Cimpi Transportation Company

National Labor Relations Board - Board Decisions

Jul 1, 1981

256 N.L.R.B. 1064 (N.L.R.B. 1981)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cimpi Transportation Company and Robert R.
Reger. Case 3-CA-9797
July 1, 1981
DECISION AND ORDER
On January 22, 1981, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a reply brief in support of
the Decision of the Administrative Law Judge.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs 1 and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 3 as
modified herein. 4
1 The General Counsel's motion to dismiss Respondent''i exceptions
and brief as untimely tiled is hereby denied. The date for reccopt of the
exceptions and bnef in Washington was March 20, 1981. These docu·
ments were received by the Board on March 16, and by the General
Counsel on March 30, 1981, and thus were served promptly on the op·
posing party within the meaning of Sec. 102.46 of the Rules and Regula·
tions of the National Labor Relations Board, Series 8, as amended. Fur·
thermore, as the General Counsel had adequate opportunity to answer
the!-.e exception!\ and brief. and did so, we perceive no prejudice to the
General Counsel in our accepting the documents. Magic Chef Inc., 181
NLRB 1136, fn. I (1970); St. Bernadette's Nursing Home. Immaculate
Mary Home and the Archdiocese of Philadelphia, 234 NLRB 834, fn. I
(1978).
2 The Respondent has excepted to certain nedibility findings made by
the Administrative Law Judge. It " the Board's established policy not to
overrule an admmistrative law judge's resolutions with re~pect to credi-
bility unless the clear preponderance of all of the relevant evidence con·
vinces us that the resolution~ are mcorrect. Standard Dry Wall Product.~.
Inc., 91 NLRH 544 (1950), enfd. 188 F.2d 362 (Jd Cir 1951) We have
examined the record and find no hasis for reversing his findings.
" The Respondent has excepted to that part of the Order of the Ad·
ministrative Law Judge which requires it to otTer Robert R. Reger full
and immediate reinstatement to his former or substantially equivalent em-
ployment. The Respondent argues that regardless of its motivation for
Reger's discharge it had sufficient justification for discharging Reger be·
cause he had violations on hi!-. driver's license and a prior felony ClmviL'-
tlon which he d1d not reveal on his applicatmn for employment, and he-
cause he had caused problems with post office security. We tind the Re·
spondent's exception to be Without merit. The evidence indicatco;;, and the
Administrative Law Judge found, that while the Respondent wa:'!. aware
of the violations on Reger'!-. license and his prior felony t'Onvaction, 11 had
not previously disciplined or discharged hom on such grounds and had
charactenzed Reger as a good employee on the same day ot discharged
him. Further, the Respondent did not mention Reger's problems woth
post office security until after his discharge, and the evidence indicates
that as of the date of his discharge Reger had been given the dearanct·
by the Post Office Department to work as a mail hauler. In these corcum·
stances, we tind that the Respondent has not established that Reger's
record constitute:'!. a bar to hi~ remstatement. Adams Deli-rery Serwce. Inc ..
237 NLRB 1411 ( 1978).
Member Jenkms would compute the interest due on any lo~' of earn-
ings suffered by Reger by reason of the Respondent's d1scrimmation in
accordance with his partial dissent in Olympic Med1cal Corpora/ion, 250
NLRB 146 (1980).
4 The Administrative Law Judge has recommended a broad cease·and-
desist order. In llickmo/1 Food,. Inc., 242 NLRB 1357 (1979), we held
that such broad onjunctove language is warranted only when a respondent
has been shown to have a proclivity to violate the Act, or has engaged in
such egregious or widespread misconduct as to demon5.trate a general
disregard for the employees' fundamental 'tatutory roghts. Contrary to
the Administrative Law Judge, we do not tind that the '"'!ant violation
meets this test. Consequently, we shall modify the Admonostrative Law
256 NLRB No. 173
ORDER
Pursuant to Section IO(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Cimpi Transportation Company, Buffalo, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I. Substitute the following for paragraph !(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Judge's recommended Order to require the Respondent tn cease and
de!-l.ist from violating the Act "in any like or related manner."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Cimpi Transportation Company is posting this
notice to comply with the provisions of an Order
of the National Labor Relations Board. The Order
was issued after a hearing before an Administrative
Law Judge in a case in which we were found to
have committed certain unfair labor practices.
