Blue Arrow, Inc., a subsidiary of Kysor Industrial Corporation

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 940 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blue Arrow, Inc., a subsidiary of Kysor Industrial
Corporation and Theodore McCartney. Case 7-
CA-17913
May 14, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 3, 1981, Administrative Law
Judge Joseph M. May issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions 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, as modified herein, and to adopt his recom-
mended Order, as modified herein.'
While we agree with the Administrative Law
Judge that Respondent's discharge of McCartney
constituted a violation of Section 8(a)(3) of the
Act, we note that there are several noncritical inac-
curacies in his statement of facts. 2 However, in
adopting the Administrative Law Judge's 8(a)(3)
conclusion, we rely on the clear evidence in the
record that McCartney was an aggressive union
steward, that Respondent was familiar with his
union activities, and that Respondent had labeled
McCartney a troublemaker and was seeking a way
to fire him. In particular, the record evidence dem-
onstrates that Respondent's real motive in discharg-
ing McCartney was not his pay claim but his union
activity. McCartney was actually at the Pontiac
plant delivering for 1 hour 36 minutes; he stated on
his pay claim that he was there for 3 hours, a dif-
ference of I hour 24 minutes. Employee Capps, on
an earlier run, had been at the Pontiac plant deli-
vering for 45 minutes, but claimed 2 hours 15 min-
' The Administrative Law Judge has recommended that a broad order
issue against Respondent However, in accordance with our decision in
Hickmott Foods, Inc., 242 NLiRB 1357 (1979), in which it was decided
that, unless a respondent has been shown to have a proclivity to violate
the Act, or has engaged in such egregious or widespread misconduct
which demonstrates a general disregard for employees' fundamental
rights, a broad order will not automatically be included. Therefore, we
shall modify the recommended Order and notice accordingly
2 For example, the Administrative law Judge states that McCartney
had made the Chicago-Pontiac-Flint run three or four times. The record
shows he made the run five or six times. The Administrative I.aw Judge
states that McCartney was blamed by the terminal manager for the anon-
ymous posting of a notice contradicting an agreement reached between
the Union and the Company on the question of compensation for spot
deliveries The record does not show that the terminal manager blamed
McCartney
261 NLRB No. 135
utes, a difference of I hour 30 minutes. Employees
Miller and Meints had made similar claims on this
same Chicago-Pontiac-Flint route. In each instance,
the driver claimed from the Company more time as
on duty not driving than had actually been spent
on duty not driving. Capps, Miller, and Meints
were not disciplined for their actions; McCartney
was discharged.3 These facts establish a prima facie
8(a)(3) violation which Respondent failed to rebut.4
CONCLUSIONS OF LAW
1. Respondent Blue Arrow, Inc., a subsidiary of
Kysor Industrial Corporation, is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 332, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) of the Act
by discharging Theodore McCartney due to his
union activities.
4. The unfair labor practice found above is an
unfair labor practice having an effect upon com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
THF REMIEDY
Having found that Respondent has engaged in an
unfair labor practice within the meaning of the
Act, it shall be ordered to cease and desist there-
from and to take certain affirmative action de-
signed to effectuate the purposes and policies of the
Act. As we have found that Respondent unlawful-
ly discharged Theodore McCartney, we shall order
Respondent to offer him immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges. We shall also order that Respondent
make Theodore McCartney whole for any loss of
:' Respondent contends that it had a policy of investigating only those
claims in which a driver claimed a period of more than 2 hours (on duty
not driving time Respondent argues that this is why McCariney who
claimed 3 hours as on duty not driving during the Pontiac spur was in-
vestigated Respondent maintains that no other driver had claimed more
than 2 hours as on duty not driving and thus no others were investigated
But the record shows that on at least two occasions drivers other than
McCartney had claimed periods of on duty not driving which exceeded 2
hours, and yet no investigation occurred.
