Yellow Freight Systems, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1990

298 N.L.R.B. 1090 (N.L.R.B. 1990)

1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Yellow F reight System, Inc. and Troy Dean Smith.
Case 9-CA-26338
July 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 9, 1989, Administrative Law
Judge Walter H. Maloney issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and-the Charging Party filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Yellow Freight System, Inc., Columbus,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraphs 2(a)
and (b), and reletter the subsequent paragraphs.
"(a) Offer Troy Dean Smith immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him in the manner set forth in the remedy section
of this decision."
2. Substitute the attached notice for that of the
administrative law judge.
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge made several minor factual errors in his decision . The Union
represents 425 over-the -road drivers , in addition to 235 local cartage
drivers and about 60 shop employees. Also, the Respondent receives ap-
proximately 200 to 220 grievances per year
2 We shall modify the Order and notice to include the standard provi-
sion regarding reinstatement and backpay for Troy Dean Smith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Teamsters Local Union No.
413, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, or any other labor organi-
zation, by discharging employees or otherwise dis-
criminating against employees in their hire or
tenure.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Troy Dean Smith immediate and
full reinstatement to his former job or if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings , plus interest.
YELLOW FREIGHT SYSTEM, INC.
James E. Horner, Esq., for the General Counsel.
James D. Kurek, Esq., of Akron, Ohio, for the Respond-
ent.
Phillip L. Harmon, Esq., of Worthington, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
1. FINDINGS OF FACT
WALTER H. MALONEY, Administrative Law Judge.
This case came on for hearing before me at Columbus,
298 NLRB No. 166
YELLOW FREIGHT SYSTEM
Ohio, upon an unfair labor practice complaint,' issued by
the Regional Director for Region 9, which alleges that
Respondent Yellow Freight System, Inc.2 violated Sec-
tion 8(a)(1) and (3) of the Act. More specifically, the
complaint alleges that the Respondent discharged Troy
Dean Smith, a casual employee, because he filed a griev-
ance under the terms of a collective-bargaining agree-
ment in which he sought a permanent place on the Re-
spondent's seniority roster. The Respondent stated that it
was in the process of terminating Smith when it received
his grievance and that it discharged him (or decided not
to call him as a casual) because Smith was unqualified to
be a regular mechanic. It also argued that Smith's reten-
tion as a casual could, under the new contract with the
Union, require the Respondent to enlarge its seniority
roster. Upon these contentions, the issues were framed.3
II. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates a nationwide trucking company.
As a part of that operation, it maintains a truck terminal
at Columbus, Ohio. At this terminal about 60 mechanics
are employed around the clock on a 7-day-a-week basis
to provide various levels of maintenance for company
vehicles which are brought to them for servicing. These
mechanics, as well as about 300 local cartage and over-
the-road drivers, are represented by the Union. The me-
chanics are covered by a contract which is a supplement
to the Teamsters' National Master Freight Agreement.
The first mechanics' contract ran from March 1, 1984, to
March 31, 1988. Negotiations for a new agreement were
not completed until July 1988, well after the earlier con-
tract had expired. In August 1988, the parties agreed lo-
cally to work under the new agreement, with wage in-
creases retroactive to April 1, 1988. However, the Team-
sters International did not approve this contract untll the
i The principal docket entries in this case are as follows:
Charge filed by Troy Dean Smith, an individual , against the Respond-
ent on April 9, 1989; complaint issued against the Respondent by the Re-
gional Director for Region 9, on May 19, 1989 ; Respondent's answer
filed on May 30, 1989 ; hearing held in Columbus, Ohio, on August 29,
1989.
2 Respondent admits, and I find , that it is a corporation which main-
tains a place of business in Columbus, Ohio, where it is engaged in the
interstate and intrastate trucking business. During the preceding 12
months, the Respondent derived in excess of $50,000 in the transportation
of freight and various commodities from the State of Ohio directly to
points and places located outside the State of Ohio. Accordingly, the Re-
spondent is an employer engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act. Teamsters Local Union No. 413, affili-
ated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL--CIO (Union) is a labor organi-
zation within the meaning of Sec. 2(5) of the Act.
