Central Freight Lines, Inc.

National Labor Relations Board - Board DecisionsMar 9, 1981

254 N.L.R.B. 1177 (N.L.R.B. 1981)

AFIL-CIO. S ~ p t e m b e r l lespondent The Ilecision and a n ~ i P u r s u a ~ ~ t l q c ) or ' i e rs dismissed Gen~!ral 4dministrative ctverrule unless convnces Standanf Wall Products, Inc.. (1950). 188 F.2d 1951). haw: BRUCE NASWR, he,srd (ilerein Selltember 8(a)(l) Labor ,' ~ - ' In No. exa as, disthbuted $50,000 2(2), (6), 11. 2(5) of ice discriminatee, IS. hoke. ofice handbilled Team- CENTRAL FREIGHT LINES. INC Central Freight Lines, Inc. and International Associ- ation of Machinists and Aerospace Workers, Case 23-CA-7599 March 9, 1981 DECISION A N D ORDER O n 18, 1980, Administrative Law Judge Bruce C. Nasdor issued t he at tached Deci- sion in this proceeding. Thereafter , t h e General Counsel filed exceptions and a support ing brief, and t h e filed a n answering brief in sup- por t of the Administrative Law Judge's Decision. Board has considered the record and t he at- tached in light o f t he exceptions and briefs has decided t o affirm the rulings, find- ings,' conclusions o f t h e Administrative L a w Judge anti t o adopt his recommended Order. ORDER t o Section o f the National Labor Relations Act. as amended. the National Labo r Re- lations Board 'adopts a s its 'Order t h e recommended Orde r of the Administrative Law Judge and hereby that t h e complaint be, and it hereby is, in its entirety. The Counsel has excepted to certain credibility findings made by the Law Judge. It is the Board's established policy not to an administrative law judge's resolutions with re- spect to credibility the clear preponderance o f all of the relevant evidence us that the resolutions are incorrect. Dry 91 NLRB 544 enfd. 362 (3d Cir. We carefully examined the record and find no basis for re- versing his find ngs. DECISION STATEMENT OF THE CASE C. Administrative Law Judge: This case was at Houston, Texas, on December 4, 5, and 6, 1979.. The charge was filed by the International Association of Machinists and Aerospace Workers, AFL-CIO called the Union or the Charging Party), on July 12. The complaint and notice of hearing issued on 4. The complaint alleges that Cen- tral Freight Lines, Inc. (herein called Respondent), placed under surveillance and discharged Willie Elmo Horak, Jr., in violation of Section and (3) of the National Relations Act (herein referred to as the Act). The Respondent, in its answer, admits said conduct but denies tha: it violated the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of briefs, make the following: All dates are 1979 unless otherwise indicated. !54 N L R B 157 FINDINGS OF FACT I. JURISDICTION It is admitted, and I find, that during the past 12 months, a representative period, Respondent, at its Hous- ton, facility, freight originating inside the State of Texas, and interlined freight in Texas which had its origin outside the State of Texas, and has other- wise functioned as an essential link in the transportation of freight and commodities in interstate commerce. During the same period of time, Respondent received in excess of for transportation interlining, as an essential link, with other common carriers, general freight, and cargo movers in interstate commerce, to and from points outside the State of Texas. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section and (7) of the Act. THE LABOR ORGANIZATION It is admitted, and I find, that the Union is now, and has been at all times material herein a labor organization within the meaning of Section of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES Respondent is a Texas corporation with its principal located in Waco, Texas, and with terminals locat- ed in various cities in Texas, including Houston, the sole facility involved herein. The alleged Willie Elmo Horak, Jr., was hired by Respondent on August 1, 1955, at the Houston terminal as a dockworker. He worked in this position for Respondent until he entered the military in 1956. He was discharged from the military in 1959, and returned to work for Respondent as a city truckdriver, a position he retained until his termination on June Horak's most recent union activities began in October 1978, after he received a telephone call from union rep- resentative Neil Townsend. whom he met at a hambur- ger restaurant near his During this meeting Horak agreed to assist the Union in organizing Respondent's dockworkers and truckdrivers. Horak openly talked to his co-workers, encouraging them to join the Union. He also solicited signatures on union authorization cards and distributed cards to his co-workers. Horak signed a union authorization card, authorized the Union to place his name on the Central Freight Lines' union organizing committee list, and to make this known to Respondent. He also attended union meetings at the Steelworkers hall. He constantly wore a union pin and a union cap. In December 1978, he met with H. L. Fry, Respondent's pickup and delivery manager, in Fry's concerning insurance. At this meeting, Horak wore a union cap and a union button. In February and March, Horak in the company of union organizers Respondent's terminal gate. He gave out handbills not only to his co-workers but also to supervisors. Horak's union activities recited above were only his most recent efforts on behalf of a union. In 1975, he was involved in an organizational campaign by the 1 17f' sters. Cenfral Inc., (19.16). Joseph 8(a)(l) Tht: jud ge ani~nus not:d st on, rejccted thew Belter CBB's tified ap- 1 \V . Callan, U n ~ o n IIorak p r y 1inl:ed anc Horak's T