4 Chairman Van de Water would not defer to the arbitration award
herein solely because no party has requested such deferral Respondent's
request to defer "to the findings of the Arbitration Committee that
McCartney's conduct violated Uniform Rule 3(d)" is a request to defer to
an immaterial factual finding and is therefore inappropriate Respondent's
motive for discharging McCartney was not his improper pay claim but
his union activity; any ruling on whether rule 3(d) applies to that pay
claim is therefore immaterial to the resolution of the issues in this pro-
ceeding.
940
BLUE ARROW, INC.
earnings he may have suffered as a result of the
discrimination against him from April 18, 1980,
when he was discharged, until the date he is of-
fered reinstatement. Backpay shall be computed
with interest as prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Blue Arrow, Inc., a subsidiary of Kysor Industrial
Corporation, Detroit, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against any employee because of his or her activity
on behalf of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local 332, or any other labor organiza-
tion.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action, which
is deemed necessary to effectuate the policies of
the Act:
(a) Offer Theodore McCartney immediate and
full reinstatement to his former position or, if such
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, and
make him whole for any loss of pay suffered by
reason of the discrimination against him, with inter-
est, in the manner described in the section of this
Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
6 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."
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Wi WIILL NOT discriminate against employ-
ees because they are members of, or support,
Local 332, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WIL L offer immediate and full reinstate-
ment to Theodore McCartney to his former
position or, if that job no longer exists, to a
substantially equivalent position, without prej-
udice to his seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
him whole for any loss of earnings he may
have suffered as a result of our discrimination
against him since April 18, 1980, with interest.
BLUE ARROW, INC., A SUBSIDIARY OF
KYSOR INDUSTRIAL CORPORATION
DECISION
JOSI PH M. MAY, Administrative Law Judge: The
charge in this matter was filed by Theodore McCartney
on June 19, 1980. The complaint issued on August 6,
1980, alleging that on or about April 18, 1980, Respond-
ent discharged its employee because of his activities as
941
DECISIONS OF NA I IONAL LABOR RELATIONS BOARD
steward on behalf of Local 332, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, thereby interfering with, restraining,
and coercing its employees in the exercise of rights guar-
anteed in Section 7 of the National Labor Relations Act,
as amended, in violation of Section 8(a)(1) which makes
such conduct an unfair labor practice. Further, the dis-
charge is alleged to constitute discrimination in the hire,
tenure, or terms or conditions of employment calculated
to discourage membership in a labor organization in vio-
lation of Section 8(a)(3), which defines additional unfair
labor practices. In its answer to the complaint, the Re-
spondent states that the employee was discharged for the
reason that he falsified a trip report and logsheet in order
to obtain pay to which he was not entitled and thereby
engaged in theft and dishonesty in violation of rules and
regulations applicable to all Respondent's drivers.
The proceeding was assigned to me for hearing and
decision. Hearing was held in Burton, Michigan, on
April 20, 21, and 22, 1981. Post-hearing briefs were filed
by the General Counsel and Respondent. Respondent
renews on brief its motion at the hearing that defer, in
whole or in part, to the findings of an arbitration com-
mittee set forth in Joint Exhibit 2. (Because of the fact
that some exhibits were offered in a different order than
might have been expected, were not always properly
identified on the record, and were not sponsored by
expert witnesses nor, in some instances, by any witnesses,
this Decision includes a table of exhibits as Appendix A
attached hereto.) For reasons to be set forth below, Re-
spondent's motion is denied. My ruling on the admissibil-
ity of Respondent's Exhibit 9 was reserved when that ex-
hibit was offered; the admissibility of that exhibit will
also be discussed below.