2 On October 5, 1989, Respondent filed with me a motion to strike the
General Counsel's brief, alleging that the General Counsel waited until
he received the Respondent's brief before filing his own. Accordingly, if
the Respondent were correct, the briefs received would not be simultane-
ous briefs. While the practice is to file simultaneous briefs, the Rules and
Regulations do not specifically -require such submissions . The Rules do
require the filing of briefs on or before the date set by the administrative
law judge. In this case, the brief from the General Counsel was transmit-
ted to me with a cover memo from Cincinnati , Ohio, dated October 2,
1989, the date on which briefs were due to be actually received in Wash-
mgton, D.C. The General Counsel's certificate of service bears the same
date. The brief was not actually received in Washington , D.C., until Oc-
tober 3. The General Counsel was specifically requested by me to re-
spond to the Respondent's motion but did not do so. Accordingly, I
grant the Respondent 's motion and strike the General Counsel's brief.
1091
spring of 1989 and it was not formally executed until
August 3, 1989. It expires March 31, 1991.
The Respondent maintains a seniority roster for me-
chanics at its Columbus terminal which contains about 58
names. These men are considered to be regular full-time
employees; 90 percent of them are guaranteed a 40-hour
workweek by contract. Job assignments are periodically
put up for bid, at which time regular mechanics may, in
order of seniority, select days off and shift assignments.
Respondent has only one class of mechanics all of whom
are expected to be able to perform maintenance on diesel
engines . However, the terminal also pulls routine mainte-
nance on trucks which require little or no skill and expe-
rience. Mechanics are rotated into these assignments
during their shifts.4 It has been the regular 'practice of
the Respondent to assign all mechanics, regardless of the
degree of their skill or expertise, to work on the fuel line
gassing trucks and changing oil and tires on the day they
return from their 2 days off each week. The only differ-
ence in pay among mechanics is that a mechanic must be
on the seniority roster 3 years to draw the contract rate.
During the first year he draws 80 percent of that rate
and receives 10-percent increases each year until he
reaches the maximum amount.5 The contract between
the parties also provides for a 30-day probationary
period, during which time a candidate for a permanent
position on the seniority roster may be employed with-
out any guarantee of future employment while his abili-
ties and qualfications are being reviewed by the Re-
spondent's supervisors.
In addition to seniority and probationary employees,
the Respondent may, under the contract, employ casual
employees. In theory, these individuals work only on a
daily basis and have no contractual guarantee of work
beyond the day on which they are called for work. In
practice, the Respondent has hired casual employees for
a period of as much as 4 years and, at the time of the
hearing in this case, had one casual mechanic employee
on its payroll who had been with it for 2 years. The con-
tract distinguishes between casuals: a supplementary
casual is one who is hired during peak periods to help
handle an overload of work, while a replacement casual
is hired to replace one or more employees who are
absent for illness, vacation, or other reasons. Casuals are
further distinguished from regular employees in that they
receive no fringe benefits.
The contract defines journeyman mechanic as "one
who has served at the auto mechanics' trade or any spe-
cialized branch thereof, which meets the Company's re-
quirements and is qualified to be able to perform any and
4 When asked how the Employer could afford to utilize a skilled diesel
mechanic doing unskilled work such as gassing trucks and changing tires,
the Respondent gave no responsive answer other than to say that it has
worked out all right. One explanation is that there is only one class of
mechanic. Mechanics with the same number of years on the Respondent's
payroll receive the same pay . This fact suggests that individuals em-
ployed as permanent mechanics are not as highly skilled as the Respond-
ent has portrayed them to be and lends substance to the statement of em-
ployee Todd Swackhammer , who testified that Maintenance Manager
Campbell once told him that "you don't have to be a mechanic to work
here. Just show up on time , protect your bid, and do what you are told."
5 Formerly this progression required 4 years.
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all operations on any of the Company's equipment." In
addition to holding a chauffeur's license and passing a
Department of Transportation physical examination, the
phrase "meets the company's requirements and is quali-
fied to be able to perform any and all operations" has
not been further refined, either by contract or by written
company regulations or personnel guidelines . Respond-
ent's maintenance manager, Dennis Campbell, testified
that, in hiring permanent employees, he looks for a me-
chanic who has had 2 years of verifiable experience
working on diesel motors. In most instances, this means
employment with a competitor in the industry. Trade
school counts, in his estimation, for some of that experi-
ence . The Respondent, however, does not give newly
hired mechanics any kind of examination or training
other than the surveillance which a new employee might
expect during the 30-day probationary period. In hiring a
casual employee, experience standards are not invoked
although a casual might have diesel repair experience.