h e discharge: time";2 cornpany ma:ting Price Hopak. Hopak - dp 19.7'' 2:25 of McCoy IS 11:30 DECISIONS O F N A T I O N A L LABOR RELATIONS BOARD During that same year, he testified as a government witless in Freight Lines, 222 NLRB 388 That case involved the termination of a driver, Lee Durham, who was alleged to have been dis- charged in violation of Section and (3) of the Act. complaint was dismissed by the administrative law with Board approval. The administrative law judge concluded infer alia, that there was a lack of union on the part of the Respondent. It should also be that the facility involved in that case was the H o Texas, facility, the same terminal involved herein. In footnote 2, the administrative law judge specifically the testimony of Horak and another driver, al- though he indicates that the particular aspect of their tes- timony which was discredited may have stemmed from honest confusion. In 1977, Horak was involved in forming what was ap- parently an in-house union called the Committee for Benefits (CBB). Horak was a member of organizing committee, passed out handbills, and, on some occasions, wore a CBB button. Respondent was officially notified that he was one of the organizers of the CBB. An election took place in the fall of 1977, and Horak tes- that he was active on behalf of the CBB for prcximately year prior to the election. W. Jr., president of Respondent, testified without contradiction that in March o r April 1979 the distributed a handbill stating that it had either postponed or suspended its current campaign. testified that in March H. L. called Horak into his office and stated that it was no secret about how Horak felt about the Union. According to Horak, Fry this comment to Horak's testimony in the Durham case and the fact that it was common knowledge that he Durham were close friends. This is not alleged as an independent violation but apparently was elicited to es- tablish knowledge of Horak's union activity, although Respondent in its brief admits being long aware of Horak's union activities. Respondent's Asserted Reasons For Termination Respondent proffers as the reasons for Horak's (1) "stealing failure to comply with policy in notifying the dispatcher of delays in pickups or deliveries; (3) leaving the geographi- cal work area to eat lunch using unauthorized time and driving excessive miles; and (4) leaving truck unsecured at a customer's premises. During May 1979, James Martin, the dispatcher, communicated to Asa Price, Horak's route manager, that Horak was taking an exces- sive amount of time in making his deliveries and pickups. asked Billy Wayne Holloway, Respondent's secu- rity manager, to conduct a routine surveillance on In order for Holloway to know the stops that would make on any given day, on the day prior This is the characterization which was used throughout the hearing to drnote when an employee is paid for time not actually worked. As a pick and delivery driver, Horak, at the time of his discharge, was paid per hour. to the surveillance, he got copies of Horak's freight bills from the dispatcher. Holloway began the surveillance on Tuesday, June 12. T h e surveillance was broken off because, shortly after it began, subject Horak lost Holloway. Therefore, Holloway did not establish that any company policy was violated. Horak turned in his freight bills for that day, which reflected that he completed his route at p.m., but made only nine stops. Fry raised the issue with Horak that he had only made nine stops that day and Horak explained that he had been delayed at several them. Horak explained that he was delayed at Building Supply Company in Webster, Texas, for about an hour and minutes. Horak also explained that he was delayed in delivering a 900-pound carpet because it had to be unloaded by hand. In response to the question as to why Horak did not report the 15-minute delay, pur- suant to known company policy, Horek justified this on the basis that high-voltage wires over McCoy's store prevented two-way radio contact. He was asked why he did not communicate to the dispatcher by telephone and responded that he did not want to leave his freight be- cause it would have been damaged by the individuals trying to unload it without his supervision. Holloway continued with his surveillance of Horak on the next day, June 13. According to Holloway, after making a delivery that morning, at a K-Mart store, Horak drove his truck from the loading area to the front of the store and parked it over 150 yards away from the building. H e then got out of the truck and went into the store. Holloway then made a routine check of the truck to see whether it was locked in accordance with compa- ny policy, which required that when a truck is left unat- tended, it should be locked. Holloway found that the cab . was unlocked, and removed a freight bill from the seat so as to be able to prove of this condition. When con- fronted with this, Horak admitted that he did not lock his cab but explained that he had asked the K-Mart auto- . motive manager to watch his truck while he, Horak, went into the store to buy an air cushion. According to Horak's testimony, the automotive manager was watch- ing Horak's truck when he returned to it, but he did not report to Horak that he saw somebody (Holloway) take something out of the truck. Holloway's report reflects that Horak was in the K-Mart store for 17 minutes. Holloway also testified that he saw Horak returning to the truck and that he was not carrying any package (air cushion) at that time. Horak testified that he did in fact buy the air cushion