lose a very good
customer, namely the Cross Company; he had either
attempted to or was personally responsible for physical
damage to Galecki's automobile; and complaints from its
customers Hydromation Company and Taylor & Gaskin.
Crawford denied discharging Sacco because he had threat-
ened to or filed grievances or threatened to go to the
Department of Transportation.
Respondent's records reflect that Sacco was given a
reprimand dated August 7 regarding a complaint by Hydro-
mation Company on July 29, a complaint by the Cross
Company on July 31, and another incident involving the
" Crawford. in signing the statement, certified that the information
submitted was true and correct to the best of his knowledge and belief
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kingsville truckstop. The complaint from Hydromation
Company as described by Goddard was that they did not
want Sacco to make deliveries there because of an incident
relating to a previous job held by Sacco.
Crawford testified that the operations manager for God-
trey Corporation informed him it had received a complaint
from the Kingsville truckstop, which acts as its inspecting
agent, that Sacco had given them a hard time, would not
cooperate, and made a nuisance of himself at the truckstop.
Goddard placed this complaint as occurring in July or
August.
Crawford stated that the latter part of July or first part of
August the Cross Company's shipping clerk leader and
loading foreman informed him that Sacco had been discour-
teous and away from his truck which was being loaded,
causing them to do a lot of extra work. According to
Crawford, this caused Respondent to lose the business of the
Cross Company for approximately 2-1/2 months.
Besides the complaints covered by the August 7 repri-
mand Crawford testified that in early August he received a
complaint from the shipping and receiving foreman' of
Taylor & Gaskin that Sacco was running around their shop
instead of being with the trailer during the loading process.
Goddard also stated that in late August or early Septem-
ber the Cross Company shipping clerk leader informed him
they were having trouble with Sacco leaving his truck during
loading and walking around talking to employees and
attempting to see the shipping clerk leader on personal
business.
Letters were received from the Cross Company," Hydro-
mation Company, and Taylor & Gaskin, dated September
12, 13, or 14, confirming these complaints.20
Terminal Manager Crawford sent Sacco a letter dated
September 14, enclosing a copy of his discharge notice along
with the August 7 reprimand, a reprimand dated September
13 covering the last complaint by the Cross Company, and
another reprimand dated September 14 covering the com-
plaint from Taylor & Gaskin. The letter further stated that
Sacco was discharged on September 7 for refusing to work
upon a direct order from supervision and gave as an
additional reason discourtesy to customers as reflected by
the reprimands.
C. The Arbitration Hearing
Sacco filed a grievance dated September 7 concerning his
discharge.
The parties' collective-bargaining agreement contains
grievance and arbitration provisions. Article 44 provides for
a permanent joint state committee consisting of an equal
number of members appointed by the employers and the
local unions, which has jurisdiction over disputes and
grievances involving local unions or complaints by local
" Sacco also obtained at his request a letter from the same foreman on
September 7 in which the foreman expressed his opinion that Sacco is a good
dnver who Sets his work done if he has something decent to drive.
"' The letter from the Cross Company, while confirming the complaints.
made no reference to any loss of business.
:" Terminal Manager Crawford stated that these letters were solicited at his
request to confirm the earlier complaints by these companies on the advice of
Sutherland.
:' Terminal Manager Crawford was ill and did not testify or present any
evidence.
unions located in its area which includes the State of
Michigan.
The grievance procedure under article 45 further provides
as follows:
Disputes shall first be taken up between the Employer
and the Local Union involved. Failing adjustment by
these parties, the following procedure shall then apply:
(a) Where a Joint State Committee, by a majority
vote, settles a dispute, no appeal may be taken to the
Joint Area Committee. Such decision shall be final
and binding on both parties.
About October 10 or 11 Sacco's grievance was heard by
the Michigan Joint State Cartage And Over-The-Road
Arbitration Committee, which was comprised of five mem-
bers each from the local unions and the employers but did
not include any representatives from the parties involved.
Respondent was represented at this meeting by its represen-
tative Sutherland and Dispatcher Goddard." Representing
Sacco were Union President Kirchner and Sacco himself.
There was no transcript taken of this proceeding, and the
minutes of the committee reflecting its decision were as
follows:
The discharge of Vincent Sacco is upheld based on the
fact that the evidence and testimony indicated that he
refused [sic] follow the instructions of his employer to
perform the work assigned to him.
The Union's position of the hearing, expressed by Presi-
dent Kirchner, was that Sacco should be reinstated with
backpay and seniority while Respondent's position as
expressed by Sutherland was that the discharge should be
upheld.
Sacco denied that his grievance was read or shown at the
hearing. He also denied that any mention was made of the
grievance he filed on May 30 or about how Crawford had
treated him because of the grievance and no mention was
made of his September 7 protest about the two drivers
having less seniority. According to him, after Sutherland,
Goddard, and Kirchner finished talking the referee then
asked him if he had anything to say, whereupon he said that
he did not refuse to work. Sacco estimated that the hearing
lasted no more than 10 minutes.