Casuals have progressed from time to time to a place on
the seniority roster after serving a 30-day probation;
however, in Campbell' s estimation , service with the
Company as a casual does not constitute the kind of ex-
perience in the industry he is looking for in a permanent-
ly employed diesel mechanic.6
Troy D. Smith was hired by the Respondent in Sep-
tember 1987 , as a casual mechanic. There is no dispute
that, prior to this date, he did not have any formal train-
ing or experience in the industry as a diesel mechanic.
He was hired at the recommendation of a truckdriver
steward. Campbell told Smith at this time that he needed
some farm boys who knew how to improvise. It was also
made clear to Smith that employment as a casual did not
entitle him to consideration as a permanent employee.
For the first month or so of his employment, Smith
worked about 3 days a week. He was then assigned a
slot which became vacant when Tracy Harless, a regular
mechanic, went on extended leave because of an industri-
al injury. Until the time he was discharged on October
14, 1988, Smith worked a full 40-hour week in Harless'
bid spot. When that bid spot fell into a different shift be-
cause of the periodic rebidding of shifts by regular em-
ployees, Smith changed shifts in order to continue in the
Harless spot. About 98 percent of Smith's working time
was spent on one of the six fuel lanes in the Respond-
ent's terminal . In this position he gassed trucks, changed
tires, changed light bulbs, and did preventive mainte-
nance on trailers . On one occasion Smith was assigned to
the tractor repair section of the shop; while he per-
formed this assignment with technical proficiency, he
was slow so he was not given another assignment in that
shop. Smith's rate of pay was $12.35 an hour, as com-
pared with the $14.71 paid to a mechanic with 4 years'
experience. However, he received no fringe benefits.
From time to time, Smith approached Campbell and
asked for assignment on the company seniority list. He
was regularly refused. In July 1988, Smith took a 2-day
course, at his own expense and on his own time, with
Cummins Engines in order to learn diesel preventive
6 The current collective-bargaining agreement provides that "casuals
shall not be discriminated against for future employment."
maintenance and tune-up procedures. Cummins supplies
the Respondent with many of its trucks. Its school is
open only to individuals who are referred to it by com-
panies in the trucking industry. The Respondent provid-
ed Smith with such a reference although it did not pay
his tuition. After Smith returned to work, Campbell
asked several supervisors to rate Smith's performance
with respect to permanent employment on the seniority
roster. While Smith was given qood marks for depend-
ability and performance on the gas line, no one recom-
mended him for hire as a permanent mechanic because of
his lack of skill in that area.
In August or September 1988, the Respondent hired
additional casuals; some were asked to work with Smith
to learn the requirements of the job. The Respondent
also hired some permanent mechanics. When this oc-
curred Smith went to Campbell, reminded him he had
worked in the shop for nearly a year, asked whether that
record did not count for anything, and requested perma-
nent employment. Campbell said that he had not prom-
ised Smith anything and suggested that he get a job in
another shop where he could acquire experience as a
diesel mechanic. Campbell told Smith that he did not
have sufficient experience to qualify as a diesel mechanic,
although he had no problem with Smith's performance in
the gas lanes. Campbell offered to give Smith a letter of
recommendation.
In early October, Smith had an interview for a job as
a diesel mechanic with Penske Truck Leasing Companyr
at its Dayton, Ohio location. He told Campbell about the
interview and asked for a letter of recommendation.
Campbell prepared and signed a letter of recommenda-
tion, dated October 11, 1988, which was given to Smith
on that date. It read:
To Whom It May Concern:
Troy Smith has been employed by Yellow
Freight System since September, 1987. As a casual
mechanic, his main duties consisted of fueling,
safety, inspecting, and making minor repairs to
tractor/trailer units.
Mr. Smith has an excellent attendance record and
is a cooperative, productive employee.
On October 8 or 9, Vern Bell, the Union's business
agent, phoned Rodney Boothe, labor relations manager
for the Respondent's Columbus terminal, and told
Boothe that the Respondent had an "unqualified" man
on its payroll. Bell mentioned no names but told Boothe
that he was going to force the Company to place the
man on the seniority roster under the terms of the new
collective-bargaining agreement.8 Boothe said that the
contract did not permit the Union to force an employee
onto the seniority roster. Since Boothe did not know
7 Smith is now working at Penske as a grade A mechanic, although he
did not obtain this job until 6 months after leaving the Respondent.
s The new contract provides, inter alia, that the Respondent furnish
the Union a monthly list of all extra casual or probationary employees
showing their names, dates worked, classification of work performed and
hours worked, and the name "if applicable " of the employee replaced by
each listed casual or probationary employee.