Jurisdiction
Local 332, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is,
and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act. Re-
spondent is a corporation engaged in the interstate trans-
portation of property by motor vehicle. It maintains its
principal place of business at Grand Rapids, Michigan,
and others at Kalamazoo, Battle Creek, and Burton,
Michigan, and Chicago, Illinois. (Burton is a suburb of
Flint, Michigan, and is referred to as Flint in most of the
testimony and exhibits.) Respondent annually derives
gross revenues in excess of $50,000 each from the trans-
portation of freight directly to points within the State of
Michigan from points outside thereof and from the trans-
portation of freight directly to points outside the State of
Michigan from points within the State of Michigan. The
finding is therefore warranted that Respondent is an em-
ployer engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
STATEMENT OF FACTS
The findings of fact in this proceeding are best stated
narratively, as follows: McCartney began his trucking
career with the Respondent in 1968 and was an over-the-
road driver from 1976 until his discharge for theft or dis-
honesty on April 18, 1980. For the 2 years preceding the
discharge, McCartney was also the union steward for the
over-the-road drivers based in Burton, Michigan. He was
the only regular employee whom Respondent had ever
discharged for theft or dishonesty.
During his tenure as steward, it fell to McCartney to
explain to Respondent certain disagreements on the part
of the drivers with the interpretation of their employ-
ment contract by the Burton terminal manager and
others in responsible positions. Simple protests sometimes
led to formal grievance procedures which McCartney
felt obliged to initiate when management showed itself
intractable. The drivers were to be paid, for example, for
the time spent on duty while their vehicles were being
fueled. This time would vary, however, and the fueling
process was subject to delays over which the drivers had
no control. Management had adopted a unilateral policy
of paying the drivers for 20 minutes, regardless of the
actual time consumed. A grievance filed by McCartney
resolved the dispute in the drivers' favor. Next, it was
McCartney's lot to complain about the routine hiring of
new employees without the formal posting of notices of
openings for which existing employees might be eligible.
He further complained about a practice by management
of pressuring drivers to forego holiday pay when appli-
cable under the contract.
McCartney was not always successful with his com-
plaints on behalf of the road drivers, but he pursued
enough of them to cause substantial annoyance at the
management level. Respondent's announced plan to
change its dispatch system from a seniority system to a
first-in, first-out system was designed to reduce costs and
would have benefited some drivers at the expense of
others. McCartney challenged it and took up the cause
for his local at a general bargaining session; he failed to
persuade enough other locals that they too should
oppose the change, and the new system was installed.
The facilities available to over-the-road drivers at ter-
minals away from home were a source of discontent to
which McCartney frequently called management's atten-
tion. He considered the unavailability of emergency tele-
phones after closing hour to be a serious threat to driver
safety, but management responded that their installation
would be too expensive. The Burton terminal provided a
bunkhouse he considered unsanitary, and so he com-
plained to the terminal manager. Inasmuch as the drivers
based in Burton (for whom he was the union steward)
would never have occasion to use the Burton bunkhouse,
he was told that unsanitary conditions there were none
of his business.
Respondent had an agreement with two local cartage
companies in the Flint, Michigan, area, under the terms
of which Respondent could spot at the latters' yards
loaded trailers for delivery to ultimate consignees and,
ultimately, pick up the empty trailers there after comple-
tion of the cartage companies' unloading and/or deliv-
ery. These "spotting" assignments were not particularly
lucrative for the drivers, and so McCartney initiated ne-
gotiations between the Union and Respondent which cul-
minated in the agreement constituting Respondent's Ex-
942
BLUE ARROW, INC
hibit 22 herein. The agreement provides, among other
things, that the spotting driver is entitled to be paid for 1
hour at city rates and is not required to bring back an
empty trailer; if he chooses to bring back an empty trail-
er, he is entitled to be paid a 3-hour, multiple-leg guaran-
tee. A notice to the drivers contradicting the agreement
was posted by another union official, and McCartney
was blamed by the terminal manager for this contre-
temps.