WE WILL NOT threaten to discharge employ-
ees because they have filed complaints with
the Wage and Hour Division of the U.S. De-
partment of Labor or any other governmental
agency charged with the responsibility of ad-
ministering laws relating to wages, hours, and
terms and conditions of employment.
WE WILL NOT discharge employees because
they have filed complaints with the Wage and
Hour Division of the U.S. Department of
Labor or any other governmental agency
charged with the responsibility of administer-
ing laws relating to wages, hours, and terms
and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended. These rights include the right to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of
their own choosing, and to engage in other
CIMPI TRANSPORTATION COMPANY 1065
concerted activities for their mutual aid and
protection.
WE WILL offer Robert R. Reger full and im-
mediate reinstatement to his former position
and WE WILL make him whole for any loss of
pay or benefits which he may have suffered by
reason of the discrimination practiced against
him, with interest.
CIMPI TRANSPORTATION COMPANY
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge: This case came on for hearing before me in Buffa-
lo, New York, upon an unfair labor practice complaint 1
issued by the Acting Regional Director for Region 3 of
the National Labor Relations Board, which alleges that
Respondent Cimpi Transportation Company 2 violated
Section 8(a)(l) of the National Labor Relations Act, as
amended. More particularly, the complaint alleges that
Respondent threatened to discharge employees if they
filed complaints with the Wage and Hour Division of the
U.S. Department of Labor (Wage-Hour) and that it dis-
charged Charging Party Robert R. Reger because he
filed a complaint with Wage-Hour. Respondent denies
these allegations and asserts that Reger was discharged
for an assortment of causes. Upon these contentions the
issues herein were drawn.
FINDINGS OF FACT
I. THE UNFAIR LAROR PRACTICES ALLEGED
Respondent operates a hauling business which con-
tracts with the U.S. Postal Service. It maintains its head-
quarters in Syracuse and has a small terminal on Queen
Street in Buffalo. As a Federal contractor, its operations
are governed by the provisions of the Service Contract
Act of 1965, as amended, 3 which provides for the estab-
lishment of prevailing wages covering Respondent's em-
ployees. This act, among others, is enforced by Wage-
Hour.
1 The pnncipal docker entrie~ in tha~ case an: a~ fnllov.,.The charge
filed herein on May 1'1. 1'180. by Robert R Reger, an tndtvtdual. agatn't
Respondent; the complaint issued agamst Respondent by the Acting Re-
gional Director for Regmn Jon June 11, 1'180; Re,pondent"s answer ftled
on June 18, 1'180; the heanng held tn Ruffalo, Ne"' York, on December
18. 1980; and the brief filed with me by the General Counsel on January
5, 1'181. I also received a two-page. unstgned, typewntten discu"ion of
the facts of this case on Respondent"s letterhead. Thts document dtd nnt
con tam a certificate of servace
2 Respondent admits. and I find. that 11 ts a pnvate propneto"htp
which maintains its principal pla\..'e of husiness in Syracw .. e, Nt'\\ Y0rk.
and a terminal in Ruffalo, New York, from which locations it "engaged
in the busmess of hauling mail under contract wtth the U.S. Postal Sen:-
lce. In the course and conduct of its hu~ine~~. Respondent nperate~ an In-
terstate trucking nperatltHl frnm wh1ch 1t annually derive~ grm.~ TL'\ cnuc"'
m exces~ of $5CX),(X)() from the l1 S. Pn~tal Sen K"L', an agcn1..·) nr !Tl"tru-
mentality nf the trmted State" Govl'rnment An:nrdmgl). Re ... pnndent 1"'
an employer engaged 111 comnwr~ .. :e w1th111 the mcamng of Sec ~(2), (tl).
