Cintran, Inc.

National Labor Relations Board - Board DecisionsOct 27, 1989

297 N.L.R.B. 178 (N.L.R.B. 1989)

178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cintran, Inc. and Paul Muth. Case 9â€”CA-25961 October 27, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On July 31, 1989, Administrative Law Judge Leonard M Wagman issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 1 and conclusions 2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cmtran, Inc , West Chester, Ohio, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order 'The Respondent has excepted to some of the judge s credibility find- ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We agree with the judge's conclusion that the Respondent violated Sec 8(a)(1) of the Act by discharging employees Paul Muth and John Vinson for their protected concerted activity of refusing to work rather than comply with a dispatch order that they in good faith believed re- quired them to violate U S Department of Transportation regulations Accordingly, we find It unnecessary to pass on the judge s alternative ra- tionale, in fn 6 of his decision, that even if he credited Director of Oper awns Charles Shafer s testimony that Muth and Vinson refused to drive because they wanted to be home for the Labor Day weekend, their refus al to work on a holiday weekend would constitute protected concerted activity James E Horner, Esq , for the General Counsel Joseph H Vahlsing, Esq (Cors, Bassett, Kohlhepp, Hal- loran I& Moran), of Cincinnati, Ohio, for the Respond- ent DECISION STATEMENT OF THE CASE LEONARD M WAGMAN, Administrative Law Judge This case was tried in Cincinnati, Ohio, on April 11, 1989 The charge was filed November 25, 1988, 1 and the complaint was issued January 9, 1989 'All dates are in 1988 unless otherwise indicated The complaint alleged that the Company, antran, Inc (Respondent), had violated Section 8(a)(1) of the Nation- al Labor Relations Act (29 U S C Â§ 151 et seq ), re- ferred to in this decision as the Act, by discharging em- ployees Paul Muth and John Vinson because they en- gaged in concerted activity protected by Section 7 of the Act 2 The Company, by its answer to the complaint, denied commission of the alleged unfair labor practice For the reasons stated below, I find, in agreement with the General Counsel, that the Company violated Section 8(a)(1) of the Act, as alleged On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT I JURISDICTION The Company, a corporation, has a facility in West Chester, Ohio, where it engages in the transportation of freight and commodities in interstate and intrastate com- merce In the course and conduct of its business oper- ations, the Company annually derives gross revenues in excess of $50,000 for the transportation of freight and commodities directly to points outside the State of Ohio The Company admits and I find that it is an employer engaged in commerce within the meaning of Section' 2(2), (6), and (7) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Facts At the time of their discharges on September 1, Paul Muth and John Vinson were working for the Company as over-the-road truckdnvers Muth had been driving for the Company since approximately February 8 Vinson had been in the Company's employ since approximately August 1987 3 Shortly after noon on September 1, employees Muth and Vinson arrived at the company dispatcher's office, where they met Charles C Shafer, the Company's direc- tor of operations, who was acting dispatcher Shafer told them that they were going to Canton, Massachusetts, and gave each a trailer number Vinson, in a joking manner, 2 In pertinent part, Sec 7 of the Act provides Employees shall have the right to self-organization, to form, join or assist lalior organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8(a)(1) of the Act provides It shall he an unfair labor practice for an employerâ€” (1) to interfere with restrain, or coerce employees in the exercise of the rights guaranteed in section 7 'I based my findings regarding Muth s and Vinson s employment by the Company upon their testimony Both impressed me as candid wit nesses The Company s president, Jim Huegel, testified in substance that another firm, Fleet Management provided drivers to the Company, and that Muth and Vinson might have been Fleet Management employees at all times material to this case However, his assertions of uncertainty about the ties between Fleet Management and the two employees per- suaded me that he was not a reliable witness with regard to their rela- tionship with the Company 297 NLRB 22No 23 CINTRAN, INC 179 accepted the assignment as his "one east coast for the month" Muth and Vinson left the office to attach their tractors to their assigned trailers The next step in preparation for departure was the ter- minal's safety inspection lane Vinson proceeded through the safety