Central Steel Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 25, 1970182 N.L.R.B. 704 (N.L.R.B. 1970) Copy Citation 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Steel Co., Inc. and General Teamster Local Union No. 528 , affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America . Case 10-CA-7957 May 25, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On March 4, 1970, Trial Examiner James M. Fitzpa- trick issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recom- mending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respondent filed a brief in reply to the Charging Party's exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendation. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Trial Examiner: This proceed- ing under Section 10(b) of the National Labor Relations Act, as amended (the Act), was initiated by a charge filed on September 22, 1969,1 by General Teamsters Local Union No. 528, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Teamsters) against Central Steel Co., Inc.' (herein called the Compa- ny or Respondent), upon which the Regional Director for Region 10 of the National Labor Relations Board (the Board) issued a complaint on November 7 alleging that Respondent had violated Section 8(a)(1) and (3) of the Act. Respondent filed an answer admitting certain allegations of the complaint but denying violations of All dates herein are 1969 unless otherwise stated z This name appears as corrected at the hearing the Act. The matter was tried before me in Augusta, Georgia, on December 18. ' Upon the entire record, my observation of the witness- es, and consideration of the briefs filed by the parties, I make the following: I FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent is a Georgia corporation engaged at Augusta, Georgia, in the warehousing and distribution of steel products. During the year preceding the issuance of the complaint it sold and shipped finished products valued at over $50,000 directly to customers located outside Georgia. II. THE LABOR ORGANIZATION INVOLVED The Teamsters and also the Retail, Wholesale, Depart- ment Store Union and its local, United Wholesale and Production Workers Union, Local 586, (herein, called RWDSU) are labor organizations which at times pertinent to this matter have admitted to membership company employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges as independent violations of Section 8(a)(1) of the Act, and Respondent's answer denies, that on or about July 6 Respondent's president, Lawrence Dick, interrogated an employee concerning his union membership, activities, and desires, and the union membership, activities, and desires of other employees; threatened that employees would be dis- charged if they engaged in union activity; and solicited him to report to the Company which employees engaged in union activities. The complaint also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee David M. Williams, Sr., on September 19 and thereafter refusing to reinstate him because of his membership in and activities on behalf of the Teamsters and because he engaged in concerted activities. In its answer Respondent admits the discharge but denies that it was for an unlawful reason. At the hearing Respondent asserted that it fired Williams for cause. B. The Company's Organization Respondent organized its enterprise on January 29, 1964. Most of its employees are engaged either in ware- housing or in delivering the steel products which it sells. About 16 employees are engaged in the warehous- ing. For the deliveries, the company, operates a fleet of 10 to 11 trucks consisting of 2 pickup trucks and I steel hauler which it owns and 7 or 8 steel haulers which it rents from Ryder Truck Rental, Inc., a wholly independent concern engaged nationally in the business 182 NLRB No. 109 CENTRAL STEEL CO. 705 of truck rentals . Respondent employs it own drivers to operate both those trucks which it owns as well as those which it leases. David Williams , Sr., was so employed as a driver , principally of leased trucks , during the period July 14, 1967, to September 19, 1969, when he was fired . About 90 percent of his time was spent in driving and about 10 percent in and around the warehouse. -J C. Past Labor Relations 1 1:1, On September 5, 1967 , following a Board election the Company and the RWDSU on behalf of the employ- ees entered into a collective -bargaining agreement. This agreement provided in article IV, section 3 that: "Neither the Employer nor the Union shall discrimi- nate against any employee in any manner whatever because of membership or nonmembership in the Union . The Employer further agrees not to enter into any agreement 'or contract with any employee or group of employees which conflict with the terms of' this Agreement . The Employer does reserve the right , however , to meet and discuss with its employees relative to the Employer ' s busi- ness operations , policies, or affairs , including condi- tions of employment , where not in conflict with the specific terms of this Agreement." In addition the agreement provided in article VII, section I that "Employers will at all times exercise good safety practices in the operation of vehicles and in the perform- ance of their duties. Drivers shall not exceed legal speed limits . . . ." The agreement also provided for the checkoff of union dues. Although by its terms this agreement was to remain in effect until at least September 6, 1968 , the parties thereto on January 31 , 1968, while the agreement was in mid-term , entered into an extension of the agreement with certain adjustments in wages and job classifications. By its terms this extension was to endure until September 6, 1969 , and thereafter from year to year absent 60- day notice to terminate or modify . It was executed on behalf of the Company by its president, Lawrence Dick , and on behalf of the employees by a representative of RWDSU and a shop committee consisting of Williams and another employee. During the life of this second contract Williams, according to his testimony , was a shop steward for RWDSU . However his relationship with RWDSU was something of an on -again off -again relationship. Thus in August 1967 before the first contract was negotiated he authorized the Company to checkoff dues for RWDSU . In November 1967 only 2 months after the first contract was entered into he revoked this authoriza- tion . A few days later he reauthorized the checkoff of dues, and then a month later (December 1967) again revoked it . Then on January 29, 1968 , 2 days before he signed the second RWDSU contract as 'a member of the shop committee , he reauthorized the Company to checkoff