and (7) of the A~t
'41 ll sc §§.151-.157
In the spring of 1980, Respondent employed five over-
the-road truckdrivers at its Buffalo terminal to haul mail
on runs from Buffalo to Chicago and back. Some of
these drivers were assigned additional runs as well. They
worked under the supervision of dispatcher Anthony
Nappo. One of these drivers was the Charging Party,
who was hired by Nappo in November 1979. At that
time, he was told by Nappo that he would be paid $7.45
per hour and would drive two runs a week from Buffalo
to Chicago and back. He was further informed that each
round trip would constitute 26 hours of employment so
he would be paid on the basis of 52 hours of work each
week. At some undisclosed time, Respondent's schedule
of runs between Buffalo and Chicago called for an out-
bound trip which resulted in no return load. Respondent
had the choice of directing the employee on this run to
bobtail back to Buffalo, i.e., to drive the truck back with-
out a load, or leave it in Chicago for a later trip and ride
back to Buffalo with another driver. As Respondent was
deriving no revenue from this run, it decided to pass
along its loss to the five Buffalo-to-Chicago drivers. In
mid-March, Nappo told both Reger and fellow employee
Terrence Pompeo that in the future all of the Buffalo-to-
Chicago drivers would forfeit 5.2 hours per week of
their pay to cover Respondent's loss of revenue on the
weekly empty return trip so that Respondent would not
have to dock the driver who rode back to Buffalo with-
out a load the entire 13 hours which had previously been
assigned to the trip. As a result of this arrangement, a
total of five drivers received cuts in pay. In a private
conversation with Nappo, Pompeo objected, saying that
he did not think it was fair since he was driving his own
trips and expected to be paid for the hours that he actu-
ally worked. Nappo told Pompeo that he was acting
under orders from Cimpi and that both of them felt it
was more equitable to apportion the loss among all the
drivers rather than to impose a bigger cut on the particu-
lar driver who came back each week without a load. He
also told Pompeo that, if the drivers did not like it, they
had two choices-to quit or be fired.
On two occasions in March, Reger also protested this
cut in pay in conversations with Nappo. Nappo's reply
to Reger was that this "is the way it would be" and, if
they did not like it, they could quit. He also told Reger
that. if anyone went to the "Labor Board," he would be
fired because drivers were a dime a dozen. Reger's reply
to this remark was that "dime-a-dozen" drivers have torn
up Respondent's equipment.
Reger, Pompeo, and driver David Marciniak discussed
this problem among themselves but without arriving at
any conclusive result. On May 2, Reger decided to file a
complaint. He first went to the NLRB office at the Fed-
eral Building in downtown Buffalo, was referred to a
New York State agency, and from there to Wage-Hour.
His complaint to Wage-Hour was given to Compliance
Officer Stephen Ross for investigation.
On Friday morning, May 16. Reger returned to the
Queen Street terminal from a run to Chicago. He saw
Pompeo and told him that he was leaving the premises as
soon as po~sible becaw.e he had learned that Ross was
coming around that day to investigate the complaint
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he had filed. Before Reger left for the day, he had
coffee with Nappo, who informed him that Respondent
had devised a new plan for apportioning the loss of reve-
nue on the empty return trip from Chicago. Nappo said
that from that time forward drivers would not lose 5.2
hours each week from the 52 which had been originally
promised. Instead, 13 hours, or $109, would be deducted
from an individual driver's pay every fourth week.
Reger decided not to voice a protest on this occasion be-
cause he already had filed a complaint with Wage-Hour
and knew that an investigator would soon be on the
premises.
At or about this same time, Nappo also explained to
Pompeo the revised version of a pay cut. Pompeo told
Nappo that he liked the new arrangement even less than
the former one because during I week each month he
would be credited with only 39 hours and would lose an
hour's worth of fringe benefits in addition to the loss of
wages. Nappo replied that he had heard that the men
were complaining but that Cimpi had hit upon this ar-
rangement in order to protect himself, adding that, if the
men did not like it, Cimpi could fire them all.