None of these activities as union steward for the
Burton road drivers (and, in the case of conditions at the
Burton bunkhouse, as a steward acting ultra vires) en-
deared McCartney to Respondent's management in gen-
eral or the Burton terminal manager in particular. The
latter labeled him the head troublemaker and told him
that he would fire him "one of these days, and make it
stick." A retired driver claimed that Respondent's labor
relations consultant (Thompson) told him that he had
orders from top management in the Grand Rapids home
office to "nail" this driver and McCartney; but Thomp-
son denied the fact of the orders as well as the fact of
the conversation, and his testimony was the more persua-
sive of the two.
McCartney's discharge notice, dated April 18, 1980,
reads as follows: "On March 27, 1980, you violated the
following company rule . . .: Uniform Rules and Regu-
lations Rule 3 (d) Theft or dishonesty of any kind. You
showed on your pay sheet you spent three (3) hours deli-
vering when in fact you spent one hour and 36 minutes.
Also your log was falsified to cover this three hours.
Your conduct was not in keeping with efficient operation
and we therefore find it necessary to discharge you ef-
fective this date." It is signed by the terminal manager
who is quoted in the preceding paragraph. The "pay
sheet" referred to in the discharge notice is not the item-
ized paysheet such as those introduced as Respondent's
Exhibits 9, 10, 12, 14, 18, and 21. Rather, it is a company
document identified on its face as a trip report; specifi-
cally it is General Counsel's Exhibit 7. The "log" re-
ferred to is a driver's daily log (G.C. Exh. 5) printed for
Respondent on a form which complies with the require-
ments of the Motor Carrier Safety Regulations of the
Federal Highway Administration, U. S. Department of
Transportation. (In the transcript of testimony these doc-
uments are frequently confused with one another, and
the briefs of the parties can also tend to mislead the
reader; hence, this explanatory disgression and the Table
of Exhibits appended hereto.) The uniform rules & regu-
lations are contained on a single sheet introduced as
Joint Exhibit 3, the full title of which is set forth in the
Table. Rule 3 thereof lists certain types of punishable
conduct and the penalties therefor. Rule 3(d) names theft
or dishonesty of any kind as a category of conduct and
prescribes as the penalty, discharge. Rule 4(a), in con-
trast, deals with reports and prescribes a penalty of repri-
mand to 3-day layoff for failure to properly make out re-
ports and trip sheets.
Respondent's over-the-road drivers are paid on a
hourly basis, with a certain number of driving hours as a
daily minimum, subject to an additional payment for
nondriving hours which might occur because of delays
in loading, equipment failure, and other events. The trip
report is a form on which the driver shows the extra
time involved and the reasons for it. Thus, in addition to
the trip report referred to in the notice of discharge,
McCartney filed two more trip reports in connection
with the eventful journey which led to his discharge. He
began the day in Chicago and filled out a trip report
there to claim the 30 minutes normally allowed for hook-
ing up his tractor to the trailer he was to pull to Flint
with an intermediate delivery at Pontiac, Michigan. In
the space provided to identify extra duties, he wrote
"1/2 hr. hookup"; and he dated the form March 26,
though it was in the early hours of March 27. The next
trip report, properly dated, claims "2 hours wait flat tire
on (the tractor) at (location on highway) wait for service
from Kalamazoo. Called Chuck's-their compressor
broken-then call Terry's Tire Kalamazoo for service."
Copies of these two trip reports make up General Coun-
sel's Exhibit 6. The third report, claiming 3 hours' wait-
ing time, explains "3 hours-Deliver load to Pontiac
Motor Div.-wait for load to be taken off at plant 40
West."