dues, and then a month later on February 27, 1968 , he again revoked this authorization. D. The Alleged Violations of Section 8(a)(1) In anticipation of the expiration date- of its second contract with the Company , RWDSU by a letter to the employees on June 3 pointed out that the contract would expire September 6 and that RWDSU would have to notify the Company by July 6 if they wished to negotiate a new contract . It also called the employees to a meeting after work on June 16 to take up the question. Guy Dickinson , an international representative of the RWDSU , also telephoned Respondent ' s President Law- rence Dick and arranged a luncheon meeting with him on June 16 . At that time Dickinson pointed out that the existing contract would expire on September 6 and that RWDSU would like to begin negotiations for a new contract . They discussed some specific terms for a possible new contract . But according to the uncontrad- icted testimony of Dick , he expressed his understanding that the law required him to negotiate with a union which had a contract in effect but he raised the question whether RWDSU actually represented the employees since the Company then had no employees on checkoff. Dickinson ' s response , according to Dick , was that "He was in the process of contacting the employees and working with them and getting them all lined up to go ahead with another contract , and asked me (Dick) to ascertain if I could , to help him in his pursuit of this, whether or not the men were amenable to another contract . . . ." Dick promised Dickinson he would do this and some 3 weeks later (about July 6) after returning from a trip , he talked with Williams. In the meantime , on June 30 , RWDSU sent the Compa- ny a letter giving formal notice of its desire to terminate the existing contract on September 6 unless the contract was changed or modified by negotiations by that time. Dickinson met and negotiated with Dick on two subse- quent occasions , and also negotiated a couple of times by telephone . However , no agreement resulted from these discussions . About July 1, Williams signed a card authorizing the Teamsters to represent him and also obtained from the Teamsters blank cards which he circu- lated among other employees , mostly away from the plant , obtaining employee signatures on approximately 23 cards . Only one or two employee signatures were obtained at the plant . There is no evidence that the Company had knowledge of Williams' Teamster activity at that time. As noted above , when Dick returned from his trip about July 6 he contacted Williams on his job. According to Dick , he talked with Williams because insofar as he knew Williams was still the RWDSU representative among the employees . Williams' and Dick's versions of the conversation differ substantially. According to Williams , Dick approached him in the warehouse and asked him what he intended to do about the Union (meaning the RWDSU). To this Williams replied that they did not plan on doing anything; that because of turnover in employees many newer employees had no knowledge of the Union ; and the older employees who were the original members were dissatisfied with 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it, were no longer interested in it, and were not going to introduce the new employees to it. He said, "Mr. Dick, in view of the fact that I am not interested in the Union, have a lot of people here who don't know anything about it, I don't intend to do anything about it; we'll just let the contract fizzle out when it's time. We're not going to meet on it; we're not going to discuss it; we're not going to have anything to do with it. It's supposed to be expired, and we're just going to let it run out, not going to do anything about it." According to Williams, Dick then said, "Well, if you hear anybody talking around here, any kind of union talk, you let me know so I can get rid of them." No one else heard the conversation. Dick's version is that in accordance with his promise to Dickinson and because he understood Williams was the union representative among the employees, he asked Williams, "If he knew what the status of the Union was insofar as the employees went. Was he still interest- ed in this Union, since no one was on checkoff, or were the men still interested?" According to Dick, Wil- liams answered that he was not in the Union and that he did not know, whereupon Dick stated to him that, "Well, I'd appreciate it if you'd check around and find out and let me know because I have to make a decision as to what to do. Mr. Dickinson wants to negotiate a contract, and I don't know whether to negoti- ate with him or not." Williams never reported back to Dick on the matter. As between these two conflicting versions I credit Dick. He appeared to me to be a more responsive and accurate witness than Williams. Moreover his ver- sion squares better with the other circumstances estab- lished in the record regarding the representative status of RWDSU, the Company's obligations under the then current contract, and Dickinson's efforts to negotiate a successor contract. I note further the absence of significant evidence in the record of company animus toward the Teamsters other than the remarks attributed by Williams to Dick in the conversation on July 6. As noted, I do not credit Williams, and having observed Dick on the stand and considered the other evidence in the record I am convinced he did not make the remarks indicating a desire to get rid of anyone interested in a union. Although it is clear that Dick did ask Williams about the status of RWDSU and also asked him to check around among the employees, in the circumstances of this case I do not view such an inquiry as coercive or as an interference with employee's Section 7 rights. In view of the facts that no employees were on checkoff for the RWDSU, that as the incumbent Union it was pressing the Company to negotiate a successor contract although its international representative did not know whether it enjoyed the support of the employees and in effect invited Dick to make his inquiries, and that the inquiries were made of the one man who the Compa- ny understood was the RWDSU shop steward and who was a signatory to the then current contract, I conclude that the inquiries which Dick made on July 6 did not violate Section 8(a)(l) of the Act. I further conclude than Williams was discharged that there is insufficient evidence to establish that on July 6 Dick threatened to discharge employees if they engaged in union activities. E. The Alleged Violation of Section 8(a)(3) of the Act Williams was admittedly discharged on September 19. The issue here is why. The General