inspection He received an inspection check report which he took to the dispatcher's office Mean- while, Muth's tractor and trailer were going through a safety inspection Vinson turned in his safety inspection report at the dis- patcher's office In return, he received a company deliv- ery receipt directing him to deliver the assigned load at Canton, Massachusetts, by 8 a m on the following day Vinson went to his truck and consulted a road atlas He noted that the distance between Cincinnati and Boston, Massachusetts, was 869 miles Vinson could not locate Canton on the map but estimated that it was 850 miles from where he was sitting Noting that 1 p m was approaching, Vinson conclud- ed that he and Muth could not reach Canton by 8 a m, September 2, and comply with U S Department of Transportation regulations For, as Vinson knew, under those regulations, over-the-road drivers, such as Muth and Vinson, could only drive 10 consecutive hours, after which they were required to take an 8-hour rest, before undertaking a further period of dri(ring limited to 10 hours 4 At most, he and Muth could expect to average 50 miles per hour Given a 1 p m departure on Septem- ber 1, the 10-hour limit on driving and the required 8- hour rest period, Vinson believed that he and Muth could not reach Canton before 2 p m on September 2 Using his truck's CB radio, Vinson told Muth of the 8 a m delivery requirement and the mileage Vinson also asked Muth if he intended to make the Canton run as re- quired Muth replied in substance that he would not make such an illegal trip In Muth's opinion, at that junc- ture, he and Vinson could not make the delivery at Canton before 3 or 4 p m on the following day The two drivers converged on the dispatcher's office Vinson arrived first and confronted the acting dispatch- er, Shafer Vinson protested that the delivery to Canton could not be done by 8 a m, the next day Shafer re- plied, in substance, that he would be satisfied if delivery were made at any time during the morning and that he would arrange for a return load , which would bring Vinson home by Saturday Muth arrived in the dispatch- er's office in time to hear Shafer's response Vinson re- jected the change of delivery time, saying that the dis- tance was too great for him and Muth to drive in the amount of time Shafer was allowing The dispute continued Shafer insisted that it was "an easy run" Vinson disagreed, calling it "an illegal run" He also stated that he had a 2-day log violation and did not "care to have anymore" Muth also, rejected Shafer's request Shafer, addressing both drivers, suggested that they "be mad at [me] and take the load" Muth respond- ed that if he wanted to make an illegal trip, he would have accepted a load to Texas on the previous night 4 49 CFR Sec 395 3(a) (1987) provides in pertinent part [N]o motor earner shall permit or require any driver used by it to driver nor shall any such driver drive (1) More than 10 hours following 8 consecutive hours off duty Muth, who preferred driving to , points in the South or West, asked if he and Vinson would "get hung up on the East coast over the holiday weekend" Shafer answered, "no, we'll find you something to come back with" When the two drivers repeated their refusals to take their loads to Canton, Shafer began looking through his dispatch sheet, and then said "[Y]ou guys leave me no choice I guess you guys will have to go clean your trucks out" Muth and Vinson left the dispatch office to clean out their trucks After discussing Shafer's remarks, the two drivers de- cided to ask him if he had fired them or if he had as- sumed that they had quit Muth and Vinson returned to Shafer in the dispatcher's office Vinson told him, "[L]isten Charlie, we've got to hear it from you We're not quitting under this load We will work" Shafer asked, "What's the difference?" Vinson answered "There's a lot of difference" Shafer declared that they were "fired" Shafer immediately gave each of the drivers a termina- tion notice showing that he had discharged each for quit- ting under a load In a portion of the termination notice marked "EXPLAIN," was the following inscription "Took Canton Mass load Came' back in & refused to go to Mass The Company has not offered reinstatement to either Muth or Vinson 5 B Analysis and Conclusions The General Counsel contends that the Company vio- lated Section 8(a)(1) of the Act, by discharging drivers Paul Muth and John Vinson because of their protected concerted activity in refusing to drive their respective trucks to Canton, Massachusetts, under conditions which would have required violation of Federal regulations lim- iting consecutive hours of over-the-road truck driving The Company denies the alleged violation, contending instead that Muth and Vinson refused to take their loads to Canton because they had an aversion to driving to the East coast and did not want