The driver's daily log is prescribed by the Federal
Highway Administration to insure compliance with its
safety regulations governing hours of service. Drivers
are limited with respect to hours worked in driving and
on duty-not driving; and there are requirements for off-
duty periods as well. The form is graphic, running from
midnight to midnight in 15-minute segments horizontally
across the page; the driver draws a line through the seg-
ments on different levels to indicate when he was off
duty, driving, or on duty-not driving. Mr. McCartney's
driver's daily log for March 27, 1980, shows him off
duty from midnight until 3 a.m., on duty-not driving
from 3 to 3:30 (while hooking up at Chicago), driving
from 3:30 until 6:30 a.m. (when he experienced the flat
tire), on duty-not driving until 8:30 a.m. (driving until
noon, on duty-not driving at Pontiac from noon until 3
p.m. (the time period at the heart of the discharge dis-
pute), driving from 3 p.m. until 3:45 p.m. when he
checked out at the Burton terminal, and off duty from
3:45 until midnight. At the point of the disablement there
is the notation "flat tire" and at Pontiac there is a two-
line notation of which only the words "wait for load"
are decipherable.
On April 1, 1980, the terminal manager at Burton re-
ceived a call from a "Carol" in the Grand Rapids office.
She asked whether 3 hours was a reasonable amount of
time for a driver to claim as unloading time at the Ponti-
ac plant. The terminal manager and his subordinates
checked manifests that indicated McCartney was within
the plant area for I hour and 36 minutes. He did not ask
McCartney for an explanation. Respondent's Exhibit 9 is
an itemized monthly pay sheet (or recapitulation) which
"Carol" did not testify. Respondent's director of personnel, however,
addressed the question of why "Carol" made this call to Burton He
stated that it was company policy to pay claintms of up to 2 hours' extra
time routinely; and that this claim was investigated only because it ex-
ceeded 2 hours None of the several active or retired drivers who testi-
fied knew of this "policy" and some could recall claims for more than 2
hours which were never questioned If there were such a policy, and the
drivers had been informed of it. it is conceivable thalt ihi, proceeding
wvsould not hale,t risen
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purports to show extra earnings of $32.34 attributable to
the Pontiac delivery. It was not received in evidence at
the hearing because it does not show on its face that it
represents earnings in 1980, and counsel was unable to
establish the year independently as had been done with
some of the other paysheets of record. On brief, counsel
has not reoffered the exhibit, and the Administrative
Law Judge declines to receive it sua sponte. All parties
concede that, whatever the amount, McCartney was paid
the extra earnings that he had claimed. Respondent's di-
rector of personnel ordered the terminal manager to dis-
charge McCartney, if Thompson (the labor relations con-
sultant for Respondent) were satisfied with the support-
ing documentation. The terminal manager consulted with
Thompson without asking McCartney any questions,
then entered the notice of discharge and informed
McCartney orally through a subordinate, the terminal
dispatcher.
Pontiac is about 45 miles from the Flint area involved.
McCartney had little experience with serving this plant
from Chicago. In 4 years he had had only three or four
such deliveries. Not only had he not filled out the trip
reports in the same way for each delivery, but other
drivers also improvised when assigned this run. McCart-
ney reached the Flint area about noon and turned off
toward Pontiac. He spent I hour, 36 minutes at Plant 40
West, then returned to Flint in heavy afternoon traffic.
The round trip between the Flint turnoff and the Pontiac
plant probably took more than 3 hours. There being no
discernible company policy on how to claim the extra
pay earned for this delivery, McCartney decided to treat
it this time as a peddle run under section 55 of the col-
lective-bargaining agreement. He reasoned that eventual-
ly a company policy would emerge; instead, he was dis-
charged without an opportunity to provide the rationale
for his method of completing the form.
Deference to the Arbitration Committee's Decision
Because of the clear and longstanding national policy
encouraging the development of labor-management rela-
tions through collective bargaining, it has become in-
creasingly appropriate in judicial proceedings for the
courts to defer to the findings of an arbitrator acting
under authority of a collective- bargaining agreement.
The governing statute, however, embodies another na-
tional policy insofar as it confers specific substantive
rights enforceable in proceedings before the National
Labor Relations Board. As the Supreme Court has ob-
served: "A tension arises between these policies when
the parties to a collective bargaining agreement make an
employee's entitlement to substantive statutory rights
subject to contractual dispute-resolution procedures."