YELLOW FREIGHT SYSTEM 1093
who Bell was referring to, he called Campbell and asked
the latter if the Company was employing someone who
was unqualified. Campbell replied that Smith was un-
qualified. Boothe told Bell that it was not advantageous
for the Company to have an unqualified individual on
the payroll because it could create a problem as far as
bidding was concerned. Boothe said that he wanted to
get together the paperwork on Smith to examine his
qualifications and "work ethic." According to Boothe's
testimony, a decision had been made to fire Smith short-
ly after the receipt of Bell's phone call. However, no de-
cision had been made as to when the Company would
discharge him.
Smith worked the afternoon shift on October 13 as
scheduled. Before coming to work he typed up a griev-
ance on the Union's grievance form which stated:
I am filing this grievance for full-time employment
and the seniority in which [sic] I am entitled to ac-
cording to the maintenance contract effective April
1, 1988; Article #4, Section la; lb; id. A casual
may be either a replacement casual or a supplemen-
tal casual . I have been a replacement for Tracey
Harless since October 1987. According to Article
#4, Section lb since I have worked for more than
(90) days as a replacement for Mr. Harless this puts
me as a supplemental casual. As a supplemental
casual: Section ld. Thirty days later 5-1-88 I should
have been hired as a probationary employee since I
was the only employee available who could be clas-
sified as a supplemental casual under this contract.
Since the contract went into effect 4-1-88 and it
states that it will revert back (30) days, this would
be 4-1-88 as my seniority date of hire. Furthermore
my probationary period has already been fulfilled. I
wish to be notified and present [sic] at all proceed-
ing connected with this grievance.9
At the end of the second shift, Smith handed the
signed grievance to Donald Kunkle, the third-shift shop
steward, and asked Kunkle to file it. Kunkle told Smith
The cited provisions of art . IV of the new contract are as follows:
Section 1 (a) A casual employee is an individual who is not on the
regular seniority list and who is not serving a probationary period. A
casual may be either a replacement casual or a supplemental casual
as hereinafter provided . Casuals shall not be discriminated against
further employment . Section 1 (b) Replacement casuals are defined as
employees who may be utilized by an employer to replace regular
employees when such regular employees are off due to illness, vaca-
tions or other absence However, it is understood and agreed that
days worked by casuals to replace a regular employee who is absent
from work for a known extended illness in excess of a ninety (90)
days period shall not be considered as replacement days worked in
excess of ninety (90) days . To be considered a replacement, the
casual must work on the shift that the absence occurred , or within
two (2) hours thereafter.
Section 1(d) Where an Enployer uses casuals to supplement his work
force thirty (30) cumulative work days within any ninety (90) calen-
dar day period, such employer shall be required to add one proba-
tionary employee from among those that have worked during the
qualifying period for each occurrence and such probationary em-
ployee to be added shall be designated no later than the beginning of
the next payroll period. The seniority date for the probationary em-
ployee hired will revert back to the thirtieth (30th) day supplemental
casuals were used Failure to comply with this provision shall be
subject to the grievance procedure.
that "Dennis [Campbell] isn't going to like this too well."
Smith simply asked Kunkle if he would turn it in.
Kunkle said that he would. Kunkle then observed that
"this could cost you your job." Before leaving the plant
the following morning , Kunkle gave Smith's grievance
to Campbell.
Shortly after noon on that day, Campbell phoned
Smith at Smith's home and told him not to bother
coming to work. Smith asked Campbell if his message
had anything to do with the grievance which had been
filed. Campbell said that it did, in part. He also accused
Smith of "not being up front" with him. Smith replied
that Campbell had told him to "go somewhere else. My
somewhere else was the Teamsters. I felt this was the
only way I was going to get on." Campbell concluded
the conversation by telling Smith that he did not work
for the Company any longer.
Following Smith's termination, the grievance in ques-
tion was processed as far as the Ohio Joint State Com-
mittee created by the grievance provisions of the Team-
ster contract. On November 2, 1988, the Committee dis-
missed the grievance with a notation on the grievance
form that it was improperly before the Committee.
There is nothing in the record which discloses why the
Committee felt that the grievance was improperly before
it.