On the morning of May 16, Ross visited the Queen
Street terminal to investigate the complaint which had
been filed. He spoke with Nappo for an extended period
of time, telling him, among other things, that the purpose
of the visit was to enforce the provisions of the Service
Contract Act. He also told Nappo that he needed to see
certain pay records, and was informed that the Company
maintained its records at the Syracuse Office. During
their discussion, Nappo volunteered to Ross that he
knew he was making an investigation because Reger had
tiled a complaint. 4 Ross' reply was that Wage-Hour
never discloses the source of a complaint and that it re-
ceives complaints from several sources, including both
employees and competitors. He also stated that his office
undertakes random investigations on its own initiative.
Nappo persisted, asking Ross if he wanted to hear about
Reger. Ross agreed to listen. Nappo told him that, while
Reger was a good worker, he had a problem getting a
security clearance from the Post Office Department and,
if he did not receive a security clearance, this would
create a problem. Nappo also told Ross that Reger had
not filled out a job application form accurately and that
this fact alone would justify a discharge. However, he
assured Ross that he would retain Reger in the hope that
he would be cleared by the Post Office Department.
Ross informed Nappo that he did not come to Respond-
ent's terminal to see about Reger in particular but was
making an investigation to determine whether all em-
ployees were being properly paid. Before leaving, he
told Nappo that it might be necessary to transfer this
case to another Wage-Hour office since the Buffalo
4 Nappo was present during the hearing but was not called as a Wit-
ness. In fact, Respondent presented no witnesses and did not offer any
other admissible evidence. In accordance with well-established eviden-
tiary principles, I can only conclude that Respondent'' fa1lure to call
Nappo as a witness indicates that Nappo'' testimony, if presented, would
support the General Counsel's case
office did not conduct investigations in Syracuse where
the Company's records were located. 5
Nappo called Reger at his home late Friday afternoon
but could not reach him. He called back later in the eve-
ning. When Reger answered the phone, Nappo asked
him, "Why did you go to the-Labor Board? If you had
sat down and talked to me, maybe we could have
worked something out." He told Reger he had proof that
he had gone to the Labor Board in the form of informa-
tion from his girl friend who worked at the Board office.
I credit Reger's uncontradicted testimony that Nappo
then told him during this phone call that he was being
discharged because he had gone to the "Labor Board"
after being warned not to do so. Reger testified that he
then hung up on Nappo because Nappo sounded as if he
had been drinking.
On the following Monday, Reger went back to the
Wage-Hour office and tiled a second complaint, alleging
that he had been discharged for tiling his original com-
plaint. On June 2, Ross returned to Respondent's termi-
nal to investigate the second complaint. During this in-
terview, he told Nappo that a complaint had been filed
concerning Reger's discharge and that he wanted to hear
Nappo's side of the story. He told Nappo he thought it
was strange that Nappo fired Reger after telling Ross on
May 16 that he thought that Reger was a good employ-
ee. Nappo's reply was that he had experienced constant
problems with Reger. He showed Ross a copy of a
report from the Post Office Department, dated April 23,
involving a complaint by a post office guard to the effect
that Marciniak and Reger had failed to display their
badges when driving a truck on post office property.
Ross replied that it was peculiar that this incident was
being relied upon now as a basis for the discharge since
Nappo had already known about it when Ross had vis-
ited the Company on May 16. Ross also informed Nappo
that he had checked with the Post Office Department
and found that Reger had been given clearance to work
as a mail hauler. Nappo then told Ross that he had fired
Reger because of a problem with bonding and because
Reger had "marks" (traffic violations) on his license.