Barrentine, et al. v. Arkansas-Best Freight System, Inc.,
450 U.S. 728 (1981). The Court noted that the Fair
Labor Standards Act under which the Barrentine case
was prosecuted confers rights which are not waivable;
there can be no doubt that the National Labor Relations
Act also deals with unwaivable rights. The question then
becomes: Are the rights asserted here independent of the
collective-bargaining process? If so, they are not waiva-
ble.
It is clear that the rights asserted here are the statutory
rights to engage in activities proper to a union steward in
the exercise of his office. The collective-bargaining proc-
ess has not affected these rights but has only ordained
that certain disputes arising under the collective-bargain-
ing agreement may be resolved through arbitration. The
full text of the arbitration committee's decision of May
13, 1980, appears in Joint Exhibit 2: "DECISION: The
Committee finds that based upon the facts presented, the
discharge of Ted McCartney under the Collective Bar-
gaining Agreement and Rule 3(d) is upheld." We know
from Respondent's Exhibit 16, McCartney's grievance
report which culminated in the one-sentence decision,
that McCartney did not raise the unfair labor practice
issue we must consider here, but that he merely denied
the two specific charges brought in the notice of dis-
charge. As in Pincus Brothers, Inc., 237 NLRB 1063
(1978), full deference may not be accorded because, at
the very least, the unfair labor practice issue was not
considered. Respondent's argument that the Pincus deci-
sion warrants deference to factual findings even where
complete deference is inappropriate, can hardly prevail
where, as here, there are no findings of fact but only an
ultimate conclusion. Even that conclusion, it should be
noted, does not rest on the expert interpretation of any
specific provision of the collective-bargaining agreement,
but rather on a separate rule which may not have any
application to this case. Accordingly, Respondent's
motion to defer to the findings of the arbitration commit-
tee is hereby denied.
Subsidiary Findings and Conclusions
The record in this proceeding does not present a close
case. Although there is a factual tangle which should be
unraveled here in the interest of decisional clarity, it has
to do with the proper completion of printed forms and,
as will be seen, has no bearing on the issue of unfair
labor practices. The notice of discharge recites two
specifications of theft or dishonesty. The second specifi-
cation speaks to a falsification of a driver's daily log.
McCartney showed a period of 3 hours as on duty-not
driving when, in fact, he was driving during at least 1
hour of this period. (The exact number of minutes is ir-
relevant.) As already noted, the driver's daily log is a re-
quirement of the Federal Highway Administration and
must be filled out accurately in order that that agency
may be apprised of any violation of its hours-of-service
regulations; it has nothing to do with theft or dishonesty
between the driver and his employer. The first and only
significant specification fully defines the offense as the
claiming of excess extra time on McCartney's trip report.
This company document is, in effect, a claim for pay be-
lieved to have been earned. A company can decline to
pay and leave it to the driver to seek redress under the
grievance procedure. The testimony is persuasive that
trip reports were often rejected (with an explanation)
and that the next move, if any, was up to the driver. In
McCartney's case Respondent chose to pay the claim it
thought was not justified and then discharge the employ-
ee for theft.
944
BLUE ARROW, INC.
As noted, an intermediate delivery in connection with
the run from Chicago to Flint was an unusual assign-
ment. McCartney did not know the company's policy on
how to claim the time involved and, like other drivers
who testified, had improvised trip reports under different
theories. This time, according to his handwritten griev-
ance report, he determined to treat as a peddle run the
round trip from the turnoff in the Flint area to Pontiac
and back; and he cited article 55 of the collective-bar-
gaining agreement. The agreement, Joint Exhibit 1, is a
168-page document over which I enjoy no interpretative
expertise; neither was any expert testimony offered to
assist me in interpreting this article or articles 54, 56, and
57, which are relied on in Respondent's brief. Article 55
is a clumsily worded definition of a peddle run which in-
cludes full truckload deliveries within 75 miles of a ter-
minal. Despite the clumsy wording, it strains my creduli-
ty to accept the implication that an experienced over-the-
road driver did not know the difference between a
peddle run and the line haul he was obviously perform-
ing. The decision of the arbitration committee, of course,
does not discuss Article 55 but points, instead, to uniform
rule 3(d). A glance at Joint Exhibit 3 is enought to con-
vince me that the applicable rule is not uniform rule 3(d)
but rather uniform rule 4(a). The decision to discharge
was not based on theft or dishonesty for there was none.