Contrary to Sacco's testimony, both Sutherland and
Kirchner testified that the hearing lasted approximately 25
to 40 minutes, during which time Sutherland read Sacco's
discharge, and Kirchner read Sacco's grievance." Suther-
land then presented Respondent's case by reading a prepared
statement which covered the events of the discharge itself
and Respondent's September 14 letter to Sacco following his
discharge. Kirchner presented three letters to the committee
furnished to him by Sacco."
1 In his grievance Sacco referred to the incident involving Galecki and also
mentioned he had complained to Crawford on September 7 about drivers with
less seniority than him being assigned trips, and that he was going to the
Union.
" These included the statement given to Sacco by James Clark. discussed
supra. and a statement from driver Fred Heintz that he had heard Crawford
tell Sacco to pick up timbers in the yard, which he did, and saw Crawford
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VAN HAAREN SPECIALIZED CARRIERS
Kirchner also testified that he let Sacco explain what had
happened, and Sacco was asked several questions. Kirchner
brought up that Respondent was picking on Sacco and
stated Sacco also said he felt Crawford was harassing him
due to the grievance he had filed over his seniority standing.
Sutherland testified that during the hearing Sacco men-
tioned the grievance he had filed, claimed the Company
harassed him because of it and dispatched him out of order,
and denied he had refused the order on the grounds that he
had a bad back. Sutherland also stated Kirchner asked Sacco
if he had anything further to present, whereupon Sacco said
he did not refuse to pick up blocks as directed and he did go
out and pick up a block or two. Sutherland further stated
that during the hearing Sacco upon being asked why he
refused to pick up the blocks, said it was not his work.
Both Sutherland and Kirchner testified that each of the
parties and Sacco were asked whether they had presented all
the evidence, and Sacco was also asked whether he was
properly represented by the Union, whereupon Sacco in-
formed them that he had nothing else to say and he was
properly represented.
I credit the testimonies of Sutherland and Kirchner
concerning what transpired at the arbitration hearing rather
than Sacco, whom I previously discredited.
Union President Kirchner testified that after the decision
was rendered that same day Sacco asked whether he could
take it to a higher step, whereupon he informed Sacco only if
he had new evidence, which Sacco never produced.
D. Analysis and Conclusions
The General Counsel contends and while Respondent
denies that Respondent violated Section 8(a)(1) of the Act
by unlawfully threatening Sacco because of his complaints
about and filing a grievance regarding his placement on the
seniority list and discriminatorily discharged and refused to
reinstate him because of his protected concerted activities.
These protected concerted activities, as defined by the
General Counsel, included the May 30 grievance Sacco filed
regarding his seniority, a threat made by Sacco on Septem-
ber 7 to file a grievance, and Sacco's threat on July 18 to go
to the Department of Transportation.
Respondent further contends that the issue of Sacco's
discharge should be deferred under Spielberg to the arbitra-
tion decision wherein Sacco was found to have been
discharged because of his refusal to follow instructions to
perform assigned work.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
The filing of grievances, including those by an individual
to enforce provisions of collective-bargaining agreements
which affect the rights of all unit employees, constitutes
concerted activities protected by Section 7 of the Act, and to
discriminate against employees for filing such grievances
violate Section 8(a)(l1) of the Act. See Interboro Contractors.
Inc.. 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d
Cir. 1967). The protection accorded employees under this
section is not dependent upon either a correct interpretation
running towards Sacco. pointing his finger at him saying he was refusing to
work and was fired. This statement is inconsistent with Heintz's testimony in
which he denied that he was present when Sacco was discharged.
of the contract or on the merit or lack of merit of the
concerted activities. See John Sexton & Co., A Division of
Beatrice Food Co., 217 NLRB 80 (1975); and The Singer
Company, Climate Control Division, 198 NLRB 870, fn. 5
(1972).
The rights of employees to file complaints against their
employer with the Department of Transportation is also a
protected concerted activity. See B & P Motor Express, Inc.,
230 NLRB 653 (1977).
The law is well established that a discharge motivated in
part by an employee's exercise of Section 7 rights violates the
Act even though another valid cause may also be present.
See Don Lucus International, Inc. d/b/a San Jose Bavarian
Motors, 229 NLRB 127, 128 (1977).
The threshold question to be resolved is whether the issue
of Sacco's discharge should be deferred under Spielberg to
the arbitration decision. See Spielberg Manufacturing Com-
pany, 112 NLRB 1080 (1955).