III. ANALYSIS AND CONCLUSIONS
Whether or not an employee is denominated as casual
or regular and whether or not he has standing, to present
and process a grievance under a contractual grievance
procedure is immaterial with respect to his rights under
the National Labor Relations Act. It has long been held
that a casual employee enjoys the protections of Section
7 of the Act and is entitled to any rights and remedies
which the Act provides. Tamphon Trading Co., 88
NLRB 597 (1950). One of these statutory rights is the
right to file and to press a grievance, either within or
outside a contractual grievance ' machinery, free from em-
ployer retaliation. Roadway Express Co., 217 NLRB 278
(1975); Drury Construction Co., 260 NLRB 721 (1982);
NLRB v. Ford Motor Co., 683 F.2d 156 (6th Cir. 1982);
Republic Die & Tool Co. v. NLRB, 680 F.2d 463 (6th Cir.
1982); NLRB v. Magnetics International, 699 F.2d 806
(6th Cir. 1983). It is immaterial whether the grievance
being pressed does or does not have merit. Top Notch
Mfg. Co., 145 NLRB 429 (1963); Baywood Industries, 249
NLRB 403 (1980).
In this case, Smith was fired from a job, which he had
held for nearly a year and which he had performed satis-
factorily, about 12 hours of filing a grievance seeking an
improvement in his employment status.10 In his terminal
interview-a telephone call from Campbell telling him
not to report for work any more-Smith was told by
to Respondent clings to the terminology that Smith was never fired be-
cause he had no permanent status and was merely an on-call casual who
had no right to expect, from one day to the next, that he would work the
following day. In fact, Smith worked a regular 40-hour week for a period
of 10 months up to the day he was separated permanently from the Re-
spondent 's payroll . His termination was a discharge from employment
which was regular and recurring.
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Campbell that the reason for this action on the part of
the Company was, in part, the grievance Smith had left
with the union steward the previous evening. In his testi-
mony in this proceeding, Campbell testified that he was
miffed at Smith for filing the grievance because he felt
that Smith had not been "up front" with him, meaning
that Smith had filed the grievance after having obtained
from Campbell a favorable letter of recommendation to
other employers. There can be no prudent doubt that the
event which triggered the discharge of Smith on Octo-
ber 14 was his action in filing a grievance on October 13.
Accordingly, the discharge was taken in reprisal for pro-
tected activity and union activity on the part of Smith
and violated Section 8(a)(1) and (3) of the Act.
The Respondent's basic defense was that it was getting
ready to fire Smith anyhow so the grievance actually
had no bearing on its decision. Respondent also points
out that, as a unionized employer, it receives several
grievances each month from employees in its large termi-
nal and has never taken umbrage at a grieving employee
by discharging anyone. The latter contention is a
makeweight argument and is essentially irrelevant. Re-
spondent has received few, if any, grievances from,
casual employees. More to the point, it took serious um-
brage at this grievance and admitted as much from the
stand.
Campbell, the operations manager, and Boothe, the
labor relations director, had different responses when
asked whether Smith's grievance had accelerated the
timing of his discharge. If, in fact, Smith was terminated
sooner than he would otherwise have been fired because
he had filed a grievance, the termination would be a dis-
criminatory discharge, although the backpay to be
awarded in a supplementary proceeding might be limit-
ed. In this case, the Respondent's primary defense, in and
of itself, amounts to an unfair labor practice because the
events setting it in motion were initially prompted by
union considerations. Before Smith had informed the Re-
spondent, by filing a grievance, that he would try to en-
force the contract, the Union had also told the Respond-
ent that it too was going to enforce the contract. While
Bell, in his phone call to Boothe, did not mention Smith
by name, he was in fact referring to Smith when he said
he was going to force the Company to hire somebody.
The Respondent soon came to realize the identity of the
individual to whom Bell was referring. It was in order to
avoid enlarging its seniority list that Respondent, accord-
ing to its version of this case, discharged Smith. Howev-
er, it would not have been concerned with enlarging that
list had-Bell not threatened to force it to do so.
Whether or not Smith was a qualified mechanic is not
an essential element in resolving this case. There is ample
evidence in the record to support either contention.