II. ANALYSIS AND CONCLUSIONS
It is well settled that the filing of a complaint with a
Federal or state agency concerning the nonpayment of
wages, overtime, or prevailing wages or concerning
safety violations constitutes concerted protected activity
within the meaning of Section 7 of the National Labor
Relations Act. B & M Excavating. Inc., 155 NLRB 1152
(1965), enfd. 368 F.2d 624 (9th Cir. 1966) (overtime com-
plaint to the state labor commissioner of the California
Department of Industrial Relations); Alleluia Cushion
Co., Inc., 221 NLRB 999 ( 1975) (OSHA complaint); Syn-
adyne Corp., 228 NLRB 664 ( 1977) (Wage-Hour com-
plaint); Apollo Tire Company, Inc., 236 NLRB 1627
(overtime complaint to Wage-Hour); Belair Chateau Hos-
pital. Inc., d/b/a University Heights Hospital, 239 NLRB
290 (1978) (back wage complaint to California Depart-
5 In Augu~t. Cimpi wa' cnntacled by the \\inal
Labor Relations Board office but was referred elsewhere when the exact
nature of his complaint became known
These statements are wholly inconsistent with the action
which Nappo took only a few hours later and indicate
conclusively, even in the absence of an admission on
Nappo's part. that it was Reger's complaint to Wage-
Hour which motivated the discharge in question. Ac-
cordingly, I conclude that Respondent herein discharged
Reger for engaging in concerted protected activities and,
in so doing, violated Section 8(a)(l) of the Act.
Upon the foregoing findings of fact and upon the
entire record herein considered as a whole. I make the
following:
CONCLUSIONS OF LAW
l. Respondent Cimpi Transportation Company is now
and at all times material herein has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6}, and (7) of the Act.
2. By threatening employees with discharge if they
filed complaints with the Wage and Hour Division of the
U.S. Department of Labor relating to the failure of Re-
spondent to pay overtime and prevailing wages as re-
quired by the provisions of the Service Contract Act of
1965, as amended, and by discharging Robert R. Reger
because he filed such a complaint, Respondent herein
violated Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect upon the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent herein engaged in cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes
and policies of the Act. Because the unfair labor prac-
tices found herein demonstrate a disregard by this Re-
spondent for the fundamental rights of its employees, I
will recommend to the Board a so-called broad 8(a)( 1)
remedy designed to suppress any and all violations of
that section of the Act. Hickmott f-Oods. Inc., 242 NLRB
1357 ( 1979). I will further recommend that Respondent
be required to offer Robert R. Reger full and immediate
reinstatement to his former or substantially equivalent
employment and to make him whole for any loss of earn-
ings he may have suffered by reason of the discrimina-
tion found herein in accordance with the Woolworth for-
mula, 7 with interest thereon at the adjusted prime rate
used by the Internal Revenue Service for computing in-
terest on tax payments. Olympic Medical Corporation, 250
NLRB 146 (1980); Isis Plumbing & Heating Co., 138
NLRB 716 (1962). I will also recommend that Respond-
ent be required to post a notice advising its employees of
their rights and of the remedy in this case.
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein considered as a whole,
and pursuant to Section IO(c) of the Act, I hereby make
the following recommended:
7 F W. Wiworth Company, 90 NLRB 289 (1950)
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 8
The Respondent, Cimpi Transportation Company, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge if they file a
complaint with the Wage and Hour Division of the U.S.
Department of Labor or any other governmental agency
charged with the responsibility for administering laws re-
lating to wages, hours, and terms and conditions of em-
ployment.
(b) Discharging employees because they have filed
complaints with the Wage and Hour Division of the U.S.
Department of Labor or any other governmental agency
charged with the responsibility for administering laws re-
lating to wages, hours, and terms and conditions of em-
ployment.
(c) By any other means or in any manner interfering
with, restraining, or coercing employees in the the exer-
cise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer Robert R. Reger full and immediate reinstate-
ment to his former or substantially equivalent employ-
" In the event no exceptions are filed a.s provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as prnv1dcd in
Sec. 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.
ment, without prejudice to his seniority or to other
rights which he previously enjoyed, and make him
whole for any loss of pay suffered by him by reason of
the discrimination found herein in the manner described
above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(c) Post at Respondent's Buffalo, New York, terminal
copies of the attached notice marked "Appendix. " 9
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by a rep-
resentative of Respondent, shall be posted by Respond-
ent immediately upon receipt thereof, and shall be main-
tained by Respondent for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
• In the event that this Order IS enforced by a Judgment of a United
States Court of Appeals, the words Ill the notice reading "Posted by
Order of the Natmnal 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."