McCartney filed an inaccurate trip report which led, but
need not have led, to an overpayment estimated by coun-
sel to be about $20. This money was not stolen; it was
paid in error. The overpayment could have been avoided
by Respondent on April 1, 1980, but it was not.
This extended discussion of what to some might seem
trivia has been necessary because of the posture adopted
by Respondent in its argument on brief. "The critical
point," argues Respondent, "is that the charging party's
discharge has not been causally linked to his union activ-
ities." This statement flies in the face of the record.
McCartney had been labeled the head troublemaker en-
tirely because of his union activities and had been told
that he would be fired some day in a way that would be
made to stick. Respondent's contention that it was the
personnel director, not the terminal manager or the labor
relations consultant, who had ordered the discharge, is a
transparent contrivance to insulate the latter two gentle-
men (those who had made the statements) from the firing
process. The terminal manager was the person asked
about the accuracy of the claim for extra time. The labor
relations consultant was the person asked about the suffi-
ciency of the supporting documents. The terminal man-
ager signed the notice of discharge and informed
McCartney through a subordinate. The personnel direc-
tor knew that the company had never before alleged
theft or dishonesty when dealing with an inaccurate trip
report. Respondent is not so large a company, nor is
Grand Rapids so far from Flint, as to make credible the
assertion that the personnel director in Grand Rapids
was unaware that the Burton terminal manager was
having trouble with the local union steward. In an ad-
ministrative forum, causalty may, indeed must, be in-
ferred from findings of fact, because the forum is ill-
equipped to probe states of mind. Here, not one nor two,
but each and every fact recited above is indicative of the
causal connection airily denied by Respondent. I con-
clude that such connection is inescapable.
Alternatively, Respondent argues that even if union
activity were shown as one motivating factor in the dis-
charge, the same decision would have been reached
absent any union activity; and both parties rely on the
leading case of Wright Line., a Division of Wright Line,
Inc., 251 NLRB 1083 (1980), in support of their opposing
views. There is no need here to discuss Wright Line and
related decisions. The evidence will support the conclu-
sion that McCartney was discharged because of his union
activity. It will not support any conclusion that he was
discharged for theft or dishonesty. He was discharged
because in his capacity as union steward he was a thorn
in the side of management; there was no dual motivation.
Management was prepared to seize upon any pretext to
discharge McCartney; and it determined that the filing of
an inaccurate trip report was sufficient for its purpose. I
conclude instead that the filing of an inaccurate trip
report was not a dischargeable offense. It certainly did
not constitute theft or dishonesty. I conclude that, lack-
ing any other forum, McCartney filed the inaccurate trip
report to force management's hand to declare how man-
agement thought that extra time for an intermediate de-
livery on a Chicago-to-Flint run should be claimed. Had
management committed itself to one particular method,
McCartney or any other member of the local would
have been able to challenge the method in a grievance
proceeding under the agreement. This procedure would
have led, ultimately, to settlement in binding arbitration
without the intervention of this unfair labor practice pro-
ceeding. Clearly, Respondent did not wish to travel this
route.
Upon consideration of all the evidence of record, I
find that Respondent has engaged in an unfair labor
practice by its discharge of McCartney for his union ac-
tivity, thereby coercing other employees and discourag-
ing membership in a labor organization; and that Re-
spondent should be required to cease and desist from
such practices and to restore the charging party to his
prior position in accordance with the attached order.