and was carrying it when he re- turned to his truck. Holloway testified further both from memory and notes made at the time of the surveillance that he noticed Horak consistently running above and beyond the speed limits in nearly every posted area. Holloway reported his results of the surveillance to Fry and Price that afternoon. Fry felt that these viola- tions warranted additional surveillance and directed Holloway to follow Horak one more day. On the morning of Thursday, June 14, Horak made a delivery at the Boots 'N Britches Store in Friendswood, Texas. After making this delivery he drove to the Bay Brook Mall, where he stayed until a.m. He then bac,k 11:45 a.m. lo possible mixup truck ihould with 12:lO. t l~a t 1154 pu1l.d 1 :04 whe-e 2:20 Friendswood ,klolloway that 1 :ook hc'ur attempting Hollowaq surveillarrce tl:stified Fridity 15, lhat end IS, room missing r t om Mortz respon'jed 10 truck. Schroe- Callan, Callan's 6:30 office. 1179 CENTRAL FREIGHT LINES, INC. drove to Friendswood, where Holloway observed him parked approximately 40 yards from the street where Bcots 'N Britches is located at The Boots 'N Britches store is located in that general area. There is a parking lot adjacent to the store. When asked, Horak claimed that he was stopping back at Boots 'N Britches check on a in deliveries. Horak stated that he had discovered an item of freight on his for which he had no freight bill, and he as- sumed it go to Boots 'N Britches, because the woman in charge at that store had complained the day before that the shipment was short. Horak claimed that he spoke the woman at Boots 'N Britches for 5 to 10 minute;, and then returned to his truck for lunch where he checked out at approximately Holloway testified he first observed Horak and his parked truck at a.m. and that no one entered the truck nor did Horak leave the truck. According to Holloway the truck away at that afternoon. Holloway clocked the distance from the Bay Brook Mall to the point Horak had lunch and found it to be 5.9 miles one way. Horak had returned t o the Bay Brook Mall after having a lunch period, if Holloway is to be believed, cf I hour and 26 minutes. At approximately p.m., Holloway saw Horak coming out of Bay Brook Mali carrying a package. He followed Horak back to where he made a delivery at Southwest- ern Bell. terminated the surveillance and re- turned to t i e terminal. When questioned by Fry, Horak explained he did not take hour and 26 minutes for lunch but only 50 minutes. He further explained that the and 26 minutes were devoted to his at- tempts in to ascertain what had happened with the cross deliveries at Boots 'N Britches. prepared a report summarizing the 3-day and presented this report to Fry while dis- cussing the violation of company policy which he had observed on June 14. Fry apprised the terminal manager, Schroeder, of the reports and information he had received from Holloway. Schroeder that it was late in the evening when Fry reported to him and he had not enough time to review the information. Schroeder testified he reviewed the file which was the next morning, June and determined Horak should be terminated because he was guilty of stealing time, an offense for which the Company had without variation discharged employees in the past. Schroeder suggested to Fry that Horak be con- fronted with the information before a final decision was made regarding the termination of Horak. At the of the workday on June Horak re- turned to thr terminal as usual and turned in his freight bills at the office. He was informed that Fry was in the conference room waiting to see him. On his way to the conference Horak testified he noticed that his time- card was from the rack. When he entered the conference he saw his card on the table next to Fry. Dan and Joseph Williams, route managers, were also prr sent. Fry questioned Horak as to whether he had had any problems delivering that week, and Horak that he did not keep minutes of every- thing he had done the entire week, and asked Fry spe- cifically what he was talking about. Fry responded he had some very serious allegations and he was going to have to terminate Horak. Horak asked if he could see the freight bills for that week to refresh his memory of what had taken place, and Fry allowed him to review the freight bills. Fry accused Horak of the four infractions of company policy, and Horak made the explanations referred to above. Horak, also in explanation of the amount of time it took to complete his deliveries on June 13, told Fry he had a delivery at Reed Appliances involving a damaged washing machine and Reed would not accept the ma- chine until it had called the shipper in San Antonio, Texas, to ascertain whether or not another part could be supplied. Furthermore, Horak had to wait while Reed called Respondent to ascertain what should be done with the damaged freight. Horak testified that Fry told him he would look into the situation and check out Horak's explanations with the customers to see if there was any chance of reinstate- ment. Fry told Horak that he should return to the termi- nal at o'clock the following Monday morning. Then, according to Horak, Fry then asked him for his gate pass and Horak left the conference room. He then walked out to the yard to get his air cushion, which he had pur- chased at K-Mart, out of his As he was leaving his truck and going to the parking lot Mertz joined him and told him not to do anything until Monday because he and Fry were going to see if they could get Horak rein- stated. Mertz also allegedly told Horak that he thought that Horak was