to be away during the coming Labor Day weekend Further, the Company denies that it discharged the two drivers, and asserts that they "voluntarily quit [the Company's] employ under 5 According to Shafer's testimony, the 10-hour rule played no part in Mush's and Vmson's refusal to drive to Canton, Massachusetts Instead, he testified that despite his assurances to the contrary, Muth and Vinson refused to accept their driving assignments because they did not want to drive to the East Coast and risk being kept there over the Labor Day weekend However, three factors cast doubt on Shafer s testimony First, neither Shafer nor any other witness denied or contradicted Vinson's testimony that the company delivery slip, which originated in Shafer's office, re quired delivery by 8 a m on September 2 Second, he recalled 'vaguely that "they said we can t be there tomorrow morning" This recollection provided partial corroboration for Muth's and Vinson's testimony Final- ly, in an apparent effort to help the Company's defense, Shafer gratu- itously testified that "people remarked to me in the office about how I was being so patientâ€”" The foregoing factors, plus my impression that of the three participants in the discussion on September 1, Muth and Vinson Impressed me as being more straightforward, as they related their recollection, persuaded me that their account was more reliable than Shafer s Accordingly, I have based my findings regarding the confrontation of September 1 on the testimony of Muth and Vinson 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD load by refusing their assigned dispatches " (R Br 4) At the outset, I reject the Company's claim that Muth and Vinson quit their employment There was no show- ing that either of them ever said he was quitting the Company's employ Instead, I have found that when the two drivers returned to the dispatcher's office on Sep- tember 1, after refusing to take the Canton, Massachu- setts assignment Vinson assured Shafer that he and Muth were not quitting Shafer replied, "[Y]ou're fired" Shafer also presented a termination notice to each of the two drivers which gave "DISCHARGED" as the reason for the employee's leaving and "QUIT UNDER LOAD" as the reason for the discharge Far from supporting the Company's position that the two dnvers quit voluntarily, the recited facts show, and I find, that Muth and Vinson wanted to remain in the Company's employ, as over-the-road drivers I also find that the Company discharged them on September 1 The question of whether the discharges of Muth and Vinson constituted a violation of Section 8(a)(1) of the Act turns on whether their refusal to accept dispatches to Canton, Massachusetts, on September 1, constituted "concerted activity" within the meaning of Section 7 of the Act To resolve that issue, I have looked first to the Board's definition of "concerted activities," set forth as follows, in Meyers Industries, 281 NLRB 882, 885 (1986) (Meyers II), enfd 835 F 2d 1481, 1482-1483 (DC Cir 1987), cert denied 108 S Ct 2847 (1988), quoting with approval from Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers 1) In general to find an employee's activity to be "con- certed," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself" In Meyers II, 281 NLRB at 886, the Board reaffirmed the foregoing, and declared When the record evidence demonstrates group ac- tivities, whether "specifically authorized" in a formal agency sense, or otherwise, we shall find the conduct to be concerted [Emphasis in original ] Where the Board finds that employees were engaged in concerted activity, [A]n 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employees' activity, the concerted activity was pro- tected by the Act, and the adverse employment action at issue (e g, discharge) motivated by the employee's protected concerted activity" Meyers Industries, 268 NLRB at 497 (Meyers I) Accord Nu Dawn Homes, 289 NLRB 554 fn 1 (1988) All the elements of proof of such a violation are present here In the instant case, I find that on September 1, Muth and Vinson engaged in concerted activity when they dis- cussed their driving assignments, decided that they could not comply with the Company's schedule, and then joined in a confrontation with Shafer In their discussion with Shafer, Muth and Vinson initially refused to comply with the Company's requirement that they com- plete their driving assignments by 8 a m on the follow- ing day When Shafer relented, permitting them to make their deliveries at Canton anytime on the morning of September 2, Muth and Vinson again joined in a refusal to perform their driving assignments Both employees were aware that compliance with either of the delivery schedules meant violating the 10-hour driving limit im- posed by the U S Department of Transportation regula- tions When Vinson protested, "No, that's an illegal run" and pointed out