CONCILUSIONS OFi LAW
1. The Respondent, Blue Arrow, Inc., a subsidiary of
Kysor Industrial Corporation, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged and is engaging in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
APPENDIX A
Table of Exhibits
Exhibits Offered Jointly.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. National Master Freight Agreement and Central
States Area Over-the-Road Supplemental Agreement for
the period April 1, 1979, to March 31, 1982.
2. Decision of Joint State Arbitration Committee in
Case No. 329, dated May 13, 1980, and other cases not
pertinent here.
3. Employers' Uniform Rules and Regulations Govern-
ing Actions of Road Drivers and others promulgated
under authority of exhibit 1, above.
4. Motor Carrier Safety Regulations of the Federal
Highway Administration, U.S. Department of Transpor-
tation (49 CFR 390-397), in copy form provided by
American Trucking Associations, Inc.
General Counsel's Exhibits.
1. The "formal documents," including: the original
charge of June 19, 1980; an affidavit of its service, dated
June 20, 1981; the original complaint and notice of hear-
ing with summary of Board procedures attached, dated
August 6, 1980, and an affidavit of service bearing the
same date; the Respondent's answer to the complaint,
dated August 20, 1980; the original order rescheduling
hearing and an affidavit of its service, both dated August
27, 1980; the original notice of hearing location and an
affidavit of its service, both dated April 14, 1981; and an
index.
2. Employer's discharge notice to employee, dated
April 18, 1980.
3. Two sample driver's daily logs prepared by the
Charging Party (driver McCartney).
4. Two more sample driver's daily logs prepared by
driver McCartney.
5. McCartney's driver's daily log for March 27, 1980.
6. McCartney's trip reports for March 26, 1980 and
March 27, 1980 (flat tire).
7. McCartncy's trip report for March 27, 1980 (show-
ing 3 hours' waiting time at Pontiac plant).
8. Driver Capps driver's daily log and trip reports for
a Flint-Chicago-Pontiac-Flint run on October 3, and Oc-
tober 4, 1978.
9. Driver Miller's driver's daily log for a September
11, 1979, run to Pontiac.
10. Driver Miller's driver's daily log for a January 10,
1980, run to Pontiac.
Respondent's Exhibits.
1. Memorandum presented at the hearing in support of
motion to defer to the decision of the arbitration commit-
tee.
2. Employer's September 1978 memorandum to all
drivers relating to the DOT requirement that driver's
daily logs include the explanation for hours logged as
"on duty, not driving."
3. McCartney's driver's daily log for February 28,
1980.
4. McCartney's trip report for February 28, 1980.
5. McCartney's driver's daily log for March 7, 1980.
6. McCartney's driver's daily log for March 8, 1980.
7. McCartney's trip report for March 7, 1980, serial
258827.
8. McCartney's trip report for March 7, 1980, serial
258828.
9. McCartney's itemized paysheet, March (no year).
Not received in evidence.
10. McCartney's itemized paysheet, February 1980.
11. McCartney's driver's daily log for September 28,
1979, and trip report for September 27, 1979.
12. McCartney's itemized paysheet, September 1979.
13. McCartney's driver's daily log for August 14, 1979,
and trip report for August 13, 1979.
14. McCartney's itemized pay sheet, August 1979.
15. Blue Arrow mileage/guarantee chart for road driv-
ers showing earnings for various runs completed on Oc-
tober 1, 1979.
16. McCartney's grievance report of April 22, 1980.
17. Driver Meints' driver's daily log for October 9,
1979, and trip report for October 8, 1979.
18. Driver Meints' itemized paysheet, October 1979.
19. Driver Meints' completed driver's daily log for a
hypothetical situation on a test given May 21, 1976.
20. Blue Arrow, Inc., driver manual.
21. Driver Miller's itemized pay sheet, January 1980.
22. Road drivers' agreement with Blue Arrow defining
obligations for spotting trailers at two yards in the Flint
area and method of compensation for such work.
946