Under Spielberg arbitration decisions are recognized
where the arbitration proceedings appear to have been fair
and regular, all parties have agreed to bound, and the
arbitration's decision is not clearly repugnant to the pur-
poses and policies of the Act. An additional requirement for
deferral is the arbitrator must have considered the unfair
labor practices in his decision. See Raytheon Company, 140
NLRB 883 (1963), enforcement denied 326 F.2d 471 (Ist
Cir. 1964). Under the latter requirement, while the arbitra-
tor is not generally required to pass upon the unfair labor
practice directly, it is necessary for the arbitrator to consider
all of the evidence relevant to the unfair labor practice in
reaching the decision. See Atlantic Steel Company, 245
NLRB 814 (1979).
The findings, supra, establish that while the issues of
whether Terminal Manager Crawford discriminated against
Sacco because he filed a grievance regarding seniority and
threatened on September 7 to go to the Union about drivers
with lesser seniority being assigned trips, as reflected in his
discharge grievance, were raised during the arbitration
hearing, there was no evidence that Sacco's threats about
going to the Department of Transportation were either
raised or considered. Moreover, Terminal Manager Craw-
ford, who alone made the decision to discharge Sacco and
who was also the person alleged to have discriminated
against him because of his protected concerted activities, did
not even testify at the hearing. Thus, the arbitration
committee was deprived of crucial and essential testimony
bearing directly upon the issue in the unfair labor practice
case concerning whether Sacco's protected concerted activi-
ties were involved in his discharge. Further, the arbitration
decision itself, void of any specific findings of facts or
discussion of the issues involved, does not reflect whether
any consideration at all was given by the arbitration
committee to the issue of whether Sacco's protected concert-
ed activities could have been the reason for his discharge in
reaching its decision.
Under these circumstances and for the reasons discussed I
am persuaded and find, contrary to Respondent's position,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that deferral under Spielberg to the arbitration decision is
not appropriate in the instant case.24
Having found that deferral under Spielberg is inappropri-
ate, the remaining issue is whether Sacco was discriminatori-
ly discharged and denied reinstatement because of his
protected concerted activities.
The findings, supra, establish that Sacco was discharged
on September 7 after he repeatedly refused to obey Terminal
Manager Crawford's orders to go out in the backyard and
pick up blocks, notwithstanding that Sacco was warned by
Terminal Manager Crawford he would be discharged if he
did not pick them up. This discharge occurred only a few
weeks after Sacco had been discharged for a similar type
offense and reinstated with the warning that any further
violations would subject him to discharge.
While the General Counsel asserts that Sacco was
discharged for his protected concerted activities in filing a
grievance on May 30 regarding his seniority, on July 18
threatening to go to the Department of Transportation, and
on September 7 threatening to file a grievance, such
assertion is not supported by the evidence. The filing of the
May 30 grievance by Sacco occurred more than 3 months
prior to his final discharge, and the grievance became moot
in June when driver Robert Galecki quit work. Moreover,
the filing of such grievance and Sacco's threat about going to
the Department of Transportation both occurred prior to an
intervening discharge of Sacco on July 19, which was not
alleged nor shown to be unlawful. Further, the evidence
shows that Sacco did not threaten to file a grievance on
September 7. Although he did question Terminal Manager
Crawford about other drivers with lesser seniority than
himself being assigned trips, this did not occurr until after
Sacco initially refused to pick up the blocks as ordered.
Upon considering the circumstances upon which Sacco
was discharged, which reveal a clear act of insubordination
by him in refusing to obey a direct order of his superior
:' The case principally relied on by Respondent, Electronic Reproduction
Service Corporation: Madison Square Offset Company. Inc.. and Xerographic
Reproduction Center. Inc., 213 NLRB 758 (1974). has been effectively
overruled in Max Factor d Co.. 239 804 (1978). See Atlantic Steel Company.
245 NLRB 814, fn. 8.
' While Respondent. subsequent to Sacco's discharge, did seek to enlarge
upon the reasons for his discharge as reflected by the evidence, it appears that
this action was taken to support his discharge under the terms of the
notwithstanding that he was warned he would be discharged
for refusing to comply; his prior warning upon being
reinstated from a discharge for a similar type offense that
any future violations would subject him to discharge; having
discredited Sacco's testimony he had been unlawfully threat-
ened with harassment, discipline, or discharge by Respon-
dent because of his complaints about or filing a grievance
regarding seniority; and having rejected the General Coun-
sel's arguments that Sacco was discharged because of his
protected concerted activities, I am persuaded and find that
the General Counsel has failed to prove by a preponderance
of the evidence that Sacco was discriminatorily discharge
and denied reinstatement because of his protected concerted
activities. 5 Therefore, I find that Resondent did not violate
Section 8(a)(l) of the Act as alleged.
CONCLUSIONS OF LAW
I. Van Haaren Specialized Carriers, Inc., A Subsidiary of
Dobson Heavy Haul, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent did not violate Section 8(a)(1) of the Act as
alleged in the amended complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:2 "
ORDER
It is hereby ordered that the amended complaint be, and it
hereby is, dismissed in its entirety.
collective-bargaining agreement, and I do not find it sufficient to detract from
my findings herein.
:' 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.
1192