that he had a prior log violation, he was attempting to protect himself and Muth from the imposi- tion of the penalty _DOT might impose for exceeding its 10-hour driving limit Clearly, the Company, through Shafer, its director of operations, was well aware of the concerted nature of Muth's and Vinson's refusal The two employees con- fronted him in unison and remained united in refusing to take the loads to Canton, Massachusetts I also find that Muth's and Vinson's refusal to work rather than comply with a dispatch order requiring them to violate U S Department of Transportation regulations was protected by the Act For such a concerted with- holding of services is protected where, as here, there was no showing "that the work stoppage [was] part of a plan or pattern of intermittent action inconsistent with a genu- ine withholding of services or strike" Daniel Construc- tion Go, 277 NLRB 795 (1985) Shafer's testimony shows that he discharged Muth and Vinson because they refused to take their assigned loads to Canton, Massachusetts I have found that the two drivers' conduct in this regard constituted concerted ac- tivity protected by Section 7 of the Act, and that the Company, through Shafer, was aware of its concerted nature at the time of the discharges Accordingly, I fur- ther find that by discharging employees Paul Muth and John Vinson on September 1 Respondent violated Sec- tion 8(a)(1) of the Act, as alleged in the complaint 6 CONCLUSIONS OF LAW 1 Respondent, Cintran, Inc, is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 By discharging Paul Muth and John Vinson on Sep- tember 1, 1988, Respondent has violated Section 8(a)(1) of the Act 3 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act I shall rec- 6 If credited, Shafer's testimony that Muth and Vinson refused to drive to Canton, Massachusetts, because they wanted to be home for the Labor Day weekend would also support a finding that the Company violated Sec 8(a)(I) of the Act by discharging them on September 1 For, their refusal to work on a holiday weekend would constitute concerted activi- ty entitled to the Act's protection A Lasaponara & Sons Inc , 218 NLRB 1096, 1106 (1975), enfd 541 F 2d 992, 998 (2d Or 1976) CINTRAN, INC 181 ommend that Respondent be ordered to offer to Paul Muth and John Vinson reinstatement and to make them whole for any loss of wages they may have suffered due to their unlawful discharges The backpay due Muth and Vinson shall be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 7 I shall also recommend that Re- spondent be ordered to expunge from its files any refer- ence to the unlawful discharges of Paul Muth and John Vinson on September 1, 1988, and to notify them in writ- ing that this has been done and that evidence of their un- lawful discharges will not be used as a basis for future personnel actions against them On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Cmtran, Inc , West Chester, Ohio, its officers7 agents, successors, and assigns, shall 1 Ce, Ise and desist from (a) discharging or otherwise disciplining its employees because they concertedly refuse to make deliveries under conditions which require them to violate U S Depart- ment of Transportation regulations, or engage in other concerted activity guaranteed by Section 7 of the Act (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Paul Muth and John Vinson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnmgs and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision (b) Remove from its files any reference to the unlawful discharges and notify Paul Muth and John Vinson in writing that this has been done and that the discharges will not be used against either of them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in West Chester, Ohio, copies of the attached notice marked "Appendix " 9 Copies of the 7 Under New Horizons, interest is computed at the "short-term" Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C Â§ 6621 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, he adopted by the Board and all objections to them shall be deemed waived for all pur- poses Â° If 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 Nation- notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities â€¢ WE WILL NOT discharge or otherwise discipline em- ployees because they concertedly refuse to make deliv- eries under conditions which require that they violate U S Department of Transportation regulations or engage in other concerted activity guaranteed by Section 7 of the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Paul Muth and John Vinson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earn- ings, plus interest WE WILL notify Paul Muth and John Vinson that we have removed from our files any reference to their re- spective discharges and that the discharges will not be used against either of them in any way CINTRAN, INC