Smith was, by all reports, fully competent to continue to
work on the gas lanes as he had for many months, and
the Respondent has had casuals working for it for as
long as 4 years who presumably do little else. At present,
even under the terms of its existing contract, there is a
casual on the company payroll who has worked for it for
2 years. Had the Respondent been required to enlarge its
seniority roster by one name rather than to continue to
man its operation with a long-term casual, it would not
have had to hire Smith as a permanent employee. His
presence in the shop, even under the disputed terms of
the new contract," would not have required the Re-
spondent to hire either him or any other specific individ-
ual. Respondent could have fulfilled its contractual re-
quirement by hiring a mechanic off the street, if neces-
sary, or from the pool of qualified casuals for whom it
already had job applications. Rather than enlarge its se-
niority roster, the Respondent chose to fire Smith, at
least according to the company story. It was called upon
to make such a choice because the Union was threaten-
ing to make trouble. The provision in the new contract
was obviously inserted because the Union did not care to
have unit work performed by a category of employees
who were not being paid union fringe benefits through
the device of employing casual employees on a long-
term basis. The Union wanted to bring this practice to an
end by making and then enforcing the new contract pro-
vision. If we are to accept the Respondent's version and
all of its implications , Smith's grievance, filed a few days
after Bill's phone call, was essentially the second round
in an ongoing effort to do the same thing that Bell was
trying to do. Accordingly, Smith's discharge violated
Section 8(a)(1) and (3) for these reasons as well as those
advanced by the General Counsel.
On the foregoing findings of fact and upon the entire
record here considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Yellow Freight System, Inc. is now and at all times
material has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Teamsters Local Union No. 413, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Troy Dean Smith because he filed a
grievance under the terms of a collective-bargaining
agreement, the Respondent violated Section 8(a)(1) and
11 There is a very real question as to whether the core of the Respond-
ent's defense-its obligation under the new contract to enlarge its seniori-
ty roster in October 1988, after having a replacement casual on its pay-
roll for more than 90-days has any substantive merit. Arguably, the Re-
spondent might have been obligated to take this action on August 6,
1988, the day the parties say they orally agreed to begin abiding by the
terms of the new agreement. Smith had been on its payroll for about 9
months at that time as a replacement casual, and a good case could be
made that his entitlement began as of the date the contract took effect,
not 90 days thereafter . Smith felt that it took effect on April 1 since the
contract by its terms said that it took effect on that date. Accordingly,
the obligation to enlarge the roster would have been retroactive to that
date. The Respondent felt that the 90 days began to run on the date par-
ties aqreed to begin observing the contract, thus triggering a compliance
obligation about November 3, some 3 weeks after , the Respondent dis-
charged Smith . Another argument could be made responsibly that no ob-
ligation arose until many months later when the contract was actually ex-
ecuted by the parties , since the International had not approved the agree-
ment and no contract could come into effect without its approval. There
has been no definitive interpretation resolving these conflicting views and
the action of the Ohio Joint State Committee in dismissing Smith's griev-
ance simply avoided the question. It need not be resolved here, even if it
could be.
YELLOW FREIGHT SYSTEM 1095
(3) of the Act. The unfair labor practice has a close, inti-
mate, and adverse effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes
and policies of the Act. I will recommend that the Re-
spondent be required to offer Troy Dean Smith full and
immediate reinstatement to his former or substantially
equivalent employment, without prejudice to his seniori-
ty or to other benefits which he previously enjoyed, and
to make him whole for any loss of pay or benefits which
he may have suffered by reason of the discrimination
found in this case, in accordance with the formula set
forth in the F. W. Woolworth case,12 with interest there-
on computed at the short-term Federal rate used to cal-
culate interest on underpayments and overpayments of
Federal income taxes under the Tax Reform Act of 1986.
New Horizons for the Retarded, 283 NLRB 1173 (1987). I
will also recommend that the Respondent be required to
post the usual notice advising its employees of their
rights and of the results in this case.
On the basis of these findings of fact and conclusions
of law, and on the entire record considered as a whole, I
make the following recommended13
ORDER
The Respondent, Yellow Freight System, Inc., Colum-
bus, Ohio, its officers, agents, supervisors, successors,
and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on behalf
of Teamsters Local Union No. 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO by
discharging employees or otherwise discriminating
against them in their hire or tenure.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Troy Dean Smith full and immediate rein-
statement to his former or substantially equivalent em-
ployment.
(b) Make whole Troy Dean Smith for any loss of pay
or benefits which he may have suffered by reason of the
discrimination found, in the manner described above in
the remedy section.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due; under the
terms of this Order.
(d) Post at the Respondent's Columbus, Ohio terminal
copies of the attached notice marked "Appendix." 114
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being signed by Respond-
ent's authorized representative, shall be posted immedi-
ately on receipt and maintained by the Respondent for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced; or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
12 F. W. Woolworth Co., 90 NLRB 289 (1950).
18 If no exceptions are filed as provided by Sec. 102.46 of the Board's 14 If this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses. Labor Relations Board."