Central Steel Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1970

182 N.L.R.B. 704 (N.L.R.B. 1970)

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.
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