Counsel and the Teamsters assert it was because of his activity on behalf of the Teamsters. The Respondent denies this, contending he was fired because of his bad driving record and because Ryder made a written request that he be replaced. Company President Dick testified that prior to this written request, even though he had a bad driving record, "David had been a satisfactory employee in our records; customers liked him; he got his steel delivered, and we attempted to keep him on the payroll, and asked Ryder to bear with us and maybe we could straighten him out." Company knowledge of Williams' Teamster activity is established by a memorandum sent to the Company by the Teamsters about September 10 and received by the Company between then and September 15, listing 17 employees including Williams as members of a Team- ster organizing committee.3 The record contains considerable evidence of Wil- liams' inadequacies as a driver. As early. as August 23, 1968, Ryder suggested that the Company put Williams on 6-months probation because he had been involved in two preventable accidents during the preceding II months, and further requested that if he should be involved in another accident during the probationary period, he be removed as a driver of Ryder equipment. This was followed a few days later on August 30, 1968, by a letter from Ryder to the Company enclosing an observation report on August 27, 1968, indicating both negligent driving and parking by Williams on that date. The following February 4 Ryder again wrote to the Company about Williams enclosing another report by him of an accident on January 24. The letter noted that this was within 6 months of a previously reported incident and asked that Respondent extend his probation to a year. The letter concluded that if the continued probation did not result in Williams becoming a good driver, then Ryder felt it only fair that he be removed as a driver. On May 7 while his. extended probation was still in effect, Williams, while on a trip to Greenville, South Carolina, sustained two flat tires and two damaged rims resulting in a replacement cost of over $260. Ryder classified this damage as the result of driver abuse. On August 25 Respondent's President Dick fortuitously observed Williams on the road to Aiken, South Carolina, operating a Ryder truck in an unsafe and abusive manner. He prepared a memorandum on the incident to Williams' supervisor instructing him that "proper disciplinary action should be taken." Each of the above incidents was discussed with Williams by his supervisor but none resulted in his discharge. According to the uncontradicted 3 There is no evidence that any member of the committee other CENTRAL STEEL CO. testimony of Dick, the district manager for Ryder orally complained to him about the cost problems when Wil- liams drove a truck, including excessive tire costs and driving on flat tires, improper operation of the vehicle, and blown engines because of excessive speed, and orally asked for his removal as a driver. Respondent did not accede to this oral request. Finally on September 18 Ryder wrote a letter to the Company stating that it had reviewed its unit costs and noted the excessive tire expense for vehicles operated by Williams. The letter also noted that Ryder had several bad observation reports indicating careless driving by Williams. The letter concluded as follows, "with the above in mind I would like to ask that you make arrangements to replace David as soon as possible primarily for economical reasons. He has cost us more in tires alone that we could ever hope to recover in profits from the vehicle. In essence, I am saying that we cannot afford to have David as a driver of Ryder equipment." Respondent received the letter the next day, September 19, and Williams' supervisor, after telling him the Company had received the letter, discharged him. The record shows that Williams was not the only driver discharged as a result of written requests from Ryder. From time to time others were similarly dis- charged. The practice of the Company was to reprimand drivers when it received an adverse report from Ryder but not to discharge them unless it received a written request to so do. This practice was followed in Williams' case. In the judgment of Respondent's President Dick if Respondent failed to comply with a written request from Ryder to replace a driver, it risked loss of its lease arrangement for the trucks, loss of insurance cover- age provided by Ryder, and might have to pay the costs resulting from the driver's conduct. No evidence in the record indicates that this was not an honest business judgment. The only circumstance that suggests that the Company discharged Williams because of his union activity is the circumstance of timing; namely, that he was fired 9 days or less after the Company received notification that he was one of the 17 employees on the Teamsters 707 organizing committee. Although this invites suspicion, it is not persuasive when considered with the other circumstances in the case. Sixteen other members of the Teamsters organizing committee were not discharged. Aside from the testimony of Williams, whom I do not credit, regarding his conversation with Dick on July 6, there is no evidence indicating company animus toward the Teamsters. There is overwhelming evidence that Williams was discharged because Ryder requested it. And there is no evidence whatsoever that Ryder was not acting independently and in its own interests or that the reasons assigned by Respondent for his discharge were a pretext. Accordingly I conclude that a preponder- ance of the credible evidence fails to establish that Williams was discharged for discriminatory reasons, and I conclude that Respondent in discharging him did not violate Section 8(a)(3) or (1) of the Act. See K. O. Steel Casting, Inc., 172 NLRB No. 216. Since I have found that the evidence is insufficient to sustain the allegations that Respondent violated Sec- tions 8(a)(1) and (3) of the Act, I conclude that the complaint herein should be dismissed and I will so recommend. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6), and in business activities affecting com- merce within the meaning of the Section 2(7), of the Act. 2. The Teamsters and the RWDSU are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By the conduct alleged in the complaint herein Respondent has not engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) of the Act affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, I recommend that pursuant to Section 10(c) of the Act the complaint herein be dismissed in its entirety. r Copy with citationCopy as parenthetical citation