getting a bad deal. The versions of Fry and Mertz differ from Horak's version. According to Fry he left the conference room and talked to the terminal manager, Schroeder. der spoke to W. W. Jr., Respondent's president and a member of the executive committee with authority to terminate. When told that Horak had been caught stealing time, response to Schroeder was that in view of the well-established company policy concerning stolen time he did not see where Fry had any choice but to terminate Horak. When Fry discussed with Schroeder the results of his meeting with Horak, Schroeder told Fry to advise Horak he was terminated. Fry told Horak he was terminated and to come back on Monday morn- ing to fill out the necessary paper work. The discussion ended at approximately p.m. On the following Monday Horak returned to fill out the necessary paper work at the personnel Mertz testified that he did walk Horak from his truck to the front gate but did not say to Horak that he would attempt to try to have him reinstated. Conclusion and Analysis Respondent has established in the record, beyond any doubt, that it has for many years had a policy of placing truckdrivers under surveillance during the course of their workday. In my opinion this policy is perfectly legiti- mate and for purposes of checking safety and job per- formance while the drivers are performing on their routes. 11$0 DEClSlONS pa!it i.e., There ant1 8(a)(l) v~olations, 'rving alhost 2,000 anc truckdrivers. l'he dixi- 8(a)(l) ter- minrll -- 2.M (1979), 435 Mertz 2(2), (6), 2(5) 8(a)(l) l q c ) ' Sec. Sec. 1 OF NATIONAL LABOR RELATIONS BOARD There is nothing in the record to indicate anything un- usual about the surveillance of Horak. Record testimony reveals that during the past 7 years more than 100 driv- er!, had been placed under surveillance. Accordingly, I find that the surveillance was not violative of the Act. Respondent has introduced into the record unrefuted ev dence that five drivers were terminated within the 12 months for precisely the same offense committed by Horak; "stealing time." Nothing in the record in- dicates disparate treatment. Horak acknowledges meet- ings occurred where the matter of taking excessive time at lunch or at breaks was discussed. He does not deny being present at such meetings. are no earmarks in this record of the existence of any union animus at the Houston terminal. Although personnel and labor relations are centralized at Respondent's Waco, Texas, general offices, the fact that in two cases3 Respondent displayed union animus engaged in numerous at terminals in and Beaumont, Texas, does not lead me to con- clude that there was a general antiunion philosophy which spilled over to the Houston terminal. The Hous- ton terminal serves an area of square miles the companywide system employs thousands of fact that Horak had been a union adherent was well known by Respondent for years. I believe the record supports the fact that, until the week of his termi- nation, Horak enjoyed an unblemished work record. Moreover, in the past he had been complimented and re- ceived safety awards. It is not within my province to judge the harshness or severity of Respondent's pline, in view of the fact that it has acted consistently in the case of disciplining other drivers by discharge for committing the same violations of company policy. Respondent did not see fit to vary its rule or bend based on Horak's long-term service. In this regard I may disapprove of Respondent's inflexibility but do not find this to be a violation of Section or (3) of the Act. It should be pointed out that there is unrefuted testi- mony that the organizational activity at the Houston either ended or was suspended almost 2 months prior to the discharge of Horak. a NLRB 71 and 254 NLRB (1980). Counsel for the General Counsel argues strenuously that no investigation of Horak's alleged infractions of the rules was made by management. It is my opinion that the surveillance of Horak and the exit interview were inves- tigations. With respect to the various versions given by the prin- cipal witnesses in this case, the variations and the credi- bility issues do not appear to be particularly critical in this case. In this regard 1 would specifically credit Harmon Louis Fry and Billy Wayne Holloway and their tesitmony and discredit Horak. Fry's memory for general events and specific details impressed me. With respect to Holloway he impressed me as a witness who was testify- ing to a surveillance which was part of his job and the type of activity he engaged in regularly in the past. Horak, on the other hand, certainly had every reason to be upset about his termination, but he impressed me as a witness who was determined to make his case and would not hesitate to fabricate or pervert facts. I also credit who had nothing to gain by his testimony. Accordingly, I recommend that this complaint be dis- missed in its entirety. 1. Respondent is engaged in commerce within the meaning of Section and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section of the Act. 3. The allegations of the complaint that the Respond- ent has engaged in conduct violative of Section and (3) of the Act have not been supported by substan- tial evidence. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section of the Act, I hereby issue the following: It is recommended that the complaint herein be, and it hereby is, dismissed in its entirety. In the event no exceptions are filed as provided by 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in 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.